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XXXXXXX XXXXX MORTGAGE INVESTORS, INC.
Depositor
and
BANKERS TRUST COMPANY
Master Servicer
and
CRIIMI MAE SERVICES LIMITED PARTNERSHIP
Special Servicer
and
UNION BANK
Trustee
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POOLING AND SERVICING AGREEMENT
Dated as of November 1, 1995
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$643,600,376
Mortgage Pass-Through Certificates
Series 1995-C3
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TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS
SECTION 1.01. Defined Terms.................................................. 3
Accrued Certificate Interest........................................... 3
Acquisition Date....................................................... 3
Additional Trust Fund Expense.......................................... 3
Adjustment Rate........................................................ 3
Advance................................................................ 3
Adverse REMIC Event.................................................... 4
Affiliate.............................................................. 4
Agreement.............................................................. 4
Appraisal Reduction Amount............................................. 4
Appraised Value........................................................ 4
Assignment of Leases................................................... 4
Assumed Scheduled Payment.............................................. 4
Authenticating Agent................................................... 5
Available Distribution Amount.......................................... 5
Balloon Mortgage Loan.................................................. 5
Balloon Payment........................................................ 5
Bankruptcy Code........................................................ 5
Breach................................................................. 6
Book-Entry Certificate................................................. 6
Business Day........................................................... 6
CERCLA................................................................. 6
Certificate............................................................ 6
Certificate Account.................................................... 6
Certificate Factor..................................................... 6
Certificate Notional Amount............................................ 6
Certificate Owner...................................................... 6
Certificate Principal Balance.......................................... 6
Certificate Register................................................... 7
Certificate Registrar.................................................. 7
Certificateholder...................................................... 7
Class.................................................................. 7
Class A-1 Certificate.................................................. 7
Class A-2 Certificate.................................................. 7
Class A-3 Certificate.................................................. 7
Class B Certificate.................................................... 8
Class C Certificate.................................................... 8
Class D Certificate.................................................... 8
Class E Certificate.................................................... 8
i
Class F Certificate................................................... 8
Class G Certificate................................................... 8
Class IO-1 Certificate................................................ 8
Class IO-1 Weighted Average REMIC I Strip Rate........................ 8
Class IO-2 Certificate................................................ 9
Class IO-2 Weighted Average REMIC I Strip Rate........................ 9
Class Notional Amount................................................. 9
Class Prepayment Percentage........................................... 9
Class Principal Balance............................................... 9
Class R-I Certificate................................................. 9
Class R-II Certificate................................................ 10
Closing Date.......................................................... 10
Code.................................................................. 10
Collection Period..................................................... 10
Collection Report..................................................... 10
Controlling Class..................................................... 10
Corporate Trust Office................................................ 10
Corrected Mortgage Loan............................................... 10
Custodian............................................................. 10
Cut-off Date.......................................................... 11
Cut-off Date Balance.................................................. 11
DCR................................................................... 11
Debt Service Coverage Ratio........................................... 11
Defaulted Mortgage Loan............................................... 11
Definitive Certificate................................................ 11
Depositor............................................................. 11
Depository............................................................ 12
Depository Participant................................................ 12
Determination Date.................................................... 12
Directly Operate...................................................... 12
Disqualified Organization............................................. 12
Distributable Certificate Interest.................................... 13
Distribution Account.................................................. 13
Distribution Date..................................................... 13
Distribution Date Statement........................................... 13
Document Defect....................................................... 13
Due Date.............................................................. 13
Effective Net Mortgage Rate........................................... 13
Eligible Account...................................................... 14
ERISA................................................................. 14
Escrow Payment........................................................ 14
Event of Default...................................................... 14
Exchange Act.......................................................... 14
FDIC.................................................................. 14
FHLMC................................................................. 14
ii
Final Recovery Determination.......................................... 14
First Union........................................................... 15
FNMA.................................................................. 15
Ground Lease.......................................................... 15
Hazardous Materials................................................... 15
Holder................................................................ 15
HUD-Approved Servicer................................................. 15
Independent........................................................... 15
Independent Contractor................................................ 15
Initial Policy........................................................ 16
Insurance Policy...................................................... 16
Insurance Proceeds.................................................... 16
Interested Person..................................................... 16
Investment Account.................................................... 16
Issue Price........................................................... 16
Late Collections...................................................... 16
Liquidation Event..................................................... 17
Liquidation Proceeds.................................................. 17
Loan-to-Value Ratio................................................... 17
Majority Subordinate Certificateholder................................ 17
Master Servicer....................................................... 18
Master Servicer Strip................................................. 18
Master Servicer Strip Rate............................................ 18
Master Servicing Fee.................................................. 18
Master Servicing Fee Rate............................................. 18
Xxxxxxx Xxxxx......................................................... 18
Monthly Payment....................................................... 18
Mortgage.............................................................. 18
Mortgage File......................................................... 19
Mortgage Loan......................................................... 20
Mortgage Loan Purchase Agreement...................................... 20
Mortgage Loan Schedule................................................ 20
Mortgage Loan Seller.................................................. 21
Mortgage Note......................................................... 21
Mortgage Pool......................................................... 21
Mortgage Rate......................................................... 21
Mortgaged Property.................................................... 21
Mortgagor............................................................. 21
Net Aggregate Prepayment Interest Shortfall........................... 21
Net Investment Earnings............................................... 21
Net Investment Loss................................................... 22
Net Mortgage Rate..................................................... 22
Net Operating Income.................................................. 22
New Lease............................................................. 22
Nonrecoverable Advance................................................ 22
iii
Nonrecoverable P&I Advance............................................ 22
Nonrecoverable Servicing Advance...................................... 22
Non-Registered Certificate............................................ 22
Non-United States Person.............................................. 23
Notional Prepayment Percentage........................................ 23
Officers' Certificate................................................. 23
Opinion of Counsel.................................................... 23
Original Class Notional Amount........................................ 23
Original Class Principal Balance...................................... 23
OTS................................................................... 23
Ownership Interest.................................................... 23
Pass-Through Rate..................................................... 23
Paying Agent.......................................................... 24
Penalty Interest...................................................... 24
Percentage Interest................................................... 24
Permitted Investments................................................. 25
Permitted Transferee.................................................. 26
Person................................................................ 26
Phase I Environmental Assessment...................................... 26
P&I Advance........................................................... 26
P&I Advance Date...................................................... 26
Plurality Residual Certificateholder.................................. 26
Prepayment Assumption................................................. 26
Prepayment Interest Excess............................................ 26
Prepayment Interest Shortfall......................................... 27
Prepayment Premium.................................................... 27
Prepayment Strip...................................................... 27
Prime Rate............................................................ 27
Principal Distribution Amount......................................... 27
Principal Prepayment.................................................. 28
Principal Recovery Fee................................................ 28
Prospectus............................................................ 29
Prospectus Supplement................................................. 29
Purchase Price........................................................ 29
Qualified Insurer..................................................... 29
Rating Agency......................................................... 29
Realized Loss......................................................... 29
Record Date........................................................... 30
Registered Certificate................................................ 30
Reimbursement Rate.................................................... 30
REMIC................................................................. 30
REMIC I............................................................... 30
REMIC I Regular Interest.............................................. 30
REMIC I Remittance Rate............................................... 30
REMIC I Strip Rate.................................................... 30
iv
REMIC II.............................................................. 31
REMIC II Certificate.................................................. 31
REMIC II Regular Certificate.......................................... 31
REMIC Administrator................................................... 31
REMIC Provisions...................................................... 31
Rents from Real Property.............................................. 31
REO Account........................................................... 31
REO Acquisition....................................................... 31
REO Disposition....................................................... 31
REO Extension......................................................... 31
REO Loan.............................................................. 32
REO Property.......................................................... 32
REO Revenues.......................................................... 32
REO Tax............................................................... 32
Request for Release................................................... 32
Required Appraisal.................................................... 33
Required Appraisal Loan............................................... 33
Required Appraisal Value.............................................. 33
Reserve Account....................................................... 33
Reserve Funds......................................................... 33
Residual Certificate.................................................. 33
Responsible Officer................................................... 33
Scheduled Payment..................................................... 33
Securities Act........................................................ 34
Senior Certificate.................................................... 34
Servicing Account..................................................... 34
Servicing Advances.................................................... 34
Servicing Fees........................................................ 34
Servicing File........................................................ 34
Servicing Officer..................................................... 34
Servicing Standard.................................................... 34
Servicing Transfer Event.............................................. 35
Single Certificate.................................................... 35
Special Servicer...................................................... 35
Special Servicing Fee................................................. 35
Special Servicing Fee Rate............................................ 35
Specially Serviced Mortgage Loan...................................... 35
Standard & Poor's..................................................... 37
Startup Day........................................................... 37
Stated Maturity Date.................................................. 38
Stated Principal Balance.............................................. 38
Stripped Mortgage Loans............................................... 38
Stripped I Mortgage Loan.............................................. 38
Stripped II Mortgage Loan............................................. 38
Stripped III Mortgage Loan............................................ 38
v
Stripped IV Mortgage Loan............................................. 38
Stripped REMIC I Regular Interest..................................... 38
Subordinated Certificate.............................................. 38
Sub-Servicer.......................................................... 39
Sub-Servicing Agreement............................................... 39
Tax Matters Person.................................................... 39
Tax Returns........................................................... 39
Transaction Screen Process............................................ 39
Transfer.............................................................. 39
Transferee............................................................ 39
Transferor............................................................ 39
Trust Fund............................................................ 39
Trustee............................................................... 39
Trustee's Fee......................................................... 40
UCC................................................................... 40
UCC Financing Statement............................................... 40
Uncertificated Accrued Interest....................................... 40
Uncertificated Distributable Interest................................. 40
Uncertificated Principal Balance...................................... 40
Underwriter........................................................... 40
United States Person.................................................. 40
Updated Mortgage Loan Schedule........................................ 41
Voting Rights......................................................... 41
Weighted Average Effective Net Mortgage Rate.......................... 41
Weighted Average REMIC I Remittance Rate.............................. 41
Yield Maintenance Charge.............................................. 41
ARTICLE II CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND
WARRANTIES; ORIGINAL ISSUANCE OF CERTIFICATES
SECTION 2.01. Conveyance of Mortgage Loans.................................. 43
SECTION 2.02. Acceptance of REMIC I by Trustee.............................. 44
SECTION 2.03. Mortgage Loan Seller's Repurchase of Mortgage Loans for
Document Defects and Breaches of Representations and
Warranties.................................................. 45
SECTION 2.04. Representations and Warranties of Depositor................... 46
SECTION 2.05. Execution, Authentication and Delivery of Class R-I
Certificates; Creation of REMIC I Regular Interests......... 48
SECTION 2.06. Conveyance of REMIC I Regular Interests;
Acceptance of REMIC II by Trustee........................... 48
SECTION 2.07. Execution, Authentication and Delivery of
REMIC II Certificates....................................... 48
ARTICLE III ADMINISTRATION AND SERVICING OF THE TRUST FUND
SECTION 3.01. Administration of the Mortgage Loans.......................... 49
SECTION 3.02. Collection of Mortgage Loan Payments......................... 50
vi
SECTION 3.03. Collection of Taxes, Assessments and Similar Items;
Servicing Accounts; Reserve Accounts........................ 51
SECTION 3.04. Certificate Account and Distribution Account.................. 53
SECTION 3.05. Permitted Withdrawals From the Certificate Account
and the Distribution Account................................ 55
SECTION 3.06. Investment of Funds in the Certificate Account, the
Distribution Account and the REO Account.................... 59
SECTION 3.07. Maintenance of Insurance Policies; Errors and
Omissions and Fidelity Coverage............................. 60
SECTION 3.08. Enforcement of Alienation Clauses............................. 62
SECTION 3.09. Realization Upon Defaulted Mortgage Loans;
Required Appraisals......................................... 63
SECTION 3.10. Trustee and Custodian to Cooperate;
Release of Mortgage Files................................... 66
SECTION 3.11. Servicing Compensation........................................ 67
SECTION 3.12. Property Inspections; Collection of Financial Statements;
Delivery of Certain Reports................................. 70
SECTION 3.13. Annual Statement as to Compliance............................. 71
SECTION 3.14. Reports by Independent Public Accountants..................... 72
SECTION 3.15. Access to Certain Information................................. 72
SECTION 3.16. Title to REO Property; REO Account............................ 73
SECTION 3.17. Management of REO Property.................................... 74
SECTION 3.18. Sale of Mortgage Loans and REO Properties..................... 77
SECTION 3.19. Additional Obligations of Master Servicer..................... 80
SECTION 3.20. Modifications, Waivers, Amendments and Consents............... 80
SECTION 3.21. Transfer of Servicing Between Master Servicer and
Special Servicer; Record Keeping............................ 82
SECTION 3.22. Sub-Servicing Agreements...................................... 84
SECTION 3.23. Representations and Warranties of Master Servicer and
Special Servicer............................................ 86
ARTICLE IV PAYMENTS TO CERTIFICATEHOLDERS
SECTION 4.01. Distributions................................................. 90
SECTION 4.02. Statements to Certificateholders; Collection Reports.......... 98
SECTION 4.03. P&I Advances..................................................104
SECTION 4.04. Allocation of Realized Losses and Additional Trust
Fund Expenses...............................................106
SECTION 4.05. Calculations..................................................107
SECTION 4.06. Use of Agents.................................................107
ARTICLE V THE CERTIFICATES
SECTION 5.01. The Certificates..............................................109
SECTION 5.02. Registration of Transfer and Exchange of Certificates.........109
SECTION 5.03. Book-Entry Certificates.......................................115
SECTION 5.04. Mutilated, Destroyed, Lost or Stolen Certificates.............116
SECTION 5.05. Persons Deemed Owners.........................................116
vii
ARTICLE VI THE DEPOSITOR, THE MASTER SERVICER AND THE SPECIAL SERVICER
SECTION 6.01. Liability of Depositor, Master Servicer and
Special Servicer............................................117
SECTION 6.02. Merger, Consolidation or Conversion of Depositor or
Master Servicer or Special Servicer.........................117
SECTION 6.03. Limitation on Liability of Depositor, Master Servicer
and Special Servicer........................................117
SECTION 6.04. Master Servicer and the Special Servicer Not to Resign........118
SECTION 6.05. Rights of Depositor and Trustee in Respect of
Master Servicer and the Special Servicer....................119
SECTION 6.06. Depositor, Master Servicer and Special Servicer
to Cooperate with Trustee...................................120
SECTION 6.07. Depositor, Special Servicer and Trustee to
Cooperate with Master Servicer..............................120
SECTION 6.08. Depositor, Master Servicer and Trustee to
Cooperate with Special Servicer.............................120
SECTION 6.09. Designation of Special Servicer by the
Controlling Class...........................................120
SECTION 6.10. Master Servicer or Special Servicer as Owner
of a Certificate............................................121
ARTICLE VII DEFAULT
SECTION 7.01. Events of Default.............................................123
SECTION 7.02. Trustee to Act; Appointment of Successor......................126
SECTION 7.03. Notification to Certificateholders............................127
SECTION 7.04. Waiver of Events of Default...................................127
SECTION 7.05. Additional Remedies of Trustee Upon Event of Default..........128
ARTICLE VIII CONCERNING THE TRUSTEE
SECTION 8.01. Duties of Trustee.............................................129
SECTION 8.02. Certain Matters Affecting Trustee.............................130
SECTION 8.03. Trustee Not Liable for Validity or Sufficiency
of Certificates or Mortgage Loans...........................131
SECTION 8.04. Trustee May Own Certificates..................................131
SECTION 8.05. Fees and Expenses of Trustee; Indemnification of Trustee......132
SECTION 8.06. Eligibility Requirements for Trustee..........................132
SECTION 8.07. Resignation and Removal of Trustee............................133
SECTION 8.08. Successor Trustee.............................................134
SECTION 8.09. Merger or Consolidation of Trustee............................134
SECTION 8.10. Appointment of Co-Trustee or Separate Trustee.................135
SECTION 8.11. Appointment of Custodians.....................................136
SECTION 8.12. Appointment of Authenticating Agents..........................136
SECTION 8.13. Appointment of Paying Agent...................................137
SECTION 8.14. Appointment of REMIC Administrators...........................137
SECTION 8.15. Access to Certain Information.................................138
viii
SECTION 8.16. Representations and Warranties of Trustee.....................138
SECTION 8.17. Reports to the Securities and Exchange Commission;
Available Information.......................................139
ARTICLE IX TERMINATION
SECTION 9.01. Termination Upon Repurchase or Liquidation of
All Mortgage Loans..........................................141
SECTION 9.02. Additional Termination Requirements...........................146
ARTICLE X ADDITIONAL REMIC PROVISIONS
SECTION 10.01. REMIC Administration.........................................147
ARTICLE XI MISCELLANEOUS PROVISIONS
SECTION 11.01. Amendment....................................................151
SECTION 11.02. Recordation of Agreement; Counterparts.......................153
SECTION 11.03. Limitation on Rights of Certificateholders...................153
SECTION 11.04. Governing Law................................................154
SECTION 11.05. Notices......................................................154
SECTION 11.06. Severability of Provisions...................................154
SECTION 11.07. Grant of a Security Interest.................................155
SECTION 11.08. Successors and Assigns; Beneficiaries........................156
SECTION 11.09. Article and Section Headings.................................156
SECTION 11.10. Notices to Rating Agencies...................................156
SECTION 11.11. Complete Agreement...........................................157
ix
EXHIBITS
Exhibit Description Exhibit No. Section Reference
------------------- ----------- -----------------
Form of Class A-1 Certificate A-1 Section 1.01 Definition of "Class
A-1 Certificate"
Form of Class A-2 Certificate A-2 Section 1.01 Definition of "Class
A-2 Certificate"
Form of Class A-3 Certificate A-3 Section 1.01 Definition of "Class
A-3 Certificate"
Form of Class B Certificate A-4 Section 1.01 Definition of "Class B
Certificate"
Form of Class C Certificate A-5 Section 1.01 Definition of "Class C
Certificate"
Form of Class D Certificate A-6 Section 1.01 Definition of "Class D
Certificate"
Form of Class E Certificate A-7 Section 1.01 Definition of "Class E
Certificate"
Form of Class F Certificate A-8 Section 1.01 Definition of "Class F
Certificate"
Form of Class G Certificate A-9 Section 1.01 Definition of "Class G
Certificate"
Form of Class IO-1 Certificate A-10 Section 1.01 Definition of "Class
IO-1 Certificate"
Form of Class IO-2 Certificate A-11 Section 1.01 Definition of "Class
IO-2 Certificate"
Form of Class R-I Certificate A-12 Section 1.01 Definition of "Class
R-I Certificate"
Form of Class R-II Certificate A-13 Section 1.01 Definition of "Class
R-II Certificate"
Mortgage Loan Schedule B Section 1.01 Definition of "Mortgage
Loan Schedule"
x
Exhibit Description Exhibit No. Section Reference
------------------- ----------- -----------------
Schedule of Exceptions to Mortgage File C Section 2.02(a)
Delivery
Form of Master Servicer Request for Release D-1 Section 1.01 Definition of "Request
for Release";
Section 2.03(b); Section
3.10(a); and Section 3.10(b)
Form of Special Servicer Request for Release D-2 Section 1.01 Definition of "Request
for Release"; Section 3.10(b)
Calculation of NOI/Debt Service Coverage E-1 Section 1.01 Definition of "Net
Ratios Operating Income"; Section 3.12(b)
Form of Updated Mortgage Loan Schedule E-2 Section 3.12(c); and Section 4.02(b)
Copy of Letter of Representations among F Section 4.01(d)
Depositor, Trustee and initial Depository
Form of Certificate from Holder (Transferor) G-1 Section 5.02(b)
of a Certificate to the Certificate Registrar
Form of Certificate from Proposed Transferee G-2 Section 5.02(b)
of a Certificate to Certificate Registrar
Form of Certificate from Proposed Transferee G-3 Section 5.02(b)
of a Certificate to Certificate Registrar
Form of Certificate (to Certificate H Section 5.02(c)
Registrar) by Prospective Transferor that it
is not a Plan or certain other Persons
Form of Transfer Affidavit and Agreement I-1 Section 5.02(d)(i)(B)
regarding Class R-I Certificates
xi
Exhibit Description Exhibit No. Section Reference
------------------- ----------- -----------------
Form of Transferor Certificate regarding I-2 Section 5.02(d)(i)(D)
Class R-I Certificates
Form of Transfer Affidavit and Agreement J-1 Section 5.02(d)(i)(B)
regarding Class R-II Certificates
Form of Transferor Certificate regarding J-2 Section 5.02(d)(i)(D)
Class R-II Certificates
Form of Notice and Acknowledgment K-1 Section 6.09
Form of Acknowledgment of Proposed Special K-2 Section 6.09
Servicer
Form of UCC-1 financing statement L Section 11.07
xii
This Pooling and Servicing Agreement (this "Agreement"), is dated and
effective as of November 1, 1995, among XXXXXXX XXXXX MORTGAGE INVESTORS, INC.,
as Depositor, BANKERS TRUST COMPANY, as Master Servicer, CRIIMI MAE SERVICES
LIMITED PARTNERSHIP, as Special Servicer, and UNION BANK, as Trustee.
PRELIMINARY STATEMENT:
The Depositor intends to sell mortgage pass-through certificates
(collectively, the "Certificates"), to be issued hereunder 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 Trustee 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. The following
table irrevocably sets forth the designation, remittance rate (the "REMIC I
Remittance Rate"), initial stated principal amount (the initial "Uncertificated
Principal Balance") and latest possible maturity date for each of the "regular
interests" in REMIC I (the "REMIC I Regular Interests"). None of the REMIC I
Regular Interests will be certificated.
REMIC I Initial Uncertificated Latest Possible
Designation Remittance Rate Principal Balance Maturity Date (2)
----------- ----------------- ---------------------- --------------------
T Variable(1) $135,156,000 December 26, 2025(3)
U Variable(1) $32,180,000 December 26, 2025(3)
V Variable(1) $276,748,000 December 26, 2025(3)
W Variable(1) $38,616,000 December 26, 2025(3)
X Variable(1) $32,180,000 December 26, 2025(3)
Y Variable(1) $38,616,000 December 26, 2025(3)
Z Variable(1) $90,104,375 December 26, 2025(3)
----------------
(1) Calculated in accordance with the definition of "REMIC I Remittance Rate".
(2) Determined solely for purposes of satisfying Treasury regulation section
1.860G-1(a)(4)(iii).
(3) Set to the date that is five years after the first Distribution Date that
follows the scheduled maturity date for the Mortgage Loan with the longest
remaining term to scheduled maturity.
As provided herein, the Trustee 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
-2-
will evidence 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, pass-through rate (the "Pass-Through
Rate"), initial aggregate stated principal amount (the initial "Class Principal
Balance") and latest possible maturity date for each of the Classes of
Certificates representing "regular interests" in REMIC II.
Class Initial Class Latest Possible
Designation Pass-Through Rate Principal Balance Maturity Date (3)
----------- ----------------- ----------------- --------------------
Class A-1 Variable (1) $135,156,000 December 26, 2025(4)
Class A-2 Variable (1) $32,180,000 December 26, 2025(4)
Class A-3 Variable (1) $276,748,000 December 26, 2025(4)
Class B Variable (1) $38,616,000 December 26, 2025(4)
Class C Variable (1) $32,180,000 December 26, 2025(4)
Class D Variable (1) $38,616,000 December 26, 2025(4)
Class IO-1 Variable (1) N/A(2) December 26, 2025(4)
Class IO-2 Variable (1) N/A(2) December 26, 2025(4)
Class E Variable (1) $45,052,000 December 26, 2025(4)
Class F Variable (1) $28,962,000 December 26, 2025(4)
Class G Variable (1) $16,090,376 December 26, 2025(4)
-----------
(1) Calculated in accordance with the definition of "Pass-Through Rate".
(2) The Class IO-1 and Class IO-2 Certificates will not have specified Class
Principal Balances, and will accrue interest on a hypothetical or notional
principal amount equal to (i) the aggregate Uncertificated Principal
Balance of REMIC I Regular Interest T and REMIC I Regular Interest U
outstanding from time to time, in the case of Class IO-1 and (ii) the
unaggregate Uncertificated Principal Balance of REMIC I Regular Interest V,
REMIC I Regular Interest W, REMIC I Regular Interest X and REMIC I Regular
Interest Y outstanding from time to time, in the case of Class IO-2.
(3) Determined solely for purposes of satisfying Treasury regulation section
1.860G-1(a)(4)(iii).
(4) Set to the date that is five years after the first Distribution Date that
follows the scheduled maturity date for the Mortgage Loan with the longest
remaining term to scheduled maturity.
The aggregate Cut-off Date Balance (as defined herein) of the Mortgage
Loans, the aggregate Uncertificated Principal Balance of the REMIC I Regular
Interests, and the aggregate Class Principal Balance of the respective Classes
of Certificates evidencing "regular interests" in REMIC II will in each case be
$643,600,376.
In consideration of the mutual agreements herein contained, the Depositor,
the Master Servicer, the Special Servicer and the Trustee agree as follows:
-3-
ARTICLE I
DEFINITIONS
SECTION 1.01. Defined Terms.
Whenever used in this Agreement, including in the Preliminary Statement,
the following words and phrases, unless the context otherwise requires, shall
have the meanings specified in this Article.
"Accrued Certificate Interest": With respect to any Class of REMIC II
Regular Certificates for any Distribution Date, one month's interest at the
Pass-Through Rate applicable to such Class of Certificates for such Distribution
Date, accrued on the related Class Principal Balance or Class Notional Amount,
as the case may be, 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.
"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.
"Additional Trust Fund Expense": Any Special Servicing Fees, Principal
Recovery Fees and, in accordance with Sections 3.03(d) and 4.03(d), interest on
Advances payable to the Master Servicer and the Special Servicer, as well as any
of the expenses of the Trust Fund that may be withdrawn (x) pursuant to any of
clauses (viii), (ix), (xi), (xii) and (xiii) of Section 3.05(a) out of general
collections on the Mortgage Loans and any REO Properties on deposit in the
Certificate Account or (y) pursuant to clause (ii) or any of clauses (iv)
through (vi) of Section 3.05(b) out of general collections on the Mortgage Loans
and any REO Properties on deposit in the Distribution Account; provided that for
purposes of the allocations contemplated by Section 4.04 no such expense shall
have been incurred until such time as the payment thereof is actually made from
the Certificate Account or the Distribution Account, as the case may be.
"Adjustment Rate": With respect to the Class A-1, Class A-2 and Class A-3
Certificates, 0%, with respect to the Class B Certificates, 0.20%, with respect
to the Class C Certificates, 0.50% and with respect to the Class D Certificates,
1.00%.
"Advance": Any P&I Advance or Servicing Advance.
"Adverse REMIC Event": As defined in Section 10.01(i).
"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
-4-
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 and all amendments hereof
and supplements hereto.
"Appraisal Reduction Amount": The excess, if any, of (a) the sum of, as of
the Determination Date immediately succeeding the date on which a Required
Appraisal is obtained, (i) the Stated Principal Balance of the subject Required
Appraisal Mortgage Loan, (ii) to the extent not previously advanced by or on
behalf of the Master Servicer or the Trustee, all unpaid interest on the
Required Appraisal Mortgage Loan through the most recent Due Date prior to such
Determination Date at a per annum rate equal to the related Net Mortgage Rate,
(iii) all accrued but unpaid Master Servicing Fees and Additional Trust Fund
Expenses in respect of such Required Appraisal Mortgage Loan, (iv) all related
unreimbursed Advances made by or on behalf of the Master Servicer, the Special
Servicer or the Trustee with respect to such Required Appraisal Mortgage Loan
and (v) all currently due and unpaid real estate taxes and assessments,
insurance premiums, and, if applicable, ground rents in respect of the related
Mortgaged Property over (b) the Required Appraisal Value.
"Appraised Value": With respect to each Mortgaged Property, the appraised
value thereof based upon the most recent appraisal that is contained in the
related Servicing File.
"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 on or before such date and no other Liquidation Event has occurred in
respect thereof) 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, in effect prior to
its Stated Maturity 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
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would have been deemed due in respect of the predecessor Mortgage Loan on such
Due Date had it remained outstanding).
"Authenticating Agent: Any authenticating agent appointed pursuant to
Section 8.12.
"Available Distribution Amount": With respect to any Distribution Date, an
amount equal to, without duplication, (a) the sum of (i) the aggregate of the
amounts on deposit in the Certificate Account and the Distribution Account as of
the close of business on the related Determination Date, (ii) the aggregate
amount of any P&I Advances made by the Master Servicer for distribution on the
Certificates on such Distribution Date pursuant to Section 4.03, (iii) if and to
the extent not included in the amount referred to in subclause (a)(i), the
aggregate amount transferred from the REO Account (if established) to the
Certificate Account during the month of such Distribution Date, on or prior to
the P&I Advance Date in such month, pursuant to Section 3.16(c), and (iv) the
aggregate amount deposited by the Master Servicer in the Distribution Account
for such Distribution Date pursuant to Section 3.19 in connection with
Prepayment Interest Shortfalls, net of (b) the portion of the amount described
in subclauses (a)(i) and (a)(iii) 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 amounts payable or
reimbursable to any Person from the Certificate Account pursuant to clauses
(ii)-(xv) of Section 3.05(a), (iii) any amounts payable or reimbursable to the
Trustee from the Distribution Account pursuant to clauses (ii)-(vi) of Section
3.05(b), (iv) Prepayment Premiums and Yield Maintenance Charges, and (v) any
amounts deposited in the Certificate Account or the Distribution Account in
error.
"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.
"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.
"Bankruptcy Code": The federal Bankruptcy Code, as amended from time to
time (Title 11 of the United States Code).
"Breach": As defined in Section 2.03(a).
"Book-Entry Certificate": Any Certificate registered in the name of the
Depository or its nominee.
"Business Day": Any day other than a Saturday, a Sunday or a day on which
banking institutions in New York, New York or the city in which the Corporate
Trust Office
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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.
"Certificate": Any one of the Depositor's Mortgage Pass-Through
Certificates, Series 1995-C3, as executed by the Certificate Registrar and
authenticated and delivered hereunder by the Authenticating Agent.
"Certificate Account": The segregated account or accounts created and
maintained by the Master Servicer pursuant to Section 3.04(a) on behalf of the
Trustee in trust for Certificateholders, which shall be entitled "Bankers Trust
Company, as Master Servicer for Union Bank, as Trustee, on behalf of and in
trust for the registered holders of Xxxxxxx Xxxxx Mortgage Investors, Inc.,
Mortgage Pass-Through Certificates, Series 1995-C3".
"Certificate Factor": With respect to any Class of REMIC II Regular
Certificates, as of any date of determination, a fraction, expressed as a
decimal carried to 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 Original Class Principal Balance or Original
Class Notional Amount, as the case may be.
"Certificate Notional Amount": The hypothetical or notional principal
amount on which a Class IO-1 or Class IO-2 Certificate accrues interest equal to
the product of (a) the Percentage Interest evidenced by such Certificate,
multiplied by (b) the Class Notional Amount of the Class IO-1 or Class IO-2
Certificates outstanding from time to time.
"Certificate Owner": With respect to a Book-Entry Certificate, the Person
who is the beneficial owner of such Certificate as reflected on the books of the
Depository or on the books of a Depository Participant or on the books of an
indirect participating brokerage firm for which a Depository Participant acts as
agent.
"Certificate Principal Balance": With respect to any REMIC II Regular
Certificate (other than a Class IO-1 or Class IO-2 Certificate), as of any date
of determination, the then outstanding principal amount of such Certificate
equal to the product of (a) the Percentage Interest evidenced by such
Certificate, multiplied by (b) the then Class Principal Balance of the Class of
Certificates to which such Certificate belongs.
"Certificate Register" and "Certificate Registrar": The register maintained
and the registrar appointed pursuant to Section 5.02.
"Certificateholder": The Person in whose name a Certificate is registered
in the Certificate Register, except that (i) neither a Disqualified Organization
nor a Non-United States Person shall be Holder of a Residual Certificate for any
purpose hereof and, (ii) solely for the purposes of giving any consent, approval
or waiver pursuant to this Agreement that
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relates to any of the Depositor, either Mortgage Loan Seller, the Master
Servicer, the Special Servicer or the Trustee in its respective capacity as
such, any Certificate registered in the name of the Depositor, either Mortgage
Loan Seller, the Master Servicer, the Special Servicer 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 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
"Holders" or "Certificateholders" shall reflect the rights of Certificate Owners
as they may indirectly exercise such rights through the Depository and the
Depository Participants, except as otherwise specified herein; provided,
however, that the parties hereto shall be required to recognize as a "Holder" or
"Certificateholder" only the Person in whose name a Certificate is registered in
the Certificate Register.
"Class": Collectively, all of the Certificates bearing the same
alphabetical and, if applicable, numerical class designation.
"Class A-1 Certificate": Any one of the Certificates with a "Class A-1"
designation on the face thereof, substantially in the form of Exhibit A-1
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class A-2 Certificate": Any one of the Certificates with a "Class A-2"
designation on the face thereof, substantially in the form of Exhibit A-2
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class A-3 Certificate": Any one of the Certificates with a "Class A-3"
designation on the face thereof, substantially in the form of Exhibit A-3
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class B Certificate": Any one of the Certificates with a "Class B"
designation on the face thereof, substantially in the form of Exhibit A-4
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class C Certificate": Any one of the Certificates with a "Class C"
designation on the face thereof, substantially in the form of Exhibit A-5
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class D Certificate": Any one of the Certificates with a "Class D"
designation on the face thereof, substantially in the form of Exhibit A-6
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
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"Class E Certificate": Any one of the Certificates with a "Class E"
designation on the face thereof, substantially in the form of Exhibit A-7
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class F Certificate": Any one of the Certificates with a "Class F"
designation on the face thereof, substantially in the form of Exhibit A-8
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class G Certificate": Any one of the Certificates with a "Class G"
designation on the face thereof, substantially in the form of Exhibit A-9
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class IO-1 Certificate": Any one of the Certificates with a "Class IO-1"
designation on the face thereof, substantially in the form of Exhibit A-10
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class IO-1 Weighted Average REMIC I Strip 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 I
Strip Rates in respect of REMIC I Regular Interest T and REMIC Regular Interest
U for such Distribution Date, weighted on the basis of the respective
Uncertificated Principal Balances of such REMIC I Regular Interests outstanding
immediately prior to such Distribution Date.
"Class IO-2 Certificate": Any one of the Certificates with a "Class IO-2"
designation on the face thereof, substantially in the form of Exhibit A-11
attached hereto, and evidencing a "regular interest" in REMIC II for purposes of
the REMIC Provisions.
"Class IO-2 Weighted Average REMIC I Strip 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 I
Strip Rates in respect of the REMIC I Regular Interest V, REMIC I Regular
Interest W, REMIC I Regular Interest X and REMIC I Regular Interest Y for such
Distribution Date, weighted on the basis of the respective Uncertificated
Principal Balances of such REMIC I Regular Interest outstanding immediately
prior to such Distribution Date.
"Class Notional Amount": The aggregate hypothetical or notional principal
amount on which the Class IO-1 and Class IO-2 Certificates accrue interest,
equal to (i) the aggregate Uncertificated Principal Balance of REMIC I Regular
Interest T and REMIC I Regular Interest U outstanding from time to time, in the
case of Class IO-1 and (ii) the aggregate Uncertificated Principal Balance of
REMIC I Regular Interest V, REMIC I Regular Interest W, REMIC I Regular Interest
X and REMIC I Regular Interest Y outstanding from time to time, in the case of
Class IO-2.
"Class Prepayment Percentage": With respect to any Distribution Date and
the Class A-1, Class A-2, Class A-3, Class B, Class C and Class D Certificates,
the percentage
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obtained by dividing the portion, if any, of the Principal Distribution Amount
distributed to the respective Class of Certificates on such Distribution Date,
by the total Principal Distribution Amount distributed to all Classes of
Certificates on such Distribution Date.
"Class Principal Balance": The aggregate principal amount of any Class of
REMIC II Regular Certificates (other than the Class IO-1 and Class IO-2
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 Original 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 or 9.01, as applicable, and shall be further
reduced by the amount of any Realized Losses and Additional Trust Fund Expenses
allocated thereto on such Distribution Date pursuant to 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-12
attached hereto, and evidencing the sole class of "residual interests" in REMIC
I for purposes of the REMIC Provisions.
"Class R-II Certificate": Any one of the Certificates with a "Class R-II"
designation on the face thereof, substantially in the form of Exhibit A-13
attached hereto, and evidencing the sole class of "residual interests" in REMIC
II for purposes of the REMIC Provisions.
"Closing Date": November 30, 1995.
"Code": The Internal Revenue Code of 1986.
"Collection Period": With respect to any Distribution Date, the period
commencing immediately following the Determination Date for the preceding
Distribution Date (or, in the case of the initial Distribution Date, commencing
immediately following the Cut-off Date) and ending on and including the related
Determination Date.
"Collection Report": The monthly report to be prepared by the Master
Servicer and Special Servicer, and delivered to the Paying Agent and the
Depositor pursuant to Section 4.02(b).
"Controlling Class": As of any date of determination, the Class of
Certificates outstanding, other than the Residual Certificates or the Class IO
Certificates, (a) which bear the latest alphabetical Class designation and (b)
the Class Principal Balance of which is greater than 20% of the Original Class
Principal Balance thereof; provided, however, that if no such Class of
Certificates has a Class Principal Balance greater than 20% of its Original
Class Balance, the Controlling Class shall be the Class of Certificates (other
than the Residual Certificates or the Class IO-1 and Class IO-2 Certificates)
bearing the latest alphabetical
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designation. With respect to determining the Controlling Class, the Class A-1,
Class A-2 and Class A-3 Certificates shall be deemed a single Class of
Certificates.
"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 Corporate Trust Department, Suite
1150, 000 Xxxxxxxxxx Xxxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000, Attention: MLMI
Series 1995-C3.
"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".
"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": November 1, 1995 with respect to any Mortgage Loans which
were originated on or prior to such date and the date of origination with
respect to any Mortgage Loans which were originated on November 2 or November 3,
1995.
"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 unscheduled payments of principal received on or before such
date and the principal component of all Scheduled Payments due on or before such
date, whether or not received.
"DCR": Duff & Xxxxxx Credit Rating Co. or its successor in interest. If
neither such rating agency nor any successor remains in existence, "DCR" shall
be deemed to refer to such other nationally recognized statistical rating agency
or other comparable Person designated by the Depositor, notice of which
designation shall be given to the Trustee, the Master Servicer and the Special
Servicer, and specific ratings of DCR herein referenced shall be deemed to refer
to the equivalent ratings of the party so designated.
"Debt Service Coverage Ratio": With respect to any Mortgage Loan, as of any
date of determination, the ratio of (x) the Net Operating Income (before payment
of any debt service on such Mortgage Loan) generated by the related Mortgaged
Property during the most recently ended period of not less than six months and
not more than twelve months for which financial statements, if available
(whether or not audited) have been received by or on behalf of the Mortgage Loan
Seller (prior to the Closing Date) or the Master Servicer or the Special
Servicer (following the Closing Date), to (y) twelve times the amount of the
Monthly Payment in effect for such Mortgage Loan as of such date of
determination.
"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
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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 Master Servicer or 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": Xxxxxxx Xxxxx Mortgage Investors, Inc. 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 Securities Exchange Act of 1934, as amended.
"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 12th day
of the month in which such Distribution Date occurs, or if such 12th day is not
a Business Day, the Business Day immediately preceding.
"Directly Operate": With respect to any REO Property, the furnishing or
rendering of services to the tenants thereof, the management or operation of
such REO Property, the holding of such REO Property primarily for sale or lease,
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 Trustee (or the Special Servicer or any
Sub-Servicer on behalf of the Trustee) shall not be considered to Directly
Operate an REO Property solely because the Trustee (or the Special Servicer or
any Sub-Servicer on behalf of the Trustee) establishes rental terms, chooses
tenants, enters into or renews leases, deals with taxes and insurance, or makes
decisions as to repairs 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
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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 Trustee or the Certificate Registrar 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 II
Regular Certificates, for any Distribution Date, the Accrued Certificate
Interest in respect of such Class of Certificates for such Distribution Date,
reduced (to not less than zero) by 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 II Regular
Certificates for such Distribution Date.
"Distribution Account": The segregated account or accounts created and
maintained by the Paying Agent on behalf of the Trustee pursuant to Section
3.04(b) which shall be entitled "Union Bank, as Trustee, in trust for the
registered holders of Xxxxxxx Xxxxx Mortgage Investors, Inc., Mortgage
Pass-Through Certificates, Series 1995-C3."
"Distribution Date": The 25th day of any month, or if such 25th day is not
a Business Day, the Business Day immediately following, commencing in December,
1995.
"Distribution Date Statement": As defined in Section 4.02(a).
"Document Defect": As defined in Section 2.03(a).
"Due Date": With respect to (i) any Mortgage Loan on or prior to its Stated
Maturity Date, the day of the month set forth in the related Mortgage Note on
which each Monthly Payment on such Mortgage Loan is scheduled to be first due;
(ii) any Mortgage Loan after its Stated Maturity Date, the day of the month set
forth in the related Mortgage Note on which each Monthly Payment on such
Mortgage Loan had been scheduled to be first due; and (iii) any REO Loan, the
day of the month set forth in the related Mortgage Note on which each Monthly
Payment on the related Mortgage Loan had been scheduled to be first due.
"Effective Net Mortgage Rate": With respect to any Mortgage Loan or REO
Loan for any Distribution Date, (a) if the related Mortgage Note provides for
the accrual of interest on the basis of a 360-day year consisting of twelve
30-day months (a "30/360 basis"), the related Net Mortgage Rate in effect as of
the commencement of the most recently ended
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Collection Period, or (b) if the related Mortgage Note provides for the accrual
of interest other than on a 30/360 basis, the annualized rate at which interest
would have to accrue on a 30/360 basis during the one month period preceding the
related Due Date in the most recently ended Collection Period in order to
produce the aggregate amount of interest (adjusted to the related Net Mortgage
Rate in effect as of the commencement of the most recently ended Collection
Period) actually accrued on such Mortgage Loan or REO Loan during such one month
period.
"Eligible Account": Any of (i) an account maintained with a federal or
state chartered depository institution or trust company, the (a) long term
deposit or long term unsecured debt obligations or (b) short-term deposits of
which (or of such institution's parent holding company) are rated D-1 or "AA",
respectively, by DCR (if then rated by DCR) and Standard & Poor's at any time
funds are on deposit therein, or (ii) a segregated trust account or accounts
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), having in either case a combined capital and surplus of at least
$50,000,000 and subject to supervision or examination by federal or state
authority, or otherwise 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 to any Class of Certificates).
"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 other items for which an escrow or reserve has been created in
respect of the related Mortgaged Property.
"Event of Default": One or more of the events described in Section 7.01(a).
"Exchange Act": Securities Exchange Act of 1934, as amended.
"FDIC": Federal Deposit Insurance Corporation or any successor.
"FHLMC": Federal Home Loan Mortgage Corporation or any successor.
"Final Recovery Determination": A determination by the Special Servicer
with respect to any defaulted Mortgage Loan or REO Property (other than a
Mortgage Loan or REO Property, as the case may be, that was purchased by the
Mortgage Loan Seller pursuant to the Mortgage Loan Purchase Agreement, by the
Majority Subordinate Certificateholder pursuant to Section 3.18(b), by the
Master Servicer or the Special Servicer pursuant to Section 3.18(c) or by the
Depositor or the Master Servicer pursuant to Section 9.01) that there has
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been a recovery of all Insurance Proceeds, Liquidation Proceeds and other
payments or recoveries that the Special Servicer has determined, in accordance
with the Servicing Standard, will be ultimately recoverable.
"First Union": First Union Capital Markets Corp. or its successor in
interest.
"FNMA": Federal National Mortgage Association.
"Ground Lease:": As defined in Section 2.01(e)(xix) hereof.
"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 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.
"Holder": A Certificateholder.
"HUD-Approved Servicer": A servicer approved by the Secretary of Housing
and Urban Development pursuant to Section 207 of the National Housing Act.
"Independent": When used with respect to any specified Person, any such
Person who (i) is in fact independent of the Depositor, the Mortgage Loan
Sellers, the Master Servicer, the Special Servicer 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 or any Affiliate thereof, and (iii) is not connected with the
Depositor, the Master Servicer, the Special Servicer 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 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 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 percent or more of any Class of
Certificates, or such other interest in any Class of Certificates as is set
forth in an Opinion of Counsel, which shall be at no expense to the Master
Servicer, the Special Servicer, the Trustee or the Trust Fund, delivered to the
Trustee), 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
-15-
Treasury regulation Section 1.856-4(b)(5), or any other Person upon receipt by
the Trustee of an Opinion of Counsel, which shall be at no expense to the Master
Servicer, the Special Servicer, the Trustee 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 Deposit": An amount, equal to $6,985.33, deposited by the
Depositor into the Certificate Account on the Closing Date.
"Insurance Policy": With respect to any Mortgage Loan, any hazard insurance
policy, flood insurance policy, title policy or other insurance policy that is
maintained from time to time in respect of such Mortgage Loan or the related
Mortgaged Property.
"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 released to the Mortgagor, in either case, subject to the rights of
any tenants and ground lessors, as the case may be, and the terms of the related
Mortgage, and in accordance with the Servicing Standard.
"Interested Person": The Depositor, the Mortgage Loan Sellers, the Master
Servicer, the Special Servicer, any Holder of a Certificate, or any Affiliate of
any such Person.
"Investment Account": As defined in Section 3.06(a).
"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 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 an Assumed Scheduled
Payment in respect of the predecessor Mortgage Loan or 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
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respect to such Mortgage Loan; (iii) such Mortgage Loan is repurchased by a
Mortgage Loan Seller pursuant to the related Mortgage Loan Purchase Agreement;
or (iv) such Mortgage Loan is purchased by the Majority Subordinate
Certificateholder pursuant to Section 3.18(b), by the Master Servicer or the
Special Servicer pursuant to Section 3.18(c) or by the Depositor or the Master
Servicer pursuant to 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 Depositor or the Master Servicer pursuant to
Section 9.01.
"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, subject, however, to
the rights of any tenants and ground lessors, as the case may be, and the terms
of the related Mortgage; (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
Majority Subordinate Certificateholder pursuant to Section 3.18(b) or by the
Master Servicer or the Special Servicer pursuant to Section 3.18(c) or any other
sale thereof pursuant to Section 3.18(d); (v) the repurchase of a Mortgage Loan
by a Mortgage Loan Seller pursuant to the related Mortgage Loan Purchase
Agreement; or (vi) the purchase of a Mortgage Loan or REO Property by the
Depositor or the Master Servicer pursuant to Section 9.01.
"Loan-to-Value Ratio": With respect to any Mortgage Loan, as of any date of
determination, a fraction, expressed as a percentage, the numerator of which is
the then current principal amount of such Mortgage Loan, and the denominator of
which is the Appraised Value of the related Mortgaged Property.
"Majority Subordinate Certificateholder": As of any date of determination,
any single Holder of Certificates entitled to greater than 50% of the Voting
Rights allocated to the Class of outstanding REMIC II Regular Certificates
(other than the Class IO-1 and Class IO-2 Certificates) with the latest
alphabetical Class designation. With respect to determining the Majority
Subordinate Certificateholder, the Class A-1, Class A-2 and Class A-3
Certificates shall be deemed to be a single Class of Certificates, with such
Voting Rights allocated among the Holders of Certificates of such Classes in
proportion to the respective Certificate Principal Balances of such
Certificates.
"Master Servicer": Bankers Trust Company, its successor in interest, or any
successor master servicer appointed as herein provided.
"Master Servicer Strip": The right of Bankers Trust Company or its assigns
to receive, on each Distribution Date, monthly interest at the Master Servicer
Strip Rate from collections on the Stripped Mortgage Loans, which right shall
not be part of REMIC I or
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REMIC II. The Master Servicer Strip shall be calculated on the basis of a
360-day year consisting of twelve 30-day months and shall be distributed
pursuant to Section 3.05(a)(xv).
"Master Servicer Strip Rate": With respect to any Distribution Date, 1.115%
per annum with respect to the Stripped I Mortgage Loan, 0.28% per annum with
respect to the Stripped II Mortgage Loans, 0.455% per annum with respect to the
Stripped III Mortgage Loan and 0.915% per annum with respect to the Stripped IV
Mortgage Loans.
"Master Servicing Fee": With respect to each Mortgage Loan and REO Loan,
the fee payable to the Master Servicer pursuant to Section 3.11(a).
"Master Servicing Fee Rate": With respect to each Mortgage Loan, the annual
rate set forth therefor in the Mortgage Loan Schedule.
"Xxxxxxx Xxxxx": Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated or its
successor in interest.
"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": With respect to any Mortgage Loan, the mortgage, deed of trust,
deed to secure debt or similar instrument that secures the Mortgage Note and
creates a lien on the related Mortgaged Property.
"Mortgage File": With respect to any Mortgage Loan, collectively the
following documents:
(i) the original executed Mortgage Note, endorsed (without recourse,
representation or warranty, express or implied) to the order of Union Bank,
as trustee for the registered holders of Xxxxxxx Xxxxx Mortgage Investors,
Inc., Mortgage Pass-Through Certificates, Series 1995-C3;
(ii) an original or copy of the Mortgage and of any intervening
assignments thereof, in each case with evidence of recording indicated
thereon;
(iii) an original or copy of any related Assignment of Leases (with
recording information indicated thereon), if such item is a document
separate from the Mortgage;
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(iv) an original executed assignment of the Mortgage, any related
Assignment of Leases (if such item is a document separate from the
Mortgage), and any other recorded document relating to the Mortgage Loan
otherwise included in the Mortgage File, in favor of Union Bank, as trustee
for the registered holders of Xxxxxxx Xxxxx Mortgage Investors, Inc.,
Mortgage Pass-Through Certificates, Series 1995-C3, in recordable form;
(v) an original assignment of all unrecorded documents relating to the
Mortgage Loan, in favor of Union Bank, as trustee for the registered
holders of Xxxxxxx Xxxxx Mortgage Investors, Inc., Mortgage Pass-Through
Certificates, Series 1995-C3;
(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 assignment, as appropriate, in favor
of Union Bank, as trustee for the registered holders of Xxxxxxx Xxxxx
Mortgage Investors, Inc., Mortgage Pass-Through Certificates, Series
1995-C3;
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 Agreements": Those certain Mortgage Loan Purchase
Agreements, each dated as of November 1, 1995, between the Depositor and the
respective Mortgage Loan Seller and relating to the transfer of the related
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 and
in a computer readable format. 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;
(vii) in the case of a Balloon Mortgage Loan, the remaining
amortization term;
(viii) whether the Mortgage Loan is secured by a Ground Lease;
(ix) the Master Servicing Fee Rate and Master Servicer Strip Rate, if
any; and
(x) the related Mortgage Loan Seller.
"Mortgage Loan Seller": Each of Xxxxxxx Xxxxx Mortgage Capital Inc. or its
successor in interest and First Union National Bank of North Carolina 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.
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"Mortgage Rate": With respect to (i) any Mortgage Loan on or prior to its
Stated Maturity Date, 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; (ii) any
Mortgage Loan after its Stated Maturity Date, the annualized rate described in
clause (i) above determined without regard to the passage of such Maturity Date
but giving effect to any modification thereof as contemplated by Section 3.20;
and (iii) any REO Loan, the annualized rate described in clause (i) or (ii), as
applicable, above determined as if the predecessor Mortgage Loan had remained
outstanding.
"Mortgaged Property": The property subject to the lien of a Mortgage.
"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
Certificate Account for such Distribution Date pursuant to Section 3.19 in
connection with such Prepayment Interest Shortfalls.
"Net Investment Earnings": With respect to the Certificate Account, the
Distribution Account or the REO Account (if any) 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 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 the Certificate Account, the
Distribution Account or the REO Account (if any) 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
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 any REO Loan, as
of any date of determination, a rate per annum equal to the related Mortgage
Rate minus the sum of the related Master Servicing Fee Rate and the Master
Servicer Strip Rate; provided that if the related Mortgage Rate has been
modified 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, the Net Mortgage Rate for such
Mortgage Loan or REO Loan shall be calculated without regard to such event.
"Net Operating Income": As defined in and determined in accordance with the
provisions of Exhibit E-1 attached hereto.
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"New Lease": Any lease of REO Property entered into on behalf of REMIC I,
including any lease renewed, modified or extended on behalf of REMIC I if REMIC
I has the right to renegotiate the terms of such lease.
"Nonrecoverable Advance": Any Nonrecoverable P&I Advance or Nonrecoverable
Servicing Advance.
"Nonrecoverable P&I Advance": Any P&I Advance previously made or proposed
to be made in respect of any Mortgage Loan or any REO Loan that, as determined
by the Master Servicer in accordance with the Servicing Standard, will not be
ultimately recoverable from late payments, Insurance Proceeds or Liquidation
Proceeds, or any other recovery on or in respect of such Mortgage Loan or REO
Loan.
"Nonrecoverable Servicing Advance": Any Servicing Advance previously made
or proposed to be made in respect of a Mortgage Loan or REO Property that, as
determined by the Master Servicer or the Special Servicer in accordance with the
Servicing Standard, will not be ultimately recoverable from late payments,
Insurance Proceeds, Liquidation Proceeds, or any other recovery on or in respect
of such Mortgage Loan or REO Property.
"Non-Registered Certificate": Unless and until registered under the
Securities Act, any Class E, Class F, Class G, Class R-I or Class R-II
Certificate.
"Non-United States Person": Any person other than a United States Person.
"Notional Prepayment Percentage": With respect to the Class IO-1
Certificates the percentage computed by dividing (i) the amount of any
Prepayment Premiums or Yield Maintenance Charges, as the case may be,
distributed to holders of the Class A-1 or Class A-2 Certificates on a
Distribution Date by (ii) the amount of such Prepayment Premiums and Yield
Maintenance Charges distributed on such Distribution Date to the holders of the
Class A-1, Class A-2, Class B, Class C and Class D Certificates; and with
respect to the Class IO-2 Certificates, 100% minus the Notional Prepayment
Percentage of the Class IO-1 Certificates.
"Officers' Certificate": A certificate signed by two Servicing Officers of
the Master Servicer or the Special Servicer, as the case may be.
"Opinion of Counsel": A written opinion of counsel (which counsel shall be
Independent of the Depositor, the Master Servicer and the Special Servicer)
acceptable to and delivered to the Trustee or the Master Servicer, as the case
may be.
"Original Class Notional Amount": With respect to the Class IO-1 and Class
IO-2 Certificates, the initial Class Notional Amount thereof as of the Closing
Date equal to $167,336,000 and $386,160,000, respectively.
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"Original Class Principal Balance": With respect to any Class of REMIC II
Regular Certificates (other than the Class IO Certificates), the initial Class
Principal Balance thereof as of the Closing Date, in each case as specified in
the Preliminary Statement.
"OTS": The Office of Thrift Supervision or any successor thereto.
"Ownership Interest": As to any Certificate, any ownership or security
interest in such Certificate as the Holder thereof and any other interest
therein, whether direct or indirect, legal or beneficial, as owner or as
pledgee.
"Pass-Through Rate": With respect to:
(i) the Class A-1 Certificates for any Distribution Date, the Weighted
Average REMIC I Remittance Rate for such Distribution Date, minus 174 basis
points;
(ii) the Class A-2 Certificates for any Distribution Date, the
Weighted Average REMIC I Remittance Rate for such Distribution Date, minus
168 basis points;
(iii) the Class A-3 Certificates for any Distribution Date, the
Weighted Average REMIC I Remittance Rate for such Distribution Date, minus
144 basis points;
(iv) the Class B Certificates for any Distribution Date, the Weighted
Average REMIC I Remittance Rate for such Distribution Date, minus 138 basis
points;
(v) the Class C Certificates for any Distribution Date, the Weighted
Average REMIC I Remittance Rate for such Distribution Date, minus 116 basis
points;
(vi) the Class D Certificates for any Distribution Date, the Weighted
Average REMIC I Remittance Rate for such Distribution Date, minus 72 basis
points;
(vii) the Class IO-1 Certificates for any Distribution Date, the Class
IO-1 Weighted Average REMIC I Strip Rate for such Distribution Date;
(viii) the Class IO-2 Certificates for any Distribution Date, the
Class IO-2 Weighted Average REMIC I Strip Rate for such Distribution Date;
(ix) each other Class of REMIC II Regular Certificates for any
Distribution Date, the Weighted Average REMIC I Remittance Rate for such
Distribution Date.
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"Paying Agent": The paying agent appointed pursuant to Section 8.13. If no
such paying agent has been appointed or if such paying agent has been so
appointed, but the Trustee shall have terminated such appointment, then the
Trustee shall be the Paying Agent.
"Penalty Interest": With respect to any Mortgage Loan (or successor REO
Loan), any amounts collected thereon, other than late payment charges, or
Prepayment Premiums or Yield Maintenance Charges, 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.
"Percentage Interest": With respect to any REMIC II Regular Certificate,
the portion of the relevant Class evidenced by such Certificate, expressed as a
percentage, the numerator of which is the Certificate Principal Balance or
Certificate Notional Amount, as the case may be, of such Certificate as of the
Closing Date, as specified on the face thereof, and the denominator of which is
the Original Class Principal Balance or Original 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;
(ii) repurchase obligations with respect to any security described in
clause (i) above, provided that the long-term unsecured debt obligations,
or the short-term deposit or debt obligations, of the party agreeing to
repurchase such obligations are rated in the highest rating category of
each of DCR, if rated by DCR, and Standard & Poor's or such lower rating as
will not result in qualification, downgrading or withdrawal of the ratings
then assigned to the Certificates, as evidenced in writing by the Rating
Agencies;
(iii) certificates of deposit, time deposits, demand deposits and
bankers' acceptances of any bank or trust company organized under the laws
of the United States or any state thereof, provided that such items are
rated in the highest rating category of each of DCR, if rated by DCR, and
Standard & Poor's or such lower rating as will not result in qualification,
downgrading or withdrawal of the ratings then assigned to the Certificates,
as evidenced in writing by the Rating Agencies;
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(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 if not so incorporated, 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 rating category of each of DCR, if rated by
DCR, and Standard & Poor's;
(v) units of money market funds rated in the highest rating category
of both DCR, if rated by DCR, and Standard & Poor's and which maintain a
constant net asset value;
(vi) any other obligation or security acceptable to each Rating
Agency, evidence of which acceptability shall be provided in writing by
each Rating Agency to the Master Servicer, the Special Servicer and the
Trustee;
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.
"Permitted Transferee": Any Transferee of a Residual Certificate other than
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.
"P&I Advance": As to any Mortgage Loan or REO Loan, any advance made by the
Master Servicer pursuant to Section 4.03(a) and (b).
"P&I Advance Date": The third Business Day preceding each Distribution
Date.
"Plurality Residual Certificateholder": As to any taxable year of REMIC I
or REMIC II, the Holder of Certificates entitled to the largest percentage of
the Voting Rights allocated to the related Class of Residual Certificates.
"Prepayment Assumption": For purposes of determining the accrual of
original issue discount, market discount and premium, if any, on the
Certificates for federal income tax purposes, 0% CPR (within the meaning of the
Prospectus).
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"Prepayment Interest Excess": With respect to any Mortgage Loan that was
subject to a Principal Prepayment in full or in part during any Collection
Period, which Principal Prepayment was applied to such Mortgage Loan following
such Mortgage Loan's Due Date in such Collection Period, the amount of interest
(net of related Servicing Fees and Prepayment Premiums or Yield Maintenance
Charges) accrued on the amount of such Principal Prepayment during the period
from and after such Due Date, to the extent collected.
"Prepayment Interest Shortfall": With respect to any Mortgage Loan that was
subject to a Principal Prepayment in full or in part during any Collection
Period, which Principal Prepayment was applied to such Mortgage Loan prior to
such Mortgage Loan's Due Date in such Collection Period, the amount of interest,
to the extent not collected from the related Mortgagor, net of any Prepayment
Premiums or Yield Maintenance Charges, that would have accrued at a rate per
annum equal to the Net Mortgage Rate for such Mortgage Loan 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
day immediately preceding such Due Date, inclusive.
"Prepayment Premium": Any premium, penalty or fee (other than a Yield
Maintenance Charge) paid or payable, as the context requires, by a Mortgagor in
connection with a Principal Prepayment.
"Prepayment Strip": The right of Bankers Trust Company or its assigns to
receive any Prepayment Premiums or Yield Maintenance Charges collected on
Mortgage Loan Nos. 96, 97, 100, 103, 112, and 130, which shall not be part of
REMIC I or REMIC II and shall be distributed pursuant to section 3.05(a)(xv).
"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 Master
Servicer 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
Master Servicer shall select a comparable interest rate index. In either case,
such selection shall be made by the Master Servicer in its sole discretion and
the Master Servicer shall notify the Trustee 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 in respect
of the Mortgage Loans for their respective Due Dates occurring during the
related Collection Period;
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(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 amounts described in clause (d)
below) made by or on behalf of the related Mortgagor during the related
Collection Period, net of any portion of such payment that represents a
recovery of the principal portion of any 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 and/or
Special 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 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 on such REO Properties and
that were identified and applied by the Master Servicer and/or Special
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.
"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
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by an amount of interest representing scheduled interest due on any date or
dates in any month or months subsequent to the month of prepayment.
"Principal Recovery Fee": With respect to each Specially Serviced Mortgage
Loan, Corrected Mortgage Loan and REO Loan, the fee payable to the Special
Servicer out of certain related principal recoveries pursuant to the second
paragraph of Section 3.11(c).
"Prospectus": The prospectus dated November 14, 1995, as supplemented by
the Prospectus Supplement, relating to the Registered Certificates.
"Prospectus Supplement": The prospectus supplement dated November 27, 1995
relating to the Registered Certificates.
"Purchase Price": With respect to any Mortgage Loan to be purchased by a
Mortgage Loan Seller pursuant to the related Mortgage Loan Purchase Agreement,
by the Majority Subordinate Certificateholder pursuant to Section 3.18(b), by
the Master Servicer or the Special Servicer pursuant to Section 3.18(c) or by
the Depositor or the Master Servicer pursuant to Section 9.01 or to be otherwise
sold pursuant to Section 3.18(d), a cash price equal to the outstanding
principal balance of such Mortgage Loan as of the date of purchase, together
with (a) all accrued and unpaid interest on such Mortgage Loan at the related
Mortgage Rate to but not including the Due Date in the Collection Period of
purchase plus any accrued interest on P&I Advances, and (b) all related and
unreimbursed Servicing Advances plus any accrued interest thereon.
"Qualified Insurer": An insurance company or security or bonding company
qualified to write the related Insurance Policy in the relevant jurisdiction.
"Rating Agency": Each of DCR and Standard & Poor's.
"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 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 Collection Period in which such Final
Recovery Determination was made; (2) each Defaulted Mortgage Loan as to which
any portion of the principal payable thereunder was canceled 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
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of such principal so canceled; and (3) each 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 shall 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.
"Registered Certificate": Any Class A-1, Class A-2, Class A-3, Class B,
Class C, Class D, Class IO-1 or Class IO-2 Certificate.
"Reimbursement Rate": The rate per annum applicable to the accrual of
interest on Servicing Advances in accordance with Section 3.03(d) and on P&I
Advances in accordance with Section 4.03(d), 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 I": The segregated pool of assets subject hereto, constituting the
primary trust created hereby and to be administered hereunder, 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 (excluding the Master Servicer Strip and the Prepayment Strip),
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 Certificate Account, the Distribution Account and the REO Account (if
established); and (iv) the rights of the Depositor under Section 3 of each of
the Mortgage Loan Purchase Agreements.
"REMIC I Regular Interest": Any of the eight separate non-certificated
beneficial ownership interests in REMIC I issued hereunder and designated as a
"regular interest" in REMIC I. Each REMIC I Regular Interest shall accrue
interest at the related REMIC I Remittance Rate in effect from time to time, and
shall be entitled to distributions of principal, subject to the terms and
conditions hereof, in an aggregate amount equal to its initial Uncertificated
Principal Balance as set forth in the Preliminary Statement hereto. The
designations for the respective REMIC I Regular Interests are set forth in the
Preliminary Statement hereto.
"REMIC I Remittance Rate": With respect to any REMIC I Regular Interest for
any Distribution Date, the Weighted Average Effective Net Mortgage Rate for such
Distribution Date.
"REMIC I Strip Rate": With respect to REMIC I Regular Interest T, 1.74% per
annum; with respect to REMIC I Regular Interest U, 1.68% per annum; with respect
to REMIC I
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Regular Interest V, 1.44% per annum; with respect to REMIC I Regular Interest W,
1.38% per annum; with respect to REMIC I Regular Interest X, 1.16% per annum;
and with respect to REMIC I Regular Interest Y, 0.72% per annum.
"REMIC II": The segregated pool of assets consisting of all of the REMIC I
Regular Interests conveyed in trust to the Trustee for the benefit of the
Holders of the REMIC II Certificates pursuant to Section 2.06, with respect to
which a separate REMIC election is to be made.
"REMIC II Certificate": Any Class A-1, Class A-2, Class A-3, Class B, Class
C, Class D, Class E, Class F, Class G, Class IO-1, Class IO-2 or Class R-II
Certificate.
"REMIC II Regular Certificate": Any REMIC II Certificate other than a Class
R-II Certificate.
"REMIC Administrator: Any REMIC administrator appointed pursuant to Section
8.14.
"REMIC Provisions": Provisions of the federal income tax law relating to
real estate mortgage investment conduits, which appear at Sections 860A through
860G of Subchapter M of Chapter 1 of the Code, and related provisions, and
proposed, temporary and final Treasury regulations and any published rulings,
notices and announcements promulgated thereunder, as the foregoing may be in
effect from time to time.
"Rents from Real Property": With respect to any REO Property, gross income
of the character described in Section 856(d) of the Code.
"REO Account": A segregated custodial account or accounts created and
maintained by the Special Servicer pursuant to Section 3.16 on behalf of the
Trustee in trust for the Certificateholders, which shall be entitled "[name of
Special Servicer], as Special Servicer, in trust for registered holders of
Xxxxxxx Xxxxx Mortgage Investors, Inc., Mortgage Pass-Through Certificates,
Series 1995-C3".
"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
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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 a 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. Collections
in respect of each REO Loan (exclusive of amounts to be applied to the payment
of, or to be reimbursed to the Master Servicer or the Special Servicer for the
payment of, the costs of operating, managing and maintaining the related REO
Property) shall be treated: first, as a recovery of accrued and unpaid interest
on such REO Loan at the related Mortgage Rate to but not including the Due Date
in the Collection Period of receipt; second, as a recovery of principal of such
REO Loan to the extent of its entire unpaid principal balance; and third, in
accordance with the normal servicing practices of the Master Servicer, as a
recovery of any other amounts due and owing in respect of such REO Loan.
Notwithstanding the foregoing, all amounts payable or reimbursable to the Master
Servicer or the Special Servicer in respect of the predecessor Mortgage Loan as
of the date of the related REO Acquisition, including, without limitation, any
unpaid Servicing Fees and any unreimbursed Servicing Advances and P&I Advances,
together with any interest accrued and payable to the Master Servicer or the
Special Servicer in respect of such Servicing Advances and P&I Advances in
accordance with Sections 3.03(d) and 4.03(d), shall continue to be payable or
reimbursable to the Master Servicer or the Special Servicer, as the case may be,
in respect of an REO Loan.
"REO Property": A Mortgaged Property acquired by the Special Servicer on
behalf and in the name 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).
"Request for Release": A request signed by a Servicing Officer, as
applicable, of the Master Servicer in the form of Exhibit D-1 attached hereto or
of the Special Servicer in the form of Exhibit D-2 attached hereto.
"Required Appraisal": With respect to each Required Appraisal Mortgage
Loan, an Independent MAI-designated appraisal of the related Mortgaged Property
from an Independent MAI-designated appraiser, who hasa minimum of five years
experience in the subject property type and market.
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"Required Appraisal Mortgage Loan": Each Mortgage Loan that (i) is ninety
(90) days or more delinquent in respect of any Monthly Payments, (ii) becomes an
REO Loan or (iii) has been modified by the Special Servicer to reduce the amount
of any Monthly Payment.
"Required Appraisal Value": An amount equal to 90% of the appraised value
(net of any prior liens) of the Mortgaged Property related to the subject
Required Appraisal Mortgage Loan as determined by the Required Appraisal.
"Reserve Account": The account or accounts created and maintained pursuant
to Section 3.03(f).
"Reserve Funds": With respect to any Mortgage Loan, any amounts delivered
by the related Mortgagor to be held in escrow by or on behalf of the mortgagee
representing reserves for repairs and/or capitalimprovements to the related
Mortgaged Property.
"Residual Certificate": A Class R-I or Class R-II Certificate.
"Responsible Officer": When used with respect to the Trustee, any officer
or assistant officer in the Corporate Trust Department of the Trustee, or any
other officer of the Trustee customarily performing functions similar to those
performed by any of the above designated officers to whom a particular matter is
referred by the Trustee because of such officer's knowledge of and familiarity
with the particular subject.
"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, but 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 A-1, Class A-2, Class A-3, Class IO-1 or
Class IO-2 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 by the Master Servicer or Special Servicer
in connection with the servicing of a Mortgage Loan after a default, delinquency
or other unanticipated
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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 the Special Servicer set forth in Section 3.03(c), (b) the
preservation, insurance, restoration, protection and management of a Mortgaged
Property, including the cost of any "forced placed" insurance policy purchased
by the Master Servicer to the extent such cost is allocable to a particular
Mortgaged Property that the Master Servicer is required to cause to be insured
pursuant to Section 3.07(a), (c) obtaining any Insurance Proceeds or any
Liquidation Proceeds of the nature described in clauses (i)-(v) of the
definition of "Liquidation Proceeds," (d) any enforcement or judicial
proceedings with respect to a Mortgaged Property, including, without limitation,
foreclosures, (e) any Required Appraisal or other appraisal and (f) the
operation, management, maintenance and liquidation of any REO Property,
including appraisals. Notwithstanding anything to the contrary, "Servicing
Advances" shall not include allocable overhead of the Master Servicer or the
Special Servicer, which shall include costs for office space, office equipment,
supplies and related expenses, employee salaries and related expenses and
similar internal costs and expenses.
"Servicing Fees": With respect to each Mortgage Loan and REO Loan, the
Master Servicing Fee and the Special Servicing Fee.
"Servicing File": Any documents (other than documents required to be part
of the related Mortgage File) in the possession of the Depositor and relating to
the origination and servicing of any Mortgage Loan, including appraisals,
surveys, engineering reports and environmental reports.
"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, 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 Standard": To service and administer the Mortgage Loans with (i)
the same care, skill and diligence with which prudent institutional commercial
mortgage lenders and loan servicers service comparable mortgage loans or (ii) in
the same manner in which the Master Servicer or Special Servicer, as the case
may be, administers mortgage loans for its own account, whichever is higher, and
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 Certificateholders on a present value basis (the relevant
discounting of anticipated collections that will be distributable to
Certificateholders to be performed at the related 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; (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)
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the adequacy of the Master Servicer's, the Special Servicer's or their
Affiliates' compensation for their 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 (g) of the
definition of "Specially Serviced Mortgage Loan".
"Single Certificate": For purposes of Section 4.02, a hypothetical
Certificate of any Class of REMIC II Regular Certificates evidencing a $1,000
denomination or, in the case of a Class IO Certificate, a 100% Percentage
Interest in the relevant Class.
"Special Servicer": CRIIMI MAE Services Limited Partnership, its successor
in interest, or any successor special servicer appointed as herein provided.
"Special Servicing Fee": With respect to each Specially Serviced Mortgage
Loan and each REO Loan, the fee designated as such and payable to the Special
Servicer pursuant to the first paragraph of Section 3.11(c).
"Special Servicing Fee Rate": With respect to each Specially Serviced
Mortgage Loan and each REO Loan, 0.25% per annum.
"Specially Serviced Mortgage Loan": Any Mortgage Loan as to which any of
the following events have occurred:
(a) the related Mortgagor shall have failed to make any Monthly Payment,
which failure continues unremedied for 60 days (or, in the case of a
Balloon Payment, if the Master Servicer receives written evidence from
an institutional lender of such lender's commitment to refinance such
Mortgage Loan and the related Mortgagor continues to make monthly
payments of principal and interest in an amount at least equal to the
Monthly Payment due on the Due Date immediately preceding the
scheduled maturity date, such longer period (not to exceed 120 days)
within which such refinancing will occur); or
(b) the Master Servicer shall have determined, in its good faith
reasonable judgment, based on communications with the related
Mortgagor, that a default in making a Monthly Payment 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, if the Master Servicer
has received written evidence from an institutional lender of such
lender's commitment to refinance such Mortgage Loan and if the Master
Servicer reasonably expects the related Mortgagor to continue to make
monthly payments of principal and interest in an amount at least equal
to the Monthly Payment due on the Due Date immediately preceding the
scheduled maturity date, such
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longer period (not to exceed 120 days) within which such refinancing
will occur); or
(c) there shall have occurred a default (other than as described in clause
(a) above) that materially impairs the value of the Mortgaged Property
as security for the Mortgage Loan or otherwise materially adversely
affects the interests of Certificateholders and that continues
unremedied for the applicable grace period under the terms of the
Mortgage Loan (or, if no grace period is specified, for 60 days); or
(d) a decree or order of a court or agency or supervisory authority having
jurisdiction in the premises in an involuntary case under any present
or future federal or state bankruptcy, insolvency or similar law or
the appointment of a conservator or receiver or liquidator in any
insolvency, readjustment of debt, marshaling of assets and liabilities
or similar proceedings, or for the winding-up or liquidation of its
affairs, shall have been entered against the related Mortgagor and
such decree or order shall have remained in force undischarged or
unstayed for a period of 60 days; or
(e) the related Mortgagor shall consent to the appointment of a
conservator or receiver or liquidator in any insolvency, readjustment
of debt, marshaling 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
(f) the related Mortgagor shall admit in writing its inability to pay its
debts generally as they become due, file a petition to take advantage
of any applicable insolvency or reorganization statute, make an
assignment for the benefit of its creditors, or voluntarily suspend
payment of its obligations; or
(g) 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 will cease to be a Specially Serviced
Mortgage Loan:
(w) with respect to the circumstances described in clause (a) 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
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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 (b), (d), (e)
and (f) above, when such circumstances cease to exist in the good
faith reasonable judgment of the Special Servicer;
(y) with respect to the circumstances described in clause (c) above, when
such default is cured; and
(z) with respect to the circumstances described in clause (g) above, when
such proceedings are terminated;
so long as at that time no circumstance identified in clauses (a) through (g)
above exists that would cause the Mortgage Loan to continue to be characterized
as a Specially Serviced Mortgage Loan.
"Standard & Poor's": Standard & Poor's Ratings Services, a division of
XxXxxx-Xxxx, Inc., or its successor in interest. If neither such rating agency
nor any successor remains in existence, "Standard & Poor's" shall be deemed to
refer to such other nationally recognized statistical rating agency or other
comparable Person designated by the Depositor, notice of which designation shall
be given to the Trustee, the Master Servicer and the Special Servicer, and
specific ratings of Standard & Poor's Ratings Services herein referenced shall
be deemed to refer to the equivalent ratings of the party so designated.
"Startup Day": With respect to each of REMIC I and REMIC II, the day
designated as such in Section 10.01(c).
"Stated Maturity Date": With respect to any Mortgage Loan, the Due Date
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
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 Additional Trust Fund Expenses, 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
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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.
"Stripped Mortgage Loans": Stripped I Mortgage Loan, Stripped II Mortgage
Loans, Stripped III Mortgage Loan and Stripped IV Mortgage Loans.
"Stripped I Mortgage Loan ": Mortgage Loan No. 112 set forth on the
Mortgage Loan Schedule.
"Stripped II Mortgage Loans ": Mortgage Loan Nos. 106 , 167, 181 and 182
set forth on the Mortgage Loan Schedule.
"Stripped III Mortgage Loan ": Mortgage Loan No. 96 set forth on the
Mortgage Loan Schedule.
"Stripped IV Mortgage Loans ": Mortgage Loan Nos. 99, 100, 109, and 131 set
forth on the Mortgage Loan Schedule.
"Stripped REMIC I Regular Interest": Any of REMIC I Regular Interest T,
REMIC I Regular Interest U, REMIC I Regular Interest V, REMIC I Regular Interest
W, REMIC I Regular Interest X and REMIC I Regular Interest Y.
"Subordinated Certificate": Any Class B, Class C, Class D, Class E, Class
F, Class G, Class R-I or Class R-II Certificate.
"Sub-Servicer": Any Person with which the Master Servicer or the Special
Servicer has entered into a Sub-Servicing Agreement.
"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 either of the REMICs created
hereunder, the Person designated as the "tax matters person" of such REMIC in
the manner provided under Treasury regulation section 1.860F-4(d) and temporary
Treasury regulation section 301.6231(a)(7)-1T, which Person shall 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 Tax Return,
including Schedule Q thereto, Quarterly Notice to Residual Interest Holders of
REMIC Taxable Income or Net Loss Allocation, or any successor forms, to be filed
on behalf of each of REMIC I and REMIC II due to its classification as a REMIC
under the REMIC Provisions, together with any and all other information, reports
or returns that may be required to be furnished to the
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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.
"Transaction Screen Process": An environmental assessment conducted in
accordance with the Standard Practice for Environmental Site Assessments:
Transaction Screen Process E 1528-93 (American Society for Testing and Materials
1993).
"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 and REMIC II.
"Trustee": Union Bank, its successor in interest, or any successor trustee
appointed as herein provided.
"Trustee's Fee": With respect to each Mortgage Loan and each REO Loan, the
fee designated as such and payable to the Trustee pursuant to Section 8.05.
"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.
"Uncertificated Accrued Interest": With respect to any REMIC I Regular
Interest, for any Distribution Date, one month's interest at the REMIC I
Remittance Rate applicable to such REMIC I Regular Interest for such
Distribution Date, accrued on the Uncertificated Principal Balance of such REMIC
I Regular Interest outstanding immediately prior to such Distribution Date.
Uncertificated Accrued Interest shall be calculated on the basis of a 360-day
year consisting of twelve 30-day months.
"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.
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"Uncertificated Principal Balance": The principal amount of any REMIC I
Regular Interest outstanding as of any date of determination. As of the Closing
Date, the Uncertificated Principal Balance of each REMIC I Regular Interest
shall equal the amount set forth in the Preliminary Statement hereto as its
initial stated principal amount. 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(h), and shall be further reduced on such
Distribution Date by all Realized Losses and Additional Trust Fund Expenses
deemed to have been allocated thereto on such Distribution Date pursuant to
Section 4.04(b).
"Underwriter": Each of Xxxxxxx Xxxxx and First Union.
"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.
"Updated Mortgage Loan Schedule": The monthly loan schedule to be prepared
by the Master Servicer and delivered to the Trustee and the Depositor pursuant
to Section 3.12(c), which monthly loan schedule shall be substantially in the
form of Exhibit E-2.
"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, 100% of the Voting Rights shall be allocated among the
Holders of the Class A-1, Class A-2, Class A-3, Class B, Class C, Class D, Class
E, Class F and Class G Certificates in proportion to the respective Class
Principal Balances of their 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. Solely for the purpose of determining the Voting Rights of the
Classes of Certificates, the aggregate Appraisal Reduction Amount (determined as
set forth herein) shall be treated as Realized Losses with respect to the
calculation of the Certificate Principal Balances thereof.
"Weighted Average Effective Net Mortgage 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
Net Mortgage Rates in effect for the Mortgage Loans and any REO Loans comprising
or deemed to be comprising the Mortgage Pool as of the commencement of the
related Collection Period, weighted on the basis of the respective Stated
Principal Balances of such Mortgage Loans and REO Loans outstanding immediately
prior to such Distribution Date.
"Weighted Average REMIC I Remittance Rate": With respect to any
Distribution Date, the rate per annum equal to the weighted average, expressed
as a
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percentage and rounded to six decimal places, of the respective 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.
"Yield Maintenance Charge": Payments paid or payable, as the context
requires, on a Mortgage Loan as the result of a Principal Prepayment thereon,
not otherwise due thereon in respect of principal or interest, which have been
calculated (based on Scheduled Payments on such Mortgage Loan) to compensate the
holder for reinvestment losses based on the value of an interest rate index at
or near the time of prepayment. Any other prepayment premiums, penalties and
fees not so calculated will not be considered "Yield Maintenance Charges."
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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, sell, transfer, set over and otherwise convey 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 (excluding the Master Servicer Strip and the Prepayment Strip), (ii)
Section 3 of each of the Mortgage Loan Purchase Agreements and (iii) all other
assets included or to be included in REMIC I. Such assignment includes all
interest and principal received or receivable on or with respect to the Mortgage
Loans and due after the Cut-off Date. The transfer of the Mortgage Loans and the
related rights and property accomplished hereby is absolute and, notwithstanding
Section 11.07, is intended by the parties to constitute a sale.
(b) In connection with the Depositor's assignment pursuant to Section
2.01(a) above, the Depositor shall direct, and hereby represents and warrants
that it has directed, the Mortgage Loan Sellers pursuant to the applicable
Mortgage Loan Purchase Agreement to deliver to and deposit with, or cause to be
delivered to and deposited with, the Trustee or a Custodian appointed thereby
(and, if the Master Servicer is not the Custodian, with a copy to the Master
Servicer), on or before the Closing Date, the Mortgage File for each Mortgage
Loan so assigned. None of the Trustee, any Custodian, the Master Servicer or the
Special Servicer shall be liable for any failure by either Mortgage Loan Seller
or the Depositor to comply with the document delivery requirements of the
respective Mortgage Loan Purchase Agreement and this Section 2.01 (b).
(c) The Custodian shall, at the Depositor's expense and direction, as to
each Mortgage Loan, promptly (and in any event within 45 days following the
Closing Date) cause to be submitted for recording or filing, as the case may be,
in the appropriate public office for real property records or UCC Financing
Statements, as appropriate and to the extent delivered to the Custodian, each
assignment of Mortgage, assignment of Assignment of Leases and any other
recordable documents relating to the Mortgage Loan, 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 assignment in favor of the Trustee and delivered to the
Custodian and referred to in clause (viii) of the definition of "Mortgage File".
Each such assignment shall reflect that it should be returned by the public
recording office to the Custodian following recording, and each such UCC-2 and
UCC-3 assignment shall reflect that the file copy thereof should be returned to
the Custodian 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 Custodian 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 Custodian shall direct the appropriate Mortgage Loan Seller
pursuant to the applicable Mortgage Loan Purchase Agreement promptly to prepare
or cause to be
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prepared a substitute therefor or cure such defect, as the case may be, and
thereafter the Custodian shall upon receipt thereof cause the same to be duly
recorded or filed, as appropriate.
(d) All documents and records in the possession of the Depositor or the
Mortgage Loan Sellers that relate to the Mortgage Loans and that are not
required to be a part of a Mortgage File in accordance with the definition
thereof shall be delivered to the Master Servicer (at the expense of the
Depositor or the applicable Mortgage Loan Seller) on or before the Closing Date
and shall be held by the Master Servicer on behalf of the Trustee in trust for
the benefit of the Certificateholders.
(e) In connection with the Depositor's assignment pursuant to Section
2.01(a) above, the Depositor shall deliver to the Custodian on or before the
Closing Date a copy of a fully executed counterpart of each Mortgage Loan
Purchase Agreement, as in full force and effect on the Closing Date.
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" and the provisions of Section 2.01 and
subject to the further review provided for in Section 2.02(b), of (i) the
Mortgage File delivered to it for each Mortgage Loan, (ii) a copy of a fully
executed counterpart of each 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 Custodian, on behalf
of the Trustee hereby certifies to each of the Depositor, the Master Servicer,
the Special Servicer and the Mortgage Loan Sellers, that except as specifically
identified in the Schedule of Exceptions to Mortgage File Delivery attached
hereto as Exhibit C, (i) without regard to the proviso in the definition of
"Mortgage File", all documents specified in clauses (i) through (v) and (vii),
and to the extent provided in the Mortgage File, clause (vi) of the definition
of "Mortgage File" are in its possession or the possession of a Custodian on its
behalf, (ii) all documents delivered or caused to be delivered by the Mortgage
Loan Sellers constituting the related Mortgage File have been reviewed by it or
by a Custodian on its behalf and appear regular on their face and relate to such
Mortgage Loan, and (iii) based on such examination and only as to the foregoing
documents, the information set forth in the Mortgage Loan Schedule with respect
to the items specified in clauses (ii), (v) and (vi)(B) of the definition of
"Mortgage Loan Schedule" is correct. Notwithstanding the above, the Custodian
may deliver a revised Schedule of Exceptions to Mortgage File Delivery to the
Depositor and Trustee within 15 days after the Closing Date. Such revised
schedule shall be treated as if it was attached hereto as Exhibit C.
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(b) Within 90 days after the Closing Date, the Custodian on behalf of the
Trustee shall certify in writing to each of the Depositor, the Master Servicer,
the Trustee, the Special Servicer and each 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), (ii), (iv) and (vii)
and, to the extent provided in the Mortgage File, clauses (iii), (v), (vi) and
(viii) of the definition of "Mortgage File" are in its or the Custodian's
possession, (ii) all documents received by it or the Custodian in respect of
such Mortgage Loan have been reviewed by it and appear regular on their face and
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" is correct.
(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.
SECTION 2.03. Mortgage Loan Seller's Repurchase of Mortgage Loans for
Document Defects and Breaches of Representations and
Warranties.
(a) If any party hereto discovers that any document or documents
constituting a part of a Mortgage File has not been properly executed, is
missing, contains information that does not conform in any respect with the
corresponding information set forth in the Mortgage Loan Schedule, or does not
appear to be regular on its face (each, a "Document Defect"), or discovers or
receives notice of a breach of any representation or warranty relating to the
Mortgage Loans set forth in the applicable Mortgage Loan Purchase Agreement (a
"Breach"), and such Document Defect or Breach, as the case may be, materially
and adversely affects the interests of the Certificateholders, such party shall
give prompt written notice to the other parties hereto. Promptly upon becoming
aware of any such Document Defect or Breach, the Master Servicer shall request
that the respective Mortgage Loan Seller, not later than 90 days from such
Mortgage Loan Seller's receipt of such notice, cure such Document Defect or
Breach, as the case may be, in all material respects or, if such Document Defect
or Breach cannot be cured within the periods hereinafter set forth, repurchase
the affected Mortgage Loan at the applicable Purchase Price in accordance with
the Mortgage Loan Purchase Agreement; provided, however, that if such Document
Defect or Breach is capable of being cured but not within such 90-day period and
such Mortgage Loan Seller has commenced and is diligently proceeding with the
cure of such Document Defect or Breach within such 90-day period, such Mortgage
Loan Seller shall have an additional 90 days to complete such cure; and
provided, further, that with respect to such additional 90-day
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period such Mortgage Loan Seller shall have delivered an Officer's Certificate
to the Trustee setting forth the reason such Document Defect or Breach is not
capable of being cured within the initial 90-day period and what actions such
Mortgage Loan Seller is pursuing in connection with the cure thereof and stating
that such Mortgage Loan Seller anticipates that such Document Defect or Breach
will be cured within the additional 90-day period. If the affected Mortgage Loan
is to be repurchased, the Master Servicer shall designate the Certificate
Account as the account to which funds in the amount of the Purchase Price are to
be wired. Any such repurchase of a Mortgage Loan shall be on a whole loan,
servicing released basis. Notwithstanding the foregoing, the delivery of a
commitment to issue a policy of lender's title insurance in lieu of the delivery
of the actual policy of lender's title insurance shall not be considered a
Document Defect with respect to any Mortgage File if such actual policy of
insurance is delivered to the Trustee or a Custodian on its behalf not later
than the 90th day following the Closing Date.
(b) In connection with any repurchase of a Mortgage Loan contemplated by
this Section 2.03, the Trustee, the Master Servicer and the Special Servicer
shall each tender to the appropriate Mortgage Loan Seller, upon delivery to each
of them of a receipt executed by such Mortgage Loan Seller, all portions of the
Mortgage File and other documents pertaining to such Mortgage Loan possessed by
it, and each document that constitutes a part of the Mortgage File shall be
endorsed or assigned to the extent necessary or appropriate to such Mortgage
Loan Seller or its designee in the same manner, and pursuant to appropriate
forms of assignment, substantially similar to the manner and forms pursuant to
which documents were previously assigned to the Trustee; provided that such
tender by the Trustee shall be conditioned upon its receipt from the Master
Servicer of a Request for Release. The Master Servicer shall, and is hereby
authorized and empowered by the Trustee to, prepare, execute and deliver in its
own name, on behalf of the Certificateholders and the Trustee or any of them,
the endorsements and assignments contemplated by this Section 2.03, and the
Trustee shall execute and deliver any powers of attorney necessary to permit the
Master Servicer to do so.
(c) Each Mortgage Loan Purchase Agreement provides the sole remedies
available to the Certificateholders, or the Trustee on behalf of the
Certificateholders, respecting any Document Defect or Breach with respect to the
Mortgage Loans purchased by the Depositor thereunder.
SECTION 2.04. Representations and Warranties of Depositor.
(a) The Depositor hereby represents and warrants to the Trustee, for its
own benefit and the benefit of the Certificateholders, and to the Master
Servicer and the Special Servicer, 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.
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(ii) The execution and delivery of this Agreement by the Depositor,
and the performance and compliance with the terms of this Agreement by the
Depositor, will not violate the Depositor's certificate of incorporation or
bylaws or constitute a default (or an event which, with notice or lapse of
time, or both, would constitute a default) under, or result in the breach
of, any material agreement or other instrument to which it is a party or
which is applicable to it or any of its assets.
(iii) The Depositor has the full power and authority to enter into and
consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement, and
has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid, legal
and binding obligation of the Depositor, enforceable against the Depositor
in accordance with the terms hereof, subject to (A) applicable bankruptcy,
insolvency, reorganization, moratorium and other laws affecting the
enforcement of creditors' rights generally, and (B) general principles of
equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law.
(v) The Depositor is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or demand
of any federal, state or local governmental or regulatory authority, which
violation, in the Depositor's good faith and reasonable judgment, is likely
to affect materially and adversely either the ability of the Depositor to
perform its obligations under this Agreement or the financial condition of
the Depositor.
(vi) The transfer of the Mortgage Loans to the Trustee as contemplated
herein requires no regulatory approval, other than any such approvals as
have been obtained, and is not subject to any bulk transfer or similar law
in effect in any applicable jurisdiction.
(vii) No litigation is pending or, to the best of the Depositor's
knowledge, threatened against the Depositor that, if determined adversely
to the Depositor, would prohibit the Depositor from entering into this
Agreement or, in the Depositor's good faith and reasonable judgment, is
likely to materially and adversely affect either the ability of the
Depositor to perform its obligations under this Agreement or the financial
condition of the Depositor.
(viii) Immediately prior to the transfer of the Mortgage Loans to the
Trust Fund pursuant to this Agreement, (A) the Depositor has good and
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marketable title to, and is the sole owner and holder of, each Mortgage
Loan; and (B) the Depositor has full right and authority to sell, assign
and transfer the Mortgage Loans.
(ix) The Depositor is transferring the Mortgage Loan to the Trust Fund
free and clear of any liens, pledges, charges and security interests.
(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 give prompt written notice to the other
parties.
SECTION 2.05. Execution, Authentication and Delivery of Class R-I
Certificates; Creation of REMIC I Regular Interests.
The Trustee hereby acknowledges the assignment to it of the assets included
in REMIC I. Concurrently with such assignment and in exchange therefor, the
Certificate Registrar, pursuant to the written request of the Depositor executed
by an officer of the Depositor, has executed, and the Authenticating Agent has
authenticated and delivered to or upon the order of the Depositor, the Class R-I
Certificates in authorized denominations. The interests evidenced by the Class
R-I Certificates, together with the REMIC I Regular Interests, constitute the
entire beneficial ownership of REMIC I. The rights of the Class R-I
Certificateholders and REMIC II (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 evidenced or constituted by the Class R-I Certificates and the REMIC I
Regular Interests, shall be as set forth in this Agreement.
SECTION 2.06. 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 REMIC II
Certificates. The Trustee acknowledges the assignment to it of the REMIC I
Regular Interests and declares that it holds and will hold the same in trust for
the exclusive use and benefit of all present and future Holders of REMIC II
Certificates.
SECTION 2.07. Execution, Authentication and Delivery of REMIC II
Certificates.
Concurrently with the assignment to it of the REMIC I Regular Interests and
in exchange therefor, the Certificate Registrar has executed, and the
Authenticating Agent has authenticated and delivered to or upon the order of the
Depositor, the REMIC II Certificates
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in authorized denominations evidencing the entire beneficial ownership of REMIC
II. The rights of the holders of the respective Classes of REMIC II Certificates
to receive distributions from the proceeds of REMIC II in respect of their REMIC
II Certificates, and all ownership interests evidenced or constituted by the
respective Classes of REMIC II Certificates in such distributions, shall be as
set forth in this Agreement.
ARTICLE III
ADMINISTRATION AND SERVICING OF THE TRUST FUND
SECTION 3.01. Administration of the Mortgage Loans.
(a) Each of the Master Servicer and the Special Servicer shall service and
administer the Mortgage Loans that each is obligated to service and administer
pursuant to this Agreement on behalf of the Trustee, for the benefit of the
Certificateholders, in accordance with any and all applicable laws, the terms of
this Agreement and of 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 that are not Specially
Serviced Mortgage Loans, and (ii) the Special Servicer shall service and
administer (x) each Specially Serviced Mortgage Loan, and (y) each REO Property;
provided, however, that the Master Servicer shall continue to collect
information and prepare all reports to the Trustee required hereunder with
respect to any Specially Serviced Mortgage Loans and REO Properties (and the
related REO Loans), and further to render such incidental services with respect
to any Specially Serviced Mortgage Loans and REO Properties as are specifically
provided for herein. All references herein to the respective duties of the
Master Servicer and the Special Servicer, and to the areas in which they may
exercise discretion, shall be subject to Section 3.21.
(b) Subject to Section 3.01(a), the Master Servicer and the Special
Servicer each shall have full power and authority, acting alone, to do or cause
to be done any and all things in connection with such servicing and
administration which it may deem necessary or desirable. Without limiting the
generality of the foregoing, each of the Master Servicer and the Special
Servicer, in its own name, with respect to each of the Mortgage Loans it is
obligated to service hereunder, is hereby authorized and empowered by the
Trustee to execute and deliver, on behalf of the Certificateholders and the
Trustee or any of them, (i) any and all financing statements, continuation
statements and other documents or instruments necessary to maintain the lien
created by any Mortgage or other security document in the related Mortgage File
on the related Mortgaged Property and related collateral; (ii) in accordance
with the Servicing Standard and subject to Section 3.20, any and all
modifications, waivers, amendments or consents to or with respect to any
documents contained in the related Mortgage File; and (iii) any and all
instruments of satisfaction or cancellation, or of partial or full release or
discharge, and all other comparable instruments. Subject to Section 3.10, the
Trustee shall, at the written request of the Master Servicer or the Special
Servicer, furnish, or cause to be so furnished, to the Master Servicer and the
Special Servicer any limited powers of attorney and other documents necessary or
appropriate to enable them to carry out their
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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.
(a) 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 it would follow were it the owner of such Mortgage
Loans. Consistent with the foregoing, the Special Servicer or Master Servicer
may waive any Penalty Interest or late payment charge in connection with any
payment on a Mortgage Loan that became delinquent while it is obligated to
service such Mortgage Loan hereunder.
(b) All amounts collected in respect of any Mortgage Loan in the form of
payments from Mortgagors, Liquidation Proceeds (insofar as such Liquidation
Proceeds are of the nature described in clauses (i) through (iii) of the
definition thereof) or Insurance Proceeds shall be applied to either 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 or, if required
pursuant to the express provisions of the related Mortgage, or as determined by
the Master Servicer or Special Servicer in accordance with the Servicing
Standard, to the repair or restoration of the related Mortgaged Property, and,
in the absence of such express provisions, shall be applied for purposes of this
Agreement, after deduction of the Master Servicer Strip and the Prepayment
Strip: first, as a recovery of any related and unreimbursed Servicing Advances
plus interest accrued thereon; second, as a recovery of accrued and unpaid
interest, to the extent such amounts have not been previously advanced, at the
related Mortgage Rate on such Mortgage Loan; third, as a recovery of principal
of such Mortgage Loan then due and owing, to the extent such amounts have not
been previously advanced, including, without limitation, by reason of
acceleration of the Mortgage Loan following a default thereunder; fourth, in
accordance with the normal servicing practices of the Master Servicer, as a
recovery of any other amounts then due and owing under such Mortgage Loan,
including, without limitation, Prepayment Premiums, Yield Maintenance Charges
and Penalty Interest; and fifth, as a recovery of any remaining principal of
such Mortgage Loan to the extent of its entire remaining unpaid principal
balance. All amounts collected on any Mortgage Loan in the form of Liquidation
Proceeds of the nature described in clauses (iv) and (v) of the definition
thereof shall be deemed to be applied: first, as a recovery of any related and
unreimbursed Servicing Advances plus interest accrued thereon; second, as a
recovery of accrued and unpaid interest to, the extent such amounts have not
been previously advanced, on such Mortgage Loan to but not including the Due
Date in the Collection Period of receipt; and third, as a recovery of
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principal, to the extent such amounts have not been previously advanced, of such
Mortgage Loan to the extent of its entire unpaid principal balance. No such
amounts shall be applied to the items constituting additional servicing
compensation as described in the first sentence of Section 3.11(b) unless and
until all principal and interest then due and payable on such Mortgage Loan has
been collected. Amounts collected on any REO Loan shall be deemed to be applied
in accordance with the definition thereof. The provisions of this paragraph with
respect to the application of amounts collected shall not alter in any way the
right of the Master Servicer or the Special Servicer to receive payments from
the Certificate Account as set forth in clauses (ii) through (xiv) of Section
3.05(a) from amounts so applied.
SECTION 3.03. Collection of Taxes, Assessments and Similar Items; Servicing
Accounts; Reserve Accounts.
(a) Each of the Master Servicer and the Special Servicer shall, as to those
Mortgage Loans it is obligated to service hereunder, establish and maintain one
or more accounts (the "Servicing Accounts"), into which all Escrow Payments
shall be deposited and retained. Each Servicing Account shall be an Eligible
Account. Withdrawals of amounts so collected from a Servicing Account may be
made (to the extent amounts have been escrowed for such purpose) only to: (i)
effect payment of real estate taxes, assessments, insurance premiums, ground
rents (if applicable) and comparable items; (ii) reimburse the Master Servicer
or the Special Servicer for any Servicing Advances plus interest accrued
thereon; (iii) refund to Mortgagors any sums as may be determined to be
overages; (iv) pay interest, if required and as described below, to Mortgagors
on balances in the Servicing Account; or (v) clear and terminate the Servicing
Account at the termination of this Agreement in accordance with Section 9.01.
The Master Servicer and the Special Servicer shall each pay or cause to be paid
to the Mortgagors interest, if any, earned on the investment of funds in
Servicing Accounts maintained thereby, if required by law or the terms of the
related Mortgage Loan. If the Master Servicer or the Special Servicer shall
deposit in a Servicing Account any amount not required to be deposited therein,
it may at any time withdraw such amount from such Servicing Account, any
provision herein to the contrary notwithstanding.
(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. For
purposes of effecting any such payment for which it is responsible, the Master
Servicer or the Special Servicer, as the case may be, shall apply Escrow
Payments as allowed under the terms of the related Mortgage Loan or, if such
Mortgage Loan does not require the related Mortgagor to escrow for the payment
of real estate taxes, assessments, insurance premiums, ground rents (if
applicable) and similar items, each of the Master Servicer and the Special
Servicer shall, as to those Mortgage Loans it is obligated to service hereunder,
enforce the requirement of the
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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). 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) In connection with its recovery of any Servicing Advance from the
Certificate Account pursuant to Section 3.05(a), each of the Master Servicer and
the Special Servicer shall be entitled to receive, out of any amounts then on
deposit in the Certificate Account, interest at the Reimbursement Rate in effect
from time to time, accrued on the amount of such Servicing Advance from the date
made to but not including the date of reimbursement. The Master Servicer shall
reimburse itself or the Special Servicer, as appropriate, for any Servicing
Advance as soon as practicable after funds available for such purpose are
deposited in the Certificate Account.
(e) The determination by either the Master Servicer or the Special Servicer
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 in accordance with the Servicing Standard and shall be evidenced
by an Officers' Certificate delivered promptly to the Trustee and the Depositor,
setting forth the basis for such determination, together with a copy of any
appraisal of the related Mortgaged Property or REO Property, as the case may be,
performed pursuant to Section 3.09(a) by the Master Servicer or by the Special
Servicer if the loan is a Defaulted Mortgage Loan or, if no such appraisal has
been performed, a copy of an appraisal of the related Mortgaged Property or REO
Property performed within the twelve months preceding such determination by an
Independent MAI-designated appraiser or other expert in real estate matters, and
further accompanied by related Mortgagor operating statements and financial
statements, budgets and rent rolls of the related Mortgaged Property and any
engineers' reports, environmental surveys or similar reports that the Master
Servicer or the Special Servicer may have obtained and that support such
determination.
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(f) Each of the Master Servicer and the Special Servicer shall, as to those
Mortgage Loans it is obligated to service hereunder, establish and maintain, as
applicable, one or more accounts (the "Reserve Accounts"), into which all
Reserve Funds, if any, shall be deposited and retained. Withdrawals of amounts
so deposited may be made to pay for, or to reimburse the related Mortgagor in
connection with, the related repairs and/or capital improvements at the related
Mortgaged Property if the repairs and/or capital improvements 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. All Reserve Accounts
shall be Eligible Accounts.
SECTION 3.04. Certificate Account and Distribution Account.
(a) The Master Servicer shall establish and maintain one or more accounts
(collectively, the "Certificate Account"), held on behalf of the Trustee in
trust for the benefit of the Certificateholders. The Certificate Account shall
be an Eligible Account. The Master Servicer shall deposit or cause to be
deposited in the Certificate Account, 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 the Master
Servicer or on its behalf 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 appropriate
Mortgage Loan Seller or its designee, with negotiable instruments endorsed as
necessary and appropriate without recourse), or payments (other than Principal
Prepayments) received by it on or prior to the Cut-off Date but allocable to a
period subsequent thereto:
(i) all payments on account of principal of the Mortgage Loans;
(ii) all payments on account of interest on the Mortgage Loans,
including Penalty Interest;
(iii) all Prepayment Premiums and Yield Maintenance Charges;
(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
Permitted Investments of funds held in the Certificate Account;
(vi) any amounts required to be deposited by the Master Servicer or
the Special Servicer pursuant to Section 3.07(b) in connection with losses
resulting from a deductible clause in a blanket hazard policy; and
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(vii) any amounts required to be transferred from an REO Account
pursuant to Section 3.16(c).
The foregoing requirements for deposit in the Certificate Account shall be
exclusive. Notwithstanding the foregoing, actual payments from Mortgagors in the
nature of Escrow Payments, and amounts that the Master Servicer is entitled to
retain as additional servicing compensation pursuant to Section 3.11(b), need
not be deposited by the Master Servicer in the Certificate Account. If the
Master Servicer shall deposit in the Certificate Account any amount not required
to be deposited therein, it may at any time withdraw such amount from the
Certificate Account, any provision herein to the contrary notwithstanding. The
Master Servicer shall promptly deliver to the Special Servicer as additional
servicing compensation in accordance with Section 3.11(d) assumption fees, late
charges and other transaction fees received by the Master Servicer with respect
to Specially Serviced Mortgage Loans. The Certificate Account shall be
maintained as a segregated account, separate and apart from trust funds created
for mortgage pass-through certificates of other series 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 Certificate Account in accordance with
the second preceding paragraph, unless the Special Servicer determines,
consistent with the Servicing Standard, that a particular item should not be
deposited because of a restrictive endorsement or other appropriate reason. Any
such amounts received by the Special Servicer with respect to an REO Property
shall be deposited by the Special Servicer into the REO Account and remitted to
the Master Servicer for deposit into the Certificate Account pursuant to Section
3.16(c). With respect to any such amounts paid by check to the order of the
Special Servicer, the Special Servicer shall endorse such check to the order of
the Master Servicer and shall deliver promptly, but in no event later than three
Business Days after receipt, any such check to the Master Servicer by overnight
courier, unless the Special Servicer determines, consistent with the Servicing
Standard, that a particular item cannot be so endorsed and delivered because of
a restrictive endorsement or other appropriate reason.
(b) The Paying Agent 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. The Master Servicer shall deliver to the Paying Agent each month on or
before the P&I Advance Date therein, for deposit in the Distribution Account, an
aggregate amount of immediately available funds equal to that portion of the
Available Distribution Amount (calculated without regard to clause (b)(iii) of
the definition thereof) for the related Distribution Date then on deposit in the
Certificate Account, together with (i) any Prepayment Premiums or Yield
Maintenance Charges received on the Mortgage Loans during the related Collection
Period and (ii) in the case of the final Distribution Date, any additional
amounts contemplated by the second paragraph of Section 9.01.
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In addition, the Master Servicer shall, as and when required hereunder,
deliver to the Paying Agent for deposit in the Distribution Account:
(i) any P&I Advances required to be made by the Master Servicer in
accordance with Section 4.03(a);
(ii) any amounts required to be deposited by the Master Servicer
pursuant to Section 3.06 in connection with losses realized on Permitted
Investments with respect to funds held in the Distribution Account;
(iii) any amounts required to be deposited by the Master Servicer
pursuant to Section 3.19 in connection with Prepayment Interest Shortfalls;
and
(iv) any Liquidation Proceeds paid by the Master 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 Certificate Account
pursuant to Section 9.01.
The Paying Agent shall, upon receipt, deposit in the Distribution Account
any and all amounts received by the Paying Agent that are required by the terms
of this Agreement to be deposited therein.
(c) Funds in the Certificate Account and the Distribution Account may be
invested in Permitted Investments in accordance with the provisions of Section
3.06. The Master Servicer and Paying Agent, as the case may be, shall give
notice to the Trustee, the Special Servicer and the Rating Agencies of the
location of the Distribution Account and Certificate Account as of the Closing
Date and of the new location of the Certificate Account prior to any change
thereof. The Paying Agent shall give notice to the Trustee, the Master Servicer
and the Special Servicer of the location of the Distribution Account as of the
Closing Date and of the new location of the Distribution Account prior to any
change thereof.
SECTION 3.05. Permitted Withdrawals From the Certificate Account and the
Distribution Account.
(a) The Master Servicer may, from time to time, make withdrawals from the
Certificate Account for any of the following purposes (the order set forth below
not constituting an order of priority for such withdrawals):
(i) to remit to the Paying Agent for deposit in the Distribution
Account the amounts required to be so deposited pursuant to the first
paragraph of Section 3.04(b);
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(ii) to reimburse itself for xxxxxxxxxxxx X&X Advances, the Master
Servicer's right to reimburse itself 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 (net of the related Master Servicing
Fees) on and principal (net of any related Principal Recovery Fee) received
in respect of the particular Mortgage Loan or REO Loan as to which such P&I
Advance was made;
(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 a
recovery of interest thereon;
(iv) to pay to the Special Servicer earned and unpaid Special
Servicing Fees in respect of each Specially Serviced Mortgage Loan and REO
Loan;
(v) to pay the Special Servicer (or, if applicable, a predecessor
Special Servicer) earned and unpaid Principal Recovery Fees in respect of
each Specially Serviced Mortgage Loan, Corrected Mortgage Loan and REO
Loan, the Special Servicer's (or, if applicable, any predecessor Special
Servicer's) right to payment pursuant to this clause (v) with respect to
any such 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 a recovery of principal thereon (provided that no
Principal Recovery Fee shall be payable out of any Liquidation Proceeds
received in connection with the purchase of any Mortgage Loan or REO
Property by the applicable Mortgage Loan Seller pursuant to the respective
Mortgage Loan Purchase Agreement, by the Majority Subordinate
Certificateholder pursuant to Section 3.18(b), by the Master Servicer or
Special Servicer pursuant to Section 3.18(c) or by the Master Servicer or
Depositor pursuant to Section 9.01);
(vi) to reimburse itself or the Special Servicer for any unreimbursed
Servicing Advances, the Master Servicer's and Special Servicer's respective
rights to reimbursement pursuant to this clause (vi) with respect to any
Servicing Advance being limited to payments made by the related Mortgagor
that are allocable to such Servicing Advance, or to Liquidation Proceeds,
Insurance Proceeds and, if applicable, REO Revenues received in respect of
the
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particular Mortgage Loan or REO Property as to which such Servicing
Advance was made;
(vii) to reimburse itself or the Special Servicer for any unreimbursed
Advances that have been or are determined to be Nonrecoverable Advances or
to pay itself, with respect to any Mortgage Loan or REO Property, any
related earned Master Servicing Fee that remained unpaid in accordance with
clause (iii) above following a Final Recovery Determination made with
respect to such Mortgage Loan or REO Property and the deposit into the
Certificate Account of all amounts received in connection therewith;
(viii) at such time as it reimburses itself for any unreimbursed
Advance pursuant to clause (ii), (vi) or (vii) above, to pay itself or the
Special Servicer, as the case may be, any interest accrued and payable
thereon in accordance with Section 3.03(d) or 4.03(d), as applicable;
(ix) to pay for costs and expenses incurred by the Trust Fund pursuant
to Section 3.09(c);
(x) to pay itself, as additional servicing compensation in accordance
with Section 3.11(b), interest and investment income earned in respect of
amounts held in the Certificate Account as provided in Section 3.06(b), but
only to the extent of the Net Investment Earnings with respect to the
Certificate Account for any Collection Period;
(xi) to pay for the cost of an independent appraiser or other expert
in real estate matters retained pursuant to Section 3.03(e), 3.09(a) or
3.18(e);
(xii) to pay itself, the Special Servicer, the Depositor, or any of
their respective directors, officers, employees and agents, as the case may
be, any amounts payable to any such Person pursuant to Section 6.03;
(xiii) to pay for (A) the advice of counsel contemplated by Section
3.17(a)(iii), (B) the cost of the Opinions of Counsel contemplated by
Sections 3.09(b)(ii), 3.09(c), 3.16(a) and 11.02(a), (C) the cost of an
Opinion of Counsel contemplated by Section 11.01(a) or 11.01(c) in
connection with any amendment to this Agreement requested by the Master
Servicer or the Special Servicer that protects or is in furtherance of the
rights and interests of Certificateholders, (D) the cost of obtaining the
REO Extension sought by the Special Servicer as contemplated by Section
3.16(a), and (E) the cost of recording this Agreement in accordance with
Section 11.02(a);
(xiv) to pay itself, the Special Servicer, the appropriate Mortgage
Loan Seller, the Majority Subordinate Certificateholder or any other
Person, as the case may be, with respect to each Mortgage Loan, if any,
previously
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purchased by such Person pursuant to this Agreement, all amounts
received thereon subsequent to the date of purchase;
(xv) to pay itself the Master Servicer Strip and Prepayment Strip; and
(xvi) to clear and terminate the Certificate Account at the
termination of this Agreement pursuant to Section 9.01.
The Master Servicer shall keep and maintain separate accounting records, on
a loan-by-loan and property-by-property basis when appropriate, in connection
with any withdrawal from the Certificate Account pursuant to clauses (ii) -
(xiv) above.
The Master Servicer shall pay to the Special Servicer (or to third party
contractors at the direction of the Special Servicer) from the Certificate
Account amounts permitted to be paid to it (or to such third party contractors)
therefrom promptly upon receipt of a certificate of a Servicing Officer of the
Special Servicer describing the item and amount to which the Special Servicer
(or such third party contractors) is entitled. The Master Servicer may rely
conclusively on any such certificate and shall have no duty to re-calculate the
amounts stated therein. The Special Servicer shall keep and maintain separate
accounting for each Specially Serviced Mortgage Loan and REO Property, on a
loan-by-loan and property-by-property basis, for the purpose of justifying any
request for withdrawal from the Certificate Account.
(b) The Paying Agent may, from time to time, make withdrawals from the
Distribution Account for any of the following purposes:
(i) to make distributions to Certificateholders on each Distribution
Date pursuant to Section 4.01 or 9.01, as applicable;
(ii) to pay the Trustee 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 the Master Servicer, as additional servicing compensation
in accordance with Section 3.11(b), interest and investment income earned
in respect of amounts held in the Distribution Account as provided in
Section 3.06(b) (but only to the extent of the Net Investment Earnings with
respect to the Distribution Account for any Collection Period);
(iv) to pay for the cost of the Opinions of Counsel sought by the
Trustee (A) as provided in clause (v) of the definition of "Disqualified
Organization", (B) as contemplated by Sections 9.02(a)(i) and 10.01(i), or
(C) 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;
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(v) to pay any and all federal, state and local taxes imposed on
either of the REMICs created hereunder or on the assets or transactions of
either such REMIC, together with all incidental costs and expenses, to the
extent none of it, the REMIC Administrator or the Special Servicer is
liable therefor pursuant to Section 10.01(j);
(vi) to pay the REMIC Administrator for any amounts reimbursable to it
pursuant to Section 10.01(f); and
(vii) to clear and terminate the Distribution Account at the
termination of this Agreement pursuant to Section 9.01.
SECTION 3.06. Investment of Funds in the Certificate Account, the
Distribution Account and the REO Account.
(a) The Master Servicer may direct in writing any depository institution
maintaining the Certificate Account and may direct in writing the Paying Agent
with respect to the Distribution Account (each, for purposes of this Section
3.06, an "Investment Account"), and the Special Servicer may direct in writing
any depository institution maintaining the REO Account (also, for purposes of
this Section 3.06, an "Investment Account"), to invest, or if it is such
depository institution, may itself invest, the funds held therein in one or more
Permitted Investments bearing interest or sold at a discount, and maturing,
unless payable on demand, no later than the Business Day immediately preceding
the next succeeding date on which such funds are required to be withdrawn from
such account pursuant to this Agreement. All such Permitted Investments shall be
held to maturity, unless payable on demand. 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 Certificate Account and the Distribution 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 UCC, or (ii) other
property in which a secured party may perfect its security interest by
possession under the UCC or any other applicable law. Possession of any such
Permitted Investment by the Master Servicer or the Special Servicer shall
constitute possession by a Person designated by the Trustee for purposes of
Section 8-313 of the UCC and possession by the Trustee, as secured party, for
purposes of Section 9-305 of the UCC and any other applicable law. If amounts on
deposit in an Investment Account are at any time invested in a Permitted
Investment payable on demand, the Master Servicer (in the case of the
Certificate Account), the Paying Agent (in the case of the Distribution 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
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mature hereunder in an amount equal to the lesser of (1) all amounts
then payable thereunder and (2) the amount required to be withdrawn on such
date; and
(y) demand payment of all amounts due thereunder promptly upon
determination by the Master Servicer or the Special Servicer, as the case
may be, that such Permitted Investment would not constitute a Permitted
Investment in respect of funds thereafter on deposit in the Investment
Account.
(b) Whether or not the Master Servicer directs the investment of funds in
either of the Certificate Account or the Distribution Account, interest and
investment income realized on funds deposited therein, to the extent of the Net
Investment Earnings, if any, 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) or withdrawal by the Paying Agent
at its direction in accordance with Section 3.05(b), as applicable. 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 each Collection Period, shall
be for the sole and exclusive benefit of the Special Servicer and shall be
subject to its withdrawal in accordance with Section 3.16(b). If any loss shall
be incurred in respect of any Permitted Investment on deposit in any Investment
Account, the Master Servicer (in the case of the Certificate Account and the
Distribution 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 Trustee may and, subject to Section 8.02, upon the request of
Holders of Certificates entitled to not less than 25% of the Voting Rights
allocated to any Class, shall take such action as may be appropriate to enforce
such payment or performance, including the institution and prosecution of
appropriate proceedings.
(d) Notwithstanding the investment of funds held in any Investment Account,
for purposes of the calculations hereunder, including, without limitation, the
calculation of the Available Distribution Amount, 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
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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 shall exercise
such discretion in a manner consistent with the Servicing Standard; 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 have a general policy rating of at least A:X in A.M.
Best's Key Rating Guide. Subject to Section 3.17(a), 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;
provided that all such insurance shall be obtained from Qualified Insurers that,
if they are providing casualty insurance, shall have a general policy rating of
at least "A" from both Rating Agencies (or solely Standard & Poor's, if such
insurer is not rated by DCR). All such insurance policies shall contain (if they
insure against loss to property) a "standard" mortgagee clause, with loss
payable to the Master Servicer (in the case of insurance maintained in respect
of Mortgage Loans) or the Special Servicer (in the case of insurance maintained
in respect of REO Properties), on behalf of the Trustee, 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 restoration or repair of the related
Mortgaged Property or REO Property or amounts to be released to the related
Mortgagor, in each case subject to the rights of any tenants and ground lessors,
as the case may be, and the terms of the related Mortgage and in each case in
accordance with the Servicing Standard) shall be deposited in the Certificate
Account, subject to withdrawal pursuant to Section 3.05(a), in the case of
amounts received in respect of a Mortgage Loan, or in the REO Account, subject
to withdrawal pursuant to Section 3.16(c), in the case of amounts received in
respect of an REO Property. Any cost incurred by the Master Servicer or the
Special Servicer 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 of "A" or better
from both Rating Agencies (or solely Standard & Poor's, if such insurer is not
rated by DCR), 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.
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
Certificate Account from its own funds the amount not otherwise payable under
the blanket policy because of such deductible clause. The Master Servicer or the
Special Servicer, as appropriate, shall prepare and present, on
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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 in which Specially Serviced Mortgage
Loans or REO Properties exist as part of the Trust Fund) keep in force with
Qualified Insurers having a claims-paying rating of "A" or better from both
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 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 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 in which Specially Serviced Mortgage
Loans and/or REO Properties exist as part of the Trust Fund) also keep in force
with Qualified Insurers having a claims-paying rating of "A" or better from both
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 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.
For so long as the long-term debt obligation of the Master Servicer or
Special Servicer, as the case may be, are rated "A" or better by both Rating
Agencies, such Person may self-insure with respect to the risks described in
this subsection.
SECTION 3.08. Enforcement of Alienation Clauses.
With respect to those Mortgage Loans it is obligated to service hereunder,
each of the Master Servicer and the Special Servicer, on behalf of the Trustee
as the mortgagee of record, shall enforce the restrictions contained in the
related Mortgage on transfers or further encumbrances of the related Mortgaged
Property and on transfers of interests in the related Mortgagor, unless the
Master Servicer or the Special Servicer, as applicable, has determined,
consistent with the Servicing Standard, that waiver of such restrictions would
be in accordance
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with the Servicing Standard. Promptly after the Master Servicer or Special
Servicer has made any such determination, the Master Servicer or Special
Servicer shall deliver to the Trustee and the Master Servicer (if such
determination is made by the Special Servicer) an Officers' Certificate setting
forth the basis for such determination.
SECTION 3.09. Realization Upon Defaulted Mortgage Loans; Required
Appraisals.
(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
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. The Special
Servicer shall be responsible for all costs and expenses (other than costs or
expenses that would, if incurred, constitute a Nonrecoverable Servicing Advance)
incurred by it in any such proceedings, and shall be entitled to reimbursement
therefor as provided in Section 3.05(a). 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 and good faith judgment
taking into account the factors described in Section 3.18(e) and the results of
any appraisal obtained pursuant to the following sentence, all such bids to be
made in a manner consistent with the Servicing Standard. If and when the Master
Servicer or 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, it may, at the expense of the Trust Fund, have an appraisal performed
with respect to such property by an Independent appraiser or other expert in
real estate matters. With respect to each Required Appraisal Mortgage Loan, the
Master Servicer will be required to obtain a Required Appraisal (within 60 days)
of a Mortgage Loan becoming a Required Appraisal Mortgage Loan and thereafter
shall obtain a Required Appraisal once every 12 months if such Mortgage Loan
remains a Required Appraisal Mortgage Loan. The Master Servicer shall advance
the cost of such Required Appraisal; provided, however, that such expense will
be subject to reimbursement to the Master Servicer as a Servicing Advance out of
general funds on deposit in the Certificate Account pursuant to Section 3.05(a).
(b) The Special Servicer shall not acquire any personal property 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 may be withdrawn from the Certificate Account pursuant
to Section 3.05(a)) to the effect that the holding of such personal
property as part
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of the Trust Fund will not cause the imposition of a tax on either of
REMIC I or REMIC II under the REMIC Provisions or cause either of REMIC I
or REMIC II to fail to qualify as a REMIC at any time that any Certificate
is outstanding.
(c) Notwithstanding the foregoing provisions of this Section 3.09, neither
the Master Servicer nor the Special Servicer shall, on behalf of the Trustee,
obtain title to a Mortgaged Property by 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 judgment of the Master Servicer or
the Special Servicer, as the case may be, made 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 (a "potentially responsible party"), unless (A)
(as evidenced by an Officers' Certificate to such effect delivered to the
Trustee that shall specify all of the bases for such determination) the Special
Servicer has previously determined in accordance with the Servicing Standard,
and based on a Phase I Environmental Assessment of such Mortgaged Property
performed by an Independent Person who regularly conducts Phase I Environmental
Assessments and performed within twelve months prior to any such acquisition of
title or other action (a copy of which Phase I Environmental Assessment shall be
delivered to the Trustee and the Master Servicer), that:
(i) the Mortgaged Property is in compliance with applicable
environmental laws and regulations or, if not, 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 Mortgage Rate) to acquire
title to or possession of the Mortgaged Property and to take such actions
as are necessary to bring the Mortgaged Property into compliance therewith
in all material respects; and
(ii) there are no circumstances or conditions present at the Mortgaged
Property relating to the use, management or disposal of Hazardous Materials
for which investigation, testing, monitoring, containment, clean-up or
remediation could be required under any applicable environmental laws and
regulations or, if such circumstances or conditions are present for which
any such action could reasonably be expected to be required, 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 Mortgage
Rate) to acquire title to or possession of the Mortgaged Property and to
take such actions with respect to the affected Mortgaged Property; and
(B) if the Special Servicer has determined that the Mortgaged Property is not in
compliance with applicable environmental laws or regulations, or that any such
circumstances or
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conditions described in clause (A)(ii) above are present at the Mortgaged
Property, the Special Servicer shall have notified the Trustee in writing that
(i) it has determined whether or not it or the Trustee could reasonably be
considered to be a potentially responsible party, and (ii) if it has determined
that it or the Trustee could reasonably be considered to be a potentially
responsible party, it has also determined that its and the Trustee's interests
are adequately protected, by indemnification or otherwise.
The Special Servicer shall undertake, in good faith, reasonable efforts to
make the determination referred to in clause (B)(i), and may conclusively rely
on the Phase I Environmental Assessment referred to above, and upon an Opinion
of Counsel, in making such determination. The cost of any such Phase I
Environmental Assessment and any such Opinion of Counsel, as well as the cost of
any remedial, corrective or other further action contemplated by clause (A)(i)
and/or clause (A)(ii) of the preceding paragraph, may be reimbursed to the
Special Servicer from the Certificate Account as an expense of the Trust Fund
pursuant to Section 3.05(a); and if any such Phase I Environmental Assessment so
warrants, the Special Servicer shall, at the expense of the Trust Fund, perform
such additional environmental testing as it deems necessary and prudent to
determine whether the conditions described in clauses (A)(i) and (A)(ii) of the
preceding paragraph have been satisfied.
(d) If the environmental testing contemplated by Section 3.09(c) above
establishes that any of the conditions set forth in clauses (A)(i) and (A)(ii)
of the first sentence thereof has not been satisfied with respect to any
Mortgaged Property securing a defaulted Mortgage Loan, the Special Servicer
shall take such action as is in accordance with the Servicing Standard (other
than proceeding against the Mortgaged Property) and, at such time as it deems
appropriate, may, on behalf of the Trustee, release all or a portion of such
Mortgaged Property from the lien of the related Mortgage; provided that if such
Mortgage Loan has a then outstanding principal balance of greater than $1
million, prior to the release of all or a portion of the related Mortgaged
Property from the lien of the related Mortgage, (i) the Special Servicer shall
have notified the Trustee and the Master Servicer in writing of its intention to
so release all or a portion of such Mortgaged Property, (ii) the Master Servicer
shall have notified the Certificateholders in writing of the Special Servicer's
intention to so release all or a portion of such Mortgaged Property and (iii)
the Holders of Certificates entitled to a majority of the Voting Rights shall
have consented to such release within 30 days of the Trustee's distributing such
notice (failure to respond by the end of such 30-day period being deemed
consent).
(e) The Special Servicer shall report to the Trustee monthly in writing as
to any actions taken by the Special Servicer with respect to any Mortgaged
Property that represents security for a defaulted Mortgage Loan as to which the
environmental testing contemplated in Section 3.09(c) above has revealed that
any of the conditions set forth in clauses (A)(i) and (A)(ii) of the first
sentence thereof has not been satisfied, in each case until the earlier to occur
of satisfaction of all such conditions and release of the lien of the related
Mortgage on such Mortgaged Property.
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(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 the reports of foreclosures
and abandonments of any Mortgaged Property and the information returns relating
to cancellation of indebtedness income with respect to any Mortgaged Property
required by Sections 6050J and 6050P of the Code and deliver to the Trustee and
the Master Servicer an Officers' Certificate stating that such reports have been
filed. Such reports shall be in form and substance sufficient to meet the
reporting requirements imposed by Sections 6050J and 6050P of the Code.
(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 Officers' Certificate delivered to the
Trustee and the Master Servicer no later than the third Business Day following
such Final Recovery Determination.
(i) Upon reasonable request of the Master Servicer, the Special Servicer
shall deliver to it any other information and copies of any other documents in
its possession with respect to a Specially Serviced Mortgage Loan or the related
Mortgaged Property.
SECTION 3.10. Trustee and Custodian 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 notify
the Custodian by a certification (which certification shall be in the form of a
Request for Release in the form of Exhibit D-1 attached hereto and shall be
accompanied by the form of a release or discharge 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 Certificate Account
pursuant to Section 3.04(a) have been or will be so deposited) of a Servicing
Officer (a copy of which certification shall be delivered to the Special
Servicer) and shall request delivery to it of the related Mortgage File. Upon
receipt of such certification and request, the Master Servicer shall promptly
release, and if the Master Servicer is not the Custodian, cause any related
Custodian to release, the related Mortgage File to the Master Servicer and shall
deliver to the Master Servicer such release or discharge, duly executed. No
expenses incurred in connection with any instrument of satisfaction or deed of
reconveyance shall be chargeable to the Certificate 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
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Mortgage File (or any portion thereof), the Custodian, 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,
and if the Master Servicer is not the Custodian, 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 Custodian, or the delivery to the Custodian of a
certificate of a Servicing Officer of the Special Servicer stating that such
Mortgage Loan was liquidated and that all amounts received or to be received in
connection with such liquidation that are required to be deposited into the
Certificate Account pursuant to Section 3.04(a) have been or will be so
deposited, or that such Mortgage Loan has become an REO Property, a copy of the
Request for Release shall be released by the Custodian to the Master Servicer or
the Special Servicer, as applicable.
(c) Within seven Business Days (or within such shorter period (but no less
than three Business Days) as execution and delivery can reasonably be
accomplished if the Special Servicer notifies the Trustee of an exigency) of the
Special Servicer's request therefor, the Trustee shall execute and deliver to
the Special Servicer (or the Special Servicer may execute and deliver in the
name of the Trustee based on a limited power of attorney issued in favor of the
Special Servicer pursuant to Section 3.01(b)), in the form supplied to the
Trustee, 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. Together with such documents or pleadings, the Special
Servicer shall deliver to the Trustee a certificate of a Servicing Officer
requesting that such pleadings or documents be executed by the Trustee and
certifying as to the reason such documents or pleadings are required and that
the execution and delivery thereof by the Trustee will not invalidate or
otherwise affect the lien of the Mortgage, except for the termination of such a
lien upon completion of the foreclosure or trustee's sale.
SECTION 3.11. Servicing Compensation.
(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 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
related Master Servicing Fee Rate and on 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 Master Servicing Fee
with respect to any Mortgage Loan or REO Loan shall cease to accrue if a
Liquidation Event occurs in respect thereof. Earned but unpaid Master Servicing
Fees shall be payable monthly, on a loan-by-loan basis, from payments of
interest on each
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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 that portion of related
Insurance Proceeds or Liquidation Proceeds allocable as recoveries of interest,
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) Additional servicing compensation in the form of assumption fees, late
charges, Penalty Interest, charges for beneficiary statements or demands,
amounts collected for checks returned for insufficient funds and any similar
fees (excluding Prepayment Premiums or Yield Maintenance Charges), in each case
to the extent actually paid by a Mortgagor with respect to a Mortgage Loan that
is not a Specially Serviced Mortgage Loan, may be retained by the Master
Servicer and are not required to be deposited in the Certificate Account. The
Master Servicer shall also be entitled to additional servicing compensation in
the form of (i) Prepayment Interest Excesses (but only insofar as the aggregate
of such Prepayment Interest Excesses collected during any Collection Period
exceeds the aggregate amount of Prepayment Interest Shortfalls incurred during
such Collection Period); (ii) interest or other income earned on deposits in the
Certificate Account and the Distribution Account, in accordance with Section
3.06(b) (but only to the extent of the Net Investment Earnings, if any, with
respect to each such account for each Collection Period), and (iii) to the
extent not required to be paid to any Mortgagor under applicable law, any
interest or other income earned on deposits in the 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 servicing activities hereunder
(including, without limitation, payment of any amounts due and owing to any of
its Sub-Servicers and the premiums for any blanket policy insuring against
hazard losses pursuant to Section 3.07(b)), if and to the extent such expenses
are not payable directly out of the Certificate Account, and the Master Servicer
shall not be entitled to reimbursement therefor except as expressly provided in
this Agreement.
(c) As compensation for its activities hereunder, the Special Servicer
shall be entitled to receive the Special Servicing Fee with respect to each
Specially Serviced Mortgage Loan and each REO Loan. As to each Specially
Serviced Mortgage Loan and REO Loan, the Special Servicing Fee shall accrue from
time to time at the Special Servicing Fee Rate on the basis of the same
principal amount and for the same period respecting which any related interest
payment due on such Specially Serviced 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 Certificate Account pursuant to Section 3.05(a).
In addition, with respect to each Specially Serviced Mortgage Loan,
Corrected Mortgage Loan and REO Loan, the Special Servicer shall be entitled to
the Principal Recovery
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Fee payable out of, and equal to 0.25% of, all amounts (whether in the form
of payments, Insurance Proceeds, Liquidation Proceeds or REO Revenues) received
in respect of such Mortgage Loan (or, in the case of an REO Loan, in respect of
the related REO Property) and allocable as a recovery of principal in accordance
with Section 3.02(b) or the definition of "REO Loan", as applicable; provided
that no Principal Recovery Fee shall be payable in connection with, or out of
Liquidation Proceeds resulting from, the purchase of any Mortgage Loan or REO
Property by the applicable Mortgage Loan Seller pursuant to the respective
Mortgage Loan Purchase Agreement, by the Majority Subordinate Certificateholder
pursuant to Section 3.18(b), by the Master Servicer or the Special Servicer
pursuant to Section 3.18(c) or by the Master Servicer or the Depositor pursuant
to Section 9.01; provided further that if any Person is acting as Special
Servicer at such time as any Specially Serviced Mortgage Loan became a Corrected
Mortgage Loan and such Person is subsequently terminated as Special Servicer
hereunder, and if such Corrected Mortgage Loan was still a Corrected Mortgage
Loan at the time of such termination, then such Person shall, following such
termination, continue to be entitled to all Principal Recovery Fees payable in
respect to such Corrected Mortgage Loan, and no successor Special Servicer shall
be entitled to any Principal Recovery Fees payable in respect thereof, in either
case unless and until such Corrected Mortgage Loan again becomes a Specially
Serviced Mortgage Loan or becomes an REO Loan; and provided further that if any
Person is terminated as Special Servicer hereunder while the sale of any
Specially Serviced Mortgage Loan or REO Property is pending, then (subject to
the second preceding proviso) such Person shall be entitled to all, and the
successor Special Servicer shall be entitled to none, of the Principal Recovery
Fee payable in connection with the receipt of the Liquidation Proceeds derived
from such sale.
The Special Servicer's right to receive the Special Servicing Fee and
Principal Recovery 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 Sections 6.02, 6.04 and 6.09.
(d) Additional servicing compensation in the form of late charges and
assumption fees received on or with respect to Specially Serviced Mortgage Loans
shall be promptly paid to the Special Servicer by the Master Servicer and shall
not be required to be deposited in the Certificate Account pursuant to Section
3.04(a). The Special Servicer shall also be entitled to additional servicing
compensation in the form of: (i) interest or other income earned on deposits in
the REO Account, if established, in accordance with Section 3.06(b) (but only to
the extent of the Net Investment Earnings, if any, with respect to the REO
Account for each Collection Period); and (ii) to the extent not required to be
paid to any Mortgagor under applicable law, any interest or other income earned
on deposits in the Servicing Accounts maintained thereby. 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 its Sub-Servicers and
the premiums for any blanket policy obtained by it insuring against hazard
losses pursuant to Section 3.07(b)), if and to the extent such expenses are not
payable directly out of the Certificate Account or the REO Account, and the
Special Servicer shall be entitled to reimbursement therefor as expressly
provided in Section 3.05(a).
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SECTION 3.12. Property Inspections; Collection of Financial Statements;
Delivery of Certain Reports.
(a) The Special Servicer shall at its expense perform a physical inspection
of a Mortgaged Property as soon as practicable after a related Mortgage Loan
becomes a Specially Serviced Mortgage Loan. The Master Servicer shall at its
expense perform an inspection of each Mortgaged Property at least once per
calendar year, if the Special Servicer has not already done so in that calendar
year pursuant to the preceding sentence. The Master Servicer or Special
Servicer, as the case may be, 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 Master Servicer or the
Special Servicer, as applicable, is aware, (ii) any change in the condition or
value of the Mortgaged Property that it, in its reasonable judgment, considers
material, or (iii) any waste committed on the Mortgaged Property. The Master
Servicer and the Special Servicer shall each deliver to the Trustee, and in the
case of the Special Servicer, to the Master Servicer, the Majority Subordinate
Certificateholder (if such person is not then the Special Servicer), and any
Sub-Servicers of such Specially Serviced Mortgage Loan, or REO Property, a copy
of each such written report prepared by it within 30 days of the related
inspection, and the Master Servicer shall cause the same to be delivered, within
10 days after its receipt thereof, to the Depositor.
(b) The Special Servicer, in the case of any Specially Serviced Mortgage
Loan, and the Master Servicer, in the case of all other Mortgage Loans, shall
make reasonable efforts to collect promptly from each related Mortgagor 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 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. The Special Servicer shall
deliver copies of all of the foregoing items so collected thereby to the
Trustee, the Master Servicer and any Sub-Servicers, and the Master Servicer
shall cause the same to be delivered, within 10 days after its receipt thereof,
to the Depositor and the Majority Subordinate Certificateholder (if such Person
is not then the Special Servicer). If requested by the Master Servicer, the
Special Servicer shall take reasonable steps to ensure that such items present
the information contained therein in substantially the same manner as such
information was presented when such items were collected by the Depositor.
Promptly following its receipt thereof, the Master Servicer or the Special
Servicer shall review all such items as may be collected in respect of each
Mortgage Loan and REO Property and, in the absence of actual knowledge that any
such item contains erroneous information, shall (based thereon): (i) calculate
the occupancy percentage for the related Mortgaged Property or REO Property, as
the case may be (such occupancy percentage shall represent a ratio of the number
of rooms occupied per day (summed over a specified period of time) to the number
of rooms available for occupancy per day (summed over such specified period of
time) in the case of a Mortgaged Property that is a hotel, shall be calculated
on a per unit basis in the case of a Mortgaged Property that is a multifamily
rental
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property and on a net square footage basis in all other cases or on any
other basis that the Master Servicer or the Special Servicer deems appropriate
in accordance with the Servicing Standard and identifies to the Trustee, the
Master Servicer and the Depositor); (ii) in accordance with Exhibit E-1,
calculate the Net Operating Income for the related Mortgaged Property or REO
Property, as the case may be; and (iii) calculate the Debt Service Coverage
Ratio for the related Mortgage Loan or REO Loan, as the case may be. The Updated
Mortgage Loan Schedule to be prepared each month by the Master Servicer pursuant
to Section 3.12(c) shall reflect the most recent calculations made by the Master
Servicer or Special Servicer pursuant to the preceding sentence with respect to
each Mortgage Loan and REO Loan and shall identify the period covered by the
financial statements and/or the date of the rent roll from which such
calculations were made. All information to be provided by the Special Servicer
to the Master Servicer under this Section shall be provided not later than five
Business Days prior to the date that the Master Servicer is required to deliver
such information to the Paying Agent.
(c) If the Master Servicer is not the Paying Agent, not later than the
fourth Business Day following each Determination Date, the Master Servicer shall
deliver to the Paying Agent (for receipt by the Paying Agent not later than such
fourth Business Day following each Determination Date), by electronic
transmission (or in such other form to which the Paying Agent and the Master
Servicer may agree), with a hard copy of such transmitted information to follow
not later than the fifth Business Day following such Determination Date, an
accurate and complete Updated Mortgage Loan Schedule, substantially in the form
of Exhibit E-2, prepared as if the Determination Date were the Cut-off Date and
setting forth, among other things, the items referred to in the definition of
"Mortgage Loan Schedule", as well as the items referred to in Section 3.12(b),
further identifying on such schedule each Mortgage Loan (i) that has become an
REO Loan, and the date of the related REO Acquisition and (ii) that matured,
prepaid in full or (whether before or after an REO Acquisition) was otherwise
liquidated during the Collection Period ending on such Determination Date and,
in each case, specifying the date of the related maturity, prepayment or
Liquidation Event, the amount collected in connection therewith and the amount
of any Realized Loss and/or Additional Trust Fund Expenses incurred in
connection therewith. The Master Servicer, on each Distribution Date, shall
deliver to the Depositor a copy of the Updated Mortgage Loan Schedule.
SECTION 3.13. Annual Statement as to Compliance.
Each of the Master Servicer and the Special Servicer shall deliver to the
Trustee and the Rating Agencies, and, in the case of the Special Servicer, to
the Master Servicer, on or before April 30 of each year, beginning April 30,
1997, an Officers' Certificate stating, as to each 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,
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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 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. The Master Servicer and Special Servicer
shall deliver a copy of such Officer's Certificate to the Depositor.
SECTION 3.14. Reports by Independent Public Accountants.
On or before April 30 of each year, beginning April 30, 1997 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) that is a member of the American
Institute of Certified Public Accountants to furnish a statement to the Trustee,
to the Rating Agencies, to the Depositor and, in the case of the Special
Servicer, to the Master Servicer to the effect that such firm has examined
certain documents and records relating to the performance of the Master Servicer
or the Special Servicer, as the case may be, of its servicing duties under
agreements substantially similar to this Agreement, in all material respects,
for the previous calendar year (except that the first such report shall cover
the period from the Closing Date through December 31, 1996) and that, on the
basis of such examination, conducted substantially in compliance with the
Uniform Single Audit Program for Mortgage Bankers, such firm confirms that such
servicing duties have been performed in compliance with such agreements, in all
material respects, except for such significant exceptions or errors in records
that, in the opinion of such firm, the Uniform Single Audit Program for Mortgage
Bankers requires it to report. In rendering such statement, such firm may rely,
as to matters relating to direct servicing of mortgage loans by Sub-Servicers,
upon comparable statements for examinations conducted substantially in
compliance with the Uniform Single Audit Program for Mortgage Bankers (rendered
within one year of such statement) of independent public accountants with
respect to the related Sub-Servicer.
SECTION 3.15. Access to Certain Information.
Each of the Master Servicer and the Special Servicer shall afford to the
Trustee, the Rating Agencies and the Depositor, and to 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
its 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.
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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 an
Opinion of Counsel, addressed to the Trustee, the Special Servicer and the
Master Servicer, 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 either of REMIC I or REMIC II or cause either of REMIC I or REMIC
II to fail to qualify as a REMIC at any time that any Certificates are
outstanding. If the Special Servicer is granted the REO Extension contemplated
by clause (i) of the immediately preceding sentence or obtains the Opinion of
Counsel contemplated by clause (ii) of the immediately preceding sentence, the
Special Servicer shall sell such REO Property within such period longer than two
years as is permitted by such REO Extension or 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 an
expense of the Trust Fund payable out of the Certificate Account pursuant to
Section 3.05(a).
(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 Trustee and the Master Servicer of the
location of the REO Account when first established and of the new location of
the REO Account prior to any change thereof.
(c) The Special Servicer shall withdraw from the REO Account funds
necessary for the proper operation, management, maintenance and disposition of
any REO Property, but only to the extent of amounts on deposit in the REO
Account relating to such
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REO Property. On each Determination Date, the Special Servicer shall
withdraw from the REO Account and deposit into the Certificate Account or
deliver to the Master Servicer (which shall deposit such amounts into the
Certificate Account) the aggregate of all amounts received in respect of each
REO Property during the most recently ended Collection Period, net of any
withdrawals made out of such amounts pursuant to the preceding sentence;
provided that the Special Servicer may retain in the REO Account such portion of
proceeds and collections as may be necessary to maintain a reserve of sufficient
funds for the proper operation, management and maintenance 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 $10,000 with respect to each such REO
Property or to cover a period of more than twelve months.
(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). The
Special Servicer shall provide the Master Servicer any information with respect
to the REO Account as is reasonably requested by the Master Servicer.
SECTION 3.17. Management of REO Property.
(a) Prior to the acquisition of title to a Mortgaged Property, 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 good faith and reasonable judgment of the
Special Servicer, it is commercially feasible) acquire such Mortgaged
Property as REO Property and so lease or operate such REO Property; or
(iii) It is reasonable to believe that Directly Operating such
property as REO Property could result in income subject to an REO Tax and
that no commercially reasonable feasible means exists to operate such
property as REO
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Property without the Trust Fund incurring or possibly incurring an REO
Tax on income from such property, the Special Servicer shall give written
notice to the REMIC Administrator summarizing a proposed plan ("Proposed
Plan") to manage such property as REO Property. Such notice shall include
potential sources of income, and to the extent reasonably feasible,
estimates of the amount of income from each such source. Within a
reasonable period of time after receipt of such notice, 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 extent feasible) 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 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 good faith and reasonable judgment of the
Special Servicer as to which means would be in the best interest of the
Certificateholders by maximizing (to the extent commercially feasible) the
net after-tax REO Revenues received by the Trust Fund with respect to such
property 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
Mortgaged Property. Both the Special Servicer and the REMIC Administrator
may consult with counsel 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 Trustee, the Master Servicer 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 pursuant to the terms and
subject to the conditions of Section 3.18.
(b) If title to any REO Property is acquired, the Special Servicer shall
manage, conserve, protect and operate such REO Property for the benefit of the
Certificateholders solely for the purpose of its prompt disposition and sale in
a manner that does not cause such REO Property to fail to qualify as
"foreclosure property" within the meaning of Section 860G(a)(8) of the Code or
result in the receipt by REMIC I or REMIC II of any "income from non-permitted
assets" within the meaning of Section 860F(a)(2)(B) of the Code or result in an
Adverse REMIC Event. 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
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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 and maintenance
of such REO Property, including without limitation:
(i) all insurance premiums due and payable in respect of such REO
Property;
(ii) all real estate taxes and assessments in respect of such REO
Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property; and
(iv) all costs and expenses necessary to maintain, lease, sell,
protect, manage, operate and restore such REO Property.
To the extent that amounts on deposit in the REO Account in respect of any REO
Property are insufficient for the purposes set forth in clauses (i) - (iv) above
with respect to such REO Property, the Special Servicer shall make Servicing
Advances in such amounts as are necessary for such purposes unless (as evidenced
by an Officers' Certificate delivered to the Trustee and the Master Servicer)
the Special Servicer would not make such advances if the Special Servicer owned
such REO Property or the Special Servicer determines, in accordance with the
Servicing Standard, that such payment would be a Nonrecoverable Advance;
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) subject to Section 3.17(a), 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
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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; and
(v) the Special Servicer shall be obligated with respect thereto to
the same extent as if it alone were performing all duties and obligations
in connection with the operation and management of such REO Property.
The Special Servicer shall be entitled to enter into any agreement with any
Independent Contractor performing services for it related to its duties and
obligations hereunder for indemnification of the Special Servicer by such
Independent Contractor, and nothing in this Agreement shall be deemed to limit
or modify such indemnification.
SECTION 3.18. Sale of Mortgage Loans and REO Properties.
(a) The Master Servicer, the Special Servicer or the Trustee may sell or
purchase, or permit the sale or purchase of, a Mortgage Loan or REO Property
only on the terms and subject to the conditions set forth in this Section 3.18
or as otherwise expressly provided in or contemplated by Sections 2.03(a) and
9.01.
(b) Subject to Section 2.03(a), if the Special Servicer has determined in
good faith 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, and the Master Servicer, following its receipt
of such notice, shall, within 10 days after receipt of such notice, notify the
Majority Subordinate Certificateholder. The Majority Subordinate
Certificateholder may at its option purchase from the Trust Fund, at a price
equal to the Purchase Price, any such Mortgage Loan. The Purchase Price for any
Mortgage Loan purchased under this paragraph (b) shall be deposited into the
Certificate Account, and the Custodian, upon receipt of an Officers' Certificate
from the Master Servicer to the effect that such deposit has been made, shall
release or cause to be released to the Majority Subordinate Certificateholder
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 Majority Subordinate
Certificateholder ownership of such Mortgage Loan. In connection with any such
purchase, the Special Servicer shall deliver the related Servicing File to the
Majority Subordinate Certificateholder.
(c) If the Majority Subordinate Certificateholder has not purchased any
Defaulted Mortgage Loan within 30 days of its having received notice in respect
thereof
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pursuant to Section 3.18(b) above, either the Master Servicer or the
Special Servicer (with preference given to the Master Servicer) may at its
option 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 Certificate Account, and the
Custodian, upon receipt of an Officers' 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 Sections 3.18(b) and 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 (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 three Business Days' prior written notice of its intention to sell any
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 any REO Property pursuant hereto.
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(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 (except as otherwise
provided below in this Section 3.18(e)). In determining whether any bid received
from an Interested Person represents a fair price for any such Mortgage Loan or
REO Property, the Special Servicer shall be supplied with and may rely on a
narrative appraisal prepared at the expense of the Trust Fund by an Independent
MAI-designated appraiser, retained by the Special Servicer, and who has a
minimum of five years of experience in the subject property type and market.
(The Special Servicer may rely on a certification of any bidder to the effect
that such bidder is not an Interested Person.) Such appraiser 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. (The Special Servicer shall not bid
with respect to a Defaulted Mortgage Loan or REO Property if the Master Servicer
has informed it that the Master Servicer intends to submit a bid.) Where any
Interested Person is among those bidding with respect to a Mortgage Loan or REO
Property, the Special Servicer shall require that all bids be submitted 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 or from an Interested Person other than the Special Servicer
constitutes a fair price for any such Mortgage Loan or REO Property, the Special
Servicer shall take into account (in addition to the results of any appraisal
described above and any appraisal that it may have obtained pursuant to Section
3.09(a)), 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 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 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 are received and the original bid of the Special Servicer
or any Affiliate is the highest of all bids received, then the bid of the
Special Servicer or such Affiliate shall be deemed to constitute a fair price.
(f) Subject to Sections 3.18(a) through 3.18(e) above, the Special Servicer
shall act on behalf of the Trustee in negotiating and taking any other action
necessary or appropriate in connection with the sale of any Defaulted Mortgage
Loan or REO Property, and the collection of all amounts payable in connection
therewith. In connection therewith, the Special Servicer may charge prospective
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 Certificate
Account. Any sale of a Defaulted Mortgage Loan or any REO Property shall be
final and
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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 changes in the REMIC Provisions made subsequent to the Startup
Day allow a sale for other consideration).
(h) The Special Servicer shall not be obligated by any of the foregoing
paragraphs of this Section 3.18 to accept the highest bid if the Special
Servicer determines, in accordance with the Servicing Standard, that rejection
of such bid would be in the best interests of the Certificateholders. In
addition, the Special Servicer may accept a lower bid 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.
The Master Servicer shall deliver to the Paying Agent for deposit in the
Distribution Account on each P&I Advance Date, without any right of
reimbursement therefor, an amount equal to the lesser of (i) the excess, if any,
of (A) aggregate amount of Prepayment Interest Shortfalls incurred in connection
with Principal Prepayments received during the most recently ended Collection
Period over (B) the aggregate amount of Prepayment Interest Excesses collected
in connection with Principal Prepayments received during such Collection Period,
and (ii) the total amount of all servicing compensation (excluding any amounts
paid to the Special Servicer as a Sub-Servicer) received by the Master Servicer
during such Collection Period.
SECTION 3.20. Modifications, Waivers, Amendments and Consents.
(a) Subject to Sections 3.20(b) through 3.20(g) below, the Master Servicer
or Special Servicer may, on behalf of the Trustee, agree to any modification,
waiver or amendment of any term of any Mortgage Loan that it is then required to
service and administer without the consent of the Trustee or any
Certificateholder.
(b) All modifications, waivers or amendments of any Mortgage Loan shall be
in writing and shall be considered and effected in accordance with the Servicing
Standard.
(c) Except as provided in Section 3.20(d) below, the Master Servicer or
Special Servicer, on behalf of the Trustee, shall not agree or consent to any
modification, waiver or amendment of any term of any Mortgage Loan if such
modification, waiver or amendment would:
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(i) affect the amount or timing of any related payment of principal,
interest or other amount (including Prepayment Premiums or Yield
Maintenance Charges, but excluding Penalty Interest and other amounts
payable as additional servicing compensation) payable thereunder;
(ii) affect the obligation of the related Mortgagor to pay a
Prepayment Premium or Yield Maintenance Charge or permit a Principal
Prepayment during any period in which the related Mortgage Note prohibits
Principal Prepayments;
(iii) except as expressly contemplated by the related Mortgage or
pursuant to Section 3.09(d), result 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 determined by an appraisal by an Independent
MAI-designated appraiser delivered to the Master Servicer or Special
Servicer, as the case may be, at the expense of the related Mortgagor and
upon which the Master Servicer or Special Servicer may conclusively rely)
of the property to be released; or
(iv) in the judgment of the Master Servicer or Special Servicer,
otherwise materially impair the security for such Mortgage Loan or reduce
the likelihood of timely payment of amounts due thereon.
Notwithstanding any provision of this Agreement to the contrary, neither
the Master Servicer nor Special Servicer shall consent to, make or permit (i)
any modification with respect to any Mortgage Loan that would change the
Mortgage Rate, reduce or increase the principal balance (except for reductions
resulting from actual payments of principal) or change the final maturity date
of such Mortgage Loan unless, with respect to a Specially Serviced Mortgage
Loan, both (A) the related Mortgagor is in default with respect to the Mortgage
Loan or, in the judgment of the Special Servicer, such default is reasonably
foreseeable and (B) in the sole good faith judgment of the Special Servicer,
such modification would increase the recovery on the Mortgage Loan to
Certificateholders on a present value basis (the relevant discounting of amounts
that will be distributable to Certificateholders to be performed at the related
Mortgage Rate) or (ii) any modification, waiver or amendment of any term of any
Mortgage Loan that would both (A) effect an exchange or reissuance of such
Mortgage Loan under Section 1001 of the Code (or final, temporary or proposed
Treasury regulations promulgated thereunder) and (B) cause the Trust Fund 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 under the
REMIC Provisions. If the Special Servicer is the Holder, or an Affiliate of the
Holder, of Certificates evidencing a majority of the Voting Rights allocated to
the Controlling Class, then the determination of the Special Servicer
contemplated by clause (i)(B) of the preceding sentence shall be evidenced by an
Officer's Certificate to such effect delivered to the Trustee, the Master
Servicer and the Sub-Servicers and describing in reasonable detail the basis for
the Special Servicer's determination.
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(d) Subject to Section 3.20(b) above and the last paragraph of Section
3.20(c) above, with respect to any Specially Serviced Mortgage Loan, the Special
Servicer may, on behalf of the Trustee, without the consent of the Trustee or
any Certificateholder (i) reduce the amounts owing under any Mortgage Loan by
forgiving principal and/or accrued interest, (ii) reduce the amount of the
Monthly Payment on any Mortgage Loan, including by way of a reduction in the
related Mortgage Rate, and/or (iii) forbear in the enforcement of any right
granted under any Mortgage Note or Mortgage. However, the Special Servicer will
not be permitted to extend the date on which any Balloon Payment is scheduled to
be due unless the Special Servicer has obtained an appraisal of the related
Mortgaged Property, performed by an Independent MAI-designated appraiser, in
connection with such extension, which appraisal supports the determination of
the Special Servicer contemplated by clause (i)(B) of the first sentence of the
last paragraph of Section 3.20(c). In no event shall the scheduled due date for
a Balloon Payment be extended for a period in excess of 36 months, and no single
extension shall exceed a period of twelve months.
(e) Any payment of interest that is deferred pursuant to any modification,
waiver or amendment permitted hereunder, 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 modification, waiver or
amendment so permit.
(f) The Master Servicer or Special Servicer may, as a condition to granting
any request by a Mortgagor for consent, modification, waiver or indulgence or
any other matter or thing, the granting of which is within its 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 (i) as additional servicing compensation, a reasonable or
customary fee for the additional services performed in connection with such
request, and (ii) any related costs and expenses incurred by it. In no event
shall the Master Servicer or Special Servicer be entitled to payment for such
fees or expenses unless such payment is collected from the related Mortgagor.
(g) The Master Servicer or Special Servicer shall notify the Master
Servicer (with respect to Specially Serviced Mortgage Loans) any Sub-Servicers
and the Trustee, in writing, of any modification, waiver or amendment of any
term of any Mortgage Loan (including fees charged the Mortgagor) and the date
thereof, and shall deliver to the Custodian for deposit in the related Mortgage
File, an original counterpart of the agreement relating to such modification,
waiver or amendment, promptly (and in any event within ten Business Days)
following the execution thereof.
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
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File, to the Special Servicer and shall use reasonable 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 reasonable
efforts to comply with the preceding sentence within five Business Days of the
occurrence of each related Servicing Transfer Event.
Upon determining that a Specially Serviced Mortgage Loan has become a
Corrected Mortgage Loan 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 five Business Days of the occurrence,
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 Custodian originals of documents included within
the definition of "Mortgage File" 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.
(c) On or before each Determination Date, the Special Servicer shall
deliver to the Master Servicer a statement in writing and in computer readable
format describing, on a loan-by-loan and property-by-property basis, (1) insofar
as it relates to Specially Serviced Mortgage Loans and REO Properties, the
information described in clauses (x) through (xiv) of Section 4.02(a) and,
insofar as it relates to the Special Servicer, the information described in
clauses (xxv) and (xxvi) of Section 4.02(a), (2) the amount of all payments,
Insurance Proceeds and Liquidation Proceeds received, and the amount of any
Realized Loss incurred, with respect to each Specially Serviced Mortgage Loan
during the related Collection Period, and the amount of all REO Revenues,
Insurance Proceeds and Liquidation Proceeds received, and the amount of any
Realized Loss incurred, with respect to each REO Property during the related
Collection Period, (3) the amount, purpose and date of all Servicing Advances
made by the Special Servicer with respect to each Specially Serviced Mortgage
Loan and REO Property during the related Collection Period, and (4) such
additional information relating to the Specially Serviced Mortgage Loans and REO
Properties as the Master Servicer reasonably requests to enable it to perform
its responsibilities under this Agreement. Notwithstanding the foregoing
provisions of this subsection (c), the Master Servicer shall maintain ongoing
payment records with respect to each of the Specially Serviced Mortgage Loans
and REO Properties and shall provide the Special Servicer with any information
reasonably available to the Master Servicer required by the Special Servicer to
perform its duties under this Agreement.
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SECTION 3.22. Sub-Servicing Agreements.
At such time, as a Mortgage Loan becomes a Specially serviced Mortgage
Loan, the obligations of Special Servicer, as Sub-Servicer, shall terminate, and
Special Servicer shall commence its duties as Special Servicer with respect
thereto. Upon the occurrence of such event, the Master Servicer shall have no
liability for the Special Servicer's actions in its capacity as Special
Servicer.
(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 Special Servicer contemplated by
Section 3.20 hereof without the consent of such Special Servicer, and (vi) does
not permit the Sub-Servicer any rights of indemnification that may be satisfied
out of assets of the Trust Fund. At the request of the Special Servicer or any
replacement thereof, the Master Servicer shall enter into a Sub-Servicing
Agreement with the Special Servicer, pursuant to which the Special Servicer,
acting as a Sub-Servicer, shall perform the obligations of the Master Servicer
pursuant to Section 3.12(a) and (b) hereof and shall receive compensation
calculated in the same manner as the Master Servicing Fee, but at the rate of
0.05% per annum. At such time as a Mortgage Loan becomes a Specially Serviced
Mortgage Loan, the obligations of Special Servicer, as Sub-Servicer, shall
terminate, and Special Servicer shall commence its duties as Special Servicer
with respect thereto. Upon the occurrence of such event, the Master Servicer
shall have no liability for the Special Servicer's actions in its capacity as
Special Servicer. If the Special Servicer does not wish to perform such
obligations, the Master Servicer shall offer the then-current Sub-Servicers the
option to perform such obligations for the same compensation under the same
terms. 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
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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 each shall
deliver to the Trustee and to each other 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 P&I Advances or
Servicing 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 P&I Advances or Servicing 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 3.03(d) and 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 (i) 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, and (ii) shall be an
approved conventional seller/servicer of mortgage loans for FHLMC or FNMA or a
HUD-Approved Servicer.
(c) The Master Servicer and the Special Servicer, for the benefit of the
Trustee and the Certificateholders, shall (at no expense to the Trustee, the
Certificateholders or the Trust 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 good faith business
judgment, would require were it the owner of the Mortgage Loans. Subject to the
terms of the related Sub-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
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and assumed its obligations hereunder or, in the case of the Special Servicer,
no replacement Special Servicer has been designated pursuant to Section 6.09,
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, 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 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.
SECTION 3.23. Representations and Warranties of Master Servicer and Special
Servicer.
(a) The Master Servicer, in such capacity, hereby represents and warrants
to the Trustee, for its own benefit and the benefit of the Certificateholders,
and to the Depositor and the Special Servicer, as of the Closing Date, that:
(i) The Master Servicer is a New York banking corporation, duly
incorporated, validly existing and in good standing under the laws of the
State of New York, and the Master Servicer is in compliance with the laws
of each State in which any Mortgaged Property is located to the extent
necessary to perform its obligations under this Agreement.
(ii) The execution and delivery of this Agreement by the Master
Servicer, and the performance and compliance with the terms of this
Agreement by the Master Servicer, will not violate the Master Servicer's
articles of incorporation or by-laws or constitute a default (or an event
which, with notice or lapse of time, or both, would constitute a default)
under, or result in the breach of, any material agreement or other
instrument to which it is a party or which is applicable to it or any of
its assets.
(iii) The 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.
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(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid, legal
and binding obligation of the Master Servicer, enforceable against the
Master Servicer in accordance with the terms hereof, subject to (A)
applicable bankruptcy, insolvency, reorganization, moratorium and other
laws affecting the enforcement of creditors' rights generally, and (B)
general principles of equity, regardless of whether such enforcement is
considered in a proceeding in equity or at law.
(v) The Master Servicer is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or demand
of any federal, state or local governmental or regulatory authority, which
violation, in the Master Servicer's good faith and reasonable judgment, is
likely to affect materially and adversely either the ability of the Master
Servicer to perform its obligations under this Agreement or the financial
condition of the Master Servicer.
(vi) No litigation is pending or, to the best of the Master Servicer's
knowledge, threatened, against the Master Servicer that would prohibit the
Master Servicer from entering into this Agreement or, in the Master
Servicer's good faith and reasonable judgment, is likely to materially and
adversely affect either the ability of the Master Servicer to perform its
obligations under this Agreement or the financial condition of the Master
Servicer.
(vii) Each officer, director, employee, consultant or advisor of the
Master Servicer with responsibilities concerning the servicing and
administration of Mortgage Loans is covered by errors and omissions
insurance in the amounts and with the coverage as, and to the extent,
required by Section 3.07(c). Neither the Master Servicer nor any of its
officers, directors, employees, consultant or advisor involved in the
servicing or administration of Mortgage Loans has been refused such
coverage or insurance.
(viii) The net worth of the Master Servicer (or, in the case of the
initial Master Servicer, the consolidated net worth thereof and of its
immediate parent), determined in accordance with generally accepted
accounting principles, is not less than $15,000,000.
(b) The Special Servicer, in such capacity, hereby represents and warrants
to the Trustee, for its own benefit and the benefit of the Certificateholders,
and to the Depositor and the Master Servicer, as of the Closing Date, that:
(i) The Special Servicer is a Maryland limited partnership, validly
existing and in good standing under the laws of the State of Maryland, and
the Special Servicer is in compliance with the laws of each State in which
any
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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
certificate of limited partnership or partnership agreement or constitute a
default (or an event which, with notice or lapse of time, or both, would
constitute a default) under, or result in the breach of, any material
agreement or other instrument to which it is a party or which is applicable
to it or any of its assets.
(iii) The Special Servicer has the full power and authority to enter
into and consummate all transactions contemplated by this Agreement, has
duly authorized the execution, delivery and performance of this Agreement,
and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid, legal
and binding obligation of the Special Servicer, enforceable against the
Special Servicer in accordance with the terms hereof, subject to (A)
applicable bankruptcy, insolvency, reorganization, moratorium and other
laws affecting the enforcement of creditors' rights generally, and (B)
general principles of equity, regardless of whether such enforcement is
considered in a proceeding in equity or at law.
(v) The Special Servicer is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or demand
of any federal, state or local governmental or regulatory authority, which
violation, in the Special Servicer's good faith and reasonable judgment, is
likely to affect materially and adversely either the ability of the Special
Servicer to perform its obligations under this Agreement or the financial
condition of the Special Servicer.
(vi) No litigation is pending or, to the best of the Special
Servicer's knowledge, threatened, against the Master Servicer that would
prohibit the Special Servicer from entering into this Agreement or, in the
Special Servicer's good faith and reasonable judgment, is likely to
materially and adversely affect either the ability of the Special Servicer
to perform its obligations under this Agreement or the financial condition
of the Special Servicer.
(vii) Each officer, director and employee of the general partner of
the Special Servicer and each consultant or advisor of the Special Servicer
with responsibilities concerning the servicing and administration of
Mortgage Loans 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 the officers,
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directors and employees of the general partner of the Special Servicer and
each consultant or advisor involved in the servicing or administration of
Mortgage Loans has been refused such coverage or insurance.
(c) The representations and warranties of the Master Servicer and the
Special Servicer, set forth in Sections 3.23(a) and (b), respectively, 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 give prompt written notice to the other parties.
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ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
SECTION 4.01. Distributions.
(a) On each Distribution Date, the Paying Agent shall (except as otherwise
provided in Section 9.01), based on information provided by the Master Servicer
and the Special Servicer, apply amounts on deposit in the Distribution Account,
after payment of amounts payable from the Distribution Account in accordance
with Section 3.05(b)(ii) through (vi), in each case to the extent of the
remaining portion of the Available Distribution Amount, in the following order
of priority:
(i) to distributions of interest to the Holders of the Senior
Certificates, in an amount equal to, and pro rata in accordance with, all
Distributable Certificate Interest in respect of each Class of Senior
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-1
Certificates, in an amount (not to exceed the Class Principal Balance of
the Class A-1 Certificates outstanding immediately prior to such
Distribution Date) equal to the entire Principal Distribution Amount for
such Distribution Date;
(iii) if the Class Principal Balance of the Class A-1 Certificates has
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 to the Holders of the Class A-1 Certificates pursuant to
clause (ii) above);
(iv) if the Class Principal Balances of the Class A-1 Certificates and
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 any
other Class of Certificates);
(v) to distributions to the Holders of the Class A-1 Certificates, the
Class A-2 Certificates and the Class A-3 Certificates, pro rata, in
accordance with the outstanding Certificate Principal Balances of such
Classes of Certificates in an amount equal to, and in reimbursement of, all
Realized Losses
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and Additional Trust Fund Expenses, if any, previously allocated to such
Classes of Certificates and not previously reimbursed;
(vi) to distributions of interest to the Holders of the Class B
Certificates in an amount equal to all Distributable Certificate Interest
in respect of such Class of Certificates for such Distribution Date and, to
the extent not previously paid, for all prior Distribution Dates;
(vii) if the Class Principal Balances of the Class A-1 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
Certificates, in an amount (not to exceed the Class Principal Balance of
the Class B Certificates outstanding immediately prior to such Distribution
Date) equal to the entire Principal Distribution Amount for such
Distribution Date (net of any portion thereof distributed on such
Distribution Date to the Holders of any other Class of Certificates
pursuant to clause (ii) above);
(viii) to distributions to the Holders of the Class B Certificates, in
an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to the Class B
Certificates and not previously reimbursed;
(ix) 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;
(x) if the Class Principal Balance of the Class B Certificates has
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 any other Class of Certificates);
(xi) to distributions to the Holders of the Class C Certificates, in
an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to the Class C
Certificates and not previously reimbursed;
(xii) to distributions of interest to the Holders of the Class D
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of the Class D Certificates for such Distribution Date and, to
the extent not previously paid, for all prior Distribution Dates;
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(xiii) if the Class Principal Balance of the Class C Certificates has
been reduced to zero, to distributions of principal to the Holders of the
Class D Certificates, in an amount (not to exceed the Class Principal
Balance of the Class D Certificates outstanding immediately prior to such
Distribution Date) equal to the entire Principal Distribution Amount for
such Distribution Date (net of any portion thereof distributed on such
Distribution Date to the Holders of any other Class of Certificates);
(xiv) to distributions to the Holders of the Class D Certificates, in
an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to the Class D
Certificates and not previously reimbursed;
(xv) to distributions of interest to the Holders of the Class E
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of the Class E Certificates for such Distribution Date and, to
the extent not previously paid, for all prior Distribution Dates;
(xvi) if the Class Principal Balance of the Class D Certificates has
been reduced to zero, to distributions of principal to the Holders of the
Class E Certificates, in an amount (not to exceed the Class Principal
Balance of the Class E Certificates outstanding immediately prior to such
Distribution Date) equal to the entire Principal Distribution Amount for
such Distribution Date (net of any portion thereof distributed on such
Distribution Date to the Holders of any other Class of Certificates);
(xvii) to distributions to the Holders of the Class E Certificates, in
an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to the Class E
Certificates and not previously reimbursed;
(xviii) to distributions of interest to the Holders of the Class F
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of the Class F Certificates for such Distribution Date and, to
the extent not previously paid, for all prior Distribution Dates;
(xix) if the Class Principal Balance of the Class E Certificates has
been reduced to zero, to distributions of principal to the Holders of the
Class F Certificates, in an amount (not to exceed the Class Principal
Balance of the Class F Certificates outstanding immediately prior to such
Distribution Date) equal to the entire Principal Distribution Amount for
such Distribution Date (net of any portion thereof distributed on such
Distribution Date to the Holders of any other Class of Certificates);
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(xx) to distributions to the Holders of the Class F Certificates, in
an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to the Class F
Certificates and not previously reimbursed;
(xxi) to distributions of interest to the Holders of the Class G
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of the Class G Certificates for such Distribution Date and, to
the extent not previously paid, for all prior Distribution Dates;
(xxii) if the Class Principal Balance of the Class F Certificates has
been reduced to zero, to distributions of principal to the Holders of the
Class G Certificates, in an amount (not to exceed the Class Principal
Balance of the Class G Certificates outstanding immediately prior to such
Distribution Date) equal to the entire Principal Distribution Amount for
such Distribution Date (net of any portion thereof distributed on such
Distribution Date to the Holders of any other Class of Certificates);
(xxiii) to distributions to the Holders of the Class G Certificates,
in an amount equal to, and in reimbursement of, all Realized Losses, if
any, previously allocated to the Class G Certificates and not previously
reimbursed; and
(xxiv) 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 (xxiii)
above.
Distributions in reimbursement of Realized Losses and Additional Trust Fund
Expenses previously allocated to a Class of Certificates shall not constitute
distributions of principal and shall not result in reduction of the related
Class Principal Balance.
(b) On each Distribution Date, the Paying Agent shall apply any amounts
distributed with respect to the REMIC I Regular Interests that represent
Prepayment Premiums and/or Yield Maintenance Charges (other than the Prepayment
Strip) actually collected on the Mortgage Loans and any REO Loans during the
related Collection Period and shall distribute the entire amount of such
withdrawal, as additional interest, as follows:
(i) With respect to any Prepayment Premiums:
(A) until the Certificate Principal Balance(s) of the Class A-1, Class
A-2, Class A-3, Class B, Class C and Class D Certificates have been reduced
to zero, to the Holders of the Class A-1, Class A-2, Class A-3, Class B,
Class C and Class D Certificates, in the case of each such Class in an
amount equal to the product of (1) the related Class Prepayment Percentage
for such Distribution Date, multiplied by (2) 25%
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of the total amount of each such Prepayment Premium collected, and to the
Holders of the Class IO-1 and Class IO-2 Certificates, in proportion to
their respective Notional Prepayment Percentages, the remaining amount of
each such Prepayment Premium; and
(B) after the Certificate Principal Balances of all Senior
Certificates have been reduced to zero, all such Prepayment Premiums shall
be distributed to the Holders of the Class IO-2 Certificates, whether or
not the Class Notional Amount thereof has previously been reduced to zero.
(ii) With respect to any Yield Maintenance Charge collected (other than the
Prepayment Strip):
(A) until the Certificate Principal Balances of the Class A-1, Class
A-2, Class A-3, Class B, Class C and Certificates Class D Certificates have
been reduced to zero, (x) to Holders of Class A-1, Class A-2, Class A-3,
Class B, Class C and Class D Certificates, in the case of each such Class,
an amount equal to the product of (1) a fraction (not greater than one and
not less than zero), the numerator of which is the respective Pass-Through
Rate of such Class, reduced by the sum of (i) the discount rate used in
calculating such Yield Maintenance Charge and (ii) the Adjustment Rate, and
the denominator of which is the Mortgage Rate of the applicable Mortgage
Loan, less such discount rate, multiplied by (2) the applicable Class
Prepayment Percentage, multiplied by (3) the amount of such Yield
Maintenance Charge, and (y) to the Holders of the Class IO-1 and Class IO-2
Certificates, in proportion to their respective Notional Prepayment
Percentages, an amount equal to the remaining portion of such Yield
Maintenance Charge for such Distribution Date; and
(B) after the Certificate Principal Balances of the Class A-1, Class
A-2, Class A-3, Class B, Class C and Class D Certificates have been reduced
to zero, to the Holders of the Class IO-2 Certificates, whether or not the
Class Notional Amount thereof has previously been reduced to zero.
(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 Paying Agent 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
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Certificate Register. The final distribution on each Certificate (determined
without regard to any possible future reimbursement of any Realized Loss or
Additional Trust Fund Expense previously allocated to such Certificate) will be
made in like manner, but only upon presentation and surrender of such
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to Certificateholders of such final distribution. Prior
to any termination of the Trust Fund pursuant to Section 9.01, any distribution
that is to be made with respect to a Certificate in reimbursement of a Realized
Loss or Additional Trust Fund Expense previously allocated thereto, which
reimbursement is to occur after the date on which such Certificate is
surrendered as contemplated by the preceding sentence, will be made by check
mailed to the address of the Certificateholder that surrendered such Certificate
as such address last appeared in the Certificate Register or to any other
address of which the Paying Agent was subsequently notified in writing. If such
check is returned to the Paying Agent, the Paying Agent, directly or through an
agent, shall take such reasonable steps to contact the related Holder and
deliver such check as it shall deem appropriate. Any funds in respect of a check
returned to the Paying Agent shall be set aside by the Paying Agent and held
uninvested in trust and credited to the account of the appropriate Holder. The
costs and expenses of locating the appropriate Holder and holding such funds
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 the Paying Agent has
not, after having taken such reasonable steps, located the related Holder by the
second anniversary of the initial sending of a check, the Paying Agent shall
distribute the unclaimed funds to the Class R-II Certificateholder.
(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 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 Trustee, the Paying Agent, the Certificate Registrar, the Depositor or the
Master Servicer shall have any responsibility therefor except as otherwise
provided by this Agreement or applicable law. The Master Servicer and the
Depositor shall perform their respective obligations under the Letter of
Representations among the Depositor, the Master Servicer and the initial
Depository, a copy of which Letter of Representations is attached hereto as
Exhibit F.
(e) The rights of the Certificateholders to receive distributions from the
proceeds of the Trust Fund in respect of the 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 Paying Agent
expects that the final distribution with respect to any Class of Certificates
(determined
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without regard to any possible future reimbursement of any Realized Loss or
Additional Trust Fund Expense previously allocated to such Class of
Certificates) will be made on the next Distribution Date, the Paying Agent
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 Paying Agent 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
Paying Agent 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 Paying Agent, directly or through an agent, shall take such
steps to contact the remaining non-tendering Certificateholders concerning the
surrender of their Certificates as it shall deem appropriate. The costs and
expenses of holding such funds in trust and of contacting such
Certificateholders following the first anniversary of the delivery of such
second notice to the non-tendering Certificateholders shall be paid out of such
funds. No interest shall accrue or be payable to any 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 270th day following delivery of
the second notice, the Paying Agent shall distribute to the Class R-II
Certificateholder all unclaimed funds and other assets which remain subject
thereto.
(g) Notwithstanding any other provision of this Agreement, the Paying Agent
shall comply with all federal withholding requirements respecting payments to
Certificateholders of interest or original issue discount that the Paying Agent
reasonably believes are applicable under the Code. The consent of
Certificateholders shall not be required for such withholding. If the Paying
Agent does withhold any amount from interest or original issue discount payments
or advances thereof to any Certificateholder pursuant to federal withholding
requirements, the Paying Agent shall indicate the amount withheld to such
Certificateholders.
(h) All distributions made in respect of the Class A-1 Certificates on each
Distribution Date pursuant to Section 4.01(a) or 9.01 shall be deemed to have
first been distributed from REMIC I to REMIC II in respect of REMIC I Regular
Interest T; all
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distributions made in respect of the Class A-2 Certificates on each Distribution
Date pursuant to Section 4.01(a) or 9.01 shall be deemed to have first been
distributed from REMIC I to REMIC II in respect of REMIC I Regular Interest U;
all distributions made in respect of the Class A-3 Certificates on each
Distribution Date pursuant to Section 4.01(a) or 9.01 shall be deemed to have
first been distributed from REMIC I to REMIC II in respect of REMIC I Regular
Interest V; all distributions made in respect of the Class B Certificates on
each Distribution Date pursuant to Section 4.01(a) or 9.01 shall be deemed to
have first been distributed from REMIC I to REMIC II in respect of REMIC I
Regular Interest W; all distributions made in respect of the Class C
Certificates on each Distribution Date pursuant to Section 4.01(a) or 9.01 shall
be deemed to have first been distributed from REMIC I to REMIC II in respect of
REMIC I Regular Interest X; all distributions made in respect of the Class D
Certificates on each Distribution Date pursuant to Section 4.01(a) or 9.01 shall
be deemed to have first been distributed from REMIC I to REMIC II in respect of
REMIC I Regular Interest Y; all distributions made in respect of the Class IO-1
Certificates on each Distribution Date pursuant to Section 4.01(a), 4.01(b) or
9.01 shall be deemed to have first been distributed from REMIC I to REMIC II in
respect of REMIC I Regular Interests T and U as follows: in the case of REMIC I
Regular Interest T, to the extent of one month's interest accrued at the rate of
1.74% per annum on the Uncertificated Principal Balance of REMIC I Regular
Interest T outstanding immediately prior to such Distribution Date and in the
case of REMIC I Regular Interest U, to the extent of one month's interest
accrued at the rate of 1.68% per annum on the Uncertificated Principal Balance
of REMIC I Regular Interest U outstanding immediately prior to such Distribution
Date; all distributions made in respect of the Class IO-2 Certificates on each
Distribution Date pursuant to Section 4.01(a), 4.01(b) or 9.01 shall be deemed
to have first been distributed from REMIC I to REMIC II in respect of REMIC I
Regular Interest V, W, X and Y as follows: in the case of REMIC I Regular
Interest V, to the extent of one month's interest accrued at the rate of 1.44%
on the Uncertificated Principal Balance of REMIC I Regular Interest V
outstanding immediately prior to such Distribution Date, in the case of REMIC I
Regular Interest W, to the extent of one month's interest accrued at the rate of
1.38% per annum on the Uncertificated Principal Balance of REMIC I Regular
Interest W outstanding immediately prior to such Distribution Date, in the case
of REMIC I Regular Interest X to the extent of one month's interest accrued at
the rate of 1.16% per annum on the Uncertificated Principal Balance of REMIC I
Regular Interest X outstanding immediately prior to such Distribution Date, and
in the case of REMIC I Regular Interest Y to the extent of one month's interest
accrued at the rate of 0.72% per annum on the Uncertificated Principal Balance
of REMIC I Regular Interest Y outstanding immediately prior to such Distribution
Date, in each case calculated on the basis of a 360-day year consisting of
twelve 30-day months; and all distributions made in respect of the Class E,
Class F and Class G Certificates on each Distribution Date pursuant to Section
4.01(a) or 9.01 shall be deemed to have first been distributed from REMIC I to
REMIC II in respect of REMIC I Regular Interest Z. In each case, if such
distribution on any such Class of Certificates was a distribution of interest,
of principal, of Prepayment Premiums or in reimbursement of previously allocated
Realized Losses and Additional Trust Fund Expenses in respect of such Class of
Certificates, then the corresponding distribution deemed to be made on the
related REMIC I Regular Interest pursuant to the preceding sentence shall be
deemed to also be a distribution of interest, of principal, of Prepayment
Premiums or in reimbursement
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of previously allocated Realized Losses and Additional Trust Fund Expenses, as
the case may be, in respect of such REMIC I Regular Interest.
SECTION 4.02. Statements to Certificateholders; Collection Reports.
(a) On each Distribution Date, the Paying Agent shall forward by mail to
the Trustee, the Depositor and all of the Holders of each Class of REMIC II
Regular Certificates a statement (a "Distribution Date Statement") as to the
distributions made on such Distribution Date, based on information provided to
it by the Master Servicer and the Special Servicer, setting forth:
(i) the amount of the distribution on such Distribution Date to the
Holders of such Class of REMIC II Regular Certificates in reduction of the
Class Principal Balance thereof;
(ii) the amount of the distribution on such Distribution Date to the
Holders of such Class of REMIC II Regular Certificates allocable to
Distributable Certificate Interest;
(iii) the amount of the distribution on such Distribution Date to the
Holders of such Class of REMIC II Regular Certificates allocable to
Prepayment Premiums and Yield Maintenance Charges;
(iv) the amount of the distribution on such Distribution Date to the
Holders of such Class of REMIC II Regular Certificates in reimbursement of
previously allocated Realized Losses and Additional Trust Fund Expenses;
(v) the Available Distribution Amount for such Distribution Date;
(vi) (a) the aggregate amount of P&I Advances made in respect of such
Distribution Date pursuant to Section 4.03(a), including, without
limitation, any amounts applied pursuant to Section 4.03(a)(ii), and the
aggregate amount of xxxxxxxxxxxx X&X Advances that had been outstanding at
the close of business on the related Determination Date and the aggregate
amount of interest accrued and payable to the Master Servicer in respect of
such xxxxxxxxxxxx X&X Advances in accordance with Section 4.03(d) as of the
close of business on the related Determination Date and (b) the aggregate
amount of Servicing Advances and Nonrecoverable Advances as of the close of
business on the related Determination Date;
(vii) the aggregate unpaid principal balance of the Mortgage Pool
outstanding as of the close of business on the related Determination Date;
(viii) the aggregate Stated Principal Balance of the Mortgage Pool
outstanding immediately before and immediately after such Distribution
Date;
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(ix) the number, aggregate principal balance, weighted average
remaining term to maturity and weighted average Mortgage Rate of the
Mortgage Loans as of the close of business on the related Determination
Date;
(x) the number, aggregate unpaid principal balance (as of the close of
business on the related Determination Date) and aggregate Stated Principal
Balance (immediately after such Distribution Date) of Mortgage Loans (A)
delinquent one month, (B) delinquent two months, (C) delinquent three or
more months, and (D) as to which foreclosure proceedings have been
commenced;
(xi) as to each Mortgage Loan referred to in the preceding clause (x)
above, (A) the loan number thereof, (B) the Stated Principal Balance
thereof immediately following such Distribution Date, (C) whether the
delinquency is in respect of its Balloon Payment, (D) whether a notice of
acceleration has been sent to the Mortgagor and, if so, the date of such
notice, (E) if a Phase I Environmental Assessment of the related Mortgaged
Property has been performed as contemplated by Section 3.09(c) and the
assessment is such that the Special Servicer cannot make the determination
set forth in clauses (A)(i) and (A)(ii) of the first sentence of Section
3.09(c), a brief description of the results of such Phase I Environmental
Assessment, and (F) a brief description of the status of any foreclosure
proceedings or any workout or loan modification negotiations with the
related Mortgagor;
(xii) with respect to any Mortgage Loan as to which a Liquidation
Event occurred during the related Collection Period (other than a payment
in full), (A) the loan number thereof, (B) the nature of the Liquidation
Event and, in the case of a Final Recovery Determination, a brief
description of the basis for such Final Recovery Determination, (C) the
aggregate of all Liquidation Proceeds and other amounts received in
connection with such Liquidation Event (separately identifying the portion
thereof allocable to distributions on the Certificates), and (D) the amount
of any Realized Loss in connection with such Liquidation Event;
(xiii) with respect to each REO Property included in the Trust Fund as
of the close of business on the related Determination Date, (A) the loan
number of the related Mortgage Loan, (B) the date of acquisition of such
REO Property by the Trust Fund, (C) the book value (within the meaning of
12 C.F.R. ss. 571.13) of such REO Property, (D) the aggregate of all REO
Revenues and other amounts received with respect to such REO Property
during the related Collection Period (separately identifying the portion
thereof allocable to distributions on the Certificates), (E) the Stated
Principal Balance of the related REO Loan immediately following such
Distribution Date, and (F) a brief description of the Special Servicer's
efforts since the last Distribution Date to stabilize the tenancy of such
REO Property, to repair and restore such REO
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Property to marketable condition and to sell such REO Property at its then
current fair market value;
(xiv) with respect to any REO Property included in the Trust Fund as
to which a Final Recovery Determination was made during the related
Collection Period, (A) the loan number of the related Mortgage Loan, (B) a
brief description of the basis for the Final Recovery Determination, (C)
the aggregate of all Liquidation Proceeds and other amounts received in
connection with such Final Recovery Determination (separately identifying
the portion thereof allocable to distributions on the Certificates), and
(D) the amount of any Realized Loss in respect of the related REO Loan in
connection with such Final Recovery Determination;
(xv) the Accrued Certificate Interest and Distributable Certificate
Interest in respect of such Class of REMIC II Regular Certificates for such
Distribution Date;
(xvi) any unpaid Distributable Certificate Interest in respect of such
Class of REMIC II Regular Certificates after giving effect to the
distributions made on such Distribution Date;
(xvii) the Pass-Through Rate for such Class of REMIC II Regular
Certificates for such Distribution Date;
(xviii) the Principal Distribution Amount for such Distribution Date,
separately identifying the respective components thereof (and, in the case
of any Principal Prepayment or other unscheduled collection of principal
received during the related Collection Period, the loan number for the
related Mortgage Loan and the amount of such prepayment or other collection
of principal);
(xix) the aggregate of all Realized Losses incurred during the related
Collection Period and, aggregated by type, all Additional Trust Fund
Expenses incurred during the related Collection Period;
(xx) the aggregate of all Realized Losses and Additional Trust Fund
Expenses that remain unallocated immediately following such Distribution
Date;
(xxi) the Class Principal Balance or Class Notional Amount, as
applicable, of each Class of REMIC II Regular Certificates outstanding
immediately before and immediately after such Distribution Date, separately
identifying any reduction therein due to the allocation of Realized Losses
and Additional Trust Fund Expenses on such Distribution Date;
(xxii) the Certificate Factor for each Class of REMIC II Regular
Certificates immediately following such Distribution Date;
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(xxiii) the aggregate amount of interest on P&I Advances paid to the
Master Servicer during the related Collection Period in accordance with
Section 4.03(d);
(xxiv) the aggregate amount of interest on Servicing Advances paid to
the Master Servicer and the Special Servicer during the related Collection
Period in accordance with Section 3.03(d);
(xxv) (A) the aggregate amount of servicing compensation (separately
identifying the amount of each category of compensation) paid to the Master
Servicer, the Special Servicer and, if payable directly out of the Trust
Fund without a reduction in the servicing compensation otherwise payable to
the Master Servicer or the Special Servicer, to each Sub-Servicer, during
the related Collection Period, and (B) such other information as the
Trustee is required by the Code or other applicable law to furnish to
enable Certificateholders to prepare their tax returns; and
(xxvi) a brief description of any waiver, modification or amendment of
the terms of any Mortgage Loan entered into by the Special Servicer
pursuant to Section 3.20 during the related Collection Period.
Each Distribution Date Statement shall be accompanied by the corresponding
Collection Report and Updated Mortgage Loan Schedule and, insofar as any of the
information to be provided pursuant to clauses (i) through (xxvi) above is
adequately reflected in such Collection Report or Updated Mortgage Loan
Schedule, such information need not be repeated in the Distribution Date
Statement provided that the Paying Agent shall only be obligated to deliver such
Collection Reports and Updated Mortgage Loan Schedules to the extent such
documents are delivered to it by the Master Servicer and Special Servicer in
accordance with Section 4.02(b).
In the case of information to be furnished pursuant to clauses (i) through
(iv) above, the amounts shall be expressed as a dollar amount in the aggregate
for all Certificates of each applicable Class and per Single Certificate. In the
case of information provided to the Paying Agent by the Master Servicer as a
basis for information to be furnished pursuant to clauses (x) through (xiv),
(xxv) and (xxvi) above, insofar as the underlying information is solely within
the control of the Special Servicer, the Master Servicer may, absent manifest
error, conclusively rely on the reports to be provided by the Special Servicer.
Within a reasonable period of time after the end of each calendar year, the
Paying Agent shall furnish to each Person who at any time during the calendar
year was a Holder of a REMIC II Regular Certificate a statement containing the
information set forth in clauses (i) through (iv) above as to the applicable
Class, aggregated for the portion of such calendar year that such Person was a
Holder. Such obligation of the Paying Agent shall be deemed to have been
satisfied to the extent that substantially comparable information shall be
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provided by the REMIC Administrator pursuant to any requirements of the Code as
from time to time are in force.
On each Distribution Date, the Paying Agent shall forward to the Depositor,
to each Rating Agency, to each Holder of a Residual Certificate, to Xxxxxxx
Xxxxx & Co. (at 101 Xxxxxx Street, 12th Floor, Jersey City, New Jersey
07302-3997, Attention: P&I Dept., or such other address as Xxxxxxx Xxxxx & Co.
may hereafter designate), to First Union (at One First Union Center, 000 Xxxxx
Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Attention: ________________, or
such other address as First Union may hereafter designate) and, in the case of
reports regarding the respective Classes of Book-Entry Certificates, to The
Trepp Group (at 000 Xxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, or
such other address as The Trepp Group may hereafter designate), a copy of the
reports forwarded to the Holders of the REMIC II Regular Certificates on such
Distribution Date and a statement setting forth the amounts, if any, actually
distributed with respect to the Class R-I Certificates on such Distribution
Date.
Within a reasonable period of time after the end of each calendar year, the
Paying Agent shall furnish to each Person who at any time during the calendar
year was a Holder of a Residual Certificate a statement containing the
information provided pursuant to the previous paragraph in respect of
distributions on each Class of Residual Certificates and pursuant to clauses (i)
through (iv) above in respect of distributions on each Class of REMIC II Regular
Certificates, aggregated for the portion of such calendar year that such Person
was a Holder. Such obligation of the Paying Agent shall be deemed to have been
satisfied to the extent that substantially comparable information shall be
provided by the Paying Agent pursuant to any requirements of the Code as from
time to time are in force.
Upon written request of the Depositor or either Underwriter, without
payment of any fee, and upon written request of any Certificateholders or any
other Person, together with payment of a fee specified by the Paying Agent, the
Paying Agent shall provide any statements, reports and/or information
contemplated by this Section 4.02(a) on computer diskette to such party (such
computer diskette and such statements, reports, and/or information thereon to
bear such appropriate disclaimers and qualifications as the Depositor and the
Paying Agent shall determine in their reasonable discretion).
The Paying Agent shall only be obligated to deliver the statements, reports
and information contemplated by this Section 4.02(a) to the extent it receives
the necessary underlying information from the Master Servicer and the Special
Servicer and shall not be liable for any failure to deliver any thereof on the
prescribed due dates, to the extent caused by failure to receive timely such
underlying information. Nothing herein shall obligate the Trustee or the Master
Servicer to violate any applicable law prohibiting disclosure of information
with respect to any Mortgagor and the failure of the Trustee, Master Servicer or
the Special Servicer to disseminate information for such reason shall not be a
breach hereof.
(b) Not later than the fourth Business Day following each Determination
Date, the Master Servicer or Special Servicer, as the case may be, shall furnish
to the Paying
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Agent and the Depositor (for receipt by each not later than such fourth Business
Day following each Determination Date), by electronic transmission (or in such
other form to which the Paying Agent or the Depositor, as the case may be, and
the Master Servicer may agree), with a hard copy of such transmitted information
to follow not later than the fifth Business Day following such Determination
Date, an accurate and complete Collection Report with respect to the related
Distribution Date containing the following information (but only if and to the
extent such information is not already adequately reflected in the corresponding
Updated Mortgage Loan Schedule delivered by the Master Servicer to the Paying
Agent pursuant to Section 3.12(c)):
(i) with respect to each Mortgage Loan (and any successor REO Loan)
that was included in the Trust Fund as of the commencement of the
Collection Period ending on such Determination Date, (A) the Master
Servicer loan number thereof, (B) the Mortgage Rate and Net Mortgage Rate
in effect as of the commencement of such Collection Period, (C) the Stated
Principal Balance outstanding immediately before and expected to be
outstanding immediately after the related Distribution Date, (D) the date
on which the final payment is scheduled to be due, (E) the amount of the
Monthly Payment due on the Due Date in such Collection Period, (F) all
related payment and/or collection activity since the preceding Collection
Report (or, in the case of the initial Collection Report, since the Closing
Date) relevant to the Paying Agent's calculations of amounts to be
distributed on the Certificates on the related Distribution Date and the
application of such amounts in accordance with Section 3.02(b) (or the
definition of "REO Loan"), (G) the delinquency status as of the end of such
Collection Period, (H) in the case of an REO Loan, the date of acquisition
of the related REO Property by the Trust Fund and the book value (within
the meaning of 12 C.F.R. ss.571.13) of such REO Property, (I) whether a
Liquidation Event occurred during such Collection Period and, if so, a
brief description thereof, and (J) the amount of any loss incurred during
such Collection Period;
(ii) the information to be provided to Certificateholders on the
related Distribution Date pursuant to clauses (v), (vi), (x)-(xiv),
(xxv)(A), and (xxvi) of Section 4.02(a);
(iii) the aggregate amount of the Prepayment Premiums and Yield
Maintenance Charges received during such Collection Period;
(iv) any information supplemental hereto with respect to the Mortgage
Loans that is reasonably required by the Paying Agent;
(v) such other information regarding the Mortgage Assets and any REO
Properties as the Paying Agent may reasonably request to perform its duties
hereunder; and
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(vi) to the extent the Depositor or any Certificateholder requests
additional information not required pursuant to the terms of this
Agreement, the Paying Agent may request such information in order to
deliver the same to the Depositor or such Certificateholder on the
Distribution Date following the Depositor's or such Certificateholder's
reasonable request therefor, to the extent such information is readily
available to the Master Servicer or Special Servicer without additional
cost or expense for which the Master Servicer or Special Servicer will not
be reimbursed.
Pursuant to its obligations set forth in Section 4.05, the Paying Agent may
conclusively rely on the Collection Reports and Updated Mortgage Loan Schedules
provided to it by the Master Servicer or the Special Servicer, and the Paying
Agent shall not be responsible to recompute, recalculate or verify the
information provided to it by the Master Servicer or the Special Servicer. In
the case of information to be furnished by the Master Servicer to the Trustee
pursuant to this Section 4.02(b), insofar as such information is solely within
the control of the Special Servicer, the Master Servicer shall have no
obligation to provide such information until it has received such information
from the Special Servicer and may, absent manifest error, conclusively rely on
the reports to be provided by the Special Servicer.
SECTION 4.03. P&I Advances.
(a) On or before 1:00 p.m., New York City time, on each P&I Advance Date,
the Master Servicer shall either (i), subject to Section 4.03(c) below, remit
from its own funds to the Paying Agent 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
Certificate Account for future distribution to Certificateholders in subsequent
months in discharge of any such obligation to make P&I Advances, or (iii) make
P&I Advances in the form of any combination of (i) and (ii) aggregating the
total amount of P&I Advances to be made. Any amounts held in the Certificate
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 Certificate Account on or before the next
succeeding Determination Date (to the extent not previously replaced through the
deposit of Late Collections of the delinquent principal and interest in respect
of which such P&I Advances were made). If the Master Servicer does not deposit
in the Distribution Account, on or before 4:00 p.m. New York City time, on any
P&I Advance Date, the full amount of P&I Advances, if any, required to be made
in respect of the related Distribution Date, then the provisions of Sections
7.01 and 7.02 shall apply.
(b) The aggregate amount of P&I Advances to be made by the
Master Servicer in respect of any Distribution Date shall, subject to Section
4.03(c) below, equal the aggregate of all Scheduled Payments (other than Balloon
Payments) and any Assumed Scheduled Payments, net of related Master Servicing
Fees, Special Servicing Fees, any Master Servicer Strip and any related
Principal Recovery Fees, due or deemed due, as the case may
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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, (i) 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, Master Servicer Strip, Special Servicing Fees and any related
Principal Recovery Fees) in the event of subsequent delinquencies thereon; (ii)
if it is determined that an Appraisal Reduction Amount exists with respect to
any Required Appraisal Loan, then, with respect to the Distribution Date
immediately following the date of such determination and with respect to each
subsequent Distribution Date for so long as such Appraisal Reduction Amount
exists, the Master Servicer will be required in the event of subsequent
delinquencies to advance in respect of such Mortgage Loan only an amount equal
to the product of (i) the amount of the P&I Advance that would otherwise be
required without regard to this sentence, multiplied by (ii) a fraction, the
numerator of which is equal to the Stated Principal Balance of such Mortgage
Loan, net of such Appraisal Reduction Amount, and the denominator of which is
equal to the Stated Principal Balance of such Mortgage Loan; and (iii) provided
further that, if the date on which any Balloon Payment is scheduled to be due on
any Mortgage Loan is extended by the Special Servicer in accordance with Section
3.20 and the Loan-to-Value Ratio for such Mortgage Loan at the time of such
extension is in excess of 100%, then (unless the Class A-1 Certificates, the
Class A-2 Certificates and the Class A-3 Certificates are collectively the
Controlling Class or such Mortgage Loan becomes a Required Appraisal Loan) the
interest portion of any P&I Advance that would otherwise be made in respect of
such Mortgage Loan during the extension period shall be reduced by an amount
equal to the product of (i) such interest portion, multiplied by (ii) a
fraction, the numerator of which is the excess, if any, of (A) the then
aggregate Stated Principal Balance of the Mortgage Pool, over (B) the then
aggregate of the Class Principal Balances of those Classes of REMIC II Regular
Certificates (other than the Class IO Certificates) with an earlier alphabetical
Class designation than the Controlling Class, and the denominator of which is
the then aggregate Stated Principal Balance of the Mortgage Pool.
(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 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
Officers' Certificate delivered to the Trustee and the Depositor on or before
the related P&I Advance Date, setting forth the basis
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for such determination, together with any other information, including
appraisals, related Mortgagor operating statements and financial statements,
budgets and rent rolls of the related Mortgaged Properties, engineers' reports,
environmental surveys and any similar reports that the Master Servicer may have
obtained consistent with the Servicing Standard and at the expense of the Trust
Fund, that support such determination by the Master Servicer.
(d) In connection with its recovery of any P&I Advance out of the
Certificate Account pursuant to Section 3.05(a), the Master Servicer shall be
entitled to pay itself, out of any amounts then on deposit in the Certificate
Account, interest at the Reimbursement Rate in effect from time to time, accrued
on the amount of such P&I Advance from the date made to but not including the
date of reimbursement. The Master Servicer shall reimburse itself for any
outstanding P&I Advance as soon as practicable after funds available for such
purpose are deposited in the Certificate Account.
SECTION 4.04. Allocation of Realized Losses and Additional Trust Fund
Expenses.
(a) On each Distribution Date, following the distributions to be made on
such date pursuant to Section 4.01, the Paying Agent shall allocate to the
respective Classes of REMIC II Regular Certificates as follows the aggregate of
all Realized Losses and Additional Trust Fund Expenses that were incurred at any
time following the Cut-off Date through the end of the related Collection
Period, and in any event that were not previously allocated pursuant to this
Section 4.04(a) on any prior Distribution Date, but only to the extent that (i)
the aggregate Certificate Principal Balance of the REMIC II Regular Certificates
as of such Distribution Date (after taking into account all of the distributions
made on such Distribution Date pursuant to Section 4.01), exceeds (ii) the
aggregate Stated Principal Balance of the Mortgage Pool to be outstanding
immediately following such Distribution Date: first, to the Class G
Certificates, until the remaining Class Principal Balance thereof has been
reduced to zero; second, to the Class F Certificates, until the remaining Class
Principal Balance thereof has been reduced to zero; third, to the Class E
Certificates, until the remaining Class Principal Balance thereof has been
reduced to zero; fourth, to the Class D Certificates, until the remaining Class
Principal Balance thereof has been reduced to zero; fifth, to the Class C
Certificates, until the remaining Class Principal Balance thereof has been
reduced to zero; sixth, to the Class B Certificates, until the remaining Class
Principal Balance thereof has been reduced to zero; and last, in pro rata
allocations to the Class A-3 Certificates, the Class A-2 Certificates and the
Class A-1 Certificates, until the remaining Class Principal Balance of each such
Class of Certificates has been reduced to zero. Any allocation of Realized
Losses and Additional Trust Fund Expenses to a Class of REMIC II Regular
Certificates shall be made by reducing the Class Principal Balance thereof by
the amount so allocated. All Realized Losses and Additional Trust Fund Expenses,
if any, allocated to a Class of REMIC II Regular Certificates shall be allocated
among the respective Certificates of such Class in proportion to the Percentage
Interests evidenced thereby. All Realized Losses and Additional Trust Fund
Expenses, if any, that have not been allocated to the REMIC II Regular
Certificates as of the Distribution Date on which the aggregate Certificate
Principal Balance of such Certificates has been reduced to zero, shall be deemed
allocated to the Class R-I Certificates.
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(b) Each Realized Loss and Additional Trust Fund Expense, if any, allocated
to the Class A-1 Certificates on any Distribution Date shall be deemed to have
first been allocated to REMIC I Regular Interest T with a corresponding
reduction in the Uncertificated Principal Balance of such REMIC I Regular
Interest; each Realized Loss and Additional Trust Fund Expense, if any,
allocated to the Class A-2 Certificates on any Distribution Date shall be deemed
to have first been allocated to REMIC I Regular Interest U with a corresponding
reduction in the Uncertificated Principal Balance of such REMIC I Regular
Interest; each Realized Loss and Additional Trust Fund Expense, if any,
allocated to the Class A-3 Certificates on any Distribution Date shall be deemed
to have first been allocated to REMIC I Regular Interest V with a corresponding
reduction in the Uncertificated Principal Balance of such REMIC I Regular
Interest; each Realized Loss and Additional Trust Fund Expense, if any,
allocated to the Class B Certificates on any Distribution Date shall be deemed
to have first been allocated to REMIC I Regular Interest W with a corresponding
reduction in the Uncertificated Principal Balance of such REMIC I Regular
Interest; each Realized Loss and Additional Trust Fund Expense, if any,
allocated to the Class C Certificates on any Distribution Date shall be deemed
to have first been allocated to REMIC I Regular Interest X with a corresponding
reduction in the Uncertificated Principal Balance of such REMIC I Regular
Interest; each Realized Loss and Additional Trust Fund Expense, if any,
allocated to the Class D Certificates on any Distribution Date shall be deemed
to have first been allocated to REMIC I Regular Interest Y with a corresponding
reduction in the Uncertificated Principal Balance of such REMIC I Regular
Interest; and each Realized Loss and Additional Trust Fund Expense, if any,
allocated to the Class E, Class F and/or Class G Certificates on any
Distribution Date shall, in the case of each such Class of Certificates, be
deemed to have first been allocated to REMIC I Regular Interest Z, with a
corresponding reduction in the Uncertificated Principal Balance of such REMIC I
Regular Interest.
SECTION 4.05. Calculations.
The Paying Agent shall, provided it receives the necessary information from
the Master Servicer and the Special Servicer, be responsible for performing all
calculations necessary in connection with the actual and deemed distributions to
be made pursuant to Section 4.01, Section 5.02 and Article X and the actual and
deemed allocations of Realized Losses and Additional Trust Fund Expenses to be
made pursuant to Section 4.04. The Paying Agent shall calculate the Available
Distribution Amount for each Distribution Date and shall allocate such amount
among Certificateholders in accordance with this Agreement, and the Paying Agent
shall have no obligation to recompute, recalculate or verify any information
provided to it by the Special Servicer or Master Servicer. The calculations by
the Paying Agent of such amounts 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
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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 X-0, X-0, X-0, X-0, X-0, X-0, A-7, X-0, X-0, X-00, X-00, X-00
xxx X-00; provided that any of the Certificates may be issued with appropriate
insertions, omissions, substitutions and variations, and may have imprinted or
otherwise reproduced thereon such legend or legends, not inconsistent with the
provisions of this Agreement, as may be required to comply with any law or with
rules or regulations pursuant thereto, or with the rules of any securities
market in which the Certificates are admitted to trading, or to conform to
general usage. The Certificates will be issuable in registered form only;
provided, however, that in accordance with Section 5.03 beneficial ownership
interests in the Registered Certificates shall initially be held and transferred
through the book-entry facilities of the Depository. The REMIC II Regular
Certificates will be issuable only in denominations corresponding to initial
Certificate Principal Balances or Certificate Notional Amounts, as the case may
be, as of the Closing Date of not less than $1,000 in the case of the Registered
Certificates, and not less than $250,000 in the case of the Class E, Class F and
Class G Certificates, and in each such case in integral multiples of $1 in
excess thereof. Each Class of Residual Certificates will be issuable only in
denominations representing Percentage Interests of not less than 10.0%.
(b) The Certificates shall be executed by manual or facsimile signature on
behalf of the Trustee by the Certificate Registrar hereunder by an authorized
signatory. Certificates bearing the manual or facsimile signatures of
individuals who were at any time the authorized officers of the Certificate
Registrar 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
Authenticating Agent 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.
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. Bankers Trust Company 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
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Certificate Registrar may appoint, by a written instrument delivered to the
Depositor, the Trustee, the Special Servicer and (if the Master Servicer is not
the Certificate Registrar) the Master Servicer, any other bank or trust company
to act as Certificate Registrar under such conditions as the predecessor
Certificate Registrar may prescribe, provided that the predecessor Certificate
Registrar shall not be relieved of any of its duties or responsibilities
hereunder by reason of such appointment. If the Master Servicer resigns or is
removed in accordance with the terms hereof, the Trustee shall immediately
succeed to its duties as Certificate Registrar. The Depositor, the Trustee, the
Master Servicer and the Special Servicer 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.
(b) No transfer of any Non-Registered Certificate shall be made unless that
transfer is made pursuant to an effective registration statement under the
Securities Act, and effective registration or qualification under applicable
state securities laws, or is made in a transaction that does not require such
registration or qualification. If such a transfer is to be made without
registration under the Securities Act (other than in connection with the initial
issuance thereof or the initial transfer thereof by the Depositor or 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 G-I hereto, and a
certificate from such Certificateholder's prospective transferee substantially
in the form attached as either Exhibit G-2 hereto or as Exhibit G-3 hereto; or
(ii) an Opinion of Counsel satisfactory to the Certificate Registrar 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 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 Non-Registered Certificates under
the Securities Act or any other securities law or to take any action not
otherwise required under this Agreement to permit the transfer of any
Non-Registered Certificate without registration or qualification. Any Holder of
a Non-Registered Certificate desiring to effect such a transfer shall, and upon
acquisition of such a Certificate shall be deemed to have agreed to, indemnify
the Trustee, the Certificate Registrar and the Depositor 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, Xxxxx plans and
collective investment funds and separate
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accounts in which such plans, accounts or arrangements are invested, that is
subject to ERISA or the Code (each, a "Plan"), or (B) to any Person who is
directly or indirectly purchasing such Subordinated Certificate or interest
therein on behalf of, as named fiduciary of, as trustee of, or with assets of a
Plan (including, without limitation, any insurance company using assets in its
general or separate account that may constitute "plan assets" of a Plan);
provided that (i) such a transfer may be made to an insurance company general
account with respect to any Class of Subordinated Certificates which is eligible
for exemptive relief under Section III of Prohibited Transaction Class Exemption
95-60 ("PTE 95-60"), provided that the proposed transferee certifies that the
conditions of Sections I, III and IV of PTE 95-60 are satisfied with respect to
such transfer, and (ii) such a transfer may be made with respect to a Class E,
Class F or Class G Certificate if the prospective transferee provides the
Certificate Registrar with a certification of facts and an Opinion of Counsel
(upon which the Certificate Registrar may conclusively rely) which establish to
the satisfaction of the Certificate Registrar that such transfer will not result
in a violation of Section 406 of ERISA or Section 4975 of the Code or result in
the imposition of an excise tax under Section 4975 of the Code. As a condition
to its registration of the transfer of a Subordinated Certificate, the
Certificate Registrar shall have the right to require the prospective transferee
of such Certificate, if it is not a Plan or Person described in clause (B) of
the preceding sentence, to execute a certification affidavit to that effect in
the form attached as Exhibit H hereto.
(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 Paying Agent under clause (ii)(A) below to
deliver payments to a Person other than such Person and to have irrevocably
authorized the Certificate Registrar under clause (ii)(B) below to negotiate the
terms of any mandatory sale and to execute all instruments of Transfer and to do
all other things necessary in connection with any such sale. The rights of each
Person acquiring any Ownership Interest in a Residual Certificate are expressly
subject to the following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall be a Permitted Transferee and a United States
Person and shall promptly notify the Master Servicer, the Paying Agent and
the Certificate Registrar of any change or impending change in its status
as a Permitted Transferee.
(B) In connection with any proposed Transfer of any Ownership Interest
in a Residual Certificate, the Certificate Registrar shall require delivery
to it, and 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 I-1 or J-1, as applicable (in either case, a
"Transfer Affidavit and Agreement"), from the proposed Transferee, in form
and substance satisfactory to the Certificate Registrar, and upon which the
Certificate Registrar may, in the absence of actual knowledge by a
Responsible Officer of either the
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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 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 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 I-2 or J-2, as applicable, 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 an Ownership Interest in such
Certificate, agrees to give the Master Servicer 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 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
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such Certificate to the Holder thereof or for taking any other action with
respect to such Holder under the provisions of this Agreement.
(B) If any purported Transferee shall become a Holder of a Residual
Certificate in violation of the restrictions in this Section 5.02(d) and to the
extent that the retroactive restoration of the rights of the Holder of such
Residual Certificate as described in clause (ii)(A) above shall be invalid,
illegal or unenforceable, then the Certificate Registrar shall have the right,
without notice to the Holder or any prior Holder of such Residual Certificate,
to sell such Residual Certificate to a purchaser selected by the REMIC
Administrator on such terms as the Certificate Registrar may choose. Such
purported Transferee shall promptly endorse and deliver such Residual
Certificate in accordance with the instructions of the Certificate Registrar.
Such purchaser may be the Certificate Registrar itself or any Affiliate of the
Certificate Registrar. The proceeds of such sale, net of the commissions (which
may include commissions payable to the Certificate Registrar or its Affiliates),
expenses and taxes due, if any, will be remitted by the Paying Agent to such
purported Transferee. The terms and conditions of any sale under this clause
(ii)(B) shall be determined in the sole discretion of the Certificate Registrar,
and the Certificate Registrar shall not be liable to any Person having an
Ownership Interest in a Residual Certificate as a result of its exercise of such
discretion.
(iii) The Certificate Registrar shall make available to the Internal
Revenue Service and to those Persons specified by the REMIC Provisions all
information necessary to compute any tax imposed (A) as a result of the Transfer
of an Ownership Interest in a Residual Certificate to any Person who is 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
the Master Servicer and the Special Servicer shall furnish to the Certificate
Registrar all information in its possession necessary for the Certificate
Registrar to discharge such obligation. The Person holding such Ownership
Interest shall be responsible for the reasonable compensation of the Certificate
Registrar 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 Certificate Registrar and the Master Servicer the
following:
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(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 downgrade its then-current rating of any Class
of Certificates; and
(B) an Opinion of Counsel, in form and substance satisfactory to the
Certificate Registrar and the Master Servicer, 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 Trust or the Trust Fund),
to the effect that doing so will not cause either of REMIC I or REMIC II to
(x) cease to qualify as a REMIC or (y) be subject to an entity-level tax
caused by the Transfer of any Residual Certificate to a Person which is not
a Permitted Transferee, or cause a Person other than the prospective
Transferee to be subject to a REMIC-related tax caused by the Transfer of a
Residual Certificate to a Person that is not a Permitted Transferee.
(e) 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 Certificate Registrar
shall execute and the Authenticating Agent 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.
(f) At the option of any Holder, its Certificates may be exchanged for
other Certificates of authorized denominations of the same Class of a like
aggregate Percentage Interest, upon surrender of the Certificates to be
exchanged at the offices of the Certificate Registrar maintained for such
purpose. Whenever any Certificates are so surrendered for exchange, the
Certificate Registrar shall execute and the Authenticating Agent shall
authenticate and deliver the Certificates which the Certificateholder making the
exchange is entitled to receive.
(g) Every Certificate presented or surrendered for transfer or exchange
shall (if so required by the Certificate Registrar) be duly endorsed by, or be
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder thereof or his attorney duly
authorized in writing.
(h) No service charge shall be imposed for any transfer or exchange of
Certificates, but the Certificate Registrar may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any transfer or exchange of Certificates.
(i) 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.
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(j) Upon request, the Certificate Registrar shall provide to the Master
Servicer, the Special Servicer, the Depositor and the Trustee notice of each
transfer of a Certificate and shall provide to each such Person with an updated
copy of the Certificate Register.
SECTION 5.03. Book-Entry Certificates.
(a) Each Class of Registered Certificates shall initially be issued as one
or more Certificates registered in the name of the Depository or its nominee
and, except as provided in Section 5.03(c) below, transfer of such Certificates
may not be registered by the Certificate Registrar unless such transfer is to a
successor Depository that agrees to hold such Certificates for the respective
Certificate Owners with Ownership Interests therein. Such Certificate Owners
shall hold and transfer their respective Ownership Interests in and to such
Certificates through the book-entry facilities of the Depository and, except as
provided in Section 5.03(c) below, shall not be entitled to definitive, fully
registered 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 Trustee, the Master Servicer, the Special Servicer, the Depositor
and the Certificate Registrar may for all purposes, including the making of
payments due on the Book-Entry Certificates, deal with the Depository as the
authorized representative of the Certificate Owners with respect to such
Certificates for the purposes of exercising the rights of Certificateholders
hereunder. The rights of Certificate Owners with respect to the Book-Entry
Certificates shall be limited to those established by law and agreements between
such Certificate Owners and the Depository Participants and brokerage firms
representing such Certificate Owners. Multiple requests and directions from, and
votes of, the Depository as Holder of the Book-Entry Certificates with respect
to any particular matter shall not be deemed inconsistent if they are made with
respect to different Certificate Owners. The Trustee may establish a reasonable
record date in connection with solicitations of consents from or voting by
Certificateholders and shall give notice to the Depository of such record date.
(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 a Class of the
Book-Entry Certificates, and (B) the Depositor is unable to locate a qualified
successor, or (ii) the Depositor at its option advises the Trustee and the
Certificate Registrar in writing that it elects to terminate the book-entry
system through the Depository with respect to a Class of Book-Entry
Certificates, the Certificate Registrar shall notify all affected Certificate
Owners, through the Depository, of the occurrence of any such event and of the
availability of Definitive Certificates to such Certificate Owners requesting
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the same. Upon surrender to the Certificate Registrar of the Book-Entry
Certificates of any Class thereof by the Depository, accompanied by registration
instructions from the Depository for registration of transfer, the Certificate
Registrar shall execute, at the Depositor's expense, and the Authenticating
Agent shall authenticate and deliver, the Definitive Certificates in respect of
such Class to the Certificate Owners identified in such instructions. The
Depositor shall provide the Certificate Registrar with an adequate inventory of
Definitive Certificates. None of the Depositor, the Master Servicer, the Special
Servicer, 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 Class of Registered
Certificates, the registered holders of such Definitive Certificates shall be
recognized as Certificateholders hereunder and, accordingly, shall be entitled
directly to receive payments on, to exercise Voting Rights with respect to, and
to transfer and exchange such Definitive Certificates.
SECTION 5.04. Mutilated, Destroyed, Lost or Stolen Certificates.
If (i) any mutilated Certificate is surrendered to the Certificate
Registrar, or the Certificate Registrar receives evidence to its satisfaction of
the destruction, loss or theft of any Certificate, and (ii) there is delivered
to the Trustee and the Certificate Registrar such security or indemnity as may
be required by them to save each of them harmless, then, in the absence of
actual notice to the Trustee or the Certificate Registrar that such Certificate
has been acquired by a bona fide purchaser, the Certificate Registrar shall
execute and the Authenticating Agent shall authenticate and deliver, in exchange
for or in lieu of any such mutilated, destroyed, lost or stolen Certificate, a
new Certificate of 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 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
Trustee, the Certificate Registrar or any agent of any of them shall be affected
by notice to the contrary.
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ARTICLE VI
THE DEPOSITOR, THE MASTER SERVICER AND THE SPECIAL SERVICER
SECTION 6.01. Liability of Depositor, Master Servicer and Special Servicer.
The Depositor, the Master Servicer and the Special Servicer 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
and the Special Servicer herein.
SECTION 6.02. Merger, Consolidation or Conversion of Depositor or Master
Servicer or Special Servicer.
Subject to the following paragraph, the Depositor, the Master Servicer and
the Special Servicer shall each keep in full effect its existence, rights and
franchises as a corporation under the laws of the jurisdiction of its
incorporation, and each will obtain and preserve its qualification to do
business as a foreign corporation 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 or the Special Servicer 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 or the Special
Servicer shall be a party, or any Person succeeding to the business of the
Depositor, the Master Servicer or the Special Servicer, shall be the successor
of the Depositor, the Master Servicer or the Special Servicer, 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 (i)
the succession is approved by the Trustee (whose approval shall not be
unreasonably withheld), (ii) as evidenced in writing by both Rating Agencies,
such succession will not adversely affect the rating assigned by either Rating
Agency to any Class of Certificates and (iii) in the case of a successor or
surviving Person to the Master Servicer, such successor or surviving Person
shall have a net worth (or, in the case of the initial Master Servicer, such
successor or surviving Person and its immediate parent shall have a consolidated
net worth) of not less than $15,000,000.
SECTION 6.03. Limitation on Liability of Depositor, Master Servicer and
Special Servicer.
None of the Depositor, the Master Servicer or the Special
Servicer 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 or
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the Special Servicer 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 obligations or duties hereunder.
The Depositor, the Master Servicer, the Special Servicer and any director,
officer, employee or agent of the Depositor, the Master Servicer or the Special
Servicer 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 and any
director, officer, employee or agent of the Depositor, the Master Servicer or
the Special Servicer 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 by such party
without right of reimbursement pursuant to the terms hereof; (ii) incurred in
connection with any breach of a representation, warranty or covenant made
herein; or (iii) incurred by reason of misfeasance, bad faith or negligence in
the performance of obligations or duties hereunder. None of the Depositor, the
Master Servicer or the Special Servicer 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, unless it is specifically required
hereunder to bear the costs of such legal action, in its opinion does not
involve it in any ultimate expense or liability; provided, however, that the
Depositor, the Master Servicer or the Special Servicer may in its discretion
undertake any such action which it may deem necessary or desirable with respect
to the enforcement and/or protection of the rights and duties of the parties
hereto and the interests of the Certificateholders hereunder. In such event, the
legal expenses and costs of such action, and any liability resulting therefrom,
shall be expenses, costs and liabilities of the Trust Fund, and the Depositor,
the Master Servicer and the Special Servicer shall be entitled to be reimbursed
therefor from the Certificate Account as provided in Section 3.05. In no event
shall the Master Servicer or the Special Servicer be liable or responsible for
any action taken or omitted to be taken by the other of them or by the
Depositor, the Trustee or any Certificateholder, subject to the provisions of
the last paragraph of Section 8.05.
SECTION 6.04. Master Servicer and the Special Servicer Not to Resign.
Neither the Master Servicer nor, subject to Section 6.09, the Special
Servicer 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 or the Special Servicer, as the case may be, so causing such a conflict
being of a type and nature carried on by the Master Servicer or the Special
Servicer, as the case may be, at the date of this Agreement. Any such
determination permitting the resignation of the Master Servicer or the Special
Servicer, as applicable, shall be evidenced by an Opinion of Counsel to such
effect which shall be delivered to the Trustee. Unless applicable law requires
the Master Servicer's or Special Servicer's resignation to become effective
immediately, no such resignation shall become effective until the Trustee or
other
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successor shall have assumed the responsibilities and obligations of the
resigning party in accordance with Section 7.02 hereof. Notwithstanding the
foregoing, and for so long as applicable law or regulation prohibits the initial
Special Servicer from obligating itself to act as Special Servicer hereunder for
more than five years, the initial Special Servicer (if it has not previously
been replaced) may resign, effective as of any anniversary of the Closing Date
that is evenly divisible by five, provided that it has delivered to the Trustee,
not later than the 365th day prior to such anniversary, written notice of its
intention to resign together with an Opinion of Counsel to the effect that
applicable law or regulation then contains such prohibition.
Consistent with the foregoing, neither the Master Servicer nor the Special
Servicer shall, except as expressly provided herein, assign or transfer any of
its rights, benefits or privileges hereunder to any other Person, or, except as
provided in Sections 3.22 and 4.06, delegate to or subcontract with, or
authorize or appoint any other Person to perform any of the duties, covenants or
obligations to be performed by it hereunder. If, pursuant to any provision
hereof, the duties of the Master Servicer or the Special Servicer are
transferred to a successor thereto, the entire amount of compensation payable to
the Master Servicer or the Special Servicer, as the case may be, that accrues
pursuant hereto from and after the date of such transfer shall be payable to
such successor.
SECTION 6.05. Rights of Depositor and Trustee in Respect of Master Servicer
and the Special Servicer.
The Master Servicer and the Special Servicer shall each afford the
Depositor and the Trustee, upon reasonable notice, during normal business hours
access to all records maintained thereby in respect of its rights and
obligations hereunder and access to officers thereof responsible for such
obligations. Upon reasonable request, the Master Servicer and the Special
Servicer shall each furnish the Depositor and the Trustee with its most recent
financial statements and such other information as it possesses, and which it is
not prohibited by applicable law or contract from disclosing, regarding its
business, affairs, property and condition, financial or otherwise, except to the
extent such information constitutes proprietary information or is subject to a
privilege under applicable law. The Depositor may, but is not obligated to,
enforce the obligations of the Master Servicer and the Special Servicer
hereunder and may, but is not obligated to, perform, or cause a designee to
perform, any defaulted obligation of the Master Servicer or Special Servicer
hereunder or exercise the rights of the Master Servicer and the Special Servicer
hereunder; provided, however, that neither the Master Servicer nor the Special
Servicer shall be relieved of any of its obligations hereunder by virtue of such
performance by the Depositor or its designee and, further provided, that the
Depositor may not exercise any right pursuant to Section 7.01 to terminate the
Master Servicer or the Special Servicer as a party to this Agreement. The
Depositor shall not have any responsibility or liability for any action or
failure to act by the Master Servicer or the Special Servicer and is not
obligated to supervise the performance of the Master Servicer or the Special
Servicer under this Agreement or otherwise.
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SECTION 6.06. Depositor, Master Servicer and Special Servicer to Cooperate
with Trustee.
The Depositor, the Master Servicer and the Special Servicer shall each
furnish such reports, certifications and information as are reasonably requested
by the Trustee in order to enable it to perform its duties hereunder.
SECTION 6.07. Depositor, Special Servicer and Trustee to Cooperate with
Master Servicer.
The Depositor, the Special Servicer and the Trustee shall each furnish such
reports, certifications and information as are reasonably requested by the
Master Servicer in order to enable it to perform its duties hereunder.
SECTION 6.08. Depositor, Master Servicer and Trustee to Cooperate with
Special Servicer.
The Depositor, the Master Servicer and the Trustee shall each furnish such
reports, certifications and information as are reasonably requested by the
Special Servicer in order to enable it to perform its duties hereunder.
SECTION 6.09. Designation of Special Servicer by the Controlling Class.
The Holder or Holders of the Certificates evidencing a
majority of the Voting Rights allocated to the Controlling Class may at any time
and from time to time designate a Person to serve as Special Servicer hereunder
and to replace any existing Special Servicer or any Special Servicer that has
resigned or otherwise ceased to serve as Special Servicer. Such Holder or
Holders shall so designate a Person to so serve by the delivery to the Trustee,
the Master Servicer and the existing Special Servicer of a written notice
stating such designation. The Trustee shall, promptly after receiving any such
notice, deliver to the Rating Agencies an executed Notice and Acknowledgment in
the form attached hereto as Exhibit K-1. The designated Person shall become the
Special Servicer on the earlier of (a) the date that the Trustee shall have
received written confirmation from both Rating Agencies that the appointment of
such Person will not result in the qualification, downgrading or withdrawal of
the rating or ratings assigned to one or more Classes of the Certificates, or
(b) provided that each Rating Agency has returned to the Trustee a copy of such
Notice and Acknowledgment signed by such Rating Agency, the 45th day after the
delivery of such Notice and Acknowledgment to the Rating Agencies if, within
such period of 45 days, the Trustee shall not have received a written notice
from either of the Rating Agencies stating that if the designated Person were to
serve as Special Servicer hereunder, then the rating or ratings of one or more
Classes of the Certificates would be qualified, downgraded or withdrawn. The
appointment of such designated Person as Special Servicer shall also be subject
to receipt by the Trustee of (1) an Acknowledgment of Proposed Special Servicer
in the form attached hereto as Exhibit K-2, executed by the designated Person
and (ii) an Opinion of Counsel (at the expense of the Person designated to
become the Special Servicer) to the effect that the designation of such Person
to serve as Special Servicer is in compliance with this Section 6.09
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and all other applicable provisions of this Agreement, that upon the execution
and delivery of the Acknowledgment of Proposed Special Servicer the designated
Person shall be bound by the terms of this Agreement and that this Agreement
shall be enforceable against the designated Person in accordance with its terms.
Any existing Special Servicer shall be deemed to have resigned simultaneously
with such designated Person's becoming the Special Servicer hereunder; provided,
however, that the resigning Special Servicer shall continue to be entitled to
receive all amounts accrued or owing to it under this Agreement on or prior to
the effective date of such resignation, whether in respect of Servicing Advances
or otherwise, and it shall continue to be entitled to the benefits of Section
6.03 notwithstanding any such resignation. Such resigning Special Servicer shall
cooperate with the Trustee and the replacement Special Servicer in effecting the
termination of the resigning Special Servicer's responsibilities and rights
hereunder, including, without limitation, the transfer within two Business Days
to the replacement Special Servicer for administration by it of all cash amounts
that shall at the time be or should have been credited by the Special Servicer
to the REO Account or delivered to the Master Servicer or that are thereafter
received with respect to Specially Serviced Mortgage Loans and REO Properties.
SECTION 6.10. 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 good faith judgment, violate the Servicing Standard, and (ii) if
taken, might nonetheless, in the Master Servicer's or the Special Servicer's
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 6.10, (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, and (c)
describes in reasonable detail the action that the Master Servicer or the
Special Servicer 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 such instructions for response as the Trustee shall reasonably
determine. If at any time Certificateholders holding greater than 50% of the
Voting 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) shall have consented in writing to the
proposal described in the written notice, and if the Master Servicer or the
Special Servicer shall act as proposed in the written notice,
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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 Certificate
Account, or to deposit into, or remit to the Distribution Account, any
amount (other than a P&I Advance) required to be so deposited or
distributed by it under this Agreement; or
(ii) any failure by the Special Servicer to deposit into the REO
Account or to deposit into, or to remit to the Master Servicer for deposit
into, the Certificate Account any amount required to be so deposited or
remitted under this Agreement, provided, however, that any such failure
shall not be an Event of Default if (A) remedied within three days and (B)
such a failure has not occurred more than twice within the preceding twelve
months; or
(iii) any failure on the part of the Master Servicer or the Special
Servicer duly to observe or perform in any material respect any other of
the covenants or agreements 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 after the date on which
written notice of such failure, requiring the same to be remedied, shall
have been given to the Master Servicer and the Special Servicer 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
(iv) 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
(v) a decree or order of a court or agency or supervisory authority
having jurisdiction in the premises in an involuntary case under any
present or future federal or state bankruptcy, insolvency or similar law
for the
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appointment of a conservator, receiver, liquidator, trustee or similar
official in any bankruptcy, insolvency, readjustment of debt, marshaling of
assets and liabilities or similar proceedings, or for the winding-up or
liquidation of its affairs, shall have been entered against the Master
Servicer or the Special Servicer and such decree or order shall have
remained in force undischarged or unstayed for a period of 60 days; or
(vi) the Master Servicer or the Special Servicer shall consent to the
appointment of a conservator, receiver, liquidator, trustee or similar
official in any bankruptcy, insolvency, readjustment of debt, marshaling 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
(vii) the Master Servicer or the Special Servicer shall admit in
writing its inability to pay its debts generally as they become due, file a
petition to take advantage of any applicable bankruptcy, insolvency or
reorganization statute, make an assignment for the benefit of its
creditors, voluntarily suspend payment of its obligations, or take any
corporate action in furtherance of the foregoing; or
(viii) the net worth of the Master Servicer (or, in the case of the
initial Master Servicer, the consolidated net worth thereof and of its
immediate parent), determined in accordance with generally accepted
accounting principles, shall decline to less than $15,000,000; or
(ix) the Trustee shall have received a notice from either Rating
Agency to the effect that the Master Servicer or Special Servicer is no
longer acceptable to such Rating Agency to act in such capacity and the
Trustee shall not have received a subsequent notice from such Rating Agency
(within 90 days of receipt of the first notice) indicating anything to the
contrary (and upon the 91st day the provisions of Section 7.01(b) shall
apply); or
(x) the Master Servicer shall fail to remit to the Paying Agent 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, which failure
continues unremedied until 4:00 p.m. New York City time on the next
Business Day succeeding such P&I Advance Date.
When a single entity acts as the Master Servicer and the Special Servicer, an
Event of Default in one capacity shall constitute an Event of Default in the
other capacity.
(b) If any Event of Default described in clauses (i) - (viii) of subsection
(a) above shall occur with respect to the Master Servicer or the Special
Servicer (in either case, for purposes of this Section 7.01(b), the "Defaulting
Party") and shall be continuing, then, and in each and every such case, so long
as such Event of Default shall not have been remedied,
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the Trustee may, and at the written direction of the Holders of Certificates
entitled to at least 25% of the Voting Rights, the Trustee shall, by notice in
writing to the Defaulting Party (with a copy of such notice to each other party
hereto) and the Rating Agencies terminate all of the rights and obligations (but
not the liabilities for actions and omissions occurring prior thereto) of the
Defaulting Party under this Agreement and in and to the Trust Fund, other than
its rights as a Certificateholder hereunder. If an Event of Default described in
clause (ix) or (x) of subsection (a) above shall occur with respect to the
Master Servicer or, if applicable, the Special Servicer (in either case, under
such circumstances, for purposes of this Section 7.01(b), the "Defaulting
Party"), the Trustee shall, by notice in writing (to be sent immediately by
facsimile transmission) to the Defaulting Party (with a copy of such notice to
each other party hereto), terminate all of the rights and obligations (but not
the liabilities for actions and omissions occurring prior thereto) of the
Defaulting Party under this Agreement and in and to the Trust Fund, other than
its rights, if any, as a Certificateholder hereunder. From and after the receipt
by the Defaulting Party of such written notice of termination, all authority and
power of the Defaulting Party under this Agreement, whether with respect to the
Certificates (other than as a holder of any Certificate) or the Mortgage Loans
or otherwise, shall pass to and be vested in the Trustee pursuant to and under
this Section, and, without limitation, the Trustee is hereby authorized and
empowered to execute and deliver, on behalf of and at the expense of the
Defaulting Party, as attorney-in-fact or otherwise, any and all documents and
other instruments, and to do or accomplish all other acts or things necessary or
appropriate to effect the purposes of such notice of termination, whether to
complete the transfer and endorsement or assignment of the Mortgage Loans and
related documents, or otherwise. The Master Servicer and the Special Servicer
each agree that, if it is terminated pursuant to this Section 7.01(b), it shall
promptly (and in any event no later than ten Business Days subsequent to its
receipt of the notice of termination) provide the Trustee with all documents and
records, including those in electronic form, 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, (i) the
immediate transfer to the Trustee or a successor Master Servicer for
administration by it of all cash amounts that shall at the time be or should
have been credited by the Master Servicer to the Certificate Account, the
Distribution Account or a Servicing Account (if the Master Servicer is the
Defaulting Party) or that are thereafter received by or on behalf of it with
respect to any Mortgage Loan or (ii) the transfer within two Business Days to
the Trustee or a successor Special Servicer for administration by it of all cash
amounts that shall at the time be or should have been credited by the Special
Servicer to the REO Account, the Certificate Account or a Servicing Account or
delivered to the Master Servicer (if the Special Servicer is the Defaulting
Party) or that are thereafter 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 entitled to receive all amounts accrued or owing to it under this
Agreement on or prior to the date of such termination, whether in respect of
Advances or otherwise, and it shall continue to be entitled to the benefits of
Section 6.03 notwithstanding any such termination). Any cost 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
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Defaulting Party. For purposes of this Section 7.01, the Trustee shall not be
deemed to have knowledge of an Event of Default described in clauses (i)-(x) of
subsection (a) above unless a Responsible Officer of the Trustee assigned to and
working in the Trustee's Corporate Trust Division has actual knowledge thereof
or unless notice of any event which is in fact such an Event of Default is
received by the Trustee and such notice references the Certificates, the Trust
Fund or this Agreement.
SECTION 7.02. Trustee to Act; Appointment of Successor.
On and after the time the Master Servicer or the Special Servicer resigns
pursuant to 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
or the Special Servicer, as the case may be, in its capacity as such under this
Agreement and the transactions set forth or provided for herein and shall have
(and the former Master Servicer or the Special Servicer, as the case may be,
shall cease to have) all the responsibilities, duties and liabilities of the
Master Servicer or the Special Servicer, as the case may be, arising thereafter,
including, without limitation, if the Master Servicer is the resigning or
terminated party, the Master Servicer's obligation to make P&I Advances,
including, without limitation, in connection with any termination of the Master
Servicer for an Event of Default described in clause 7.01(a)(xi), the unmade P&I
Advances that gave rise to such Event of Default; provided that if the Master
Servicer is the resigning or terminated party, and if the Trustee is prohibited
by law or regulation from obligating itself to make P&I Advances (as evidenced
by an Opinion of Counsel delivered to the Depositor and the Rating Agencies),
the Trustee shall not be obligated to make such P&I Advances; and provided,
further, that any failure to perform such duties or responsibilities caused by
the Master Servicer's or the Special Servicer's, as the case may be, failure to
provide information or monies required by Section 7.01 shall not be considered a
default by the Trustee hereunder. The Trustee shall not 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 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 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
as either Master Servicer or Special Servicer, as the case may be, or shall, if
it is unable to so act as either Master Servicer or Special Servicer, as the
case may be, if it is not acceptable to either Rating Agency to act in such
capacity or if the Holders of Certificates entitled to at least 51% of the
Voting Rights so request in writing to the Trustee, promptly appoint, or
petition a court of competent jurisdiction to appoint, any established mortgage
loan servicing institution that has a net worth of not less than $15,000,000, in
the case of the Master Servicer only, and is otherwise acceptable to each Rating
Agency (as evidenced by written confirmation therefrom to the effect that the
appointment of such institution would not adversely affect its rating on any
Class of Certificates), as the successor to the Master Servicer or the Special
Servicer, as the case may be, hereunder in the assumption of all or any part of
the responsibilities, duties or liabilities of the Master Servicer or the
Special Servicer, as the case may be, hereunder; provided, however, that in the
case of a resigning or terminated Special
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Servicer, such appointment shall be subject to the rights of the Holders of
Certificates evidencing a majority of the Voting Rights allocated to the
Controlling Class to designate a successor pursuant to Section 6.09. Except with
respect to an appointment provided below, no appointment of a successor to the
Master Servicer or the Special Servicer hereunder shall be effective until the
assumption of the successor to such party of all its responsibilities, duties
and liabilities under this Agreement. Pending appointment of a successor to the
Master Servicer or the Special Servicer hereunder, the Trustee shall act in such
capacity as hereinabove provided. Notwithstanding the above, the Trustee shall,
if the Master Servicer is the resigning or terminated party, and the Trustee is
prohibited by law or regulation from making P&I Advances, promptly appoint any
established mortgage loan servicing institution that has a net worth of not less
than $15,000,000 and is otherwise acceptable to each Rating Agency (as evidenced
by written confirmation therefrom to the effect that the appointment of such
institution would not adversely affect its rating on any Class of Certificates),
as the successor to the Master Servicer hereunder in the assumption of all or
any part of the responsibilities, duties or liabilities of the Master Servicer
hereunder (including, without limitation, the obligation to make P&I Advances),
which appointment will become effective immediately. In connection with any such
appointment and assumption described herein, the Trustee may make such
arrangements for the compensation of such successor out of payments on the
Mortgage Loans 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. Such successor and the other parties 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 or the Special Servicer
pursuant to Section 6.04, any termination of the Master Servicer or the Special
Servicer pursuant to Section 7.01, any appointment of a successor to the Master
Servicer or the Special Servicer pursuant to Section 7.02 or the effectiveness
of any designation of a new Special Servicer pursuant to Section 6.09, 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 clauses
(i), (ii) or (x) 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
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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 Voting Rights with respect to
the matters described above.
SECTION 7.05. Additional Remedies of Trustee Upon Event of Default.
During the continuance of any Event of Default, so long as such Event of
Default shall not have been remedied, the Trustee, in addition to the rights
specified in Section 7.01, shall have the right, in its own name and as trustee
of an express trust, to take all actions now or hereafter existing at law, in
equity or by statute to enforce its rights and remedies and to protect the
interests, and enforce the rights and remedies, of the Certificateholders
(including the institution and prosecution of all judicial, administrative and
other proceedings and the filings of proofs of claim and debt in connection
therewith). Except as otherwise expressly provided in this Agreement, no remedy
provided for by this Agreement shall be exclusive of any other remedy, and each
and every remedy shall be cumulative and in addition to any other remedy, and no
delay or omission to exercise any right or remedy shall impair any such right or
remedy or shall be deemed to be a waiver of any Event of Default.
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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, 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 take such action as it deems appropriate 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 the Depositor or the Master
Servicer or the Special Servicer, 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 misconduct; provided, however, that:
(i) Prior to the occurrence of an Event of Default, and after the
curing of all such 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;
(ii) The Trustee shall not be personally liable for an error of
judgment made in good faith by a Responsible Officer or Responsible
Officers
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of the Trustee, unless it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts; and
(iii) The Trustee shall not be personally liable with respect to any
action taken, suffered or omitted to be taken by it in good faith in
accordance with the direction of Holders of Certificates entitled to at
least 25% of the Voting Rights relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this
Agreement.
SECTION 8.02. Certain Matters Affecting Trustee.
Except as otherwise provided in Section 8.01 and Article X:
(i) the Trustee may rely upon and shall be protected in acting or
refraining from acting upon any resolution, Officers' 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, except as provided in
Section 10.01, to institute, conduct or defend any litigation hereunder or
in relation hereto at the request, order or direction of any of the
Certificateholders, pursuant to the provisions of this Agreement, unless
such Certificateholders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities which may
be incurred therein or thereby; the Trustee shall not be required to expend
or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of
its rights or powers, if it shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it; nothing contained herein shall,
however, relieve the Trustee of the obligation, upon the occurrence of an
Event of Default which has not been cured, to exercise such of the rights
and powers vested in it by this Agreement, and to use the same degree of
care and skill in their exercise as a prudent man would exercise or use
under the circumstances in the conduct of his own affairs;
(iv) the Trustee shall not be personally liable for any action
reasonably taken, suffered or omitted by it in good faith and believed by
it to be authorized or within the discretion or rights or powers conferred
upon it by this Agreement;
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(v) prior to the occurrence of an Event of Default hereunder and after
the 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 resolution, certificate, statement, instrument, opinion,
report, notice, request, consent, order, approval, bond or other paper or
document, unless requested in writing to do so by Holders of Certificates
entitled to at least 25% of the Voting Rights; provided, however, that if
the payment within a reasonable time to the Trustee of the costs, expenses
or liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the Trustee, not reasonably assured to
the Trustee by the security afforded to it by the terms of this Agreement,
the Trustee may require reasonable indemnity against such expense or
liability as a condition to taking any such action;
(vi) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys; and
(vii) the Trustee shall not be responsible for any act or omission of
the Master Servicer or the Special Servicer (unless the Trustee is acting
as Master Servicer or the Special Servicer) or 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 the Trustee in Article II and Section 8.13 and the
signature of the Certificate Registrar and the Authenticating Agent set forth on
each outstanding Certificate, shall be taken as the statements of the Depositor
or the Master Servicer or the Special Servicer, as the case may be, and the
Trustee assumes no responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Agreement (other than
as specifically set forth in Section 8.13) 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 Certificate Account or any
other account by or on behalf of the Depositor, the Master Servicer or the
Special Servicer. The Trustee shall not be responsible for the accuracy or
content of any resolution, certificate, statement, opinion, report, document,
order or other instrument furnished by the Depositor, the Master Servicer or the
Special Servicer, and accepted by the Trustee in good faith, pursuant to this
Agreement.
SECTION 8.04. Trustee May Own Certificates.
The Trustee or any agent of the Trustee, in its individual or any other
capacity, may become the owner or pledgee of Certificates with the same rights
it would have if it were not Trustee or such agent.
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SECTION 8.05. Fees and Expenses of Trustee; Indemnification of Trustee.
(a) The Master Servicer shall pay to the Trustee or any successor Trustee
and the Trustee or any successor Trustee shall be entitled to receive from the
Master Servicer reasonable fees for all services rendered by it in the execution
of the trusts hereby created and in the exercise and performance of any of the
powers and duties hereunder of the Trustee as set forth in a separate agreement
between the Trustee and the Master Servicer.
(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
against (to the extent of amounts from time to time on deposit in the
Distribution Account, Certificate Account and any other account established
hereunder) any loss, liability or "out-of-pocket" 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 (i) the enforcement by the Trustee of its rights and
remedies and the protection of the interests, and enforcement of the rights and
remedies, of the Certificateholders during the continuance of an Event of
Default, (ii) the defense or prosecution of any legal action or claim or any
pending or threatened legal action or claim relating to any breach of this
Agreement, this Agreement or the Certificates, (iii) its status as the owner of
record of the Mortgage Loans and of any REO Property, or (iv) its action or
refraining from action in good faith at the direction of the Holders of
Certificates entitled to not less than 25% (or such higher percentage as is
specified herein with respect to any particular matter) of the Voting Rights;
provided that neither the Trustee 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 or expense incurred by reason of
willful misfeasance, bad faith or negligence in the performance of the Trustee's
obligations and duties hereunder, or as may arise from a breach of any
representation, warranty or covenant of the Trustee made herein. The provisions
of this Section 8.05(b) shall survive any resignation or removal of the Trustee
and appointment of a successor trustee.
SECTION 8.06. Eligibility Requirements for Trustee.
The Trustee hereunder shall at all times be an association or a corporation
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
$100,000,000 and subject to supervision or examination by federal or state
authority. If such association or corporation 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 association or corporation 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 of at least "A" by each Rating Agency (except for the
initial Trustee, which need only maintain a long-term unsecured debt rating of
at least "BBB" by Standard & Poor's) or such other rating that shall not result
in the qualification, downgrading or withdrawal of the rating or ratings
assigned to one or more
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Classes of the Certificates by either 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; provided that if the Trustee shall cease to be so
eligible because its combined capital and surplus is no longer at least
$100,000,000 or its long-term unsecured debt rating no longer conforms to the
requirements of the immediately preceding sentence, and if the Trustee proposes
to the other parties hereto to enter into an agreement with (and reasonably
acceptable to) each of them, and if in light of such agreement the Trustee's
continuing to act in such capacity would not (as evidenced in writing by each
Rating Agency) adversely affect any rating assigned thereby to any Class of
Certificates, then upon the execution and delivery of such agreement the Trustee
shall not be required to resign, and may continue in such capacity, for so long
as none of the ratings assigned by the Rating Agencies to the Certificates is
adversely affected thereby. The corporation or association serving as Trustee
may have normal banking and trust relationships with the Depositor, the Master
Servicer, the Special Servicer and their respective Affiliates.
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 and to all Certificateholders. Upon receiving
such notice of resignation, the Master Servicer shall promptly appoint a
successor trustee acceptable to the Depositor 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
Depositor, the Special Servicer and the Certificateholders by the Master
Servicer. 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 Trustee shall fail, if the Trustee is the Paying Agent
(other than by reason of the failure of either the Master Servicer or the
Special Servicer to timely perform its obligations hereunder or as a result of
other circumstances beyond the Trustee's reasonable control), to timely deliver
any current or revised Distribution Date Statement, Collection Report or Updated
Mortgage Loan Schedule required by Section 4.02 and such failure shall continue
unremedied for a period of five days, 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 and the
Certificateholders by the Depositor.
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(c) The Holders of Certificates entitled to at least 51% 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 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.
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 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
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 or the Special Servicer hereunder), the
Trustee shall be incompetent or unqualified to perform such act or acts, in
which event such rights, powers, duties and obligations (including the holding
of title to the Trust 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
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in its name. If any separate trustee or co-trustee shall die, become
incapable of acting, resign or be removed, all of its estates, properties,
rights, remedies and trusts shall vest in and be exercised by the Trustee, to
the extent permitted by law, without the appointment of a new or successor
trustee.
(e) The appointment of a co-trustee or separate trustee under this Section
8.10 shall not relieve the Trustee of its duties and responsibilities hereunder.
SECTION 8.11. Appointment of Custodians.
The Trustee may, with the consent of the Master Servicer, appoint at the
Trustee's expense, except in the case of the initial Custodian, one or more
Custodians to hold all or a portion of the Mortgage Files as agent for the
Trustee. 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 and shall not be the Depositor
or any Affiliate of the Depositor. Neither the Master Servicer nor the Special
Servicer shall have any duty to verify that any such Custodian is qualified to
act as such in accordance with the preceding sentence. 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. The initial Custodian shall be Bankers Trust Company.
SECTION 8.12. Appointment of Authenticating Agents.
(a) The Trustee may appoint one or more Authenticating Agents, which shall
be authorized to act on behalf of the Trustee in authenticating Certificates.
Each Authenticating Agent must be acceptable to the Master Servicer and must be
organized and doing business under the laws of the United States of America or
of any State, authorized under such laws to do a trust business, have a combined
capital and surplus of at least $[15,000,000], and be subject to supervision or
examination by federal or state authorities. The Trustee hereby initially
appoints Bankers Trust Company as an Authenticating Agent hereunder and Bankers
Trust Company hereby accepts such appointment. Each Authenticating Agent shall
be subject to the same obligations, standard of care, protection and indemnities
as would be imposed on, or would protect, the Trustee hereunder.
(b) Any Person into which any Authenticating Agent may be merged or
converted or with which it may be consolidated, or any Person resulting from any
merger, conversion, or consolidation to which any Authenticating Agent shall be
a party, or any Person succeeding to the corporate agency business of any
Authenticating Agent, shall continue to be the Authenticating Agent without the
execution or filing of any paper or any further act on the part of the Trustee
or the Authenticating Agent.
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(c) Any Authenticating Agent may at any time resign by giving at least 30
days' advance written notice of resignation to the Trustee, the Certificate
Registrar, the Master Servicer, the Special Servicer and the Depositor. The
Trustee may at any time terminate the agency of any Authenticating Agent by
giving written notice of termination to such Authenticating Agent, the Master
Servicer, the Certificate Registrar and the Depositor. Upon receiving a notice
of resignation or upon such a termination, or in case at any time any
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section 8.12, the Trustee may appoint a successor
Authenticating Agent, in which case the Trustee shall given written notice of
such appointment to the Master Servicer, the Certificate Registrar and the
Depositor and shall mail notice of such appointment to all Holders of
Certificates; provided, however, that no successor Authenticating Agent shall be
appointed unless eligible under the provisions of this Section 8.12. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers, duties and responsibilities of
its predecessor hereunder, with like effect as if originally named as
Authenticating Agent. No Authenticating Agent shall have responsibility or
liability for any action taken by it as such at the direction of the Trustee.
SECTION 8.13. Appointment of Paying Agent.
The Trustee may appoint a Paying Agent for the purpose of making
distributions to Certificateholders hereunder. The Trustee shall cause such
Paying Agent to execute and deliver to the Trustee an instrument in which such
Paying Agent shall agree with the Trustee that such Paying Agent will hold all
sums held by it for the payment to Certificateholders in an Eligible Account in
trust for the benefit of the Certificateholders entitled thereto until such sums
shall be paid to the Certificateholders. All funds remitted by the Trustee or
the Master Servicer to any such Paying Agent for the purpose of making
distributions shall be paid to Certificateholders on each Distribution Date and
any amounts not so paid shall be returned on such Distribution Date to the
Trustee or the Master Servicer, as applicable. If the Paying Agent is not the
Trustee or the Master Servicer, the Trustee or the Master Servicer shall remit
to the Paying Agent on the Business Day prior to each Distribution Date, by wire
transfer in immediately available funds, the funds to be distributed on such
Distribution Date. Any Paying Agent shall be either a bank or trust company or
otherwise authorized under law to exercise corporate trust powers and shall have
a rating of at least "A" by each of DCR and Standard & Poor's. The Trustee
hereby initially appoints the Master Servicer as Paying Agent hereunder, and the
Master Servicer hereby accepts such appointment and agrees to the provisions
hereof. Each Paying Agent shall be subject to the same obligations, standard of
care, protection and indemnities as would be imposed on, or would protect, the
Trustee hereunder.
SECTION 8.14. Appointment of REMIC Administrators.
(a) The Trustee may appoint one or more REMIC Administrators, which shall
be authorized to act on behalf of the Trustee in performing the functions set
forth in Sections 3.17 and 10.01 herein. Each REMIC Administrator must be
acceptable to the Master Servicer and must be organized and doing business under
the laws of the United States of America or of any State and be subject to
supervision or examination by federal or state authorities. The
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Trustee hereby initially appoints Bankers Trust Company as a REMIC
Administrator hereunder and Bankers Trust Company hereby accepts such
appointment.
(b) Any Person into which any REMIC Administrator may be merged or
converted or with which it may be consolidated, or any Person resulting from any
merger, conversion, or consolidation to which any REMIC Administrator shall be a
party, or any Person succeeding to the corporate agency business of any REMIC
Administrator, shall continue to be the REMIC Administrator without the
execution or filing of any paper or any further act on the part of the Trustee
or the REMIC Administrator.
(c) Any REMIC Administrator may at any time resign by giving at least 30
days' advance written notice of resignation to the Trustee, the Certificate
Registrar, the Paying Agent, the Master Servicer, the Special Servicer and the
Depositor. The Trustee may at any time terminate the agency of any REMIC
Administrator by giving written notice of termination to such REMIC
Administrator, the Master Servicer, the Certificate Registrar and the
Depositor. Upon receiving a notice of resignation or upon such a termination, or
in case at any time any REMIC Administrator shall cease to be eligible in
accordance with the provisions of this Section 8.14, the Trustee may appoint a
successor REMIC Administrator, in which case the Trustee shall give written
notice of such appointment to the Master Servicer and the Depositor and shall
mail notice of such appointment to all Holders of Certificates; provided,
however, that no successor REMIC Administrator shall be appointed unless
eligible under the provisions of this Section 8.14. Any successor REMIC
Administrator upon acceptance of its appointment hereunder shall become vested
with all the rights, powers, duties and responsibilities of its predecessor
hereunder, with like effect as if originally named as REMIC Administrator. No
REMIC Administrator shall have responsibility or liability for any action taken
by it as such at the direction of the Trustee.
SECTION 8.15. Access to Certain Information.
The Trustee shall afford to the Master Servicer, the Special Servicer and
the Depositor, 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.
SECTION 8.16. Representations and Warranties of Trustee.
The Trustee hereby represents and warrants to the Master Servicer, the
Special Servicer and the Depositor and for the benefit of the
Certificateholders, as of the Closing Date, that:
(i) The Trustee is a banking corporation duly organized, validly
existing and in good standing under the laws of the State of California.
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(ii) The execution and delivery of this Agreement by the Trustee, and
the performance and compliance with the terms of this Agreement by the
Trustee, will not violate the Trustee's articles of incorporation and
by-laws or constitute a default (or an event which, with notice or lapse of
time, or both, would constitute a default) under, or result in the breach
of, any material agreement or other instrument to which it is a party or
which is applicable to it or any of its assets.
(iii) Except to the extent that the laws of certain jurisdictions in
which any part of the Trust Fund may be located require that a co-trustee
or separate trustee be appointed to act with respect to such property as
contemplated by Section 8.10, the Trustee 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 the other parties hereto, constitutes a valid, legal and
binding obligation of the Trustee, enforceable against the Trustee 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 Trustee 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 Trustee's good faith and reasonable judgment, is likely to affect
materially and adversely either the ability of the Trustee to perform its
obligations under this Agreement or the financial condition of the Trustee.
SECTION 8.17. Reports to the Securities and Exchange Commission;
Available Information.
(a) The Depositor shall prepare for filing, and the Trustee shall execute,
on behalf of the Trust Fund, and file with the Securities and Exchange
Commission, any and all reports, statements and information respecting the Trust
Fund and/or the Certificates required to be filed on behalf of the Trust Fund
under the Exchange Act. The Depositor shall promptly file, and exercise its
reasonable best efforts to obtain a favorable response to, no-action requests
to, or requests for other appropriate exemptive relief from, the Securities and
Exchange Commission regarding the usual and customary exemption from certain
reporting requirements granted to issuers of securities similar to the
Certificates. The Depositor agrees to indemnify and hold harmless the Trustee
with respect to any liability arising from the Trustee's execution of such
reports, statements and information that contain errors or omissions.
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(b) The Master Servicer shall maintain at its office primarily responsible
for administration of the Trust Fund and shall, upon reasonable advance notice,
make available during normal business hours for review by the Depositor, each
Underwriter, any Holder of a Certificate or any Person identified to the Master
Servicer as a prospective transferee of a Certificate, originals or copies of
the following items: (i) in the case of a Holder or prospective transferee of a
Non-Registered Certificate, any private placement memorandum or other disclosure
document relating to the Certificates of such Class, in the form most recently
provided to the Master Servicer by the Depositor or by any Person designated by
the Depositor; and (ii) in all cases (A) this Agreement and any amendments
hereto entered into pursuant to Section 11.01, (B) all statements delivered to
Certificateholders of the relevant Class pursuant to Section 4.02(a) since the
Closing Date, (C) all Officers' Certificates delivered by the Master Servicer
and the Special Servicer to the Trustee since the Closing Date pursuant to
Section 3.13, (D) 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, (E) the most recent inspection report prepared by the Special
Servicer or the Master Servicer and delivered to the Master Servicer in respect
of each Mortgaged Property pursuant to Section 3.12(a), (F) the most recent
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), together with the accompanying written reports to be prepared by the
Master Servicer or the Special Servicer, as the case may be, and delivered to
the Trustee pursuant to Section 3.12(b), (G) any and all notices and reports
delivered to the Master Servicer with respect to any Mortgaged Property as to
which the environmental testing contemplated by Section 3.09(c) revealed that
any of the conditions set forth in clauses (A)(i) and (A)(ii) of the first
sentence thereof was not satisfied, (H) all Updated Mortgage Loan Schedules and
Collection Reports delivered by the Master Servicer to the Trustee since the
Closing Date pursuant to Sections 3.12(c) and 4.02(b), respectively, (I) 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, and (J) any and all Officers'
Certificates and other evidence delivered to the Trustee to support 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 Master Servicer
shall make available copies of any and all of the foregoing items upon request
of any of the parties set forth in the previous sentence; however, the Master
Servicer shall be permitted to require payment of a sum sufficient to cover the
reasonable costs and expenses of providing such copies.
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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 and the Trustee (other than the obligations of the Paying Agent
on behalf of the Trustee to provide for and make payments to Certificateholders
as hereafter set forth) shall terminate upon payment (or provision for payment)
(i) 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 (A) the purchase by the Depositor or the Master Servicer of
all Mortgage Loans and each REO Property remaining in REMIC I at a price equal
to (1) the aggregate Purchase Price of all the Mortgage Loans included in REMIC
I, plus (2) 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 (3) if the
purchaser is the Master Servicer, the aggregate amount of unreimbursed Advances
made by the Master Servicer, together with any interest accrued and payable to
the Master Servicer in respect of unreimbursed Advances in accordance with
Sections 3.03(d) and 4.03(d) and any unpaid Master Servicing Fees remaining
outstanding (which items shall be deemed to have been paid or reimbursed to the
Master Servicer in connection with such purchase), and (B) the final payment or
other liquidation (or any advance with respect thereto) of the last Mortgage
Loan or REO Property remaining in REMIC I, and (ii) to the Trustee, the Master
Servicer, the Special Servicer and the officers, directors, employees and agents
of each of them of all amounts which may have become due and owing to any of
them hereunder; provided, however, that in no event shall the trust created
hereby continue beyond the expiration of 21 years from the death of the last
survivor of the descendants of Xxxxxx X. Xxxxxxx, the late ambassador of the
United States to the Court of St. Xxxxx, living on the date hereof.
The Depositor 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, however, that (i) the aggregate Stated Principal Balance
of the Mortgage Pool at the time of such election is less than 5% of the
aggregate Cut-off Date Balance of the Mortgage Pool set forth in the Preliminary
Statement, and (ii) the Master Servicer shall not have the right to effect such
a purchase if, within 30 days following the Master Servicer's delivery of a
notice of election pursuant to this paragraph, the Depositor shall give notice
of its election to purchase all of the Mortgage Loans and each REO Property
remaining in REMIC I and shall thereafter effect such purchase in accordance
with the terms hereof. If the Trust Fund is to be terminated in connection with
the Master Servicer's or the Depositor's purchase of all of the Mortgage Loans
and each REO Property remaining in REMIC I, the Master Servicer or the
Depositor, as applicable, shall
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deliver for deposit in the Distribution Account not later than the P&I
Advance Date relating to the Distribution Date on which the final distribution
on the Certificates is to occur an amount in immediately available funds equal
to the above-described purchase price. In addition, the Master Servicer shall
transfer to the Distribution Account all amounts required to be transferred
thereto on such P&I Advance Date from the Certificate Account pursuant to the
first paragraph of Section 3.04(b), together with any other amounts on deposit
in the Certificate 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 Master Servicer or the Depositor, as
applicable, the Mortgage Files for the remaining Mortgage Loans and shall
execute all assignments, endorsements and other instruments furnished to it by
the Master Servicer or the Depositor, as applicable, as shall be necessary to
effectuate transfer of the Mortgage Loans and REO Properties to the Master
Servicer (or its designee) or the Depositor (or its designees), as applicable.
Any transfer of Mortgage Loans to the Depositor pursuant to this paragraph shall
be on a servicing-released basis.
Notice of any termination shall be given promptly by the Master Servicer on
behalf of the Trustee by letter to Certificateholders mailed (a) if such notice
is given in connection with the Master Servicer's or Depositor's purchase of the
Mortgage Loans and each REO Property remaining in REMIC I, not earlier than the
15th day and not later than the 25th day of the month next preceding the month
of the final distribution on the Certificates or (b) otherwise during the month
of such final distribution on or before the Determination Date in such month, in
each case 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 offices of the Certificate
Registrar or such other location therein designated. The Master Servicer shall
give such notice to the Trustee, the Special Servicer and the Depositor 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 Paying Agent shall
distribute to each Certificateholder so presenting and surrendering its
Certificates such Certificateholder's Percentage Interest of that portion of the
amounts then on deposit in the Distribution Account that are allocable to
payments on the Class of Certificates so presented and surrendered. Amounts on
deposit in the Distribution Account as of the final Distribution Date, exclusive
of any portion thereof that would be payable to any Person in accordance with
clauses (ii) through (vi) of Section 3.05(b), and further exclusive of any
portion thereof that represents Prepayment Premiums and Yield Maintenance
Charges, shall be allocated in the following order of priority, in each case to
the extent of remaining available funds:
(i) to distributions of interest to the Holders of the Senior
Certificates, in an amount equal to, and pro rata in accordance with, all
Distributable Certificate Interest in respect of each Class of Senior
Certificates for such Distribution Date and, to the extent not previously
paid, for all prior Distribution Dates;
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(ii) to distributions of principal to the Holders of the Class A-1
Certificates, in an amount equal to the Class Principal Balance of the
Class A-1 Certificates outstanding immediately prior to such Distribution
Date;
(iii) to distributions of principal to the Holders of the Class A-2
Certificates, in an amount equal to the Class Principal Balance of the
Class A-2 Certificates outstanding immediately prior to such Distribution
Date;
(iv) to distributions of principal to the Holders of the Class A-3
Certificates, in an amount equal to the Class Principal Balance of the
Class A-3 Certificates outstanding immediately prior to such Distribution
Date;
(v) to distributions to the Holders of the Class A-1, Class A-2 and
Class A-3 Certificates, in an amount equal to, and pro rata in accordance
with all Realized Losses and Additional Trust Fund Expenses previously
allocated to such Classes of Certificates and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to such Classes of Certificates and not previously reimbursed;
(vi) to distributions of interest to the Holders of the Class B
Certificates in an amount equal to all Distributable Certificate Interest
in respect of such Class of Certificates for such Distribution Date and, to
the extent not previously paid, for all prior Distribution Dates;
(vii) to distributions of principal to the Holders of the Class B
Certificates, in an amount equal to the Class Principal Balance of the
Class B Certificates outstanding immediately prior to such Distribution
Date;
(viii) to distributions to the Holders of the Class B Certificates, in
an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to the Class B
Certificates and not previously reimbursed;
(ix) 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;
(x) to distributions of principal to the Holders of the Class C
Certificates, in an amount equal to the Class Principal Balance of the
Class C Certificates outstanding immediately prior to such Distribution
Date;
(xi) to distributions to the Holders of the Class C Certificates, in
an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to the Class C
Certificates and not previously reimbursed;
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(xii) to distributions of interest to the Holders of the Class D
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of the Class D Certificates for such Distribution Date and, to
the extent not previously paid, for all prior Distribution Dates;
(xiii) to distributions of principal to the Holders of the Class D
Certificates, in an amount equal to the Class Principal Balance of the
Class D Certificates outstanding immediately prior to such Distribution
Date;
(xiv) to distributions to the Holders of the Class D Certificates, in
an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to the Class D
Certificates and not previously reimbursed;
(xv) to distributions of interest to the Holders of the Class E
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of the Class E Certificates for such Distribution Date and, to
the extent not previously paid, for all prior Distribution Dates;
(xvi) to distributions of principal to the Holders of the Class E
Certificates, in an amount equal to the Class Principal Balance of the
Class E Certificates outstanding immediately prior to such Distribution
Date;
(xvii) to distributions to the Holders of the Class E Certificates, in
an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to the Class E
Certificates and not previously reimbursed;
(xviii) to distributions of interest to the Holders of the Class F
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of the Class F Certificates for such Distribution Date and, to
the extent not previously paid, for all prior Distribution Dates;
(xix) to distributions of principal to the Holders of the Class F
Certificates, in an amount equal to the Class Principal Balance of the
Class F Certificates outstanding immediately prior to such Distribution
Date;
(xx) to distributions to the Holders of the Class F Certificates, in
an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously allocated to the Class F
Certificates and not previously reimbursed;
(xxi) to distributions of interest to the Holders of the Class G
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of the Class G
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Certificates for such Distribution Date and, to the extent not
previously paid, for all prior Distribution Dates;
(xxii) to distributions of principal to the Holders of the Class G
Certificates, in an amount equal to the Class Principal Balance of the
Class G Certificates outstanding immediately prior to such Distribution
Date;
(xxiii) to distributions to the Holders of the Class G Certificates,
in an amount equal to, and in reimbursement of, all Realized Losses, if
any, previously allocated to the Class G Certificates and not previously
reimbursed; and
(xxiv) to distributions to the Holders of the Class R-I Certificates,
in an amount equal to the balance, if any, of the amounts being so
distributed on the final Distribution Date that remains after the
distributions to be made on such Distribution Date pursuant to clauses (i)
through (xxv) above.
Any Prepayment Premiums and Yield Maintenance Charges on deposit in the
Certificate Account as of the final Distribution Date shall be distributed among
the Holders of the Class A-1, Class A-2, Class A-3, Class B, Class C, Class D,
Class IO-1 and Class IO-2 Certificates in accordance with Section 4.01(b). 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 9.01 shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Paying Agent 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 Paying Agent, 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, within nine months after the second notice, all of
the Certificates shall not have been surrendered for cancellation, the Class
R-II Certificateholder shall be entitled to all unclaimed funds and other assets
which remain subject thereto.
All actual distributions on the respective Classes of REMIC II Certificates
on the final Distribution Date in accordance with foregoing provisions of this
Section 9.01 shall be deemed to have first been distributed from REMIC I to
REMIC II on the various REMIC I Regular Interests in accordance with Section
4.01(h).
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SECTION 9.02. Additional Termination Requirements.
(a) If the Depositor 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 and REMIC II) shall be terminated in
accordance with the following additional requirements, unless the Master
Servicer or the Depositor, as applicable, obtains at its own expense and
delivers to the Trustee and, in the case of the Depositor, to the Trustee and
the Master Servicer, an Opinion of Counsel, addressed to the Trustee and the
Master Servicer, 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" of REMIC I or REMIC II as defined in Section 860F
of the Code or cause REMIC I or REMIC II to fail to qualify as a REMIC at any
time that any Certificates are outstanding:
(i) the Trustee shall specify the first day in the 90-day liquidation
period in a statement attached to the final Tax Return for each of REMIC I
and REMIC II pursuant to Treasury regulation Section 1.860F-1 and shall
satisfy all requirements of a qualified liquidation under Section 860F of
the Code and any regulations thereunder as evidenced by an Opinion of
Counsel obtained at the expense of the Trust Fund;
(ii) during such 90-day liquidation period and at or prior to the time
of making of the final payment on the Certificates, the Trustee shall sell
all of the assets of REMIC I to the Master Servicer or the Depositor, as
applicable, for cash; and
(iii) at the time of the making of the final payment on the
Certificates, the Paying Agent shall distribute or credit, or cause to be
distributed or credited, to the Certificateholders in accordance with
Section 9.01 all cash on hand (other than cash retained to meet claims),
and each of REMIC I and REMIC II shall terminate at that time.
(b) By their acceptance of Certificates, the Holders thereof hereby agree
to authorize the Trustee to specify the 90-day liquidation period for each of
REMIC I and REMIC II, 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 and REMIC
II as a REMIC under the Code and, if necessary, under applicable state law. Such
election will be made on Form 1066 or other appropriate federal or state Tax
Returns for the taxable year ending on the last day of the calendar year in
which the Certificates are issued.
(b) The REMIC I Regular Interests and the REMIC II Regular Certificates are
hereby designated as "regular interests" (within the meaning of Section
860G(a)(1) of the Code) in REMIC I and REMIC II, respectively. The Class R-I
Certificates and the Class R-II Certificates are hereby designated as the single
class of "residual interests" (within the meaning of Section 860G(a)(2) of the
Code) in REMIC I and REMIC II, respectively. None of the Master Servicer, the
Special Servicer or the Trustee shall (to the extent within its control) permit
the creation of any other "interests" in REMIC I or REMIC II (within the meaning
of Treasury regulation Section 1.860D-1(b)(1)).
(c) The Closing Date is hereby designated as the "startup day" of both
REMIC I and REMIC II within the meaning of Section 860G(a)(9) of the Code.
(d) The Plurality Residual Certificateholder as to the applicable taxable
year is hereby designated as the Tax Matters Person of each of REMIC I and REMIC
II, and shall act on behalf of the related REMIC in relation to any tax matter
or controversy and shall represent the related REMIC in any administrative or
judicial proceeding relating to an examination or audit by any governmental
taxing authority; 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 and REMIC II) as agent and attorney-in-fact for the Tax Matters
Person for each of REMIC I and REMIC II in the performance of its duties as
such.
(e) Solely for purposes of Treasury regulation Section 1.860G-1(a)(4)(iii),
December 26, 2025 has been designated the "latest possible maturity date" of
each REMIC I Regular Interest and each Class of REMIC II Regular Certificates.
(f) Except as otherwise provided in subsections (i) and (j) below, the
REMIC Administrator shall pay out of its own funds, subject to reimbursement by
the Trust Fund, any and all tax related expenses of the Trust Fund (including,
but not limited to, any professional fees or expenses related to audits or any
administrative or judicial proceedings with respect to the Trust Fund that
involve the Internal Revenue Service or state tax authorities).
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(g) 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 (REMIC) and Issuers of
Collateralized Debt Obligations" for the Trust Fund. In addition, the REMIC
Administrator shall prepare, sign and file all of the other Tax Returns in
respect of REMIC I and REMIC II. The expenses of preparing and filing such
returns shall be borne by the REMIC Administrator without any right of
reimbursement therefor. The other parties hereto shall provide on a timely basis
to the REMIC Administrator or its designee such information with respect to each
of REMIC I and REMIC II as is in its possession and reasonably requested by the
REMIC Administrator to enable it to perform its obligations under this Article.
Without limiting the generality of the foregoing, the Depositor, within ten days
following the REMIC Administrator's request therefor, shall provide in writing
to the REMIC Administrator such information as is reasonably requested by the
REMIC Administrator for tax purposes, as to the valuations and issue prices of
the Certificates, and the REMIC Administrator's duty to perform its reporting
and other tax compliance obligations under this Article X shall be subject to
the condition that it receives from the Depositor such information possessed by
the Depositor that is necessary to permit the Trustee to perform such
obligations.
(h) The REMIC Administrator shall perform on behalf of each of REMIC I and
REMIC II all reporting and other tax compliance duties that are the
responsibility of each such REMIC under the Code, the REMIC Provisions or other
compliance guidance issued by the 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 hereunder); 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 and REMIC II.
(i) The REMIC Administrator shall perform its duties hereunder so as to
maintain the status of each of REMIC I and REMIC II as a REMIC under the REMIC
Provisions (and the Trustee, the Master Servicer and the Special Servicer shall
assist the REMIC Administrator to the extent reasonably requested by the REMIC
Administrator and to the extent of information within the Trustee's, the Master
Servicer's or the Special Servicer's possession or control). None of the REMIC
Administrator, Master Servicer, the Special Servicer, the REMIC Administrator or
the Trustee shall knowingly take (or cause either of REMIC I or REMIC II 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 (i)
endanger the status of either of REMIC I or REMIC II as a REMIC, or (ii) except
as provided in Section 3.17(a), result in the imposition of a tax upon either of
REMIC I or REMIC II (including, but not limited to, the tax on prohibited
transactions as defined in Section 860F(a)(2) of the Code, the tax on
contributions to a REMIC set forth in Section 860G(d) of the Code or the result
in the imposition of a tax on "net income from foreclosure property" as
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defined in Section 860G(c) of the Code) (any such endangerment or imposition, an
"Adverse REMIC Event"), unless the REMIC Administrator has obtained or received
an Opinion of Counsel (at the expense of the party requesting such action or at
the expense of the Trust Fund if the REMIC Administrator seeks to take such
action or to refrain from acting for the benefit of the Certificateholders) to
the effect that the contemplated action will not result in an Adverse REMIC
Event. The REMIC Administrator shall not take any action or fail to take any
action (whether or not authorized hereunder) as to which the Master Servicer or
the Special Servicer has advised it in writing that either the Master Servicer
or the Special Servicer has received or obtained 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 either REMIC I or REMIC II,
or causing either of REMIC I or REMIC II to take any action, that is not
expressly permitted under the terms of this Agreement, the Master Servicer and
the Special Servicer shall consult with the REMIC Administrator or its designee,
in writing, with respect to whether such action could cause an Adverse REMIC
Event to occur. Neither the Master Servicer nor the Special Servicer shall take
any such action or cause either of REMIC I or REMIC II to take any such action
as to which the REMIC Administrator has advised it in writing that an Adverse
REMIC Event could occur, and neither the Master Servicer nor the Special
Servicer shall have any liability hereunder for any action taken by it in
accordance with the written instruments of the REMIC Administrator. 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, but in no event at the cost or expense of the Trust Fund or the
Trustee. At all times as may be required by the Code, the REMIC Administrator
shall make reasonable efforts to ensure that substantially all of the assets of
REMIC I and REMIC II will consist of "qualified mortgages" as defined in Section
860G(a)(3) of the Code and "permitted investments" as defined in Section
860G(a)(5) of the Code.
(j) If any tax is imposed on either of REMIC I or REMIC II, including,
without limitation, "prohibited transactions" taxes as defined in Section
860F(a)(2) of the Code, any tax on "net income from foreclosure property" as
defined in Section 860G(c) of the Code, any taxes on contributions to REMIC I or
REMIC II after the Startup Day pursuant to Section 860G(d) of the Code, and any
other tax imposed by the Code or any applicable provisions of state or local tax
laws (other than any tax permitted to be incurred by the Special Servicer
pursuant to Section 3.17(a) and other than the minimum tax that may be imposed
on REMIC I or REMIC II by Section 23151 or 23153 of the California Revenue and
Taxation Code), such tax, together with all incidental costs and expenses
(including, without limitation, penalties and reasonable attorneys' fees), shall
be charged to and paid by: (i) the REMIC Administrator, if such tax arises out
of or results from a breach by the REMIC Administrator of any of its obligations
under this Article X; (ii) the 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; (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 Trustee, if such tax arises out of
or results from a breach by the Trustee of any of its obligations under 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
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charged to and paid by the Trust Fund. Any such amounts payable by the Trust
Fund shall be paid by the REMIC Administrator out of amounts on deposit in the
Distribution Account in reduction of the Available Distribution Amount pursuant
to Section 3.05(b). Any tax imposed on REMIC I or REMIC II by Section 23151 or
Section 23153 of the California Revenue and Taxation Code shall be timely paid
by the REMIC Administrator out of its own funds without right of reimbursement
therefor.
(k) The REMIC Administrator shall, for federal income tax purposes,
maintain books and records with respect to each of REMIC I and REMIC II on a
calendar year and on an accrual basis.
(l) Following the Startup Day, none of the Trustee, the Master Servicer and
the Special Servicer shall accept any contributions of assets to REMIC I or
REMIC II unless it shall have received an Opinion of Counsel (at the expense of
the party seeking to cause such contribution and in no event at the expense of
the Trust Fund or the Trustee) to the effect that the inclusion of such assets
in such REMIC will not cause: (i) such REMIC to fail to qualify as a REMIC at
any time that any Certificates are outstanding; or (ii) the imposition of any
tax on such REMIC under the REMIC Provisions or other applicable provisions of
federal, state and local law or ordinances.
(m) None of the Trustee, the Master Servicer and the Special Servicer shall
consent to or, to the extent it is within the control of such Person, permit:
(i) the sale or disposition of any of the Mortgage Loans (except in connection
with (A) the foreclosure 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, (B) the bankruptcy of REMIC I or REMIC II, (C) the termination of
REMIC I and REMIC II pursuant to Article IX of this Agreement, or (D) a purchase
of Mortgage Loans pursuant to or as contemplated by Article II or III of this
Agreement); (ii) the sale or disposition of any investments in the Certificate
Account, the Distribution Account or the REO Account for gain; or (iii) the
acquisition of any assets for REMIC I or REMIC II (other than a Mortgaged
Property acquired through foreclosure, deed in lieu of foreclosure or otherwise
in respect of a defaulted Mortgage Loan and other than Permitted Investments
acquired in connection with the investment of funds in the Certificate Account,
the Distribution 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 but in no event at the expense of the
Trust Fund or the Trustee) to the effect that such sale, disposition, or
acquisition will not cause: (x) REMIC I or REMIC II to fail to qualify as a
REMIC at any time that any Certificates are outstanding; or (y) the imposition
of any tax on REMIC I or REMIC II under the REMIC Provisions or other applicable
provisions of federal, state and local law or ordinances.
(n) None of the Trustee, the Master Servicer and the Special Servicer shall
enter into any arrangement by which REMIC I or REMIC II will receive a fee or
other compensation for services nor permit REMIC I or REMIC II to receive any
income from assets other than "qualified mortgages" as defined in Section
860G(a)(3) of the Code or "permitted investments" as defined in Section
860G(a)(5) of the Code.
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ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.01. Amendment.
(a) This Agreement may be amended from time to time by the mutual agreement
of the Depositor, the Master Servicer, the Special Servicer and the Trustee,
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 (v) if such amendment, as evidenced by an Opinion of Counsel
delivered to the Master Servicer, the Special Servicer and the Trustee, 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 either of the REMICs
created hereunder 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 either such REMIC; provided that such action (except any
amendment described in clause (v) above) shall not, as evidenced by an Opinion
of Counsel obtained by or delivered to the Master Servicer, the Special Servicer
and the Trustee (which opinion, insofar as economic issues are concerned, may
rely upon the assurance of the Rating Agencies described below), adversely
affect in any material respect the interests of any Certificateholder; and
provided further that the Master Servicer, the Special Servicer and the Trustee
shall have first obtained from each Rating Agency written assurance that such
amendment does not adversely affect in any material respect the rating on any
Class of Certificates.
(b) This Agreement may also be amended from time to time by the agreement
of the Depositor, the Master Servicer, the Special Servicer and the Trustee with
the consent of the Holders of Certificates entitled to at least 51% of the
Voting Rights allocated to the affected Classes for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Agreement or of modifying in any manner the rights of the Holders of
Certificates; provided, however, that no such amendment shall (i) reduce in any
manner the amount of, or delay the timing of, payments received or advanced on
Mortgage Loans 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 in a
manner other than as described in (i) without the consent of the Holders of all
Certificates of such Class, (iii) modify the provisions of this Section 11.01
without the consent of the Holders of all Certificates then outstanding, (iv)
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modify the provisions of Section 3.20 without the consent of the Holders of
Certificates entitled to all of the Voting Rights or (v) modify the specified
percentage of Voting Rights which are required to be held by Certificateholders
to consent or not to object to any action pursuant to any provision of this
Agreement 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 matters
described above as they would if any other Person held such Certificates, so
long as neither the Depositor nor any of its Affiliates is performing servicing
duties with respect to any of the Mortgage Loans.
(c) Notwithstanding any contrary provision of this Agreement, the Trustee
shall not consent to any amendment to this Agreement unless it shall first have
obtained or been furnished with an Opinion of Counsel (at the expense of the
party seeking such amendment) to the effect that (i) such amendment or the
exercise of any power granted to the Trustee, the Master Servicer or the Special
Servicer in accordance with such amendment will not result in the imposition of
a tax on either of REMIC I or REMIC II pursuant to the REMIC Provisions or cause
either of REMIC I or REMIC II to fail to qualify as a REMIC at any time that any
Certificates are outstanding and (ii) such amendment complies with the
provisions of this Section 11.01.
(d) Promptly after the execution of any such amendment, the Trustee shall
send a copy thereof to each Certificateholder.
(e) It shall not be necessary for the consent of Certificateholders under
this Section 11.01 to approve the particular form of any proposed amendment, but
it shall be sufficient if such consent shall approve the substance thereof. The
manner of obtaining such consents and of evidencing the authorization of the
execution thereof by Certificateholders shall be subject to such reasonable
regulations as the Trustee may prescribe.
(f) Each of the Master Servicer, the Special Servicer and 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 Master Servicer, the Special Servicer or the Trustee requests
any amendment of this Agreement that 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 Certificate Account or the Distribution Account pursuant to Section 3.05.
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SECTION 11.02. Recordation of Agreement; Counterparts.
(a) To the extent permitted by applicable law, this Agreement is subject to
recordation in all appropriate public offices for real property records in all
the counties or other comparable jurisdictions in which any or all of the
properties subject to the Mortgages are situated, and in any other appropriate
public recording office or elsewhere, such recordation to be effected by the
Master Servicer at the expense of the Trust Fund, but only upon direction
accompanied by an Opinion of Counsel (the cost of which may be paid out of the
Certificate Account pursuant to Section 3.05(a)) to the effect that such
recordation materially and beneficially affects the interests of the
Certificateholders; provided, however, that the Trustee shall have no obligation
or responsibility to determine whether any such recordation of this Agreement is
required.
(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 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
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Certificateholder with every other Certificateholder and the Trustee, that
no one or more Holders of Certificates shall have any right in any manner
whatsoever by virtue of any provision of this Agreement to affect, disturb or
prejudice the rights of the Holders of any other of such Certificates, or to
obtain or seek to obtain priority over or preference to any other such Holder,
which priority or preference is not otherwise provided for herein, or to enforce
any right under this Agreement, except in the manner herein provided and for the
equal, ratable and common benefit of all Certificateholders. For the protection
and enforcement of the provisions of this Section, 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, Xxxxxxx Xxxxx
Mortgage Investors, Inc., World Financial Center, North Tower, 000 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: the Secretary, with a copy to the
treasurer, facsimile number: 000-000-0000; (ii) in the case of the Master
Servicer and the Special Servicer, Bankers Trust Company, 0 Xxxx Xxxxx, 00xx
Xxxxx, Xxxxxx, Xxxxxxxxxx 00000, Attn: MLMI 1995 C-3; (iii) in the case of the
Trustee, Union Bank, at the Corporate Trust Office, facsimile number
000-000-0000; and (iv) in the case of the Rating Agencies, (A) DCR Investors
Service, L.P., Xxx Xxxxx Xxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Commercial Mortgage Surveillance, facsimile number: 000-000-0000; and (B)
Standard & Poor's Ratings Group, 00 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Real Estate Ratings Group, Surveillance Manager, facsimile number:
000-000-0000; or as to each such Person such other address as may hereafter be
furnished by such Person to the parties hereto in writing. Any communication
required or permitted to be delivered to a Certificateholder shall be deemed to
have been duly given when mailed first class, postage prepaid, to the address of
such Holder as shown in the Certificate Register.
SECTION 11.06. Severability of Provisions.
If any one or more of the covenants, agreements, provisions or terms of
this Agreement shall be for any reason whatsoever held invalid, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and shall
in no way affect the validity or enforceability of the other provisions of this
Agreement or of the Certificates or the rights of the Holders thereof.
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SECTION 11.07. Grant of a Security Interest.
The Depositor intends that the conveyance of the Depositor's right, title
and interest in and to the Mortgage Loans pursuant to this Agreement shall
constitute a sale and not 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) 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 prior to the Cut-off Date and
any Principal Prepayments received prior to the Cut-off Date), all amounts held
from time to time in the Certificate 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, and
(ii) this Agreement shall constitute a security agreement under applicable law.
The Depositor shall file or cause to be filed, as a precautionary filing, a Form
UCC-1 substantially in the form attached as Exhibit L hereto in all appropriate
locations in the State of New York 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 11.07 shall constitute notice to the
Trustee pursuant to any of the requirements of the New York UCC.
SECTION 11.08. Xxxxxx Act.
Any provisions required to be contained in this Agreement by Section 126 of
Article 4-A of the New York Real Property Law are hereby incorporated herein,
and such provisions shall be in addition to those conferred or imposed by this
Agreement; provided, however, that to the extent that such Section 126 shall not
have any effect, and if said Section 126 should at any time be repealed or cease
to apply to this Agreement or be construed by judicial decision to be
inapplicable, said Section 126 shall cease to have any further effect upon the
provisions of this Agreement. In case of a conflict between the provisions of
this Agreement and any mandatory provisions of Article 4-A of the New York Real
Property Law, such mandatory provisions of said Article 4-A shall prevail,
provided that if said Article 4-A shall not apply to this Agreement, should at
any time be repealed, or cease to apply to this Agreement or be construed by
judicial decision to be inapplicable, such mandatory provisions of such Article
4-A shall cease to have any further effect upon the provisions of this
Agreement.
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SECTION 11.09. Successors and Assigns; Beneficiaries.
The provisions of this Agreement shall be binding upon and inure to the
benefit of the respective successors and assigns of the parties hereto, and all
such provisions shall inure to the benefit of the Certificateholders. No other
person, including, without limitation, any Mortgagor, shall be entitled to any
benefit or equitable right, remedy or claim under this Agreement.
SECTION 11.10. 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 11.10. Notices to Rating Agencies.
(a) The Master Servicer on behalf of the Trustee shall promptly provide
notice to each Rating Agency with respect to each of the following of which it
has actual knowledge:
(i) any material change or amendment to this Agreement;
(ii) the occurrence of any Event of Default that has not been cured;
(iii) the resignation or termination of the Trustee, the Master
Servicer or the Special Servicer;
(iv) the repurchase of Mortgage Loans by either of the Mortgage Loan
Sellers pursuant to either of the Mortgage Loan Purchase Agreements;
(v) any change in the location of the Distribution Account; and
(vi) 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
(ii) any change in the location of the Certificate Account.
(c) The Special Servicer shall furnish each Rating Agency with respect to a
non-performing or defaulted Mortgage Loan such information as the Rating Agency
shall reasonably request and which the Special Servicer can reasonably provide
in accordance with applicable law.
(d) To the extent applicable, each of the Master Servicer and the Special
Servicer shall promptly furnish to each Rating Agency copies of the following
items:
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(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;
(iii) any Officers' Certificate delivered to the Trustee pursuant to
Section 4.03(c) or 3.08;
(iv) each of the inspection reports described in Section 3.12(a); and
(v) each Updated Mortgage Loan Schedule described in Section 3.12(c).
(e) The Master Servicer on behalf of the Trustee shall (i) make available
to each Rating Agency, upon reasonable notice, the items described in Section
8.14(b) and (ii) promptly deliver to each Rating Agency a copy of any notices
given pursuant to Section 7.03(a) or Section 7.03(b).
(f) The Master Servicer on behalf of the Trustee shall promptly deliver to
each Rating Agency a copy of each statement or report described in Section 4.02.
SECTION 11.11. 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.
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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.
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.
Depositor
/s/ XXXXX XXXXXXXX
By:________________________________________
Name: Xxxxx Xxxxxxxx
Title: Vice President
BANKERS TRUST COMPANY
Master Servicer
/s/ XXXXX XXXXXXX
By:________________________________________
Name: Xxxxx Xxxxxxx
Title: Vice President
CRIIMI MAE SERVICES LIMITED PARTNERSHIP
Special Servicer
By: CRIIMI MAE Management, Inc., a
Maryland Corporation, its general partner
/s/ XXXXXXX X. XXXXXX
By:_________________________________________
Name: Xxxxxxx X. Xxxxxx
Title: Vice President-Chief Executive Officer
UNION BANK
Trustee
/s/ XXXXXXX XXXXXX
By:_________________________________________
Name: Xxxxxxx XxXxxx
Title: Authorized Officer
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 30th day of November, 1995 before me, a notary public in and for
said State, personally appeared Xxxxx X. Xxxxxxxx known to me to be a Vice
President of XXXXXXX XXXXX MORTGAGE INVESTORS, INC., one of the entities that
executed the within instrument, and also known to me to be the person who
executed it on behalf of such corporation, and acknowledged to me that such
corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
/s/ XXXXXXX X. XXXXXX
----------------------------
Notary Public
Xxxxxxx X. Xxxxxx
Notary Public, State of New York
No. O1BR5016922
Qualified in New York County
Commission Expires 8/23/97
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 29th day of November, 1995 before me, a notary public in and for
said State, personally appeared Xxxxx Xxxxxxx known to me to be a Vice President
of BANKERS TRUST COMPANY, 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 corporation, and acknowledged to me that such corporation executed the
within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
/s/ XXXXX XXXXXXXXXX
---------------------------
Notary Public
Xxxxx Xxxxxxxxxx
Notary Public, State of New York
No. 00-0000000
Qualified in Queens County
Commission Expires 1/31/97
STATE OF CALIFORNIA )
) ss.:
COUNTY OF SAN FRANCISCO )
On the 29th day of November, 1995, before me, a notary public in and for
said State, personally appeared Xxxx XxXxxx, known to me to be an Assistant Vice
President of UNION BANK, 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 company, and acknowledged to me that such person executed the within
instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
/s/ XXXXXXX XXXXXXXXXX
------------------------------
Notary Public
Xxxxxxx Xxxxxxxxxx
Comm. # 1038491
Notary Public--California
San Francisco County
My Commission Expires September 16, 0000
XXXXX XX XXXXXXXX )
) ss.:
COUNTY OF XXXXXXXXXX )
On the 30th day of November, 1995, before me, a notary public in and for
said State, personally appeared Xxxxxxx X. Xxxxxx, known to me to be a SVP/CFO
of CRIIMI MAE Services Limited Partnership, 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 company, and acknowledged to me that such person executed the
within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
/s/ XXXXX X. XXXXX
------------------------------
Notary Public
[Notary Seal]
EXHIBIT A-1
CLASS A-1 CERTIFICATE
CLASS A-1 MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 1995-C3
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.
Initial Pass-Through Class Principal Balance of the Class A-1
Rate: 6.79275% per annum Certificates as of the Closing Date:
$135,156,000
Date of Pooling and Servicing Initial Certificate Principal Balance of
Agreement: November 1, 1995 this Class A-1 Certificate as of the
Closing Date: $135,156,000
Closing Date: November 30, 1995 Aggregate Stated Principal
Balance of the Mortgage Loans
as of the Closing Date: $643,600,376
First Distribution Date:
December 26, 1995
Master Servicer: Trustee:
Bankers Trust Company Union Bank
Special Servicer:
CRIIMI MAE Services
Limited Partnership
Certificate No. 1 CUSIP No. 589-929-KXS
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE MASTER SERVICER, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HA AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN XXXXXXX
XXXXX MORTGAGE INVESTORS, INC., UNION BANK, BANKERS TRUST COMPANY, CRIIMI MAE
SERVICES LIMITED PARTNERSHIP OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE 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 INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
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, CLASS C, CLASS D, CLASS E, CLASS F AND CLASS G
CERTIFICATES OF THE SAME SERIES IS REDUCED TO ZERO, THE CERTIFICATE PRINCIPAL
BALANCE OF THIS CERTIFICATE, THE CLASS A-2 CERTIFICATES AND THE CLASS A-3
CERTIFICATES MAY BE REDUCED, PRO RATA IN ACCORDANCE WITH THE OUTSTANDING
CERTIFICATE BALANCES OF THE CLASS A-1, CLASS A-2 AND CLASS A-3 CERTIFICATES, 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-1 Certificate (obtained by dividing the
principal amount of this Class A-1 Certificate (its "Certificate Principal
Balance") as of the Closing Date by the aggregate principal amount of all the
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Class A-1 Certificates (their "Class Principal Balance") as of the Closing Date)
in that certain beneficial ownership interest evidenced by all the Class A-1
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Xxxxxxx Xxxxx
Mortgage Investors, Inc. (hereinafter called the "Depositor", which term
includes any successor entity under the Agreement), Bankers Trust Company (in
such capacity, hereinafter called the "Master Servicer", which term includes any
successor entity under the Agreement), CRIIMI MAE Services Limited Partnership
in such capacity, hereinafter called the "Special Servicer", which term includes
any successor entity under the Agreement) and Union Bank (hereinafter called the
"Trustee", which term 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, the capitalized terms used herein have the
respective meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
25th day of each month or, if such 25th 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 the Holders of the
Class A-1 Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on the Class A-1
Certificates will be made by Bankers Trust Company, as paying agent (the "Paying
Agent"), 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 Paying Agent 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
-3-
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. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appears in the
Certificate Register or to any such other address of which the Paying Agent is
subsequently notified in writing.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
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-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 A-1
Certificates are exchangeable for new Class A-1 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
-4-
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class A-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 A-1 Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Class A-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
Paying Agent and the Certificate Registrar and any agent of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, the Paying Agent 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 Paying Agent, 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 Depositor at a price determined as provided in the
Agreement of all Mortgage Loans and each REO Property remaining in the Trust
Fund. The Agreement permits, but does not require, the Master Servicer or the
Depositor to purchase from the Trust Fund all Mortgage Loans and each REO
Property remaining therein. The exercise of such right will effect early
retirement of the Class A-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 5% of the aggregate Stated Principal Balance of
the Mortgage Loans as of the Closing Date specified on the face hereof.
-5-
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 and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, including any amendment necessary to
maintain the status of the Trust Fund (or designated portions thereof) 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.
-6-
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate
to be duly executed.
Dated: November 30, 1995
BANKERS TRUST COMPANY,
as Certificate Registrar
By:____________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-1 Certificates referred to in the
within-mentioned Agreement.
BANKERS TRUST COMPANY,
as Authenticating Agent
By:___________________________
Authorized Officer
-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.
-2-
EXHIBIT A-2
CLASS A-2 CERTIFICATE
CLASS A-2 MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 1995-C3
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.
Initial Pass-Through Class Principal Balance of the Class A-2
Rate: 6.85275% per annum Certificates as of the Closing Date:
$32,180,000
Date of Pooling and Servicing Initial Certificate Principal Balance
Agreement: November 1, 1995 of this Class A-2 Certificate as of the
Closing Date: $32,180,000
Closing Date: November 30, 1995 Aggregate Stated Principal
Balance of the Mortgage Loans
as of the Closing Date: $643,600,376
First Distribution Date:
December 26, 1995
Master Servicer: Trustee:
Bankers Trust Company Union Bank
Special Servicer:
CRIIMI MAE Services Limited
Partnership
Certificate No. 1 CUSIP No. 589-929-KY3
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE MASTER SERVICER, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN XXXXXXX
XXXXX MORTGAGE INVESTORS, INC., UNION BANK, BANKERS TRUST COMPANY, CRIIMI MAE
SERVICES LIMITED PARTNERSHIP OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBJECT TO A PRIORITY OF DISTRIBUTION WITH RESPECT TO THE
CLASS A-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 INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCES OF THE CLASS A-1 CERTIFICATES
ARE 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, CLASS C, CLASS D, CLASS E, CLASS F
AND CLASS G CERTIFICATES OF THE SAME SERIES IS REDUCED TO ZERO, THE CERTIFICATE
PRINCIPAL BALANCE OF THIS CERTIFICATE, THE CLASS A-1 CERTIFICATES AND THE CLASS
A-3 CERTIFICATES MAY BE REDUCED, PRO RATA IN ACCORDANCE WITH THE OUTSTANDING
CERTIFICATE BALANCES OF THE CLASS A-1, CLASS A-2 AND CLASS A-3 CERTIFICATES, 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
-2-
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 specified above (the "Agreement"), among Xxxxxxx Xxxxx
Mortgage Investors, Inc. (hereinafter called the "Depositor", which term
includes any successor entity under the Agreement), Bankers Trust Company (in
such capacity, hereinafter called the "Master Servicer", which term includes any
successor entity under the Agreement), CRIIMI MAE Services Limited Partnership
(in such capacity, hereinafter called the "Special Servicer", which term
includes any successor entity under the Agreement) and Union Bank (hereinafter
called the "Trustee", which term 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, the capitalized terms used
herein have the respective meanings assigned in the Agreement. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be
made on the 25th day of each month or, if such 25th 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 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 Bankers Trust Company, as paying agent (the "Paying
Agent"), 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 Paying Agent with
wiring instructions no less
-3-
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. Also notwithstanding the foregoing, any distribution that may be
made with respect to this Certificate in reimbursement of any Realized Loss or
Additional Trust Fund Expense previously allocated to this Certificate, which
reimbursement is to occur after the date on which this Certificate is
surrendered as contemplated by the preceding sentence, will be made by check
mailed to the address of the Holder that surrenders this Certificate as such
address last appears in the Certificate Register or to any such other address of
which the Paying Agent is subsequently notified in writing.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
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
-4-
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-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 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
Paying Agent and the Certificate Registrar and any agent of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, the Paying Agent 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 Paying Agent, 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 Depositor at a price determined as provided in the
Agreement of all Mortgage Loans and each REO Property remaining in the
-5-
Trust Fund. The Agreement permits, but does not require, the Master Servicer or
the Depositor to purchase from the Trust Fund all Mortgage Loans and each REO
Property remaining therein. The exercise of such right will effect early
retirement of the Class A-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 5% 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 and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, including any amendment necessary to
maintain the status of the Trust Fund (or designated portions thereof) 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.
-6-
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate
to be duly executed.
Dated: November 30, 1995
BANKERS TRUST COMPANY,
as Certificate Registrar
By:___________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-2 Certificates referred to in the
within-mentioned Agreement.
BANKERS TRUST COMPANY,
as Authenticating Agent
By:___________________________________
Authorized Officer
-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.
-2-
EXHIBIT A-3
CLASS A-3 CERTIFICATE
CLASS A-3 MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 1995-C3
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.
Initial Pass-Through Class Principal Balance of the Class A-3
Rate: 7.09275% per annum Certificates as of the Closing Date:
$276,748,000
Date of Pooling and Servicing Initial Certificate Principal Balance
Agreement: November 1, 1995 of this Class A-3 Certificate as of
the Closing Date: $200,000,000
Closing Date: November 30, 1995 Aggregate Stated Principal
Balance of the Mortgage Loans
as of the Closing Date: $643,600,376
First Distribution Date:
December 26, 1995
Master Servicer: Trustee:
Bankers Trust Company Union Bank
Special Servicer:
CRIIMI MAE Services Limited
Partnership
Certificate No. 1 CUSIP No. 589-929-KZ0
CLASS A-3 CERTIFICATE
CLASS A-3 MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 1995-C3
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.
Initial Pass-Through Class Principal Balance of the Class A-3
Rate: 7.09275% per annum Certificates as of the Closing Date:
$276,748,000
Date of Pooling and Servicing Initial Certificate Principal Balance
Agreement: November 1, 1995 of this Class A-3 Certificate as of
the Closing Date: $76,748,000
Closing Date: November 30, 1995 Aggregate Stated Principal
Balance of the Mortgage Loans
as of the Closing Date: $643,600,376
First Distribution Date:
December 26, 1995
Master Servicer: Trustee:
Bankers Trust Company Union Bank
Special Servicer:
CRIIMI MAE Services Limited
Partnership
Certificate No. 2 CUSIP No. 589-929-KZ0
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE MASTER SERVICER, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN XXXXXXX
XXXXX MORTGAGE INVESTORS, INC., UNION BANK, BANKERS TRUST COMPANY, CRIIMI MAE
SERVICES LIMITED PARTNERSHIP OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBJECT TO A PRIORITY OF DISTRIBUTION WITH RESPECT TO THE
CLASS A-1 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 INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCES OF THE CLASS A-1 CERTIFICATES
AND CLASS A-2 CERTIFICATES ARE 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, CLASS C, CLASS D,
CLASS E, CLASS F AND CLASS G CERTIFICATES OF THE SAME SERIES IS REDUCED TO ZERO,
THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE, THE CLASS A-1
CERTIFICATES AND THE CLASS A-2 CERTIFICATES MAY BE REDUCED, PRO RATA IN
ACCORDANCE WITH THE OUTSTANDING CERTIFICATE BALANCES OF THE CLASS A-1, CLASS A-2
AND CLASS A-3 CERTIFICATES, BY CERTAIN LOSSES AND EXPENSES EXPERIENCED BY THE
TRUST FUND AS SET FORTH IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN. ACCORDINGLY, THE
-2-
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 specified above (the "Agreement"), among Xxxxxxx Xxxxx
Mortgage Investors, Inc. (hereinafter called the "Depositor", which term
includes any successor entity under the Agreement), Bankers Trust Company (in
such capacity, hereinafter called the "Master Servicer", which term includes any
successor entity under the Agreement), CRIIMI MAE Services Limited Partnership
(in such capacity, hereinafter called the "Special Servicer", which term
includes any successor entity under the Agreement) and Union Bank (hereinafter
called the "Trustee", which term 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, the capitalized terms used
herein have the respective meanings assigned in the Agreement. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
25th day of each month or, if such 25th 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 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 Bankers Trust Company, as paying agent (the "Paying
Agent"), 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 Paying Agent with
wiring instructions no less
-3-
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. Also notwithstanding the foregoing, any distribution that may be
made with respect to this Certificate in reimbursement of any Realized Loss or
Additional Trust Fund Expense previously allocated to this Certificate, which
reimbursement is to occur after the date on which this Certificate is
surrendered as contemplated by the preceding sentence, will be made by check
mailed to the address of the Holder that surrenders this Certificate as such
address last appears in the Certificate Register or to any such other address of
which the Paying Agent is subsequently notified in writing.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
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
-4-
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-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 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
Paying Agent and the Certificate Registrar and any agent of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, the Paying Agent 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 Paying Agent, 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 Depositor at a price determined as provided in the
Agreement of all Mortgage Loans and each REO Property remaining in the
-5-
Trust Fund. The Agreement permits, but does not require, the Master Servicer or
the Depositor to purchase from the Trust Fund all Mortgage Loans and each REO
Property remaining therein. The exercise of such right will effect early
retirement of the Class A 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 5% 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 and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, including any amendment necessary to
maintain the status of the Trust Fund (or designated portions thereof) 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.
-6-
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate
to be duly executed.
Dated: November 30, 1995
BANKERS TRUST COMPANY,
as Certificate Registrar
By:___________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-3 Certificates referred to in the
within-mentioned Agreement.
BANKERS TRUST COMPANY,
as Authenticating Agent
By:___________________________________
Authorized Officer
-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.
-2-
EXHIBIT A-4
CLASS B CERTIFICATE
CLASS B MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 1995-C3
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.
Initial Pass-Through Class Principal Balance of the Class B
Rate: 7.15275% per annum Certificates as of the Closing Date:
$38,616,000
Date of Pooling and Servicing Initial Certificate Principal Balance
Agreement: November 1, 1995 of this Class B Certificate as of the
Closing Date: $38,616,000
Closing Date: November 30, 1995 Aggregate Stated Principal
Balance of the Mortgage Loans
as of the Closing Date:
$643,600,376
First Distribution Date:
December 26, 1995
Master Servicer: Trustee:
Bankers Trust Company Union Bank
Special Servicer:
CRIIMI MAE Services
Limited Partnership
Certificate No. 1 CUSIP No. 589-929-LAY
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE MASTER SERVICER, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN XXXXXXX
XXXXX MORTGAGE INVESTORS, INC., UNION BANK, BANKERS TRUST COMPANY, CRIIMI MAE
SERVICES LIMITED PARTNERSHIP OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1 CERTIFICATES, THE CLASS A-2
CERTIFICATES, THE CLASS A-3 CERTIFICATES AND THE CLASS IO-1 AND CLASS IO-2
CERTIFICATES OF THE SAME SERIES TO THE EXTENT DESCRIBED IN 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, INCLUDING INDIVIDUAL
RETIREMENT ACCOUNTS AND ANNUITIES, XXXXX PLANS AND COLLECTIVE INVESTMENT FUNDS
AND SEPARATE ACCOUNTS IN WHICH SUCH PLANS, ACCOUNTS OR ARRANGEMENTS ARE
INVESTED, THAT IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED ("ERISA"), OR THE INTERNAL REVENUE CODE OF 1986 (THE "CODE")
(ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, A "PLAN") 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 A PLAN (INCLUDING, WITHOUT LIMITATION, ANY INSURANCE COMPANY USING
ASSETS IN ITS GENERAL OR SEPARATE ACCOUNT THAT MAY CONSTITUTE "PLAN ASSETS" OF A
PLAN), PROVIDED THAT SUCH A TRANSFER MAY BE MADE TO AN INSURANCE COMPANY GENERAL
ACCOUNT IF (i) THIS CERTIFICATE IS ELIGIBLE FOR EXEMPTIVE RELIEF UNDER SECTION
III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 ("PTE 95-60"), AND (ii) THE
CONDITIONS OF SECTIONS I, III AND IV OF PTE 95-60 ARE SATISFIED WITH RESPECT TO
SUCH TRANSFER.
-2-
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.
IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCES OF THE CLASS A-1 CERTIFICATES
THE CLASS A-2 CERTIFICATES AND THE CLASS A-3 CERTIFICATES OF THE SAME SERIES ARE
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, CLASS D, CLASS E, CLASS F AND
CLASS G 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 Certificate (obtained by dividing the
principal amount of this Class B Certificate (its "Certificate Principal
Balance") as of the Closing Date by the aggregate principal amount of all the
Class B Certificates (their "Class Principal Balance") as of the Closing Date)
in that certain beneficial ownership interest evidenced by all the Class B
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Xxxxxxx Xxxxx
Mortgage Investors, Inc. (hereinafter called the "Depositor", which term
includes any successor entity under the Agreement), Bankers Trust Company (in
such capacity, hereinafter called the "Master Servicer", which term includes any
successor entity under the Agreement), CRIIMI MAE Services Limited Partnership
(in such capacity, hereinafter called the "Special Servicer", which term
includes any successor entity under the Agreement) and Union Bank (hereinafter
called the "Trustee", which term 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, the capitalized terms used
herein have the respective meanings assigned in the Agreement. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
-3-
Pursuant to the terms of the Agreement, distributions will be made on the
25th day of each month or, if such 25th 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 the Holders of the
Class B Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on this Class B
Certificate will be made by Bankers Trust Company, as paying agent (the "Paying
Agent"), 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 Paying Agent 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. Also notwithstanding the
foregoing, any distribution that may be made with respect to this Certificate in
reimbursement of any Realized Loss or Additional Trust Fund Expense previously
allocated to this Certificate, which reimbursement is to occur after the date on
which this Certificate is surrendered as contemplated by the preceding sentence,
will be made by check mailed to the address of the Holder that surrenders this
Certificate as such address last appears in the Certificate Register or to any
such other address of which the Paying Agent is subsequently notified in
writing.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for
-4-
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 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
Certificates are exchangeable for new Class B 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 B Certificates in authorized
denominations evidencing the same aggregate Percentage Interest will be issued
to the designated transferee or transferees.
No transfer of a Class B Certificate or any interest therein shall be made
to (A) a Plan or (B) any Person who is directly or indirectly purchasing the
Class B Certificate or interest therein on behalf of, as named fiduciary of, as
trustee of, or with assets of a Plan (including, without limitation, any
insurance company using assets in its general or separate account that may
constitute assets of a Plan). As a condition to its registration of the transfer
of a Class B Certificate, the Certificate Registrar shall have the right to
require the prospective transferee of such Certificate, if it is not a Plan or
Person described in clause (B) of the preceding sentence, to execute a
certification to that effect substantially in the form of Exhibit H to the
Agreement.
No service charge will be imposed for any registration of transfer or
exchange of Class B Certificates, but the
-5-
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 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
Paying Agent and the Certificate Registrar and any agent of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, the Paying Agent 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 Paying Agent, 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 Depositor at a price determined as provided in the
Agreement of all Mortgage Loans and each REO Property remaining in the Trust
Fund. The Agreement permits, but does not require, the Master Servicer or the
Depositor to purchase from the Trust Fund all Mortgage Loans and each REO
Property remaining therein. The exercise of such right will effect early
retirement of the Class B 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 5% 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 and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected
-6-
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 hereof 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 the Trust Fund (or designated portions thereof) 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.
-7-
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate
to be duly executed.
Dated: November 30, 1995
BANKERS TRUST COMPANY,
as Certificate Registrar
By:______________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class B Certificates referred to in the within-mentioned
Agreement.
BANKERS TRUST COMPANY,
as Authenticating Agent
By:______________________________________
Authorized Officer
-8-
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.
-2-
EXHIBIT A-5
CLASS C CERTIFICATE
CLASS C MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 1995-C3
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.
Initial Pass-Through Class Principal Balance of the Class C
Rate: 7.37275% per annum Certificates as of the Closing Date:
$32,180,000
Date of Pooling and Servicing Initial Certificate Principal Balance
Agreement: November 1, 1995 of this Class C Certificate as of the
Closing Date: $32,180,000
Closing Date: November 30, 1995 Aggregate Stated Principal Balance of
the Mortgage Loans as of the Closing
Date: $643,600,376
First Distribution Date:
December 26, 1995
Master Servicer: Trustee:
Bankers Trust Company Union Bank
Special Servicer:
CRIIMI MAE Services Limited
Partnership
Certificate No. 1 CUSIP No. 589-929-LB2
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE MASTER SERVICER, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN XXXXXXX
XXXXX MORTGAGE INVESTORS, INC., UNION BANK, BANKERS TRUST COMPANY, CRIIMI MAE
SERVICES LIMITED PARTNERSHIP OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1, CLASS A-2, CLASS A-3, CLASS
IO-1, CLASS IO-2 AND CLASS B CERTIFICATES OF THE SAME SERIES TO THE EXTENT
DESCRIBED IN 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, INCLUDING INDIVIDUAL
RETIREMENT ACCOUNTS AND ANNUITIES, XXXXX PLANS AND COLLECTIVE INVESTMENT FUNDS
AND SEPARATE ACCOUNTS IN WHICH SUCH PLANS, ACCOUNTS OR ARRANGEMENTS ARE
INVESTED, THAT IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED ("ERISA"), OR THE INTERNAL REVENUE CODE OF 1986 (THE "CODE")
(ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, A "PLAN"), OR
(B) TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE ON
BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF A PLAN
(INCLUDING, WITHOUT LIMITATION, ANY INSURANCE COMPANY USING ASSETS IN ITS
GENERAL OR SEPARATE ACCOUNT THAT MAY CONSTITUTE "PLAN ASSETS" OF A PLAN),
PROVIDED THAT SUCH A TRANSFER MAY BE MADE TO AN INSURANCE COMPANY GENERAL
ACCOUNT IF (i) THIS CERTIFICATE IS ELIGIBLE FOR EXEMPTIVE RELIEF UNDER SECTION
III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 ("PTE 95-60"), AND (ii) THE
CONDITIONS OF SECTIONS I, III AND IV OF PTE 95-60 ARE SATISFIED WITH RESPECT TO
SUCH TRANSFER.
-2-
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.
IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS A-1, CLASS A-2,
CLASS A-3 AND CLASS B 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 D, CLASS E, CLASS F AND CLASS G 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 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 specified above (the "Agreement"), among Xxxxxxx Xxxxx
Mortgage Investors, Inc. (hereinafter called the "Depositor", which term
includes any successor entity under the Agreement), Bankers Trust Company (in
such capacity, hereinafter called the "Master Servicer", which term includes any
successor entity under the Agreement), CRIIMI MAE Services Limited Partnership
(in such capacity, hereinafter called the "Special Servicer", which term
includes any successor entity under the Agreement) and Union Bank (hereinafter
called the "Trustee", which term 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, the capitalized terms used
herein have the respective meanings assigned in the Agreement. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
-3-
Pursuant to the terms of the Agreement, distributions will be made on the
25th day of each month or, if such 25th 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 the Holders of the
Class C Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on this Class C
Certificate will be made by Bankers Trust company, as paying agent (the "Paying
Agent"), 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 Paying Agent 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. Also notwithstanding the
foregoing, any distribution that may be made with respect to this Certificate in
reimbursement of any Realized Loss or Additional Trust Fund Expense previously
allocated to this Certificate, which reimbursement is to occur after the date on
which this Certificate is surrendered as contemplated by the preceding sentence,
will be made by check mailed to the address of the Holder that surrenders this
Certificate as such address last appears in the Certificate Register or to any
such other address of which the Paying Agent is subsequently notified in
writing.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for
-4-
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.
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 transfer of a Class C Certificate or any interest therein shall be made
to (A) a Plan or (B) any Person who is directly or indirectly purchasing the
Class C Certificate or interest therein on behalf of, as named fiduciary of, as
trustee of, or with assets of a Plan (including, without limitation, any
insurance company using assets in its general or separate account that may
constitute assets of a Plan). As a condition to its registration of transfer of
a Class C Certificate, the Certificate Registrar shall have the right to require
the prospective transferee of such Certificate, if it is not a Plan or Person
described in clause (B) of the preceding sentence, to execute a certification to
that effect substantially in the form of Exhibit H to the Agreement.
No service charge will be imposed for any registration of transfer or
exchange of Class C Certificates, but the
-5-
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.
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
Paying Agent and the Certificate Registrar and any agent of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, the Paying Agent 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 Paying Agent, 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 Depositor at a price determined as provided in the
Agreement of all Mortgage Loans and each REO Property remaining in the Trust
Fund. The Agreement permits, but does not require, the Master Servicer or the
Depositor to purchase from the Trust Fund all Mortgage Loans and each REO
Property remaining therein. The exercise of such right will 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 5% 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 and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected
-6-
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 the Trust Fund (or designated portions thereof) 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.
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate
to be duly executed.
Dated: November 30, 1995
BANKERS TRUST COMPANY,
as Certificate Registrar
By:____________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class C Certificates referred to in the within-mentioned
Agreement.
-7-
BANKERS TRUST COMPANY,
as Authenticating Agent
By:__________________________________
Authorized Officer
-8-
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.
-2-
EXHIBIT A-6
CLASS D CERTIFICATE
CLASS D MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 1995-C3
evidencing a beneficial ownership interest in a trust fund (the "Trust
Fund") consisting primarily of a pool of multifamily and commercial mortgage
loans (the "Mortgage Loans"), such pool being formed and sold by
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.
Initial Pass-Through Class Principal Balance of
Rate: 7.81275% per annum the Class D Certificates
as of the Closing Date:
$38,616,000
Date of Pooling and Servicing Initial Certificate Principal
Agreement: November 1, 1995 Balance of this Class D
Certificate as of the Closing
Date: $38,616,000
Closing Date: November 30, 1995 Aggregate Stated Principal
Balance of the Mortgage Loans
as of the Closing Date:
$643,600,376
First Distribution Date:
December 26, 1995
Master Servicer: Trustee:
Bankers Trust Company Union Bank
Special Servicer:
CRIIMI MAE Services Limited
Partnership
Certificate No. 1 CUSIP No. 589-929-LCO
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE MASTER SERVICER, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN XXXXXXX
XXXXX MORTGAGE INVESTORS, INC., UNION BANK, BANKERS TRUST COMPANY, CRIIMI MAE
SERVICES LIMITED PARTNERSHIP OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1, CLASS A-2, CLASS A-3, CLASS
IO-1, CLASS IO-2, CLASS B AND CLASS C CERTIFICATES OF THE SAME SERIES TO THE
EXTENT DESCRIBED IN 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, INCLUDING INDIVIDUAL
RETIREMENT ACCOUNTS AND ANNUITIES, XXXXX PLANS AND COLLECTIVE INVESTMENT FUNDS
AND SEPARATE ACCOUNTS IN WHICH SUCH PLANS, ACCOUNTS OR ARRANGEMENTS ARE
INVESTED, (B) THAT IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED ("ERISA"), OR THE INTERNAL REVENUE CODE OF 1986 (THE "CODE")
(ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, A "PLAN"), 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 A PLAN (INCLUDING, WITHOUT LIMITATION, ANY INSURANCE COMPANY USING
ASSETS IN ITS GENERAL OR SEPARATE ACCOUNT THAT MAY CONSTITUTE "PLAN ASSETS" OF A
PLAN); PROVIDED THAT SUCH A TRANSFER MAY BE MADE TO AN INSURANCE COMPANY GENERAL
ACCOUNT IF (i) THIS CERTIFICATE IS ELIGIBLE FOR EXEMPTIVE RELIEF UNDER SECTION
III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 ("PTE 95-60"), AND (ii) THE
CONDITIONS OF SECTIONS I, III AND IV OF PTE 95-60 ARE SATISFIED WITH RESPECT TO
SUCH TRANSFER.
-2-
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.
IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS A-1, CLASS A-2,
CLASS A-3, CLASS B AND CLASS C 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 E, CLASS F AND CLASS G 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 D Certificate (obtained by dividing the
principal amount of this Class D Certificate (its "Certificate Principal
Balance") as of the Closing Date by the aggregate principal amount of all the
Class D Certificates (their "Class Principal Balance") as of the Closing Date)
in that certain beneficial ownership interest evidenced by all the Class D
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Xxxxxxx Xxxxx
Mortgage Investors, Inc. (hereinafter called the "Depositor", which term
includes any successor entity under the Agreement), Bankers Trust Company (in
such capacity, hereinafter called the "Master Servicer", which term includes any
successor entity under the Agreement), CRIIMI MAE Services Limited Partnership
(in such capacity, hereinafter called the "Special Servicer", which term
includes any successor entity under the Agreement) and Union Bank (hereinafter
called the "Trustee", which term 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, the capitalized terms used
herein have the respective meanings assigned in the Agreement. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
-3-
Pursuant to the terms of the Agreement, distributions will be made on the
25th day of each month or, if such 25th 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 the Holders of the
Class D Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on this Class D
Certificate will be made by Bankers Trust Company, as paying agent (the "Paying
Agent"), 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 Paying Agent 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 Holders hereof of such final distribution. Also notwithstanding
the foregoing, any distribution that may be made with respect to this
Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appears in the
Certificate Register or to any such other address of which the Paying Agent is
subsequently notified in writing.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for
-4-
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 D 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 D
Certificates are exchangeable for new Class D 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 D Certificates in authorized
denominations evidencing the same aggregate Percentage Interest will be issued
to the designated transferee or transferees.
No transfer of a Class D Certificate or any interest therein shall be made
to (A) a Plan or (B) any Person who is directly or indirectly purchasing the
Class D Certificate or interest therein on behalf of, as named fiduciary of, as
trustee of, or with assets of a Plan (including, without limitation, any
insurance company using assets in its general or separate account that may
constitute assets of a Plan). As a condition to its registration of transfer of
a Class D Certificate, the Certificate Registrar shall have the right to require
the prospective transferee of such Certificate, if it is not a Plan or Person
described in clause (B) of the preceding sentence, to execute a certification to
that effect substantially in the form of Exhibit H to the Agreement.
No service charge will be imposed for any registration of transfer or
exchange of Class D Certificates, but the
-5-
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 D 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
Paying Agent and the Certificate Registrar and any agent of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, the Paying Agent 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 Paying Agent, 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 Depositor at a price determined as provided in the
Agreement of all Mortgage Loans and each REO Property remaining in the Trust
Fund. The Agreement permits, but does not require, the Master Servicer or the
Depositor to purchase from the Trust Fund all Mortgage Loans and each REO
Property remaining therein. The exercise of such right will effect early
retirement of the Class D 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 5% 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 and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected
-6-
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 the Trust Fund (or designated portions thereof) 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.
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate
to be duly executed.
Dated: November 30, 1995
BANKERS TRUST COMPANY,
as Certificate Registrar
By: _______________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class D Certificates referred to in the within-mentioned
Agreement.
BANKERS TRUST COMPANY,
as Authenticating Agent
By: _______________________
Authorized Officer
-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.
EXHIBIT A-7
CLASS E CERTIFICATE
CLASS E MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 1995-C3
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.
Initial Pass-Through Class Principal Balance of
Rate: 8.53275% per annum the Class E Certificates
as of the Closing Date:
$45,052,000
Date of Pooling and Servicing Initial Certificate Principal
Agreement: November 1, 1995 Balance of this Class E
Certificate as of the Closing
Date: $45,052,000
Closing Date: November 30, 1995 Aggregate Stated Principal
Balance of the Mortgage Loans
as of the Closing Date:
$643,600,376
First Distribution Date:
December 26, 1995
Master Servicer: Trustee:
Bankers Trust Company Union Bank
Special Servicer: CUSIP No. 589-929-LE6
CRIIMI MAE Services Limited
Partnership
Certificate No. 2
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN XXXXXXX
XXXXX MORTGAGE INVESTORS, INC., UNION BANK, BANKERS TRUST COMPANY, CRIIMI MAE
SERVICES LIMITED PARTNERSHIP OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1, CLASS A-2, CLASS A-3, CLASS
IO-1, CLASS IO-2, CLASS B, CLASS C AND CLASS D CERTIFICATES OF THE SAME SERIES
TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933 (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE. ANY RESALE,
TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH REGISTRATION OR
QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH
REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS OF SECTION
5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT THAT IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED ("ERISA"), OR THE INTERNAL REVENUE CODE OF 1986 (THE "CODE"),
OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE ON
BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, WILL BE REGISTERED EXCEPT
IN COMPLIANCE WITH THE PROCEDURES DESCRIBED 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.
IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS A-1, CLASS A-2,
CLASS A-3, CLASS B, CLASS C AND CLASS D 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 F AND CLASS G CERTIFICATES OF THE
SAME SERIES IS REDUCED TO ZERO, THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE REDUCED BY CERTAIN LOSSES AND EXPENSES
-2-
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 E
Certificate (obtained by dividing the principal amount of this Class E
Certificate (its "Certificate Principal Balance") as of the Closing Date by the
aggregate principal amount of all the Class E Certificates (their "Class
Principal Balance") as of the Closing Date) in that certain beneficial ownership
interest evidenced by all the Class E Certificates in the Trust Fund created
pursuant to a Pooling and Servicing Agreement, dated as specified above (the
"Agreement"), among Xxxxxxx Xxxxx Mortgage Investors, Inc. (hereinafter called
the "Depositor", which term includes any successor entity under the Agreement),
Bankers Trust Company (in such capacity, hereinafter called the "Master
Servicer", which term includes any successor entity under the Agreement), CRIIMI
MAE Services Limited Partnership (in such capacity, hereinafter called the
"Special Servicer", which term includes any successor entity under the
Agreement) and Union Bank (hereinafter called the "Trustee", which term 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,
the capitalized terms used herein have the respective meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
25th day of each month or, if such 25th 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 the Holders of the
Class E Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on this Class E
Certificate will be made by Bankers Trust Company, as paying agent (the "Paying
Agent"), by wire transfer of immediately available funds to the account of the
Person entitled
-3-
thereto at a bank or other entity having appropriate facilities therefor,
if such Certificateholder shall have provided the Paying Agent 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. Also notwithstanding the foregoing,
any distribution that may be made with respect to this Certificate in
reimbursement of any Realized Loss or Additional Trust Fund Expense previously
allocated to this Certificate, which reimbursement is to occur after the date on
which this Certificate is surrendered as contemplated by the preceding sentence,
will be made by check mailed to the address of the Holder that surrenders this
Certificate as such address last appears in the Certificate Register or to any
such other address of which the Paying Agent is subsequently notified in
writing.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
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 E Certificates are issuable in fully registered form only without
coupons in minimum denominations
-4-
specified in the Agreement. As provided in the Agreement and subject to
certain limitations therein set forth, Class E Certificates are exchangeable for
new Class E 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 E Certificates in authorized
denominations evidencing the same aggregate Percentage Interest will be issued
to the designated transferee or transferees.
No transfer of any Class E Certificate shall be made unless that transfer
is made pursuant to an effective registration statement under the Securities
Act, and effective registration or qualification under applicable state
securities laws, or is made in a transaction which does not require such
registration under the Securities Act (other than in connection with the initial
issuance thereof or the initial transfer thereof by the Depositor or any of its
affiliates), then the Certificate Registrar shall refuse to register such
transfer unless it receives either: (i) a certificate from the Certificateholder
desiring to effect such transfer substantially in the form attached as Exhibit
G-1 to the Agreement, and a certificate from such Certificateholder's
prospective transferee substantially in the form attached as either Exhibit G-2
or Exhibit G-3 to the Agreement; or (ii) an Opinion of Counsel satisfactory to
the Certificate Registrar 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 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 the Class E
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
Class E Certificate without registration or qualification. Any Class E
Certificateholder desiring to effect such a transfer shall, and by the
acceptance of its Class E
-5-
Certificate agrees to, indemnify the Trustee, the Certificate Registrar
and the Depositor 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 Class E Certificate or any interest therein shall be made
to (A) any employee benefit plan or other retirement arrangement, including
individual retirement accounts and annuities, Xxxxx plans and collective
investment funds and separate accounts in which such plans, accounts or
arrangements are invested, that is subject to ERISA or the Code (each, a "Plan")
or (B) any Person who is directly or indirectly purchasing the Class E
Certificate or interest therein on behalf of as named fiduciary of, as trustee
of, or with assets of a Plan (including, without limitation, any insurance
company using assets in its general or separate account that may constitute
assets of a Plan), unless the prospective transferee provides the Certificate
Registrar with a certification of facts and an Opinion of Counsel that establish
to the satisfaction of the Certificate Registrar that such transfer will not
result in a violation of Section 406 of ERISA or Section 4975 of the Code or
result in the imposition of an excise tax under Section 4975 of the Code. As a
condition to this registration of transfer of a Class E Certificate, the
Certificate Registrar shall have the right to require the prospective transferee
of such Certificate, if it is not a Plan or Person described in clause (B) of
the preceding sentence, to execute a certification to that effect substantially
in the form of Exhibit H to the Agreement.
No service charge will be imposed for any registration of transfer or
exchange of Class E Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Class E
Certificates.
The Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Paying Agent and the Certificate Registrar and any agent of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, the Paying Agent 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 Paying Agent, 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
-6-
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 Depositor at a price determined as provided in the Agreement of
all Mortgage Loans and each REO Property remaining in the Trust Fund. The
Agreement permits, but does not require, the Master Servicer or the Depositor to
purchase from the Trust Fund all Mortgage Loans and each REO Property remaining
therein. The exercise of such right will effect early retirement of the Class E
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
5% 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 and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, including any amendment necessary to
maintain the status of the Trust Fund (or designated portions thereof) 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
-7-
obligations, rights and remedies of the Holder hereof shall be determined
in accordance with such laws.
-8-
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate
to be duly executed.
Dated: November 30, 1995
BANKERS TRUST COMPANY, as
Certificate Registrar
By: ______________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class E Certificates referred to in the
within-mentioned Agreement.
BANKERS TRUST COMPANY,
as Authenticating Agent
By: ______________________________
Authorized Officer
-9-
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
CLASS F CERTIFICATE
CLASS F MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 1995-C3
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.
Initial Pass-Through Class Principal Balance of
Rate: 8.53275% per annum the Class F Certificates as
of the Closing Date:
$28,963,000
Date of Pooling and Servicing Initial Certificate Principal
Agreement: November 1, 1995 Balance of this Class F
Certificate as of the Closing
Date: $28,963,000
Closing Date: November 30, 1995 Aggregate Stated Principal
Balance of the Mortgage Loans
as of the Closing Date:
$643,600,376
First Distribution Date:
December 26, 1995
Master Servicer: Trustee:
Bankers Trust Company Union Bank
Special Servicer: CUSIP No. 589-929-LF3
CRIIMI MAE Services Limited
Partnership
Certificate No. 2
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN XXXXXXX
XXXXX MORTGAGE INVESTORS, INC., UNION BANK, BANKERS TRUST COMPANY, CRIIMI MAE
SERVICES LIMITED PARTNERSHIP OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1, CLASS A-2, CLASS A-3, CLASS
IO-1, CLASS IO-2, CLASS B, CLASS C, CLASS D AND CLASS E CERTIFICATES OF THE SAME
SERIES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED
TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933 (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE. ANY RESALE,
TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH REGISTRATION OR
QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH
REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS OF SECTION
5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT THAT IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED ("ERISA"), OR THE INTERNAL REVENUE CODE OF 1986 (THE "CODE"),
OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE ON
BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, WILL BE REGISTERED EXCEPT
IN COMPLIANCE WITH THE PROCEDURES DESCRIBED 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.
IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS A-1, CLASS A-2,
CLASS A-3, CLASS B, CLASS C, CLASS D AND CLASS E 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 G 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
-2-
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 F
Certificate (obtained by dividing the principal amount of this Class F
Certificate (its "Certificate Principal Balance") as of the Closing Date by the
aggregate principal amount of all the Class F Certificates (their "Class
Principal Balance") as of the Closing Date) in that certain beneficial ownership
interest evidenced by all the Class F Certificates in the Trust Fund created
pursuant to a Pooling and Servicing Agreement, dated as specified above (the
"Agreement"), among Xxxxxxx Xxxxx Mortgage Investors, Inc. (hereinafter called
the "Depositor", which term includes any successor entity under the Agreement),
CRIIMI MAE Services Limited Partnership (in such capacity, hereinafter called
the "Master Servicer", which term includes any successor entity under the
Agreement), Bankers Trust Company (in such capacity, hereinafter called the
"Special Servicer", which term includes any successor entity under the
Agreement) and Union Bank (hereinafter called the "Trustee", which term 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,
the capitalized terms used herein have the respective meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
25th day of each month or, if such 25th 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 the Holders of the
Class F Certificates on the applicable Distribution Date pursuant to the
Agreement. All Distributions made under the Agreement on this Class F
Certificate will be made by Bankers Trust Company, as paying agent (the "Paying
Agent"), by wire transfer of immediately available funds to the account of the
Person entitled
-3-
thereto at a bank or other entity having appropriate facilities therefor,
if such Certificateholder shall have provided the Paying Agent 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. Also notwithstanding the foregoing,
any distribution that may be made with respect to this Certificate in
reimbursement of any Realized Loss or Additional Trust Fund Expense previously
allocated to this Certificate, which reimbursement is to occur after the date on
which this Certificate is surrendered as contemplated by the preceding sentence,
will be made by check mailed to the address of the Holder that surrenders this
Certificate as such address last appears in the Certificate Register or to any
such other address of which the Paying Agent is subsequently notified in
writing.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
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 F Certificates are issuable in fully registered form only without
coupons in minimum denominations
-4-
specified in the Agreement. As provided in the Agreement and subject to
certain limitations therein set forth, Class F Certificates are exchangeable for
new Class F 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 F Certificates in authorized
denominations evidencing the same aggregate Percentage Interest will be issued
to the designated transferee or transferees.
No transfer of any Class F Certificate shall be made unless that transfer
is made pursuant to an effective registration statement under the Securities
Act, and effective registration or qualification under applicable state
securities laws, or is made in a transaction which does not require such
registration under the Securities Act (other than in connection with the initial
issuance thereof or the initial transfer thereof by the Depositor or any of its
affiliates), then the Certificate Registrar shall refuse to register such
transfer unless it receives either: (i) a certificate from the Certificateholder
desiring to effect such transfer substantially in the form attached as Exhibit
G-1 to the Agreement, and a certificate from such Certificateholder's
prospective transferee substantially in the form attached as either Exhibit G-2
or Exhibit G-3 to the Agreement; or (ii) an Opinion of Counsel satisfactory to
the Certificate Registrar 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 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 the Class F
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
Class F Certificate without registration or qualification. Any Class F
Certificateholder desiring to effect such a transfer shall, and by the
acceptance of its Class F
-5-
Certificate agrees to, indemnify the Trustee, the Certificate Registrar and
the Depositor 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 Class F Certificate or any interest therein shall be made
to (A) any employee benefit plan or other retirement arrangement, including
individual retirement accounts and annuities, Xxxxx plans and collective
investment funds and separate accounts in which such plans, accounts or
arrangements are invested, that is subject to ERISA or the Code (each, a "Plan")
or (B) any Person who is directly or indirectly purchasing the Class F
Certificate or interest therein on behalf of as named fiduciary of, as trustee
of, or with assets of a Plan (including, without limitation, any insurance
company using assets in its general or separate account that may constitute
assets of a Plan), unless the prospective transferee provides the Certificate
Registrar with a certification of facts and an Opinion of Counsel that establish
to the satisfaction of the Certificate Registrar that such transfer will not
result in a violation of Section 406 of ERISA or Section 4975 of the Code or
result in the imposition of an excise tax under Section 4975 of the Code. As a
condition to this registration of transfer of a Class F Certificate, the
Certificate Registrar shall have the right to require the prospective transferee
of such Certificate, if it is not a Plan or Person described in clause (B) of
the preceding sentence, to execute a certification to that effect substantially
in the form of Exhibit H to the Agreement.
No service charge will be imposed for any registration of transfer or
exchange of Class F Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Class F
Certificates.
The Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Paying Agent and the Certificate Registrar and any agent of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, the Paying Agent 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 Paying Agent, 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
-6-
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 Depositor at a price determined as provided in the Agreement of
all Mortgage Loans and each REO Property remaining in the Trust Fund. The
Agreement permits, but does not require, the Master Servicer or the Depositor to
purchase from the Trust Fund all Mortgage Loans and each REO Property remaining
therein. The exercise of such right will effect early retirement of the Class F
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
5% 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 and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, including any amendment necessary to
maintain the status of the Trust Fund (or designated portions thereof) 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
-7-
obligations, rights and remedies of the Holder hereof shall be determined in
accordance with such laws.
-8-
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate
to be duly executed.
Dated: November 30, 1995
BANKERS TRUST COMPANY, as
Certificate Registrar
By: _________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class F Certificates referred to in the within-mentioned
Agreement.
BANKERS TRUST COMPANY,
as Authenticating Agent
By: _________________________________
Authorized Officer
-9-
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.
-2-
EXHIBIT A-9
CLASS G CERTIFICATE
CLASS G MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 1995-C3
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.
Initial Pass-Through Class Principal Balance of
Rate: 8.53275% per annum the Class G Certificates as
of the Closing Date:
$16,090,863
Date of Pooling and Servicing Initial Certificate Principal
Agreement: November 1, 1995 Balance of this Class G
Certificate as of the Closing
Date: $16,090,863
Closing Date: November 30, 1995 Aggregate Stated Principal
Balance of the Mortgage Loans
as of the Closing Date:
$643,600,376
First Distribution Date:
December 26, 1995
Master Servicer: Trustee:
Bankers Trust Company Union Bank
Special Servicer: CUSIP No. 589-929-LG1
CRIIMI MAE Services Limited
Partnership
Certificate No. 1
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN XXXXXXX
XXXXX MORTGAGE INVESTORS, INC., UNION BANK, BANKERS TRUST COMPANY, CRIIMI MAE
SERVICES LIMITED PARTNERSHIP OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1, CLASS A-2, CLASS A-3, CLASS
IO-1, CLASS IO-2, CLASS B, CLASS C, CLASS D, CLASS E AND CLASS F CERTIFICATES OF
THE SAME SERIES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933 (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE. ANY RESALE,
TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH REGISTRATION OR
QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH
REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS OF SECTION
5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT THAT IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED ("ERISA"), OR THE INTERNAL REVENUE CODE OF 1986 (THE "CODE"),
OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE ON
BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, WILL BE REGISTERED EXCEPT
IN COMPLIANCE WITH THE PROCEDURES DESCRIBED HEREIN.
SOLELY FOR U.S. FEDERAL 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.
IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS A-1, CLASS A-2,
CLASS A-3, CLASS B, CLASS C, CLASS D AND CLASS E 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
-2-
BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies ________________________________________________ is the
registered owner of the Percentage Interest evidenced by this Class G
Certificate (obtained by dividing the principal amount of this Class G
Certificate (its "Certificate Principal Balance") as of the Closing Date by the
aggregate principal amount of all the Class G Certificates (their "Class
Principal Balance") as of the Closing Date) in that certain beneficial ownership
interest evidenced by all the Class G Certificates in the Trust Fund created
pursuant to a Pooling and Servicing Agreement, dated as specified above (the
"Agreement"), among Xxxxxxx Xxxxx Mortgage Investors, Inc. (hereinafter called
the "Depositor", which term includes any successor entity under the Agreement),
CRIIMI MAE Services Limited Partnership (in such capacity, hereinafter called
the "Master Servicer", which term includes any successor entity under the
Agreement), Bankers Trust Company (in such capacity, hereinafter called the
"Special Servicer", which term includes any successor entity under the
Agreement) and Union Bank (hereinafter called the "Trustee", which term 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,
the capitalized terms used herein have the respective meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
25th day of each month or, if such 25th 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 the Holders of the
Class G Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on this Class G
Certificate will be made by Bankers Trust Company, as paying agent (the "Paying
Agent"), 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
-3-
Paying Agent 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. Also
notwithstanding the foregoing, any distribution that may be made with respect to
this Certificate in reimbursement of any Realized Loss or Additional Trust Fund
Expense previously allocated to this Certificate, which reimbursement is to
occur after the date on which this Certificate is surrendered as contemplated by
the preceding sentence, will be made by check mailed to the address of the
Holder that surrenders this Certificate as such address last appears in the
Certificate Register or to any such other address of which the Paying Agent is
subsequently notified in writing.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
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 G 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 G
-4-
Certificates are exchangeable for new Class G 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 G Certificates in authorized
denominations evidencing the same aggregate Percentage Interest will be issued
to the designated transferee or transferees.
No transfer of any Class G Certificate shall be made unless that transfer
is made pursuant to an effective registration statement under the Securities
Act, and effective registration or qualification under applicable state
securities laws, or is made in a transaction which does not require such
registration under the Securities Act (other than in connection with the initial
issuance thereof or the initial transfer thereof by the Depositor or any of its
affiliates), then the Certificate Registrar shall refuse to register such
transfer unless it receives either: (i) a certificate from the Certificateholder
desiring to effect such transfer substantially in the form attached as Exhibit
G-1 to the Agreement, and a certificate from such Certificateholder's
prospective transferee substantially in the form attached as either Exhibit G-2
or Exhibit G-3 to the Agreement; or (ii) an Opinion of Counsel satisfactory to
the Certificate Registrar 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 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 the Class G
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
Class G Certificate without registration or qualification. Any Class G
Certificateholder desiring to effect such a transfer shall, and by the
acceptance of its Class G Certificate agrees to, indemnify the Trustee, the
Certificate Registrar and the Depositor against any liability that may result
-5-
if the transfer is not so exempt or is not made in accordance with such
federal and state laws.
No transfer of a Class G Certificate or any interest therein shall be made
to (A) any employee benefit plan or other retirement arrangement, including
individual retirement accounts and annuities, Xxxxx plans and collective
investment funds and separate accounts in which such plans, accounts or
arrangements are invested, that is subject to ERISA or the Code (each, a "Plan")
or (B) any Person who is directly or indirectly purchasing the Class G
Certificate or interest therein on behalf of as named fiduciary of, as trustee
of, or with assets of a Plan (including, without limitation, any insurance
company using assets in its general or separate account that may constitute
assets of a Plan), unless the prospective transferee provides the Certificate
Registrar with a certification of facts and an Opinion of Counsel that establish
to the satisfaction of the Certificate Registrar that such transfer will not
result in a violation of Section 406 of ERISA or Section 4975 of the Code or
result in the imposition of an excise tax under Section 4975 of the Code. As a
condition to this registration of transfer of a Class G Certificate, the
Certificate Registrar shall have the right to require the prospective transferee
of such Certificate, if it is not a Plan or Person described in clause (B) of
the preceding sentence, to execute a certification to that effect substantially
in the form of Exhibit H to the Agreement.
No service charge will be imposed for any registration of transfer or
exchange of Class G Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Class G
Certificates.
The Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Paying Agent and the Certificate Registrar and any agent of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, the Paying Agent 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 Paying Agent, 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
-6-
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 Depositor at a price determined as
provided in the Agreement of all Mortgage Loans and each REO Property remaining
in the Trust Fund. The Agreement permits, but does not require, the Master
Servicer or the Depositor to purchase from the Trust Fund all Mortgage Loans and
each REO Property remaining therein. The exercise of such right will effect
early retirement of the Class G 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 5% 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 and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
consent is made upon this Certificate. The Agreement also permits the amendment
thereof, in certain limited circumstances, including any amendment necessary to
maintain the status of the Trust Fund (or designated portions thereof) 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.
-7-
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate
to be duly executed.
Dated: November 30, 1995
BANKERS TRUST COMPANY, as
Certificate Registrar
By: _________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class G Certificates referred to in the within-mentioned
Agreement.
BANKERS TRUST COMPANY,
as Authenticating Agent
By: _________________________________
Authorized Officer
-8-
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.
-2-
EXHIBIT A-10
CLASS IO-1 CERTIFICATE
CLASS IO-1 MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 1995-C3
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.
Initial Pass-Through Class Notional Amount of the
Rate: 1.72846% per annum Class IO-1 Certificates as of
the Closing Date:
$167,336,000
Date of Pooling and Servicing Initial Certificate Notional
Agreement: November 1, 1995 Amount of this Class IO-1
Certificate as of the Closing
Date: $167,336,000
Closing Date: November 30, 1995 Aggregate Stated Principal
Balance of the Mortgage Loans
as of the Closing Date:
$643,600,376
First Distribution Date:
December 26, 1995
Master Servicer: Trustee:
Bankers Trust Company Union Bank
Special Servicer:
CRIIMI MAE Services Limited
Partnership
Certificate No. 1 CUSIP No. 589-929-LD8
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE MASTER SERVICER, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN XXXXXXX
XXXXX MORTGAGE INVESTORS, INC., UNION BANK, BANKERS TRUST COMPANY, CRIIMI MAE
SERVICES LIMITED PARTNERSHIP OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE 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 INTERNAL
REVENUE CODE OF 1986 (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
NOVEMBER 30, 1995. ASSUMING THAT THE MORTGAGE LOANS PREPAY AT AN ASSUMED RATE OF
PREPAYMENT USED SOLELY FOR THE PURPOSES OF APPLYING THE OID RULES TO THE
CERTIFICATES EQUAL TO A CPR (AS DEFINED IN THE PROSPECTUS DATED NOVEMBER 14,
1995 AND THE PROSPECTUS SUPPLEMENT DATED NOVEMBER 27, 1995 RELATING TO THIS
CERTIFICATE) OF 0% (THE "PREPAYMENT ASSUMPTION"), THIS $167,336,000 OF INITIAL
CERTIFICATE NOTIONAL AMOUNT, THE YIELD TO MATURITY IS 11.82% PER ANNUM, AND THE
AMOUNT OF OID ATTRIBUTABLE TO THE INITIAL ACCRUAL PERIOD IS NO MORE THAN $4,813
PER $1,000 OF INITIAL CERTIFICATE NOTIONAL AMOUNT, COMPUTED UNDER THE EXACT
METHOD. NO REPRESENTATION IS MADE THAT THE MORTGAGE LOANS WILL PREPAY AT A RATE
BASED ON THE PREPAYMENT ASSUMPTION OR AT ANY OTHER 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
-2-
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 IO-1 Certificate (obtained by dividing the
notional amount of this Class IO-1 Certificate (its "Certificate Notional
Amount") as of the Closing Date by the aggregate notional amount of all the
Class IO-1 Certificates (their "Class Notional Amount") as of the Closing Date)
in that certain beneficial ownership interest evidenced by all the Class IO-1
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Xxxxxxx Xxxxx
Mortgage Investors, Inc. (hereinafter called the "Depositor", which term
includes any successor entity under the Agreement), Bankers Trust Company (in
such capacity, hereinafter called the "Master Servicer", which term includes any
successor entity under the Agreement), CRIIMI MAE Services Limited Partnership
(in such capacity, hereinafter called the "Special Servicer", which term
includes any successor entity under the Agreement) and Union Bank (hereinafter
called the "Trustee", which term 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, the capitalized terms used
herein have the respective meanings assigned in the Agreement. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
25th day of each month or, if such 25th 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 the Holders of the
Class IO-1 Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on the Class IO-1
Certificates will be made by Bankers Trust Company, as paying agent (the "Paying
Agent"), 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 Paying Agent with
wiring instructions no less
-3-
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 Class IO-1 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 Certificateholders
of such final distribution.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Class IO-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
IO-1 Certificates are exchangeable for new Class IO-1 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 IO 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 IO-1 Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in
-4-
connection with any transfer or exchange of Class IO 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
Paying Agent and the Certificate Registrar and any agent of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, the Paying Agent 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 Paying Agent,
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 Depositor at a price determined as provided in the
Agreement of all Mortgage Loans and each REO Property remaining in the Trust
Fund. The Agreement permits, but does not require, the Master Servicer or the
Depositor to purchase from the Trust Fund all Mortgage Loans and each REO
Property remaining therein. The exercise of such right will effect early
retirement of the Class IO 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 5% 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 and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all
-5-
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 the Trust Fund (or designated portions
thereof) 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.
-6-
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate
to be duly executed.
Dated: November 30, 1995
BANKERS TRUST COMPANY, as
Certificate Registrar
By:________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class IO-1 Certificates referred to in the
within-mentioned Agreement.
BANKERS TRUST COMPANY,
as Authenticating Agent
By:_________________________________
Authorized Officer
-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.
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EXHIBIT A-11
CLASS IO-2 CERTIFICATE
CLASS IO-2 MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 1995-C3
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.
Initial Pass-Through Class Notional Amount of the
Rate: 1.33867% per annum Class I0-2 Certificates as of
the Closing Date: $386,160,000
Date of Pooling and Servicing Initial Certificate Notional
Agreement: November 1, 1995 Amount of this Class IO
Certificate as of the Closing
Date: $200,000,000
Closing Date: November 30, 1995 Aggregate Stated Principal
Balance of the Mortgage Loans
as of the Closing Date:
$643,600,376
First Distribution Date:
December 26, 1995
Master Servicer: Trustee:
Bankers Trust Company Union Bank
Special Servicer:
CRIIMI MAE Services Limited
Partnership
Certificate No. 1 CUSIP No. 589-929-LH9
CLASS IO-2 CERTIFICATE
CLASS IO-2 MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 1995-C3
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.
Initial Pass-Through Class Notional Amount of the
Rate: 1.33867% per annum Class IO-2 Certificates as of
the Closing Date:
$386,160,000
Date of Pooling and Servicing Initial Certificate Notional
Agreement: November 1, 1995 Amount of this Class IO
Certificate as of the Closing
Date: $186,160,000
Closing Date: November 30, 1995 Aggregate Stated Principal
Balance of the Mortgage Loans
as of the Closing Date:
$643,600,376
First Distribution Date:
December 26, 1995
Master Servicer: Trustee:
Bankers Trust Company Union Bank
Special Servicer:
CRIIMI MAE Services Limited
Partnership
Certificate No. 2 CUSIP No. 589-929-LH9
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE MASTER SERVICER, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN XXXXXXX
XXXXX MORTGAGE INVESTORS, INC., UNION BANK, BANKERS TRUST COMPANY, CRIIMI MAE
SERVICES LIMITED PARTNERSHIP OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE 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 INTERNAL
REVENUE CODE OF 1986 (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
NOVEMBER 30, 1995. ASSUMING THAT THE MORTGAGE LOANS PREPAY AT AN ASSUMED RATE OF
PREPAYMENT USED SOLELY FOR THE PURPOSES OF APPLYING THE OID RULES TO THE
CERTIFICATES EQUAL TO A CPR (AS DEFINED IN THE PROSPECTUS DATED NOVEMBER 14,
1995 AND THE PROSPECTUS SUPPLEMENT DATED NOVEMBER 27, 1995 RELATING TO THIS
CERTIFICATE) OF 0% (THE "PREPAYMENT ASSUMPTION"), THIS $386,160,000 OF INITIAL
CERTIFICATE NOTIONAL AMOUNT, THE YIELD TO MATURITY IS 11.82% PER ANNUM, AND THE
AMOUNT OF OID ATTRIBUTABLE TO THE INITIAL ACCRUAL PERIOD IS NO MORE THAN $20,439
PER $1,000 OF INITIAL CERTIFICATE NOTIONAL AMOUNT, COMPUTED UNDER THE EXACT
METHOD. NO REPRESENTATION IS MADE THAT THE MORTGAGE LOANS WILL PREPAY AT A RATE
BASED ON THE PREPAYMENT ASSUMPTION OR AT ANY OTHER 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
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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 IO-2 Certificate (obtained by dividing the
notional amount of this Class IO-2 Certificate (its "Certificate Notional
Amount") as of the Closing Date by the aggregate notional amount of all the
Class IO-2 Certificates (their "Class Notional Amount") as of the Closing Date)
in that certain beneficial ownership interest evidenced by all the Class IO-2
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the "Agreement"), among Xxxxxxx Xxxxx
Mortgage Investors, Inc. (hereinafter called the "Depositor", which term
includes any successor entity under the Agreement), Bankers Trust Company (in
such capacity, hereinafter called the "Master Servicer", which term includes any
successor entity under the Agreement), CRIIMI MAE Services Limited Partnership
(in such capacity, hereinafter called the "Special Servicer", which term
includes any successor entity under the Agreement) and Union Bank (hereinafter
called the "Trustee", which term 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, the capitalized terms used
herein have the respective meanings assigned in the Agreement. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
25th day of each month or, if such 25th 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 the Holders of the
Class IO-2 Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on the Class IO
Certificates will be made by Bankers Trust Company, as paying agent (the "Paying
Agent"), 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 Paying Agent with
wiring instructions no less
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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 Class IO-2 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 Certificateholders
of such final distribution.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Class IO-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
IO-2 Certificates are exchangeable for new Class IO-2 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 IO-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 IO-2 Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in
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connection with any transfer or exchange of Class IO-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
Paying Agent and the Certificate Registrar and any agent of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, the Paying Agent 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 Paying Agent, 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 Depositor at a price determined as provided in the
Agreement of all Mortgage Loans and each REO Property remaining in the Trust
Fund. The Agreement permits, but does not require, the Master Servicer or the
Depositor to purchase from the Trust Fund all Mortgage Loans and each REO
Property remaining therein. The exercise of such right will effect early
retirement of the Class IO 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 5% 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 and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes. Any such consent by the Holder of this
Certificate
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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 the Trust Fund (or designated portions thereof) 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.
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IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate
to be duly executed.
Dated: November 30, 1995
BANKERS TRUST COMPANY, as
Certificate Registrar
By:________________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class IO-2 Certificates referred to in the
within-mentioned Agreement.
BANKERS TRUST COMPANY,
as Authenticating Agent
By:_________________________________
Authorized Officer
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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.
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EXHIBIT A-12
CLASS R-I CERTIFICATE
CLASS R-I MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 1995-C3
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.
Date of Pooling and Servicing Percentage Interest evidenced
Agreement: November 1, 1995 by this Class R-I
Certificate: 100%
Closing Date: November 30, 1995 Aggregate Stated Principal
Balance of the Mortgage Loans
as of the Closing Date:
$643,600,376
First Distribution Date:
December 26, 1995
Master Servicer: Trustee:
Bankers Trust Company Union Bank
Special Servicer:
CRIIMI MAE Services Limited
Partnership
Certificate No. 1
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN XXXXXXX
XXXXX MORTGAGE INVESTORS, INC., UNION BANK, BANKERS TRUST COMPANY, CRIIMI MAE
SERVICES LIMITED PARTNERSHIP OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1, CLASS X-0, XXXXX X-0, CLASS
IO-1, CLASS 10-2, CLASS B, CLASS C, CLASS C, CLASS E, CLASS F AND CLASS G
CERTIFICATES OF THE SAME SERIES TO THE EXTENT DESCRIBED IN THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933 THE ("SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE. ANY RESALE,
TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH REGISTRATION OR
QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH
REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS OF SECTION
5.02 OF THE 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, INCLUDING INDIVIDUAL
RETIREMENT ACCOUNTS AND ANNUITIES, XXXXX PLANS AND COLLECTIVE INVESTMENT FUNDS
AND SEPARATE ACCOUNTS IN WHICH SUCH PLANS, ACCOUNTS OR ARRANGEMENTS ARE
INVESTED, THAT IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED ("ERISA"), OR THE INTERNAL REVENUE CODE OF 1986 (THE "CODE")
(ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, A "PLAN"), 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 A PLAN (INCLUDING, WITHOUT LIMITATION, ANY INSURANCE COMPANY USING
ASSETS IN ITS GENERAL OR SEPARATE ACCOUNT THAT MAY CONSTITUTE "PLAN ASSETS" OF A
PLAN).
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
-2-
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 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 specified above (the
"Agreement"), among Xxxxxxx Xxxxx Mortgage Investors, Inc. (hereinafter called
the "Depositor", which term includes any successor entity under the Agreement),
Bankers Trust Company (in such capacity, hereinafter called the "Master
Servicer", which term includes any successor entity under the Agreement), CRIIMI
MAE Services Limited Partnership in such capacity, hereinafter called the
"Special Servicer", which term includes any successor entity under the
Agreement) and Union Bank (hereinafter called the "Trustee", which term 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,
the capitalized terms used herein have the respective meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
25th day of each month or, if such 25th 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, if any, required to be distributed to the Holders of
the Class R-I Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on this Class R-I
Certificate will be made by check mailed to the address of the Person entitled
thereto, as such name and address appear 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
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the Certificate Registrar or such other location specified in the notice to
Certificateholders of such final distribution.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Class R-I Certificates are issuable in fully registered form only
without coupons in minimum denominations representing Percentage Interests
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.
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 transfer of any Class R-I Certificate shall be made unless that transfer
is made pursuant to an effective registration statement under the Securities
Act, and effective registration or qualification under applicable state
securities laws, or is made in a transaction which does not require such
registration or qualification. If a transfer of any R-II Certificate is to be
made without registration under the Securities Act (other than in connection
with the initial issuance thereof or the initial transfer thereof by the
Depositor or any of its affiliates), then the Certificate Registrar shall refuse
to register such transfer unless it receives either: (i) a certificate from the
Certificateholder desiring to effect such transfer substantially in the form
attached as Exhibit G-1 to the
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Agreement, and a certificate from such Certificateholder's prospective
transferee substantially in the form attached as either Exhibit G-2 or Exhibit
G-3 to the Agreement; or (ii) an Opinion of Counsel satisfactory to the
Certificate Registrar 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 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 the Class R-I
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
Class R-I Certificate without registration or qualification. Any Class R-I
Certificateholder desiring to effect such a transfer shall, and by the
acceptance of its Class R-I Certificate agrees to, indemnify the Trustee, the
Certificate Registrar and the Depositor 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 Class R-I Certificate or any interest therein shall be
made to (A) a Plan or (B) any Person who is directly or indirectly purchasing
the Class R-1 Certificate or interest therein on behalf of, as named fiduciary
of, as trustee of, or with assets of a Plan (including, without rotation, any
insurance company using assets in its general or separate account that may
constitute assets of a Plan). As a condition to its registration of transfer of
a Class R-1 Certificate, the Certificate Registrar shall have the right to
require the prospective transferee of such Certificate, if it is not a Plan or
Person described in clause (B) of the preceding sentence, to execute a
certification to that effect substantially in the form of Exhibit H to the
Agreement.
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 Bankers Trust Company, as paying agent (the "Paying
Agent"), 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 Certificate
Registrar
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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 Master Servicer, the Paying Agent and
the Certificate Registrar 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 J-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 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 unless it provides to the
Certificate Registrar a certificate substantially in the form attached as
Exhibit I-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 Master Servicer 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 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
Certificate Registrar and the Master
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Servicer 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 downgrade its then-current ratings of any
Class of Certificates; and (b) an Opinion of Counsel, in form and substance
satisfactory to the Certificate Registrar and the Master Servicer, to the effect
that such modification of, addition to or elimination of such provisions will
not cause the Trust Fund 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 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 Class R-1 Certificate to a Person which is not a Permitted
Transferee.
A "Permitted Transferee" is any Transferee other than a "Disqualified
Organization" or 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 I 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 Trustee based upon an Opinion of Counsel provided to
it that the holding of an Ownership Interest in a Class R-1 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 Class R-I 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
-7-
income for United States federal income tax purposes regardless of its
connection of a trade or business within the United States.
No service charge will be imposed for any registration of transfer or
exchange of Class R-I Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Class R-I
Certificates.
The Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Paying Agent and the Certificate Registrar and any agent of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, the Paying Agent 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 Paying Agent, 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 Depositor at a price determined as provided in the
Agreement of all Mortgage Loans and each REO Property remaining in the Trust
Fund. The Agreement permits, but does not require, the Master Servicer or the
Depositor to purchase from the Trust Fund all Mortgage Loans and each REO
Property remaining therein. The exercise of such right will effect early
retirement of the Certificates; however, such right to purchase is subject to
the aggregate Stated Principal Balance of the Mortgage Pool at the time of
purchase being less than 5% 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 and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected
-8-
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 the Trust Fund (or designated portions thereof) 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.
-9-
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate
to be duly executed.
Dated: November 30, 1995
BANKERS TRUST COMPANY,
as Certificate Registrar
By:___________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class R-I Certificates referred to in the
within-mentioned Agreement.
BANKERS TRUST COMPANY,
as Authentication Agent
BY____________________________
Authorized Officer
-10-
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 made by check 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.
-11-
EXHIBIT A-13
CLASS R-II CERTIFICATE
CLASS R-II MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 1995-C3
evidencing a beneficial ownership interest in a trust fund (the "Trust Fund")
consisting primarily of a pool of multifamily and commercial mortgage loans (the
"Mortgage Loans"), such pool being formed and sold by
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.
Date of Pooling and Servicing Percentage Interest evidenced
Agreement: November 1, 1995 by this Class R-I
Certificate: 100%
Closing Date: November 30, 1995 Aggregate Stated Principal
Balance of the Mortgage Loans
as of the Closing Date:
$643,600,376
First Distribution Date:
December 26, 1995
Master Servicer: Trustee:
Bankers Trust Company Union Bank
Special Servicer:
CRIIMI MAE Services Limited
Partnership
Certificate No. 1
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN XXXXXXX
XXXXX MORTGAGE INVESTORS, INC., UNION BANK, BANKERS TRUST COMPANY, CRIIMI MAE
SERVICES LIMITED PARTNERSHIP OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS
CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR
INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1, Class A-2, Class A-3, CLASS
IO-1, CLASS IO-2, CLASS B, CLASS C, CLASS D AND CLASS E CERTIFICATES OF THE SAME
SERIES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED
TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933 (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE. ANY RESALE,
TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH REGISTRATION OR
QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH
REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS OF SECTION
5.02 OF THE 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, INCLUDING INDIVIDUAL
RETIREMENT ACCOUNTS AND ANNUITIES, XXXXX PLANS AND COLLECTIVE INVESTMENT FUNDS
AND SEPARATE ACCOUNTS IN WHICH SUCH PLANS, ACCOUNTS OR ARRANGEMENTS ARE
INVESTED, THAT IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED ("ERISA"), OR THE INTERNAL REVENUE CODE OF 1986 (THE "CODE")
(ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, A "PLAN"), 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 A PLAN (INCLUDING, WITHOUT LIMITATION, ANY INSURANCE COMPANY USING
ASSETS IN ITS GENERAL OR SEPARATE ACCOUNT THAT MAY CONSTITUTE "PLAN ASSETS" OF A
PLAN).
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,
-2-
INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS ON THIS CERTIFICATE.
This certifies that ___________________________________________________ is
the registered owner of the Percentage Interest evidenced by this Class R-II
Certificate (obtained by dividing the principal amount of 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 specified above (the
"Agreement"), among Xxxxxxx Xxxxx Mortgage Investors, Inc. (hereinafter called
the "Depositor", which term includes any successor entity under the Agreement),
CRIIMI MAE Services Limited Parntership (in such capacity, hereinafter called
the "Master Servicer", which term includes any successor entity under the
Agreement), Bankers Trust Company (in such capacity, hereinafter called the
"Special Servicer", which term includes any successor entity under the
Agreement) and Union Bank (hereinafter called the "Trustee", which term 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,
the capitalized terms used herein have the respective meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
25th day of each month or, if such 25th 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, if any, required to be distributed to the Holders of
this Class R-II Certificate on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on this Class R-II
Certificate will be made by check mailed to the address of the Person entitled
thereto, as such name and address appear 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 Certificateholders of such final distribution.
-3-
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Certificate Account, the Distribution Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Class R-II Certificates are issuable in fully registered form only
without coupons in minimum denominations representing Percentage Interests
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.
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 transfer of any Class R-II Certificate shall be made unless that
transfer is made pursuant to an effective registration statement under the
Securities Act, and effective registration or qualification under applicable
state securities laws, or is made in a transaction which does not require such
registration under the Securities Act (other than in connection with the initial
issuance thereof or the initial transfer thereof by the Depositor or any of its
affiliates), then the Certificate Registrar shall refuse to register such
transfer unless it receives either: (i) a certificate from the Certificateholder
desiring to effect such transfer substantially in the form attached as Exhibit
G-1 to the Agreement, and a certificate from such Certificateholder's
prospective transferee substantially in the form attached as either Exhibit G-2
or Exhibit G-3 to the Agreement; or (ii) an Opinion of Counsel satisfactory to
the Certificate Registrar to the effect that such transfer may be
-4-
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 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 the Class R-II
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
Class R-II Certificate without registration or qualification. Any Class R-II
Certificateholder desiring to effect such a transfer shall, and by the
acceptance of its Class R-II Certificate agrees to, indemnify the Trustee, the
Certificate Registrar and the Depositor 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 Class R-II Certificate or any interest therein shall be
made to (A) a Plan or (B) any Person who is directly or indirectly purchasing
the Class R-II Certificate or interest therein on behalf of, as named fiduciary
of, as trustee of, or with assets of a Plan (including, without rotation, any
insurance company using assets in its general or separate account that may
constitute assets of a Plan). As a condition to its registration of transfer of
a Class R-II Certificate, the Certificate Registrar shall have the right to
require the prospective transferee of such Certificate, if it is not a Plan or
Person described in clause (B) of the preceding sentence, to execute a
certification to that effect substantially in the form of Exhibit H to the
Agreement.
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 Bankers Trust Company, as paying agent (the "Paying
Agent"), 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 Certificate
Registrar 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
-5-
shall promptly notify the Master Servicer, the Paying Agent and the Certificate
Registrar 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 J-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 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 unless it provides to the
Certificate Registrar a certificate substantially in the form attached as
Exhibit J-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 Master Servicer 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 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
Certificate Registrar and the Master Servicer 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 downgrade its then-current ratings of any Class of Certificates; and (b) an
Opinion of Counsel, in form and
-6-
substance satisfactory to the Certificate Registrar and the Master Servicer, to
the effect that such modification of, addition to or elimination of such
provisions will not cause the Trust Fund 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 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 Class R-II Certificate to a Person which is not a
Permitted Transferee.
A "Permitted Transferee" is any Transferee other than a "Disqualified
Organization" or 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 I 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 Trustee based upon an Opinion of Counsel provided to
it that the holding of an Ownership Interest in a Class R-II 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 Class R-II 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 income for United
States federal income tax purposes regardless of its connection of a trade or
business within the United States.
-7-
No service charge will be imposed for any registration of transfer or
exchange of Class R-II Certificates, but the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Class R-II
Certificates.
The Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Paying Agent and the Certificate Registrar and any agent of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, the Paying Agent 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 Paying Agent, 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 Depositor at a price determined as provided in the
Agreement of all Mortgage Loans and each REO Property remaining in the Trust
Fund. The Agreement permits, but does not require, the Master Servicer or the
Depositor to purchase from the Trust Fund all Mortgage Loans and each REO
Property remaining therein. The exercise of such right will effect early
retirement of the Certificates; however, such right to purchase is subject to
the aggregate Stated Principal Balance of the Mortgage Pool at the time of
purchase being less than 5% 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 and the Trustee and the
rights of the Certificateholders under the Agreement at any time by the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes. Any such consent by the Holder of this
Certificate shall be conclusive and binding on such Holder and upon all future
Holders of this Certificate and of any Certificate issued
-8-
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 the Trust Fund (or designated
portions thereof) 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.
-9-
IN WITNESS WHEREOF, the Certificate Registrar has caused this Certificate
to be duly executed.
Dated: November 30, 1995
BANKERS TRUST COMPANY,
as Certificate Registrar
By:___________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class R-II Certificates referred to in the
within-mentioned Agreement.
BANKERS TRUST COMPANY,
as Authentication Agent
BY____________________________
Authorized Officer
-10-
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 made by check 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.
-11-
EXHIBIT B
CONTROL CURRENT
NUMBER PROPERTY NAME PROPERTY ADDRESS CITY STATE ZIP CODE BALANCE
------------------------------------------------------------------------------------------------------------------------------------
32 Americana Gardens 0000 X. Xxxxxxxxxx Xxx Xxx Xxxxxxx XX 00000 4,050,000.00
0 Xxxxx Xxxxx Apartments 00000 Xxxx Xxxxxx Xxxxxx Xxxxxxxx XX 00000 15,640,000.00
19 Berkshire Hilton Inn Xxxxx 0 xxx Xxxx Xx. Xxxxxxxxxx XX 00000 6,080,030.30
55 Chestnut Cove Apartments 0000 Xxxxxxxxx Xxxx Xxxxxxxxxxxx XX 00000 2,024,000.00
28 Xxxxxxx Aire MH Park 000 Xxxxx Xxxxxx Xxxx Xxxxx Xxxx Xxxxxxx XX 00000 5,000,000.00
------------------------------------------------------------------------------------------------------------------------------------
34 Cross Creek Apartments 0000 Xxxxxxx Xxxxx Xxxxxx XX 00000 3,780,000.00
46 Cupertino Shopping Center 00000 Xxxxxxx Xxxxx Xxxxxxxxx Xxxxxxxxx XX 00000 2,300,000.00
22 Days Inn-Xxxxxxxxx 0000 Xxxxxxxxx Xxxx Xxxxxxx XX 00000 5,200,000.00
13 Dove Tree Apartments 000 Xxxxxxxxx Xxxxx Xxxxxxxx Xxxxxxx XX 00000 8,549,032.00
00 Xxxxxxx Xxxxx Apartments 0000 X.X. 00xx Xxxxxx Xxxx Xxxxxxxxxx XX 00000 8,994,434.61
------------------------------------------------------------------------------------------------------------------------------------
00 Xxxxxxx Xxxxx Apartments 000 Xxxxx Xxxxxxxxx Xxxxxxx XX 00000 1,396,599.24
00 Xxxxxxx Xxxxx Apartments 0000 Xxxxx Xxxxx Xxxxx Xxxxxx XX 00000 7,200,000.00
00 Xxxxxxxxxxxxx Xxxxx 00000 Xxxxxx Xxxxx Xxxxxx XX 00000 1,690,432.27
0 Xxxxx Xxxxxxx Towers 000 Xxxxx Xxxxxx Xxxx Xxxxx Xxxxx XX 00000 11,672,732.78
16 Lark Haven Apartments 0000 Xxxxxxxxxx Xxxxx Xxxxxxxx Xxxxxxx XX 00000 7,515,961.58
------------------------------------------------------------------------------------------------------------------------------------
10 Lions Head Apartments 00000 Xxxxxxxxx Xxxxxxxxx Xxxxxxxxx XX 00000 9,300,000.00
18 Manchester Oaks Apartments 0000 Xxxx Xxxxxx Xxxxx Xxxxxxxx XX 00000 6,105,000.00
59 Memphis EconoLodge Airport 0000 Xxxxx Xxxxxx Xxxxxxx XX 00000 1,705,500.83
65 Multiflex I & II 2450 & 0000 Xxxxx Xxx. X.X. Xxxxxxxxxxx XX 00000 1,340,000.00
00 Xxxxxxx Xxxxxxx Xxxxxxxxxx 0000 Xxx Xxxx Xxxxx Xxxxx Xxxxxxxxx XX 00000 6,000,000.00
------------------------------------------------------------------------------------------------------------------------------------
26 One Hamden Center 0000 Xxxxxxx Xxxxxx Xxxxxx XX 00000 4,986,201.92
67 Paradise View Apartments 0000 Xxxxxxxxx Xx, XX Xxxxxxxxxxx XX 00000 1,121,439.03
00 Xxxxxx Xxxxx Apartments 0000 Xxxxxx Xxxxx Xxxx Xx. Xxxxxxxx XX 00000 2,094,950.83
6 Peartree/Plumtree Apartments 0000 Xxxx Xxxx Xxxxxxxxx XX 00000 14,000,000.00
0 Xxxxx Xx Xx Xxx - XX Maxx 00000 Xx Xxx Xxxx Xxxxxx Xxxxxx XX 00000 24,000,000.00
------------------------------------------------------------------------------------------------------------------------------------
00 Xxxxx xx xx Xxx - Home Base 00000 Xx Xxx Xxxx Xxxxxx Xxxxxx XX 00000 8,250,000.00
69 Ramada Inn Montgomery 0000 Xxxxxx Xxxxxx Xxxx Xxxxxxxxxx XX 00000 990,000.00
40 Ramada Inn Nashville 0000 Xxxxx Xxxxxx Xxxx Xxxxxxxxx XX 00000 2,800,000.00
33 Ramada Inn-Six Flags 0000 Xxxxxx Xxxxxxxxxx Xxxx. Xxxxxxx XX 00000 4,050,000.00
31 Rivercrest II Apartments 0000 Xxxxxxxxxx Xxxxx Xxxxxxxxx XX 00000 4,250,000.00
------------------------------------------------------------------------------------------------------------------------------------
00 Xxxxxx Xxx xx Xxxxx Xxxx 0000 Xxxxxxx Xxxxxx Xxxxx Xxxx XX 00000 5,120,000.00
00 Xxxxxx Xxx xx Xxxxxx 0000 Xxxx Xxxxx Xxxxxx XX 00000 3,120,000.00
00 Xxxxxxxx Xxxxxx Apartments 000 Xxxxx Xxxxx Xxxxxx XX 00000 1,650,000.00
27 Shaminy Brook Apartments 0000 Xxxxxxx Xxxx Xxxxxxxx XX 00000 4,800,000.00
64 Silvercreek Apartments 0000 Xxxxxx Xxxx Xxxxxxx XX 00000 1,381,059.98
------------------------------------------------------------------------------------------------------------------------------------
00 Xxxxxx Xxx Xxxxxxxxxx 000 Xxxxxxxxxxx Xxxx Xxxxxx XX 00000 5,152,000.00
15 Tanager Xxxxxxx Apartments 0000 Xxxxxxxxxx Xxxxx Xxxxxxxx Xxxxxxx XX 00000 7,890,262.46
0 Xxx Xxxxxx xx X. X. - Xxxxx XX 27981-28051 Xxxxxxxxxx Xxxxx Xxxxxx Xxxxxx XX 00000 13,964,430.61
25 The Xxxx Club Apartments 0000 Xxxxxxxxx Xxxx Xxxxxxx XX 00000 5,040,000.00
00 Xxx Xxxxx xx Xxxxxxxx Xxxxxxx 000/000 X. Xxxxxx Xxx. Xxx Xxxxx XX 00000 9,000,000.00
------------------------------------------------------------------------------------------------------------------------------------
00 Xxx Xxxxxxx Xxxxxxxxxx 00-00 Xxxxxxxxxxx Xxxx Xxxxxxxxx XX 00000 2,344,089.91
36 Township Apartments 000 Xxxxxx Xxxxxx Xxxxxx (Xxxxxxx) XX 00000 3,300,000.00
35 Treehouse Apartments 000 Xxxxxx Xxxx Xxxxx Xxxxxxx Xxxxxxx XX 00000 3,780,000.00
00 Xxxxxxx Xxxxxx Xxxxxx 0000 Xxxxxxxxxxxxx Xxxxxx Xxxxxx XX 00000 2,250,000.00
00 Xxxx Xxxxxx Xxxxxx Xxxxxxxxxx 000 Xxxx Xxxx Xxxx Xxxxxxx XX 00000 2,300,000.00
------------------------------------------------------------------------------------------------------------------------------------
-1-
CONTROL MONTHLY REMAINING REMAINING MATURITY GROUND SERVICING MORTGAGE LOAN
NUMBER PAYMENT RATE TERM AMORT DATE LEASE FEES STRIP SELLER
------------------------------------------------------------------------------------------------------------------------------------
32 34,320.88 9.120 120 300 11/1/05 No 0.125 Xxxxxxx Xxxxx
3 115,634.21 8.080 120 360 11/1/05 No 0.125 Xxxxxxx Xxxxx
19 63,724.53 11.250 49 241 12/1/99 No 0.125 Xxxxxxx Xxxxx
55 15,419.59 8.400 84 360 11/1/02 No 0.125 Xxxxxxx Xxxxx
28 37,668.83 8.280 120 360 12/1/05 No 0.125 Xxxxxxx Xxxxx
------------------------------------------------------------------------------------------------------------------------------------
34 27,683.62 7.980 84 360 11/1/02 No 0.125 Xxxxxxx Xxxxx
46 17,913.72 8.640 180 360 12/1/10 No 0.125 Xxxxxxx Xxxxx
22 48,233.37 9.430 240 240 11/1/15 No 0.125 Xxxxxxx Xxxxx
13 65,311.91 8.410 117 357 8/1/05 No 0.125 Xxxxxxx Xxxxx
12 68,565.39 8.400 83 359 10/1/02 No 0.125 Xxxxxxx Xxxxx
------------------------------------------------------------------------------------------------------------------------------------
63 10,804.50 8.540 176 356 7/1/10 No 0.125 Xxxxxxx Xxxxx
17 53,636.32 8.160 120 360 11/1/05 No 0.125 Xxxxxxx Xxxxx
60 15,935.15 9.580 80 236 7/1/02 No 0.125 Xxxxxxx Xxxxx
8 88,735.22 8.370 83 359 10/1/02 No 0.125 Xxxxxxx Xxxxx
16 57,419.58 8.410 117 357 8/1/05 No 0.125 Xxxxxxx Xxxxx
------------------------------------------------------------------------------------------------------------------------------------
10 68,045.71 7.970 180 360 11/1/10 No 0.125 Xxxxxxx Xxxxx
18 45,393.58 8.140 120 360 11/1/05 No 0.125 Xxxxxxx Xxxxx
59 16,547.21 10.040 238 238 9/1/15 No 0.125 Xxxxxxx Xxxxx
65 10,844.28 8.560 120 300 11/1/05 No 0.125 Xxxxxxx Xxxxx
20 46,986.69 8.170 84 300 12/1/02 No 0.125 Xxxxxxx Xxxxx
------------------------------------------------------------------------------------------------------------------------------------
26 47,163.02 9.670 82 238 9/1/02 No 0.125 Xxxxxxx Xxxxx
67 8,697.84 8.020 57 297 8/1/00 No 0.125 Xxxxxxx Xxxxx
53 16,281.32 8.590 176 356 7/1/10 No 0.125 Xxxxxxx Xxxxx
6 104,096.66 8.140 120 360 11/1/05 No 0.125 Xxxxxxx Xxxxx
2 194,550.09 8.580 120 300 11/1/05 No 0.125 Xxxxxxx Xxxxx
------------------------------------------------------------------------------------------------------------------------------------
21 66,876.59 8.580 120 300 11/1/05 No 0.125 Xxxxxxx Xxxxx
69 9,022.22 9.180 84 240 11/1/02 No 0.125 Xxxxxxx Xxxxx
40 25,935.33 9.410 240 240 11/1/15 Yes 0.125 Xxxxxxx Xxxxx
33 37,566.38 9.430 240 240 11/1/15 No 0.125 Xxxxxxx Xxxxx
31 31,392.64 8.070 180 360 11/1/10 No 0.125 Xxxxxxx Xxxxx
------------------------------------------------------------------------------------------------------------------------------------
24 38,572.89 8.280 120 360 11/1/05 No 0.125 Xxxxxxx Xxxxx
38 23,505.35 8.280 120 360 11/1/05 No 0.125 Xxxxxxx Xxxxx
61 12,998.40 8.240 180 300 12/1/10 No 0.125 Xxxxxxx Xxxxx
27 36,568.21 8.400 84 360 11/1/02 No 0.125 Xxxxxxx Xxxxx
64 12,080.34 8.520 236 236 7/1/15 No 0.125 Xxxxxxx Xxxxx
------------------------------------------------------------------------------------------------------------------------------------
23 39,249.88 8.400 84 360 11/1/02 No 0.125 Xxxxxxx Xxxxx
15 60,279.12 8.410 117 357 8/1/05 No 0.125 Xxxxxxx Xxxxx
5 105,867.07 8.320 116 356 7/1/05 No 0.125 Xxxxxxx Xxxxx
25 37,263.20 8.080 120 360 11/1/05 No 0.125 Xxxxxxx Xxxxx
11 65,037.74 7.840 120 360 12/1/05 No 0.125 Xxxxxxx Xxxxx
------------------------------------------------------------------------------------------------------------------------------------
45 17,853.40 8.370 116 356 7/1/05 No 0.125 Xxxxxxx Xxxxx
36 26,151.30 8.310 120 300 12/1/05 No 0.125 Xxxxxxx Xxxxx
35 28,610.75 8.330 120 360 11/1/05 No 0.125 Xxxxxxx Xxxxx
49 18,193.49 8.550 120 300 11/1/05 No 0.125 Xxxxxxx Xxxxx
47 17,950.30 8.130 84 300 11/1/02 No 0.125 Xxxxxxx Xxxxx
------------------------------------------------------------------------------------------------------------------------------------
-2-
CONTROL CURRENT
NUMBER PROPERTY NAME PROPERTY ADDRESS CITY STATE ZIP CODE BALANCE
------------------------------------------------------------------------------------------------------------------------------------
42 Westgate Shopping Center 0000-0000 Xxxxxxxx Xxxxxx Xxxxx XX 00000 2,400,000.00
52 Westinghouse 0000 Xxxxxx Xxxx Xxxxxxxxx XX 00000 2,150,000.00
37 Westwood Center 0000 Xxxxxxxx Xxxx. Xxx Xxxxxxx XX 00000 3,200,000.00
0 Xxxxxxxx Xxxxx 0000 Xxxxxxxx Xxxx Xxx Xxxxxxx XX 00000 11,610,000.00
172 1131-1137 Commonwealth 1131-1137 Commonwealth Xxxxxxxx XX 00000 1,275,954.46
------------------------------------------------------------------------------------------------------------------------------------
101 1144-1160 Commonwealth 1144-1160 Commonwealth Xxxxxxxx XX 00000 5,331,097.24
121 000-000 Xxxxxx Xxxxxx 000-000 Xxxxxx Xxxxxx Xxxxxxxx XX 00000 3,500,900.06
160 000-000 Xxxxxxx Xxxxxx 000 Xxxxxxx Xxxxxx Xxx Xxxx XX 00000 1,595,707.78
110 000-000 Xxxxxxxxxx Xxxx 000-000 Xxxxxxxxxx Xxxx Xxxxxxxxx XX 00000 4,612,376.02
179 000-000 Xxxxxxx Xxxx Xxx. 000-000 Xxxxxxx Xxxx Xxx. Xxxxxxx XX 00000 997,317.36
------------------------------------------------------------------------------------------------------------------------------------
88 00 Xxxxxxxx Xxxxxx 00 Xxxxxxx Xxxxxx Xxxxxx XX 00000 7,835,157.88
86 0000 Xxxxxxxxxxxxx Xxxxx 0000 Xxxxxxxxxxxxx Xxxxx Xxxxxxx Xx 00000 8,368,208.23
180 00 Xxxxxx Xxxxxx 00 Xxxxxx Xxxxxx Xxxxx XX 00000 958,468.54
000 Xxxxx Xxxxxxxx Xxxxxxxx Xxxxxx 000 Xxxxx Xxxxxx Xxxxxxxxx XX 00000 2,917,000.00
000 Xxxxxxxxx Xxxxxxxxxx 0000 Xxxxxxxxx Xxxxx Xxxxxxxxx XX 00000 3,252,000.00
------------------------------------------------------------------------------------------------------------------------------------
000 Xxxxx Xxxx XX Xxxxx 00 & Xxxxxxxx Xxxxxx Xxxxxxx XX 00000 4,063,965.60
169 Xxxxx Saddlery 000 Xxxxxxxx Xxxxxx Xxxxxx Xxxx XX 00000 1,436,000.00
115 Aspentree 00000 Xxxxxx Xxxx Xxxxxx XX 00000 3,966,000.00
000 Xxxx Xxxxxx Apartments 000 Xxxx Xxxxxx Xxxxxx XX 00000 1,793,368.99
000 Xxxxx Xxxx Apartments 0000 Xxxxxxxx Xxxx Xxxxxx XX 00000 4,994,505.84
------------------------------------------------------------------------------------------------------------------------------------
109 Belmont Manor Nursing Home 00 Xxxxxxx Xxxxxx Xxxxxxx XX 00000 5,060,070.51
000 Xxxxxxx Xxxxx Apartments 0000 Xxxxx Xxxxxx Xx. Xxxxxxx XX 00000 1,564,693.61
000 Xxxxxxxx Xxxxx 0000 Xxxx Xxxxxx Xxxxxx Xxxxxxxxx XX 00000 1,199,124.64
000 Xxxxxxxxx Xxxxxxx 0000 Xxxx Xxxxxxx Xxxxxxx XX 00000 3,710,238.05
000 Xxxxxx Xxxx Retirement Center 0000 Xxxxx Xxxxxxxx Xxxx Xxxxxxxx Xxxx XX 00000 5,925,309.25
------------------------------------------------------------------------------------------------------------------------------------
000 Xxxxxxx Xxxxx Xxxxxxx 0000 Xxxxxx Xxxxx Xxxx Xxxxxxxxx XX 00000 3,597,666.46
000 Xxxxxxxx Xxxxxxxxxx 000 Xxxx 0xx Xxxxxx Xxxx XX 00000 5,034,000.00
000 Xxxxxxxxxx Xxxxx II 000 Xxxxx Xxxxxx Xxxx Xxxx Xxxx XX 00000 1,513,000.00
146 Clovelly Apartments 160 & 000 Xxxxxxx Xxxxxx Xxxxxx XX 00000 2,098,357.97
000 Xxxxxx Xxxxx 0000 Xxxxxx Xx. Xxx Xxxxx XX 00000 2,113,632.82
------------------------------------------------------------------------------------------------------------------------------------
103 Copper Mountain 0000 Xxxxx Xxxxx Xxxx Xxxxxx XX 00000 5,200,000.00
000 Xxxxxxx Xxxxx Xxxxxxxx Xxxxxx 0000 Xxxxxxx Xxxxxx Xxxx Xxxxxxxx XX 00000 1,198,861.92
000 Xxxxxx Xxxxxxx 0000 Xxxx Xxxx Xxxxxx Xxxx Xxxxxx XX 00000 5,387,425.14
00 Xxxxxxx Xxxx Xxxxx 00000-00000 XX 00xx Xxx. Xxxxx XX 00000 6,319,358.33
112 Country House @ Westchester 0000 Xxxxxxx Xxxx Xxxxxxxx Xxxxxxx XX 00000 4,748,509.75
------------------------------------------------------------------------------------------------------------------------------------
000 Xxxxxxxxx 0000 Xxxxxxx Xxxx Xxxxxxx XX 00000 4,892,693.60
000 Xxxxxxxxx Xxxxxxxxxx 00000 XX Xxxxxxx Xxxxxxx XX 00000 3,253,311.05
114 Del Moral 0000 X. Xxxxxxxx Xxxxxx Xxxxxx XX 00000 4,000,000.00
000 Xxxx Xxxxxxx Xxxx 00 Xxxx Xxxx Xxxxxx Xxxx Xxxxxxx XX 00000 1,433,580.72
000 Xxxx Xxxxx Xxxxxxxxx Care Home 0000 Xxxxxxxxx Xxxxxx Xxxxxxx XX 00000 2,781,301.74
------------------------------------------------------------------------------------------------------------------------------------
97 Eden Park Apartments 0000 Xxxxxxx Xxxxx Xxxxxxxx Xxxx XX 00000 5,994,328.37
00 Xxxxxxxx Xx Xxxxxxxx 00 Xxxxx Xxxxxx Xxxxxxxx XX 00000 8,966,160.41
116 Xxxxxxx Apartments 0000 Xxxxxx Xxxxx Xxxxxxxxxx XX 00000 3,917,971.83
152 Executive Apartments 000-000 Xxxxxxxxx Xx Xxxxxxxxxx XX 00000 1,799,346.88
00 Xxxxxxxxx Xxxxxxxxxx 0000 Xxxxx Xxxxxxx Xxxx Xx Xxxx XX 00000 8,634,000.00
------------------------------------------------------------------------------------------------------------------------------------
000 Xxxxxxxxxx Xxxxx Shopping Center 0000-0000 Xxxxx Xxxxxxx Xx Xxxxxxxx Xxxxxxx XX 00000 1,698,000.00
93 Four Winds Apartments 0000 Xxxxx Xxxxxx, Xxxxxx Xxxxxx Xx. XX 00000 6,383,992.93
000 Xxxxxxxx Xxxxxxxxxx 0000 Xxxxxxxxxx Xxxx Xxxxxxx XX 00000 3,142,358.96
99 Gateway Health Care Centers Xxx & Xxxxx Xxxxxxx Xxxxx Xxxxxx XX 00000 6,360,609.34
000 Xxxxxxx Xxxxx 000 Xxxxx 00xx Xxxxxx Xxxxxxxx Xx 00000 2,828,354.11
------------------------------------------------------------------------------------------------------------------------------------
-3-
CONTROL MONTHLY RATE REMAINING REMAINING MATURITY GROUND SERVICING STRIP MORTGAGE LOAN
NUMBER PAYMENT TERM AMORT DATE LEASE FEES SELLER
------------------------------------------------------------------------------------------------------------------------------------
42 19,649.98 8.700 120 300 12/1/05 No 0.125 Xxxxxxx Xxxxx
52 17,254.47 8.460 120 300 11/1/05 No 0.125 Xxxxxxx Xxxxx
37 27,470.49 9.280 120 300 11/1/05 No 0.125 Xxxxxxx Xxxxx
9 90,961.46 8.310 120 312 11/1/05 No 0.125 Xxxxxxx Xxxxx
172 9,934.19 8.375 116 326 7/1/05 No 0.125 First Union
------------------------------------------------------------------------------------------------------------------------------------
101 41,506.29 8.375 116 326 7/1/05 No 0.125 First Union
121 27,256.94 8.375 116 326 7/1/05 No 0.125 First Union
160 13,460.03 9.030 117 297 8/1/05 No 0.125 First Union
110 35,910.55 8.375 116 326 7/1/05 No 0.125 First Union
179 8,412.52 9.030 117 297 8/1/05 No 0.125 First Union
------------------------------------------------------------------------------------------------------------------------------------
88 61,002.14 8.375 116 326 7/1/05 No 0.125 First Union
86 68,831.93 8.710 116 296 7/1/05 No 0.125 First Union
180 8,034.84 9.090 118 310 9/1/05 No 0.125 First Union
127 24,479.36 9.000 120 300 11/1/05 No 0.125 First Union
123 24,157.39 8.130 120 360 11/1/05 No 0.125 First Union
------------------------------------------------------------------------------------------------------------------------------------
113 33,164.10 8.890 119 323 10/1/05 Yes 0.125 First Union
169 10,990.75 8.450 300 360 11/1/20 No 0.125 First Union
115 30,657.55 8.330 120 330 11/1/05 No 0.125 First Union
153 14,469.42 8.775 115 325 6/1/05 No 0.125 First Union
106 40,195.16 8.990 118 358 9/1/05 No 0.125 0.280 First Union
------------------------------------------------------------------------------------------------------------------------------------
109 45,661.60 9.860 115 295 6/1/05 No 0.125 0.915 First Union
164 13,573.39 9.400 299 299 10/1/20 No 0.125 First Union
176 9,625.36 8.750 119 329 10/1/05 No 0.125 First Union
117 34,788.82 10.300 109 289 12/1/04 No 0.125 First Union
100 60,873.17 10.740 74 230 1/1/02 No 0.125 0.915 First Union
------------------------------------------------------------------------------------------------------------------------------------
118 30,473.54 9.380 119 329 10/1/05 No 0.125 First Union
105 37,606.63 8.190 120 360 11/1/05 No 0.125 First Union
166 11,441.21 8.320 120 360 11/1/05 No 0.125 First Union
146 16,298.28 8.375 119 329 10/1/05 No 0.125 First Union
145 18,329.84 9.375 117 297 8/1/05 No 0.125 First Union
------------------------------------------------------------------------------------------------------------------------------------
103 39,615.56 8.400 120 360 11/1/05 No 0.125 First Union
175 9,768.08 8.630 119 299 10/1/05 No 0.125 First Union
102 48,594.81 9.875 117 297 8/1/05 No 0.125 First Union
95 53,079.17 9.000 119 299 10/1/05 No 0.125 First Union
112 43,301.78 9.840 59 281 10/1/00 No 0.125 1.115 First Union
------------------------------------------------------------------------------------------------------------------------------------
108 38,969.08 8.652 118 328 9/1/05 No 0.125 First Union
124 28,357.08 9.460 299 299 10/1/20 No 0.125 First Union
114 30,870.00 8.540 300 360 11/1/20 No 0.125 First Union
170 11,434.38 8.375 119 299 10/1/05 No 0.125 First Union
131 27,057.72 10.020 235 235 6/1/15 No 0.125 0.915 First Union
------------------------------------------------------------------------------------------------------------------------------------
97 48,921.63 8.650 299 299 10/1/20 No 0.125 First Union
84 73,992.93 8.750 116 296 7/1/05 No 0.125 First Union
116 32,938.46 9.000 298 298 9/1/20 No 0.125 First Union
152 14,517.68 8.775 115 325 6/1/05 No 0.125 First Union-
85 64,500.53 8.190 120 360 11/1/05 No 0.125 First Union
------------------------------------------------------------------------------------------------------------------------------------
156 13,387.88 8.250 120 300 11/1/05 No 0.125 First Union
93 54,308.61 9.400 114 325 5/1/05 No 0.125 First Union
126 24,133.38 8.230 117 327 8/1/05 No 0.125 First Union
99 64,679.92 11.420 74 290 1/1/02 No 0.125 0.915 First Union
130 23,799.61 9.000 117 297 8/1/05 No 0.125 First Union
------------------------------------------------------------------------------------------------------------------------------------
-4-
CONTROL CURRENT
NUMBER PROPERTY NAME PROPERTY ADDRESS CITY STATE ZIP CODE BALANCE
------------------------------------------------------------------------------------------------------------------------------------
000 Xxxxx Xxxx Xxxxx 0000 Xxxx Xxxxx Xxxx Xxxx. Xxxxxxxxx XX 00000 3,500,000.00
00 Xxxxxxxxx Xxxxxxxxxx Xxxxxxxxx Xxxxx Xxxxxxx XX 00000 9,788,714.97
94 Hibben Ferry 0000 Xxxx Xxxxx Xxxxxxxxx Xx. Xxxxxxxx XX 00000 6,357,995.17
000 Xxxxxxxx Xxxxxx 000 Xxxxxxxx Xxxx Xxxxxx X Xxxxxx XX 00000 1,871,939.59
183 Iroquois 000-000 Xxxxxxxxxx Xxxxxx Xxxxxxxxxx XX 00000 713,000.00
------------------------------------------------------------------------------------------------------------------------------------
000 XXxxx Xxxxx (Xxxxxxxx,XX) 0000 X. Xxxxxxxx Xxxxxx Xxxxxxxx XX 00000 4,928,000.00
000 Xxxxxxxx Xxxx 00 Xxxx Xxxxxx Xxxxxxxx XX 00000 2,930,099.14
000 Xxxxxxx Xxxxxx Shopping Center 0000-0000 Xxxxx Xxxxxx Xxxxxxxxxxx XX 00000 2,597,680.89
162 Xxxxx Nursing & Rehabilitation Center 000 Xxxx Xxxxxx Xxxxxxxx XX 00000 1,606,250.83
000 Xxxxxx Xxxx Distribution 0000 Xxxxxx Xxxx Xxxxxxx XX 00000 3,570,871.92
------------------------------------------------------------------------------------------------------------------------------------
000 Xxxxxx Xxxxxxx 0000 Xxxxx Xxxxxx Xxxxxxxxxxxx XX 00000 999,270.53
111 Xxxx Xxxxxxxxxx Apartments 0000 Xxxx Xxxxxxx Xxxx Xxxxxxxxxx XX 00000 4,269,966.22
000 Xxxxxxxxx Xxxxx II 000-000 Xxxxxxxxx Xxxx Xxxxx XX 00000 2,023,000.00
000 Xxxxxxxxx Apartments 000-000 Xxxxxxxxx Xxxx Xxxxxx XX 00000 1,107,646.15
104 Mission Gorge 0000-0000 Xxxxxxx Xxxxx Xx Xxx Xxxxx XX 00000 5,136,400.60
------------------------------------------------------------------------------------------------------------------------------------
96 New Homestead Home for Adults 00-00 Xxxxxxxx Xxxxxx Xxx Xxxxxxx XX 00000 6,873,084.85
000 Xxxxxxxxx Xxxxxxxx 0000-0000 Xxxxxxxxx Xxxxxx Xxxxxxx XX 00000 1,925,000.00
000 Xxx Xxxxx Xxxxxxxxxx 000 Xxxxxxxx Xxxxxx Xxxxxxx XX 00000 2,115,445.21
171 Olde English 000-000 Xxxxxxxxxx Xxxxxx Xxxxxx XX 00000 1,413,619.84
000 Xxxxxxxxx Xxxx Xxxxx Xxxxx Shoppi 000-000 Xxxxx Xxxxxx Xxxxxxxxx Xxxx XX 00000 2,395,963.17
------------------------------------------------------------------------------------------------------------------------------------
135 Palms Of Glendale 0000 X. 00xx Xxxxxx Xxxxxxxx XX 00000 2,540,347.40
000 Xxxxxx Xxxxxxxx 0000 X. Xxxxxx Xxxx Xxxxx XX 00000 2,377,000.00
00 Xxxxxx Xxxxx 0000 Xxxxxx Xxxx Xxxxxxxxxx XX 00000 5,834,458.56
125 Phoenix North Xxx & Xxx Xxxxxxx Xxxxx Xxxxxxx XX 00000 3,190,632.16
00 Xxxxxxxxxx Xxxx 0000 Xxxxxx Xxxx Xxxxxxx Xxxxxxx XX 00000 7,189,248.15
------------------------------------------------------------------------------------------------------------------------------------
91 Points Of Marietta 0000 Xxxxxxxxxx Xxxx Xxxxxxxx XX 00000 6,970,686.82
000 Xxxxxxxxxx Xxxxxxxxxx 0000 Xxxxxxxx Xxxxxxx XX 00000 1,596,220.53
000 Xxxxx Xxxxx Xxxxxxxxxx 0-00 Xxxxx Xxxxx Xxxxxxx XX 00000 1,553,256.81
000 Xxxxx Xxxx Xxxxxxxxxx 000 Xxxxxxx Xxxx Xxxxxxxxxxxx XX 00000 2,400,000.00
000 Xxxxxxxx Xxxxxxx 00000 XXX Xxxxxxxxx Xxxxxxx XX 00000 2,223,649.32
------------------------------------------------------------------------------------------------------------------------------------
174 Rush City Apartments 00 Xxxxx Xxxxxx Xxxx Xxxx XX 00000 1,124,000.00
89 Sam's Club Store 6641 & Store 6642 00000 X.X. Xxxxxxx 19 / 82 Pinellas Park FL 33614/34 7,636,483.34
000 Xxxxxxxxx Xxxxxx Xxxxxxxx Xxxxxx 000 X. Xxxxxxxxx Xxxxxx Xxxxxxxx XX 00000 1,586,499.21
000 Xxxxxxx Xxxxxxxx Xxxxxx Xxxxx Xxxxxx Xxxxxx Xxxxxx XX 00000 1,435,800.59
000 Xxxx Xxxxxxx Xxxxxxxxxx 0000 Xxxxxxxx Xxxxxxx XX 00000 2,623,489.74
------------------------------------------------------------------------------------------------------------------------------------
80 Tiburon Apartments 000 Xxxxx Xxxxxxx Xxxx Xxx Xxxx XX 00000 13,682,000.00
120 Timpany Xxxxx Xx. 00 - Xxxxxxx Xxxx. Xxxxxxx XX 00000 3,561,000.00
81 Towne Center Village (Combined) 0000 X.X. Xxxxxx Xxxxxx Xxxxxxxx XX 00000 13,241,198.08
82 Trails Of Woodlake 0000 Xxxxxxxxxx Xxxxxxx XX 00000 9,900,000.00
182 Treeview Manor Apartments 6620-6630 Xxxxx Xxxxx Xxxx Xxxxxxxxxxxx XX 00000 898,456.77
------------------------------------------------------------------------------------------------------------------------------------
000 Xxxxxxxx Xxxxxxx 000 Xxxx Xxxxx Xxxxxxxxx XX 00000 1,271,417.64
134 Villa Capri Apartments 00000 Xxxxxxxxxxxx Xxxxxx Xxxxxxx Xxxx XX 00000 2,542,686.45
000 Xxxxx Xxxxxxx Xxxxxxxxxx 0000 Xxxxx Xxxxxxxxx Xxxxx Xxxxxxx Xxxx XX 00000 945,873.31
000 Xxxxxxx xx Xxxxxxx Xxxxxx 0000 Xxxxxxx Xxxxxx Xxxx Xxxxxxx XX 00000 1,696,920.38
000 Xxxxxxx Xx Xxxxxxx Xxxxxx 0000 Xxxxxxxxxx Xxxx. Xxxxxxxxxx XX 00000 1,567,268.40
------------------------------------------------------------------------------------------------------------------------------------
000 Xxxxxxxxxx Xxxxxx Xxxxxxxxx Xxxxx Xxxx Xxxxxxxxxx Xx. XX 40 Xxxxxxxxxxxx XX 00000 2,934,843.93
154 Washington Towne Apartments 0000 Xxxxxx Xxxxx Xxxx Xxxxxx XX 00000 1,748,338.93
000 Xxxxxxxxxxx Xxxxxxxxx 0000 Xxxxxx Xxxxxx Xxxxxxxxx XX 00000 1,446,556.31
000 Xxxxxxxx Xxxxx 0000 Xxxx Xxxx Xxxxxx Xxxxxxx XX 00000 2,297,749.35
138 Wildwood Apartments 00000 Xxxx 00xx Xx. Xxxxx Xxxxxx XX 00000 2,407,676.36
------------------------------------------------------------------------------------------------------------------------------------
000 Xxxxxxx Xxxxxxxxxx 000 Xxxxxxx Xxxxxx Xxxxxx XX 00000 295,300.80
92 Williamsburg Apartments 0000 X. Xxxxxxx Xxxxxxx Xxxxx Xxxxxxx XX 00000 6,674,808.31
00 Xxxxxxxx Xxxxx Apartments 0000 Xxxxxxxxx Xxxxx Xxxx Xxxxxx XX 00000 8,200,000.00
000 Xxxxx Xx Xxxxx Xxxx Apartments 00000 Xxxxxxxx Xxxxxx Xx. Xxxxxxx XX 00000 1,691,601.85
------------------------------------------------------------------------------------------------------------------------------------
-5-
CONTROL MONTHLY REMAINING REMAINING MATURITY GROUND SERVICING MORTGAGE LOAN
NUMBER PAYMENT RATE TERM AMORT DATE LEASE FEES STRIP SELLER
------------------------------------------------------------------------------------------------------------------------------------
122 27,888.73 8.375 120 300 11/1/05 No 0.125 First Union
83 77,194.65 8.764 118 358 9/1/05 No 0.125 First Union
94 47,133.51 8.080 80 356 7/1/02 No 0.125 First Union
150 15,751.72 9.000 117 297 8/1/05 No 0.125 First Union
183 6,017.69 9.070 120 300 11/1/05 No 0.125 First Union
------------------------------------------------------------------------------------------------------------------------------------
107 40,097.57 8.625 120 300 11/1/05 No 0.125 First Union
129 23,370.76 8.375 119 299 10/1/05 No 0.125 First Union
132 21,819.11 9.000 119 299 10/1/05 Yes 0.125 First Union
162 14,488.45 9.875 117 297 8/1/05 No 0.125 First Union
119 35,128.02 10.940 107 288 10/1/04 No 0.125 First Union
------------------------------------------------------------------------------------------------------------------------------------
178 8,021.14 8.750 119 329 10/1/05 No 0.125 First Union
111 33,344.85 8.656 118 358 9/1/05 No 0.125 First Union
147 16,119.69 8.375 120 300 11/1/05 No 0.125 First Union
177 8,814.79 8.625 116 326 7/1/05 No 0.125 First Union
104 43,660.30 9.125 117 297 8/1/05 Yes 0.125 First Union
------------------------------------------------------------------------------------------------------------------------------------
96 70,216.05 10.570 226 226 9/1/14 No 0.125 0.455 First Union
149 15,338.80 8.375 120 300 11/1/05 No 0.125 First Union
144 16,652.22 8.500 116 326 7/1/05 No 0.125 First Union
171 11,127.64 8.500 116 326 7/1/05 No 0.125 First Union
140 20,760.56 9.375 118 298 9/1/05 No 0.125 First Union
------------------------------------------------------------------------------------------------------------------------------------
135 21,140.12 8.875 298 298 9/1/20 No 0.125 First Union
141 18,940.43 8.375 120 300 11/1/05 No 0.125 First Union
98 43,333.74 8.100 116 356 7/1/05 No 0.125 First Union
125 25,767.27 8.500 117 297 8/1/05 No 0.125 First Union
90 57,220.63 8.644 82 328 9/1/02 No 0.125 First Union
------------------------------------------------------------------------------------------------------------------------------------
91 53,138.18 8.400 119 359 10/1/05 No 0.125 First Union
159 12,417.74 8.375 117 327 8/1/05 No 0.125 First Union
165 12,532.15 8.775 115 325 6/1/05 No 0.125 First Union
139 18,354.42 8.210 120 330 11/1/05 No 0.125 First Union
143 17,092.56 8.490 119 359 10/1/05 No 0.125 First Union
------------------------------------------------------------------------------------------------------------------------------------
174 8,937.42 8.350 300 300 11/1/20 No 0.125 First Union
89 62,959.75 8.750 81 297 8/1/02 No 0.125 First Union
161 12,693.36 8.375 79 295 6/1/02 No 0.125 First Union
168 12,092.82 9.000 116 296 7/1/05 No 0.125 First Union
137 20,650.89 8.750 119 359 10/1/05 No 0.125 First Union
------------------------------------------------------------------------------------------------------------------------------------
80 102,211.75 8.190 120 360 11/1/05 No 0.125 First Union
120 28,374.79 8.375 120 300 11/1/05 No 0.125 First Union
81 110,937.33 9.250 119 329 10/1/05 No 0.125 First Union
82 74,236.24 8.230 120 360 11/1/05 No 0.125 First Union
182 7,713.65 9.260 118 298 9/1/05 No 0.125 0.280 First Union
------------------------------------------------------------------------------------------------------------------------------------
173 10,482.33 8.750 117 297 8/1/05 No 0.125 First Union
134 20,748.54 8.625 117 297 8/1/05 No 0.125 First Union
181 8,135.63 9.250 115 295 6/1/05 No 0.125 0.280 First Union
155 14,184.94 8.930 118 298 9/1/05 No 0.125 First Union
163 13,827.86 9.820 112 322 3/1/05 No 0.125 First Union
------------------------------------------------------------------------------------------------------------------------------------
128 24,924.52 9.125 118 298 9/1/05 No 0.125 First Union
154 14,239.19 8.625 119 299 10/1/05 No 0.125 First Union
167 11,303.75 8.650 116 356 7/1/05 No 0.125 0.280 First Union
142 18,427.32 8.440 119 299 10/1/05 No 0.125 First Union
138 19,454.72 8.530 299 299 10/1/20 No 0.125 First Union
------------------------------------------------------------------------------------------------------------------------------------
184 2,297.28 8.375 117 327 8/1/05 No 0.125 First Union
92 55,083.62 8.750 296 296 7/1/20 No 0.125 First Union
87 62,470.69 8.400 120 360 11/1/05 No 0.125 First Union
157 14,744.64 9.460 299 299 10/1/20 No 0.125 First Union
------------------------------------------------------------------------------------------------------------------------------------
-6-
EXHIBIT C
MLMI 1995-C3
Form of Schedule of Exceptions to Mortgage File Delivery
Control No. Borrower Name Document ID Document Status Exception Description
----------- ------------- ----------- --------------- ---------------------
EXHIBIT D-1
FORM OF MASTER SERVICER REQUEST FOR RELEASE
[Date]
Bankers Trust Company
[Address]
Ladies and Gentlemen:
In connection with the administration of the Mortgage Files held by or on
behalf of you as Custodian under a certain Pooling and Servicing Agreement dated
as of November 1, 1995 (the "Pooling and Servicing Agreement"), by and among
Xxxxxxx Xxxxx Mortgage Investors, Inc., as depositor, Bankers Trust Company, as
master servicer, Criimi Mae Services Limited Partnership, as Special Servicer,
and you, as Custodian, the undersigned hereby requests a release of the Mortgage
File (or the portion thereof specified below) held by you on behalf of the
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 Master Servicer hereby certifies that all
amounts received in connection with the
Mortgage Loan that are required to be credited
to the Certificate 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.
BANKERS TRUST COMPANY, as Master
Servicer
By: _________________________________
Name:
Title:
-2-
EXHIBIT D-2
FORM OF SPECIAL SERVICER REQUEST FOR RELEASE
[Date]
Bankers Trust Company
[Address]
(Attention: MLMI Series 1995-C3)
Ladies and Gentlemen:
In connection with the administration of the Mortgage Files held by or on
behalf of you as Custodian under a certain Pooling and Servicing Agreement dated
as of November 1, 1995 (the "Pooling and Servicing Agreement"), by and among
Xxxxxxx Xxxxx Mortgage Investors, Inc., as depositor, Bankers Trust Company, as
master servicer and Criimi Mae Services Limited Partnership, as special
servicer, and you, as Custodian, the undersigned hereby requests a release of
the Mortgage File (or the portion thereof specified below) held by you on behalf
of the 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.
BANKERS TRUST COMPANY, as Custodian
By: _________________________________
Name:
Title:
EXHIBIT E-1
CALCULATION OF NOI/DEBT SERVICE COVERAGE RATIOS
"Net Operating Income" shall mean the revenue derived from the use and
operation of a Mortgaged Property less operating expenses (such as utilities,
administrative expenses, repairs and maintenance, tenant improvement costs,
leasing commissions, management fees and advertising), fixed expenses (such as
insurance, real estate taxes and, if applicable, ground lease payments) and
reserves (such as reserves for tenant improvements and leasing commissions in
the case of Rental Properties and assumed reserves for ongoing capital
expenditures). Net cash flow does not reflect interest expenses and non-cash
items such as depreciation and amortization, and generally does not reflect
capital expenditures, but does reflect reserves for replacements.
In determining the "revenue" component of Net Operating Income for each
Rental Property, the Special Servicer shall rely on the most recent rent roll
supplied by the related borrower and where the actual vacancy shown thereon and
the market vacancy is less than 5%, the Special Servicer shall assume a 5%
vacancy in determining revenue from rents, except that in the case of certain
Anchored Shopping Centers, space occupied by anchor tenants shall be disregarded
in performing the vacancy adjustment due to the length of the related leases or
creditworthiness of such tenants, in accordance with the respective Mortgage
Loan Seller's underwriting standards. In determining rental revenue for
multifamily properties, the Special Servicer shall either review rental revenue
shown on the rolling 12-month operating statements or annualize the rental
revenue shown on rent rolls or operating statements with respect to the prior
three to twelve month periods. For the other Rental Properties, the Special
Servicer shall annualize rental revenue shown on the most recent rent roll,
after applying the vacancy factor, without further regard to the terms
(including expiration dates) of the leases shown thereon. In the case of
hospitality properties, gross receipts shall be determined on the basis of
adjusted average daily occupancy shown on the borrower-supplied operating
statements. In the case of residential health care facilities, receipts shall be
based on historical occupancy levels, historical operating revenues and the then
current occupancy rates. In general, any non-recurring items and non-property
related revenue shall be eliminated from the calculation except in the case of
residential health care facilities.
In determining the "expense" component of Net Operating Income for each
Mortgaged Property, the Special Servicer shall rely on the most recent financial
statements supplied by the related borrower, except that (a) if tax or insurance
expense information more current than that reflected in the financial statements
is available, the newer information shall be annualized and used, (b) with
respect to each Mortgaged Property,
property management fees shall be assumed to be 4% to 5% of effective gross
revenue (except with respect to single-tenant retail properties, where a minimum
of 2% shall be assumed and hospitality properties, where a minimum of 3% of
gross receipts shall be assumed) unless actual management fees are higher, in
which case actual management fees shall be assumed, (c) assumptions shall be
made with respect to reserves for leasing commission, tenant improvement
expenses and capital expenditures and (d) expenses shall be assumed to include
annual replacement reserves equal to (i) in the case of properties which are not
residential properties, hospitality properties or residential health care
facilities, a minimum of $0.10 per square foot net rentable area, (2) in the
case of multifamily properties, not less than $154 or more than $388 per unit
per year, depending on the condition of the property, (3) in the case of
hospitality properties, 3% or 4% of the gross receipts shown on the most recent
full-year financial statements, (4) in the case of residential healthcare
facilities, $200 to $317 per bed per year and (5) in the case of the mobile home
park, $25 per pad per year. In addition, in some instances, the Special Servicer
may recharacterize as capital expenditures those items reported by borrowers as
operating expenses (thus increasing "net operating income") where determined
appropriate.
EXHIBIT E-2
MLMI 1995 C-3
FORM OF UPDATED MORTGAGE LOAN SCHEDULE
Form of Remaining
Control Property Zip Cut-off Date Monthly Updated Mortgage Gross --------------
No. Name Address City State Code Balance Payment Loan Schedule Rate Term Amort
------- -------- ------- ---- ----- ---- ------------ ------- ---------------- ------ ---- -----
-1-
EXHIBIT E-2
MLMI 1995 C-3
(Cont'd)
Period or
Rent Roll to
Debt Service which Occ. %,
Maturity Ground Servicing Mortgage Occupancy Net Operating Coverage Ratio NOI or DCCR REO
Date Lease Fee Strip Loan Seller % Income (NOI) (DSCR) Relates Loan
-------- ------ --------- ------ ----------- --------- ------------- -------------- ------------- ----
-2-
EXHIBIT E-2
MLMI 1995 C-3
(Cont'd)
Amount Amount
Date of Amount Amount Collected with Amount of any
Related Date of Collected with Date of Collected with Date of respect to of any Additional
REO Maturity, Respect to Prepayment, Respect to Liquidation Liquidation Realized Trust Fund
Acquisition if any Matured Loan if any Prepayment Event, if any Event Loss Expenses
----------- -------- --------------- ---------- --------------- ------------- --------------- -------- ----------
-3-
EXHIBIT F
BOOK-ENTRY-ONLY COLLATERALIZED MORTGAGE OBLIGATIONS (CMOs)
(WITHOUT OWNER OPTION TO REDEEM)/
OTHER ASSET-BACKED SECURITIES/AND PASS-THROUGH CERTIFICATES
Letter of Representations
[To be Completed by Issuer and Trustee]
Xxxxxxx Xxxxx Mortgage Investors, Inc.
--------------------------------------
[Name of Issuer]
Union Bank
--------------------------------------
[Name of Trustee]
November 30, 1995
-----------------
(Date)
Attention: General Counsel's Office
The Depository Trust Company
00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000-0000
Re: Xxxxxxx Xxxxx Mortgage Investors, Inc., Mortgage Pass-Through
Certificates, Series 1995-C3, Class A-1, Class X-0, Xxxxx X-0, Class
B, Class C, Class D, Class IO-1, Class IO-2
(Issue Dscription)
Ladies and Gentlemen:
This letter sets forth our understanding with respect to certain matters
relating to the above-referenced issue (the "Securities"). Trustee will act as
trustee with respect to the Securities pursuant to a Pooling and Servicing
Agreement dated as of November 1, 1995 (the "Document"). Xxxxxxx Xxxxx, Xxxxxx
Xxxxxx & Xxxxx Incorporated and First Union Capital Markets Corp. (collectively,
the "Underwriters") are distributing the Securities through The Depository Trust
Company ("DTC").
To induce DTC to accept the Securities as eligible for deposit at DTC, and
to act in accordance with its Rules with respect to the Securities, Issuer and
Trustee make the following representations to DTC:
1. Prior to closing on the Securities on November 30, 1995, there shall be
deposited with DTC one Security certificate registered in the name of DTC's
nominee, Cede & Co., for each
class of the Securities in the actual or notional principal amounts set forth on
Schedule A hereto, the total of which represents 100% of the actual or notional
principal amount of such Securities. If, however, the aggregate actual or
notional principal amount of any class exceeds $200 million, one certificate
will be issued with respect to each $200 million of actual or notional principal
amount and an additional certificate will be issued with respect to any
remaining actual or notional principal amount. Each $200 million certificate
shall bear the following legend:
Unless this certificate is presented by an authorized representative
of The Depository Trust Company, a New York corporation ("DTC"), to Trustee
or its agent for registration of transfer, exchange, or payment, and any
certificate issued is registered in the name of Cede & Co. or in such other
name as is requested by an authorized representative of DTC (and any
payment 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.
2. In the event of any solicitation of consents from or voting by holders
of the Securities, Issuer or Trustee shall establish a record date for such
purposes (with no provision for revocation of consents or votes by subsequent
holders) and shall, to the extent possible, send notice of such record date to
DTC not less than 15 calendar days in advance of such record date. Notices to
DTC pursuant to this Paragraph by telecopy shall be sent to DTC's Reorganization
Department at (000) 000-0000 or (000) 000-0000, and receipt of such notices
shall be confirmed by telephoning (000) 000-0000. Notices to DTC pursuant to
this Paragraph by mail or by any other means shall be sent to DTC's
Reorganization Department as indicated in Paragraph 4.
3. In the event of the retirement of all outstanding Securities (a "full
reduction"), Trustee shall send a notice to DTC not less than 30 days nor more
than 60 days prior to the retirement date. Such notice shall be sent to DTC by a
secure means (e.g., legible telecopy, registered or certified mail, overnight
delivery) in a timely manner designed to assure that such notice is in DTC's
possession no later than the close of business on the business day before or, if
possible, two business days before such 30-60 day time period described above.
Trustee shall forward such notice either in a separate secure transmission for
each CUSIP number or in a secure transmission for multiple CUSIP numbers (if
applicable) which includes a manifest or list of each CUSIP number submitted in
that transmission. (The party sending such notice shall have a method to verify
subsequently the use of such means and the timeliness
2
of such notice). Notices to DTC pursuant to this Paragraph by telecopy shall be
sent to DTC's Call Notification Department at (000) 000-0000 or (000) 000-0000.
If the party sending the notice does not receive a telecopy receipt from DTC
confirming that the notice has been received, such party shall telephone (516)
000-0000. Notices to DTC pursuant to this Paragraph by mail or by any other
means shall be sent to:
Manager: Call Notification Department
The Depository Trust Company
000 Xxxxxxx Xxxxxx Xxxxxx Xxxx, XX 00000-0000
4. All notices and payment advices sent to DTC shall contain the CUSIP
number of the Securities.
5. Trustee shall send DTC written notice with respect to the dollar amount
per $1,000 original actual or notional principal amount (or other minimum
authorized denomination if less than $1,000 original actual or notional
principal amount) payable on each payment date allocated as to the interest and
principal portions thereof preferably 5, but not less than 2, business days
prior to such payment date or in accordance with the existing arrangements
between Trustee and DTC. Such notices, which shall also contain the current pool
factor and Trustee contact's name and telephone number, shall be sent by
telecopy to DTC's Dividend Department at (000) 000-0000, or if by mail or by any
other means to:
Manager; Announcements
Dividend Department
The Depository Trust Company
0 Xxxxxxx Xxxxxx; 00xx Xxxxx
Xxx Xxxx, XX 00000-0000
6. [The interest accrual period is record date to record date.]
7. Interest payments and principal payments that are part of periodic
principal-and-interest payments shall be received by Cede & Co., as nominee of
DTC, or its registered assigns in same-day funds on each payment date (or the
equivalent in accordance with existing arrangements between Trustee and DTC,
provided that in connection with the final payment of the Securities, the
Securities of each class are first presented and surrendered to the Trustee).
Such payments shall be made payable to the order of Cede & Co. Absent any other
existing arrangements, such payments shall be addressed as follows:
Manager; Cash Receipts
Dividend Department
The Depository Trust Company
0 Xxxxxxx Xxxxxx; 00xx Xxxxx
Xxx Xxxx, XX 00000-0000
3
8. [Note: Issuer must represent one of the following, and cross out the
other:]
Securities Eligible for DTC's Same-Day Funds Settlement ("SDFS") System.
Other principal payments (redemption payments) shall be made in same-day
funds by Trustee in the manner set forth in the SDFS Paying Agent Operating
Procedures, a copy of which previously has been furnished to Trustee.
9. DTC may direct Issuer or Trustee to use any other number or address as
the number or address to which notices or payments of interest or principal may
be sent.
10. In the event of a full reduction, acceleration, or any other similar
transaction necessitating a reduction in the aggregate principal amount of
Securities outstanding or an advance refunding of part of the Securities
outstanding, DTC, in its discretion: (a) may request Issuer or Trustee to issue
and authenticate a new Security certificate; or (b) may make an appropriate
notation on the Security certificate indicating the date and amount of such
reduction in principal except in the case of final maturity, in which case the
certificate will be presented to Issuer or Trustee prior to payment, if
required.
11. In the event that Issuer determines that beneficial owners of
Securities shall be able to obtain certificated Securities or in the event
holders of the Securities make such determination, Trustee shall, after
notification of such determination, notify DTC of the availability of
certificates. In such event, Trustee shall issue, transfer, and exchange
certificates in appropriate amounts, as required by DTC and others. For such
purposes, the Trustee may conclusively rely on a Securities Position Listing
provided by DTC as to the DTC Participants with respect to the Securities.
12. DTC may discontinue providing its services as securities depository
with respect to the Securities at any time by giving reasonable notice to Issuer
or Trustee (at which time DTC will confirm with Issuer or Trustee the aggregate
principal amount of Securities outstanding). Under such circumstances, at DTC's
request Issuer and Trustee shall cooperate fully with DTC by taking appropriate
action to make available one or more separate certificates evidencing Securities
to any DTC Participant having Securities credited to its DTC accounts. For such
purposes, the Trustee may conclusively rely on a Securities Position Listing
provided by DTC as to the DTC Participants with respect to the Securities.
13. Issuer: (a) understands that DTC has no obligation to, and will not,
communicate to its Participants or to any person having an interest in the
Securities any information contained in the Security certificate(s); and (b)
acknowledges that neither
4
DTC's Participants nor any person having an interest in the Securities shall be
deemed to have notice of the provisions of the Security certificates by virtue
of submission of such certificate(s) to DTC.
14. Nothing herein shall be deemed to require Trustee to advance funds on
behalf of Issuer.
15. There will be no case in which a partial retirement or an invitation to
tender the Securities will occur.
16. DTC is hereby authorized to provide, and hereby agrees to provide to
the Issuer and the Trustee for its customary fee, Securities Position Listing of
DTC Participants with respect to the Securities from time to time at the request
of the Issuer or the Trustee.
17. This Letter of Representations may be executed in one or more
counterparts.
18. DTC represents, pursuant to its Rules, to the Issuer and Trustee:
DTC will take any action permitted to be taken by a holder of a
Security under the Document only at the direction of one or more of
its participating organizations ("Participants") to whose account with
DTC an undivided interest in the Security is credited. DTC will take
any such action that it is so directed to take only with respect to
the portion of the Security represented by the undivided interest
therein of the Participant(s) giving such direction. DTC may take
conflicting actions with respect to the portion of the Security
represented by other undivided interests therein to the extent that
such actions are taken on behalf of Participants whose holdings
include such undivided interests.
19. Issuer and Trustee recognize that DTC does not in any way undertake to,
and shall not have any responsibility to, monitor or ascertain whether a
transfer of Securities could give rise to a transaction prohibited or not
otherwise permissible under the Employee Retirement Income Security Act of 1974
or under Section 4975 of the Internal Revenue Code of 1986. Issuer and Trustee
acknowledge that: a) so long as Cede & Co. is the sole record owner of the
Securities, it shall be entitled to all voting rights in respect thereof and to
receive the full amount of all principal, premium, if any, and interest payable
with respect thereto; and b) DTC shall treat any DTC Participant having
Securities credited to its DTC accounts as entitled to the full benefits of
ownership of such Securities even if the crediting of such Securities to the DTC
accounts of such Participant results from transfers or failures to transfer in
5
violation of such laws. (The treatment by DTC of the effects of the crediting by
it of Securities to the accounts of DTC Participants shall not affect the rights
of Issuer or purchasers, sellers, or holders of Securities against any DTC
Participant.)
Notes:
A. If there is a Trustee (as defined in this Letter of Representations),
Trustee as well as Issuer must sign this Letter. If there is no Trustee, in
signing this Letter Issuer itself undertakes to perform all of the obligations
set forth herein.
B. Schedule B contains statements that DTC believes accurately describe DTC, the
method of effecting book-entry transfers of securities distributed through DTC,
and certain related matters.
Received and Accepted:
THE DEPOSITORY TRUST COMPANY
By:___________________________________
cc: Underwriters
Underwriters' Counsel
Very truly Yours,
Xxxxxxx Xxxxx Mortgage Investors, Inc.
--------------------------------------
(Issuer)
By: /s/ Xxxxx Xxxxxxxx
---------------------------------
(Authorized Officer's Signature)
Bankers Trust Company
--------------------------------------
(Paying Agent)
By: /s/ Xxxxx Xxxxxxx
----------------------------------
(Authorized Officer's Signature)
6
Principal and Income Payments Rider
1. This Rider supersedes any contradictory language set forth in the Letter
of Representations to which it is appended.
2. With respect to principal and income payments in the Securities:
A. DTC shall receive all dividend and interest payments on payable
date in same-day funds by 2:30 p.m. ET (Eastern Time).
B. Issuer agrees that it or Agent shall provide dividend and
interest payment information to a standard announcement service
subscribed to by DTC. In the unlikely event that no such service
exists, Issuer agrees that it or Agent shall provide this
information directly to DTC in advance of the dividend or
interest record date as soon as the information is available.
This information should be conveyed directly to DTC
electronically. If electronic transmission is not possible, such
information should be conveyed by telephone or facsimile
transmission to:
The Depository Trust Company
Manager, Announcements
Dividend Department
0 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Phone: (000) 000-0000
Fax: (000) 000-0000, 1686
C. Issuer agrees that for dividend and interest payments, it or
Agent shall provide automated notification of CUSIP-level detail
to the depository no later than noon ET on the payment date.
D. DTC shall receive maturity and redemption payments and
CUSIP-level detail on the payable date in same-day funds by 2:30
p.m. ET. Absent any other arrangements between Agent and DTC,
such payments shall be wired according to the following
instructions:
Chemical Bank
ABA 000000000
For credit to A/C Depository Trust Company
Redemption Account 066-027306
in accordance with existing SDFS payment procedures in the manner
set forth in DTC's SDFS Paying Agent Operating Procedures a copy
of which has previously been furnished to Agent.
E. DTC shall receive all other payments and CUSIP-level detail
resulting from corporate actions (such as tender offers or
mergers) on the first payable date in same-day funds by 2:30 p.m.
ET. Absent any other arrangements between the Agent and DTC, such
payments shall be wired to the following address:
Chemical Bank
ABA 000000000
For credit to A/C Depository Trust Company
Reorganization Account 066-027608
2
SCHEDULE B
SAMPLE OFFERING DOCUMENT LANGUAGE
DESCRIBING BOOK-ENTRY-ONLY ISSUANCE
(Prepared by DTC-bracketed material may be applicable only to certain issues)
1. The Depository Trust Company ("DTC"), New York, NY, will act as
securities depository for the securities (the "Securities"). The Securities will
be issued as fully-registered securities registered in the name of Cede & Co.
(DTC's partnership nominee). One fully-registered Security certificate will be
issued for [each issue of] the Securities, [each] in the aggregate principal
amount of such issue, and will be deposited with DTC. [If, however, the
aggregate principal amount of [any] issue exceeds $150 million, one certificate
will be issued with respect to each $150 million of principal amount and an
additional certificate will be issued with respect to any remaining principal
amount of such issue.]
2. DTC is a limited-purpose trust company organized under the New York
Banking Law, a "banking organization" within the meaning of the New York Banking
Law, a member of the Federal Reserve System, a "clearing corporation" within the
meaning of the New York Uniform Commercial Code, and a "clearing agency"
registered pursuant to the provisions of Section 17A of the Securities Exchange
Act of 1934. DTC holds securities that its participants ("Participants") deposit
with DTC. DTC also facilitates the settlement among Participants of securities
transactions, such as transfers and pledges, in deposited securities through
electronic computerized book-entry changes in Participants' accounts, thereby
eliminating the need for physical movement of securities certificates. Direct
Participants include securities brokers and dealers, banks, trust companies,
clearing corporations, and certain other organizations. DTC is owned by a number
of its Direct Participants and by the New York Stock Exchange, Inc., the
American Stock Exchange, Inc., and the National Association of Securities
Dealers, Inc. Access to the DTC system is also available to others such as
securities brokers and dealers, banks, and trust companies that clear through or
maintain a custodial relationship with a Direct Participant, either directly or
indirectly ("Indirect Participants"). The Rules applicable to DTC and its
Participants are on file with the Securities and Exchange Commission.
3. Purchases of Securities under the DTC system must be made by or through
Direct Participants, which will receive a credit for the Securities on DTC's
records. The ownership interest of each actual purchaser of each Security
("Beneficial
Owner") is in turn to be recorded on the Direct and Indirect Participants'
records. Beneficial Owners will not receive written confirmation from DTC of
their purchase, but Beneficial Owners are expected to receive written
confirmations providing details of the transaction, as well as periodic
statements of their holdings, from the Direct or Indirect Participant through
which the Beneficial Owner entered into the transaction. Transfers of ownership
interests in the Securities are to be accomplished by entries made on the books
of Participants acting on behalf of Beneficial Owners. Beneficial Owners will
not receive certificates representing their ownership interests in Securities,
except in the event that use of the book-entry system for the Securities is
discontinued.
4. To facilitate subsequent transfers, all Securities deposited by
Participants with DTC are registered in the name of DTC's partnership nominee,
Cede & Co. The deposit of Securities with DTC and their registration in the name
of Cede & Co. effect no change in beneficial ownership. DTC has no knowledge of
the actual Beneficial Owners of the Securities; DTC's records reflect only the
identity of the Direct Participants to whose accounts such Securities are
credited, which may or may not be the Beneficial Owners. The Participants will
remain responsible for keeping account of their holdings on behalf of their
customers.
5. Conveyance of notices and other communications by DTC to Direct
Participants, by Direct Participants to Indirect Participants, and by Direct
Participants and Indirect Participants to Beneficial Owners will be governed by
arrangements among them, subject to any statutory or regulatory requirements as
may be in effect from time to time.
[6. Redemption notices shall be sent to Cede & Co. If less than all of the
Securities within an issue are being redeemed, DTC's practice is to determine by
lot the amount of the interest of each Direct Participant in such issue to be
redeemed.]
7. Neither DTC nor Cede & Co. will consent or vote with respect to
Securities. Under its usual procedures, DTC mails an Omnibus Proxy to the Issuer
as soon as possible after the record date. The Omnibus Proxy assigns Cede &
Co.'s consenting or voting rights to those Direct Participants to whose accounts
the Securities are credited on the record date (identified in a listing attached
to the Omnibus Proxy).
8. Principal and interest payments on the Securities will be made to DTC.
DTC's practice is to credit Direct Participants' accounts on payable date in
accordance with their respective holdings shown on DTC's records unless DTC has
reason to believe that it will not receive payment on payable date. Payments by
Participants to Beneficial Owners will be governed by standing instructions and
customary practices, as is the case with securities held for the accounts of
customers in bearer form or registered in "street name," and will be the
responsibility of
-ii-
such Participant and not of DTC, the Agent, or the Issuer, subject to any
statutory or regulatory requirements as may be in effect from time to time.
Payment of principal and interest to DTC is the responsibility of the Issuer or
the Agent, disbursement of such payments to Direct Participants shall be the
responsibility of DTC, and disbursement of such payments to the Beneficial
Owners shall be the responsibility of Direct and Indirect Participants.
[9. A Beneficial Owner shall give notice to elect to have its Securities
purchased or tendered, through its Participant, to the [Tender/Remarketing]
Agent, and shall effect delivery of such Securities by causing the Direct
Participant to transfer the Participant's interest in the Securities, on DTC's
records, to the [Tender/Remarketing] Agent. The requirement for physical
delivery of Securities in connection with a demand for purchase or a mandatory
purchase will be deemed satisfied when the ownership rights in the Securities
are transferred by Direct Participants on DTC's records.]
10. DTC may discontinue providing its services as securities depository
with respect to the Securities at any time by giving reasonable notice to the
Issuer or the Agent. Under such circumstances, in the event that a successor
securities depository is not obtained, Security certificates are required to be
printed and delivered.
11. The Issuer may decide to discontinue use of the system of book-entry
transfers through DTC (or a successor securities depository). In that event,
Security certificates will be printed and delivered.
12. The information in this section concerning DTC and DTC's book-entry
system has been obtained from sources that the Issuer believes to be reliable,
but the Issuer takes no responsibility for the accuracy thereof.
-iii-
THE DEPOSITORY TRUST COMPANY
00 Xxxxx Xxxxxx (19th floor)
Xxx Xxxx, Xxx Xxxx 00000
Attention: Underwriting Department Manager
Phone: (000) 000-0000
Telecopy: (000) 000-0000
SAFEKEEPING AGREEMENT
Ref: (Description of issue, number of certificates, number of CUSIPs assigned to
issue and $ value of securities)
Xxxxxxx Xxxxx Mortgage Investors, Inc., Mortgage Pass-
Through Certificates, Series 1995-C3 Class A-1, Class X-0, Xxxxx X-0, Class B,
Class C, Class D, Class IO-1, Class IO-2 (See attached Schedule A for CUSIP
Nos.) - value $1,106,992,000
CUSIP
The Depository Trust Company (DTC) acknowledges receipt from Union Bank (the
trustee, transfer agent, underwriter or other agent or the issuer, hereinafter
referred to as the "Agent") of possession, custody and control of the above
securities for safekeeping. DTC is authorized to hold these securities in
safekeeping until DTC is instructed by telephone or in writing by one of the
below designated representatives of the Agent either to: (1) deliver the
securities by book-entry to the DTC account of the lead underwriter (or to the
DTC account of its clearing agent) or (2) return the said securities to the
Agent.
In the event DTC is instructed to return said securities, DTC shall return
the securities to the Agent as soon as practicable, but, in any event, no later
than the DTC business day following the day such instruction is received.
DTC shall hold the Agent, its officers and employees, harmless from any
liability, loss, damage, and reasonable expense of any kind in connection with
any loss, damage, theft or destruction of any kind of said securities while they
are in the possession, custody or control of DTC, its officers or employees or
in the event securities are released from the control of DTC
without the specific approval of the Agent pursuant to this Safekeeping
Agreement.
Bankers Trust Company The Depository Trust Company
The Agent
By: /s/ Xxxxx Xxxxxxx By: /s/
------------------------------- ------------------------------
Trustee for Xxxxxxx
Xxxxx Mortgage Investors,
Inc., MPTC, Series 1995-C3
Title: Vice President Title: SUPERVISOR
------------------------ ---------------------------
Date: 11/29/95 Date: 11/29/95
------------------------ ---------------------------
Authorized Representative
of Trustee/Agent
Xxxxx Xxxxxxx Bankers Trust Company
------------------ -----------------------------------
714) 253-7584
Print Name Organization
Telephone No.
---------------------- ----------------------
Print Name Organization
Telephone No.
---------------------- ----------------------
Print Name Organization
Telephone No.
DTC accepts authorization of closings on the phone numbers listed below:
(000) 000-0000 (000) 000-0000
(000) 000-0000 (000) 000-0000
-2-
SCHEDULE A
Xxxxxxx Xxxxx Mortgage Investors, Inc.
Mortgage Pass-Through Certificates
Series 1995-C3
Designation CUSIP No. Denomination
----------- --------- ------------
Class X-0, Xx. 0 589-929-KXS $135,156,000
Class X-0, Xx. 0 589-929-KY3 32,180,000
Class X-0, Xx. 0 589-929-KZ0 200,000,000
Class X-0, Xx. 0 589-929-KZ0 76,748,000
Class B, No. 1 589-929-LA4 38,616,000
Class C, No. 1 589-929-LB2 32,180,000
Class D, No. 1 589-929-LCO 38,616,000
Class IO-1, No. 1 589-929-LD8 167,336,000
Class IO-2, No. 1 589-929-LH9 200,000,000
Class IO-2, No. 2 589-929-LH9 86,160,000
EXHIBIT G-I
FORM OF TRANSFEROR CERTIFICATE
[Date]
Bankers Trust Company
[Address]
Re: Xxxxxxx Xxxxx Mortgage Investors, Inc., Mortgage Pass-Through
Certificate, Series 1995-C3, Class _________ (the "Certificates")
----------------------------------------------------------------
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer
__________________________ by (the "Transferor") to __________________________
(the "Transferee") of a Certificate (the "Transferred Certificate") [having an
initial principal balance as of November, 1995 (the "Closing Date") of
$____________] [evidencing a ____% percentage interest in the Class to which it
belongs]. The Certificates were issued pursuant to the Pooling and Servicing
Agreement (the "Pooling and Servicing Agreement"), dated as of November 1, 1995,
among Xxxxxxx Xxxxx Mortgage Investors, Inc., as depositor, Bankers Trust
Company, as master servicer, Criimi Mae Services Limited Partnership, as special
servicer, and Union Bank, as trustee. All terms used herein and not otherwise
defined shall have the meanings set forth in the Pooling and Servicing
Agreement. The Transferor hereby certifies, represents and warrants to you, as
Certificate Registrar, that:
1. The Transferor is the lawful owner of the Transferred Certificate
with the full right to transfer such Certificate 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
Certificate, any interest in any Certificate or any other similar security
to any person in any manner, (b) solicited any offer to buy or accept a
transfer, pledge or other disposition of any Certificate, any interest
in any Certificate or any other similar security from any person in any
manner, (c) otherwise approached or negotiated with respect to any
Certificate, any interest in any Certificate or any other similar security
with any person in any manner, (d) made any general solicitation by means
of general advertising or in any other manner, or (e) taken any other
action, which (in the case of any of the acts described in clauses (a)
through (e) hereof) would constitute a distribution of any Certificate
under the Securities Act of 1933 (the "Securities Act"), or would render
the disposition of any Certificate a violation of Section 5 of the
Securities Act or any state securities laws, or would require registration
or qualification of any Certificate pursuant to the Securities Act or any
state securities laws.
Very truly yours,
____________________________________
(Transferor)
By:_________________________________
Name:_______________________________
Title:______________________________
EXHIBIT G-2
FORM OF TRANSFEREE CERTIFICATE
FOR QIBs
[Date]
Bankers Trust Company
[Address]
Re: Xxxxxxx Xxxxx Mortgage Investors, Inc., Mortgage Pass-Through
Certificate, Series 1995-C3, Class __________ (the "Certificates")
------------------------------------------------------------------
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer
__________________________ by (the "Transferor") to ________________________
(the "Transferee") of a Certificate (the "Transferred Certificate") [having an
initial principal balance as of November _, 1995 (the "Closing Date") of
$_____________ [evidencing a ___% percentage interest in the Class to which it
belongs). The Certificates were issued pursuant to the Pooling and Servicing
Agreement (the "Pooling and Servicing Agreement"), dated as of November 1, 1995,
among Xxxxxxx Xxxxx Mortgage Investors, Inc., as depositor, Bankers Trust
Company, as master servicer, Criimi Mae Services Limited Partnership, as special
servicer, and Union Bank, as trustee. All terms used herein and not otherwise
defined shall have the meanings set forth in the Pooling and Servicing
Agreement. The Transferee hereby certifies, represents and warrants to you, as
Certificate Registrar, that:
1. The Transferee is a "qualified institutional buyer" as that term is
defined in Rule 144A ("Rule 144A") under the Securities Act of 1933 (the
"Securities Act") and has completed one of the forms of certification to
that effect attached hereto as Annex 1 and Annex 2. The Transferee is aware
that the sale to it is being made in reliance on Rule 144A. The Transferee
is acquiring the Transferred Certificate for its own account or for the
account of a qualified institutional buyer, and understands that such
Certificate 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 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
Certificates, that it has requested.
Very truly yours,
____________________________________
(Transferee)
By:_________________________________
Name:_______________________________
Title:______________________________
ANNEX 1 TO EXHIBIT G-2
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 Bankers Trust Company as Certificate Registrar, with respect
to the mortgage pass-through certificate being transferred (the "Transferred
Certificate") as described the Transferee Certificate to which this
certification relates and to which this certification is in Annex:
1. As indicated below, the undersigned is the chief financial officer, a
person fulfilling an equivalent function, or other executive officer of the
entity purchasing the Transferred Certificate (the "Transferee").
2. The Transferee is a "qualified institutional buyer" as that term is
defined in Rule 144A under the Securities Act of 1933 ("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.
o Corporation, etc. The Transferee is a corporation (other than a bank,
savings and loan association or similar institution), business trust,
partnership, or any organization described in Section 501(c)(3) of the
Internal Revenue Code of 1986.
o 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
--------------
(1) 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.
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.
o 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 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.
o Broker-dealer. The Transferee is a dealer registered pursuant to
Section 15 of the Securities Exchange Act of 1934.
o 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.
o 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.
o ERISA Plan. The Transferee is an employee benefit plan within the
meaning of Title I of the Employee Retirement Income Security Act of
1974.
o Investment Advisor. The Transferee is an investment advisor registered
under the Investment Advisers Act of 1940.
o 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 enterprise
and the Transferee is not itself a reporting company under the Securities
Exchange Act of 1934.
5. The Transferee acknowledges that it is familiar with Rule 144A and
understands that the Transferor and other parties related to the Transferred
Certificate are relying and will continue to rely on the statements made herein
because one or more sales to the Transferee may be in reliance on Rule 144A.
___ ___ Will the Transferee be purchasing the
Yes No Transferred Certificate only for the
Transferee's own account?
6. If the answer to the foregoing question is "no", then in each case where
the Transferee is purchasing for an account other than its own, such account
belongs to a third party that is itself a "qualified institutional buyer" within
the meaning of Rule 144A, and the "qualified institutional buyer" status of such
third party has been established by the Transferee through one or more of the
appropriate methods contemplated by Rule 144A.
7. The Transferee will notify each of the parties to which this
certification is made of any changes in the information and conclusions herein.
Until such notice is given, the Transferee's purchase of the Transferred
Certificate will constitute a reaffirmation of this certification as of the date
of such purchase. In addition, if the Transferee is a bank or savings and loan
as provided above, the Transferee agrees that it will furnish to such parties
any updated annual financial statements that become available on or before the
date of such purchase, promptly after they become available.
------------------------
Print Name of Transferee
By:___________________________________
Name:___________________________________
Title:___________________________________
___________________________________
Date:___________________________________
ANNEX 2 TO EXHIBIT G-2
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 Bankers Trust Company, as Certificate Registrar, with respect
to the mortgage pass-through certificate being transferred (the "Transferred
Certificate") as described in the Transferee Certificate to which this
certification relates and to which this certification is an Annex:
1. As indicated below, the undersigned is the chief financial officer, a
person fulfilling an equivalent function, or other executive officer of the
entity purchasing the Transferred Certificate (the "Transferee") or, if the
Transferee is a "qualified institutional buyer" as that term is defined in Rule
144A under the Securities Act of 1933 ("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, 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.
o 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).
o 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 I 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.
___ ___ Will the Transferee be purchasing
Yes No the Transferred Certificate only
for the Transferee's own account?
6. If the answer to the foregoing question is "no", then in each case where
the Transferee is purchasing for an account other than its own, such account
belongs to a third party that is itself a "qualified institutional buyer" within
the meaning of Rule 144A, and the qualified institutional buyer" status (if such
third party has been established by the Transferee through one or more of the
appropriate methods contemplated by Rule 144A.
7. The undersigned will notify the parties to which this certification is
made of any changes in the information and conclusions herein. Until such
notice, the Transferee's purchase of the Transferred Certificate will constitute
a reaffirmation of this certification by the undersigned as of the date of such
purchase.
___________________________________
Print Name of Transferee or Adviser
___________________________________
By:________________________________
Name:
Title:_____________________________
IF AN ADVISER:
___________________________________
Print Name of Transferee
Date:______________________________
EXHIBIT G-3
FORM OF TRANSFEREE CERTIFICATE
FOR NON-QIBs
[Date]
Bankers Trust Company
[Address]
Re: Xxxxxxx Xxxxx Mortgage Investors, Inc., Mortgage Pass-Through
Certificate, Series 1995-C3, Class __________ (the "Certificates")
------------------------------------------------------------------
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer
__________________ by (the "Transferor") to __________________ (the
"Transferee") of a Certificate (the "Transferred Certificate") [having an
initial principal balance as of November _, 1995 (the "Closing Date") of
$__________] [evidencing a __% percentage interest in the Class to which it
belongs]. The Certificates were issued pursuant to the Pooling and Servicing
Agreement (the "Pooling and Servicing Agreement"), dated as of November 1, 1995,
among Xxxxxxx Xxxxx Mortgage Investors, Inc., as depositor, (the "Depositor"),
Bankers Trust Company, as master servicer, Criimi Mae Services Limited
Partnership, as special servicer, and Union Bank, as trustee. All terms used
herein and not otherwise defined shall have the meanings set forth in the
Pooling and Servicing Agreement. The Transferee hereby certifies, represents and
warrants to you, as Certificate Registrar, that:
1. The Transferee is acquiring the Transferred Certificate for its own
account for investment and not with a view to or for sale or transfer in
connection with any distribution thereof, in whole or in part, in any manner
which would violate the Securities Act of 1933, as amended (the "Securities
Act"), or any applicable state securities laws.
2. The Transferee understands that (a) the Certificates have not been and
will not be registered under the Securities Act or registered or qualified under
any applicable state securities laws, (b) neither the Depositor nor the Trustee
is obligated so to register or qualify the Certificates and (c) the Certificates
may not be resold or transferred unless they are (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) certifications from both the transferor and
the transferee (substantially in the forms attached to the Agreement) setting
forth the facts surrounding the transfer or (B) an opinion of counsel
satisfactory to the Certificate Registrar with respect to the availability of
such exemption, together with copies of the certification(s) from the transferor
and/or transferee setting forth the facts surrounding the transfer upon which
such opinion is based.
3. The Transferee understands that it may not sell or otherwise transfer
any portion of its interest in the Transferred Certificate except in compliance
with the provisions of Section 5.02 of the Agreement, which provisions it has
carefully reviewed, and that the Transferred Certificate will bear legends
substantially to the following effect:
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE
SECURITIES LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF
THIS CERTIFICATE WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE
ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR
QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
- AND -
[NO TRANSFER OF THIS CERTIFICATE TO AN EMPLOYEE BENEFIT PLAN OR OTHER
RETIREMENT ARRANGEMENT THAT IS SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR THE INTERNAL REVENUE CODE OF
1986 (THE "CODE"), OR TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY
PURCHASING THIS CERTIFICATE ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE
OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT, WILL BE REGISTERED EXCEPT IN COMPLIANCE WITH THE PROCEDURES
DESCRIBED HEREIN.]
- OR -
[NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE
(A) TO ANY EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, INCLUDING
INDIVIDUAL RETIREMENT ACCOUNTS AND ANNUITIES, XXXXX PLANS AND COLLECTIVE
INVESTMENT FUNDS AND SEPARATE ACCOUNTS IN WHICH SUCH PLANS, ACCOUNTS OR
ARRANGEMENTS ARE INVESTED, THAT IS SUBJECT TO THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR THE INTERNAL REVENUE
CODE OF 1986 (THE "CODE") (ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER
RETIREMENT ARRANGEMENT, A "PLAN"), 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 A PLAN
(INCLUDING, WITHOUT LIMITATION, ANY INSURANCE COMPANY USING ASSETS IN ITS
GENERAL OR SEPARATE ACCOUNT THAT MAY CONSTITUTE "PLAN ASSETS" OF A PLAN)
PROVIDED THAT SUCH A TRANSFER MAY BE MADE TO AN INSURANCE COMPANY GENERAL
ACCOUNT IF (i) THIS CERTIFICATE IS ELIGIBLE FOR EXEMPTIVE RELIEF UNDER
SECTION III OF PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 ("PTE 95-60"),
AND (ii) THE CONDITIONS OF SECTIONS I, III AND IV OF PTE 95-60 ARE
SATISFIED WITH RESPECT TO SUCH TRANSFER.]
4. Neither the Transferee nor anyone acting on its behalf has (a) offered,
pledged, sold, disposed of or otherwise transferred any Certificate, any
interest in any Certificate or any other similar security to any person in any
manner, (b) solicited any offer to buy or accept a pledge, disposition or other
transfer of any Certificate, any interest in any Certificate or any other
similar security from any person in any manner, (c) otherwise approached or
negotiated with respect to any Certificate, any interest in any Certificate or
any other similar security with any person in any manner, (d) made any general
solicitation by means of general advertising or in any other manner, or (e)
taken any other action, that (in the case of any of the acts described in
clauses (a) through (e) above) would constitute a distribution of any
Certificate under the Securities Act, would render the disposition of any
Certificate a violation of Section 5 of the Securities Act or any state
securities law or would require registration or qualification of any Certificate
pursuant thereto. The Transferee will not act, nor has it authorized or will it
authorize any person to act, in any manner set forth in the foregoing sentence
with respect to any Certificate.
5. The Transferee has been furnished with all information regarding (a) the
Depositor, (b) the Certificates and distributions thereon, (c) the Pooling and
Servicing Agreement, and (d) all related matters, that it has requested.
6. The Transferee is an "accredited investor" as defined in Rule 501(a)
under the Securities Act and has such knowledge and experience in financial and
business matters as to be capable of evaluating the merits and risks of an
investment in the Certificates; the Transferee has sought such accounting, legal
and tax advice as it has considered necessary to make an informed investment
decision; and the Transferee is able to bear the economic risks of such an
investment and can afford a complete loss of such investment.
Very truly yours,
__________________________________________
(Transferee)
By:_______________________________________
Name:_____________________________________
Title:____________________________________
EXHIBIT H
FORM OF TRANSFEREE LETTER
[Date]
Bankers Trust Company
0 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Xxxxxxx Xxxxx Mortgage Investors, Inc.
Mortgage Pass-Through Certificates,
Series 1995-C3, Classes ____________ (the "Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by ______
___________________________ (the "Transferor") to _____________________________
____________________ (the "Transferee") of the Class __________ Certificates
(the "Transferred Certificate") having principal balances as of ___________,
1995 (the "Closing Date") of $___________ evidencing a ________ % interest in
the Classes to which they belong. The Certificates were issued pursuant to a
Pooling and Servicing Agreement, dated as of November 1, 1995 (the "Pooling and
Servicing Agreement"), among Xxxxxxx Xxxxx Mortgage Investors, Inc. as
depositor, Bankers Trust Company, as master servicer, CRIIMI MAE Services
Limited Partnership, as special servicer and Union Bank as trustee (the
"Trustee"). Capitalized terms used but not defined herein shall have the
meanings set forth in the Pooling and Servicing Agreement. The Transferee hereby
certifies, represents and warrants to you that:
Either: (1) the Transferee is not an employee benefit plan within the
meaning of section 3(3) of the Employee Retirement Income Security Act of 1974,
as amended ("ERISA") (a "Plan"), or a plan within the meaning of section
4975(e)(1) of the Internal Revenue Code of 1986, as amended (the "Code") (also,
a "Plan"), and the Transferee is not directly or indirectly purchasing the
Transferred Certificate on behalf of, as investment manager of, as named
fiduciary of, as trustee of, or with assets of a Plan (including any insurance
company using assets in its general or separate account that may constitute
assets of a Plan); or (2) the Transferee's purchase of the Transferred
Certificate will not result in a prohibited transaction under section 406 of
ERISA or section 4975 of the Code or subject the Master Servicer, the Special
Servicer or the Trustee to any obligation in addition to those undertaken in the
Pooling and Servicing Agreement.
IN WITNESS WHEREOF, the undersigned has executed this certificate as of the
date first written above.
[Name of Transferee]
By:_______________________________
Name:_____________________________
Title:____________________________
EXHIBIT I-l
FORM OF TRANSFER AFFIDAVIT AND AGREEMENT
PURSUANT TO SECTION 5.02(d)(i)(B)
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
[NAME OF OFFICER], being first duly sworn, deposes, represents and
warrants:
1. That he is a [Title of Officer] of [Name of Owner] (the "Owner"), a
corporation duly organized and existing under the laws of the [State of
_________] [the United States], and the owner of the Xxxxxxx Xxxxx Mortgage
Investors, Inc., Mortgage Pass-Through Certificates, Series 1995-C3, Class R-I
evidencing a 100% Percentage Interest (the "Class R-I Certificates").
Capitalized terms used but not defined herein have the meanings assigned to such
terms in the Pooling and Servicing Agreement dated as of November 1, 1995, among
Xxxxxxx Xxxxx Mortgage Investors, Inc., as Depositor, Bankers Trust Company as
Master Servicer, Criimi Mae Services Limited Partnership, as Special Servicer,
and Union Bank, as Trustee.
2. That the Owner (i) is and will be a "Permitted Transferee" as of
November ___, 1995 and (ii) is acquiring the Class R-I Certificates for its own
account or for the account of another Owner 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
Non-United States Person. For this purpose, a "disqualified organization" means
any of the following: (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 (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(a)(2)(C) of the Code and (v) any other Person so designated by the
Trustee based upon an Opinion of Counsel that the holding of an Ownership
Interest in a Class R-I 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 Class
R-I 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.
3. That the Owner is aware (i) of the tax that would be imposed on
transfers of the Class R-I Certificates to disqualified organizations under the
Internal Revenue Code of 1986 that applies to all transfers of the Class R-I
Certificates after March 31, 1988; (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 disqualified organization 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 not a disqualified organization and, at the time of
transfer, such person does not have actual knowledge that the affidavit is false
and; (iv) that the Class R-I Certificates may be "noneconomic residual
interests" within the meaning of Treasury regulation section 1.860E-I(c)(2) 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. That the Owner is aware of the tax imposed on a "pass-through entity"
holding the Class R-I 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. That the Owner is aware that the Certificate Registrar will not register
the transfer of any Class R-I Certificate unless the transferee, or the
transferee's agent, delivers to the Trustee, among other things, an affidavit in
substantially the same form as this affidavit. The Owner expressly agrees that
it will not consummate any such transfer if it knows or believes that any of the
representations contained in such affidavit and agreement are false.
6. That the Owner 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 Class R-I Certificates will only be owned,
directly or indirectly, by Permitted Transferees.
7. That the Owner's taxpayer identification number is ____________.
8. That the Owner has reviewed the restrictions set forth on the face of
the Class R-I Certificates and the provisions of Section 5.02 of the Pooling and
Servicing Agreement under which the Class R-I Certificates were issued (and, in
particular, the Owner is aware that such Section authorizes the Trustee to
deliver payments to a person other than the Owner and negotiate a mandatory sale
by the Trustee in the event that the Owner holds such Certificate in violation
of Section 5.02); and that the Owner expressly agrees to be bound by and to
comply with such restrictions and provisions.
9. That the Owner is not acquiring and will not transfer the Class R-I
Certificates in order to impede the assessment or collection of any tax.
10. That the Owner anticipates that it will, so long as it holds any of the
Class R-I Certificates, have sufficient assets to pay any taxes owed by the
holder of such Class R-I Certificates.
11. That the Owner has no present knowledge that it may become insolvent or
subject to a bankruptcy proceeding for so long as it holds any of the Class R-I
Certificates.
12. That the Owner has no present knowledge or expectation that it will be
unable to pay any United States taxes owed by it so long as any of the
Certificates remain outstanding. In this regard, the Owner hereby represents to
and for the benefit of the Person from whom it acquired the Class R-I
Certificates that the Owner intends to pay taxes associated with holding the
Class R-I Certificates as they become due, fully understanding that it may incur
tax liabilities in excess of any cash flows generated by the Class R-I
Certificates.
13. That the Owner is not acquiring the Class R-I Certificates with the
intent to transfer any of the Class R-I Certificates to any person or entity
that will not have sufficient assets to pay any taxes owed by the holder of such
Class R-I Certificates, or that may become insolvent or subject to a bankruptcy
proceeding, for so long as the Class R-I Certificates remain outstanding.
14. That Owner will, in connection with any transfer that it makes of the
Class R-I Certificates, obtain from its transferee the representations required
by Section 5.02(d) of the Pooling and Servicing Agreement under which the Class
R-I Certificates were issued and will not consummate any such transfer if it
knows, or knows facts that should lead it to believe, that any such
representations are false.
15. That Owner will, in connection with any transfer that it makes of any
Class R-I Certificate, deliver to the Certificate Registrar an affidavit, which
represents and warrants that it is not transferring such Class R-I Certificate
to impede the assessment or collection of any tax and that it has no actual
knowledge that the proposed transferee: (i) has insufficient assets to pay any
taxes owed by such transferee as holder of such Class R-I Certificate; (ii) may
become insolvent or subject to a bankruptcy proceeding, for so long as the Class
R-I Certificates remain outstanding; and (iii) is not a "Permitted Transferee".
IN WITNESS WHEREOF, the Owner has caused this instrument to be executed on
its behalf, by its Managing Director and Authorized Signatory, attested by its
Assistant Secretary, this ___ day of November, 1995.
[NAME OF OWNER]
By:_____________________________________
[Name of Officer]
[Title of Officer]
______________________
[Assistant] Secretary
Personally appeared before me the above-named [Name of Officer], known or
proved to me to be the same person who executed the foregoing instrument and to
be [Title of Officer], and acknowledged to me that he executed the same as his
free act and deed and the free act and deed of the Owner.
Subscribed and sworn before me this ___ day of November, 1995.
/s/
_________________________________________
NOTARY PUBLIC
COUNTY OF ____________
STATE OF _____________
My Commission expires the
____ day of ___________, 19__.
EXHIBIT I-2
FORM OF TRANSFEROR CERTIFICATE
PURSUANT TO SECTION 5.02(d)(i)(D)
November , 1995
Bankers Trust Company
[Address]
(Attention: MLMI Series 1995-C3)
Re: Xxxxxxx Xxxxx Mortgage Investors, Inc., Mortgage
Pass-Through Certificates, Series 1995-C3, Class R-I,
evidencing a 100% percentage interest in the Class to
which they belong
-------------------------------------------------------
Dear Sirs:
This letter is delivered to you in connection with the transfer by _______
______________________________ (the "Transferor") to ________________________
_________________________________________________________________ (the
"Transferees") of the captioned Class R-I Certificates (the "Class R-I
Certificates"), pursuant to Section 5.02 of the Pooling and Servicing Agreement
(the "Pooling and Servicing Agreement"), dated as of November 1, 1995, among
Xxxxxxx Xxxxx Mortgage Investors, Inc., as depositor, Bankers Trust Company, as
master servicer, Criimi Mae Services Limited Partnership, as special servicer,
and Union Bank, as trustee. All terms used herein and not otherwise defined
shall have the meanings set forth in the Pooling and Servicing Agreement. The
Transferor hereby represents and warrants to you, as Certificate Registrar,
that:
1. No purpose of the Transferor relating to the transfer of the Class
R-I 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 I-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 Class R-I 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,
By:______________________________________
Name:
Title:
EXHIBIT J-1
FORM OF TRANSFER AFFIDAVIT AND AGREEMENT
PURSUANT TO SECTION 5.02(d)(i)(B)
STATE OF NEW YORK )
: SS.:
COUNTY OF NEW YORK )
[NAME OF OFFICER], being first duly sworn, deposes, represents and
warrants:
1. That he is a [TITLE OF OFFICER] of [Name of Owner] (the "Owner"), a
corporation duly organized and existing under the laws of the [State of
_________] [the United States], and the owner of the Xxxxxxx Xxxxx Mortgage
Investors, Inc., Mortgage Pass-Through Certificates, Series 1995-C3, Class R-II
evidencing a __% Percentage Interest (the "Class R-II Certificates").
Capitalized terms used but not defined herein have the meanings assigned to such
terms in the Pooling and Servicing Agreement dated as of November 1, 1995, among
Xxxxxxx Xxxxx Mortgage Investors, Inc., as Depositor, Bankers Trust, as Master
Servicer, Criimi Mae Services Limited Partnership, as Special Servicer, and
Union Bank, as Trustee.
2. That the Owner (i) is and will be a "Permitted Transferee" as of
November __, 1995 and (ii) is acquiring the Class R-II Certificates for its own
account or for the account of another Owner 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
Non-United States Person. For this purpose, a "disqualified organization" means
any of the following: (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 I 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(a)(2)(C) of the Code and (v) any other Person so designated by the
Trustee based upon an Opinion of Counsel that the holding of an Ownership
Interest in a Class R-II 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 Class
R-II 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.
3. That the Owner is aware (i) of the tax that would be imposed on
transfers of the Class R-II Certificates to disqualified organizations under the
Internal Revenue Code of 1986 that applies to all transfers of the Class R-II
Certificates after March 31, 1988; (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 disqualified organization 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 not a disqualified organization and, at the time of
transfer, such person does not have actual knowledge that the affidavit is false
and; (iv) that the Class R-II Certificates may be "noneconomic residual
interests" within the meaning of Treasury regulation section 1.860E-I(c)(2) 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. That the Owner is aware of the tax imposed on a "pass-through entity"
holding the Class R-II 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. That the Owner is aware that the Certificate Registrar will not register
the transfer of any Class R-II Certificate unless the transferee, or the
transferee's agent, delivers to the Trustee, among other things, an affidavit in
substantially the same form as this affidavit. The Owner expressly agrees that
it will not consummate any such transfer if it knows or believes that any of the
representations contained in such affidavit and agreement are false.
6. That the Owner 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 Class R-II Certificates will only be owned,
directly or indirectly, by Permitted Transferees.
7. That the Owner's taxpayer identification number is _____________.
8. That the Owner has reviewed the restrictions set forth on the face of
the Class R-II Certificates and the provisions of Section 5.02 of the Pooling
and Servicing Agreement under which the Class R-II Certificates were issued
(and, in particular, the Owner is aware that such Section authorizes the Trustee
to deliver payments to a person other than the Owner and negotiate a mandatory
sale by the Trustee in the event that the Owner holds such Certificate in
violation of Section 5.02); and that the Owner expressly agrees to be bound by
and to comply with such restrictions and provisions.
9. That the Owner is not acquiring and will not transfer the Class R-II
Certificates in order to impede the assessment or collection of any tax.
10. the Owner anticipates that it will, so long as it holds any of the
Class R-II Certificates, have sufficient assets to pay any taxes owed by the
holder of such Class R-II Certificates.
11. That the Owner has no present knowledge that it may become insolvent or
subject to a bankruptcy proceeding for so long as it holds any of the Class R-II
Certificates.
12. That the Owner has no present knowledge or expectation that it will be
unable to pay any United States taxes owed by it so long as any of the
Certificates remain outstanding. In this regard, the Owner hereby represents to
and for the benefit of the Person from whom it acquired the Class R-II
Certificates that the Owner intends to pay taxes associated with holding the
Class R-II Certificates as they become due, fully understanding that it may
incur tax liabilities in excess of any cash flows generated by the Class R-II
Certificates.
13. That the Owner is not acquiring the Class R-II Certificates with the
intent to transfer any of the Class R-II Certificates to any person or entity
that will not have sufficient assets to pay any taxes owed by the holder of such
Class R-II Certificates, or that may become insolvent or subject to a bankruptcy
proceeding, for so long as the Class R-II Certificates remain outstanding.
14. That Owner will, in connection with any transfer that it makes of the
Class R-II Certificates, obtain from its transferee the representations required
by Section 5.02(d) of the Pooling and Servicing Agreement under which the Class
R-II Certificates were issued and will not consummate any such transfer if it
knows, or knows facts that should lead it to believe, that any such
representations are false.
15. That Owner will, in connection with any transfer that it makes of any
Class R-II Certificate, deliver to the Certificate Registrar an affidavit, which
represents and warrants that it is not transferring such Class R-II Certificate
to impede the assessment or Collection of any tax and that it has no actual
knowledge that the proposed transferee: (i) has insufficient assets to pay any
taxes owed by such transferee as holder of such Class R-II Certificate; (ii) may
become insolvent or subject to a bankruptcy proceeding, for so long as the Class
R-II Certificates remain outstanding; and (iii) is not a "Permitted Transferee".
IN WITNESS WHEREOF, the Owner has caused this instrument to be executed on
its behalf, by its Managing Director and Author Signatory, attested by its
Assistant Secretary, this ___ day of November, 1995.
[NAME OF OWNER]
By:_______________________________________
[Name of Officer]
[Title of Officer]
ATTEST:
________________________
[Assistant] Secretary
Personally appeared before me the above-named [Name of Officer] known or
proved to me to be the same person who executed the foregoing instrument and to
be a [Title of Officer], and acknowledged to me that he executed the same as his
free act and deed and the free act and deed of the Owner.
Subscribed and sworn before me this ___ day of November, 1995.
__________________________________
NOTARY PUBLIC
COUNTY OF________________
STATE OF_________________
My Commission expires the
__ day of _________, 19__.
EXHIBIT J-2
FORM OF TRANSFEROR CERTIFICATE
PURSUANT TO SECTION 5.02(d)(i)(D)
November __, 1995
Bankers Trust Company
[Address]
(Attention: MLMI Series 1995 - C3)
Re: Xxxxxxx Xxxxx Mortgage Investors, Inc., Mortgage Pass-Through
Certificates, Series 1995-C3, Class R-II, evidencing a 100%
Percentage interest in the Class to which they belong
--------------------------------------------------------------
Dear Sirs:
This letter is delivered to you in connection with the transfer by _______
______________________________ (the "Transferor") to ______________________
___________________________ (the "Transferee") of the captioned Class R-II
Certificates (the "Class R-II Certificates"), pursuant to Section 5.02 of the
Pooling and Servicing Agreement (the "Pooling and Servicing Agreement"), dated
as of November 1, 1995, among Xxxxxxx Xxxxx Mortgage Investors, Inc., as
depositor, Bankers Trust Company, as master servicer and special servicer, and
Union Bank, as trustee. All terms used herein and not otherwise defined shall
have the meanings set forth in the Pooling and Servicing Agreement. The
Transferor hereby represents and warrants to you, as Certificate Registrar,
that:
1. No purpose of the Transferor relating to the transfer of the Class
R-II 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 J-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- I (c)(4) (i) and, as a
result of that investigation, the
Transferor has determined that the Transferee has historically paid its
debts as they are 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 Class
R-II 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,
By: ________________________
Name:
Title:
EXHIBIT K-1
FORM OF NOTICE AND ACKNOWLEDGMENT
[Date]
Duff & Xxxxxx Credit Rating Co.
[Address]
Standard & Poor's Ratings Group
[Address]
Ladies and Gentlemen:
This notice is being delivered pursuant to Section 6.09 of the Pooling and
Servicing Agreement dated as of November 1, 1995 relating to Xxxxxxx Xxxxx
Mortgage Investors Inc., Mortgage Pass-Through Certificates, Series 1995-C3 (the
"Agreement"). Any term with initial capital letters not otherwise defined in
this notice has the meaning given such term 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 if neither of you delivers to Union
Bank, the trustee under the Agreement (the "Trustee"), within 45 days after the
date of the delivery of this notice to you, a written notice stating that if the
person designated to become the Special Servicer were to serve as the Special
Servicer, then the rating or ratings of one or more Classes of the Certificates
would be qualified, downgraded or withdrawn.
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,
Union Bank
By: _______________________
Title: ____________________
Receipt acknowledged:
Duff & Xxxxxx Credit Rating Co. Standard & Poor's Ratings Group
By:___________________________ By:____________________________
Title:________________________ Title:_________________________
Date:_________________________ Date:__________________________
EXHIBIT K-2
FORM OF ACKNOWLEDGMENT OF PROPOSED SPECIAL SERVICER
[Date]
Union Bank, as Trustee
[ADDRESS]
Attention: MLMI Series 1995-C3
Ladies & Gentlemen:
Pursuant to Section 6.09 of the Pooling and Servicing Agreement dated as of
November 1, 1995 relating to Xxxxxxx Xxxxx Mortgage Investors Inc., Mortgage
Pass-Through Certificates, Series 1995-C3 (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 3.23 as if
it were the Master Servicer thereunder except that it does not make any
representation or warranty set forth in clause (viii) thereof.
________________________________
By:_____________________________
Name:___________________________
Title:__________________________
EXHIBIT L
Uniform Commercial Code - FINANCING STATEMENT - Form UCC-1
Important - Read instructions on back before filling our form
This FINANCING STATEMENT is presented to a Filing No. of Additional
Officer for filing pursuant to the Uniform Sheets Prepared: 3.[ ] The Debtor is a transmitting
Commercial Code utility.
----------------------------------------------------------------------------------------------------------------------
1. Debtor(s) (Last Name First) and 2. Secured Party(ies) Name(s) and 4.[ ] For Filing Officer: Date, Time,
Address(es): Address(es) No. Filing Office
----------------------------------------------------------------------------------------------------------------------
5. This Financing Statement covers the following types (or items) of 6.[ ] Assignee(s) of Secured Party and
property: Address(es)
7.[ ] The described crops are growing
or to be grown on:*
[ ] The described goods are or are to be
affixed to:*
[ ] The lumber to be cut or minerals or the
[ ] Products of the Collateral are also covered. like
-------------------------------------------------------------------------------- (including oil and gas) is on:*
*(Describe Real Estate Below)
8. Describe Real Estate [ ] This statement is to be 9. Name of
Here: indexed in the Real Estate a Record
Records: Owner
No. & Street Town or City County Section Block Lot
----------------------------------------------------------------------------------------------------------------------
10. This statement is filed without the debtor's signature to perfect a security interest in collateral (check appropriate box)
[ ] under a security agreement signed by debtor authorizing secured party to file this statement, or
[ ] which is proceeds of the original collateral described above in which a security interest was perfected, or
[ ] acquired after a change of name, identity of corporate structure of the debtor, or [ ] as to which the filing has
lapsed, or already subject to a security interest in another jurisdiction:
[ ] when the collateral was broght into the state, or [ ] when the debtor's locations was changed to this state.
----------------------------------------------------- --------------------------------------------------
By __________________________________________________ By _______________________________________________
Signiature(s) of Debtor(s) Signature(s) of Secured Party(ies)
(1) Filing Officer Copy-Numerical
Standard Form - Form UCC - 1 - Approved by Secretary of State of New York
EXHIBIT A
This Exhibit A is attached to and incorporated in a financing statement
pertaining to XXXXXXX XXXXX MORTGAGE INVESTORS, INC., as Depositor ()referred to
as the "Debtor for the purpose of this financing statement only), and UNION
BANK, as trustee for the holders of the Series 1995-C3 Certificates (referred to
as the "Secured Party" for purposes of this financing statement only), under
that certain Pooling and Servicing Agreement dated as of November 1, 1995 (the
"Pooling and Servicing Agreement"), among the Debtor, Bankers Trust Company as
master servicer (in such capacity, the "Master Servicer"), CRIIMI MAE Services
Limited Partnership, as special servicer (in such capacity, the "Special
Servicer"), and the Secured Party, relating to the issuance of the Debtor's
Mortgage Pass-Through Certificates, Class A-1, Class A-2, Class A-3, Class B,
Class C, Class Dm, Class E, Class F, Class G, Class IO-1, Class IO-2, Class R-I
and Class R-II, Series 1995-C3 (collectively, the "Series 1995-C3
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 by 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 C;
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 Certificate Account created by the Master Servicer pursuant
to the Pooling and Servicing Agreement, (b) all funds from time to time on
deposit in the Certificate Account, (c) the investments of any such funds
consisting of securities, instruments or other obligations (including the
Permitted Investments described on Exhibit B hereto), and (d) the general
intangibles consisting of the contractual right to payment, including 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 the Permitted Investments described on Exhibit B hereto), and
(d) the general intangibles consisting of the contractual right to payment,
including 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 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 in deposit in the Reserve Account(s);
8. (a) the Distribution Account created 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 the
Permitted Investments described on Exhibit B hereto), and (d) the general
intangibles consisting of the contractual right to payment, including 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 Agreements, transferred to the Trust Fund and to
be serviced by the Master Servicer or Special Servicer; and
10. 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
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MORTGAGES AND THE OTHER DOCUMENTS IN THE RELATED MORTGAGE FILES EVIDENCED BY THE
SERIES 1995-C3 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 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.
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EXHIBIT B
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;
(ii) repurchase obligations with respect to any security described in
clause (i) above, provided that the long-term unsecured debt obligations,
or the short-term deposit or debt obligations, of the party agreeing to
repurchase such obligations are rated in the highest rating category of
each of Standard & Poor's Ratings Group ("Standard & Poor's") and DCR
("DCR" and Standard & Poor's, together, the "Rating Agencies"), if rated by
DCR, or such lower rating as will not result in qualification, downgrading
or withdrawal of the ratings then assigned to the Certificates, as
evidenced in writing by the Rating Agencies;
(iii) certificates of deposit, time deposits, demand deposits and
bankers' acceptances of any bank or trust company organized under the laws
of the United States of any state thereof, provided that such items are
rated in the highest rating category of each of Standard & Poor's and DCR,
if rated by DCR, or such lower rating as will not result in qualification,
downgrading or withdrawal of the ratings then assigned to the Certificates,
as evidenced in writing by the Rating Agencies.
(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 if not so incorporated, the commercial paper in
United States Dollar denominated and amounts payable thereunder are not
subject to any withholding imposed by a non-United States jurisdiction)
which is rated in the highest rating category of each of Standard & Poor's
and DCR, if rated by DCR;
(v) units of money market funds in the highest rating category of each
of Standard & Poor's and DCR, if rated by DCR, and which maintain a
constant net asset value; and
(vi) any other obligation or security acceptable to each Rating
Agency, evidence of which acceptability shall be provided in writing by
either Rating Agency to the Master Servicer and the Trustee;
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provided (1) that 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; (2) and 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.
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