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DLJ COMMERCIAL MORTGAGE CORP.,
Depositor
and
--------------------------,
Master Servicer
and
--------------------------,
Special Servicer
and
---------------------------,
Trustee and REMIC Administrator
---------------------------------
POOLING AND SERVICING AGREEMENT
Dated as of ______, 199__
--------------------------------------
$________________
Mortgage Pass-Through Certificates
Series 199__-_____
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TABLE OF CONTENTS
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Section Page
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ARTICLE I
DEFINITIONS; CERTAIN CALCULATIONS
IN RESPECT OF THE MORTGAGE POOL
1.01. Defined Terms...................................................................................5
1.02. Certain Calculations in Respect of the Mortgage Pool...........................................45
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS
AND WARRANTIES;ORIGINAL ISSUANCE OF CERT
2.01. Conveyance of Mortgage Loans...................................................................47
2.02. Acceptance of REMIC I by Trustee...............................................................49
2.03. Certain Repurchases of Mortgage Loans by the Mortgage Loan Seller..............................51
2.04. Representations and Warranties of the Depositor................................................52
2.05. Representations and Warranties of the Master Servicer..........................................53
2.06. Representations and Warranties of the Special Servicer.........................................55
2.07. Representations, Warranties and Covenants of the Trustee and the REMIC
Administrator..................................................................................57
2.08. [RESERVED].....................................................................................58
2.09. Execution, Authentication and Delivery of Class R-I Certificates;
Creation of REMIC I Regular Interests..........................................................58
2.10. Conveyance of REMIC I Regular Interests; Acceptance of
REMIC II by Trustee............................................................................59
2.11. Execution, Authentication and Delivery of Class R-II Certificates;
Creation of REMIC II Regular Interests.........................................................59
2.12. Conveyance of REMIC II Regular Interests; Acceptance of
REMIC III by Trustee...........................................................................59
2.13. Execution, Authentication and Delivery of REMIC III Certificates...............................60
ARTICLE III
ADMINISTRATION AND SERVICING
OF THE TRUST FUND
3.01. Administration of the Mortgage Loans...........................................................61
3.02. Collection of Mortgage Loan Payments...........................................................62
3.03. Collection of Taxes, Assessments and Similar Items; Servicing
Accounts; Reserve Accounts.....................................................................62
3.04. Collection Account and Distribution Account....................................................64
3.05. Permitted Withdrawals From the Collection Account and the
Distribution Account...........................................................................67
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3.06. Investment of Funds in the Collection Account and the REO Account..............................71
3.07. Maintenance of Insurance Policies; Errors and Omissions
and Fidelity Coverage..........................................................................73
3.08. Enforcement of Alienation Clauses..............................................................75
3.09. Realization Upon Defaulted Mortgage Loans......................................................75
3.10. Trustee to Cooperate; Release of Mortgage Files................................................78
3.11. Servicing Compensation; Interest on Servicing Advances;
Payment of Certain Expenses; Obligations of the Trustee
regarding Back-up Servicing Advances...........................................................80
3.12. Property Inspections; Collection of Financial Statements; Delivery of Certain
Reports........................................................................................84
3.13. Annual Statement as to Compliance..............................................................84
3.14. Reports by Independent Public Accountants......................................................85
3.15. Access to Certain Information..................................................................85
3.16. Title to REO Property; REO Account.............................................................86
3.17. Management of REO Property.....................................................................87
3.18. Sale of Mortgage Loans and REO Properties......................................................90
3.19. Additional Obligations of Master Servicer......................................................94
3.20. Modifications, Waivers, Amendments and Consents................................................95
3.21. Transfer of Servicing Between Master Servicer and Special
Servicer; Record Keeping.......................................................................98
3.22. Sub-Servicing Agreements.......................................................................99
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
4.01. Distributions.................................................................................102
4.02. Statements to Certificateholders; Certain Other Reports.......................................112
4.03. P&I Advances..................................................................................114
4.04. Allocation of Realized Losses and Additional Trust Fund Expenses..............................116
4.05. Calculations..................................................................................117
4.06. Use of Agents.................................................................................117
ARTICLE V
THE CERTIFICATES
5.01. The Certificates..............................................................................118
5.02. Registration of Transfer and Exchange of Certificates.........................................119
5.03. Book-Entry Certificates.......................................................................124
5.04. Mutilated, Destroyed, Lost or Stolen Certificates.............................................126
5.05. Persons Deemed Owners.........................................................................126
5.06 Certification by Certificate Owners...........................................................126
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ARTICLE VI
THE DEPOSITOR, THE MASTER SERVICER,
THE SPECIAL SERVICER AND THE REMIC ADMINISTRATOR
6.01. Liability of the Depositor, the Master Servicer, the Special Servicer
and the REMIC Administrator...................................................................128
6.02. Merger, Consolidation or Conversion of the Depositor, the Master
Servicer, the Special Servicer or the REMIC Administrator.....................................128
6.03. Limitation on Liability of the Depositor, the Master Servicer, the Special
Servicer and the REMIC Administrator..........................................................129
6.04. Master Servicer, Special Servicer and REMIC Administrator
Not to Resign.................................................................................130
6.05. Rights of the Depositor and the Trustee in Respect of the Master
Servicer, the Special Servicer and the REMIC Administrator....................................130
6.06. [RESERVED]....................................................................................131
6.07. Master Servicer or Special Servicer as Owner of a Certificate.................................131
ARTICLE VII
DEFAULT
7.01. Events of Default.............................................................................133
7.02. Trustee to Act; Appointment of Successor......................................................137
7.03. Notification to Certificateholders............................................................138
7.04. Waiver of Events of Default...................................................................138
7.05. Additional Remedies of Trustee Upon Event of Default..........................................138
7.06. Advance Collateral Fund for Trustee...........................................................139
ARTICLE VIII
CONCERNING THE TRUSTEE
8.01. Duties of Trustee.............................................................................141
8.02. Certain Matters Affecting Trustee.............................................................143
8.03. Trustee not Liable for Validity or Sufficiency of Certificates or
Mortgage Loans................................................................................144
8.04. Trustee May Own Certificates..................................................................145
8.05. Fees and Expenses of Trustee; Indemnification of Trustee and the REMIC
Administrator.................................................................................145
8.06. Eligibility Requirements for Trustee..........................................................146
8.07. Resignation and Removal of Trustee............................................................147
8.08. Successor Trustee.............................................................................148
8.09. Merger or Consolidation of Trustee............................................................148
8.10. Appointment of Co-Trustee or Separate Trustee.................................................149
8.11. Appointment of Custodians.....................................................................150
8.12. Access to Certain Information.................................................................150
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ARTICLE IX
TERMINATION
9.01. Termination Upon Repurchase or Liquidation of All Mortgage Loans..............................152
9.02. Additional Termination Requirements...........................................................154
ARTICLE X
ADDITIONAL REMIC PROVISIONS
10.01. REMIC Administration..........................................................................155
10.02. Depositor, Master Servicer, Special Servicer and Trustee to
Cooperate with REMIC Administrator............................................................159
10.03. Indemnification by Trustee, REMIC Administrator, Master
Servicer and Special Servicer.................................................................159
10.04. Fees of the REMIC Administrator...............................................................159
10.05. Use of Agents.................................................................................160
ARTICLE XI
MISCELLANEOUS PROVISIONS
11.01. Amendment.....................................................................................161
11.02. Recordation of Agreement; Counterparts........................................................162
11.03. Limitation on Rights of Certificateholders....................................................163
11.04. Governing Law.................................................................................164
11.05. Notices.......................................................................................164
11.06. Severability of Provisions....................................................................164
11.07. Successors and Assigns; Beneficiaries.........................................................165
11.08. Article and Section Headings..................................................................165
11.09. Notices to Rating Agencies....................................................................165
11.10. Complete Agreement............................................................................166
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EXHIBITS
EXHIBIT A-1 Form of Class S Certificate
EXHIBIT A-2 Form of Class A-1A Certificate
EXHIBIT A-3 Form of Class A-1B Certificate
EXHIBIT A-4 Form of Class A-2 Certificate
EXHIBIT A-5 Form of Class A-3 Certificate
EXHIBIT A-6 Form of Class B-1 Certificate
EXHIBIT A-7 Form of Class B-2 Certificate
EXHIBIT A-8 Form of Class B-3 Certificate
EXHIBIT A-9 Form of Class B-4 Certificate
EXHIBIT A-10 Form of Class C Certificate
EXHIBIT A-11 Form of Class R-I Certificate
EXHIBIT A-12 Form of Class R-II Certificate
EXHIBIT A-13 Form of Class R-III Certificate
EXHIBIT B-1 Mortgage Loan Schedule
EXHIBIT B-2 Schedule of Exceptions to Mortgage
File Delivery
EXHIBIT C Letter of Representations among
Depositor, Trustee and initial Depositor
EXHIBIT D-1 Form of Master Servicer Request for Release
EXHIBIT D-2 Form of Special Servicer Request for Release
EXHIBIT E-1 Form of Trustee Report
EXHIBIT E-2 Form of Determination Date Report
EXHIBIT E-3 Form of Special Servicer Report
EXHIBIT E-4 Form of Operating Statement Analysis
EXHIBIT F-1A Form I of Transferor Certificate for Transfers of Definitive
Certificates
EXHIBIT F-1B Form II of Transferor Certificate for
Transfers of Definitive Certificates
EXHIBIT F-2A Form I of Transferee Certificate for Transfers
of Definitive Certificates
EXHIBIT F-2B Form II of Transferee Certificate for
Transfers of Definitive Certificates
EXHIBIT G-1 Form of Transferee Certificate in Connection with ERISA
(Definitive Certificates)
EXHIBIT G-2 Form of Transferee Certificate in Connection with ERISA (Book-
Entry Certificates)
EXHIBIT H-1 Form of Transfer Affidavit and Agreement for Transfers of
Residual Certificates
EXHIBIT H-2 Form of Transferor Certificate for Transfers of Residual
Certificates
EXHIBIT I-1 Form of Notice and Acknowledgment Concerning Replacement of
Special Servicer
EXHIBIT I-2 Form of Acknowledgment of Proposed Special Servicer
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EXHIBIT J Form of UCC-1 Financing Statement
EXHIBIT K Calculation of Net Operating Income
EXHIBIT L-1 Information Request from Certificateholder or Certificate
Owner
EXHIBIT L-2 Information Request from Prospective Investor
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This Pooling and Servicing Agreement (this "Agreement"), is dated and
effective as of _________, 199__ (the "Cut-off Date"), among DLJ COMMERCIAL
MORTGAGE CORP., as Depositor, _______________, as Master Servicer,
_______________, as Special Servicer and _______________, as Trustee and REMIC
Administrator.
PRELIMINARY STATEMENT:
The Depositor intends to sell mortgage pass-through certificates
(collectively, the "Certificates"), to be issued hereunder on ____________,
199__ (the "Closing Date") in multiple classes (each, a "Class"), which in the
aggregate will evidence the entire beneficial ownership interest in a trust fund
(the "Trust Fund") to be created hereunder.
As provided herein, the REMIC Administrator will elect to treat the
segregated pool of assets consisting of the Mortgage Loans (as defined herein)
and certain other related assets subject to this Agreement as a real estate
mortgage investment conduit (a "REMIC") for federal income tax purposes, and
such segregated pool of assets will be designated as REMIC I. The Class R-I
Certificates will represent the sole class of "residual interests" in REMIC I
for purposes of the REMIC Provisions (as defined herein) under federal income
tax law. With respect to each Mortgage Loan, there shall be a corresponding
"regular interest" in REMIC I (each, a "REMIC I Regular Interest"). The
designation for each such REMIC I Regular Interest shall be the loan number for
the related Mortgage Loan set forth on the schedule of Mortgage Loans attached
hereto as Exhibit B-1. The remittance rate (the "REMIC I Remittance Rate") and
the initial stated principal amount (the initial "Uncertificated Principal
Balance") of each such REMIC I Regular Interest shall equal the Net Mortgage
Rate (as defined herein) as of the Closing Date and the Cutoff Date Balance (as
defined herein), respectively, for the related Mortgage Loan. Determined solely
for purposes of satisfying Treasury regulation Section 1.860G-1(a)(4)(iii), the
"latest possible maturity date" for each such REMIC I Regular Interest shall be
the date that is the first Distribution Date (as defined herein) that follows
the Stated Maturity Date (as defined herein) for the related Mortgage Loan. None
of the REMIC I Regular Interests will be certificated.
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As provided herein, the REMIC Administrator will elect to treat the
segregated pool of assets consisting of the REMIC I Regular Interests as a REMIC
for federal income tax purposes, and such segregated pool of assets will be
designated as REMIC II. The Class R-II Certificates will represent the sole
class of "residual interests" in REMIC II for purposes of the REMIC Provisions
under federal income tax law. The following table irrevocably sets forth the
designation, remittance rate (the "REMIC II Remittance Rate"), the
Uncertificated Principal Balance and latest possible maturity date for each of
the "regular interests" in REMIC II (the "REMIC II Regular Interests"). None of
the REMIC II Regular Interests will be certificated.
Initial
Uncertificated
REMIC II Principal Latest Possible
Designation Remittance Rate Balance Maturity Date(2)(3)
----------- --------------- ------- -------------------
A-1A Variable(1) $
A-1B Variable(1) $
A-2 Variable(1) $
A-3 Variable(1) $
B-1 Variable(1) $
B-2 Variable(1) $
B-3 Variable(1) $
B-4 Variable(1) $
C Variable(1) $
---------------
(1) Calculated in accordance with the definition of "REMIC II Remittance Rate".
(2) Determined solely for purposes of satisfying Treasury regulation Section
1.860G-1(a)(4)(iii).
(3) Calculated on the basis of the Maturity Assumptions (as defined herein).
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As provided herein, the REMIC Administrator will elect to treat the
segregated pool of assets consisting of the REMIC II Regular Interests as a
REMIC for federal income tax purposes, and such segregated pool of assets will
be designated as REMIC III. The Class R-III Certificates will represent the sole
class of "residual interests" in REMIC III for purposes of the REMIC Provisions
under federal income tax law. The following table irrevocably sets forth the
designation, pass-through rate (the "Pass-Through Rate"), initial aggregate
stated principal amount (the initial "Class Principal Balance") and the latest
possible maturity date for each of the Classes of Certificates or Components (as
defined herein) thereof representing "regular interests" in REMIC III.
Initial Class Latest Possible
Designation Pass-Through Rate Principal Balance Maturity Date(4)(5)
----------- ----------------- ----------------- -------------------
Component S-A1A(1) Variable(2) N/A(3)
Component S-A1B(1) Variable(2) N/A(3)
Component S-A2(1) Variable(2) N/A(3)
Component S-A3(1) Variable(2) N/A(3)
Component S-B1(1) Variable(2) N/A(3)
Component S-B2(1) Variable(2) N/A(3)
Component S-B3(1) Variable(2) N/A(3)
Component S-B4(1) Variable(2) N/A(3)
Component S-C(1) Variable(2) N/A(3)
Class A-1A % per annum $
Class A-1B % per annum $
Class A-2 % per annum $
Class A-3 % per annum $
Class B-1 % per annum $
Class B-2 % per annum $
Class B-3 % per annum $
Class B-4 % per annum $
Class C % per annum $
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(1) Constitutes a separate "regular interest" in REMIC III represented by the
Class S Certificates.
(2) Calculated in accordance with the definition of "Pass-Through Rate".
(3) Component S-A1A, Component S-A1B, Component S-A2, Component S-A3, Component
X-X0, Xxxxxxxxx X- X0, Xxxxxxxxx X-X0, Component S-B4 and Component S-C
will not have stated principal amounts. Rather, each will accrue interest
as provided herein on a hypothetical or notional amount (a "Component
Notional Amount") equal to: (i) in the case of Component S-A1A, the
Uncertificated Principal Balance of REMIC II Regular Interest A-1A
outstanding from time to time; (ii) in the case of Component S-A1B, the
Uncertificated Principal Balance of REMIC II Regular Interest A-1B
outstanding from time to time; (iii) in the case of Component S-A2, the
Uncertificated Principal Balance of REMIC II Regular Interest A-2
outstanding from time to time; (iv) in the case of Component S-A3, the
Uncertificated Principal Balance of REMIC II Regular Interest A-3
outstanding from time to time; (v) in the case of Component S-B1, the
Uncertificated Principal Balance of REMIC II Regular Interest B-1
outstanding from time to time; (vi) in the case of Component S-B2, the
Uncertificated Principal Balance of REMIC II Regular Interest B-2
outstanding from time to time; (vii) in the case of Component S-B3,
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the Uncertificated Principal Balance of REMIC II Regular Interest B-3
outstanding from time to time; (viii) in the case of Component S-B4, the
Uncertificated Principal Balance of REMIC II Regular Interest B-4
outstanding from time to time; and (ix) in the case of Component S-C, the
Uncertificated Principal Balance of REMIC II Regular Interest C outstanding
from time to time.
(4) Determined solely for purposes of satisfying Treasury regulation section
1.860G-1(a)(4)(iii).
(5) Calculated on the basis of the Maturity Assumptions.
The aggregate of the Cut-off Date Balances of the Mortgage Loans, the
initial aggregate of the Uncertificated Principal Balances of the REMIC I
Regular Interests, the initial aggregate of the Uncertificated Principal
Balances of the REMIC II Regular Interests and the initial aggregate of the
Class Principal Balances of the respective Classes of Certificates representing
"regular interests" in REMIC III will, in each such case, be $___________.
In consideration of the mutual agreements herein contained, the Depositor,
the Master Servicer, the Special Servicer, the Trustee and the REMIC
Administrator agree as follows:
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ARTICLE I
DEFINITIONS; CERTAIN CALCULATIONS IN RESPECT OF THE MORTGAGE POOL
SECTION 1.01. Defined Terms.
Whenever used in this Agreement, including in the Preliminary Statement,
the following words and phrases, unless the context otherwise requires, shall
have the meanings specified in this Section 1.01 (subject to modification in
accordance with Section 1.03).
"Accrued Certificate Interest": With respect to any Class of Sequential Pay
Certificates, for any Distribution Date, one month's interest at the
Pass-Through Rate applicable to such Class of Certificates for such Distribution
Date, accrued on the Class Principal Balance of such Class of Certificates
outstanding immediately prior to such Distribution Date. With respect to the
Class S Certificates, for any Distribution Date, the aggregate of: (i) one
month's interest at the Pass-Through Rate applicable to Component S-A1A for such
Distribution Date, accrued on the Component Notional Amount of Component S-A1A
outstanding immediately prior to such Distribution Date; (ii) one month's
interest at the Pass-Through Rate applicable to Component S-A1B for such
Distribution Date, accrued on the Component Notional Amount of Component S-A1B
outstanding immediately prior to such Distribution Date; (iii) one month's
interest at the Pass-Through Rate applicable to Component S-A2 for such
Distribution Date, accrued on the Component Notional Amount of Component S-A2
outstanding immediately prior to such Distribution Date; (iv) one month's
interest at the Pass-Through Rate applicable to Component S-A3 for such
Distribution Date, accrued on the Component Notional Amount of Component S-A3
outstanding immediately prior to such Distribution Date; (v) one month's
interest at the Pass-Through Rate applicable to Component S-B1 for such
Distribution Date, accrued on the Component Notional Amount of Component S-B1
outstanding immediately prior to such Distribution Date; (vi) one month's
interest at the Pass-Through Rate applicable to Component S-B2 for such
Distribution Date, accrued on the Component Notional Amount of Component S-B2
outstanding immediately prior to such Distribution Date; (vii) one month's
interest at the Pass-Through Rate applicable to Component S-B3 for such
Distribution Date, accrued on the Component Notional Amount of Component S-B3
outstanding immediately prior to such Distribution Date; (viii) one month's
interest at the Pass-Through Rate applicable to Component S-B4 for such
Distribution Date, accrued on the Component Notional Amount of Component S-B4
outstanding immediately prior to such Distribution Date; and (ix) one month's
interest at the Pass-Through Rate applicable to Component S-C for such
Distribution Date, accrued on the Component Notional Amount of Component S-C
outstanding immediately prior to such Distribution Date. Accrued Certificate
Interest shall be calculated on the basis of a 360-day year consisting of
twelve 30-day months and, with respect to any Class of REMIC III Certificates
for any Distribution Date, shall be deemed to accrue during the applicable
Interest Accrual Period.
5
"Acquisition Date": With respect to any REO Property, the first day on
which such REO Property is considered to be acquired by the Trust Fund within
the meaning of Treasury regulation Section 1.856-6(b)(1), which is the first day
on which the Trust Fund is treated as the owner of such REO Property for federal
income tax purposes.
"Additional Trust Fund Expense": Any expense experienced with respect to
the Trust Fund and not otherwise included in the calculation of a Realized Loss
that would result in the Certificateholders' receiving less than the full amount
of principal and/or interest to which they are entitled on any Distribution
Date.
"Advance": Any P&I Advance or Servicing Advance.
"Advance Collateral Fund": The separate account established and maintained
pursuant to the Collateral Fund Custodial Agreement and Section 7.06 hereof, in
the name of the Trustee for the benefit of the Certificateholders, which account
must be an Eligible Account.
"Advance Interest": Interest accrued on any Advance at the Reimbursement
Rate and payable to the Master Servicer, the Special Servicer or the Trustee, as
the case may be, all in accordance with Section 3.11(f) or Section 4.03(d), as
applicable.
"Adverse REMIC Event": Either (i) the endangerment of the status of any of
REMIC I, REMIC II or REMIC III as a REMIC or (ii) the imposition of a tax upon
any of REMIC I, REMIC II or REMIC III or any of their respective assets or
transactions (including, without limitation, the tax on prohibited transactions
as defined in Section 860F(a)(2) of the Code and the tax on prohibited
contributions set forth in Section 860G(d) of the Code).
"Affiliate": With respect to any specified Person, any other Person
controlling or controlled by or under common control with such specified Person.
For the purposes of this definition, "control" when used with respect to any
specified Person means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Agreement": This Pooling and Servicing Agreement together with all
amendments hereof and supplements hereto.
"Appraisal": With respect to any Mortgaged Property or REO Property as to
which an appraisal is required to be performed pursuant to the terms of this
Agreement, either: (i) a narrative appraisal complying with USPAP conducted by a
Qualified Appraiser in the case of Mortgage Loans and REO Loans with a Stated
Principal Balance as of the date of such appraisal of greater than $1,000,000;
or (ii) a limited appraisal and a summary report of the "market value" of the
Mortgaged Property, as defined in 12 CFR ss.225.62(g), conducted by a Qualified
Appraiser
6
in the case of Mortgage Loans and REO Loans with a Stated Principal Balance as
of the date of such appraisal of $1,000,000 or less.
"Appraisal Reduction Amount": With respect to any Required Appraisal Loan,
an amount equal to the excess, if any, of (a) as calculated on the Determination
Date immediately following the date on which the most recent relevant Appraisal
was obtained by the Special Servicer pursuant to this Agreement, the sum of (i)
the Stated Principal Balance of such Required Appraisal Loan, (ii) to the extent
not previously advanced by or on behalf of the Master Servicer or the Trustee,
all accrued and unpaid interest on such Required Appraisal Loan through the most
recent Due Date prior to such Determination Date at a per annum rate equal to
the sum of the related Net Mortgage Rate and the Trustee's Fee Rate, (iii) all
accrued but unpaid Master Servicing Fees, Property Servicing Fees and Special
Servicing Fees in respect of such Required Appraisal Loan, (iv) all related
unreimbursed Advances made by or on behalf of the Master Servicer, the Special
Servicer or the Trustee in respect of such Required Appraisal Loan, together
with all unpaid Advance Interest accrued on such Advances, and (v) all currently
due but unpaid real estate taxes and assessments, insurance premiums, and if
applicable, ground rents in respect of the related Mortgaged Property or REO
Property, net of any Escrow Payments or other reserves held by the Master
Servicer or the Special Servicer with respect to any such item, over (b) 90% of
an amount equal to (i) the Appraised Value of the related Mortgaged Property or
REO Property, as applicable, as determined by such Appraisal, net of (ii) the
amount of any liens on such property (not accounted for in clause (a)(v) of this
definition) that are prior to the lien of the Required Appraisal Loan.
"Appraised Value": With respect to each Mortgaged Property or REO Property,
the appraised value thereof (as is) based upon the most recent Appraisal
obtained pursuant to this Agreement but in no event based upon an Appraisal more
than 12 months old.
"Assignment of Leases": With respect to any Mortgaged Property, any
assignment of leases, rents and profits or similar document or instrument
executed by the Mortgagor in connection with the origination of the related
Mortgage Loan.
"Assumed Scheduled Payment": With respect to any Balloon Mortgage Loan for
its Stated Maturity Date (provided that such Mortgage Loan has not been paid in
full, and no other Liquidation Event has occurred in respect thereof, on or
before such date) and for any subsequent Due Date therefor as of which such
Mortgage Loan remains outstanding and part of the Trust Fund, the scheduled
monthly payment of principal and/or interest deemed to be due in respect thereof
on such Due Date equal to the Scheduled Payment that would have been due in
respect of such Mortgage Loan on such Due Date if it had been required to
continue to pay in accordance with the amortization schedule, if any, in effect
on the Closing Date, and without regard to the occurrence of its Stated Maturity
Date. With respect to any REO Loan, for any Due Date therefor as of which the
related REO Property remains part of the Trust Fund, the scheduled monthly
payment of principal and/or interest deemed to be due in respect thereof on such
Due Date equal to the Scheduled Payment that would have been due in respect of
the predecessor Mortgage Loan
7
on such Due Date had it remained outstanding (or, if the predecessor Mortgage
Loan was a Balloon Mortgage Loan and such Due Date coincides with or follows
what had been its Stated Maturity Date, the Assumed Scheduled Payment that would
have been deemed due in respect of the predecessor Mortgage Loan on such Due
Date had it remained outstanding).
"Available Distribution Amount": With respect to any Distribution Date, an
amount equal to (a) all amounts on deposit in the Distribution Account as of the
commencement of business on such Distribution Date, together with any P&I
Advances and/or Compensating Interest Payments that were made on and in respect
of such Distribution Date, net of (b) any portion of the amounts described in
clause (a) of this definition that represents one or more of the following: (i)
collected Monthly Payments that are due on a Due Date following the end of the
related Collection Period, (ii) any payments of principal (including, without
limitation, Principal Prepayments) and interest, Liquidation Proceeds and
Insurance Proceeds received after the end of the related Collection Period,
(iii) Prepayment Premiums and Yield Maintenance Premiums, (iv) any amounts
payable or reimbursable to any Person from the Distribution Account pursuant to
clauses (ii) through (iv) of Section 3.05(b), and (v) any amounts deposited in
the Distribution Account in error; provided that the Available Distribution
Amount for the Final Distribution Date shall be calculated without regard to
clauses (b)(i) and (b)(ii) of this definition.
"Balloon Mortgage Loan": Any Mortgage Loan that by its original terms or by
virtue of any modification entered into as of the Closing Date provides for an
amortization schedule extending beyond its Stated Maturity Date and as to which,
in accordance with such terms, the Scheduled Payment due on its Stated Maturity
Date is larger than the Scheduled Payment due on the Due Date next preceding its
Stated Maturity Date.
"Balloon Payment": With respect to any Balloon Mortgage Loan as of any date
of determination, the Scheduled Payment payable on the Stated Maturity Date of
such Mortgage Loan.
"Bank": ______________________.
"Bankruptcy Code": The federal Bankruptcy Code, as amended from time to
time (Title 11 of the United States Code).
"Book-Entry Certificate": Any Certificate registered in the name of the
Depository or its nominee.
"Breach": As defined in Section 2.03(a).
"Business Day": Any day other than a Saturday, a Sunday or a day on which
banking institutions in New York, New York, either of the cities in which the
Primary Servicing Offices of the Master Servicer and the Special Servicer are
located or the city in which the
8
Corporate Trust Office of the Trustee is located, are authorized or obligated by
law or executive order to remain closed.
"CERCLA": The Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended.
"Certificate": Any one of the Depositor's ______________ Mortgage Pass-
Through Certificates, Series 199__-____, as executed by the Trustee and
authenticated and delivered hereunder by the Certificate Registrar.
"Certificate Factor": With respect to any Class of REMIC III Regular
Certificates, as of any date of determination, a fraction, expressed as a
decimal carried to six places, the numerator of which is the then related Class
Principal Balance or Class Notional Amount, as the case may be, and the
denominator of which is the related Initial Class Principal Balance or Initial
Class Notional Amount, as the case may be.
"Certificateholder" or "Holder": The Person in whose name a Certificate is
registered in the Certificate Register, except that (i) neither a Disqualified
Organization nor a NonUnited States Person shall be a "Holder" of, or a
"Certificateholder" with respect to, a Residual Certificate for any purpose
hereof and, (ii) except where herein specifically stated otherwise, solely for
the purposes of giving any consent, approval or waiver pursuant to this
Agreement that relates to any of the Depositor, the Master Servicer, the Special
Servicer, the REMIC Administrator or the Trustee in its respective capacity as
such, any Certificate registered in the name of the Depositor, the Master
Servicer, the Special Servicer, the REMIC Administrator or the Trustee, as the
case may be, or any Certificate registered in the name of any of its Affiliates,
shall be deemed not to be outstanding, and the Voting Rights to which it is
entitled shall not be taken into account in determining whether the requisite
percentage of Voting Rights necessary to effect any such consent, approval or
waiver that relates to it has been obtained. The Certificate Registrar shall be
entitled to request and conclusively rely upon a certificate of the Depositor,
the Master Servicer or the Special Servicer in determining whether a Certificate
is registered in the name of an Affiliate of such Person. All references herein
to "Certificateholders" or "Holders" shall reflect the rights of Certificate
Owners only insofar as they may indirectly exercise such rights through the
Depository and the Depository Participants (except as otherwise specified
herein), it being herein acknowledged and agreed that the parties hereto shall
be required to recognize as a "Certificateholder" or "Holder" only the Person in
whose name a Certificate is registered in the Certificate Register.
"Certificate Notional Amount": With respect to any Class S Certificate, the
hypothetical or notional principal amount on which such Certificate accrues
interest from time to time, which, as of any date of determination, is equal to
the product of (a) the Percentage Interest evidenced by such Certificate,
multiplied by (b) the then Class Notional Amount of the Class S Certificates.
9
"Certificate Owner": With respect to a Book-Entry Certificate, the Person
who is the beneficial owner of such Certificate as reflected on the books of the
Depository or on the books of a Depository Participant or on the books of an
indirect participating brokerage firm for which a Depository Participant acts as
agent.
"Certificate Principal Balance": With respect to any Sequential Pay
Certificate, as of any date of determination, the then outstanding principal
amount of such Certificate equal to the product of (a) the Percentage Interest
evidenced by such Certificate, multiplied by (b) the then Class Principal
Balance of the Class of Sequential Pay Certificates to which such Certificate
belongs.
"Certificate Register": The register maintained pursuant to Section 5.02.
"Certificate Registrar": The registrar appointed pursuant to Section 5.02.
"Certificate Yield Maintenance Amount": With respect to any Distribution
Date and any Class of Sequential Pay Certificates, the amount calculated in the
same manner as any Yield Maintenance Premium collected with respect to a
Mortgage Loan except that, for purposes of such calculation, the Pass-Through
Rate of such Class for such Distribution Date shall be used in lieu of the
related Mortgage Rate and the portion of the related prepayment of principal
distributable to such Class (calculated based upon the portion of the Principal
Distribution Amount for such Distribution Date payable in respect of such Class)
shall be used in lieu of the total prepayment.
"Class": Collectively, all of the Certificates bearing the same
alphabetical and, if applicable, numerical class designation.
"Class A Certificate": Any Class A-1A Certificate, Class A-1B Certificate,
Class A-2 Certificate or Class A-3 Certificate.
"Class A-1A Certificate": Any one of the Certificates with a "Class A-1A"
designation on the face thereof, substantially in the form of Exhibit A-2
attached hereto, and evidencing a "regular interest" in REMIC III for purposes
of the REMIC Provisions.
"Class A-1B Certificate": Any one of the Certificates with a "Class A-1B"
designation on the face thereof, substantially in the form of Exhibit A-3
attached hereto, and evidencing a "regular interest" in REMIC III for purposes
of the REMIC Provisions.
"Class A-2 Certificate": Any one of the Certificates with a "Class A-2"
designation on the face thereof, substantially in the form of Exhibit A-4
attached hereto, and evidencing a "regular interest" in REMIC III for purposes
of the REMIC Provisions.
10
"Class A-3 Certificate": Any one of the Certificates with a "Class A-3"
designation on the face thereof, substantially in the form of Exhibit A-5
attached hereto, and evidencing a "regular interest" in REMIC III for purposes
of the REMIC Provisions.
"Class B Certificate": Any Class B-1 Certificate, Class B-2 Certificate,
Class B-3 Certificate or Class B-4 Certificate.
"Class B-1 Certificate": Any one of the Certificates with a "Class B-1"
designation on the face thereof, substantially in the form of Exhibit A-6
attached hereto, and evidencing a "regular interest" in REMIC III for purposes
of the REMIC Provisions.
"Class B-2 Certificate": Any one of the Certificates with a "Class B-2"
designation on the face thereof, substantially in the form of Exhibit A-7
attached hereto, and evidencing a "regular interest" in REMIC III for purposes
of the REMIC Provisions.
"Class B-3 Certificate": Any one of the Certificates with a "Class B-3"
designation on the face thereof, substantially in the form of Exhibit A-8
attached hereto, and evidencing a "regular interest" in REMIC III for purposes
of the REMIC Provisions.
"Class B-4 Certificate": Any one of the Certificates with a "Class B-4"
designation on the face thereof, substantially in the form of Exhibit A-9
attached hereto, and evidencing a "regular interest" in REMIC III for purposes
of the REMIC Provisions.
"Class C Certificate": Any one of the Certificates with a "Class C"
designation on the face thereof, substantially in the form of Exhibit A-10
attached hereto, and evidencing a "regular interest" in REMIC III for purposes
of the REMIC Provisions.
"Class Notional Amount": The aggregate hypothetical or notional principal
amount on which the Class S Certificates collectively accrue interest from time
to time, which, as of any date of determination, is equal to the aggregate of
the Component Notional Amounts for Component S-A1A, Component S-A1B, Component
S-A2, Component S-A3, Component S-B1, Component S-B2, Component S-B3, Component
S-B4 and Component S-C then outstanding (such interest accruing at potentially
different Pass-Through Rates on such Component Notional Amounts).
"Class Principal Balance": The aggregate principal amount of any Class of
Sequential Pay Certificates outstanding as of any date of determination. As of
the Closing Date, the Class Principal Balance of each such Class of Certificates
shall equal the Initial Class Principal Balance thereof. On each Distribution
Date, the Class Principal Balance of each such Class of Certificates shall be
reduced by the amount of any distributions of principal made thereon on such
Distribution Date pursuant to Section 4.01(a) and, if and to the extent
appropriate, shall be further reduced on such Distribution Date as provided in
Section 4.04(a).
11
"Class R-I Certificate": Any one of the Certificates with a "Class R-I"
designation on the face thereof, substantially in the form of Exhibit A-11
attached hereto, and evidencing the sole class of "residual interests" in REMIC
I for purposes of the REMIC Provisions.
"Class R-II Certificate": Any one of the Certificates with a "Class R-II"
designation on the face thereof, substantially in the form of Exhibit A-12
attached hereto, and evidencing the sole class of "residual interests" in REMIC
II for purposes of the REMIC Provisions.
"Class R-III Certificate": Any one of the Certificates with a "Class R-III"
designation on the face thereof, substantially in the form of Exhibit A-13
attached hereto, and evidencing the sole class of "residual interests" in REMIC
III for purposes of the REMIC Provisions.
"Class S Certificate": Any one of the Certificates with a "Class S"
designation on the face thereof, substantially in the form of Exhibit A-1
attached hereto, and evidencing a "regular interest" in REMIC III for purposes
of the REMIC Provisions.
"Closing Date": _____________, 199__.
"Code": The Internal Revenue Code of 1986.
"Collateral Fund Custodial Agreement": The Collateral Fund Custodial
Agreement, dated as of ______________, 199__, among the Trustee and
_________________ as Collateral Fund Custodian, pursuant to which the Advance
Collateral Fund is established and maintained.
"Collateral Fund Custodian": _________________, a _______________ organized
under the laws of _________________, or its successor in interest.
"Collection Account": The segregated account or accounts created and
maintained by the Master Servicer pursuant to Section 3.04(a) in trust for the
Certificateholders, which shall be entitled "_________________, as Master
Servicer, in trust for the registered holders of DLJ Commercial Mortgage Corp.,
Mortgage Pass-Through Certificates, Series 199__-____".
"Collection Period": With respect to any Distribution Date, the period
commencing immediately following the prior such period (or, in the case of the
initial Collection Period, commencing immediately following the Cut-off Date)
and ending on and including the related Determination Date.
"Compensating Interest Payment": Any payment made by the Master Servicer
pursuant to Section 3.19(a) to cover Prepayment Interest Shortfalls.
12
"Component": Any of the nine components of the partial beneficial ownership
interest evidenced by the Class S Certificates in the Trust Fund, designated as
"Component S-A1A," "Component S-A1B," "Component S-A2", "Component S-A3",
"Component S-B1", "Component S-B2", "Component S-B3", "Component S-B4" and
"Component S-C", respectively, each such component representing a separate
"regular interest" in REMIC III.
"Component Notional Amount": The hypothetical or notional principal amount
on which any of the Components of the Class S Certificates accrues interest from
time to time equal to: (1) in the case of Component S-A1A, the Uncertificated
Principal Balance of REMIC II Regular Interest A-1A outstanding from time to
time; (2) in the case of Component S-A1B, the Uncertificated Principal Balance
of REMIC II Regular Interest A-1B outstanding from time to time; (3) in the case
of Component S-A2, the Uncertificated Principal Balance of REMIC II Regular
Interest A-2 outstanding from time to time; (4) in the case of Component S-A3,
the Uncertificated Principal Balance of REMIC II Regular Interest A-3
outstanding from time to time; (5) in the case of Component S-B1, the
Uncertificated Principal Balance of REMIC II Regular Interest B-1 outstanding
from time to time; (6) in the case of Component S-B2, the Uncertificated
Principal Balance of REMIC II Regular Interest B-2 outstanding from time to
time; (7) in the case of Component S-B3, the Uncertificated Principal Balance of
REMIC II Regular Interest B-3 outstanding from time to time; (8) in the case of
Component S-B4, the Uncertificated Principal Balance of REMIC II Regular
Interest B-4 outstanding from time to time; and (9) in the case of Component
S-C, the Uncertificated Principal Balance of REMIC II Regular Interest S-C
outstanding from time to time.
"Corporate Trust Office": The principal corporate trust office of the
Trustee at which at any particular time its corporate trust business with
respect to this Agreement shall be administered, which office at the date of the
execution of this Agreement is located at __________________, Attention:
_________________.
"Corrected Mortgage Loan": Any Mortgage Loan that had been a Specially
Serviced Mortgage Loan but has ceased to be such in accordance with the
definition of "Specially Serviced Mortgage Loan" (other than by reason of a
Liquidation Event occurring in respect of such Mortgage Loan or the related
Mortgaged Property becoming an REO Property).
"Custodian": A Person who is at any time appointed by the Trustee pursuant
to Section 8.11 as a document custodian for the Mortgage Files, which Person
shall not be the Depositor or an Affiliate of the Depositor.
"Cut-off Date": ______________, 199__.
"Cut-off Date Balance": With respect to any Mortgage Loan, the outstanding
principal balance of such Mortgage Loan as of the Cut-off Date, after
application of all payments of principal due on or before such date, whether or
not received.
13
"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 more than twelve months
for which financial statements (whether or not audited) have been received by or
on behalf of the Mortgage Loan Seller (prior to the Closing Date) or the Master
Servicer or 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 delinquency to be determined without giving effect to any
grace period permitted by the related Mortgage or Mortgage Note and without
regard to any acceleration of payments under the related Mortgage and Mortgage
Note, or (ii) as to which the Special Servicer has, by written notice to the
related Mortgagor, accelerated the maturity of the indebtedness evidenced by the
related Mortgage Note.
"Default Interest": With respect to any Mortgage Loan (or successor REO
Loan), any amounts collected thereon, other than late payment charges,
Prepayment Premiums or Yield Maintenance Premiums, that represent penalty
interest in excess of interest on the principal balance of such Mortgage Loan
(or successor REO Loan) accrued at the related Mortgage Rate.
"Definitive Certificate": As defined in Section 5.03(a).
"Depositor": DLJ Commercial Mortgage Corp., or its successor in interest.
"Depository": The Depository Trust Company, or any successor Depository
hereafter named as contemplated by Section 5.03(c). The nominee of the initial
Depository for purposes of registering those Certificates that are to be
Book-Entry Certificates, is Cede & Co. The Depository shall at all times be a
"clearing corporation" as defined in Section 8-102(3) of the Uniform Commercial
Code of the State of New York and a "clearing agency" registered pursuant to the
provisions of Section 17A of the Exchange Act.
"Depository Participant": A broker, dealer, bank or other financial
institution or other Person for whom from time to time the Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
"Determination Date": With respect to any Distribution Date, the earlier of
(i) the __th day of the month in which such Distribution Date occurs, or if such
__th day is not a Business Day, the immediately preceding Business Day or (ii)
the third Business Day preceding such Distribution Date.
"Determination Date Report": As defined in Section 4.02(b).
14
"Directly Operate": With respect to any REO Property, the furnishing or
rendering of services to the tenants thereof, the management or operation of
such REO Property, the holding of such REO Property primarily for sale to
customers, the performance of any construction work thereon or any use of such
REO Property in a trade or business conducted by REMIC I other than through an
Independent Contractor; provided, however, that the Special Servicer (or any
Sub-Servicer on behalf of the Special Servicer) shall not be considered to
Directly Operate an REO Property solely because the Special Servicer (or any
Sub-Servicer on behalf of the Special Servicer) establishes rental terms,
chooses tenants, enters into or renews leases, deals with taxes and insurance,
or makes decisions as to repairs or capital expenditures with respect to such
REO Property.
"Disqualified Organization": Any of the following: (i) the United States or
a possession thereof, any State or any political subdivision thereof, or any
agency or instrumentality of any of the foregoing (other than an instrumentality
which is a corporation if all of its activities are subject to tax and, except
for FHLMC, a majority of its board of directors is not selected by any such
governmental unit), (ii) a foreign government, international organization, or
any agency or instrumentality of either of the foregoing, (iii) any organization
(except certain farmers' cooperatives described in Section 521 of the Code)
which is exempt from the tax imposed by Chapter 1 of the Code (unless such
organization is subject to the tax imposed by Section 511 of the Code on
unrelated business taxable income), (iv) rural electric and telephone
cooperatives described in Section 1381 of the Code or (v) any other Person so
designated by the REMIC Administrator based upon an Opinion of Counsel that the
holding of an Ownership Interest in a Residual Certificate by such Person may
cause the Trust Fund or any Person having an Ownership Interest in any Class of
Certificates, other than such Person, to incur a liability for any federal tax
imposed under the Code that would not otherwise be imposed but for the Transfer
of an Ownership Interest in a Residual Certificate to such Person. The terms
"United States", "State" and "international organization" shall have the
meanings set forth in Section 7701 of the Code or successor provisions.
"Distributable Certificate Interest": With respect to any Class of REMIC
III Regular Certificates, for any Distribution Date, the Accrued Certificate
Interest in respect of such Class of Certificates for such Distribution Date,
reduced (to not less than zero) by the product of (i) any Net Aggregate
Prepayment Interest Shortfall for such Distribution Date, multiplied by (ii) a
fraction, expressed as a decimal, the numerator of which is the Accrued
Certificate Interest in respect of such Class of Certificates for such
Distribution Date, and the denominator of which is the aggregate Accrued
Certificate Interest in respect of all the Classes of REMIC III Regular
Certificates for such Distribution Date.
"Distribution Account": The segregated account or accounts created and
maintained by the Trustee pursuant to Section 3.04(b) in trust for the
Certificateholders, which shall be entitled "_________________, as Trustee, in
trust for the registered holders of DLJ Commercial Mortgage Corp., Mortgage
Pass-Through Certificates, Series 199__-____".
15
"Distribution Date": The __th day of any month, or if such __th day is not
a Business Day, the Business Day immediately following, commencing in the
calendar month following the Closing Date.
"Document Defect": As defined in Section 2.02(e).
"Due Date": With respect to any Mortgage Loan (and any successor REO Loan),
the day of the month set forth in the related Mortgage Note on which each
Monthly Payment on such Mortgage Loan is scheduled to be first due.
"Effective Pass-Through Rate": With respect to the Class S Certificates for
any Distribution Date, the rate per annum equal to the weighted average,
expressed as a percentage and rounded to six decimal places, of the respective
Pass-Through Rates for Component S-A1A, Component S-A1B, Component S-A2,
Component S-A3, Component S-B1, Component S-B2, Component S-B3, Component S-B4
and Component S-C for such Distribution Date, weighted on the basis of the
respective Component Notional Amounts of such Components of the Class S
Certificates outstanding immediately prior to such Distribution Date.
"Effective REMIC I Remittance Rate": With respect to any REMIC I Regular
Interest, for any Distribution Date, (a) if the Mortgage Note for the related
Mortgage Loan or REO Loan provides that interest accrues on such Mortgage Loan
or REO Loan, as the case may be, on the basis of a 360-day year consisting of
twelve 30-day months (a "30/360 basis"), the related REMIC I Remittance Rate in
effect for such REMIC I Regular Interest for such Distribution Date, and (b) if
the Mortgage Note for the related Mortgage Loan or REO Loan provides that
interest accrues on such Mortgage Loan or REO Loan, as the case may be, other
than on a 30/360 basis, the annualized rate at which interest would have to
accrue thereon on a 30/360 basis during the applicable Interest Accrual Period
for such REMIC I Regular Interest and such Distribution Date in order to produce
the actual amount of Uncertificated Accrued Interest in respect of such REMIC I
Regular Interest for such Distribution Date.
"Eligible Account": Any of (i) an account maintained with a federal or
state chartered depository institution or trust company, the long-term deposit
or long-term unsecured debt obligations of which (or of such institution's
parent holding company) are rated at least "[AA]" (or the equivalent) by each
Rating Agency (if the deposits are to be held in the account for more than 30
days), or the short-term deposit or short-term unsecured debt obligations of
which (or of such institution's parent holding company) are rated at least
"[A-1]" (or the equivalent) by ____ and at least ____ (or the equivalent) by
____ (if the deposits are to be held in the account for 30 days or less), in any
event at any time funds are on deposit therein, or (ii) a segregated trust
account maintained with a federal or state chartered depository institution or
trust company acting in its fiduciary capacity, which, in the case of a state
chartered depository institution or trust company is subject to regulations
regarding fiduciary funds on deposit therein substantially similar to 12 CFR ss.
9.10(b), and which, in either case, has a combined capital and surplus of at
least $50,000,000 and is subject to supervision or examination by federal or
state
16
authority, or (iii) any other account that is acceptable to the Rating Agencies
(as evidenced by written confirmation from each Rating Agency that the use of
such account would not, in and of itself, cause a qualification, downgrading or
withdrawal of the then-current rating assigned thereby to any Class of
Certificates).
"Emergency Advance:" Any Servicing Advance that must be made within five
Business Days in order to avoid any penalty, any material harm to a Mortgaged
Property or any other material adverse consequence to the Trust Fund.
"ERISA": The Employee Retirement Income Security Act of 1974, as amended.
"Escrow Payment": Any payment received by the Master Servicer or the
Special Servicer for the account of any Mortgagor for application toward the
payment of real estate taxes, assessments, insurance premiums, ground rents (if
applicable) and similar items in respect of the related Mortgaged Property.
"Event of Default": One or more of the events described in Section 7.01(a).
"Exchange Act": 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 Distribution Date": The final Distribution Date on which any
distributions are to be made on the Certificates as contemplated by Section
9.01.
"Final Recovery Determination": A determination made by the Special
Servicer, in its reasonable good faith judgment, and in any event subject to the
Servicing Standard, with respect to any defaulted Mortgage Loan or REO Property
(other than a Mortgage Loan or REO Property, as the case may be, purchased by
the Mortgage Loan Seller pursuant to the Mortgage Loan Purchase Agreement, by
the Master Servicer or the Special Servicer pursuant to Section 3.18(c) or by
the Special Servicer or the Master Servicer pursuant to Section 9.01), that
there has been a recovery of all related Insurance Proceeds, Liquidation
Proceeds and other payments or recoveries that will ultimately be recoverable.
"FNMA": Federal National Mortgage Association or any successor.
"Hazardous Materials": Any dangerous, toxic or hazardous pollutants,
chemicals, wastes, or substances, including, without limitation, those so
identified pursuant to CERCLA or any other federal, state or local environmental
related laws and regulations now existing or hereafter enacted, and specifically
including, without limitation, asbestos and asbestos-containing materials,
polychlorinated biphenyls ("PCBs"), radon gas, petroleum and petroleum products,
urea
17
formaldehyde and any substances classified as being "in inventory", "usable work
in process" or similar classification which would, if classified as unusable, be
included in the foregoing definition.
"Independent": When used with respect to any specified Person, any such
Person who (i) is in fact independent of the Depositor, the Master Servicer, the
Special Servicer, the REMIC Administrator, the Trustee and any and all
Affiliates thereof, (ii) does not have any direct financial interest in or any
material indirect financial interest in any of the Depositor, the Master
Servicer, the Special Servicer, the REMIC Administrator, the Trustee or any
Affiliate thereof, and (iii) is not connected with the Depositor, the Master
Servicer, the Special Servicer, the REMIC Administrator, the Trustee or any
Affiliate thereof as an officer, employee, promoter, underwriter, trustee,
partner, director or Person performing similar functions; provided, however,
that a Person shall not fail to be Independent of the Depositor, the Master
Servicer, the Special Servicer, the REMIC Administrator, the Trustee or any
Affiliate thereof merely because such Person is the beneficial owner of 1% or
less of any class of securities issued by the Depositor, the Master Servicer,
the Special Servicer, the REMIC Administrator, the Trustee or any Affiliate
thereof, as the case may be.
"Independent Contractor": Any Person that would be an "independent
contractor" with respect to REMIC I within the meaning of Section 856(d)(3) of
the Code if REMIC I were a real estate investment trust (except that the
ownership test set forth in that section shall be considered to be met by any
Person that owns, directly or indirectly, 35% or more of any Class of
Certificates, or such other interest in any Class of Certificates as is set
forth in an Opinion of Counsel, which shall be at no expense to the Trustee, the
REMIC Administrator or the Trust Fund, delivered to the Trustee and the REMIC
Administrator), so long as REMIC I does not receive or derive any income from
such Person and provided that the relationship between such Person and REMIC I
is at arm's length, all within the meaning of Treasury regulation Section
1.856-4(b)(5), or any other Person upon receipt by the Trustee and the REMIC
Administrator of an Opinion of Counsel, which shall be at no expense to the
Trustee, the REMIC Administrator or the Trust Fund, to the effect that the
taking of any action in respect of any REO Property by such Person, subject to
any conditions therein specified, that is otherwise herein contemplated to be
taken by an Independent Contractor will not cause such REO Property to cease to
qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of
the Code, or cause any income realized in respect of such REO Property to fail
to qualify as Rents from Real Property.
"Initial Class Notional Amount": The initial Class Notional Amount of the
Class S Certificates as of the Closing Date equal to $___________.
18
"Initial Class Principal Balance": With respect to any Class of Sequential
Pay Certificates, the initial Class Principal Balance thereof as of the Closing
Date, in each case as set forth below: Initial Class Class Principal Balance
Initial Class
Class Principal Balance
----- -----------------
Class A-1A $
Class A-1B $
Class A-2 $
Class A-3 $
Class B-1 $
Class B-2 $
Class B-3 $
Class B-4 $
Class C $
"Insurance Policy": With respect to any Mortgage Loan or REO Property, any
hazard insurance policy, flood insurance policy, title insurance policy or other
insurance policy that is maintained from time to time in respect of such
Mortgage Loan (or the related Mortgaged Property) or such REO Property, as the
case may be.
"Insurance Proceeds": Proceeds paid under any Insurance Policy, to the
extent such proceeds are not applied to the restoration of the related Mortgaged
Property or REO Property or released to the related Mortgagor, in any case, in
accordance with the Servicing Standard.
"Interested Person": The Depositor, the Master Servicer, the Special
Servicer, the REMIC Administrator, the Mortgage Loan Seller, any
Certificateholder, or any Affiliate of any such Person.
"Investment Account": As defined in Section 3.06(a).
"Issue Price": With respect to each Class of Certificates, the "issue
price" as defined in the Code and Treasury regulations promulgated thereunder.
"Late Collections": With respect to any Mortgage Loan, all amounts received
thereon during any Collection Period, whether as payments, Insurance Proceeds,
Liquidation Proceeds or otherwise, which represent late collections of the
principal and/or interest portions of a Scheduled Payment (other than a Balloon
Payment) or an Assumed Scheduled Payment in respect of such Mortgage Loan due or
deemed due on a Due Date in a previous Collection Period, or on a Due Date
coinciding with or preceding the Cut-off Date, and not previously recovered.
With respect to any REO Loan, all amounts received in connection with the
related REO Property during any Collection Period, whether as Insurance
Proceeds, Liquidation Proceeds, REO
19
Revenues or otherwise, which represent late collections of the principal and/or
interest portions of a Scheduled Payment (other than a Balloon Payment) or an
Assumed Scheduled Payment in respect of the predecessor Mortgage Loan or late
collections of the principal and/or interest portions of an Assumed Scheduled
Payment in respect of such REO Loan due or deemed due on a Due Date in a
previous Collection Period and not previously recovered.
"Liquidation Event": With respect to any Mortgage Loan, any of the
following events: (i) such Mortgage Loan is paid in full; (ii) a Final Recovery
Determination is made with respect to such Mortgage Loan; (iii) such Mortgage
Loan is purchased by the Mortgage Loan Seller pursuant to the Mortgage Loan
Purchase Agreement; or (iv) such Mortgage Loan is purchased by the Special
Servicer or the Master Servicer pursuant to Section 3.18 or Section 9.01. With
respect to any REO Property (and the related REO Loan), any of the following
events: (i) a Final Recovery Determination is made with respect to such REO
Property; or (ii) such REO Property is purchased by the Special Servicer or the
Master Servicer pursuant to Section 9.01.
"Liquidation Fee": With respect to each Specially Serviced Mortgage Loan or
REO Property (other than any Specially Serviced Mortgage Loan or REO Property
purchased by the Special Servicer or the Master Servicer pursuant to Section
3.18 or Section 9.01 or purchased by the Mortgage Loan Seller pursuant to the
Mortgage Loan Purchase Agreement), the fee designated as such and payable to the
Special Servicer pursuant to the fourth paragraph of Section 3.11(c).
"Liquidation Fee Rate": With respect to each Specially Serviced Mortgage
Loan or REO Property as to which a Liquidation Fee is payable, ____%.
"Liquidation Proceeds": All cash amounts (other than Insurance Proceeds and
REO Revenues) received by the Master Servicer or the Special Servicer in
connection with: (i) the taking of all or a part of a Mortgaged Property by
exercise of the power of eminent domain or condemnation; (ii) the liquidation of
a Mortgaged Property or other collateral constituting security for a defaulted
Mortgage Loan, through trustee's sale, foreclosure sale, REO Disposition or
otherwise, exclusive of any portion thereof required to be released to the
related Mortgagor in accordance with applicable law and the terms and conditions
of the related Mortgage Note and Mortgage; (iii) the realization upon any
deficiency judgment obtained against a Mortgagor; (iv) the purchase of a
Defaulted Mortgage Loan by the Master Servicer or the Special Servicer pursuant
to Section 3.18(c) or any other sale thereof pursuant to Section 3.18(d); (v)
the purchase of a Mortgage Loan by the Mortgage Loan Seller pursuant to the
Mortgage Loan Purchase Agreement; or (vi) the purchase of a Mortgage Loan or REO
Property by the Special Servicer or the Master Servicer pursuant to Section
9.01.
"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.
20
"Master Servicer": _____________________, its successor in interest, or any
successor servicer appointed as herein provided.
"Master Servicer Remittance Amount": With respect to any Master Servicer
Remittance Date, an amount equal to (a) all amounts on deposit in the Collection
Account as of the commencement of business on such Master Servicer Remittance
Date, net of (b) any portion of the amounts described in clause (a) of this
definition that represents one or more of the following: (i) collected Monthly
Payments that are due on a Due Date following the end of the related Collection
Period, (ii) any payments of principal (including, without limitation, Principal
Prepayments) and interest, Liquidation Proceeds and Insurance Proceeds received
after the end of the related Collection Period, (iii) any Prepayment Premiums
and/or Yield Maintenance Premiums received after the end of the related
Collection Period, (iv) any amounts payable or reimbursable to any Person from
the Collection Account pursuant to clauses (ii) through (xvi) of Section
3.05(a), and (v) any amounts deposited in the Collection Account in error;
provided that the Master Servicer Remittance Amount for the Master Servicer
Remittance Date that occurs in the same calendar month as the Final Distribution
Date shall be calculated without regard to clauses (b)(i), (b)(ii) and (b)(iii)
of this definition.
"Master Servicer Remittance Date": The second Business Day preceding each
Distribution Date.
"Master Servicing Fee": With respect to each Mortgage Loan and REO Loan,
the fee designated as such and payable to the Master Servicer pursuant to
Section 3.11(a).
"Master Servicing Fee Rate": With respect to each Mortgage Loan and REO
Loan, _______% per annum.
"Maturity Assumptions": The assumptions used to calculate the "latest
possible maturity date" for each REMIC II Regular Interest and each of the
Classes of Certificates or Components thereof representing "regular interests"
in REMIC III for purposes of satisfying Treasury regulation Section
1.860G-1(a)(4)(iii), which assumptions are: [to be specified].
"Modified Mortgage Loan": Any Mortgage Loan as to which any Servicing
Transfer Event has occurred and which has been modified by the Special Servicer
pursuant to Section 3.20 in a manner that:
(A) affects the amount or timing of any payment of principal or
interest due thereon (other than, or in addition to, bringing current
Monthly Payments with respect to such Mortgage Loan);
(B) except as expressly contemplated by the related Mortgage, results
in a release of the lien of the Mortgage on any material portion of the
related Mortgaged Property without a corresponding Principal Prepayment in
an amount not less than the fair
21
market value (as is), as determined by an Appraisal delivered to the
Special Servicer (at the expense of the related Mortgagor and upon which
the Special Servicer may conclusively rely) of the property to be released;
or
(C) in the reasonable good faith judgment of the Special Servicer,
otherwise materially impairs the security for such Mortgage Loan or reduces
the likelihood of timely payment of amounts due thereon.
"Monthly Payment": With respect to any Mortgage Loan as of any Due Date,
the scheduled monthly payment of principal and interest or interest only on such
Mortgage Loan, including any Balloon Payment, that is actually payable by the
related Mortgagor from time to time under the terms of the related Mortgage Note
(as such terms may be changed or modified in connection with a bankruptcy or
similar proceeding involving the related Mortgagor or by reason of a
modification, waiver or amendment granted or agreed to by the Special Servicer
pursuant to Section 3.20).
"Mortgage": A mortgage, deed of trust, deed to secure debt or similar
document that secures a Mortgage Note and creates a lien on a Mortgaged
Property.
"Mortgage File": With respect to any Mortgage Loan, subject to Sections
1.03 and 2.01, collectively, the following documents:
(i) the original executed Mortgage Note, endorsed "Pay to the order of
______________, as trustee for the registered holders of DLJ
Commercial Mortgage Corp., Mortgage Pass-Through Certificates, Series
199__-___, without recourse";
(ii) an original or copy of the Mortgage and of any intervening assignments
thereof that precede the assignment referred to in clause (iv) of this
definition, in each case (unless such document has not yet been
returned from the applicable recording office) with evidence of
recording indicated thereon;
(iii) an original or copy of any related Assignment of Leases (if such item
is a document separate from the Mortgage) and of any intervening
assignments thereof that precede the assignment referred to in clause
(v) of this definition, in each case (unless such document has not yet
been returned from the applicable recording office) with evidence of
recording indicated thereon;
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(iv) an original executed assignment of the Mortgage, in favor of
_______________, as trustee for the registered holders of DLJ
Commercial Mortgage Corp., Mortgage Pass-Through Certificates, Series
199__-___, in recordable form;
(v) an original assignment of any related Assignment of Leases (if such
item is a document separate from the Mortgage), in favor of
________________, as trustee for the registered holders of DLJ
Commercial Mortgage Corp., Mortgage Pass-Through Certificates, Series
199__-___, in recordable form;
(vi) originals or copies of any written modification agreements in those
instances where the terms or provision of the Mortgage or Mortgage
Note have been modified;
(vii) the original or a copy of the policy or certificate of lender's title
insurance issued on the date of the origination of such Mortgage Loan,
or, if such policy has not been issued, an irrevocable, binding
commitment to issue such title insurance policy; and
(viii) filed copies of any prior UCC Financing Statements in favor of the
originator of such Mortgage Loan or in favor of any assignee prior to
the Trustee (but only to the extent the Mortgage Loan Seller had
possession of such UCC Financing Statements prior to the Closing Date)
and, if there is an effective UCC Financing Statement in favor of the
Mortgage Loan Seller on record with the applicable public office for
UCC Financing Statements, an original UCC-2 or UCC-3, as appropriate,
in favor of _______________, as trustee for the registered holders of
DLJ Commercial Mortgage Corp., Mortgage Pass-Through Certificates,
Series 199__-___;
provided that whenever the term "Mortgage File" is used to refer to documents
actually received by the Trustee or by a Custodian on its behalf, such term
shall not be deemed to include such documents required to be included therein
unless they are actually so received, and with respect to any receipt or
certification by the Trustee or the Custodian for documents described in clause
(vi) of this definition, shall be deemed to include only such documents to the
extent the Trustee or Custodian has actual knowledge of their existence.
"Mortgage Loan": Each of the mortgage loans listed on the Mortgage Loan
Schedule and from time to time held in the Trust Fund. As used herein, the term
"Mortgage Loan" includes the related Mortgage Note, Mortgage and other security
documents contained in the related Mortgage File.
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"Mortgage Loan Purchase Agreement": That certain Mortgage Loan Purchase and
Sale Agreement, dated as of ____________, 199__, between the Depositor and the
Mortgage Loan Seller and relating to the transfer of the Mortgage Loans to the
Depositor.
"Mortgage Loan Schedule": The list of Mortgage Loans transferred on the
Closing Date to the Trustee as part of REMIC I, attached hereto as Exhibit B-1.
Such list shall set forth the following information with respect to each
Mortgage Loan:
(i) the Mortgage Loan number;
(ii) the street address (including city, state and zip code) of the related
Mortgaged Property;
(iii) the Cut-off Date Balance;
(iv) the amount of the Monthly Payment due on the first Due Date following
the Closing Date;
(v) the Mortgage Rate;
(vi) the (A) remaining term to stated maturity and (B) the Stated Maturity
Date; and
(vii) in the case of a Balloon Mortgage Loan, the remaining amortization
term.
"Mortgage Loan Seller": ___________________ or its successor in interest.
"Mortgage Note": The original executed note evidencing the indebtedness of
a Mortgagor under a Mortgage Loan, together with any rider, addendum or
amendment thereto, or any renewal, substitution or replacement of such note.
"Mortgage Pool": Collectively, all of the Mortgage Loans and any successor
REO Loans.
"Mortgage Rate": With respect to any Mortgage Loan (and any successor REO
Loan), the fixed annualized rate at which interest is scheduled (in the absence
of a default) to accrue on such Mortgage Loan from time to time in accordance
with the related Mortgage Note and applicable law, as such rate may be modified
in accordance with Section 3.20 or in connection with a bankruptcy, insolvency
or similar proceeding involving the related Mortgagor.
"Mortgaged Property": A property subject to the lien of a Mortgage.
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"Mortgagor": The obligor or obligors on a Mortgage Note, including without
limitation, any Person that has acquired the related Mortgaged Property and
assumed the obligations of the original obligor under the Mortgage Note.
"Net Aggregate Prepayment Interest Shortfall": With respect to any
Distribution Date, the amount, if any, by which (a) the aggregate of all
Prepayment Interest Shortfalls incurred in connection with the receipt of
Principal Prepayments on the Mortgage Loans during the related Collection
Period, exceeds (b) the aggregate amount deposited by the Master Servicer in the
Distribution Account for such Distribution Date pursuant to Section 3.19(a) in
connection with such Prepayment Interest Shortfalls.
"Net Investment Earnings": With respect to any Investment Account for any
Collection Period, the amount, if any, by which the aggregate of all interest
and other income realized during such Collection Period on funds held in such
Investment Account, exceeds the aggregate of all losses, if any, incurred during
such Collection Period in connection with the investment of such funds in
accordance with Section 3.06.
"Net Investment Loss": With respect to any Investment Account for any
Collection Period, the amount by which the aggregate of all losses, if any,
incurred during such Collection Period in connection with the investment of
funds held in such Investment Account in accordance with Section 3.06, exceeds
the aggregate of all interest and other income realized during such Collection
Period on such funds.
"Net Mortgage Rate": With respect to any Mortgage Loan (or successor REO
Loan), as of any date of determination, the related Mortgage Rate minus ___
basis points.
"Net Penalty Charges": With respect to any Mortgage Loan, any Penalty
Charges actually collected thereon (based on the allocations specified in
Section 1.02), net of any portion thereof allocable to pay the Special Servicer
any Liquidation Fee or Workout Fee in respect of such Mortgage Loan and further
net of any Advance Interest accrued on Advances made in respect of such Mortgage
Loan and reimbursable from such Penalty Charges in accordance with Section
3.05(a)(viii).
"Net Prepayment Premium:" With respect to any Mortgage Loan, any Prepayment
Premium actually collected thereon, net of any portion thereof allocable to pay
a Liquidation Fee or a Workout Fee.
"Net Operating Income": With respect to any Mortgaged Property, the net
operating income derived from such Mortgaged Property, calculated in accordance
with Exhibit K.
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"Net Yield Maintenance Premium:" With respect to any Mortgage Loan, any
Yield Maintenance Premium actually collected thereon, net of any portion thereof
allocable to pay a Liquidation Fee or a Workout Fee.
"Nonrecoverable Advance": Any Nonrecoverable P&I Advance or Nonrecoverable
Servicing Advance.
"Nonrecoverable P&I Advance": Any P&I Advance previously made or to be made
in respect of any Mortgage Loan or any REO Loan that, as determined by the
Master Servicer or, if applicable, the Trustee, in its reasonable good faith
judgment, and in any event subject to the Servicing Standard, will not be
ultimately recoverable from Late Collections or any other recovery on or in
respect of such Mortgage Loan or REO Loan.
"Nonrecoverable Servicing Advance": Any Servicing Advance previously made
or to be made in respect of a Mortgage Loan or REO Property that, as determined
by the Master Servicer, the Special Servicer or, if applicable, the Trustee, in
its reasonable good faith judgment, and in any event subject to the Servicing
Standard, will not be ultimately recoverable from Late Collections or any other
recovery on or in respect of such Mortgage Loan or REO Property.
"Non-United States Person": Any Person other than a United States Person.
"Officer's Certificate": A certificate signed by a Servicing Officer of the
Master Servicer or the Special Servicer or a Responsible Officer of the Trustee,
as the case may be.
"Operating Statement Analysis": As defined in Section 4.02(c).
"Opinion of Counsel": A written opinion of counsel (which counsel shall be
Independent of the Depositor, the Master Servicer, the Special Servicer, the
Trustee and the REMIC Administrator) acceptable to and delivered to the
addressee(s) thereof and which Opinion of Counsel shall not be at the expense of
the Trustee or the REMIC Administrator.
"OTS": The Office of Thrift Supervision or any successor thereto.
"Ownership Interest": As to any Certificate, any ownership or security
interest in such Certificate as the Holder thereof and any other interest
therein, whether direct or indirect, legal or beneficial, as owner or as
pledgee.
"P&I Advance": As to any Mortgage Loan or REO Loan, any advance made by the
Master Servicer or the Trustee pursuant to Section 4.03.
"P&I Advance Date": The second Business Day preceding each Distribution
Date.
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"Pass-Through Rate": With respect to:
(i) Component S-A1A, for any Distribution Date, the excess, if any, of the
REMIC II Remittance Rate for REMIC II Regular Interest A-1A for such
Distribution Date, over the fixed Pass-Through Rate for the Class A-1A
Certificates;
(ii) Component S-A1B, for any Distribution Date, the excess, if any, of the
REMIC II Remittance Rate for REMIC II Regular Interest A-1B for such
Distribution Date, over the fixed Pass-Through Rate for the Class A-1B
Certificates;
(iii) Component S-A2, for any Distribution Date, the excess, if any, of the
REMIC II Remittance Rate for REMIC II Regular Interest A-2 for such
Distribution Date, over the fixed Pass-Through Rate for the Class A-2
Certificates;
(iv) Component S-A3, for any Distribution Date, the excess, if any, of the
REMIC II Remittance Rate for REMIC II Regular Interest A-3 for such
Distribution Date, over the fixed Pass-Through Rate for the Class A-3
Certificates;
(v) Component S-B1, for any Distribution Date, the excess, if any, of the
REMIC II Remittance Rate for REMIC II Regular Interest B-1 for such
Distribution Date, over the fixed Pass-Through Rate for the Class B-1
Certificates;
(vi) Component S-B2, for any Distribution Date, the excess, if any, of the
REMIC II Remittance Rate for REMIC II Regular Interest B-2 for such
Distribution Date, over the fixed Pass-Through Rate for the Class B-2
Certificates;
(vii) Component S-B3, for any Distribution Date, the excess, if any, of the
REMIC II Remittance Rate for REMIC II Regular Interest B-3 for such
Distribution Date, over the fixed Pass-Through Rate for the Class B-3
Certificates;
(viii) Component S-B4, for any Distribution Date, the excess, if any, of
the REMIC II Remittance Rate for REMIC II Regular Interest B-4 for
such Distribution Date, over the fixed Pass-Through Rate for the Class
B-4 Certificates;
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(ix) Component S-C, for any Distribution Date, the excess, if any, of the
REMIC II Remittance Rate for REMIC II Regular Interest C for such
Distribution Date, over the fixed Pass-Through Rate for the Class C
Certificates; and
(x) any Class of Sequential Pay Certificates, for any Distribution Date,
the fixed rate per annum specified as such in respect of such Class in
the Preliminary Statement hereto.
"Payment Priority": With respect to any Class of Certificates, the priority
of the Holders thereof in respect of the Holders of the other Classes of
Certificates to receive distributions out of the Available Distribution Amount
for any Distribution Date. The Payment Priority of the respective Classes of
Certificates shall be, in descending order, as follows: first, the respective
Classes of Senior Certificates; second, the Class A-2 Certificates; third, the
Class A-3 Certificates; fourth, the Class B-1 Certificates; fifth, the Class B-2
Certificates; sixth, the Class B-3 Certificates; seventh, the Class B-4
Certificates; eighth, the Class C Certificates; and last, the respective Classes
of Residual Certificates.
"Penalty Charges": Default Interest, late payment charges and/or charges
for checks returned for insufficient funds that are paid or payable, as the
context may require, in respect of any Mortgage Loan or REO Loan.
"Percentage Interest": With respect to any REMIC III Regular Certificate,
the portion of the relevant Class evidenced by such Certificate, expressed as a
percentage, the numerator of which is the Certificate Principal Balance or
Certificate Notional Amount, as the case may be, of such Certificate as of the
Closing Date, as specified on the face thereof, and the denominator of which is
the Initial Class Principal Balance or Initial Class Notional Amount, as the
case may be, of the relevant Class. With respect to a Residual Certificate, the
percentage interest in distributions to be made with respect to the relevant
Class, as stated on the face of such Certificate.
"Permitted Investments": Any one or more of the following obligations or
securities:
(i) direct obligations of, or obligations fully guaranteed as to timely
payment of principal and interest by, the United States or any agency
or instrumentality thereof, provided such obligations are backed by
the full faith and credit of the United States, have a predetermined,
fixed amount of principal due at maturity (that cannot vary or
change), do not have an "r" highlight attached to any rating, and each
obligation has a fixed interest rate or has its interest rate tied to
a single interest rate index plus a single fixed spread;
28
(ii) certain obligations of agencies or instrumentalities of the United
States that are not backed by the full faith and credit of the United
States, provided such obligations have a predetermined, fixed amount
of principal due at maturity (that cannot vary or change), do not have
an "r" highlight attached to any rating, and each obligation has a
fixed interest rate or has its interest rate tied to a single interest
rate index plus a single fixed spread;
(iii) federal funds, uncertificated certificates of deposit, time deposits,
bankers' acceptances and repurchase agreements having maturities of
not more than 365 days, of any bank or trust company organized under
the laws of the United States or any state thereof, provided that such
items are rated in the highest short-term debt rating category of each
of the Rating Agencies or, in the case of each Rating Agency, such
lower rating as will not result in a qualification, downgrading or
withdrawal of the rating then assigned to any Class of Certificates by
such Rating Agency (as evidenced in writing by such Rating Agency), do
not have an "r" highlight affixed to its rating and its terms have a
predetermined fixed amount of principal due at maturity (that cannot
vary or change), and each obligation has a fixed interest rate or has
its interest rate tied to a single interest rate index plus a single
fixed spread;
(iv) commercial paper (having original maturities of not more than 365
days) of any corporation incorporated under the laws of the United
States or any state thereof (or of any corporation not so
incorporated, provided that the commercial paper is United States
Dollar denominated and amounts payable thereunder are not subject to
any withholding imposed by any non-United States jurisdiction) which
is rated in the highest short-term debt rating category of each of the
Rating Agencies or, in the case of each Rating Agency, such lower
rating as will not result in a qualification, downgrading or
withdrawal of the rating then assigned to any Class of Certificates by
such Rating Agency (as evidenced in writing by such Rating Agency), do
not have an "r" highlight affixed to its rating and its terms have a
predetermined fixed amount of principal due at maturity (that cannot
vary or change), and each obligation has a fixed interest rate or has
its interest rate tied to a single interest rate index plus a single
fixed spread;
(v) units of money market funds which maintain a constant net asset value
and which are rated in the highest applicable rating category of each
of the Rating Agencies or, in the case of each Rating Agency, such
lower rating as will not result in a qualification, downgrading or
withdrawal of the rating then assigned to any Class of Certificates by
such Rating Agency (as evidenced in writing by such Rating Agency); or
29
(vi) any other obligation or security acceptable to each Rating Agency,
which will not result in a qualification, downgrading or withdrawal of
the rating then assigned to any Class of Certificates by such Rating
Agency (as evidenced in writing by such Rating Agency);
provided that (1) no investment described hereunder shall evidence either the
right to receive (x) only interest with respect to such investment or (y) a
yield to maturity greater than 120% of the yield to maturity at par of the
underlying obligations; and (2) that no investment described hereunder may be
purchased at a price greater than par if such investment may be prepaid or
called at a price less than its purchase price prior to stated maturity (that
cannot vary or change).
"Permitted Transferee": Any Transferee of a Residual Certificate other than
either a Disqualified Organization or Non-United States Person.
"Person": Any individual, corporation, partnership, joint venture,
association, joint-stock company, limited liability company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Phase I Environmental Assessment": A "Phase I assessment" as described in
and meeting the criteria of Chapter 5 of the FNMA Multifamily Guide, as amended
from time to time.
"Plan": As defined in Section 5.02(c).
"Plurality Residual Certificateholder": As to any taxable year of REMIC I,
REMIC II or REMIC III, the Holder of Certificates evidencing the largest
Percentage Interest in the Class of Residual Certificates constituting the sole
class of "residual interests" in such REMIC.
"Prepayment Assumption": For purposes of determining the accrual of
original issue discount, market discount and premium, if any, on the Mortgage
Loans, the REMIC I Regular Interests, the REMIC II Regular Interests and the
Certificates for federal income tax purposes, the assumption that no Mortgage
Loan is voluntarily prepaid.
"Prepayment Interest Excess": With respect to any Mortgage Loan that was
subject to a Principal Prepayment in full or in part made on or prior to the
Determination Date in any calendar month but after the first day of such month,
any payment of interest (net of related Master Servicing Fees and Property
Servicing Fees) actually collected from the related Mortgagor and intended to
cover the period from the commencement of such month to the date of prepayment
(exclusive, however, of any related Prepayment Premium or Yield Maintenance
Premium that may have been collected).
"Prepayment Interest Shortfall": With respect to any Mortgage Loan that was
subject to a Principal Prepayment in full or in part made and applied to such
Mortgage Loan after the Determination Date in any calendar month, the amount of
interest, to the extent not collected
30
from the related Mortgagor (without regard to any Prepayment Premium or Yield
Maintenance Premium that may have been collected), that would have accrued at a
rate per annum equal to the Mortgage Rate for such Mortgage Loan (net of the
Master Servicing Fee Rate and Property Servicing Fee Rate) on the amount of such
Principal Prepayment during the period commencing on the date as of which such
Principal Prepayment was applied to such Mortgage Loan and ending on the last
day of such month, inclusive.
"Prepayment Premium": With respect to any Mortgage Loan, any premium,
penalty or fee paid or payable, as the context requires, by a Mortgagor in
connection with a Principal Prepayment on, or other early collection of
principal of, a Mortgage Loan or any successor REO Loan, to the extent such
premium, penalty or fee is expressed as a percentage of the principal amount
being prepaid or a specified amount.
"Primary Servicing Office": The office of the Master Servicer or the
Special Servicer, as the context may require, that is primarily responsible for
such party's servicing obligations hereunder.
"Prime Rate": The "prime rate" published in the "Money Rates" section of
The Wall Street Journal, as such "prime rate" may change from time to time. If
The Wall Street Journal ceases to publish the "prime rate," then the Trustee, in
its sole discretion, shall select an equivalent publication that publishes such
"prime rate;" and if such "prime rate" is no longer generally published or is
limited, regulated or administered by a governmental or quasi-governmental body,
then the Trustee shall select a comparable interest rate index. In either case,
such selection shall be made by the Trustee in its sole discretion and the
Trustee shall notify the Master Servicer and the Special Servicer in writing of
its selection.
"Principal Distribution Amount": With respect to any Distribution Date, the
aggregate of the following:
(a) the aggregate of the principal portions of all Scheduled Payments
(other than Balloon Payments) and any Assumed Scheduled Payments due or
deemed due, as the case may be, in respect of the Mortgage Loans for their
respective Due Dates occurring during the related Collection Period;
(b) the aggregate of all Principal Prepayments received on the
Mortgage Loans during the related Collection Period;
(c) with respect to any Mortgage Loan as to which the related Stated
Maturity Date occurred during or prior to the related Collection Period,
any payment of principal (exclusive of any Principal Prepayments and any
amounts described in clause (d) below) made by or on behalf of the related
Mortgagor 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
31
than a Balloon Payment) due, or the principal portion of any Assumed
Scheduled Payment deemed due, in respect of such Mortgage Loan on a Due
Date during or prior to the related Collection Period and not previously
recovered;
(d) the aggregate of all Liquidation Proceeds and Insurance Proceeds
that were received on the Mortgage Loans during the related Collection
Period and that were identified and applied by the Master Servicer as
recoveries of principal of such Mortgage Loans, in each case net of any
portion of such amounts that represents a recovery of the principal portion
of any Scheduled Payment (other than a Balloon Payment) due, or of the
principal portion of any Assumed Scheduled Payment deemed due, in respect
of the related Mortgage Loan on a Due Date during or prior to the related
Collection Period and not previously recovered;
(e) with respect to any REO Properties, the aggregate of the principal
portions of all Assumed Scheduled Payments deemed due in respect of the
related REO Loans for their respective Due Dates occurring during the
related Collection Period;
(f) with respect to any REO Properties, the aggregate of all
Liquidation Proceeds, Insurance Proceeds and REO Revenues that were
received during the related Collection Period in respect of such REO
Properties and that were identified and applied by the Master Servicer as
recoveries of principal of the related REO Loans, in each case net of any
portion of such amounts that represents a recovery of the principal portion
of any Scheduled Payment (other than a Balloon Payment) due, or of the
principal portion of any Assumed Scheduled Payment deemed due, in respect
of the related REO Loan or the predecessor Mortgage Loan on a Due Date
during or prior to the related Collection Period and not previously
recovered; and
(g) if such Distribution Date is subsequent to the initial
Distribution Date, the excess, if any, of the Principal Distribution Amount
for the preceding Distribution Date, over the aggregate distributions of
principal made on the Certificates on such preceding Distribution Date
pursuant to Section 4.01(a).
"Principal Prepayment": Any payment of principal made by the Mortgagor on a
Mortgage Loan that is received in advance of its scheduled Due Date and that is
not accompanied by an amount of interest (without regard to any Prepayment
Premium or Yield Maintenance Premium that may have been collected) representing
scheduled interest due on any date or dates in any month or months subsequent to
the month of prepayment.
"Private Certificates": Unless and until registered under the Securities
Act, any Class B-2, Class B-3, Class B-4, Class C or Residual Certificate.
32
"Property Servicing Fee": With respect to each Mortgage Loan and REO Loan,
the fee designated as such and payable to the Special Servicer pursuant to the
first paragraph of Section 3.11(c).
"Property Servicing Fee Rate": With respect to each Mortgage Loan and REO
Loan, _______% per annum.
"Purchase Price": With respect to any Mortgage Loan (or REO Property), a
cash price equal to the aggregate of: (a) the outstanding principal balance of
such Mortgage Loan (or the related REO Loan) as of the date of purchase, (b) all
accrued and unpaid interest on such Mortgage Loan (or the related REO Loan) at
the related Mortgage Rate to but not including the date of purchase (or, if such
purchase occurs after the Determination Date in any calendar month, through the
end of such calendar month), (c) all related and unreimbursed Servicing
Advances, and (d) solely in the case of a purchase by the Mortgage Loan Seller
pursuant to the Mortgage Loan Purchase Agreement, all accrued and unpaid Advance
Interest in respect of related Advances.
"Qualified Appraiser": In connection with the appraisal of any Mortgaged
Property or REO Property, an Independent MAI-designated appraiser with at least
five years of experience in respect of the relevant geographic location and
property type.
"Qualified Insurer": An insurance company or security or bonding company
qualified to write the related Insurance Policy in the relevant jurisdiction.
"Rating Agency": Each of _______ and _______.
"Realized Loss": With respect to: (1) each defaulted Mortgage Loan as to
which a Final Recovery Determination has been made, or with respect to any
successor REO Loan as to which a Final Recovery Determination has been made as
to the related REO Property, an amount (not less than zero) equal to (a) the
unpaid principal balance of such Mortgage Loan or REO Loan, as the case may be,
as of the commencement of the Collection Period in which the Final Recovery
Determination was made, plus (b) without taking into account the amount
described in subclause (1)(d) of this definition, all accrued but unpaid
interest on such Mortgage Loan or REO Loan, as the case may be, at the related
Mortgage Rate to but not including the related Due Date in the Collection Period
in which the Final Recovery Determination was made, plus (c) any related
unreimbursed Servicing Advances as of the commencement of the Collection Period
in which the Final Recovery Determination was made, together with any new
related Servicing Advances made during such Collection Period, minus (d) all
payments and proceeds, if any, received in respect of such Mortgage Loan or REO
Loan, as the case may be, during the Collection Period in which such Final
Recovery Determination was made; (2) each defaulted Mortgage Loan as to which
any portion of the principal or past due interest payable thereunder was
cancelled in connection with a bankruptcy or similar proceeding involving the
related Mortgagor or a modification, waiver or amendment of such Mortgage Loan
granted or agreed to
33
by the Special Servicer pursuant to Section 3.20, the amount of such principal
or past due interest (other than any Default Interest) so cancelled; and (3)
each defaulted Mortgage Loan as to which the Mortgage Rate thereon has been
permanently reduced and not recaptured for any period in connection with a
bankruptcy or similar proceeding involving the related Mortgagor or a
modification, waiver or amendment of such Mortgage Loan granted or agreed to by
the Special Servicer pursuant to Section 3.20, the amount of the consequent
reduction in the interest portion of each successive Monthly Payment due thereon
(each such Realized Loss to be deemed to have been incurred on the Due Date for
each affected Monthly Payment).
"Record Date": With respect to any Distribution Date, the last Business Day
of the month immediately preceding the month in which such Distribution Date
occurs.
"Reimbursement Rate": The rate per annum applicable to the accrual of
Advance Interest, which rate per annum is equal to the Prime Rate.
"REMIC": A "real estate mortgage investment conduit" as defined in Section
860D of the Code.
"REMIC Administrator": ____________________, its successor in interest, or
any successor REMIC administrator appointed as herein provided.
"REMIC I": The segregated pool of assets subject hereto, constituting the
primary trust created hereby and to be administered hereunder, and with respect
to which a REMIC election is to be made, consisting of: (i) the Mortgage Loans
as from time to time are subject to this Agreement and all payments under and
proceeds of such Mortgage Loans received after the Closing Date, together with
all documents included in the related Mortgage Files and any Escrow Payments and
Reserve Funds; (ii) any REO Property acquired in respect of a Mortgage Loan;
(iii) such funds or assets as from time to time are deposited in the Collection
Account, the Distribution Account and, if established, the REO Account; (iv) the
rights of the Depositor under Sections ________________ of the Mortgage Loan
Purchase Agreement; and (v) the rights of the Trustee and the Certificateholders
as third party beneficiaries under the Mortgage Loan Purchase Agreement (as and
to the extent provided under Section ____ thereof).
"REMIC I Regular Interest": With respect to each Mortgage Loan (and any
successor REO Loan), the separate non-certificated beneficial ownership interest
in REMIC I issued hereunder and designated as a "regular interest" in REMIC I.
Each REMIC I Regular Interest shall accrue interest at the related REMIC I
Remittance Rate and shall be entitled to distributions of principal, subject to
the terms and conditions hereof, in an aggregate amount equal to its initial
Uncertificated Principal Balance (which shall equal the Cut-off Date Balance of
the related Mortgage Loan). The designation for each REMIC I Regular Interest
shall be the loan number for the related Mortgage Loan set forth in the Mortgage
Loan schedule.
34
"REMIC I Remittance Rate": With respect to any REMIC I Regular Interest for
any Distribution Date, a rate per annum equal to the Net Mortgage Rate for the
related Mortgage Loan in effect as of the Closing Date.
"REMIC II": The segregated pool of assets consisting of all of the REMIC I
Regular Interests, with respect to which a separate REMIC election is to be
made.
"REMIC II Regular Interest": Any of the nine separate non-certificated
beneficial ownership interests in REMIC II issued hereunder and designated as a
"regular interest" in REMIC II. Each REMIC II Regular Interest shall accrue
interest at the related REMIC II Remittance Rate in effect from time to time,
and shall be entitled to distributions of principal, subject to the terms and
conditions hereof, in an aggregate amount equal to its initial Uncertificated
Principal Balance as set forth in the Preliminary Statement hereto. The
designations for the respective REMIC II Regular Interests are set forth in the
Preliminary Statement hereto.
"REMIC II Remittance Rate": With respect to any REMIC II Regular Interest
for any Distribution Date, the Weighted Average Effective REMIC I Remittance
Rate for such Distribution Date.
"REMIC III": The segregated pool of assets consisting of all of the REMIC
II Regular Interests, with respect to which a separate REMIC election is to be
made.
"REMIC III Certificate": Any Certificate, other than a Class R-I
Certificate or a Class R-II Certificate.
"REMIC III Regular Certificate": Any REMIC III Certificate, other than a
Class R-III Certificate.
"REMIC Provisions": Provisions of the federal income tax law relating to
real estate mortgage investment conduits, which appear at Sections 860A through
860G of Subchapter M of Chapter 1 of the Code, and related provisions, and
proposed, temporary and final Treasury regulations and any published rulings,
notices and announcements promulgated thereunder, as the foregoing may be in
effect from time to time.
"Rents from Real Property": With respect to any REO Property, gross income
of the character described in Section 856(d) of the Code.
"REO Account": A segregated custodial account or accounts created and
maintained by the Special Servicer pursuant to Section 3.16(b) on behalf of the
Trustee in trust for the Certificateholders, which shall be entitled " ________,
as Special Servicer, on behalf of and in trust for registered holders of DLJ
Commercial Mortgage Corp., Mortgage Pass-Through Certificates, Series
199__-____".
35
"REO Acquisition": The acquisition of any REO Property pursuant to Section
3.09.
"REO Disposition": The sale or other disposition of any REO Property
pursuant to Section 3.18(d).
"REO Extension": As defined in Section 3.16(a).
"REO Loan": The mortgage loan deemed for purposes hereof to be outstanding
with respect to each REO Property. Each REO Loan shall be deemed to provide for
monthly payments of principal and/or interest equal to its Assumed Scheduled
Payment and otherwise to have the same terms and conditions as its predecessor
Mortgage Loan (such terms and conditions to be applied without regard to the
default on such predecessor Mortgage Loan). Each REO Loan shall be deemed to
have an initial unpaid principal balance and Stated Principal Balance equal to
the unpaid principal balance and Stated Principal Balance, respectively, of its
predecessor Mortgage Loan as of the date of the related REO Acquisition. All
Scheduled Payments (other than any Balloon Payment), Assumed Scheduled Payments
(in the case of a Balloon Mortgage Loan delinquent in respect of its Balloon
Payment) and other amounts due and owing, or deemed to be due and owing, in
respect of the predecessor Mortgage Loan as of the date of the related REO
Acquisition, shall be deemed to continue to be due and owing in respect of an
REO Loan. In addition, all amounts payable or reimbursable to the Master
Servicer, the Special Servicer or the Trustee in respect of the predecessor
Mortgage Loan as of the date of the related REO Acquisition, including, without
limitation, any unpaid or unreimbursed Master Servicing Fees, Property Servicing
Fees, Special Servicing Fees and Advances (together with any related unpaid
Advance Interest), shall continue to be payable or reimbursable to the Master
Servicer, the Special Servicer or the Trustee, as the case may be, in respect of
an REO Loan.
"REO Property": A Mortgaged Property acquired by the Special Servicer on
behalf of the Trustee for the benefit of the Certificateholders through
foreclosure, acceptance of a deed in lieu of foreclosure or otherwise in
accordance with applicable law in connection with the default or imminent
default of a Mortgage Loan.
"REO Revenues": All income, rents, profits and proceeds derived from the
ownership, operation or leasing of any REO Property.
"REO Tax": As defined in Section 3.17(a)(i).
"Request for Release": A request signed by a Servicing Officer of, as
applicable, the Master Servicer in the form of Exhibit D-1 attached hereto or
the Special Servicer in the form of Exhibit D-2 attached hereto.
"Required Appraisal Loan": As defined in Section 3.19(c).
36
"Reserve Account": The account or accounts created and maintained pursuant
to Section 3.03(d).
"Reserve Funds": With respect to any Mortgage Loan, any amounts delivered
by the related Mortgagor to be held in escrow by or on behalf of the mortgagee
representing: (i) reserves for repairs, replacements, capital improvements
and/or environmental testing and remediation with respect to the related
Mortgaged Property; or (ii) amounts to be applied as a Principal Prepayment on
such Mortgage Loan in the event that certain leasing criteria in respect of the
related Mortgaged Property are not met.
"Residual Certificate": Any Class R-I Certificate, Class R-II Certificate
or Class R-III Certificate.
"Responsible Officer": When used with respect to the Trustee, any Vice
President, Assistant Vice President, Trust Officer, Assistant Secretary or any
other officer of the Trustee customarily performing functions similar to those
performed by any of the above designated officers and having direct
responsibility for the administration of this Agreement. When used with respect
to any Certificate Registrar (other than the Trustee), any officer or assistant
officer thereof.
"Scheduled Payment": With respect to any Mortgage Loan, for any Due Date
following the Cut-off Date as of which it is outstanding, the scheduled monthly
payment of principal and interest on such Mortgage Loan that is or would be, as
the case may be, payable by the related Mortgagor on such Due Date under the
terms of the related Mortgage Note as in effect on the Closing Date, without
regard to any subsequent change in or modification of such terms in connection
with a bankruptcy or similar proceeding involving the related Mortgagor or a
modification, waiver or amendment of such Mortgage Loan granted or agreed to by
the Special Servicer pursuant to Section 3.20, and assuming that each prior
Scheduled Payment has been made in a timely manner.
"Securities Act": The Securities Act of 1933, as amended.
"Senior Certificate": Any Class S Certificate, Class A-1A Certificate or
Class X- 0X Xxxxxxxxxxx.
"Senior Principal Distribution Cross-Over Date": The first Distribution
Date as of which the aggregate of the Class Principal Balances of the Class A-1A
Certificates and the Class A-1B Certificates outstanding immediately prior
thereto exceeds the sum of (a) the aggregate Stated Principal Balance of the
Mortgage Pool that will be outstanding immediately following such Distribution
Date, plus (b) the lesser of (i) the Principal Distribution Amount for such
Distribution Date and (ii) the portion of the Available Distribution Amount for
such Distribution Date that will remain after the distributions of interest to
be made on the Senior Certificates on such Distribution Date have been so made.
37
"Sequential Pay Certificate": Any Class A-1A Certificate, Class A-1B
Certificate, Class A-2 Certificate, Class A-3 Certificate, Class B-1
Certificate, Class B-2 Certificate, Class B-3 Certificate, Class B-4 Certificate
or Class C Certificate.
"Servicing Account": The account or accounts created and maintained
pursuant to Section 3.03(a).
"Servicing Advances": All customary, reasonable and necessary "out of
pocket" costs and expenses incurred or to be incurred, as the context requires,
by the Master Servicer or the Special Servicer (or, if applicable, the Trustee)
in connection with the servicing of a Mortgage Loan after a default, delinquency
or other unanticipated event, or in connection with the administration of any
REO Property, including, but not limited to, the cost of (a) compliance with the
obligations of the Master Servicer and/or the Special Servicer set forth in
Sections 2.02(e), 2.03(c), 3.03(c) and 3.09, (b) the preservation, insurance,
restoration, protection and management of a Mortgaged Property, including the
cost of any "force placed" insurance policy purchased by the Master Servicer or
the Special Servicer to the extent such cost is allocable to a particular
Mortgaged Property that the Master Servicer or the Special Servicer is required
to cause to be insured pursuant to Section 3.07(a), (c) obtaining any
Liquidation Proceeds or Insurance Proceeds in respect of any Mortgage Loan or
REO Property, (d) any enforcement or judicial proceedings with respect to a
Mortgaged Property, including, without limitation, foreclosures, and (e) the
operation, management, maintenance and liquidation of any REO Property; provided
that notwithstanding anything to the contrary, "Servicing Advances" shall not
include allocable overhead of the Master Servicer or the Special Servicer, such
as costs for office space, office equipment, supplies and related expenses,
employee salaries and related expenses and similar internal costs and expenses,
or costs incurred by either such party in connection with its purchase of any
Mortgage Loan or REO Property pursuant to any provision of this Agreement.
"Servicing File": Any documents (other than documents required to be part
of the related Mortgage File) in the possession of the Master Servicer or the
Special Servicer and relating to the origination and servicing of any Mortgage
Loan or the administration of any REO Property.
"Servicing Officer": Any officer or employee of the Master Servicer or the
Special Servicer involved in, or responsible for, the administration and
servicing of the Mortgage Loans, whose name and specimen signature appear on a
list of servicing officers furnished by such party to the Trustee and the
Depositor on the Closing Date, as such list may be amended from time to time.
"Servicing Return Date": With respect to any Corrected Mortgage Loan, the
date that servicing thereof is returned by the Special Servicer to the Master
Servicer pursuant to Section 3.21(a).
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"Servicing Standard": To service and administer the Mortgage Loans and REO
Properties with the higher of the care, skill and diligence with which prudent
institutional commercial mortgage lenders and loan servicers service comparable
mortgage loans and the care, skill, prudence and diligence with which the Master
Servicer or Special Servicer, as the case may be, generally services comparable
mortgage loans owned by it, and in any event with a view to the timely
collection of all scheduled payments of principal and interest under the
Mortgage Loans or, if a Mortgage Loan comes into and continues in default and no
satisfactory arrangements can be made for the collection of the delinquent
payments, the maximization of the recovery on such Mortgage Loan to the
Certificateholders (as a collective whole) on a present value basis (the
relevant discounting of anticipated collections that will be distributable to
Certificateholders to be performed at the related Net Mortgage Rate), but
without regard to: (i) any relationship that the Master Servicer or the Special
Servicer, as the case may be, or any Affiliate thereof may have with the related
Mortgagor or any other party hereto; (ii) the ownership of any Certificate by
the Master Servicer or the Special Servicer, as the case may be, or by any
Affiliate thereof; (iii) the Master Servicer's obligation to make Advances; (iv)
the Special Servicer's obligation to make Servicing Advances; and (v) the right
of the Master Servicer (or any Affiliate thereof) or the Special Servicer (or
any Affiliate thereof), as the case may be, to receive compensation for its
services or reimbursement of costs hereunder or with respect to any particular
transaction.
"Servicing Transfer Event": With respect to any Mortgage Loan, the
occurrence of any of the events described in clauses (a) through (h) of the
definition of "Specially Serviced Mortgage Loan".
"Single Certificate": For purposes of Section 4.02, a hypothetical
Certificate of any Class of REMIC III Regular Certificates evidencing a $1,000
denomination or, in the case of a Class S Certificate, a 100% Percentage
Interest in the relevant Class.
"Special Servicer": ___________________, its successor in interest, or any
successor special servicer appointed as herein provided.
"Special Servicer Report": As defined in Section 4.02(c).
"Special Servicing Fee": With respect to each Specially Serviced Mortgage
Loan and each REO Loan, the fee designated as such and payable to the Special
Servicer pursuant to the second paragraph of Section 3.11(c).
"Special Servicing Fee Rate": With respect to each Specially Serviced
Mortgage Loan and each REO Loan, _______% per annum.
"Specially Serviced Mortgage Loan": Any Mortgage Loan as to which any of
the following events has occurred:
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(a) the related Mortgagor has failed to make when due any Balloon Payment,
which failure continues, or the Master Servicer determines in its
reasonable good faith judgment will continue, unremedied for 30 days;
or
(b) the related Mortgagor has failed to make when due any Monthly Payment
(other than a Balloon Payment) or any other payment required under the
related Mortgage Note or the related Mortgage, which failure continues
unremedied for 60 days; or
(c) the Master Servicer has determined, in its reasonable good faith
judgment, that a default in the making a Monthly Payment or any other
payment required under the related Mortgage Note or the related
Mortgage is likely to occur within 30 days and is likely to remain
unremedied for at least 60 days or, in the case of a Balloon Payment,
for at least 30 days; or
(d) the Master Servicer has determined, in its reasonable good faith
judgment, that a default, other than as described in clause (a) or (b)
above, has occurred that may materially impair the value of the
related Mortgaged Property as security for the Mortgage Loan, which
default has continued unremedied for the applicable cure period under
the terms of the Mortgage Loan (or, if no cure period is specified,
for 30 days); or
(e) there has been commenced in any court or agency or supervisory
authority having jurisdiction in the premises an involuntary action
against the related Mortgagor under any present or future federal or
state bankruptcy, insolvency or similar law for the appointment of a
conservator or receiver or liquidator in any insolvency, readjustment
of debt, marshalling of assets and liabilities or similar proceedings,
or for the winding-up or liquidation of its affairs; provided,
however, that no Workout Fee or Liquidation Fee shall be payable with
respect to a Specially Serviced Mortgage Loan that has become such
pursuant to the provisions of this subsection (e) if such involuntary
action is dismissed within 30 days of commencement of such action (or
is dismissed between 31 and 60 days after such commencement in the
absence of the Special Servicer having provided substantial services
in connection with such dismissal) and no other Servicing Transfer
Event then exists; or
(f) the related Mortgagor shall have consented to the appointment of a
conservator or receiver or liquidator in any insolvency, readjustment
of debt, marshalling of assets and liabilities or similar proceedings
of or relating to such Mortgagor or of or relating to all or
substantially all of its property; or
40
(g) the related Mortgagor shall have admitted in writing its inability to
pay its debts generally as they become due, filed a petition to take
advantage of any applicable insolvency or reorganization statute, made
an assignment for the benefit of its creditors, or voluntarily
suspended payment of its obligations; or
(h) the Master Servicer shall have received notice of the commencement of
foreclosure or similar proceedings with respect to the related
Mortgaged Property;
provided, however, that a Mortgage Loan shall cease to be a Specially Serviced
Mortgage Loan, when a Liquidation Event has occurred in respect of such Mortgage
Loan, when the related Mortgaged Property has become an REO Property or, so long
as at such time no circumstance identified in clauses (a) through (h) above
exists that would cause the Mortgage Loan to continue to be characterized as a
Specially Serviced Mortgage Loan:
(w) with respect to the circumstances described in clauses (a) and (b)
above, when the related Mortgagor has made three consecutive full and
timely Monthly Payments under the terms of such Mortgage Loan (as such
terms may be changed or modified in connection with a bankruptcy or
similar proceeding involving the related Mortgagor or by reason of a
modification, waiver or amendment granted or agreed to by the Special
Servicer pursuant to Section 3.20);
(x) with respect to the circumstances described in clauses (c), (e), (f)
and (g) above, when such circumstances cease to exist in the
reasonable good faith judgment of the Special Servicer;
(y) with respect to the circumstances described in clause (d) above, when
such default is cured; and
(z) with respect to the circumstances described in clause (h) above, when
such proceedings are terminated.
"Startup Day": With respect to each of REMIC I, REMIC II and REMIC III, the
day designated as such in Section 10.01(c).
"Stated Maturity Date": With respect to any Mortgage Loan, the Due Date
specified in the Mortgage Note (as in effect on the Closing Date) on which the
last payment of principal is due and payable under the terms of the Mortgage
Note (as in effect on the Closing Date), without regard to any change in or
modification of such terms in connection with a bankruptcy or similar proceeding
involving the related Mortgagor or a modification, waiver or
41
amendment of such Mortgage Loan granted or agreed to by the Special Servicer
pursuant to Section 3.20.
"Stated Principal Balance": With respect to any Mortgage Loan (and any
successor REO Loan), the Cut-off Date Balance of such Mortgage Loan, as reduced
on each Distribution Date (to not less than zero) by (i) all payments (or P&I
Advances in lieu thereof) and other collections of principal of such Mortgage
Loan (or successor REO Loan) that are (or, if they had not been applied to cover
any Additional Trust Fund Expense, would have been) distributed to
Certificateholders on such Distribution Date, and (ii) the principal portion of
any Realized Loss incurred in respect of such Mortgage Loan (or successor or REO
Loan) during the related Collection Period. Notwithstanding the foregoing, if a
Liquidation Event occurs in respect of any Mortgage Loan or REO Property, then
the "Stated Principal Balance" of such Mortgage Loan or of the related REO Loan,
as the case may be, shall be zero commencing as of the Distribution Date in the
Collection Period next following the Collection Period in which such Liquidation
Event occurred.
"Subordinated Certificate": Any Class A-2 Certificate, Class A-3
Certificate, Class B-1 Certificate, Class B-2 Certificate, Class B-3
Certificate, Class B-4 Certificate, Class C Certificate, Class R-I Certificate,
Class R-II Certificate or Class R-III Certificate.
"Sub-Servicer": Any Person with which the Master Servicer or the Special
Servicer has entered into a Sub-Servicing Agreement.
"Substitute Collateral": As defined in Section 7.06.
"Sub-Servicing Agreement": The written contract between the Master Servicer
or the Special Servicer, on the one hand, and any Sub-Servicer, on the other
hand, relating to servicing and administration of Mortgage Loans as provided in
Section 3.22.
"Tax Matters Person": With respect to any of the REMICs created hereunder,
the Person designated as the "tax matters person" of such REMIC in the manner
provided under Treasury regulation section 1.860F-4(d) and temporary Treasury
regulation section 301.6231(a)(7)-1T, which Person shall, pursuant to Section
10.01(d), be the applicable Plurality Residual Certificateholder.
"Tax Returns": The federal income tax return on Internal Revenue Service
Form 1066, U.S. Real Estate Mortgage Investment Conduit Income (REMIC) Tax
Return, including Schedule Q thereto, Quarterly Notice to Residual Interest
Holder of REMIC Taxable Income or Net Loss Allocation, or any successor forms,
to be filed on behalf of each of REMIC I, REMIC II and REMIC III due to its
classification as a REMIC under the REMIC Provisions, together with any and all
other information, reports or returns that may be required to be furnished to
the Certificateholders or filed with the Internal Revenue Service under any
applicable provisions of federal tax law or any other governmental taxing
authority under applicable state or local tax laws.
42
"Transfer": Any direct or indirect transfer, sale, pledge, hypothecation,
or other form of assignment of any Ownership Interest in a Certificate.
"Transferee": Any Person who is acquiring by Transfer any Ownership
Interest in a Certificate.
"Transferor": Any Person who is disposing by Transfer any Ownership
Interest in a Certificate.
"Trust Fund": Collectively, all of the assets of REMIC I, REMIC II and
REMIC III.
"Trustee": ___________________, its successor in interest, or any successor
trustee appointed as herein provided.
"Trustee's Fee": With respect to the Mortgage Pool, the fee designated as
such and payable to the Trustee pursuant to Section 8.05. The Trustee shall be
entitled to withdraw earned but unpaid Trustee's Fees from the Distribution
Account on each Distribution Date, pursuant to Sections 3.05(b) and 8.05(a).
"Trustee's Fee Rate": _______% per annum.
"Trustee Report": As defined in Section 4.02(a).
"UCC": The Uniform Commercial Code in effect in the applicable
jurisdiction.
"UCC Financing Statement": A financing statement executed and filed
pursuant to the Uniform Commercial Code, as in effect in any relevant
jurisdiction.
"Uncertificated Accrued Interest": With respect to any REMIC I Regular
Interest, for any Distribution Date, one month's interest (calculated on the
basis of a 360-day year consisting of twelve 30-day months or, if the related
Mortgage Loan or REO Loan accrues interest on a different basis, on such
alternative basis) at the REMIC I Remittance Rate applicable to such REMIC I
Regular Interest for such Distribution Date, accrued on the Uncertificated
Principal Balance of such REMIC I Regular Interest outstanding immediately prior
to such Distribution Date. With respect to any REMIC II Regular Interest, for
any Distribution Date, one month's interest (calculated on the basis of a
360-day year consisting of twelve 30-day months) at the REMIC II Remittance Rate
applicable to such REMIC II Regular Interest for such Distribution Date, accrued
on the Uncertificated Principal Balance of such REMIC II Regular Interest
outstanding immediately prior to such Distribution Date.
43
"Uncertificated Distributable Interest": With respect to any REMIC I
Regular Interest for any Distribution Date, the Uncertificated Accrued Interest
in respect of such REMIC I Regular Interest for such Distribution Date, reduced
(to not less than zero) by the product of (i) any Net Aggregate Prepayment
Interest Shortfall for such Distribution Date, multiplied by (ii) a fraction,
expressed as a percentage, the numerator of which is the Uncertificated Accrued
Interest in respect of such REMIC I Regular Interest for such Distribution Date,
and the denominator of which is the aggregate Uncertificated Accrued Interest in
respect of all the REMIC I Regular Interests for such Distribution Date. With
respect to any REMIC II Regular Interest for any Distribution Date, the
Uncertificated Accrued Interest in respect of such REMIC II Regular Interest for
such Distribution Date, reduced (to not less than zero) by the product of (i)
any Net Aggregate Prepayment Interest Shortfall for such Distribution Date,
multiplied by (ii) a fraction, expressed as a percentage, the numerator of which
is the Uncertificated Accrued Interest in respect of such REMIC II Regular
Interest for such Distribution Date, and the denominator of which is the
aggregate Uncertificated Accrued Interest in respect of all the REMIC II Regular
Interests for such Distribution Date.
"Uncertificated Principal Balance": The principal amount of any REMIC I
Regular Interest or REMIC II Regular Interest outstanding as of any date of
determination. As of the Closing Date, the Uncertificated Principal Balance of
each REMIC I Regular Interest shall equal the Cut-off Date Balance of the
related Mortgage Loan. On each Distribution Date, the Uncertificated Principal
Balance of each REMIC I Regular Interest shall be reduced by all distributions
of principal deemed to have been made thereon on such Distribution Date pursuant
to Section 4.01(i) and, if and to the extent appropriate, shall be further
reduced on such Distribution Date as provided in Section 4.04(c). As of the
Closing Date, the Uncertificated Principal Balance of each REMIC II Regular
Interest shall equal the amount set forth in the Preliminary Statement hereto as
its initial stated principal amount. On each Distribution Date, the
Uncertificated Principal Balance of each REMIC II Regular Interest shall be
reduced by all distributions of principal deemed to have been made thereon on
such Distribution Date pursuant to Section 4.01(h) and, if and to the extent
appropriate, shall be further reduced on such Distribution Date as provided in
Section 4.04(b).
"Underwriter": _________________________________.
"United States Person": A citizen or resident of the United States, a
corporation, partnership or other entity created or organized in, or under the
laws of, the United States or any political subdivision thereof, or an estate or
trust whose income from sources without the United States is includible in gross
income for United States federal income tax purposes regardless of its
connection with the conduct of a trade or business within the United States.
"USPAP": The Uniform Standards of Professional Appraisal Practices.
44
"Voting Rights": The portion of the voting rights of all of the
Certificates which is allocated to any Certificate. At all times during the term
of this Agreement, _____% of the Voting Rights shall be allocated among the
Holders of the various Classes of Sequential Pay Certificates in proportion to
the respective Class Principal Balances thereof, _____% of the Voting Rights
shall be allocated to the Holders of the Class S Certificates, and any Voting
Rights not otherwise allocated in the aforesaid manner will be allocated to the
REMIC Residual Certificates. Voting Rights allocated to a Class of
Certificateholders shall be allocated among such Certificateholders in
proportion to the Percentage Interests evidenced by their respective
Certificates.
"Weighted Average Effective REMIC I Remittance Rate": With respect to any
Distribution Date, the rate per annum equal to the weighted average, expressed
as a percentage and rounded to six decimal places, of the respective Effective
REMIC I Remittance Rates in respect of the REMIC I Regular Interests for such
Distribution Date, weighted on the basis of the respective Uncertificated
Principal Balances of the REMIC I Regular Interests outstanding immediately
prior to such Distribution Date.
"Weighted Average REMIC II Remittance Rate": With respect to any
Distribution Date, the rate per annum equal to the weighted average, expressed
as a percentage and rounded to six decimal places, of the respective REMIC II
Remittance Rates in respect of the REMIC II Regular Interests for such
Distribution Date, weighted on the basis of the respective Uncertificated
Principal Balances of the REMIC II Regular Interests outstanding immediately
prior to such Distribution Date.
"Workout Fee": With respect to each Corrected Mortgage Loan, the fee
designated as such and payable to the Special Servicer pursuant to the third
paragraph of Section 3.11(c).
"Workout Fee Rate": With respect to each Corrected Mortgage Loan, ___%.
"Yield Maintenance Premium": With respect to any Mortgage Loan, any
premium, penalty or fee paid or payable, as the context requires, by a Mortgagor
in connection with a Principal Prepayment on, or other early collection of
principal of, a Mortgage Loan, other than any Prepayment Premium.
SECTION 1.02. Certain Calculations in Respect of the Mortgage Pool.
(a) All amounts collected in respect of any Mortgage Loan in the form of
payments from Mortgagors, Liquidation Proceeds or Insurance Proceeds shall be
applied to amounts due and owing under the related Mortgage Note and Mortgage
(including, without limitation, for principal and accrued and unpaid interest)
in accordance with the express provisions of the related Mortgage Note and
Mortgage and, in the absence of such express provisions, shall be applied for
purposes of this Agreement: first, as a recovery of any related and unreimbursed
Servicing Advances; second, as a recovery of accrued and unpaid interest at the
related Mortgage
45
Rate on such Mortgage Loan to but not including, as appropriate, the date of
receipt (or, in the case of a full Monthly Payment from any Mortgagor, through
the related Due Date); third, as a recovery of principal of such Mortgage Loan
then due and owing, including, without limitation, by reason of acceleration of
the Mortgage Loan following a default thereunder (or, if a Liquidation Event has
occurred in respect of such Mortgage Loan, as a recovery of principal to the
extent of its entire remaining unpaid principal balance); fourth, as a recovery
of amounts to be currently applied to the payment of, or escrowed for the future
payment of, real estate taxes, assessments, insurance premiums, ground rents (if
applicable) and similar items; fifth, as a recovery of Reserve Funds to the
extent then required to be held in escrow; sixth, as a recovery of any
Prepayment Premium or Yield Maintenance Premium then due and owing under such
Mortgage Loan; seventh, as a recovery of any other amounts then due and owing
under such Mortgage Loan; and eighth, as a recovery of any remaining principal
of such Mortgage Loan to the extent of its entire remaining unpaid principal
balance.
(b) Collections in respect of each REO Property (exclusive of amounts to be
applied to the payment of the costs of operating, managing, maintaining and
disposing of such REO Property) shall be treated: first, as a recovery of any
related and unreimbursed Servicing Advances; second, as a recovery of accrued
and unpaid interest on the related REO Loan at the related Mortgage Rate to but
not including the Due Date in the Collection Period of receipt; third, as a
recovery of principal of the related REO Loan to the extent of its entire unpaid
principal balance; and fourth, as a recovery of any other amounts deemed to be
due and owing in respect of the related REO Loan.
(c) Insofar as amounts received in respect of any Mortgage Loan or REO
Property and allocable to fees and charges owing in respect of such Mortgage
Loan or the related REO Loan, as the case may be, that constitute additional
servicing compensation payable to the Master Servicer and/or Special Servicer,
are insufficient to cover the full amount of such fees and charges, such amounts
shall be allocated between such of those fees and charges as are payable to the
Master Servicer, on the one hand, and such of those fees and charges as are
payable to the Special Servicer, on the other, pro rata in accordance with their
respective entitlements.
(d) The foregoing applications of amounts received in respect of any
Mortgage Loan or REO Property shall be determined by the Master Servicer and
reflected in the appropriate monthly Determination Date Report and Trustee
Report.
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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 to the Trustee without recourse for the benefit of the
Certificateholders all the right, title and interest of the Depositor in, to and
under (i) the Mortgage Loans, (ii) Sections ______________ of the Mortgage Loan
Purchase Agreement and (iii) all other assets included or to be included in the
Trust Fund. Such assignment includes, without limitation, all interest and
principal received or receivable on or with respect to the Mortgage Loans (other
than payments of interest and principal due and payable on the Mortgage Loans on
or before the Cutoff Date and any Principal Prepayments (together with any
related Prepayment Premiums and/or Yield Maintenance Premiums) received on or
before the Cut-off Date).
(b) The conveyance of the Mortgage Loans and the related rights and
property accomplished hereby is absolute and is intended by the parties to
constitute a sale of the Mortgage Loans and such other related rights and
property to the Trustee for the benefit of the Certificateholders. It is,
further, not intended that such conveyance be deemed a pledge of security for a
loan. If such conveyance is deemed to be a pledge of security for a loan,
however, the Depositor intends that the rights and obligations of the parties to
such loan shall be established pursuant to the terms of this Agreement. The
Depositor also intends and agrees that, in such event, (i) this Agreement shall
constitute a security agreement under applicable law, (ii) the Depositor shall
be deemed to have granted to the Trustee (in such capacity) a first priority
security interest in the Depositor's entire right, title and interest in and to
the assets constituting the Trust Fund, including, without limitation, the
Mortgage Loans, all principal and interest received or receivable with respect
to the Mortgage Loans (other than principal and interest payments due and
payable on or prior to the Cut-off Date and any Principal Prepayments received
on or prior to the Cut-off Date), all amounts held from time to time in the
Collection Account, the Distribution Account and, if established, the REO
Account and all reinvestment earnings on such amounts, and all of the
Depositor's right, title and interest in and to the proceeds of any title,
hazard or other Insurance Policies related to such Mortgage Loans, (iii) the
possession by the Trustee or its agent of the Mortgage Notes with respect to the
Mortgage Loans and such other items of property as constitute instruments,
money, negotiable documents or chattel paper shall be deemed to be "possession
by the secured party" or possession by a purchaser or person designated by such
secured party for the purpose of perfecting such security interest under
applicable law, and (iv) notifications to, and acknowledgments, receipts or
confirmations from, Persons holding such property, shall be deemed to be
notifications to, or acknowledgments, receipts or confirmations from, financial
intermediaries, bailees or agents (as applicable) of the Trustee for the purpose
of perfecting such security interest under applicable law. The Depositor shall
file or cause to be filed, as a precautionary filing, a Form UCC-1 substantially
in the form attached as Exhibit J
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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 2.01(b) shall
constitute notice to the Trustee pursuant to any of the requirements of the UCC
in effect in New York.
(c) In connection with the Depositor's assignment pursuant to Section
2.01(a) above, (i) the Depositor shall deliver to and deposit with, or cause to
be delivered to and deposited with, the Trustee or a Custodian appointed thereby
(with copies to the Master Servicer), on or before the Closing Date, the
Mortgage File for each Mortgage Loan so assigned and (ii) the Depositor shall
deliver to the Trustee on or before the Closing Date a fully executed
counterpart of the Mortgage Loan Purchase Agreement.
(d) The Trustee shall deliver to the Master Servicer within 15 days after
the Closing Date each assignment of Mortgage and assignment of Assignment of
Leases in favor of the Trustee referred to in clauses (iv) and (v) of the
definition of "Mortgage File" and each UCC-2 and UCC-3 in favor of the Trustee
referred to in clause (viii) of the definition of "Mortgage File", and the
Master Servicer shall, at the Depositor's expense, as to each Mortgage Loan,
promptly (and in any event within 45 days following the Closing Date) cause each
such document to be submitted for recording or filing, as the case may be, in
the appropriate public office for real property records or UCC Financing
Statements, as the Master Servicer deems appropriate. Each such assignment shall
reflect that it should be returned by the public recording office to the Trustee
following recording, and each such UCC-2 and UCC-3 shall reflect that the file
copy thereof should be returned to the Trustee following filing; provided that
in those instances where the public recording office retains the original
assignment of Mortgage or assignment of Assignment of Leases the Master Servicer
shall obtain therefrom a certified copy of the recorded original. If any such
document or instrument is lost or returned unrecorded or unfiled, as the case
may be, because of a defect therein, the Depositor shall promptly prepare or
cause to be prepared a substitute therefor or cure such defect, as the case may
be, and thereafter the Master Servicer shall upon receipt thereof cause the same
to be duly recorded or filed, as appropriate.
(e) The Depositor shall deliver to and deposit with, or cause to be
delivered to and deposited with, the Master Servicer all documents and records
in the possession of the Depositor or the Mortgage Loan Seller that relate to
the Mortgage Loans necessary for the servicing of the Mortgage Loans and that
are not required to be a part of a Mortgage File in accordance with the
definition thereof, and the Master Servicer shall hold all such documents and
records on behalf of the Trustee in trust for the benefit of the
Certificateholders.
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(f) On or prior to the tenth Business Day following the Closing Date, the
Depositor shall cause copies of the documents referred to in clauses (i), (ii)
(iii), (vi) (as applicable) and (vii) of the definition of "Mortgage File" for
each Mortgage Loan to be delivered to the Master Servicer and the Special
Servicer.
SECTION 2.02. Acceptance of REMIC I by Trustee.
(a) The Trustee, by its execution and delivery of this Agreement,
acknowledges receipt by it or a Custodian on its behalf, subject to the proviso
in the definition of Mortgage File, to any exceptions noted on the Schedule of
Exceptions to Mortgage File Delivery attached hereto as Exhibit B-2, to the
provisions of Sections 1.03, 2.01, 2.02(c) and 2.02(d) and to the further review
provided for in Section 2.02(b), of (i) the Mortgage File with respect to each
Mortgage Loan (provided that with respect to the documents referred to in clause
(vi) of the definition of "Mortgage File" such acknowledgment shall apply only
to the extent such documents are actually delivered), (ii) a fully executed
counterpart of the Mortgage Loan Purchase Agreement, and (iii) all other assets
delivered to it and included in REMIC I, in good faith and without notice of any
adverse claim, and declares that it or a Custodian on its behalf holds and will
hold such documents and the other documents received by it that constitute
portions of the Mortgage Files, and that it holds and will hold such other
assets included in REMIC I, in trust for the exclusive use and benefit of all
present and future Certificateholders. In addition, the Trustee hereby certifies
to each of the other parties hereto and the Mortgage Loan Seller that, as to
each Mortgage Loan listed on the Mortgage Loan Schedule, except as specifically
identified in the Schedule of Exceptions to Mortgage File Delivery attached
hereto as Exhibit B-2, (i) all documents specified in clauses (i), (ii), (iv),
(vii) and (viii) of the definition of "Mortgage File" are in its possession or
the possession of a Custodian on its behalf, (ii) all documents referred to in
clause (i) of this sentence received by it or any Custodian with respect to such
Mortgage Loan have been reviewed by it or by such Custodian on its behalf and
appear regular on their face (handwritten additions, changes or corrections
shall not constitute irregularities if initialed by the Mortgagor) and purport
to relate to such Mortgage Loan, and (iii) based on such examination and only as
to the foregoing documents, the information set forth in the Mortgage Loan
Schedule with respect to the items specified in clauses (ii), (v) and (vi)(B) of
the definition of "Mortgage Loan Schedule" accurately reflects the information
set forth in the Mortgage File.
(b) On or about the 90th day following the Closing Date (and, if any
exceptions are noted, again on or about the first anniversary of the Closing
Date), the Trustee shall, subject to Sections 2.01, 2.02(c) and 2.01(d), certify
in writing to each of the other parties hereto and the Mortgage Loan Seller
that, as to each Mortgage Loan listed on the Mortgage Loan Schedule (other than
any Mortgage Loan as to which a Liquidation Event has occurred or any Mortgage
Loan specifically identified in any exception report annexed thereto as not
being covered by such certification): (i) all documents specified in clauses (i)
through (v), (vii) and (viii) of the definition of "Mortgage File" are in its
possession, (ii) all documents received by it or any Custodian with respect to
such Mortgage Loan have been reviewed by it or by such Custodian on its behalf
and
49
appear regular on their face (handwritten additions, changes or corrections
shall not constitute irregularities if initialed by the Mortgagor) and purport
to relate to such Mortgage Loan, and (iii) based on the examinations referred to
in Section 2.02(a) above and this Section 2.02(b) and only as to the foregoing
documents, the information set forth in the Mortgage Loan Schedule with respect
to the items specified in clauses (ii), (v) and (vi)(B) of the definition of
"Mortgage Loan Schedule" accurately reflects the information set forth in the
Mortgage File.
(c) None of the Trustee, the Master Servicer, the Special Servicer or any
Custodian is under any duty or obligation to inspect, review or examine any of
the documents, instruments, certificates or other papers relating to the
Mortgage Loans delivered to it to determine that the same are valid, legal,
effective, genuine, enforceable, in recordable form, sufficient or appropriate
for the represented purpose or that they are other than what they purport to be
on their face.
(d) In performing any such review contemplated by subsections (a) and (b)
above, the Trustee may conclusively rely on the Depositor as to the purported
genuineness of any such document and any signature thereon. It is understood
that the scope of the Trustee's review of the Mortgage Files is limited solely
to confirming that the documents listed in definition of Mortgage File have been
received and further confirming that any and all documents delivered pursuant to
this Section 2.02 have been executed and relate to the Mortgage Loans identified
in the Mortgage Loan Schedule. The Trustee shall have no responsibility for
determining whether any document is valid and binding, whether the text of any
assignment or endorsement is in proper or recordable form, whether the requisite
recording of any document is in accordance with the requirements of any
applicable jurisdiction, or whether a blanket assignment is permitted in any
applicable jurisdiction.
(e) If any party hereto discovers that any document constituting a part of
a Mortgage File has not been properly executed, is missing, contains information
that does not conform in any respect with the corresponding information set
forth in the Mortgage Loan Schedule (and the terms of such document have not
been modified by written instrument contained in the Mortgage File), or does not
appear to be regular on its face (each, a "Document Defect"), such party shall
give prompt written notice thereof to the other parties thereto. Upon its
discovery or receipt of notice of any such Document Defect, the Master Servicer
shall notify the Mortgage Loan Seller. If any Document Defect is not corrected
within 90 days of such notice, and such Document Defect materially and adversely
affects the value of any Mortgage Loan or the interests of the
Certificateholders therein, the Master Servicer shall, on behalf of the Trust
Fund, exercise such rights and remedies as it may have hereunder, under the
Mortgage Loan Purchase Agreement with respect to such Document Defect in such
manner as it determines, in its reasonable good faith judgment, is in the best
interests of the Certificateholders (taken as a collective whole). Any and all
expenses incurred by the Master Servicer with respect to the foregoing shall
constitute Servicing Advances in respect of the affected Mortgage Loan.
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SECTION 2.03. Certain Repurchases of Mortgage Loans by the Mortgage Loan
Seller.
(a) If any party hereto or any Certificateholder discovers or receives
notice of a breach of any representation or warranty relating to any Mortgage
Loan set forth in the Mortgage Loan Purchase Agreement (a "Breach"), and such
Breach materially and adversely affects the value of such Mortgage Loan or the
interests of the Certificateholders therein, such Person shall give prompt
written notice to the parties hereto. Promptly upon becoming aware of any such
Breach, the Master Servicer shall request that the Mortgage Loan Seller, not
later than 90 days (or such other period as is provided in the Mortgage Loan
Purchase Agreement) from the receipt by the Mortgage Loan Seller of such notice,
cure such Breach in all material respects or repurchase the affected Mortgage
Loan at the applicable Purchase Price as, if and to the extent required by the
Mortgage Loan Purchase Agreement; provided that if (i) such Breach does not
relate to whether the affected Mortgage Loan is a "qualified mortgage" within
the meaning of Section 860(a)(3) of the Code, (ii) such Breach is capable of
being cured but not within such 90- day (or other) period, (iii) the Mortgage
Loan Seller has commenced and is diligently proceeding with the cure of such
Breach within such 90-day (or other) period, and (iv) the Mortgage Loan Seller
shall have delivered to the Trustee a certification executed on behalf of the
Mortgage Loan Seller by an officer thereof setting forth the reason that such
Breach is not capable of being cured within an initial 90-day (or other) period,
specifying what actions the Mortgage Loan Seller is pursuing in connection with
the cure thereof and stating that the Mortgage Loan Seller anticipates that such
Breach will be cured within an additional period not to exceed 90 more days,
then the Mortgage Loan Seller shall have up to an additional 90 days to complete
such cure. If the affected Mortgage Loan is to be repurchased, the Master
Servicer shall designate the Collection Account as the account to which funds in
the amount of the Purchase Price are to be wired, and the Master Servicer shall
promptly notify the Trustee when such deposit is made. Any such purchase of a
Mortgage Loan shall be on a whole loan, servicing released basis.
(b) Upon receipt of an Officer's Certificate from the Master Servicer to
the effect that the full amount of the Purchase Price for any Mortgage Loan
repurchased by the Mortgage Loan Seller as contemplated by Section 2.03(a) has
been deposited in the Collection Account, the Trustee shall release or cause to
be released to such purchaser or its designee, as appropriate, the related
Mortgage File, and shall execute and deliver such instruments of release,
transfer and/or assignment, in each case without recourse, as shall be provided
to it and are reasonably necessary to vest in such purchaser or its designee the
ownership of the repurchased Mortgage Loan. In connection with any such purchase
by the Mortgage Loan Seller, each of the Master Servicer and the Special
Servicer shall deliver any portion of the related Servicing File that is in its
possession to such purchaser or its designee.
(c) The Mortgage Loan Purchase Agreement provides the sole remedies
available to the Certificateholders, or the Trustee on behalf of the
Certificateholders, respecting any Breach. If the Mortgage Loan Seller defaults
on its obligations to repurchase any Mortgage Loan as contemplated by Section
2.03(a), the Master Servicer shall promptly notify the Trustee
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and the Certificateholders and shall take such actions with respect to the
enforcement of such repurchase obligations, including, without limitation, the
institution and prosecution of appropriate legal proceedings, as the Master
Servicer shall determine, in its reasonable good faith judgment, are in the best
interests of the Certificateholders (taken as a collective whole). Any and all
expenses incurred by the Master Servicer with respect to the foregoing shall
constitute Servicing Advances in respect of the affected Mortgage Loan.
SECTION 2.04. Representations and Warranties of the Depositor.
(a) The Depositor hereby represents and warrants to each of the other
parties hereto and for the benefit of the Certificateholders, as of the Closing
Date, that:
(i) The Depositor is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware.
(ii) The execution and delivery of this Agreement by the Depositor,
and the performance and compliance with the terms of this Agreement by the
Depositor, will not violate the Depositor's organizational documents or
constitute a default (or an event which, with notice or lapse of time, or
both, would constitute a default) under, or result in the breach of, any
material agreement or other instrument to which it is a party or by which
it is bound.
(iii) The Depositor has the full power and authority to own its
properties, to conduct its business as presently conducted by it and to
enter into and consummate all transactions contemplated by this Agreement,
has duly authorized the execution, delivery and performance of this
Agreement, and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid, legal
and binding obligation of the Depositor, enforceable against the Depositor
in accordance with the terms hereof, subject to (A) applicable bankruptcy,
insolvency, reorganization, moratorium and other laws affecting the
enforcement of creditors' rights generally, and (B) general principles of
equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law.
(v) The Depositor is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or demand
of any federal, state or local governmental or regulatory authority, which
violation, in the Depositor's reasonable good faith judgment, is likely to
affect materially and adversely either
52
the ability of the Depositor to perform its obligations under this
Agreement or the financial condition of the Depositor.
(vi) The transfer of the Mortgage Loans to the Trustee as contemplated
herein requires no regulatory or governmental approval, other than any such
approvals as have been obtained, and is not subject to any bulk transfer or
similar law in effect in any applicable jurisdiction.
(vii) No litigation is pending or, to the best of the Depositor's
knowledge, threatened against the Depositor that, if determined adversely
to the Depositor, would prohibit the Depositor from entering into this
Agreement or that, in the Depositor's reasonable good faith judgment, is
likely to materially and adversely affect either the ability of the
Depositor to perform its obligations under this Agreement or the financial
condition of the Depositor.
(viii) Immediately prior to the transfer of the Mortgage Loans to the
Trustee for the benefit of the Certificateholders pursuant to this
Agreement, the Depositor had good and marketable title to, and was the sole
owner and holder of, each Mortgage Loan; and the Depositor has full right
and authority to sell, assign and transfer the Mortgage Loans.
(ix) The Depositor is transferring the Mortgage Loans to the Trustee
for the benefit of the Certificateholders free and clear of any and all
liens, pledges, charges and security interests created by or through the
Depositor.
(b) The representations and warranties of the Depositor set forth in
Section 2.04(a) shall survive the execution and delivery of this Agreement and
shall inure to the benefit of the Persons for whose benefit they were made for
so long as the Trust Fund remains in existence. Upon discovery by any party
hereto of any breach of any of the foregoing representations and warranties, the
party discovering such breach shall given prompt written notice to the other
parties hereto.
SECTION 2.05. Representations and Warranties of the Master Servicer.
(a) The Master Servicer hereby represents and warrants to each of the other
parties hereto and for the benefit of the Certificateholders, as of the Closing
Date, that:
(i) The Master Servicer is a corporation duly organized, validly
existing and in good standing under the laws of the State of _____________
and is, and shall remain, in compliance with the laws of each State in
which any Mortgaged Property is located to the extent necessary to perform
its obligations under this Agreement.
53
(ii) The execution and delivery of this Agreement by the Master
Servicer, and the performance and compliance with the terms of this
Agreement by the Master Servicer, will not violate the Master Servicer's
organizational documents or constitute a default (or an event which, with
notice or lapse of time, or both, would constitute a default) under, or
result in the breach of, any material agreement or other instrument to
which it is a party or by which it is bound.
(iii) The Master Servicer has the full power and authority to enter
into and consummate all transactions contemplated by this Agreement, has
duly authorized the execution, delivery and performance of this Agreement,
and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid, legal
and binding obligation of the Master Servicer, enforceable against the
Master Servicer in accordance with the terms hereof, subject to (A)
applicable bankruptcy, insolvency, reorganization, moratorium and other
laws affecting the enforcement of creditors' rights generally, and (B)
general principles of equity, regardless of whether such enforcement is
considered in a proceeding in equity or at law.
(v) The Master Servicer is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or demand
of any federal, state or local governmental or regulatory authority, which
violation, in the Master Servicer's reasonable good faith judgment, is
likely to affect materially and adversely either the ability of the Master
Servicer to perform its obligations under this Agreement or the financial
condition of the Master Servicer.
(vi) No litigation is pending or, to the best of the Master Servicer's
knowledge, threatened against the Master Servicer that, if determined
adversely to the Master Servicer, would prohibit the Master Servicer from
entering into this Agreement or that, in the Master Servicer's reasonable
good faith judgment, is likely to materially and adversely affect either
the ability of the Master Servicer to perform its obligations under this
Agreement or the financial condition of the Master Servicer.
(vii) Each officer, director, employee, consultant or advisor of the
Master Servicer with responsibilities concerning the servicing and
administration of any Mortgage Loan is covered by errors and omissions
insurance in the amounts and with the coverage required by Section 3.07(c).
Neither the Master Servicer nor any of its officers, directors, employees,
consultants or advisors involved in the
54
servicing or administration of Mortgage Loans has been refused such
coverage or insurance.
(viii) No regulatory or governmental approval is required for the
consummation by the Master Servicer of the transactions contemplated
herein, other than any such approvals as have been obtained.
(b) The representations and warranties of the Master Servicer set forth in
Section 2.05(a) shall survive the execution and delivery of this Agreement and
shall inure to the benefit of the Persons for whose benefit they were made for
so long as the Trust Fund remains in existence. Upon discovery by any party
hereto of any breach of any of the foregoing representations and warranties, the
party discovering such breach shall given prompt written notice to the other
parties hereto.
(c) Any successor Master Servicer shall be deemed to have made, as of the
date of its succession, each of the representations and warranties set forth in
Section 2.05(a), subject to such appropriate modifications to the representation
and warranty set forth in Section 2.05(a)(i) to accurately reflect such
successor's jurisdiction of organization and whether it is a corporation,
partnership, bank, association or other type of organization.
SECTION 2.06. Representations and Warranties of the Special Servicer.
(a) The Special Servicer hereby represents and warrants to each of the
other parties hereto and for the benefit of the Certificateholders, as of the
Closing Date, that:
(i) The Special Servicer is a limited partnership duly organized,
validly existing and in good standing under the laws of the State of
____________ and is in compliance with the laws of each State in which any
Mortgaged Property is located to the extent necessary to perform its
obligations under this Agreement.
(ii) The execution and delivery of this Agreement by the Special
Servicer, and the performance and compliance with the terms of this
Agreement by the Special Servicer, will not violate the Special Servicer's
organizational documents or constitute a default (or an event which, with
notice or lapse of time, or both, would constitute a default) under, or
result in the breach of, any material agreement or other instrument to
which it is a party or by which it is bound.
(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.
55
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid, legal
and binding obligation of the Special Servicer, enforceable against the
Special Servicer in accordance with the terms hereof, subject to (A)
applicable bankruptcy, insolvency, reorganization, moratorium and other
laws affecting the enforcement of creditors' rights generally, and (B)
general principles of equity, regardless of whether such enforcement is
considered in a proceeding in equity or at law.
(v) The Special Servicer is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or demand
of any federal, state or local governmental or regulatory authority, which
violation, in the Special Servicer's reasonable good faith judgment, is
likely to affect materially and adversely either the ability of the Special
Servicer to perform its obligations under this Agreement or the financial
condition of the Special Servicer.
(vi) No litigation is pending or, to the best of the Special
Servicer's knowledge, threatened against the Special Servicer that, if
determined adversely to the Special Servicer, would prohibit the Special
Servicer from entering into this Agreement or that, in the Special
Servicer's reasonable good faith judgment, is likely to materially and
adversely affect either the ability of the Special Servicer to perform its
obligations under this Agreement or the financial condition of the Special
Servicer.
(vii) Each officer, director, employee, consultant or advisor of the
Special Servicer with responsibilities concerning the servicing and
administration of any Specially Serviced Mortgage Loan or REO Property is
covered by errors and omissions insurance in the amounts and with the
coverage required by Section 3.07(c). Neither the Special Servicer nor any
of its officers, directors, employees, consultants or advisors involved in
the servicing or administration of Mortgage Loans has been refused such
coverage or insurance.
(viii) No regulatory or governmental approval is required for the
consummation by the Special Servicer of the transactions contemplated
herein, other than any such approvals as have been obtained.
(b) The representations and warranties of the Special Servicer set forth in
Section 2.06(a) shall survive the execution and delivery of this Agreement and
shall inure to the benefit of the Persons for whose benefit they were made for
so long as the Trust Fund remains in existence. Upon discovery by any party
hereto of any breach of any of the foregoing representations and warranties, the
party discovering such breach shall given prompt written notice to the other
parties hereto.
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(c) Any successor Special Servicer shall be deemed to have made, as of the
date of its succession, each of the representations and warranties set forth in
Section 2.06(a), subject to such appropriate modifications to the representation
and warranty set forth in Section 2.06(a)(i) to accurately reflect such
successor's jurisdiction of organization and whether it is a corporation,
partnership, bank, association or other type of organization.
SECTION 2.07. Representations, Warranties and Covenants of the Trustee and
the REMIC Administrator.
(a) The Bank, both in its capacity as Trustee and its capacity as REMIC
Administrator, hereby represents and warrants to each of the other parties
hereto and for the benefit of the Certificateholders, as of the Closing Date,
that:
(i) The Bank is a _____________ corporation duly organized, validly
existing and in good standing under the laws of the State of _____________
and is, shall be or, if necessary, shall appoint a co-trustee that is, in
compliance with the laws of each State in which any Mortgaged Property is
located to the extent necessary to ensure the enforceability of each
Mortgage Loan and to perform its obligations under this Agreement.
(ii) The execution and delivery of this Agreement by the Bank, and the
performance and compliance with the terms of this Agreement by the Bank,
will not violate the Bank's organizational documents or constitute a
default (or an event which, with notice or lapse of time, or both, would
constitute a default) under, or result in a material breach of, any
material agreement or other instrument to which it is a party or by which
it is bound.
(iii) The Bank has the full power and authority to enter into and
consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement, and
has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid, legal
and binding obligation of the Bank, enforceable against the Bank in
accordance with the terms hereof, subject to (A) applicable bankruptcy,
insolvency, reorganization, moratorium and other laws affecting the
enforcement of creditors' rights generally and the rights of creditors of
banks, and (B) general principles of equity, regardless of whether such
enforcement is considered in a proceeding in equity or at law.
(v) The Bank is not in violation of, and its execution and delivery of
this Agreement and its performance and compliance with the terms of this
Agreement will not constitute a violation of, any law, any order or decree
of any court or
57
arbiter, or any order or regulation of any federal, state or local
governmental or regulatory authority, which violation, in the Bank's
reasonable good faith judgment, is likely to affect materially and
adversely either the ability of the Bank to perform its obligations under
this Agreement or the financial condition of the Bank.
(vi) No litigation is pending or, to the best of the Bank's knowledge,
threatened against the Bank that, if determined adversely to the Bank,
would prohibit the Bank from entering into this Agreement or that, in the
Bank's reasonable good faith judgment, is likely to materially and
adversely affect either the ability of the Bank to perform its obligations
under this Agreement or the financial condition of the Bank.
(vii) No regulatory or governmental approval is required for the
consummation by the Bank of the transactions contemplated herein, other
than any such approvals as have been obtained.
(b) The representations, warranties and covenants of the Bank set forth in
Section 2.07(a) shall survive the execution and delivery of this Agreement and
shall inure to the benefit of the Persons for whose benefit they were made for
so long as the Trust Fund remains in existence. Upon discovery by any party
hereto of any breach of any of the foregoing representations, warranties and
covenants, the party discovering such breach shall given prompt written notice
to the other parties hereto.
(c) Any successor Trustee or REMIC Administrator shall be deemed to have
made, as of the date of its succession, each of the representations, warranties
and covenants set forth in Section 2.07(a), subject to such appropriate
modifications to the representation and warranty set forth in Section 2.07(a)(i)
to accurately reflect such successor's jurisdiction of organization and whether
it is a corporation, partnership, bank, association or other type of
organization. In any such case, the term "Bank" shall be deemed to mean Trustee
or REMIC Administrator, as appropriate.
SECTION 2.08. [RESERVED]
SECTION 2.09. Execution, Authentication and Delivery of Class R-I
Certificates; Creation of REMIC I Regular Interests.
Subject to Sections 2.01 and 2.02, the Trustee hereby acknowledges the
assignment to it of the assets included in REMIC I. Concurrently with such
assignment and in exchange therefor, the Trustee, pursuant to the written
request of the Depositor executed by an officer of the Depositor, shall execute,
authenticate and deliver to or upon the order of the Depositor, the Class R-I
Certificates in authorized denominations. The interests evidenced by the Class
R-I
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Certificates, together with the REMIC I Regular Interests, constitute the entire
beneficial ownership of REMIC I. The rights of the Class R-I Certificateholders
and REMIC II (as holder of the REMIC I Regular Interests) to receive
distributions from the proceeds of REMIC I in respect of the Class R-I
Certificates and the REMIC I Regular Interests, respectively, and all ownership
interests of the Class R-I Certificateholders and REMIC II in and to such
distributions, shall be as set forth in this Agreement.
SECTION 2.10. Conveyance of REMIC I Regular Interests; Acceptance of REMIC
II by Trustee.
The Depositor, as of the Closing Date, and concurrently with the execution
and delivery of this Agreement, does hereby assign without recourse all the
right, title and interest of the Depositor in and to the REMIC I Regular
Interests to the Trustee for the benefit of the Holders of the Class R-II
Certificates and the REMIC III Certificates. The Trustee acknowledges the
assignment to it of the REMIC I Regular Interests and declares that it holds and
will hold the same in trust as REMIC II for the exclusive use and benefit of all
present and future Holders of the Class R-II Certificates and the REMIC III
Certificates.
SECTION 2.11. Execution, Authentication and Delivery of Class R-II
Certificates; Creation of REMIC II Regular Interests.
Concurrently with the assignment to it of the REMIC I Regular Interests and
in exchange therefor, the Trustee, pursuant to the written request of the
Depositor executed by an officer of the Depositor, shall execute, authenticate
and deliver to or upon the order of the Depositor, the Class R-II Certificates
in authorized denominations. The interests evidenced by the Class R-II
Certificates, together with the REMIC II Regular Interests, constitute the
entire beneficial ownership of REMIC II. The rights of the Class R-II
Certificateholders and REMIC III (as holder of the REMIC II Regular Interests)
to receive distributions from the proceeds of REMIC II in respect of the Class
R-II Certificates and the REMIC II Regular Interests, respectively, and all
ownership interests of the Class R-II Certificateholders and REMIC III in and to
such distributions, shall be as set forth in this Agreement.
SECTION 2.12. Conveyance of REMIC II Regular Interests; Acceptance of REMIC
III by Trustee.
The Depositor, as of the Closing Date, and concurrently with the execution
and delivery of this Agreement, does hereby assign without recourse all the
right, title and interest of the Depositor in and to the REMIC II Regular
Interests to the Trustee for the benefit of the Holders of the REMIC III
Certificates. The Trustee acknowledges the assignment to it of the REMIC II
Regular Interests and declares that it holds and will hold the same in trust as
REMIC III for the exclusive use and benefit of all present and future Holders of
the REMIC III Certificates.
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SECTION 2.13. Execution, Authentication and Delivery of REMIC III
Certificates.
Concurrently with the assignment to it of the REMIC II Regular Interests
and in exchange therefor, the Trustee shall execute, authenticate and deliver to
or upon the order of the Depositor, the REMIC III Certificates in authorized
denominations evidencing the entire beneficial ownership of REMIC III. The
rights of the Holders of the respective Classes of REMIC III Certificates to
receive distributions from the proceeds of REMIC III in respect of their REMIC
III Certificates, and all ownership interests of such Holders in and to such
distributions, shall be as set forth in this Agreement.
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ARTICLE III
ADMINISTRATION AND SERVICING
OF THE TRUST FUND
SECTION 3.01. Administration of the Mortgage Loans.
(a) Each of the Master Servicer and the Special Servicer shall service and
administer the Mortgage Loans that it is obligated to service and administer
pursuant to this Agreement, for the benefit of the Certificateholders, in
accordance with any and all applicable laws and the terms of this Agreement, the
Insurance Policies and the respective Mortgage Loans and, to the extent
consistent with the foregoing, in accordance with the Servicing Standard.
Without limiting the foregoing, and subject to Section 3.21, (i) the Master
Servicer shall service and administer all Mortgage Loans as to which no
Servicing Transfer Event has occurred and all Corrected Mortgage Loans, and (ii)
the Special Servicer shall service and administer (x) each Mortgage Loan (other
than a Corrected Mortgage Loan) as to which a Servicing Transfer Event has
occurred, and (y) each REO Property; provided, however, that the Special
Servicer shall provide certain services with respect to Mortgage Loans that are
not Specially Serviced Mortgage Loans, as specifically provided herein, and the
Master Servicer shall continue to collect information and prepare all reports to
the Trustee required hereunder with respect to any Specially Serviced Mortgage
Loans and REO Properties (and the related REO Loans), and further to render such
incidental services with respect to any Specially Serviced Mortgage Loans and
REO Properties as are specifically provided for herein. The Master Servicer
shall not, on behalf of the Trustee, obtain title to a Mortgaged Property.
(b) Subject to Section 3.01(a), the Master Servicer and the Special
Servicer each shall have full power and authority, acting alone, to do or cause
to be done any and all things in connection with such servicing and
administration which it may deem necessary or desirable. Without limiting the
generality of the foregoing, each of the Master Servicer and the Special
Servicer, in its own name, with respect to each of the Mortgage Loans it is
obligated to service hereunder, is hereby authorized and empowered by the
Trustee to execute and deliver, on behalf of the Certificateholders and the
Trustee or any of them: (i) any and all financing statements, continuation
statements and other documents or instruments necessary to maintain the lien
created by any Mortgage or other security document in the related Mortgage File
on the related Mortgaged Property and related collateral; and (ii) any and all
instruments of satisfaction or cancellation, or of partial or full release or
discharge, and all other comparable instruments. In addition, without limiting
the generality of the foregoing, the Special Servicer is authorized and
empowered by the Trustee to execute and deliver, in accordance with the
Servicing Standard and subject to Sections 3.08 and 3.20, any and all
modifications, waivers, amendments or consents to or with respect to any
documents contained in the related Mortgage File. Subject to Section 3.10, the
Trustee shall, at the written request of a Servicing Officer of the Master
Servicer or the Special Servicer, furnish, or cause to be so furnished, to the
Master Servicer or the Special Servicer, as appropriate, any limited powers of
attorney and other documents necessary or
61
appropriate to enable it to carry out its servicing and administrative duties
hereunder; provided, however, that the Trustee shall not be held liable for any
misuse of any such power of attorney by the Master Servicer or the Special
Servicer.
(c) The relationship of each of the Master Servicer and the Special
Servicer to the Trustee under this Agreement is intended by the parties to be
that of an independent contractor and not that of a joint venturer, partner or
agent.
SECTION 3.02. Collection of Mortgage Loan Payments.
Each of the Master Servicer or the Special Servicer shall undertake
reasonable efforts to collect all payments called for under the terms and
provisions of the Mortgage Loans it is obligated to service hereunder and shall,
to the extent such procedures shall be consistent with this Agreement, follow
such collection procedures as are consistent with the Servicing Standard. In
addition, if a Mortgagor becomes delinquent with respect to any Monthly Payment
(including, without limitation, a Balloon Payment), the Master Servicer shall
promptly so notify the Special Servicer, shall keep the Special Servicer
apprised of all collection and customer service matters with respect to the
related Mortgage Loan and shall furnish to the Special Servicer copies of all
written communications between the Master Servicer and such Mortgagor.
SECTION 3.03. Collection of Taxes, Assessments and Similar Items; Servicing
Accounts; Reserve Accounts.
(a) The Master Servicer shall establish and maintain one or more accounts
(the "Servicing Accounts"), into which all Escrow Payments with respect to the
Mortgage Loans shall be deposited and retained. Subject to any terms of the
related Mortgage Loan documents that specify the nature of the account in which
Escrow Payments shall be held, each Servicing Account shall be an Eligible
Account. Withdrawals of amounts so collected in respect of any Mortgage Loan
(and interest earned thereon) from a Servicing Account may be made only: (i) to
effect payment of real estate taxes, assessments, insurance premiums, ground
rents (if applicable) and comparable items in respect of the related Mortgaged
Property; (ii) to reimburse the Master Servicer, the Special Servicer or the
Trustee, as applicable, for any unreimbursed Servicing Advances made thereby to
cover any of the items described in the immediately preceding clause (i); (iii)
to refund to the related Mortgagor any sums as may be determined to be overages;
(iv) to pay interest, if required and as described below, to the related
Mortgagor on balances in the Servicing Account (or, if and to the extent not
payable to the related Mortgagor, to pay such interest to the Master Servicer);
or (v) to clear and terminate the Servicing Account at the termination of this
Agreement in accordance with Section 9.01. The Master Servicer shall pay or
cause to be paid to the Mortgagors interest earned on the investment of funds in
Servicing Accounts maintained thereby, if and to the extent required by law or
the terms of the related Mortgage Loan. If the Master Servicer shall deposit in
a Servicing Account any amount not required to be deposited therein, it may at
any time withdraw such amount from such Servicing Account, any provision herein
to the contrary notwithstanding. Promptly after any Escrow
62
Payments are received by the Special Servicer from any Mortgagor, and in any
event within one Business Day after any such receipt, the Special Servicer shall
remit such Escrow Payments to the Servicing Account or Servicing Accounts
specified by the Master Servicer.
(b) Each of the Master Servicer and the Special Servicer shall, as to those
Mortgage Loans it is obligated to service hereunder, (i) maintain accurate
records with respect to the related Mortgaged Property reflecting the status of
real estate taxes, assessments and other similar items that are or may become a
lien thereon and the status of insurance premiums and any ground rents payable
in respect thereof and (ii) use reasonable efforts to obtain, from time to time,
all bills for the payment of such items (including renewal premiums) and shall
effect payment thereof prior to the applicable penalty or termination date. The
Master Servicer, for purposes of effecting any such payment for which it is
responsible, shall disburse Escrow Payments as allowed under the terms of the
related Mortgage Loan, and, for purposes of effecting any such payment for which
the Special Servicer is responsible, the Master Servicer, upon the written
request of the Special Servicer, shall apply Escrow Payments as allowed under
the terms of the related Mortgage Loan; provided, however, that if such Mortgage
Loan does not require the related Mortgagor to escrow for the payment of real
estate taxes, assessments, insurance premiums, ground rents (if applicable) and
similar items, each of the Master Servicer and the Special Servicer shall, as to
those Mortgage Loans it is obligated to service hereunder, enforce the
requirement of the related Mortgage that the Mortgagor make payments in respect
of such items at the time they first become due.
(c) In accordance with the Servicing Standard, each of the Master Servicer
and the Special Servicer shall, as to those Mortgage Loans it is obligated to
service hereunder, advance with respect to the related Mortgaged Property, all
such funds as are necessary for the purpose of effecting the payment of (i) real
estate taxes, assessments and other similar items, (ii) ground rents (if
applicable), and (iii) premiums on Insurance Policies, in each instance if and
to the extent Escrow Payments (if any) collected from the related Mortgagor are
insufficient to pay such item when due and the related Mortgagor has failed to
pay such item on a timely basis, and provided that the particular advance would
not, if made, constitute a Nonrecoverable Servicing Advance. All such advances
shall be reimbursable in the first instance from related collections from the
Mortgagors and further as provided in Section 3.05(a) and, if made by the
Special Servicer, Section 3.19(b). No costs incurred by the Master Servicer or
the Special Servicer in effecting the payment of real estate taxes, assessments
and, if applicable, ground rents on or in respect of such Mortgaged Properties
shall, for purposes hereof, including, without limitation, calculating monthly
distributions to Certificateholders, be added to the unpaid principal balances
of the related Mortgage Loans, notwithstanding that the terms of such Mortgage
Loans so permit.
(d) The Master Servicer shall establish and maintain, as applicable, one or
more accounts (the "Reserve Accounts"), into which all Reserve Funds, if any,
shall be deposited and retained. As and to the extent appropriate, withdrawals
of amounts so deposited may be made to pay for, or to reimburse the related
Mortgagor in connection with, the related repairs, replacements, capital
improvements and/or environmental testing and remediation at the related
63
Mortgaged Property if such repairs, replacements, capital improvements and/or
environmental testing and remediation have been completed, and such withdrawals
are made, in accordance with the Servicing Standard and the terms of the related
Mortgage Note, Mortgage and any agreement with the related Mortgagor governing
such Reserve Funds. Subject to the terms of the related Mortgage Loan documents,
each Reserve Account shall be an Eligible Account.
(e) To the extent an operations and maintenance plan is required to be
established and executed pursuant to the terms of a Mortgage Loan, the Master
Servicer shall request from the Mortgagor written confirmation thereof within a
reasonable time after the later of the Closing Date and the date as of which
such plan is required to be established or completed. To the extent any action
or remediations are required to have been taken or completed pursuant to the
terms of the Mortgage Loan, the Master Servicer shall request from the Mortgagor
written confirmation of such action and remediations within a reasonable time
after the later of the Closing Date and the date as of which such action or
remediations are required to be or to have been taken or completed. To the
extent a Mortgagor shall fail to promptly respond to any inquiry described in
this Section 3.03(e), the Master Servicer shall determine whether the related
Mortgagor has failed to perform its obligations under the related Mortgage Loan.
SECTION 3.04. Collection Account and Distribution Account.
(a) The Master Servicer shall establish and maintain one or more accounts
(collectively, the "Collection Account"), held on behalf of the Trustee in trust
for the benefit of the Certificateholders. The Collection Account shall be an
Eligible Account. The Master Servicer shall deposit or cause to be deposited in
the Collection Account, upon receipt (in the case of payments by Mortgagors or
other collections on the Mortgage Loans) or as otherwise required hereunder, the
following payments and collections received or made by or on behalf of the
Master Servicer in respect of the Mortgage Pool subsequent to the Cut-off Date
(other than in respect of principal and interest on the Mortgage Loans due and
payable on or before the Cut-off Date, which payments shall be delivered
promptly to the Mortgage Loan Seller or its designee, with negotiable
instruments endorsed as necessary and appropriate without recourse):
(i) all payments on account of principal of the Mortgage Loans,
including, without limitation, Principal Prepayments;
(ii) all payments on account of interest on the Mortgage Loans and all
late payment charges and charges for checks returned for insufficient funds
collected on the Mortgage Loans;
(iii) all Prepayment Premiums and Yield Maintenance Premiums received
in respect of any Mortgage Loan;
64
(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 Collection Account;
(vi) any amounts required to be deposited by the Master Servicer or
the Special Servicer pursuant to Section 3.07(b) in connection with losses
resulting from a deductible clause in a blanket hazard policy;
(vii) any amounts required to be transferred from any REO Account
pursuant to Section 3.16(c); and
(viii) insofar as they do not constitute Escrow Payments, any amounts
paid by a Mortgagor specifically to cover items for which a Servicing
Advance has been made.
The foregoing requirements for deposit in the Collection Account shall be
exclusive. Without limiting the generality of the foregoing, actual payments
from Mortgagors in the nature of Escrow Payments, and amounts that the Master
Servicer and the Special Servicer are entitled to retain as additional servicing
compensation pursuant to Section 3.11(b) and Section 3.11(d), respectively, need
not be deposited by the Master Servicer in the Collection Account. If the Master
Servicer shall deposit in the Collection Account any amount not required to be
deposited therein, it may at any time withdraw such amount from the Collection
Account, any provision herein to the contrary notwithstanding. The Master
Servicer shall promptly deliver to the Special Servicer, as additional servicing
compensation in accordance with Section 3.11(d), _____% of any assumption fees
and _____% of any modification fees collected by the Master Servicer with
respect to Mortgage Loans other than Specially Serviced Mortgage Loans and
_____% of any assumption fees, modification fees and Net Penalty Charges
received by the Master Servicer with respect to Specially Serviced Mortgage
Loans. The Collection Account shall be maintained as a segregated account,
separate and apart from trust funds created for mortgage pass-through
certificates of other series serviced 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 Collection Account in accordance with
the second preceding paragraph, unless the Special Servicer determines,
consistent with the Servicing Standard, that a particular item should not be
deposited because of a restrictive endorsement or other appropriate reason. Any
such amounts received by the Special Servicer with respect to an REO Property
shall be deposited by the Special Servicer
65
into the REO Account and remitted to the Master Servicer for deposit into the
Collection Account pursuant to Section 3.16(c). With respect to any such amounts
paid by check to the order of the Special Servicer, the Special Servicer shall
endorse such check to the order of the Master Servicer, without recourse or
warranty, and shall deliver promptly, but in no event later than one Business
Day after receipt, any such check to the Master Servicer by overnight courier,
unless the Special Servicer determines, consistent with the Servicing Standard,
that a particular item cannot be so endorsed and delivered because of a
restrictive endorsement or other appropriate reason.
(b) The Trustee shall establish and maintain one or more trust accounts
(collectively, the "Distribution Account") to be held in trust for the benefit
of the Certificateholders. The Distribution Account shall be an Eligible
Account. On each Master Servicer Remittance Date, the Master Servicer shall
deliver to the Trustee, for deposit in the Distribution Account, an aggregate
amount of immediately available funds equal to the Master Servicer Remittance
Amount for such Master Servicer Remittance Date.
In addition, the Master Servicer shall, as and when required hereunder,
deliver to the Trustee for deposit in the Distribution Account:
(i) any P&I Advances required to be made by the Master Servicer in
accordance with Section 4.03(a);
(ii) any Compensating Interest Payments required to be made by the
Master Servicer pursuant to Section 3.19(a); and
(iii) any Liquidation Proceeds paid by the Master Servicer or Special
Servicer in connection with the purchase of all of the Mortgage Loans and
any REO Properties pursuant to Section 9.01, exclusive of the portion of
such Liquidation Proceeds required to be deposited in the Collection
Account pursuant to Section 9.01.
Any amounts paid by any party hereto to indemnify the Trust Fund pursuant
to any provision hereof shall be delivered to the Trustee for deposit in the
Distribution Account. The Trustee shall, upon receipt, deposit in the
Distribution Account any and all amounts received or, pursuant to Section 4.03,
advanced by the Trustee that are required by the terms of this Agreement to be
deposited therein.
(c) Funds in the Collection Account may be invested in Permitted
Investments in accordance with the provisions of Section 3.06. Funds in the
Distribution Account shall remain uninvested. The Master Servicer shall give
notice to the other parties hereto of the location of the Collection Account as
of the Closing Date and of the new location of the Collection Account prior to
any change thereof. The Trustee shall give notice to the other parties hereto of
the location of the Distribution Account as of the Closing Date and of the new
location of the Distribution Account prior to any change thereof.
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SECTION 3.05. Permitted Withdrawals From the Collection Account and the
Distribution Account.
(a) The Master Servicer may, from time to time, make withdrawals from the
Collection Account for any of the following purposes (the order set forth below
not constituting an order of priority for such withdrawals):
(i) to remit to the Trustee for deposit in the Distribution Account
the Master Servicer Remittance Amount for each Master Servicer Remittance
Date and any amounts that may be applied to make P&I Advances pursuant to
Section 4.03(a);
(ii) to reimburse itself or the Trustee, as applicable, for
xxxxxxxxxxxx X&X Advances made thereby, the Master Servicer's and the
Trustee's respective rights to reimbursement pursuant to this clause (ii)
with respect to any P&I Advance (other than Nonrecoverable Advances, which
are reimbursable pursuant to clause (vii) below) being limited to amounts
that represent Late Collections of interest and principal received in
respect of the particular Mortgage Loan or REO Loan as to which such P&I
Advance was made (net of the related Master Servicing Fees and Workout
Fees);
(iii) to pay to itself earned and unpaid Master Servicing Fees in
respect of each Mortgage Loan and REO Loan, the Master Servicer's right to
payment pursuant to this clause (iii) with respect to any Mortgage Loan or
REO Loan being limited to amounts received on or in respect of such
Mortgage Loan (whether in the form of payments, Liquidation Proceeds or
Insurance Proceeds) or such REO Loan (whether in the form of REO Revenues,
Liquidation Proceeds or Insurance Proceeds) that are allocable as interest
thereon;
(iv) to pay to the Special Servicer, out of general collections on the
Mortgage Loans and any REO Properties, earned and unpaid Property Servicing
Fees in respect of each Mortgage Loan and REO Loan and Special Servicing
Fees in respect of each Specially Serviced Mortgage Loan and REO Loan;
(v) to pay the Special Servicer (or, if applicable, any predecessor
thereto) earned and unpaid Workout Fees and Liquidation Fees to which it is
entitled pursuant to, and from the sources contemplated by, the third and
fourth paragraphs of Section 3.11(c);
(vi) to reimburse itself, the Special Servicer or the Trustee, as
applicable, for any unreimbursed Servicing Advances made thereby, the
Master Servicer's, the Special Servicer's and the Trustee's respective
rights to reimbursement pursuant to this clause (vi) with respect to any
Servicing Advance
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being limited to (A) payments made by the related Mortgagor that are
allocable to cover the item in respect of which such Servicing Advance was
made, and (B) Liquidation Proceeds, Insurance Proceeds and, if applicable,
REO Revenues received in respect of the particular Mortgage Loan or REO
Property as to which such Servicing Advance was made;
(vii) to reimburse itself, the Special Servicer or the Trustee, as
applicable, out of general collections on the Mortgage Loans and any REO
Properties, for any unreimbursed Advances made thereby that have been
determined to be Nonrecoverable Advances;
(viii) to pay itself, the Special Servicer or the Trustee, as
applicable, any Advance Interest due and owing thereto, the Master
Servicer's, the Special Servicer's and the Trustee's respective rights to
payment pursuant to this clause (viii) being limited to Penalty Charges
collected in respect of the Mortgage Loan or REO Loan as to which the
related Advances were made thereby;
(ix) at or following such time as it reimburses itself, the Special
Servicer or the Trustee, as applicable, for any unreimbursed Advance
pursuant to clause (ii), (vi) or (vii) above or Section 3.03(c), and
insofar as payment has not already been made pursuant to clause (viii)
above, to pay itself, the Special Servicer or the Trustee, as the case may
be, out of general collections on the Mortgage Loans and any REO
Properties, any related Advance Interest accrued and payable on such
Advance;
(x) to reimburse the Trustee, out of general collections on the
Mortgage Loans and any REO Properties, for any advance made thereby
pursuant to Section 4.03(a) to cover any portion of a Master Servicer
Remittance Amount not remitted by the Master Servicer to the Trustee on or
before 10:00 a.m., New York City time, on the Business Day immediately
preceding the related Distribution Date, together with any interest accrued
and payable on such advance at the Reimbursement Rate;
(xi) to pay itself, as additional servicing compensation in accordance
with Section 3.11(b), (A) interest and investment income earned in respect
of amounts held in the Collection Account as provided in Section 3.06(b),
but only to the extent of the Net Investment Earnings with respect to the
Collection Account for any Collection Period, (B) any Prepayment Interest
Excesses collected on any of the Mortgage Loans and (C) to the extent
allocable to the period when the related Mortgage Loan did not constitute a
Specially Serviced Mortgage Loan or REO Property, any Net Penalty Charges
collected on the Mortgage Loans;
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(xii) to pay to the Special Servicer, as additional servicing
compensation in accordance with Section 3.11(b), any Net Penalty Charges
collected on the Mortgage Loans and not otherwise payable to the Master
Servicer pursuant to clause (xi) above;
(xiii) to pay itself, the Special Servicer, the REMIC Administrator,
the Depositor, or any of their respective directors, officers, employees
and agents, as the case may be, out of general collections on the Mortgage
Loans and any REO Properties, any amounts payable to any such Person
pursuant to Section 6.03;
(xiv) to pay, out of general collections on the Mortgage Loans and any
REO Properties, for (A) the advice of counsel or financial advisers
contemplated by Section 3.17(a), (B) the cost of the Opinion of Counsel
contemplated by 11.02(a), (C) the cost of recording this Agreement in
accordance with Section 11.02(a), (D) any expense incurred by the Trustee
pursuant to Section 3.23(b) in connection with obtaining information from
the Depository or Depository Participants regarding any Book-Entry
Certificate, (E) the expense of any consultant hired by the Trustee
pursuant to Section 3.18(e) and (F) any expense incurred by the Trustee in
connection with sending notices to Certificateholders and/or Certificate
Owners pursuant to Section 3.24(a);
(xv) to pay itself, the Special Servicer, the Mortgage Loan Seller or
any other Person, as the case may be, with respect to each Mortgage Loan,
if any, previously purchased by such Person pursuant to this Agreement, all
amounts received thereon subsequent to the date of purchase;
(xvi) to pay any cost or expense in respect of any Mortgage Loan or
REO Property that the Master Servicer, the Special Servicer or the Trustee,
as the case may be, has incurred pursuant to Section 3.11(h); and
(xvii) to clear and terminate the Collection Account at the
termination of this Agreement pursuant to Section 9.01.
If amounts on deposit in the Collection Account at any particular time
(after withdrawing any portion of such amounts deposited in the Collection
Account in error) are insufficient to satisfy all payments, reimbursements and
remittances to be made therefrom as set forth in clauses (ii) through (xvi)
above, then the corresponding withdrawals from the Collection Account shall be
made in the following priority and subject to the following rules: (x) if the
payment, reimbursement or remittance is to be made from a specific source of
funds, then such payment, reimbursement or remittance shall be made from that
specific source of funds on a pro rata basis with any and all other payments,
reimbursements and remittances to be made from such specific source of funds;
and (y) if the payment, reimbursement or remittance can be made from any funds
on deposit in the Collection Account, then (following any withdrawals made from
the
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Collection Account in accordance with the immediately preceding clause (x)
above) such payment, reimbursement or remittance shall be made from such general
funds remaining on a pro rata basis with any and all other payments,
reimbursements or remittances to be made from such general funds.
The Master Servicer shall keep and maintain separate accounting records, on
a loan- by-loan and property-by-property basis when appropriate, in connection
with any withdrawal from the Collection Account pursuant to any of clauses (ii)
through (xvi) above.
The Master Servicer shall pay to the Special Servicer (or to third party
contractors at the direction of the Special Servicer) from the Collection
Account amounts permitted to be paid to it (or to such third party contractors)
therefrom promptly upon receipt of a certificate of a Servicing Officer of the
Special Servicer describing the item and amount to which the Special Servicer
(or such third party contractors) is entitled. The Master Servicer may rely
conclusively on any such certificate and shall have no duty to re-calculate the
amounts stated therein. The Special Servicer shall keep and maintain separate
accounting for each Specially Serviced Mortgage Loan and REO Property, on a
loan-by-loan and property-by-property basis, for the purpose of justifying any
request for withdrawal from the Collection Account.
(b) The Trustee shall, from time to time, make withdrawals from the
Distribution Account for each of the following purposes (the order set forth
below not constituting an order of priority for such withdrawals):
(i) to make distributions to Certificateholders on each Distribution
Date pursuant to Section 4.01;
(ii) to pay itself or any of its directors, officers, employees and
agents, as the case may be, any amounts payable or reimbursable to any such
Person pursuant to Section 8.05;
(iii) to pay for the cost of the Opinions of Counsel sought by the
Trustee as contemplated by Section 11.01(a) or 11.01(c) in connection with
any amendment to this Agreement requested by the Trustee which amendment is
in furtherance of the rights and interests of Certificateholders;
(iv) to pay any and all federal, state and local taxes imposed on any
of the REMICs created hereunder or on the assets or transactions of any
such REMIC, together with all incidental costs and expenses, and any and
all expenses relating to tax audits, if and to the extent that either (A)
none of it, the Master Servicer, the Special Servicer or the REMIC
Administrator are liable therefor pursuant to Section 10.01(d) and/or
Section 10.01(h) or (B) any such Person that may be so liable has failed to
timely make the required payment; and
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(v) to clear and terminate the Distribution Account at the termination
of this Agreement pursuant to Section 9.01.
(c) The Trustee, the Depositor, the Master Servicer and the Special
Servicer shall in all cases have a right prior to the Certificateholders to any
particular funds on deposit in the Collection Account and the Distribution
Account from time to time for the reimbursement or payment of compensation,
Advances (with interest thereon at the Reimbursement Rate) and their respective
expenses hereunder (or, in the case of such expenses, to have such funds paid
directly to third party contractors from any invoices approved by the Trustee,
the Depositor, the Master Servicer or the Special Servicer, as applicable), but
only if and to the extent such compensation, Advances (with interest) and
expenses are to be reimbursed or paid from such particular funds on deposit in
the Collection Account or the Distribution Account pursuant to the express terms
of this Agreement. Any reimbursements of Advances in respect of any particular
Mortgage Loan or REO Property out of the Collection Account pursuant to any of
clauses (ii), (vi) and (vii) of Section 3.05(a), and any payments of interest
thereon out of the Collection Account pursuant to either of clauses (viii) and
(ix) of Section 3.05(a), shall be made (to the extent of their respective
entitlements to such reimbursements and/or payments): first, to the Trustee; and
second, pro rata, to the Master Servicer and Special Servicer.
SECTION 3.06. Investment of Funds in the Collection Account and the REO
Account.
(a) The Master Servicer may direct (pursuant to a standing order or
otherwise) any depository institution maintaining the Collection Account, and
the Special Servicer may direct (pursuant to a standing order or otherwise) any
depository institution maintaining the REO Account, to invest, or if it is such
depository institution, may itself invest, the funds held therein (each such
account, for purposes of this Section 3.06, an "Investment Account") in one or
more Permitted Investments bearing interest or sold at a discount, and maturing,
unless payable on demand, no later than the Business Day immediately preceding
the next 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 Collection Account) and the Special Servicer (with respect to Permitted
Investments of amounts in the REO Account), on behalf of the Trustee, shall (and
the Trustee hereby designates the Master Servicer and the Special Servicer, as
applicable, as the person that shall) maintain continuous possession of any
Permitted Investment that is either (i) a "certificated security", as such term
is defined in the 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,
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the Master Servicer (in the case of the Collection Account) or the Special
Servicer (in the case of the REO Account) shall:
(x) consistent with any notice required to be given thereunder, demand
that payment thereon be made on the last day such Permitted Investment may
otherwise mature hereunder in an amount equal to the lesser of (1) all
amounts then payable thereunder and (2) the amount required to be withdrawn
on such date; and
(y) demand payment of all amounts due thereunder promptly upon
determination by the Master Servicer, the Trustee or the Special Servicer,
as the case may be, that such Permitted Investment would not constitute a
Permitted Investment in respect of funds thereafter on deposit in the
Investment Account.
(b) Whether or not the Master Servicer directs the investment of funds in
the Collection Account, interest and investment income realized on funds
deposited therein, to the extent of the Net Investment Earnings, if any, for
such Investment Account for each Collection Period, shall be for the sole and
exclusive benefit of the Master Servicer and shall be subject to its withdrawal
in accordance with Section 3.05(a). Whether or not the Special Servicer directs
the investment of funds in the REO Account, interest and investment income
realized on funds deposited therein, to the extent of the Net Investment
Earnings, if any, for such Investment Account for each Collection Period, shall
be for the sole and exclusive benefit of the Special Servicer and shall be
subject to its withdrawal in accordance with Section 3.16(b). If any loss shall
be incurred in respect of any Permitted Investment on deposit in either
Investment Account, the Master Servicer (in the case of the Collection Account)
and the Special Servicer (in the case of the REO Account) shall promptly deposit
therein from its own funds, without right of reimbursement, no later than the
end of the Collection Period during which such loss was incurred, the amount of
the Net Investment Loss, if any, for such Collection Period.
(c) Except as otherwise expressly provided in this Agreement, if any
default occurs in the making of a payment due under any Permitted Investment, or
if a default occurs in any other performance required under any Permitted
Investment, the Master Servicer, the Special Servicer or the Trustee (if it has
determined in good faith that the Master Servicer or the Special Servicer are
not taking such action as is appropriate) may, and, subject to Section 8.02,
upon the request of Holders of Certificates entitled to not less than 25% of the
Voting Rights allocated to any Class, the Trustee shall, take such action as may
be appropriate to enforce such payment or performance, including, without
limitation, the institution and prosecution of appropriate proceedings.
(d) Amounts on deposit in the Distribution Account shall remain uninvested.
(e) Notwithstanding the investment of funds held in any Investment Account,
for purposes of the calculations hereunder, including, without limitation, the
calculation of the
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Available Distribution Amount and the Master Servicer Remittance Amount, the
amounts so invested shall be deemed to remain on deposit in such Investment
Account.
SECTION 3.07. Maintenance of Insurance Policies; Errors and Omissions and
Fidelity Coverage.
(a) The Master Servicer (with respect to Mortgage Loans other than
Specially Serviced Mortgaged Loans) and the Special Servicer (with respect to
Specially Serviced Mortgage Loans) shall cause to be maintained for each
Mortgaged Property all insurance coverage as is required under the related
Mortgage; provided that if and to the extent that any such Mortgage permits the
holder thereof any discretion (by way of consent, approval or otherwise) as to
the insurance coverage that the related Mortgagor is required to maintain, the
Master Servicer or the Special Servicer, as the case may be, shall exercise such
discretion in a manner consistent with the Servicing Standard, with a view
towards requiring insurance comparable to that required under other Mortgage
Loans with express provisions governing such matters; and provided further that,
if and to the extent that a Mortgage so permits, the related Mortgagor shall be
required to obtain the required insurance coverage from Qualified Insurers that,
in each case, have a claims-paying rating no lower than two rating categories
below the highest rated Certificates outstanding, and in any event no lower than
"[A]" (or an equivalent rating), from each of the Rating Agencies. Subject to
Section 3.17(b), the Special Servicer shall also cause to be maintained for each
REO Property no less insurance coverage than was previously required of the
Mortgagor under the related Mortgage and at a minimum, (i) hazard insurance with
a replacement cost rider, (ii) business interruption or rental loss insurance
for at least 12 months, and (iii) comprehensive general liability insurance, in
each case, in an amount customary for the type and geographic location of such
REO Property and consistent with the Servicing Standard; provided that all such
insurance shall be obtained from Qualified Insurers that, in each case, if
providing casualty insurance, shall have a claims-paying rating no lower than
two rating categories below the highest rated Certificates outstanding, and in
any event no lower than "[A]" (or an equivalent rating), from each of the Rating
Agencies. All such insurance policies shall contain (if they insure against loss
to property) a "standard" mortgagee clause, with loss payable to the Master
Servicer on behalf of the Trustee (in the case of insurance maintained in
respect of Mortgage Loans), or shall name the Trustee as the insured, with loss
payable to the Special Servicer on behalf of the Trustee (in the case of
insurance maintained in respect of REO Properties), and shall be issued by an
insurer authorized under applicable law to issue such insurance. Any amounts
collected by the Master Servicer or the Special Servicer under any such policies
(other than amounts to be applied to the restoration or repair of the related
Mortgaged Property or REO Property or amounts to be released to the related
Mortgagor, in each case in accordance with the Servicing Standard) shall be
deposited in the Collection Account, subject to withdrawal pursuant to Section
3.05(a), in the case of amounts received in respect of a Mortgage Loan, or in
the REO Account, subject to withdrawal pursuant to Section 3.16(c), in the case
of amounts received in respect of an REO Property. Any cost incurred by the
Master Servicer or the Special Servicer in maintaining any such insurance shall
not, for purposes hereof, including, without limitation, calculating monthly
distributions to
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Certificateholders, be added to unpaid principal balance of the related Mortgage
Loan, notwithstanding that the terms of such Mortgage Loan so permit.
(b) If the Master Servicer or the Special Servicer shall obtain and
maintain, or cause to be obtained and maintained, a blanket policy insuring
against hazard losses on all of the Mortgage Loans and/or REO Properties that it
is required to service and administer, then, to the extent such policy (i) is
obtained from a Qualified Insurer having a claims-paying rating no lower than
two rating categories below the highest rated Certificates outstanding, and in
any event no lower than "[A]" (or an equivalent rating), from each of the Rating
Agencies, and (ii) provides protection equivalent to the individual policies
otherwise required, the Master Servicer or the Special Servicer, as the case may
be, shall conclusively be deemed to have satisfied its obligation to cause
hazard insurance to be maintained on the related Mortgaged Properties and/or REO
Properties. Such policy may contain a deductible clause (not in excess of a
customary amount), in which case the Master Servicer or the Special Servicer, as
appropriate, shall, if there shall not have been maintained on the related
Mortgaged Property or REO Property a hazard insurance policy complying with the
requirements of Section 3.07(a), and there shall have been one or more losses
that would have been covered by such policy, promptly deposit into the
Collection Account from its own funds the amount not otherwise payable under the
blanket policy in connection with such loss or losses because of such deductible
clause. The Master Servicer or the Special Servicer, as appropriate, shall
prepare and present, on behalf of itself, the Trustee and Certificateholders,
claims under any such blanket policy in a timely fashion in accordance with the
terms of such policy.
(c) Each of the Master Servicer and the Special Servicer shall at all times
during the term of this Agreement (or, in the case of the Special Servicer, at
all times during the term of this Agreement during which Specially Serviced
Mortgage Loans or REO Properties exist as part of the Trust Fund) keep in force
with a Qualified Insurer having a claims-paying rating no lower than two rating
categories below the highest rated Certificates outstanding, and in any event no
lower than investment grade, from each of the Rating Agencies, a fidelity bond
in such form and amount as would permit it to be a qualified FNMA
seller-servicer of multifamily mortgage loans, or in such other form and amount
as would not adversely affect any rating assigned by either Rating Agency to the
Certificates (as evidenced in writing from each such Rating Agency). Each of the
Master Servicer and the Special Servicer shall be deemed to have complied with
the foregoing provision if an Affiliate thereof has such fidelity bond coverage
and, by the terms of such fidelity bond, the coverage afforded thereunder
extends to the Master Servicer or the Special Servicer, as the case may be. Such
fidelity bond shall provide that it may not be canceled without ten days' prior
written notice to the Trustee.
Each of the Master Servicer and the Special Servicer shall at all times
during the term of this Agreement (or, in the case of the Special Servicer, at
all times during the term of this Agreement during which Specially Serviced
Mortgage Loans and/or REO Properties exist as part of the Trust Fund) also keep
in force with a Qualified Insurer having a claims-paying rating no lower than
two rating categories below the highest rated Certificates outstanding, and in
any event
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no lower than investment grade, from each of the Rating Agencies, a policy or
policies of insurance covering loss occasioned by the errors and omissions of
its officers, employees and agents in connection with its servicing obligations
hereunder, which policy or policies shall be in such form and amount as would
permit it to be a qualified FNMA seller-servicer of multifamily mortgage loans,
or in such other form and amount as would not adversely affect any rating
assigned by either Rating Agency to the Certificates (as evidenced in writing
from each such Rating Agency). Each of the Master Servicer and the Special
Servicer shall be deemed to have complied with the foregoing provisions if an
Affiliate thereof has such insurance and, by the terms of such policy or
policies, the coverage afforded thereunder extends to the Master Servicer or the
Special Servicer, as the case may be. Any such errors and omissions policy shall
provide that it may not be canceled without ten days' prior written notice to
the Trustee.
SECTION 3.08. Enforcement of Alienation Clauses.
The Master Servicer (at the direction of the Special Servicer), in the case
of Mortgage Loans other than Specially Serviced Mortgage Loans, and the Special
Servicer, in the case of Specially Serviced Mortgage Loans, on behalf of the
Trustee as the mortgagee of record, shall enforce the restrictions contained in
any Mortgage on transfers or further encumbrances of the related Mortgaged
Property and on transfers of interests in the related Mortgagor, unless the
Special Servicer has determined, in its reasonable good faith judgment, that
waiver of such restrictions would be in accordance with the Servicing Standard;
provided that the Special Servicer shall not waive, or instruct the Master
Servicer to waive, any right it has, or grant any consent, or instruct the
Master Servicer to grant any consent, it is otherwise entitled to withhold,
under any related "due-on-encumbrance" clause until it has received written
confirmation from each Rating Agency that such action would not result in the
downgrade, qualification or withdrawal of the rating then assigned by such
Rating Agency to any Class of Certificates. After having made any such
determination, the Special Servicer shall deliver to the Trustee and the Master
Servicer an Officer's Certificate setting forth the basis for such
determination. The Master Servicer shall provide the Special Servicer with all
information as it may reasonably request in order to make such determination.
SECTION 3.09. Realization Upon Defaulted Mortgage Loans.
(a) The Special Servicer shall, subject to Sections 3.09(b) through
3.09(d), exercise reasonable efforts, consistent with the Servicing Standard, to
foreclose upon or otherwise comparably convert the ownership of properties and
other collateral securing such of the Mortgage Loans as come into and continue
in default and as to which no satisfactory arrangements can be made for
collection of delinquent payments, including, without limitation, pursuant to
Section 3.20. All costs and expenses incurred by the Special Servicer in any
such proceedings shall be Servicing Advances. Nothing contained in this Section
3.09 shall be construed so as to require the Special Servicer, on behalf of the
Trust Fund, to make a bid on any Mortgaged Property at a foreclosure sale or
similar proceeding that is in excess of the fair market value of such property,
as determined by the Special Servicer in its reasonable good faith judgment
taking into account
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the factors described in Section 3.18(e) and the results of any appraisal
obtained pursuant to the following sentence or otherwise, all such bids to be
made in a manner consistent with the Servicing Standard. If and when the Special
Servicer deems it necessary and prudent for purposes of establishing the fair
market value of any Mortgaged Property securing a defaulted Mortgage Loan,
whether for purposes of bidding at foreclosure or otherwise, the Special
Servicer is authorized to have an Appraisal completed with respect to such
property (the cost of which appraisal shall constitute a Servicing Advance).
Notwithstanding any other provision of this Agreement, no Mortgaged
Property shall be acquired by the Trust Fund in such circumstances or manner or
pursuant to any terms that would (i) cause such Mortgaged Property to fail to
qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of
the Code (unless all such REO Property not treated as "foreclosure property"
held by REMIC I at any given time constitutes not more than a de minimis amount
of the assets of REMIC I within the meaning of Treasury regulation Section
1.860D- 1(b)(3)(i) and (ii)), or (ii) except as permitted by Section 3.17(a),
subject the Trust Fund to the imposition of any federal income taxes under the
Code.
(b) The Special Servicer shall not acquire any personal property on behalf
of the Trust Fund pursuant to this Section 3.09 unless either:
(i) such personal property is incident to real property (within the
meaning of Section 856(e)(1) of the Code) so acquired by the Special
Servicer; or
(ii) the Special Servicer shall have obtained an Opinion of Counsel
(the cost of which shall be a Servicing Advance) to the effect that the
holding of such personal property as part of the Trust Fund will not cause
the imposition of a tax on any of REMIC I, REMIC II or REMIC III under the
REMIC Provisions or cause any of REMIC I, REMIC II or REMIC III to fail to
qualify as a REMIC at any time that any Certificate is outstanding.
(c) Notwithstanding the foregoing provisions of this Section 3.09, the
Special Servicer shall not, on behalf of the Trustee, obtain title to a
Mortgaged Property by foreclosure, deed in lieu of foreclosure or otherwise, or
take any other action with respect to any Mortgaged Property, if, as a result of
any such action, the Trustee, on behalf of the Certificateholders, could, in the
reasonable good faith judgment of the Special Servicer, exercised in accordance
with the Servicing Standard, be considered to hold title to, to be a
"mortgagee-in-possession" of, or to be an "owner" or "operator" of such
Mortgaged Property within the meaning of CERCLA or any comparable law, unless:
(i) the Special Servicer has previously determined in accordance with
the Servicing Standard, based on a Phase I Environmental Assessment (and
any additional environmental testing that the Special Servicer deems
necessary and prudent) of such Mortgaged Property conducted by an
Independent Person who
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regularly conducts Phase I Environmental Assessments and performed during
the twelve-month period preceding any such acquisition of title or other
action, that the Mortgaged Property is in compliance with applicable
environmental laws and regulations and there are no circumstances or
conditions present at the Mortgaged Property relating to the use,
management or disposal of Hazardous Materials for which investigation,
testing, monitoring, containment, clean-up or remediation could be required
under any applicable environmental laws and regulations; or
(ii) in the event that the determination described in clause (c)(i)
above cannot be made, the Special Servicer has previously determined in
accordance with the Servicing Standard, on the same basis as described in
clause (c)(i) above, that it would maximize the recovery to the
Certificateholders on a present value basis (the relevant discounting of
anticipated collections that will be distributable to Certificateholders to
be performed at the related Net Mortgage Rate) to acquire title to or
possession of the Mortgaged Property and to take such remedial, corrective
and/or other further actions as are necessary to bring the Mortgaged
Property into compliance with applicable environmental laws and regulations
and to appropriately address any of the circumstances and conditions
referred to in clause (c)(i) above;
Any such determination by the Special Servicer contemplated by clause (i)
or clause (ii) of the preceding paragraph shall be evidenced by an Officer's
Certificate to such effect delivered to the Trustee and the Master Servicer,
specifying all of the bases for such determination, such Officer's Certificate
to be accompanied by all related environmental reports. The cost of such Phase I
Environmental Assessment and any such additional environmental testing, as well
as the cost of any remedial, corrective or other further action contemplated by
clause (ii) of the preceding paragraph, shall be advanced by the Master Servicer
at the direction of the Special Servicer given in accordance with the Servicing
Standard; provided, however, that the Master Servicer shall not be obligated in
connection therewith to advance any funds which, if so advanced, would
constitute a Nonrecoverable Servicing Advance. Amounts so advanced shall be
subject to reimbursement as Servicing Advances in accordance with Section
3.05(a).
(d) If neither of the conditions set forth in clauses (i) and (ii) of the
first sentence of Section 3.09(c) has been satisfied with respect to any
Mortgaged Property securing a defaulted Mortgage Loan, the Special Servicer
shall take such action as is in accordance with the Servicing Standard (other
than proceeding against the Mortgaged Property) and, at such time as it deems
appropriate, may, on behalf of the Trustee, release all or a portion of such
Mortgaged Property from the lien of the related Mortgage.
(e) The Special Servicer shall report to the Trustee and the Master
Servicer monthly in writing as to any actions taken by the Special Servicer with
respect to any Mortgaged Property as to which neither of the conditions set
forth in clauses (i) and (ii) of the first sentence of Section 3.09(c) has been
satisfied, in each case until the earliest to occur of satisfaction of
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either of such conditions, release of the lien of the related Mortgage on such
Mortgaged Property and the related Mortgage Loan becoming a Corrected Mortgaged
Loan.
(f) The Special Servicer shall have the right to determine, in accordance
with the Servicing Standard, the advisability of seeking to obtain a deficiency
judgment if the state in which the Mortgaged Property is located and the terms
of the Mortgage Loan permit such an action and shall, in accordance with the
Servicing Standard, seek such deficiency judgment if it deems advisable.
(g) The Special Servicer shall prepare and file information returns with
respect to the receipt of mortgage interest received in a trade or business from
individuals, reports of foreclosures and abandonments of any Mortgaged Property
and information returns relating to cancellation of indebtedness income with
respect to any Mortgaged Property required by Sections 6050H, 6050J and 6050P of
the Code and deliver to the Trustee an Officer's Certificate stating that such
reports have been filed. Such information returns and reports shall be in form
and substance sufficient to meet the reporting requirements imposed by Sections
6050H, 6050J and 6050P of the Code. The Special Servicer shall provide to the
Master Servicer on a timely basis all information to be included in such reports
and information returns.
(h) The Special Servicer shall maintain accurate records, prepared by a
Servicing Officer, of each Final Recovery Determination in respect of any
Mortgage Loan or REO Property and the basis thereof. Each Final Recovery
Determination shall be evidenced by an Officer's Certificate delivered to the
Trustee and the Master Servicer no later than the third Business Day following
such Final Recovery Determination.
SECTION 3.10. Trustee to Cooperate; Release of Mortgage Files.
(a) Upon the payment in full of any Mortgage Loan, or the receipt by the
Master Servicer of a notification that payment in full shall be escrowed in a
manner customary for such purposes, the Master Servicer shall promptly so notify
the Trustee and request delivery to it of the related Mortgage File (such notice
and request to be effected by delivering to the Trustee a Request for Release in
the form of Exhibit D-1 attached hereto, which Request for Release shall be
accompanied by the form of any release or discharge to be executed by the
Trustee and shall include a statement to the effect that all amounts received or
to be received in connection with such payment which are required to be
deposited in the Collection Account pursuant to Section 3.04(a) have been or
will be so deposited). Upon receipt of such Request for Release, the Trustee
shall promptly release, or cause any related Custodian to release, the related
Mortgage File to the Master Servicer and shall deliver to the Master Servicer
such accompanying release or discharge, duly executed. No expenses incurred in
connection with any instrument of satisfaction or deed of reconveyance shall be
chargeable to the Collection Account or the Distribution Account.
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(b) If from time to time, and as appropriate for servicing or foreclosure
of any Mortgage Loan, the Master Servicer or the Special Servicer shall
otherwise require any Mortgage File (or any portion thereof), the Trustee, upon
request of the Master Servicer and receipt from the Master Servicer of a Request
for Release in the form of Exhibit D-1 attached hereto signed by a Servicing
Officer thereof, or upon request of the Special Servicer and receipt from the
Special Servicer of a Request for Release in the form of Exhibit D-2 attached
hereto, shall release, or cause any related Custodian to release, such Mortgage
File (or portion thereof) to the Master Servicer or the Special Servicer, as the
case may be. Upon return of such Mortgage File (or portion thereof) to the
Trustee or the related Custodian, or upon the Special Servicer's delivery to the
Trustee of an Officer's Certificate stating that (i) such Mortgage Loan was
liquidated and all amounts received or to be received in connection with such
liquidation that are required to be deposited into the Collection Account
pursuant to Section 3.04(a) have been or will be so deposited or (ii) such
Mortgage Loan has become an REO Property, a copy of the Request for Release
shall be released by the Trustee to the Master Servicer or the Special Servicer,
as applicable.
(c) Within seven Business Days of the Special Servicer's request therefor
(or, if the Special Servicer notifies the Trustee of an exigency, within such
shorter period as is reasonable under the circumstances), the Trustee shall
execute and deliver to the Special Servicer, in the form supplied to the Trustee
by the Special Servicer, any court pleadings, requests for trustee's sale or
other documents reasonably necessary to the foreclosure or trustee's sale in
respect of a Mortgaged Property or to any legal action brought to obtain
judgment against any Mortgagor on the Mortgage Note or Mortgage or to obtain a
deficiency judgment, or to enforce any other remedies or rights provided by the
Mortgage Note or Mortgage or otherwise available at law or in equity or to
defend any legal action or counterclaim filed against the Trust Fund, the Master
Servicer or the Special Servicer; provided that the Trustee may alternatively
execute and deliver to the Special Servicer, in the form supplied to the Trustee
by the Special Servicer, a limited power of attorney issued in favor of the
Special Servicer and empowering the Special Servicer to execute and deliver any
or all of such pleadings or documents on behalf of the Trustee. Together with
such pleadings or documents (or such power of attorney empowering the Special
Servicer to execute the same on behalf of the Trustee), the Special Servicer
shall deliver to the Trustee an Officer's Certificate requesting that such
pleadings or documents (or such power of attorney empowering the Special
Servicer to execute the same on behalf of the Trustee) be executed by the
Trustee and certifying as to the reason such pleadings or documents are required
and that the execution and delivery thereof by the Trustee (or by the Special
Servicer on behalf of the Trustee) will not invalidate or otherwise affect the
lien of the Mortgage, except for the termination of such a lien upon completion
of the foreclosure or trustee's sale.
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SECTION 3.11. Servicing Compensation; Interest on Servicing Advances;
Payment of Certain Expenses; Obligations of the Trustee
regarding Back-up Servicing Advances.
(a) As compensation for its activities hereunder, the Master Servicer shall
be entitled to receive the Servicing Fee with respect to each Mortgage Loan
(including, without limitation, each Specially Serviced Mortgage Loan) and REO
Loan. As to each such Mortgage Loan and REO Loan, the Servicing Fee shall accrue
at the Servicing Fee Rate on the basis of the same principal amount and for the
same period respecting which the related interest payment due on such Mortgage
Loan or deemed to be due on such REO Loan is computed. The Servicing Fee with
respect to any Mortgage Loan or REO Loan shall cease to accrue if a Liquidation
Event occurs in respect thereof. Earned but unpaid Master Servicing Fees shall
be payable monthly, on a loan-by-loan basis, from payments of interest on each
Mortgage Loan and REO Revenues allocable as interest on each REO Loan. The
Master Servicer shall be entitled to recover unpaid Master Servicing Fees in
respect of any Mortgage Loan or REO Loan out of Insurance Proceeds or
Liquidation Proceeds, to the extent permitted by Section 3.05(a). The right to
receive the Servicing Fee may not be transferred in whole or in part except in
connection with the transfer of all of the Master Servicer's responsibilities
and obligations under this Agreement.
(b) The Master Servicer shall also be entitled to additional servicing
compensation in the form of: (i) any Prepayment Interest Excesses; (ii) to the
extent allocable to the period when the related Mortgage Loan did not constitute
a Specially Serviced Mortgage Loan or REO Property, any Net Penalty Charges or
any similar charges collected on the Mortgage Loans; (iii) interest or other
income earned on deposits in the Collection Account, in accordance with Section
3.06(b) (but only to the extent of the Net Investment Earnings, if any, with
respect to the Collection Account for each Collection Period); and (iv) to the
extent not required to be paid to any Mortgagor under applicable law or under
the related Mortgage, any interest or other income earned on deposits in the
Servicing Accounts maintained thereby. The Master Servicer shall be required to
pay out of its own funds all expenses incurred by it in connection with its
servicing activities hereunder (including, without limitation, payment of any
amounts due and owing to any of Sub-Servicers retained by it and the premiums
for any blanket policy insuring against hazard losses pursuant to Section
3.07(b)), if and to the extent such expenses are not payable directly out of the
Collection Account, and the Master Servicer shall not be entitled to
reimbursement therefor except as expressly provided in this Agreement.
(c) As compensation for its activities hereunder, the Special Servicer
shall be entitled to receive the Property Servicing Fee with respect to each
Mortgage Loan (including, without limitation, each Specially Serviced Mortgage
Loan) and REO Loan. As to each such Mortgage Loan and REO Loan, the Property
Servicing Fee shall accrue from time to time at the Property Servicing Fee Rate
on the basis of the same principal amount and for the same period respecting
which any related interest payment due on such Mortgage Loan or deemed to be due
on such REO Loan is computed. The Property Servicing Fee with respect to any
Mortgage Loan or REO Loan shall cease to accrue if a Liquidation Event occurs in
respect thereof. Earned but
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unpaid Property Servicing Fees shall be payable monthly out of general
collections on the Mortgage Loans and any REO Properties on deposit in the
Collection Account pursuant to Section 3.05(a).
As further compensation for its activities hereunder, the Special Servicer
shall be entitled to receive the Special Servicing Fee with respect to each
Specially Serviced Mortgage Loan and each REO Loan. As to each Specially
Serviced Mortgage Loan and REO Loan, the Special Servicing Fee shall accrue from
time to time at the Special Servicing Fee Rate on the basis of the same
principal amount and for the same period respecting which any related interest
payment due on such Mortgage Loan or deemed to be due on such REO Loan is
computed. The Special Servicing Fee with respect to any Specially Serviced
Mortgage Loan or REO Loan shall cease to accrue as of the date a Liquidation
Event occurs in respect thereof or it becomes a Corrected Mortgage Loan. Earned
but unpaid Special Servicing Fees shall be payable monthly out of general
collections on the Mortgage Loans and any REO Properties on deposit in the
Collection Account pursuant to Section 3.05(a).
As further compensation for its activities hereunder, the Special Servicer
shall be entitled to receive the Workout Fee with respect to each Corrected
Loan. As to each Corrected Mortgage Loan, the Workout Fee shall be payable,
subject to the proviso to clause (e) of the definition of "Specially Serviced
Mortgage Loan",out of, and shall be calculated by application of the Workout Fee
Rate to, each collection of interest and principal (net of related unpaid or
unreimbursed Master Servicing Fees, Property Servicing Fees, Special Servicing
Fees and Advances), together with any collection of a Prepayment Premium or
Yield Maintenance Premium, received on such Mortgage Loan for so long as it
remains a Corrected Mortgage Loan. The Workout Fee with respect to any Corrected
Mortgage Loan will cease to be payable if a Servicing Transfer Event occurs with
respect thereto or if the related Mortgaged Property becomes an REO Property;
provided that a new Workout Fee would become payable if and when such Mortgage
Loan again became a Corrected Mortgage Loan. If the Special Servicer is
terminated other than for cause or resigns in accordance with Section 6.04, it
shall retain the right to receive any and all Workout Fees payable in respect of
Mortgage Loans that became Corrected Mortgage Loans during the period that it
acted as Special Servicer and were still such at the time of such termination or
resignation (and the successor Special Servicer shall not be entitled to any
portion of such Workout Fees), in each case until the Workout Fee for any such
loan ceases to be payable in accordance with the preceding sentence.
As further compensation for its activities hereunder, the Special Servicer
shall also be entitled to receive a Liquidation Fee with respect to each
Specially Serviced Mortgage Loan or REO Property as to which it receives any
full or discounted payoff from the related Mortgagor or any Liquidation Proceeds
or Insurance Proceeds (other than in connection with the purchase of any such
Specially Serviced Mortgage Loan or REO Property by the Special Servicer or the
Master Servicer pursuant to Section 3.18 or Section 9.01 or by the Mortgage Loan
Seller pursuant to the Mortgage Loan Purchase Agreement). As to each such
Specially Serviced Mortgage Loan or REO Property, the Liquidation Fee shall be
payable, subject to the proviso to clause (e) of the
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definition of "Specially Serviced Mortgage Loan", out of, and shall be
calculated by application of the Liquidation Fee Rate to, such full or
discounted payoff, Liquidation Proceeds and/or Insurance Proceeds, in each case
net of any portion of such payment or proceeds payable or reimbursable to the
Master Servicer or the Special Servicer to cover related unpaid or unreimbursed
Master Servicing Fees, Property Servicing Fees, Special Servicing Fees and/or
Advances. The Liquidation Fee with respect to any such Specially Serviced
Mortgage Loan will not be payable if such Mortgage Loan becomes a Corrected
Mortgage Loan. Notwithstanding anything herein to the contrary, no Liquidation
Fee will be payable in connection with the receipt of, or out of, Liquidation
Proceeds collected as a result of the purchase of any Specially Serviced
Mortgage Loan or REO Property described in the parenthetical to the first
sentence of this paragraph.
The Special Servicer's right to receive the Property Servicing Fees,
Special Servicing Fee, the Workout Fee and/or the Liquidation Fee may not be
transferred in whole or in part except in connection with the transfer of all of
the Special Servicer's responsibilities and obligations under this Agreement.
(d) Additional servicing compensation in the form of any modification fees
and ___% of any assumption fees received on or with respect to Mortgage Loans
other than Specially Serviced Mortgage Loans and any modification fees and
assumption fees received on or with respect to any Specially Serviced Mortgage
Loans, may be retained by the Special Servicer (to the extent collected by the
Special Servicer), or shall be promptly paid to the Special Servicer by the
Master Servicer (to the extent collected by the Master Servicer), and in any
event shall not be required to be deposited in the Collection Account pursuant
to Section 3.04(a). The Special Servicer shall also be entitled to any Net
Penalty Charges received on the Mortgage Loans that are not required to be paid
as additional servicing compensation to the Master Servicer. To the extent
collected by the Special Servicer, additional servicing compensation in the form
of any Net Penalty Charges that the Master Servicer is entitled to as additional
servicing compensation shall be paid promptly by the Special Servicer to the
Master Servicer. The Special Servicer shall be required to pay out of its own
funds all expenses incurred by it in connection with its servicing activities
hereunder (including, without limitation, payment of any amounts due and owing
to any of Sub-Servicers retained by it and the premiums for any blanket policy
obtained by it insuring against hazard losses pursuant to Section 3.07(b)), if
and to the extent such expenses are not payable directly out of the Collection
Account or the REO Account, and the Special Servicer shall not be entitled to
reimbursement except as expressly provided in this Agreement.
(e) If the Master Servicer or Special Servicer is required under this
Agreement to make a Servicing Advance, but neither does so within 15 days after
such Advance is required to be made, the Trustee shall, if it has actual
knowledge of such failure on the part of the Master Servicer or Special
Servicer, as the case may be, give notice of such failure, as applicable, to the
Master Servicer and the Special Servicer. If such Advance is not made by the
Master Servicer or the Special Servicer within three days after such notice then
(subject to Section 3.11(g) below), the Trustee shall make such Advance. Any
failure by the Master Servicer or the Special Servicer
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to make a Servicing Advance it is required to make hereunder shall constitute an
Event of Default by the Master Servicer or the Special Servicer, as the case may
be, subject to and as provided in Section 7.01(a)(iv) and Section 7.01(a)(v),
respectively.
(f) The Special Servicer and the Trustee shall each be entitled to receive
interest at the Reimbursement Rate in effect from time to time, accrued on the
amount of each Servicing Advance made thereby for so long as such Servicing
Advance is outstanding, such interest to be payable: first, out of Penalty
Charges collected on the Mortgage Loan or REO Loan as to which such Advance
relates; and then, to the extent such Penalty Charges are insufficient, and only
after such Advance has been reimbursed pursuant to this Agreement, out of
general collections on the Mortgage Loans and REO Properties on deposit in the
Collection Account. The Master Servicer shall reimburse itself, the Special
Servicer or the Trustee, as appropriate, for any Servicing Advance made thereby
as soon as practicable after funds available for such purpose are deposited in
the Collection Account.
(g) Notwithstanding anything to the contrary set forth herein, none of the
Master Servicer, the Special Servicer or the Trustee shall be required to make
any Servicing Advance that it determines in its reasonable good faith judgment
would constitute a Nonrecoverable Servicing Advance. A determination by any
Person with an obligation hereunder to make Servicing Advances that it has made
a Nonrecoverable Servicing Advance or that any proposed Servicing Advance, if
made, would constitute a Nonrecoverable Servicing Advance, shall be made by such
Person in its reasonable good faith judgment and shall be evidenced by an
Officer's Certificate delivered promptly to the Trustee, the Depositor, and each
Holder of a Class B-3 Certificate, a Class B-4 Certificate or a Class C
Certificate, setting forth the basis for such determination, together with a
copy of an Appraisal of the related Mortgaged Property or REO Property performed
within the twelve months preceding such determination, and further accompanied
by any other information, including engineers' reports, environmental surveys or
similar reports, that such Person may have obtained and that support such
determination. Notwithstanding the foregoing, the Trustee shall be entitled to
conclusively rely on any determination of nonrecoverability that may have been
made by the Master Servicer or the Special Servicer with respect to a particular
Servicing Advance, and the Master Servicer shall be entitled to conclusively
rely on any determination of nonrecoverability that may have been made by the
Special Servicer with respect to a particular Servicing Advance. A copy of any
such Officer's Certificate (and accompanying information) of the Master Servicer
shall also be delivered promptly to the Special Servicer, a copy of any such
Officer's Certificate (and accompanying information) of the Special Servicer
shall also be promptly delivered to the Master Servicer, and a copy of any such
Officer's Certificates (and accompanying information) of the Trustee shall also
be promptly delivered to the Master Servicer and the Special Servicer.
(h) Notwithstanding anything to the contrary set forth herein, the Master
Servicer, the Special Servicer or the Trustee, as applicable, may, in its sole
discretion, make any Nonrecoverable Servicing Advance if it has determined in
its reasonable good faith judgment that making such Nonrecoverable Servicing
Advance is in the best interests of the Certificateholders,
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as evidenced by an Officer's Certificates delivered promptly to the Trustee
(unless it is the Person making such Advance), the Depositor, and each Holder of
a Class B-3 Certificate, a Class B-4 Certificate or a Class C Certificate,
setting forth the basis for such determination and accompanied by any
information that such Person may have obtained that supports such determination.
A copy of any such Officer's Certificate (and accompanying information) of the
Master Servicer shall also be delivered promptly to the Special Servicer, and a
copy of any such Officer's Certificate (and accompanying information) of the
Special Servicer shall also be promptly delivered to the Master Servicer.
SECTION 3.12. Property Inspections; Collection of Financial Statements;
Delivery of Certain Reports.
(a) The Special Servicer shall at its expense perform or cause to be
performed an inspection of each Mortgaged Property at least once per calendar
year and as soon as practicable (but in any event not later than 60 days) after
the related Mortgage Loan becomes a Specially Serviced Mortgage Loan. The
Special Servicer shall prepare a written report of each such inspection
performed by it that sets forth in detail the condition of the Mortgaged
Property and that specifies the existence of: (i) any sale, transfer or
abandonment of the Mortgaged Property of which the Special Servicer is aware,
(ii) any change in the condition, occupancy, or value of the Mortgaged Property
that the Special Servicer, in its reasonable good faith judgment, considers
material, or (iii) any waste committed on the Mortgaged Property. The Special
Servicer shall deliver to the Trustee, the Depositor and the Master Servicer a
copy of each such written report prepared by it within 45 days of the related
inspection.
(b) The Special Servicer shall make reasonable efforts to collect promptly
from each related Mortgagor quarterly and annual operating statements, budgets
and rent rolls of the related Mortgaged Property, and financial statements of
such Mortgagor, whether or not delivery of such items is required pursuant to
the terms of the related Mortgage. In addition, the Special Servicer shall cause
quarterly and annual operating statements, budgets and rent rolls to be
regularly prepared in respect of each REO Property and shall collect all such
items promptly following their preparation and deliver a report summarizing such
information as described in the second paragraph of Section 4.02(c).
SECTION 3.13. Annual Statement as to Compliance.
Each of the Master Servicer and the Special Servicer shall deliver to the
Trustee, to the Depositor and, in the case of the Special Servicer, to the
Master Servicer, on or before March 31 of each year, beginning March 31, 199__,
an Officer's Certificate stating, as to the signer thereof, that (i) a review of
the activities of the Master Servicer or the Special Servicer, as the case may
be, during the preceding calendar year and of its performance under this
Agreement has been made under such officer's supervision, (ii) to the best of
such officer's knowledge, based on such review, the Master Servicer or the
Special Servicer, as the case may be, has fulfilled all of its obligations under
this Agreement in all material respects throughout such year, or, if there
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has been a default in the fulfillment of any such obligation, specifying each
such default known to such officer and the nature and status thereof and (iii)
the Master Servicer or the Special Servicer, as the case may be, has received no
notice regarding the qualification, or challenging the status, of any portion of
the Trust Fund as a REMIC from the Internal Revenue Service or any other
governmental agency or body or, if it has received any such notice, specifying
the details thereof.
SECTION 3.14. Reports by Independent Public Accountants.
On or before April 30 of each year, beginning April 30, 199__, each of the
Master Servicer and the Special Servicer at its expense shall cause a firm of
independent public accountants (which may also render other services to the
Master Servicer or the Special Servicer) with at least 250 professionals and
that is a member of the American Institute of Certified Public Accountants to
furnish a statement to the Trustee and to the Depositor and, in the case of the
Special Servicer, to the Master Servicer to the effect that (i) it has obtained
a letter of representation regarding certain matters from the management of the
Master Servicer or the Special Servicer, as the case may be, which includes an
assertion that the Master Servicer or the Special Servicer, as the case may be,
has complied with certain minimum mortgage loan servicing standards (to the
extent applicable to commercial and multifamily mortgage loans), identified in
the Uniform Single Attestation Program for Mortgage Bankers established by the
Mortgage Bankers Association of America, with respect to the servicing of
commercial and multifamily mortgage loans during the most recently completed
calendar year and (ii) on the basis of an examination conducted by such firm in
accordance with standards established by the American Institute of Certified
Public Accountants, such representation is fairly stated in all material
respects, subject to such exceptions and other qualifications that may be
appropriate. In rendering its report such firm may rely, as to matters relating
to the direct servicing of commercial and multifamily mortgage loans by
Sub-Servicers, upon comparable reports of firms of independent certified public
accountants rendered on the basis of examinations conducted in accordance with
the same standards (rendered within one year of such report) with respect to
those Sub-Servicers.
SECTION 3.15. Access to Certain Information.
Each of the Master Servicer and the Special Servicer shall afford to the
Trustee, the Depositor, the Rating Agencies, each Holder of a Class B-3, Class
B-4 or Class C Certificate and the OTS, the FDIC and any other banking or
insurance regulatory authority that may exercise authority over any
Certificateholder, access to any records regarding the Mortgage Loans and the
servicing thereof within its control, except to the extent it is prohibited from
doing so by applicable law or contract or to the extent such information is
subject to a privilege under applicable law to be asserted on behalf of the
Certificateholders. Such access shall be afforded without charge but only upon
reasonable prior written request and during normal business hours at the offices
of the Master Servicer or the Special Servicer, as the case may be, designated
by it.
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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 and
the REMIC Administrator an Opinion of Counsel, addressed to the Trustee, the
Special Servicer and the REMIC Administrator, to the effect that the holding by
REMIC I of such REO Property subsequent to the second anniversary of such
acquisition will not result in the imposition of taxes on "prohibited
transactions" (as defined in Section 860F of the Code) of any of REMIC I, REMIC
II or REMIC III or cause any of REMIC I, REMIC II or REMIC III to fail to
qualify as a REMIC at any time that any Certificates are outstanding. Regardless
of whether the Special Servicer applies for or is granted the REO Extension
contemplated by clause (i) of the immediately preceding sentence or obtains the
Opinion of Counsel referred to in clause (ii) of such sentence, the Special
Servicer shall act diligently and prudently to liquidate such REO Property on a
timely basis. If the Special Servicer is granted such REO Extension or obtains
such Opinion of Counsel, the Special Servicer shall sell such REO Property
within such period longer than two years as is permitted by such REO Extension
or contemplated by such Opinion of Counsel, as the case may be. Any expense
incurred by the Special Servicer in connection with its applying for and being
granted the REO Extension contemplated by clause (i) of the second preceding
sentence or its obtaining the Opinion of Counsel contemplated by clause (ii) of
the second preceding sentence, shall be a Servicing Advance.
(b) The Special Servicer shall segregate and hold all funds collected and
received in connection with any REO Property separate and apart from its own
funds and general assets. If an REO Acquisition shall occur, the Special
Servicer shall establish and maintain one or more accounts (collectively, the
"REO Account"), held on behalf of the Trustee in trust for the benefit of the
Certificateholders, for the retention of revenues and other proceeds derived
from each REO Property. The REO Account shall be an Eligible Account. The
Special Servicer shall deposit, or cause to be deposited, in the REO Account,
upon receipt, all REO Revenues, Insurance Proceeds and Liquidation Proceeds
received in respect of an REO Property. Funds in the REO Account may be invested
in Permitted Investments in accordance with Section 3.06. The Special Servicer
shall be entitled to make withdrawals from the REO Account to pay itself, as
additional servicing compensation in accordance with Section 3.11(d), interest
and investment income earned in respect of amounts held in the REO Account as
provided in Section 3.06(b) (but only to the extent of the Net Investment
Earnings with respect to the REO Account for any Collection Period). The Special
Servicer shall give notice to the other parties hereto of the location of the
REO Account when first established and of the new location of the REO Account
prior to any change thereof.
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(c) The Special Servicer shall withdraw from the REO Account funds
necessary for the proper operation, management, leasing, maintenance and
disposition of any REO Property, but only to the extent of amounts on deposit in
the REO Account relating to such REO Property. Within one Business Day following
the end of each Collection Period, the Special Servicer shall withdraw from the
REO Account and deposit into the Collection Account or deliver to the Master
Servicer (which shall deposit such amounts into the Collection Account) the
aggregate of all amounts received in respect of each REO Property during such
Collection Period, net of any withdrawals made out of such amounts pursuant to
the preceding sentence; provided that the Special Servicer may retain in the REO
Account such portion of such proceeds and collections as may be necessary to
maintain a reserve of sufficient funds for the proper operation, management,
leasing, maintenance and disposition of the related REO Property (including,
without limitation, the creation of a reasonable reserve for repairs,
replacements and necessary capital improvements and other related expenses),
such reserve not to exceed an amount sufficient to cover such items to be
incurred during the following twelve-month period.
(d) The Special Servicer shall keep and maintain separate records, on a
property-by-property basis, for the purpose of accounting for all deposits to,
and withdrawals from, the REO Account pursuant to Section 3.16(b) or (c).
SECTION 3.17. Management of REO Property.
(a) Prior to the acquisition of title to any Mortgaged Property securing a
defaulted Mortgage Loan, the Special Servicer shall review the operation of such
Mortgaged Property and determine the nature of the income that would be derived
from such property if it were acquired by the Trust Fund. If the Special
Servicer determines from such review that:
(i) None of the income from Directly Operating such Mortgaged
Property would be subject to tax as "net income from foreclosure property"
within the meaning of the REMIC Provisions or would be subject to the tax
imposed on "prohibited transactions" under Section 860F of the Code
(either such tax referred to herein as an "REO Tax"), such Mortgaged
Property may be Directly Operated by the Special Servicer as REO Property;
(ii) Directly Operating such Mortgaged Property as an REO Property
could result in income from such property that would be subject to an REO
Tax, but that a lease of such property to another party to operate such
property, or the performance of some services by an Independent Contractor
with respect to such property, or another method of operating such property
would not result in income subject to an REO Tax, then the Special Servicer
may (provided, that in the reasonable good faith judgment of the Special
Servicer, it is commercially feasible) so lease or otherwise operate such
REO Property; or
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(iii) It is reasonable to believe that Directly Operating such
property as REO Property could result in income subject to an REO Tax and
that no commercially feasible means exists to operate such property as REO
Property without the Trust Fund incurring or possibly incurring an REO Tax
on income from such property, the Special Servicer shall deliver to the
REMIC Administrator, in writing, a proposed plan (the "Proposed Plan") to
manage such property as REO Property. Such plan shall include potential
sources of income, and to the extent commercially feasible, estimates of
the amount of income from each such source. Within a reasonable period of
time after receipt of such plan, the REMIC Administrator shall consult with
the Special Servicer and shall advise the Special Servicer of the REMIC
Administrator's federal income tax reporting position with respect to the
various sources of income that the Trust Fund would derive under the
Proposed Plan. In addition, the REMIC Administrator shall (to the maximum
extent possible) advise the Special Servicer of the estimated amount of
taxes that the Trust Fund would be required to pay with respect to each
such source of income. After receiving the information described in the two
preceding sentences from the REMIC Administrator, the Special Servicer
shall either (A) implement the Proposed Plan (after acquiring the
respective Mortgaged Property as REO Property) or (B) manage and operate
such property in a manner that would not result in the imposition of an REO
Tax on the income derived from such property.
The Special Servicer's decision as to how each REO Property shall be
managed and operated shall be based in either case on the reasonable good faith
judgment of the Special Servicer as to which means would be in the best interest
of the Certificateholders and, to the extent consistent with the foregoing, in
the same manner as would prudent mortgage loan servicers and asset managers
operating acquired mortgaged property comparable to the respective REO Property
under the same circumstances. Both the Special Servicer and the REMIC
Administrator may consult with counsel or financial advisers at the expense of
the Trust Fund in connection with determinations required under this Section
3.17(a). Neither the Special Servicer nor the REMIC Administrator shall be
liable to the Certificateholders, the Trust Fund, the other parties hereto or
each other for errors in judgment made in good faith in the exercise of their
discretion while performing their respective responsibilities under this Section
3.17(a). Nothing in this Section 3.17(a) is intended to prevent the sale of a
Defaulted Mortgage Loan or REO Property pursuant to the terms and subject to the
conditions of Section 3.18.
(b) If title to any REO Property is acquired, the Special Servicer shall
manage, conserve, protect and operate such REO Property for the benefit of the
Certificateholders solely for the purpose of its disposition and sale in a
manner that does not cause such REO Property to fail to qualify as "foreclosure
property" within the meaning of Section 860G(a)(8) of the Code or, except as
contemplated by Section 3.17(a), result in the receipt by REMIC I, REMIC II or
REMIC III of any "income from non-permitted assets" within the meaning of
Section
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860F(a)(2)(B) of the Code or in an Adverse REMIC Event in respect of any such
REMIC. Except as provided in Section 3.17(a), the Special Servicer shall not
enter into any lease, contract or other agreement that causes REMIC I to
receive, and (unless required to do so under any lease, contract or agreement to
which the Special Servicer or the Trust Fund may become a party or successor to
a party due to a foreclosure, deed in lieu of foreclosure or other similar
exercise of a creditor's rights or remedies with respect to a Mortgage Loan)
shall not cause or allow REMIC I to receive, any "net income from foreclosure
property" that is subject to taxation under the REMIC Provisions. Subject to the
foregoing, however, the Special Servicer shall have full power and authority to
do any and all things in connection therewith as are consistent with the
Servicing Standard and, consistent therewith, shall withdraw from the REO
Account, to the extent of amounts on deposit therein with respect to any REO
Property, funds necessary for the proper operation, management, maintenance and
disposition of such REO Property, including, without limitation:
(i) all insurance premiums due and payable in respect of such REO
Property;
(ii) all real estate taxes and assessments in respect of such REO
Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property; and
(iv) all other costs and expenses necessary to maintain, lease, sell,
protect, manage, operate and restore such REO Property.
To the extent that amounts on deposit in the REO Account in respect of any REO
Property are insufficient for the purposes set forth in clauses (i) through (iv)
above with respect to such REO Property, the Special Servicer shall (subject to
its right to be reimbursed therefor as provided in Sections 3.05(a) and 3.19(b)
hereof) advance such amounts as are necessary for such purposes unless (as
evidenced by an Officer's Certificate delivered to the Trustee) the Special
Servicer would not make such advances if the Special Servicer owned such REO
Property or the Special Servicer determines, in its reasonable good faith
judgment, that such advances would be Nonrecoverable Servicing Advances;
provided, however, that the Special Servicer may make any such Servicing Advance
without regard to recoverability if it is a necessary fee or expense incurred in
connection with the defense or prosecution of legal proceedings.
(c) The Special Servicer may contract with any Independent Contractor for
the operation and management of any REO Property, provided that:
(i) the terms and conditions of any such contract may not be
inconsistent herewith and shall reflect an agreement reached at arm's
length;
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(ii) the fees of such Independent Contractor (which shall be expenses
of the Trust Fund) shall be reasonable and customary in consideration of
the nature and locality of the REO Property;
(iii) any such contract shall require, or shall be administered to
require, that the Independent Contractor, in a timely manner, (A) pay all
costs and expenses incurred in connection with the operation and management
of such REO Property, including, without limitation, those listed in
Section 3.17(b) above, and (B) remit all related revenues collected (net of
its fees and such costs and expenses) to the Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(c) relating to any
such contract or to actions taken through any such Independent Contractor
shall be deemed to relieve the Special Servicer of any of its duties and
obligations hereunder with respect to the operation and management of any
such REO Property;
(v) the Special Servicer shall be obligated with respect thereto to
the same extent as if it alone were performing all duties and obligations
in connection with the operation and management of such REO Property; and
(vi) such Independent Contractor is acceptable to each Rating Agency,
and such appointment will not result in a qualification, downgrading or
withdrawal of any of the ratings then assigned to the Certificates by such
Rating Agency (as evidenced in writing by each such Rating Agency).
The Special Servicer shall be entitled to enter into any agreement with any
Independent Contractor performing services for it related to its duties and
obligations hereunder for indemnification of the Special Servicer by such
Independent Contractor, and nothing in this Agreement shall be deemed to limit
or modify such indemnification. To the extent the costs of any contract with any
Independent Contractor for the operation and management of any REO Property are
greater than the revenues available from such property, such costs shall be a
Servicing Advance.
SECTION 3.18. Sale of Mortgage Loans and REO Properties.
(a) The parties hereto may sell or purchase, or permit the sale or purchase
of, a Mortgage Loan or REO Property only on the terms and subject to the
conditions set forth in this Section 3.18 or as otherwise expressly provided in
or contemplated by Sections 2.02, 2.03 and 9.01.
(b) Reserved.
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(c) If the Special Servicer has determined, in its reasonable good faith
judgment, that any Defaulted Mortgage Loan will become subject to foreclosure
proceedings, the Special Servicer shall promptly so notify in writing the
Trustee and the Master Servicer. Either the Special Servicer or, subject to the
Special Servicer's prior rights in such regard, the Master Servicer may at its
option, within 30 days after receipt of such notice, purchase such Mortgage Loan
from the Trust Fund, at a price equal to the Purchase Price. The Purchase Price
for any such Mortgage Loan purchased under this paragraph (c) shall be deposited
into the Collection Account, and the Trustee, upon receipt of an Officer's
Certificate from the Master Servicer to the effect that such deposit has been
made, shall release or cause to be released to the Master Servicer or the
Special Servicer, as applicable, the related Mortgage File, and shall execute
and deliver such instruments of transfer or assignment, in each case without
recourse, as shall be provided to it and are reasonably necessary to vest in the
Master Servicer or the Special Servicer, as applicable, the ownership of such
Mortgage Loan. In connection with any such purchase by the Master Servicer, the
Special Servicer shall deliver the related Servicing File to the Master
Servicer.
(d) The Special Servicer may offer to sell any Defaulted Mortgage Loan not
otherwise purchased pursuant to Section 3.18(c) above, if and when the Special
Servicer determines, consistent with the Servicing Standard, that such a sale
would be in the best economic interests of the Trust Fund. Such offer shall be
made in a commercially reasonable manner (which, for purposes hereof, includes
an offer to sell without representation or warranty other than customary
warranties of title and condition, if liability for breach thereof is limited to
recourse against the Trust Fund) for a period of not less than 10 days. Unless
the Special Servicer determines that acceptance of any bid would not be in the
best economic interests of the Trust Fund, the Special Servicer shall accept the
highest cash bid received from any Person that constitutes a fair price for such
Mortgage Loan. In the absence of any bid determined as provided below to be
fair, the Special Servicer shall proceed with respect to such Defaulted Mortgage
Loan in accordance with Section 3.09.
The Special Servicer shall use its best efforts to solicit bids for each
REO Property in such manner as will be reasonably likely to realize a fair price
within the time period provided for by Section 3.16(a). The Special Servicer
shall accept the first (and, if multiple bids are received contemporaneously,
highest) cash bid received from any Person that constitutes a fair price for
such REO Property. If the Special Servicer reasonably believes that it will be
unable to realize a fair price for any REO Property within the time constraints
imposed by Section 3.16(a), the Special Servicer shall dispose of such REO
Property upon such terms and conditions as the Special Servicer shall deem
necessary and desirable to maximize the recovery thereon under the circumstances
and, in connection therewith, shall accept the highest outstanding cash bid,
regardless of from whom received.
The Special Servicer shall give the Trustee and the Master Servicer not
less than five Business Days' prior written notice of its intention to sell any
Defaulted Mortgage Loan or REO Property pursuant to this Section 3.18(d). No
Interested Person shall be obligated to submit
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a bid to purchase any such Mortgage Loan or REO Property, and notwithstanding
anything to the contrary herein, neither the Trustee, in its individual
capacity, nor any of its Affiliates may bid for or purchase any Defaulted
Mortgage Loan or REO Property pursuant hereto.
(e) Whether any cash bid constitutes a fair price for any Defaulted
Mortgage Loan or REO Property, as the case may be, for purposes of Section
3.18(d), shall be determined by the Special Servicer or, if such cash bid is
from an Interested Person, by the Trustee.
In determining whether any bid received from an Interested Person
represents a fair price for any such Mortgage Loan or REO Property, the Trustee
shall be supplied with and shall be entitled to rely on the most recent
Appraisal in the related Servicing File conducted in accordance with this
Agreement within the preceding 12-month period or, in the absence of any such
Appraisal, on a new Appraisal, or if the most recent Appraisal is not more than
12 months old but there has been a material change in such Mortgaged Property or
REO Property during the prior 12 months, on an updated Appraisal, in any case to
be obtained by the Special Servicer (the cost of which shall constitute a
Servicing Advance). On making any such determination of fair price based on the
Appraisal, the Trustee shall be entitled to retain and may rely on the
determinations of professional consultants. The cost of any such consultants
shall be an expense of the Trust Fund reimbursable to the Trustee from the funds
on deposit in the Collection Account. The appraiser conducting any such new
Appraisal shall be selected by the Special Servicer if the Special Servicer is
not bidding with respect to a Defaulted Mortgage Loan or REO Property and shall
be selected by the Master Servicer if the Special Servicer is bidding and by the
Trustee if both the Master Servicer and the Special Servicer are bidding. Where
any Interested Person is among those bidding with respect to a Defaulted
Mortgage Loan or REO Property, the Special Servicer shall require that all bids
be submitted to it (and, if the Special Servicer is bidding, shall be submitted
by it to the Trustee) in writing and be accompanied by a refundable deposit of
cash in an amount equal to 5% of the bid amount.
In determining whether any bid from a Person other than an Interested
Person constitutes a fair price for any such Mortgage Loan or REO Property, the
Special Servicer shall take into account the results of any Appraisal described
above, and any appraiser or other expert in real estate matters shall be
instructed to take into account, as applicable, among other factors, the period
and amount of any delinquency on the affected Mortgage Loan, the occupancy level
and physical condition of the Mortgaged Property or REO Property, the state of
the local economy and the obligation to dispose of any REO Property within the
time period specified in Section 3.16(a).
The Purchase Price for any such Mortgage Loan or REO Property shall in all
cases be deemed a fair price. Notwithstanding the other provisions of this
Section 3.18, no cash bid from the Special Servicer or any Affiliate thereof
shall constitute a fair price for any Defaulted Mortgage Loan or REO Property
unless such bid is the highest cash bid received and at least two independent
bids (not including the bid of the Special Servicer or any Affiliate) have been
received. In the event the bid of the Special Servicer or any Affiliate thereof
is the only bid
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received or is the higher of only two bids received, then additional bids shall
be solicited. If an additional bid or bids, as the case may be, are received and
the original bid of the Special Servicer or any Affiliate thereof is the highest
of all cash bids received, then the bid of the Special Servicer or such
Affiliate shall no longer be deemed not to constitute a fair price. A bid of the
Special Servicer shall not be accepted in the absence of a determination by the
Trustee, as provided above in this Section 3.18(e), that such bid constitutes a
fair price for any Defaulted Mortgage Loan or REO Property. Any bid by the
Special Servicer shall be unconditional and if accepted the Defaulted Mortgage
Loan or REO Property shall be transferred to the Special Servicer without
recourse, representation or warranty other than customary representations as to
title given in connection with the sale of a mortgage loan or real property.
(f) Subject to Sections 3.18(a) through 3.18(e) above, the Special Servicer
shall act on behalf of the Trustee in negotiating with independent third parties
and taking any other action necessary or appropriate in connection with the sale
of any Defaulted Mortgage Loan or REO Property, and the collection of all
amounts payable in connection therewith. In connection therewith, the Special
Servicer may charge prospective bidders, and may retain, fees that approximate
the Special Servicer's actual costs in the preparation and delivery of
information pertaining to such sales or evaluating bids without obligation to
deposit such amounts into the Collection Account. Any sale of a Defaulted
Mortgage Loan or any REO Property shall be final and without recourse to the
Trustee or the Trust Fund, and if such sale is consummated in accordance with
the terms of this Agreement, neither the Special Servicer nor the Trustee shall
have any liability to any Certificateholder with respect to the purchase price
therefor accepted by the Special Servicer or the Trustee.
(g) Any sale of a Defaulted Mortgage Loan or any REO Property shall be for
cash only (unless, except in the case of the Special Servicer, changes in the
REMIC Provisions made subsequent to the Startup Day allow a sale for other
consideration).
(h) Notwithstanding any of the foregoing paragraphs of this Section 3.18,
the Special Servicer shall not be obligated to accept the highest cash bid if
the Special Servicer determines, in accordance with the Servicing Standard, that
rejection of such bid would be in the best interests of the Certificateholders,
and the Special Servicer may accept a lower cash bid (from any Person other than
itself or an Affiliate) if it determines, in accordance with the Servicing
Standard, that acceptance of such bid would be in the best interests of the
Certificateholders (for example, if the prospective buyer making the lower bid
is more likely to perform its obligations or the terms offered by the
prospective buyer making the lower bid are more favorable).
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SECTION 3.19. Additional Obligations of Master Servicer.
(a) The Master Servicer shall deliver to the Trustee for deposit in the
Distribution Account on each Master Servicer Remittance Date, without any right
of reimbursement therefor, an amount equal to the lesser of (i) the aggregate
amount of Prepayment Interest Shortfalls incurred in connection with Principal
Prepayments received during the most recently ended Collection Period, and (ii)
the total amount of Master Servicing Fees received by the Master Servicer during
such Collection Period plus any Prepayment Interest Excesses received during
such Collection Period.
(b) No more frequently than once per calendar month, the Special Servicer
may require the Master Servicer, and the Master Servicer shall be obligated, to
reimburse the Special Servicer for any Servicing Advances made by but not
previously reimbursed to the Special Servicer, and to pay the Special Servicer
interest thereon at the Reimbursement Rate from the date made to, but not
including, the date of reimbursement. Such reimbursement and any accompanying
payment of interest shall be made within ten (10) days of the request therefor
by wire transfer of immediately available funds to an account designated by the
Special Servicer. Upon the Master Servicer's reimbursement to the Special
Servicer of any Servicing Advance and payment to the Special Servicer of
interest thereon, all in accordance with this Section 3.19(b), the Master
Servicer shall for all purposes of this Agreement be deemed to have made such
Servicing Advance at the same time as the Special Servicer actually made such
Advance, and accordingly, the Master Servicer shall be entitled to reimbursement
for such Advance, together with interest thereon in accordance with Sections
3.05(a) and 3.11(f), at the same time, in the same manner and to the same extent
as the Master Servicer would otherwise have been entitled if it had actually
made such Servicing Advance at the time the Special Servicer did.
Notwithstanding anything to the contrary contained in this Agreement, if
the Special Servicer is required under this Agreement to make any Servicing
Advance but does not desire to do so, the Special Servicer may, in its sole
discretion, request that the Master Servicer make such Advance, such request to
be made in writing and in a timely manner that does not adversely affect the
interests of any Certificateholder; provided, however, that the Special Servicer
shall have an obligation to make any Emergency Advance. The Master Servicer
shall have the obligation to make any such Servicing Advance (other than an
Emergency Advance) that it is requested by the Special Servicer to make within
ten days of the Master Servicer's receipt of such request. The Special Servicer
shall be relieved of any obligations with respect to an Advance that it requests
the Master Servicer to make (regardless of whether or not the Master Servicer
shall make such Advance) other than an Emergency Advance. The Master Servicer
shall be entitled to reimbursement for any Servicing Advance made by it at the
direction of the Special Servicer, together with interest thereon in accordance
with Sections 3.05(a) and 3.11(f), at the same time, in the same manner and to
the same extent as the Master Servicer is entitled with respect to any other
Servicing Advance made thereby.
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Notwithstanding the foregoing provisions of this Section 3.19(b), the
Master Servicer shall not be required to reimburse the Special Servicer for, or
to make at the Special Servicer's direction, any Servicing Advance if the Master
Servicer determines in its reasonable good faith judgment that the Servicing
Advance for which the Special Servicer is requesting reimbursement, or which the
Special Servicer is directing the Master Servicer to make, hereunder, although
not characterized by the Special Servicer as a Nonrecoverable Servicing Advance,
is in fact a Nonrecoverable Servicing Advance. The Master Servicer shall notify
the Special Servicer in writing of such determination and, if applicable, such
Nonrecoverable Servicing Advance shall be reimbursed to the Special Servicer
pursuant to Section 3.05(a).
(c) Promptly (and, in any event, within 60 days) following the earliest of
(i) the date on which any Mortgage Loan becomes a Modified Mortgage Loan, (ii)
the 60th day (or, in the case of a Modified Mortgage Loan, the 30th day) after
the occurrence of any uncured delinquency in Monthly Payments with respect to
any Mortgage Loan, (iii) the date on which a receiver is appointed and continues
in such capacity in respect of the Mortgaged Property securing any Mortgage Loan
and (iv) the date on which the Mortgaged Property securing any Mortgage Loan
becomes an REO Property (each such Mortgage Loan, a "Required Appraisal Loan"),
the Special Servicer shall obtain an Appraisal of the related Mortgaged
Property, unless an Appraisal thereof had previously been obtained within the
prior twelve months. The cost of such Appraisal shall be a Servicing Advance.
With respect to each Required Appraisal Loan (unless such Required
Appraisal Loan has become a Corrected Mortgage Loan and has remained current for
twelve consecutive Monthly Payments, and no other Servicing Transfer Event has
occurred with respect thereto during such twelve months), the Special Servicer
shall, within 30 days of each anniversary of such Required Appraisal Loan's
having become such, order an update of the prior Appraisal (the cost of which
will be a Servicing Advance). Based upon such Appraisal, the Special Servicer
shall redetermine and report to the Trustee the Appraisal Reduction Amount, if
any, with respect to such Required Appraisal Loan.
SECTION 3.20. Modifications, Waivers, Amendments and Consents.
(a) The Special Servicer may, consistent with the Servicing Standard (but
the Master Servicer may not) agree to any modification, waiver or amendment of
any term of, forgive interest (including, without limitation, Default Interest
and late payment fees) on and principal of, capitalize interest on, permit the
release, addition or substitution of collateral securing, and/or permit the
release of the Mortgagor on or any guarantor of any Mortgage Loan without the
consent of any other party hereto or any Certificateholder, subject, however, to
each of the following limitations, conditions and restrictions:
(i) other than as provided in Section 3.08 and in subsection (c)
below, the Special Servicer shall not agree to any modification, waiver or
amendment of any term of, or take any of the other acts referenced in this
Section 3.20(a) with respect to, any
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Mortgage Loan that would affect the amount or timing of any related payment
of principal, interest or other amount payable thereunder or, in the
Special Servicer's reasonable good faith judgment, would materially impair
the security for such Mortgage Loan or reduce the likelihood of timely
payment of amounts due thereon, unless a material default on such Mortgage
Loan has occurred or, in the Special Servicer's reasonable good faith
judgment, a default in respect of payment on such Mortgage Loan is
reasonably foreseeable, and such modification, waiver, amendment or other
action is reasonably likely to produce a greater recovery to
Certificateholders on a present value basis (the relevant discounting of
anticipated collections that will be distributable to Certificateholders to
be done at the related Net Mortgage Rate), than would liquidation;
(ii) the Special Servicer may not extend the date on which any Balloon
Payment is scheduled to be due on any Specially Serviced Mortgage Loan more
than three times and, in the case of any such extension, for more than one
year; and, furthermore, the Special Servicer may not grant any such
extension unless (A) the Special Servicer's recovery determination
contemplated by the immediately preceding clause (i) is supported by an
Appraisal performed within the preceding 12-month period and (B) the
Mortgagor agrees to deliver to the Special Servicer and the Trustee
quarterly operating statements with respect to the related Mortgaged
Property (the Special Servicer to request that such statements be audited,
provided that the Special Servicer may waive such condition relating to
such statements being audited, in its sole discretion);
(iii) the Special Servicer shall not make or permit any modification,
waiver or amendment of any term of, or take any of the other acts
referenced in this Section 3.20(a) with respect to, any Mortgage Loan that
would (A) cause any of REMIC I, REMIC II or REMIC III to fail to qualify as
a REMIC under the Code or result in the imposition of any tax on
"prohibited transactions" or "contributions" after the Startup Day of any
such REMIC under the REMIC Provisions or (B) cause any Mortgage Loan to
cease to be a "qualified mortgage" within the meaning of Section 860G(a)(3)
of the Code;
(iv) the Special Servicer shall not permit any Mortgagor to add or
substitute any collateral pursuant to this Section 3.20 unless the Special
Servicer shall have first determined in accordance with the Servicing
Standard, based upon a Phase I Environmental Assessment prepared by an
Independent Person who regularly conducts Phase I Environmental
Assessments, at the expense of the Mortgagor, that such additional or
substitute collateral is in compliance with applicable environmental laws
and regulations and that there are no circumstances or conditions present
with respect to such new collateral relating to the use, management or
disposal of any Hazardous Materials for which investigation, testing,
monitoring, containment, clean-up or remediation would be required under
any then applicable environmental laws and/or regulations; and
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(v) the Special Servicer shall not release or substitute any
collateral securing an outstanding Mortgage Loan except as provided in
Section 3.09(d), except where a Mortgage Loan is satisfied and except in
the case of a release where (A) the use of the collateral to be released
will not, in the Special Servicer's reasonable good faith judgment,
materially and adversely affect the Net Operating Income being generated by
or the use of the related Mortgaged Property, (B) there is a corresponding
principal paydown of such Mortgage Loan in an amount at least equal to the
appraised value of the collateral to be released (or substitute collateral
with an appraised value at least equal to that of the collateral to be
released, is delivered), (C) the remaining Mortgaged Property (together
with any substitute collateral) is, in the Special Servicer's reasonable
good faith judgment, adequate security for the remaining Mortgage Loan and
(D) such release would not result in the downgrade, qualification or
withdrawal of the rating then assigned by either Rating Agency to any Class
of Certificates (as confirmed in writing by each Rating Agency);
provided that (x) the limitations, conditions and restrictions set forth in
clauses (i) through (v) above shall not apply to any modification of any term of
any Mortgage Loan that is required under the terms of such Mortgage Loan in
effect on the Closing Date or that is solely within the control of the related
Mortgagor, and (y) notwithstanding clauses (i) through (v) above, neither the
Master Servicer nor the Special Servicer shall be required to oppose the
confirmation of a plan in any bankruptcy or similar proceeding involving a
Mortgagor if in its reasonable good faith judgment such opposition would not
ultimately prevent the confirmation of such plan or one substantially similar.
(b) The Special Servicer shall have no liability to the Trust Fund, the
Certificateholders or any other Person if the Special Servicer's analysis and
determination that the modification, waiver, amendment or other action
contemplated by Section 3.20(a) is reasonably likely to produce a greater
recovery to Certificateholders on a present value basis than would liquidation,
should prove to be wrong or incorrect, so long as the analysis and determination
were made on a reasonable basis in good faith by the Special Servicer.
(c) Any payment of interest, which is deferred pursuant to Section 3.20(a),
shall not, for purposes hereof, including, without limitation, calculating
monthly distributions to Certificateholders, be added to the unpaid principal
balance of the related Mortgage Loan, notwithstanding that the terms of such
Mortgage Loan so permit or that such interest may actually be capitalized.
(d) The Special Servicer may, as a condition to its granting any request by
a Mortgagor for consent, modification, waiver or indulgence or any other matter
or thing, the granting of which is within the Special Servicer's discretion
pursuant to the terms of the instruments evidencing or securing the related
Mortgage Loan and is permitted by the terms of this Agreement, require that such
Mortgagor pay to it, as additional servicing compensation, a reasonable or
customary fee (not to exceed ___% of the unpaid principal balance of the related
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Mortgage Loan) for the additional services performed in connection with such
request, together with any related costs and expenses incurred by it.
(e) All modifications, waivers, amendments and other actions entered into
or taken in respect of the Mortgage Loans pursuant to this Section 3.20 shall be
in writing. The Special Servicer shall notify the Master Servicer and the
Trustee, in writing, of any modification, waiver, amendment or other action
entered into or taken in respect of any Mortgage Loan pursuant to this Section
3.20 and the date thereof, and shall deliver to the Trustee or the related
Custodian for deposit in the related Mortgage File (with a copy to the other
such party), an original counterpart of the agreement relating to such
modification, waiver, amendment or other action, promptly (and in any event
within 10 Business Days) following the execution thereof. In addition, following
the execution of any modification, waiver or amendment agreed to by the Special
Servicer pursuant to Section 3.20(a) above, the Special Servicer shall deliver
to the Master Servicer and the Trustee an Officer's Certificate certifying that
all of the requirements of Section 3.20(a) have been met and setting forth in
reasonable detail the basis of the determination made by it pursuant to Section
3.20(a)(i).
SECTION 3.21. Transfer of Servicing Between Master Servicer and Special
Servicer; Record Keeping.
(a) Upon determining that a Servicing Transfer Event has occurred with
respect to any Mortgage Loan and if the Master Servicer is not also the Special
Servicer, the Master Servicer shall immediately give notice thereof, and shall
deliver the related Servicing File, to the Special Servicer and shall use its
reasonable best efforts to provide the Special Servicer with all information,
documents (or copies thereof) and records (including records stored
electronically on computer tapes, magnetic discs and the like) relating to the
Mortgage Loan and reasonably requested by the Special Servicer to enable it to
assume its functions hereunder with respect thereto without acting through a
Sub-Servicer. The Master Servicer shall use its reasonable best efforts to
effect compliance with the preceding sentence within five Business Days of the
occurrence of each related Servicing Transfer Event. The Special Servicer may,
as to any delinquent Mortgage Loan, prior to the occurrence of a Servicing
Transfer Event with respect thereto, request and obtain the foregoing documents
and information in order to perform its duties described in Section 3.02.
Upon determining that a Specially Serviced Mortgage Loan has become a
Corrected Mortgage Loan and if the Master Servicer is not also the Special
Servicer, the Special Servicer shall immediately give notice thereof, and shall
return the related Servicing File within 10 Business Days, to the Master
Servicer; and, upon giving such notice and returning such Servicing File to the
Master Servicer, the Special Servicer's obligation to service such Mortgage
Loan, and the Special Servicer's right to receive the Special Servicing Fee with
respect to such Mortgage Loan, shall terminate, and the obligations of the
Master Servicer to service and administer such Mortgage Loan shall resume.
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(b) In servicing any Specially Serviced Mortgage Loans, the Special
Servicer shall provide to the Trustee originals of documents included within the
definition of "Mortgage File" and generated while such Mortgage Loan is a
Specially Serviced Mortgage Loan for inclusion in the related Mortgage File
(with a copy of each such original to the Master Servicer), and copies of any
additional related Mortgage Loan information, including correspondence with the
related Mortgagor generated while such Mortgage Loan is a Specially Serviced
Mortgage Loan.
(c) The Master Servicer and Special Servicer shall each furnish to the
other, upon reasonable request, such reports, documents, certifications and
information in its possession, and access to such books and records maintained
thereby, as may relate to the Mortgage Loans and any REO Properties and as shall
be reasonably required by the requesting party in order to perform its duties
hereunder.
(d) Notwithstanding anything in this Agreement to the contrary, in the
event that the Master Servicer and the Special Servicer are the same Person, all
notices, certificates, information and consents required to be given by the
Master Servicer to the Special Servicer or vice versa shall be deemed to be
given without the necessity of any action on such Person's part.
(e) In connection with the performance of its obligations hereunder, each
of the Master Servicer and the Special Servicer shall be entitled to rely upon
written information provided to it by the other.
SECTION 3.22. Sub-Servicing Agreements.
(a) The Master Servicer and the Special Servicer may enter into
Sub-Servicing Agreements to provide for the performance by third parties of any
or all of their respective obligations hereunder, provided that, in each case,
the Sub-Servicing Agreement: (i) is consistent with this Agreement in all
material respects and requires the Sub-Servicer to comply with all of the
applicable conditions of this Agreement; (ii) provides that if the Master
Servicer or the Special Servicer, as the case may be, shall for any reason no
longer act in such capacity hereunder (including, without limitation, by reason
of an Event of Default), the Trustee or its designee may thereupon assume all of
the rights and, except to the extent they arose prior to the date of assumption,
obligations of the Master Servicer or the Special Servicer, as the case may be,
under such agreement or, alternatively, may terminate such subservicing
agreement without cause and without payment of any penalty or termination fee;
(iii) provides that the Trustee, for the benefit of the Certificateholders,
shall be a third party beneficiary under such agreement, but that (except to the
extent the Trustee or its designee assumes the obligations of the Master
Servicer or the Special Servicer, as the case may be, thereunder as contemplated
by the immediately preceding clause (ii)) none of the Trustee, any successor
Master Servicer or Special Servicer, as the case may be, or any
Certificateholder shall have any duties under such agreement or any liabilities
arising therefrom; (iv) permits any purchaser of a Mortgage Loan pursuant to
this Agreement to terminate such agreement with respect to such purchased
Mortgage Loan at its option and without
99
penalty; (v) does not permit the Sub-Servicer to enter into or consent to any
modification, waiver or amendment or otherwise take any action on behalf of the
Master Servicer or Special Servicer, as the case may be, contemplated by Section
3.20 hereof without the consent of the Master Servicer or Special Servicer, as
the case may be; and (vi) does not permit the Sub-Servicer any rights of
indemnification that may be satisfied out of assets of the Trust Fund. In
addition, each Sub-Servicing Agreement entered into by the Master Servicer shall
provide that such agreement shall terminate with respect to any Mortgage Loan
serviced thereunder at the time such Mortgage Loan becomes a Specially Serviced
Mortgage Loan, and each Sub-Servicing Agreement entered into by the Special
Servicer shall relate only to Specially Serviced Mortgage Loans and shall
terminate with respect to any such Mortgage Loan which ceases to be a Specially
Serviced Mortgage Loan. The Master Servicer and the Special Servicer shall each
deliver to the Trustee and each Holder of a Class B-3 Certificate, a Class B-4
Certificate or a Class C Certificate copies of all Sub-Servicing Agreements, and
any amendments thereto and modifications thereof, entered into by it promptly
upon its execution and delivery of such documents. References in this Agreement
to actions taken or to be taken by the Master Servicer or the Special Servicer
include actions taken or to be taken by a Sub-Servicer on behalf of the Master
Servicer or the Special Servicer, as the case may be; and, in connection
therewith, all amounts advanced by any Sub-Servicer to satisfy the obligations
of the Master Servicer or the Special Servicer hereunder to make Advances shall
be deemed to have been advanced by the Master Servicer or the Special Servicer,
as the case may be, out of its own funds and, accordingly, such Advances shall
be recoverable by such Sub-Servicer in the same manner and out of the same funds
as if such Sub-Servicer were the Master Servicer or the Special Servicer, as the
case may be. For so long as they are outstanding, Advances shall accrue interest
in accordance with Sections 3.11(f) and/or 4.03(d), such interest to be
allocable between the Master Servicer or the Special Servicer, as the case may
be, and such Sub-Servicer as they may agree. For purposes of this Agreement, the
Master Servicer and the Special Servicer each shall be deemed to have received
any payment when a Sub-Servicer retained by it receives such payment. The Master
Servicer and the Special Servicer each shall notify the other, the Trustee and
the Depositor in writing promptly of the appointment by it of any Sub- Servicer.
(b) Each Sub-Servicer shall be authorized to transact business in the state
or states in which the related Mortgaged Properties it is to service are
situated, if and to the extent required by applicable law.
(c) The Master Servicer and the Special Servicer, for the benefit of the
Trustee and the Certificateholders, shall (at no expense to the other such party
or to the Trustee, the Certificateholders or the Trust Fund) monitor the
performance and enforce the obligations of their respective Sub-Servicers under
the related Sub-Servicing Agreements. Such enforcement, including, without
limitation, the legal prosecution of claims, termination of Sub-Servicing
Agreements in accordance with their respective terms and the pursuit of other
appropriate remedies, shall be in such form and carried out to such an extent
and at such time as the Master Servicer or the Special Servicer, as applicable,
in its reasonable good faith judgment, would require were it the owner of the
Mortgage Loans. Subject to the terms of the related Servicing
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Agreement, the Master Servicer and the Special Servicer shall each have the
right to remove a Sub-Servicer retained by it at any time it considers such
removal to be in the best interests of Certificateholders.
(d) If the Master Servicer or the Special Servicer ceases to serve as such
under this Agreement for any reason (including by reason of an Event of Default)
and no successor Master Servicer or Special Servicer, as the case may be, has
succeeded to its rights and assumed its obligations hereunder or, in the case of
the Special Servicer, no replacement Special Servicer has been designated
pursuant to Section 6.06, then the Trustee or its designee shall succeed to the
rights and assume the obligations of the Master Servicer or the Special Servicer
under any Sub- Servicing Agreement, unless the Trustee elects to terminate any
such Sub-Servicing Agreement in accordance with its terms. In any event, if a
Sub-Servicing Agreement is to be assumed by the Trustee or another successor
thereto, then the Master Servicer or the Special Servicer, as applicable, at its
expense shall, upon request of the Trustee, deliver to the assuming party all
documents and records relating to such Sub-Servicing Agreement and the Mortgage
Loans then being serviced thereunder and an accounting of amounts collected and
held on behalf of it thereunder, and otherwise use its best efforts to effect
the orderly and efficient transfer of the Sub- Servicing Agreement to the
assuming party.
(e) Notwithstanding any Sub-Servicing Agreement, the Master Servicer and
the Special Servicer shall remain obligated and liable to the Trustee and the
Certificateholders for the performance of their respective obligations and
duties under this Agreement in accordance with the provisions hereof to the same
extent and under the same terms and conditions as if each alone were servicing
and administering the Mortgage Loans or REO Properties for which it is
responsible. No appointment of a Sub-Servicer shall result in any additional
expense to the Trustee, the Certificateholders or the Trust Fund.
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ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
SECTION 4.01. Distributions.
(a) On each Distribution Date, the Trustee shall apply amounts on deposit
in the Distribution Account, in each case to the extent of the remaining portion
of the Available Distribution Amount for such Distribution Date, for the
following purposes and in the following order of priority:
(i) to distributions of interest to the Holders of the respective
Classes of Senior Certificates, in an amount equal to, and pro rata in
accordance with, all Distributable Certificate Interest in respect of each
such Class of Certificates for such Distribution Date and, to the extent
not previously paid, for all prior Distribution Dates;
(ii) to distributions of principal to the Holders of the Class A-1A
Certificates and the Holders of the Class A-1B Certificates, allocable as
between the Holders of such two Classes of Certificates as provided below,
in an amount (not to exceed the aggregate of the Class Principal Balances
of the Class A-1A Certificates and the Class A-1B Certificates outstanding
immediately prior to such Distribution Date) equal to the entire Principal
Distribution Amount for such Distribution Date;
(iii) to distributions to the Holders of the Class A-1A Certificates
and the Holders of the Class A-1B Certificates in an amount equal to, in
reimbursement of and pro rata in accordance with, all Realized Losses and
Additional Trust Fund Expenses, if any, previously deemed allocated to each
such Class of Certificates and not previously reimbursed;
(iv) to distributions of interest to the Holders of the Class A-2
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of such Class of Certificates for such Distribution Date and, to
the extent not previously paid, for all prior Distribution Dates;
(v) if the Class Principal Balances of the Class A-1A Certificates and
the Class A-1B Certificates have been reduced to zero, to distributions of
principal to the Holders of the Class A-2 Certificates, in an amount (not
to exceed the Class Principal Balance of the Class A-2 Certificates
outstanding immediately prior to such Distribution Date) equal to the
entire Principal Distribution Amount for such Distribution Date (net of any
portion thereof distributed on such Distribution Date
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to the Holders of the Class A-1A Certificates and/or Class A-1B
Certificates pursuant to clause (ii) above);
(vi) to distributions to the Holders of the Class A-2 Certificates, in
an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously deemed allocated to such
Class of Certificates and not previously reimbursed;
(vii) to distributions of interest to the Holders of the Class A-3
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of such Class of Certificates for such Distribution Date and, to
the extent not previously paid, for all prior Distribution Dates;
(viii) if the Class Principal Balances of the Class A-1A Certificates,
the Class A-1B Certificates and the Class A-2 Certificates have been
reduced to zero, to distributions of principal to the Holders of the Class
A-3 Certificates, in an amount (not to exceed the Class Principal Balance
of the Class A-3 Certificates outstanding immediately prior to such
Distribution Date) equal to the entire Principal Distribution Amount for
such Distribution Date (net of any portion thereof distributed on such
Distribution Date to the Holders of the Class A-1A Certificates and/or
Class A-1B Certificates pursuant to clause (ii) above or to the Holders of
the Class A-2 Certificates pursuant to clause (v) above);
(ix) to distributions to the Holders of the Class A-3 Certificates, in
an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously deemed allocated to such
Class of Certificates and not previously reimbursed;
(x) to distributions of interest to the Holders of the Class B-1
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of such Class of Certificates for such Distribution Date and, to
the extent not previously paid, for all prior Distribution Dates;
(xi) if the Class Principal Balances of the Class A-1A Certificates,
the Class A-1B Certificates, the Class A-2 Certificates and the Class A-3
Certificates have been reduced to zero, to distributions of principal to
the Holders of the Class B-1 Certificates, in an amount (not to exceed the
Class Principal Balance of the Class B-1 Certificates outstanding
immediately prior to such Distribution Date) equal to the entire Principal
Distribution Amount for such Distribution Date (net of any portion thereof
distributed on such Distribution Date to the Holders of the Class A-1A
Certificates and/or Class A-1B Certificates pursuant to clause (ii) above,
to the Holders of the Class A-2 Certificates pursuant to clause (v) above
or to the Holders of the Class A-3 Certificates pursuant to clause (viii)
above);
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(xii) to distributions to the Holders of the Class B-1 Certificates,
in an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust fund Expenses, if any, previously deemed allocated to such
Class of Certificates and not previously reimbursed;
(xiii) to distributions of interest to the Holders of the Class B-2
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of such Class of Certificates for such Distribution Date and, to
the extent not previously paid, for all prior Distribution Dates;
(xiv) if the Class Principal Balances of the Class A-1A Certificates,
the Class A-1B Certificates, the Class A-2 Certificates, the Class A-3
Certificates and the Class B-1 Certificates have been reduced to zero, to
distributions of principal to the Holders of the Class B-2 Certificates, in
an amount (not to exceed the Class Principal Balance of the Class B-2
Certificates outstanding immediately prior to such Distribution Date) equal
to the entire Principal Distribution Amount for such Distribution Date (net
of any portion thereof distributed on such Distribution Date to the Holders
of the Class A-1A Certificates and/or Class A-1B Certificates pursuant to
clause (ii) above, to the Holders of the Class A-2 Certificates pursuant to
clause (v) above, to the Holders of the Class A-3 Certificates pursuant to
clause (viii) above or to the Holders the Class B-1 Certificates pursuant
to clause (xi) above);
(xv) to distributions to the Holders of the Class B-2 Certificates, in
an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously deemed allocated to such
Class of Certificates and not previously reimbursed;
(xvi) to distributions of interest to the Holders of the Class B-3
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of such Class of Certificates for such Distribution Date and, to
the extent not previously paid, for all prior Distribution Dates;
(xvii) if the Class Principal Balances of the Class A-1A Certificates,
the Class A-1B Certificates, the Class A-2 Certificates, the Class A-3
Certificates, the Class B-1 Certificates and the Class B-2 Certificates
have been reduced to zero, to distributions of principal to the Holders of
the Class B-3 Certificates, in an amount (not to exceed the Class Principal
Balance of the Class B-3 Certificates outstanding immediately prior to such
Distribution Date) equal to the entire Principal Distribution Amount for
such Distribution Date (net of any portion thereof distributed on such
Distribution Date to the Holders of the Class A-1A Certificates and/or
Class A-1B Certificates pursuant to clause (ii) above, to the Holders of
the Class A-2 Certificates pursuant to clause (v) above, to the Holders of
the Class A-3
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Certificates pursuant to clause (viii) above, to the Holders of the Class
B-1 Certificates pursuant to clause (xi) above or to the Holders of the
Class B-2 Certificates pursuant to clause (xiv) above);
(xviii) to distributions to the Holders of the Class B-3 Certificates,
in an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously deemed allocated to such
Class of Certificates and not previously reimbursed;
(xix) to distributions of interest to the Holders of the Class B-4
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of such Class of Certificates for such Distribution Date and, to
the extent not previously paid, for all prior Distribution Dates;
(xx) if the Class Principal Balances of the Class A-1A Certificates,
the Class A-1B Certificates, the Class A-2 Certificates, the Class A-3
Certificates, the Class B-1 Certificates, the Class B-2 Certificates and
the Class B-3 Certificates have been reduced to zero, to distributions of
principal to the Holders of the Class B-4 Certificates, in an amount (not
to exceed the Class Principal Balance of the Class B-4 Certificates
outstanding immediately prior to such Distribution Date) equal to the
entire Principal Distribution Amount for such Distribution Date (net of any
portion thereof distributed on such Distribution Date to the Holders of the
Class A-1A Certificates and/or Class A-1B Certificates pursuant to clause
(ii) above, to the Holders of the Class A-2 Certificates pursuant to clause
(v) above, to the Holders of the Class A-3 Certificates pursuant to clause
(viii) above, to the Holders of the Class B-1 Certificates pursuant to
clause (xi) above, to the Holders of the Class B-2 Certificates pursuant to
clause (xiv) above or to the Holders of the Class B-3 Certificates pursuant
to clause (xvii) above);
(xxi) to distributions to the Holders of the Class B-4 Certificates,
in an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses, if any, previously deemed allocated to such
Class of Certificates and not previously reimbursed;
(xxii) to distributions of interest to the Holders of the Class C
Certificates, in an amount equal to all Distributable Certificate Interest
in respect of such Class of Certificates for such Distribution Date and, to
the extent not previously paid, for all prior Distribution Dates;
(xxiii) if the Class Principal Balances of the Class A-1A
Certificates, the Class A-1B Certificates, the Class A-2 Certificates, the
Class A-3 Certificates, the Class B-1 Certificates, the Class B-2
Certificates, the Class B-3 Certificates and the Class B-4 Certificates
have been reduced to zero, to distributions of principal to the
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Holders of the Class C Certificates, in an amount (not to exceed the Class
Principal Balance of the Class C Certificates outstanding immediately prior
to such Distribution Date) equal to the entire Principal Distribution
Amount for such Distribution Date (net of any portion thereof distributed
on such Distribution Date to the Holders of the Class A-1A Certificates
and/or Class A-1B Certificates pursuant to clause (ii) above, to the
Holders of the Class A-2 Certificates pursuant to clause (v) above, to the
Holders of the Class A-3 Certificates pursuant to clause (viii) above, to
the Holders of the Class B-1 Certificates pursuant to clause (xi) above, to
the Holders of the Class B-2 Certificates pursuant to clause (xiv) above,
to the Holders of the Class B-3 Certificates pursuant to clause (xvii)
above or to the Holders of the Class B-4 Certificates pursuant to clause
(xx) above);
(xxiv) to distributions to the Holders of the Class C Certificates, in
an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Fund Expenses previously deemed allocated to such Class of
Certificates and not previously reimbursed; and
(xxv) to distributions to the Holders of the Class R-I Certificates,
in an amount equal to the balance, if any, of the Available Distribution
Amount for such Distribution Date remaining after the distributions to be
made on such Distribution Date pursuant to clauses (i) through (xxiv)
above;
provided that, notwithstanding anything to the contrary herein, on the Final
Distribution Date, the distributions of principal to be made pursuant to clauses
(ii), (v), (viii), (xi), (xiv), (xvii), (xx) and (xxiii) above shall, in each
such case, subject to the then remaining portion of the Available Distribution
Amount for such date, be made to the Holders of the relevant Class or Classes of
Sequential Pay Certificates otherwise entitled to distributions of principal
pursuant to such clause in an amount equal to the entire Class Principal Balance
or Balances of such Class or Classes outstanding immediately prior to the Final
Distribution Date.
On each Distribution Date prior to the earlier of (i) the Senior Principal
Distribution Cross-Over Date and (ii) the Final Distribution Date, the Trustee
shall pay the distributions of principal made on the Class A-1A and Class A-1B
Certificates pursuant to clause (ii) above, first, to the Holders of the Class
A-1A Certificates, until the Class Principal Balance of such Class has been
reduced to zero, and thereafter, to the Holders of the Class A-1B Certificates,
until the Class Principal Balance of such Class has been reduced to zero. On any
Distribution Date coinciding with or following the Senior Principal Distribution
Cross-Over Date, and (in any event) on the Final Distribution Date, the Trustee
shall pay the distributions of principal made on the Class X- 0X and Class A-1B
Certificates pursuant to clause (ii) above to the Holders of the Class A-1A
Certificates and the Holders of the Class A-1B Certificates, pro rata in
accordance with the respective Class Principal Balances of such Classes
outstanding immediately prior to such Distribution Date, until the Class
Principal Balance of each such Class has been reduced to zero.
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All distributions of interest made in respect of the Class S Certificates
on any Distribution Date pursuant to clause (i) above, shall be deemed to have
been made in respect of Component S-A1A, Component S-A1B, Component S-A2,
Component S-A3, Component S-B1, Component S-B2, Component S-B3, Component S-B4
and Component S-C, pro rata in accordance with the respective amounts of
Distributable Certificate Interest that would be payable on such Components on
such Distribution Date if each such Component were treated as a separate Class
of REMIC III Regular Certificates.
Distributions in reimbursement of the Holders of any Class of Sequential
Pay Certificates for previously allocated Realized Losses and Additional Trust
Fund Expenses shall not constitute distributions of principal and shall not
result in reduction of the Certificate Principal Balances of such Certificates
or of the related Class Principal Balance.
(b) On each Distribution Date, the Trustee shall withdraw any amounts then
on deposit in the Distribution Account that represent Net Prepayment Premiums
collected during or prior to the related Collection Period and shall distribute
such amounts, in each case as additional interest, as follows:
(i) if the Class Notional Amount of the Class S Certificates
outstanding immediately prior to such Distribution Date is greater than
zero, all such Net Prepayment Premiums shall be distributed to the Holders
of the Class S Certificates; and
(ii) if the Class Notional Amount of the Class S Certificates has been
reduced to zero prior to such Distribution Date, all such Net Prepayment
Premiums shall be distributed to the Holders of the Class R-I Certificates.
On each Distribution Date, the Trustee shall withdraw any amounts then on
deposit in the Distribution Account that represent Net Yield Maintenance
Premiums collected during or prior to the related Collection Period and shall
distribute such amounts, in each case as additional interest, as follows:
(i) if the Class Notional Amount of the Class S Certificates
outstanding immediately prior to such Distribution Date is greater than
zero, each such Net Yield Maintenance Premium shall be distributed (A) up
to the corresponding Certificate Yield Maintenance Amount(s), to the
Holders of the Class(es) of Sequential Pay Certificates entitled to
distributions of principal on such Distribution Date, pro rata based on
entitlement if there is more than one such Class, and (B) to the extent of
the balance, if any, of such Net Yield Maintenance Premium, to the Holders
of the Class S Certificates; and
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(ii) if the Class Notional Amount of the Class S Certificates has been
reduced to zero prior to such Distribution Date, all such Net Yield
Maintenance Premiums shall be distributed to the Holders of the Class R-I
Certificates.
All distributions of additional interest (in the form of Net Prepayment
Premiums or Net Yield Maintenance Premiums) made in respect of the Class S
Certificates on any Distribution Date pursuant to this Section 4.01(b), shall be
deemed to have been made in respect of Component S-A1A, Component S-A1B,
Component S-A2, Component S-A3, Component S-B1, and Component S-B2, Component
S-B3, Component S-B4 and Component S-C, pro rata in accordance with the
respective reductions in the Component Notional Amount of each such Component as
a result of the deemed distributions of principal on the REMIC II Regular
Interests on such Distribution Date pursuant to Section 4.01(h).
(c) All distributions made with respect to each Class on each Distribution
Date shall be allocated pro rata among the outstanding Certificates in such
Class based on their respective Percentage Interests. Except as otherwise
provided below, all such distributions with respect to each Class on each
Distribution Date shall be made to the Certificateholders of the respective
Class of record at the close of business on the related Record Date and shall be
made by wire transfer of immediately available funds to the account of any such
Certificateholder at a bank or other entity having appropriate facilities
therefor, if such Certificateholder shall have provided the Trustee with wiring
instructions no less than five Business Days prior to the related Record Date
(which wiring instructions may be in the form of a standing order applicable to
all subsequent Distribution Dates) and is the registered owner of Certificates
the aggregate initial Certificate Principal Balance of which is at least
$[5,000,000] or initial Certificate Notional Amount of which is at least
$[10,000,000,] or otherwise by check mailed to the address of such
Certificateholder as it appears in the Certificate Register. The final
distribution on each Certificate (determined without regard to any possible
future reimbursement of previously allocated Realized Losses or Additional Trust
Fund Expenses in respect of such Certificate) will be made in like manner, but
only upon presentation and surrender of such Certificate at the offices of the
Certificate Registrar or such other location specified in the notice to
Certificateholders of such final distribution. Notwithstanding anything herein
to the contrary, no distributions will be made with respect to a Certificate
that has previously been surrendered as contemplated by the preceding sentence
or, except as otherwise provided in Section 4.01(f), that should have been
surrendered as contemplated by the preceding sentence.
(d) Each distribution with respect to a Book-Entry Certificate shall be
paid to the Depository, as Holder thereof, and the Depository shall be
responsible for crediting the amount of such distribution to the accounts of its
Depository Participants in accordance with its normal procedures. Each
Depository Participant shall be responsible for disbursing such distribution to
the related Certificate Owners that it represents and to each indirect
participating brokerage firm (a "brokerage firm" or "indirect participating
firm") for which it acts as agent. Each brokerage firm shall be responsible for
disbursing funds to the related Certificate Owners that it represents. None of
the parties hereto shall have any responsibility therefor except as
108
otherwise provided by this Agreement or applicable law. The Trustee and the
Depositor shall perform their respective obligations under the Letter of
Representations among the Depositor, the Trustee and the initial Depository, a
copy of which Letter of Representations is attached hereto as Exhibit C.
(e) The rights of the Certificateholders to receive distributions from the
proceeds of the Trust Fund in respect of their Certificates, and all rights and
interests of the Certificateholders in and to such distributions, shall be as
set forth in this Agreement. Neither the Holders of any Class of Certificates
nor any party hereto shall in any way be responsible or liable to the Holders of
any other Class of Certificates in respect of amounts properly previously
distributed on the Certificates.
(f) Except as otherwise provided in Section 9.01, whenever the Trustee
expects that the final distribution with respect to any Class of Certificates
will be made on the next Distribution Date (such final distribution to be
determined without regard to any possible future reimbursement of previously
allocated Realized Losses and Additional Trust Fund Expenses in respect of such
Class), the Trustee shall, no later than five days after the related
Determination Date, mail to each Holder of record on such date of such Class of
Certificates a notice to the effect that:
(i) the Trustee expects that the final distribution with respect to
such Class of Certificates will be made on such Distribution Date but only
upon presentation and surrender of such Certificates at the office of the
Certificate Registrar or at such other location therein specified, and
(ii) no interest shall accrue on such Certificates from and after such
Distribution Date.
Any funds not distributed to any Holder or Holders of Certificates of such Class
on such Distribution Date because of the failure of such Holder or Holders to
tender their Certificates shall, on such date, be set aside and held uninvested
in trust and credited to the account or accounts of the appropriate
non-tendering Holder or Holders. If any Certificates as to which notice has been
given pursuant to this Section 4.01(f) shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation in order to
receive the final distribution with respect thereto. If within one year after
the second notice all such Certificates shall not have been surrendered for
cancellation, the Trustee, directly or through an agent, shall take such steps
to contact the remaining non-tendering Certificateholders concerning the
surrender of their Certificates as it shall deem appropriate. The 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
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shall not have been surrendered for cancellation by the second anniversary of
the delivery of the second notice, the Trustee shall distribute to the Class
R-III Certificateholders all unclaimed funds and other assets which remain
subject hereto.
(g) Notwithstanding any other provision of this Agreement, the Trustee
shall comply with all federal withholding requirements respecting payments to
Certificateholders of interest or original issue discount that the Trustee
reasonably believes are applicable under the Code. The consent of
Certificateholders shall not be required for such withholding. If the Trustee
does withhold any amount from interest or original issue discount payments or
advances thereof to any Certificateholder pursuant to federal withholding
requirements, the Trustee shall indicate the amount withheld to such
Certificateholder.
(h) All distributions made in respect of each Class of Sequential Pay
Certificates on each Distribution Date pursuant to Section 4.01(a) or 4.01(b)
shall be deemed to have first been distributed from REMIC II to REMIC III in
respect of the REMIC II Regular Interest with the same alphabetical and
numerical designation as such Class of Certificates; all distributions made in
respect of the Class S Certificates on each Distribution Date pursuant to
Section 4.01(a) or 4.01(b), and allocable to Component S-A1A, shall be deemed to
have first been distributed from REMIC II to REMIC III in respect of REMIC II
Regular Interest A-1A; all distributions made in respect of the Class S
Certificates on each Distribution Date pursuant to Section 4.01(a) or 4.01(b),
and allocable to Component S-A1B, shall be deemed to have first been distributed
from REMIC II to REMIC III in respect of REMIC II Regular Interest A-1B; all
distributions made in respect of the Class S Certificates on each Distribution
Date pursuant to Section 4.01(a) or 4.01(b), and allocable to Component S-A2,
shall be deemed to have first been distributed from REMIC II to REMIC III in
respect of REMIC II Regular Interest A-2; all distributions made in respect of
the Class S Certificates on each Distribution Date pursuant to Section 4.01(a)
or 4.01(b), and allocable to Component S-A3, shall be deemed to have first been
distributed from REMIC II to REMIC III in respect of REMIC II Regular Interest
A-3; all distributions made in respect of the Class S Certificates on each
Distribution Date pursuant to Section 4.01(a) or 4.01(b), and allocable to
Component S-B1, shall be deemed to have first been distributed from REMIC II to
REMIC III in respect of REMIC II Regular Interest B-1; all distributions made in
respect of the Class S Certificates on each Distribution Date pursuant to
Section 4.01(a) or 4.01(b), and allocable to Component S-B2, shall be deemed to
have first been distributed from REMIC II to REMIC III in respect of REMIC II
Regular Interest B-2; all distributions made in respect of the Class S
Certificates on each Distribution Date pursuant to Section 4.01(a) or 4.01(b),
and allocable to Component S-B3, shall be deemed to have first been distributed
from REMIC II to REMIC III in respect of REMIC II Regular Interest B-3; all
distributions made in respect of the Class S Certificates on each Distribution
Date pursuant to Section 4.01(a) or 4.01(b), and allocable to Component S-B4,
shall be deemed to have first been distributed from REMIC II to REMIC III in
respect of REMIC II Regular Interest B-4; and all distributions made in respect
of the Class S Certificates on each Distribution Date pursuant to Section
4.01(a) or 4.01(b), and allocable to Component S-C, shall be deemed to have
first been distributed from REMIC II to REMIC III in respect of REMIC II Regular
Interest C. In each case, if such
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distribution on any such Class of Certificates was a distribution of interest,
of principal, of additional interest (in the form or Net Prepayment Premiums or
Net Yield Maintenance Premiums) or in reimbursement of any previously allocated
Realized Losses and Additional Trust Fund Expenses in respect of such Class of
Certificates, then the corresponding distribution deemed to be made on a REMIC
II Regular Interest pursuant to the preceding sentence shall be deemed to also
be a distribution of interest, of principal, of additional interest (in the form
of Net Prepayment Premiums or Net Yield Maintenance Premiums) or in
reimbursement of any previously allocated Realized Losses and Additional Trust
Fund Expenses, as the case may be, in respect of such REMIC II Regular Interest.
The actual distributions made by the Trustee on each Distribution Date in
respect of the REMIC III Certificates pursuant to Sections 4.01(a) and 4.01(b)
shall be deemed to have been so made from the amounts deemed distributed in
respect of the REMIC II Regular Interests on such Distribution Date pursuant to
this Section 4.01(h). Notwithstanding the deemed distributions on the REMIC II
Regular Interests described in this Section 4.01(h), actual distributions of
funds from the Distribution Account shall be made only in accordance with
Section 4.01(a) or 4.01(b), as applicable.
(i) All distributions: (i) of interest deemed to have been made in respect
of the REMIC II Regular Interests on each Distribution Date pursuant to Section
4.01(h) shall be deemed to have first been distributed as interest from REMIC I
to REMIC II in respect of the various REMIC I Regular Interests, pro rata in
accordance with the respective amounts of Uncertificated Distributable Interest
described in this clause (i)(i), in an amount equal to all Uncertificated
Distributable Interest in respect of each such REMIC I Regular Interest for such
Distribution Date and, to the extent not previously deemed paid, for all prior
Distribution Dates; (ii) of principal deemed to have been made in respect of the
REMIC II Regular Interests on each Distribution Date pursuant to Section 4.01(h)
shall be deemed to have first been distributed as principal from REMIC I to
REMIC II in respect of the various REMIC I Regular Interests, pro rata in
accordance with, and to the extent of, with respect to each such REMIC I Regular
Interest, an amount equal to the excess, if any, of the Uncertificated Principal
Balance of such REMIC I Regular Interest outstanding immediately prior to such
Distribution Date, over the Stated Principal Balance of the related Mortgage
Loan or REO Loan, as the case may be, that will be outstanding immediately
following such Distribution Date; (iii) in reimbursement of any previously
allocated Realized Losses and Additional Trust Fund Expenses deemed to have been
made in respect of the REMIC II Regular Interests on each Distribution Date
pursuant to Section 4.01(h) shall be deemed to have first been distributed as a
reimbursement from REMIC I to REMIC II in respect of the REMIC I Regular
Interests, pro rata in accordance with, and to the extent of, with respect to
each such REMIC I Regular Interest, all Realized Losses and Additional Trust
Fund Expenses previously deemed allocated to such REMIC I Regular Interest and
not previously reimbursed; and (iv) of additional interest (in the form of Net
Prepayment Premiums and Net Yield Maintenance Premiums) deemed to have been made
in respect of the REMIC II Regular Interests on such Distribution Date pursuant
to Section 4.01(h) shall be deemed to have first been distributed as additional
interest from REMIC I to REMIC II, in the case of each such Net Prepayment
Premium or Net Yield Maintenance Premium, in respect of the REMIC I Regular
111
Interest created with respect to the Mortgage Loan as to which such Net
Prepayment Premium or Net Yield Maintenance Premium, as the case may be, was
received.
SECTION 4.02. Statements to Certificateholders; Certain Other Reports.
(a) Based on information provided to the Trustee by the Master Servicer and
the Special Servicer pursuant to Sections 4.02(b) and 4.02(c), the Trustee shall
prepare, or cause to be prepared, and mail on each Distribution Date, or as soon
thereafter as is practicable, to the Depositor, the Rating Agencies and each
Certificateholder a statement in respect of the distribution made on such
Distribution Date setting forth to the extent applicable to such Class the
information set forth in Exhibit E-1 hereto (the "Trustee Report"). The Trustee
will make available each month, to any interested party, the Trustee Report via
the Trustee's unrestricted electronic bulletin board. In addition, the Trustee
will also make such Mortgage Loan information as may be requested by the
Depositor available each month, to any Certificateholder, Certificate Owner, the
Rating Agencies, the parties hereto or any interested party who has obtained
approval from the Depositor, which approval has been furnished to the Trustee,
certain Mortgage Loan information via the Trustee's restricted electronic
bulletin board.
(b) By 1:00 p.m. New York City time one Business Day after the last day of
each Collection Period, the Master Servicer shall deliver to the Trustee and the
Special Servicer a report substantially in the form of Exhibit E-2 (the
"Determination Date Report"), reflecting information as of the close of business
on the last day of the Collection Period, in a mutually agreeable electronic
format. The Determination Date Report and any written information supplemental
thereto shall include such information with respect to the Mortgage Loans that
is required by the Trustee for purposes of making the calculations and reports
referred to in Section 4.01, this Section 4.02, Section 4.05 and otherwise in
this Agreement, as set forth in written specifications or guidelines issued by
the Trustee from time to time. Such information may be delivered by the Master
Servicer to the Trustee by telecopy or in such electronic or other form as may
be reasonably acceptable to the Trustee. The Special Servicer shall from time to
time (and, in any event, as may be reasonably required by the Master Servicer)
provide the Master Servicer with such information in its possession regarding
the Specially Serviced Mortgage Loans and REO Properties as may be necessary for
the Master Servicer to prepare each Determination Date Report and any
supplemental information to be provided by the Master Servicer to the Trustee.
(c) By the Determination Date in each month, the Special Servicer shall
deliver to the Master Servicer and the Trustee a report substantially in the
form of Exhibit E-3 (the "Special Servicer Report") reflecting information as of
the close of business on the last day of the Collection Period. The information
contained in such Special Servicer Report shall be incorporated by the Master
Servicer into the Trustee Report to be prepared and delivered by the Master
Servicer in the following month pursuant to the next succeeding sentence hereof.
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Not later than the 30th day following the end of each calendar quarter,
commencing in __________, 199__, the Special Servicer shall deliver to the
Trustee and the Master Servicer a report in the form of Exhibit E-4 (an
"Operating Statement Analysis") with respect to all operating statements and
other financial information collected or otherwise obtained by the Special
Servicer pursuant to Section 3.12(b) during such calendar quarter (together with
copies of the operating statements and other financial information on which it
is based). The Trustee shall forward to Certificateholders copies of all
Operating Statement Analyses received by it, in each case on the Distribution
Date immediately following the receipt thereof.
(d) Within a reasonable period of time after the end of each calendar year,
the Trustee shall prepare, or cause to be prepared, and mail to each Person who
at any time during the calendar year was a Certificateholder (i) a statement
containing the aggregate information set forth on page 1 of Exhibit E-1 hereto
for such calendar year or applicable portion thereof during which such person
was a Certificateholder and (ii) such other customary information as the Trustee
deems necessary or desirable for Certificateholders to prepare their federal,
state and local income tax returns including, without limitation, the amount of
original issue discount accrued on the Certificates, if applicable, which
information described in subclause (ii) of this clause (d) shall be provided to
the Trustee by the REMIC Administrator. The obligations of the Trustee in the
immediately preceding sentence shall be deemed to have been satisfied to the
extent that substantially comparable information shall be provided by the
Trustee pursuant to any requirements of the Code. As soon as practicable
following the request of any Certificateholder in writing, the Trustee shall
furnish to such Certificateholder such information regarding the Mortgage Loans
and the Mortgaged Properties as such holder may reasonably request and, to the
extent such information would be required to be included in a report described
in subsection (a), (b) or (c), as has been furnished to the Trustee. The Master
Servicer, the Special Servicer and the Custodian shall promptly provide to the
Depositor, the REMIC Administrator and the Trustee such information regarding
the Mortgage Loans and the Mortgaged Properties as such party may request and,
to the extent such information would be required to be included in a report
described in subsection (a), (b) or (c), as has been furnished to the Master
Servicer, the Special Servicer or the Custodian.
(e) At the same time that the Trustee forwards the Trustee Report for any
Distribution Date to the Rating Agencies pursuant to Section 4.02(a), the
Trustee shall also forward to each Rating Agency a written hard copy of the
Special Servicer Report related to such Distribution Date and any Operating
Statement Analysis distributed to Certificateholders on such Distribution Date.
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SECTION 4.03. P&I Advances; Advances relating to the Master Servicer
Remittance Amount.
(a) On or before 1:00 p.m., New York City time, on each P&I Advance Date,
the Master Servicer shall, subject to Section 4.03(c) below, either (i) remit
from its own funds to the Trustee for deposit into the Distribution Account an
amount equal to the aggregate amount of P&I Advances, if any, to be made in
respect of the related Distribution Date, (ii) apply amounts held in the
Collection Account for future distribution to Certificateholders in subsequent
months in discharge of any such obligation to make P&I Advances, or (iii) make
P&I Advances in the form of any combination of (i) and (ii) aggregating the
total amount of P&I Advances to be made. Any amounts held in the Collection
Account for future distribution and so used to make P&I Advances shall be
appropriately reflected in the Master Servicer's records and replaced by the
Master Servicer by deposit in the Collection Account on or before the next
succeeding Determination Date (to the extent not previously replaced through the
deposit of Late Collections of the delinquent principal and interest in respect
of which such P&I Advances were made). If, as of 3:00 p.m., New York City time,
on any P&I Advance Date, the Master Servicer shall not have made any P&I Advance
required to be made on such date pursuant to this Section 4.03(a) (and shall not
have delivered to the Trustee the Officer's Certificate and documentation
related to a determination of nonrecoverability of a P&I Advance pursuant to
Section 4.03(c)) or shall not have remitted any portion of the Master Servicer
Remittance Amount required to be remitted on such date, then the Trustee shall
provide notice of such failure to a Servicing Officer of the Master Servicer by
facsimile transmission sent to telecopy no. ____________ (or such alternative
number provided by the Master Servicer to the Trustee in writing) and notice by
telephone to the Master Servicer at telephone no. ____________ (or such
alternative number provided by the Master Servicer to the Trustee in writing) as
soon as possible, but in any event before 4:30 p.m., New York City time, on such
P&I Advance Date. If after such notice the Trustee does not receive the full
amount of such P&I Advances and/or Master Servicer Remittance Amount by 10:00
a.m., New York City time, on the Business Day immediately preceding the related
Distribution Date, then (i) the Trustee shall make the portion of such P&I
Advances and advance the portion of such Master Servicer Remittance Amount that
was required to be, but was not, made or remitted, as the case may be, by the
Master Servicer on or prior to such Distribution Date and (ii) such failure
shall constitute an Event of Default on the part of the Master Servicer. The
Trustee shall be entitled to reimbursement of the amount of any Master Servicer
Remittance Amount advanced thereby (together with any interest accrued thereon
at the Reimbursement Rate) from general collections on the Mortgage Loans and
REO Properties on deposit in the Collection Account, and the defaulting Master
Servicer shall indemnify the Trust Fund for any such interest so paid to the
Trustee out of the Collection Account.
(b) The aggregate amount of P&I Advances to be made by the Master Servicer
in respect of any Distribution Date, subject to Section 4.03(c) below, shall
equal the aggregate of all Scheduled Payments (other than Balloon Payments) and
any Assumed Scheduled Payments, in each case net of related Master Servicing
Fees and Workout Fees, due or deemed due, as the case may be, in respect of the
Mortgage Loans (including, without limitation, Balloon Mortgage
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Loans delinquent as to their respective Balloon Payments) and any REO Loans on
their respective Due Dates during the related Collection Period, in each case to
the extent such amount was not paid by or on behalf of the related Mortgagor or
otherwise collected as of the close of business on the related Determination
Date; provided that, if the Monthly Payment on any Mortgage Loan has been
reduced in connection with a bankruptcy or similar proceeding involving the
related Mortgagor or a modification, waiver or amendment granted or agreed to by
the Special Servicer pursuant to Section 3.20, or if the final maturity on any
Mortgage Loan shall be extended in connection with a bankruptcy or similar
proceeding involving the related Mortgagor or a modification, waiver or
amendment granted or agreed to by the Special Servicer pursuant to Section 3.20,
and the Monthly Payment due and owing during the extension period is less than
the related Assumed Scheduled Payment, then the Master Servicer shall, as to
such Mortgage Loan only, advance only the amount of the Monthly Payment due and
owing after taking into account such reduction, net of related Master Servicing
Fees and Workout Fees, in the event of subsequent delinquencies thereon; and
provided further that, if an Appraisal Reduction Amount exists with respect to
any Required Appraisal Loan, then, in the event of subsequent delinquencies
thereon, the interest portion of the P&I Advance in respect of such Required
Appraisal Loan for the related Distribution Date shall be reduced (it being
herein acknowledged that there shall be no reduction in the principal portion of
such P&I Advance) to equal the product of (i) the amount of the interest portion
of such P&I Advance for such Required Appraisal Loan for such Distribution Date
without regard to this proviso, multiplied by (ii) a fraction, expressed as a
percentage, the numerator of which is equal to the Stated Principal Balance of
such Required Appraisal Loan immediately prior to such Distribution Date, net of
the related Appraisal Reduction Amount, if any, and the denominator of which is
equal to the Stated Principal Balance of such Required Appraisal Loan
immediately prior to such Distribution Date.
(c) Notwithstanding anything herein to the contrary, no P&I Advance shall
be required to be made hereunder if such P&I Advance would, if made, constitute
a Nonrecoverable P&I Advance. The determination by the Master Servicer (or, if
applicable, the Trustee) that it has made a Nonrecoverable P&I Advance or that
any proposed P&I Advance, if made, would constitute a Nonrecoverable P&I
Advance, shall be evidenced by an Officer's Certificate delivered to the
Depositor and, if made by the Master Servicer, to the Trustee on or before the
related P&I Advance Date, setting forth the basis for such determination,
together with a copy of an Appraisal of the related Mortgaged Property or REO
Property performed within the twelve months preceding such determination by a
Qualified Appraiser, and further accompanied by any other information, including
engineers' reports, environmental surveys or similar reports, that the Person
making such determination may have obtained and that support such determination.
Notwithstanding the foregoing, the Trustee shall be entitled to conclusively
rely on any nonrecoverability determination made by the Master Servicer with
respect to a particular P&I Advance.
(d) The Master Servicer and the Trustee shall each be entitled to receive
interest at the Reimbursement Rate in effect from time to time, accrued on the
amount of each P&I Advance made thereby (out of its own funds) for so long as
such P&I Advance is outstanding,
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such interest to be payable: first, out of Penalty Charges collected on the
Mortgage Loan or REO Loan as to which such Advance relates; and, then, to the
extent that such Penalty Charges are insufficient, and only after such Advance
has been reimbursed pursuant to this Agreement, out of general collections on
the Mortgage Loans and REO Properties on deposit in the Collection Account. The
Master Servicer shall reimburse itself or the Trustee, as applicable, for any
outstanding P&I Advance made thereby as soon as practicable after funds
available for such purpose are deposited in the Collection Account.
SECTION 4.04. Allocation of Realized Losses and Additional Trust Fund
Expenses.
(a) On each Distribution Date, following the distributions to be made on
such date pursuant to Sections 4.01(a) and 4.01(b), the Trustee shall determine
the amount, if any, by which (i) the then aggregate Certificate Principal
Balance of the Sequential Pay Certificates, exceeds (ii) the aggregate Stated
Principal Balance of the Mortgage Pool that will be outstanding immediately
following such Distribution Date. If such excess does exist, then the Class
Principal Balances of the respective Classes of Sequential Pay Certificates
shall be reduced sequentially, in reverse order of Payment Priority, until the
amounts described in clauses (i) and (ii) of the preceding sentence are equal.
Such reductions shall be effected such that no Class of Sequential Pay
Certificates shall have its Class Principal Balance reduced until the Class
Principal Balance of each other Class of Sequential Pay Certificates, if any,
with a lower Payment Priority is reduced to zero, and any such reductions made
to the Class Principal Balances of the Class A-1A Certificates and the Class
A-1B Certificates shall be made on a pro rata basis in accordance with relative
sizes of such Class Principal Balances. Such reductions shall be deemed to be an
allocation of the Realized Losses and Additional Trust Fund Expenses.
(b) On each Distribution Date, following the deemed distributions to be
made on such date pursuant to Section 4.01(h), the Trustee shall determine the
amount, if any, by which (i) the then aggregate Uncertificated Principal Balance
of the REMIC II Regular Interests, exceeds (ii) the aggregate Stated Principal
Balance of the Mortgage Pool that will be outstanding immediately following such
Distribution Date. If such excess does exist, then the respective Uncertificated
Principal Balances of REMIC II Regular Interest C, REMIC II Regular Interest B-
4, REMIC II Regular Interest B-3, REMIC II Regular Interest B-2, REMIC II
Regular Interest B-1, REMIC II Regular Interest A-3 and REMIC II Regular
Interest A-2 shall be reduced, sequentially in that order, in each case until
the Uncertificated Principal Balance of the particular REMIC II Regular Interest
is reduced to zero or the amounts described in clauses (i) and (ii) of the
preceding sentence are equal. If, after the foregoing reductions, the amount
described in clause (i) of the second preceding sentence still exceeds the
amount described in clause (ii) of such sentence, then the respective
Uncertificated Principal Balances of REMIC II Regular Interest A-1A and REMIC II
Regular Interest A-1B shall be reduced on a pro rata basis in accordance with
relative sizes of such Uncertificated Principal Balances. All such reductions
shall be deemed to be an allocation of Realized Losses and Additional Trust Fund
Expenses.
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(c) On each Distribution Date, following the deemed distributions to be
made in respect of the REMIC I Regular Interests pursuant to Section 4.01(i),
the Uncertificated Principal Balance of each REMIC I Regular Interest (after
taking account of such deemed distributions) shall be reduced to equal the
Stated Principal Balance of the related Mortgage Loan or REO Loan, as the case
may be, that will be outstanding immediately following such Distribution Date.
Such reductions shall be deemed to be an allocation of Realized Losses and
Additional Trust Fund Expenses.
SECTION 4.05. Calculations.
The Trustee shall, provided it receives the necessary information from the
Master Servicer, be responsible for performing all calculations necessary in
connection with the actual and deemed distributions to be made pursuant to
Section 4.01, the preparation of the reports to Certificateholders pursuant to
Section 4.02 and the actual and deemed allocations of Realized Losses and
Additional Trust Fund Expenses to be made pursuant to Section 4.04. The Trustee
shall calculate the Available Distribution Amount for each Distribution Date and
shall allocate such amount among Certificateholders in accordance with this
Agreement. Absent actual knowledge of an error therein, the Trustee shall have
no obligation to recompute, recalculate or verify any information provided to it
by the Master Servicer. The calculations by the Trustee contemplated by this
Section 4.05 shall, in the absence of manifest error, be presumptively deemed to
be correct for all purposes hereunder.
SECTION 4.06. Use of Agents.
The Master Servicer or the Trustee may at its own expense utilize agents or
attorneys-in-fact in performing any of its obligations under this Article IV
(except the obligation to make P&I Advances), but no such utilization shall
relieve the Master Servicer or the Trustee from any of such obligations, and the
Master Servicer or the Trustee, as applicable, shall remain responsible for all
acts and omissions of any such agent or attorney-in-fact. The Master Servicer or
the Trustee shall have all the limitations upon liability and all the
indemnities for the actions and omissions of any such agent or attorney-in-fact
that it has for its own actions hereunder pursuant to Article VI or Article VIII
hereof, as applicable, and any such agent or attorney-in-fact shall have the
benefit of all the limitations upon liability, if any, and all the indemnities
provided to the Master Servicer under Section 6.03 or to the Trustee under
Sections 8.01, 8.02 and 8.05, as applicable.
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ARTICLE V
THE CERTIFICATES
SECTION 5.01. The Certificates.
(a) The Certificates will be substantially in the respective forms attached
hereto as Exhibits A-1 through A-13; provided that any of the Certificates may
be issued with appropriate insertions, omissions, substitutions and variations,
and may have imprinted or otherwise reproduced thereon such legend or legends,
not inconsistent with the provisions of this Agreement, as may be required to
comply with any law or with rules or regulations pursuant thereto, or with the
rules of any securities market in which the Certificates are admitted to
trading, or to conform to general usage. The Certificates will be issuable in
registered form only; provided, however, that in accordance with Section 5.03
beneficial ownership interests in the Book-Entry Certificates shall initially be
held and transferred through the book-entry facilities of the Depository. The
Class S Certificates will be issuable only in denominations corresponding to
initial Certificate Notional Amounts as of the Closing Date of not less than
$[______] and in any whole dollar denomination in excess thereof. The Class A-1A
Certificates and the Class A-1B Certificates will be issuable only in
denominations corresponding to initial Certificate Principal Balances as of the
Closing Date of not less than $[_______] and in any whole dollar denomination in
excess thereof. The Class A-2 Certificates, the Class A-3 Certificates, the
Class B-1 Certificates, the Class B-2 Certificates, the Class B-3 Certificates,
the Class B-4 Certificates and the Class C Certificates will be issuable only in
denominations corresponding to initial Certificate Principal Balances as of the
Closing Date of not less than $[_______] and in any whole dollar denomination in
excess thereof. Each Class of Residual Certificates will be issuable only in
denominations representing Percentage Interests of not less than ____%.
(b) The Certificates shall be executed by manual or facsimile signature on
behalf of the Trustee in its capacity as trustee hereunder by an authorized
officer. Certificates bearing the manual or facsimile signatures of individuals
who were at any time the authorized officers of the Trustee shall be entitled to
all benefits under this Agreement, subject to the following sentence,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Certificates or did not
hold such offices at the date of such Certificates. No Certificate shall be
entitled to any benefit under this Agreement, or be valid for any purpose,
however, unless there appears on such Certificate a certificate of
authentication substantially in the form provided for herein executed by the
Certificate Registrar by manual signature, and such certificate of
authentication upon any Certificate shall be conclusive evidence, and the only
evidence, that such Certificate has been duly authenticated and delivered
hereunder. All Certificates shall be dated the date of their authentication.
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SECTION 5.02. Registration of Transfer and Exchange of Certificates.
(a) At all times during the term of this Agreement, there shall be
maintained at the office of the Certificate Registrar a Certificate Register in
which, subject to such reasonable regulations as the Certificate Registrar may
prescribe, the Certificate Registrar shall provide for the registration of
Certificates and of transfers and exchanges of Certificates as herein provided.
The Trustee is hereby initially appointed (and hereby agrees to act in
accordance with the terms hereof) as Certificate Registrar for the purpose of
registering Certificates and transfers and exchanges of Certificates as herein
provided. The Trustee may appoint, by a written instrument delivered to the
other parties hereto, any other bank or trust company to act as Certificate
Registrar under such conditions as the Trustee may prescribe, provided that the
Trustee shall not be relieved of any of its duties or responsibilities hereunder
as Certificate Registrar by reason of such appointment. If the Trustee resigns
or is removed in accordance with the terms hereof, the successor trustee shall
immediately succeed to its predecessor's duties as Certificate Registrar. The
Depositor, the Master Servicer, the Special Servicer and the REMIC Administrator
shall have the right to inspect the Certificate Register or to obtain a copy
thereof at all reasonable times, and to rely conclusively upon a certificate of
the Certificate Registrar as to the information set forth in the Certificate
Register. Upon written request of any Certificateholder made for purposes of
communicating with other Certificateholders with respect to their rights under
this Agreement, the Certificate Registrar shall promptly furnish such
Certificateholder with a list of the other Certificateholders of record
identified in the Certificate Register at the time of the request. Every
Certificateholder, by receiving such access, agrees with the Certificate
Registrar that the Certificate Registrar will not be held accountable in any way
by reason of the disclosure of any information as to the names and addresses of
any Certificateholder regardless of the source from which such information was
derived.
(b) No transfer, sale, pledge or other disposition of any Private
Certificate or interest therein shall be made unless that transfer, sale, pledge
or other disposition is exempt from the registration and/or qualification
requirements of the Securities Act and any applicable state securities laws, or
is otherwise made in accordance with the Securities Act and such state
securities laws. If a transfer of any Private Certificate is to be made without
registration under the Securities Act (other than in connection with the initial
issuance thereof or a transfer thereof by the Depositor or one of its
Affiliates), then the Certificate Registrar shall refuse to register such
transfer unless it receives (and upon receipt, may conclusively rely upon)
either: (i) a certificate from the Certificateholder desiring to effect such
transfer substantially in the form attached as Exhibit F-1A hereto; or (ii) a
certificate from the Certificateholder desiring to effect such transfer
substantially in the form attached as Exhibit F-1B hereto and a certificate from
such Certificateholder's prospective Transferee substantially in the form
attached either as Exhibit F-2A hereto or as Exhibit F-2B hereto; or (iii) an
Opinion of Counsel satisfactory to the Trustee to the effect that such transfer
may be made without registration under the Securities Act (which Opinion of
Counsel shall not be an expense of the Trust Fund or of the Depositor, the
Master Servicer, the Special Servicer, the REMIC Administrator, the Trustee or
the Certificate Registrar in their respective capacities as such), together with
the written certification(s) as to the facts surrounding
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such transfer from the Certificateholder desiring to effect such transfer and/or
such Certificateholder's prospective Transferee on which such Opinion of Counsel
is based. None of the Depositor, the Trustee or the Certificate Registrar is
obligated to register or qualify any Class of Private Certificates under the
Securities Act or any other securities law or to take any action not otherwise
required under this Agreement to permit the transfer of any Private Certificate
or interest therein without registration or qualification. Any Holder of a
Private Certificate desiring to effect a transfer of such Private Certificate or
interest therein shall, and does hereby agree to, indemnify, the Depositor, the
Underwriter, the Trustee, the Master Servicer, the Special Servicer, the REMIC
Administrator and the Certificate Registrar against any liability that may
result if the transfer is not so exempt or is not made in accordance with such
federal and state laws.
(c) No transfer of a Subordinated Certificate or any interest therein shall
be made (A) to any employee benefit plan or other retirement arrangement,
including individual retirement accounts and annuities, Xxxxx plans and
collective investment funds and separate accounts in which such plans, accounts
or arrangements are invested, including, without limitation, insurance company
general accounts, that is subject to ERISA or the Code (each, a "Plan"), or (B)
to any Person who is directly or indirectly purchasing such Certificate or
interest therein on behalf of, as named fiduciary of, as trustee of, or with
assets of a Plan, unless: (i) the purchase and holding of such Certificate or
interest therein is exempt from the prohibited transaction provisions of Section
406 of ERISA and Section 4975 of the Code under Sections I and III of Prohibited
Transaction Class Exemption 95-60; or (ii) in the case of a Subordinated
Certificate that is a Definitive Certificate, the prospective Transferee
provides the Certificate Registrar with a certification of facts and an Opinion
of Counsel which establish to the satisfaction of the Trustee that such transfer
will not result in a violation of Section 406 of ERISA or Section 4975 of the
Code or result in the imposition of an excise tax under Section 4975 of the Code
or subject the Trustee, the Master Servicer or the Special Servicer to any
obligation in addition to those undertaken in this Agreement. Each Person who
acquires any Subordinated Certificate or interest therein (unless it shall have
delivered to the Certificate Registrar the certification of facts and Opinion of
Counsel referred to in clause (ii) the preceding sentence) will be required to
deliver to the Certificate Registrar (or, in the case of an interest in a
Subordinated Certificate that constitutes a Book-Entry Certificate, to the
Certificate Owner that is transferring such interest) a certification to the
effect that: (i) it is neither a Plan nor any Person who is directly or
indirectly purchasing such Certificate or interest therein on behalf of, as
named fiduciary of, as trustee of, or with assets of a Plan; or (ii) that the
purchase and holding of such Certificate or interest therein by such person is
exempt from the prohibited transaction provisions of Section 406 of ERISA and
Section 4975 of the Code under Sections I and III of Prohibited Transaction
Class Exemption 95- 60. It is hereby acknowledged that the forms of
certification attached hereto as Exhibit G-1 (in the case of Subordinated
Certificates that are Definitive Certificates) and G-2 (in the case of ownership
interests in Subordinated Certificates that are Book-Entry Certificates) are
acceptable for purposes of the preceding sentence.
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(d) (i) Each Person who has or who acquires any Ownership Interest in a
Residual Certificate shall be deemed by the acceptance or acquisition of such
Ownership Interest to have agreed to be bound by the following provisions and to
have irrevocably authorized the Trustee under clause (ii)(A) below to deliver
payments to a Person other than such Person and to have irrevocably authorized
the Trustee under clause (ii)(B) below to negotiate the terms of any mandatory
sale and to execute all instruments of Transfer and to do all other things
necessary in connection with any such sale. The rights of each Person acquiring
any Ownership Interest in a Residual Certificate are expressly subject to the
following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall be a Permitted Transferee and shall promptly
notify the REMIC Administrator and the Trustee of any change or impending
change in its status as a Permitted Transferee.
(B) In connection with any proposed Transfer of any Ownership Interest
in a Residual Certificate, the Certificate Registrar shall require delivery
to it, and shall not register the Transfer of any Residual Certificate
until its receipt, of an affidavit and agreement substantially in the form
attached hereto as Exhibit H-1 (a "Transfer Affidavit and Agreement"), from
the proposed Transferee, and upon which the Certificate Registrar may, in
the absence of actual knowledge by a Responsible Officer of either the
Trustee or the Certificate Registrar to the contrary, conclusively rely,
representing and warranting, among other things, that such Transferee is a
Permitted Transferee, that it is not acquiring its Ownership Interest in
the Residual Certificate that is the subject of the proposed Transfer as a
nominee, trustee or agent for any Person that is not a Permitted
Transferee, that for so long as it retains its Ownership Interest in a
Residual Certificate it will endeavor to remain a Permitted Transferee, and
that it has reviewed the provisions of this Section 5.02(d) and agrees to
be bound by them.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement
by a proposed Transferee under clause (B) above, if a Responsible Officer
of either the Trustee or the Certificate Registrar has actual knowledge
that the proposed Transferee is not a Permitted Transferee, no Transfer of
an Ownership Interest in a Residual Certificate to such proposed Transferee
shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a
Residual Certificate shall agree (1) to require a Transfer Affidavit and
Agreement from any prospective Transferee to whom such Person attempts to
transfer its Ownership Interest in such Residual Certificate and (2) not to
transfer its Ownership Interest in such Residual Certificate unless it
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provides to the Certificate Registrar a certificate substantially in the
form attached hereto as Exhibit H-2 stating that, among other things, it
has no actual knowledge that such prospective Transferee is not a Permitted
Transferee.
(E) Each Person holding or acquiring an Ownership Interest in a
Residual Certificate, by purchasing such Ownership Interest, agrees to give
the REMIC Administrator and the Trustee written notice that it is a
"pass-through interest holder" within the meaning of temporary Treasury
regulation Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an
Ownership Interest in a Residual Certificate, if it is, or is holding an
Ownership Interest in a Residual Certificate on behalf of, a "pass-through
interest holder".
(ii) (A) If any purported Transferee shall become a Holder of a Residual
Certificate in violation of the provisions of this Section 5.02(d), then the
last preceding Holder of such Residual Certificate that was in compliance with
the provisions of this Section 5.02(d) shall be restored, to the extent
permitted by law, to all rights as Holder thereof retroactive to the date of
registration of such Transfer of such Residual Certificate. None of the Trustee,
the Master Servicer, the Special Servicer, the REMIC Administrator or the
Certificate Registrar shall be under any liability to any Person for any
registration of Transfer of a Residual Certificate that is in fact not permitted
by this Section 5.02(d) or for making any payments due on such Certificate to
the Holder thereof or for taking any other action with respect to such Holder
under the provisions of this Agreement.
(B) If any purported Transferee shall become a Holder of a Residual
Certificate in violation of the restrictions in this Section 5.02(d), then, to
the extent that the retroactive restoration of the rights of the Holder of such
Residual Certificate as described in clause (ii)(A) above shall be invalid,
illegal or unenforceable, the Trustee shall have the right but not the
obligation, to cause the transfer of such Residual Certificate to a Permitted
Transferee selected by the Trustee on such terms as the Trustee may choose, and
the Trustee shall not be liable to any Person having an Ownership Interest in a
Residual Certificate as a result of its exercise of such discretion. Such
purported Transferee shall promptly endorse and deliver such Residual
Certificate in accordance with the instructions of the Trustee. Such Permitted
Transferee may be the Trustee itself or any Affiliate of the Trustee.
(iii) The REMIC Administrator shall make available to the Internal Revenue
Service and to those Persons specified by the REMIC Provisions all information
furnished to it by the other parties hereto necessary to compute any tax imposed
(A) as a result of the Transfer of an Ownership Interest in a Residual
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Certificate to any Person who is a Disqualified Organization, including the
information described in Treasury regulations sections 1.860D-1(b)(5) and
1.860E-2(a)(5) with respect to the "excess inclusions" of such Residual
Certificate and (B) as a result of any regulated investment company, real estate
investment trust, common trust fund, partnership, trust, estate or organization
described in Section 1381 of the Code that holds an Ownership Interest in a
Residual Certificate having as among its record holders at any time any Person
which is a Disqualified Organization, and each of the other parties hereto shall
furnish to the REMIC Administrator all information in its possession necessary
for the REMIC Administrator to discharge such obligation. The Person holding
such Ownership Interest shall be responsible for the reasonable compensation of
the REMIC Administrator for providing such information.
(iv) The provisions of this Section 5.02(d) set forth prior to this clause
(iv) may be modified, added to or eliminated, provided that there shall have
been delivered to the Trustee and the REMIC Administrator the following:
(A) written confirmation from each Rating Agency to the effect that
the modification of, addition to or elimination of such provisions will not
cause such Rating Agency to qualify, downgrade or withdraw its then-current
rating of any Class of Certificates; and
(B) an Opinion of Counsel, in form and substance satisfactory to the
Trustee and the REMIC Administrator, obtained at the expense of the party
seeking such modification of, addition to or elimination of such provisions
(but in no event at the expense of the Trustee, the REMIC Administrator or
the Trust Fund), to the effect that doing so will not cause any of REMIC I,
REMIC II or REMIC III to (x) cease to qualify as a REMIC or (y) be subject
to an entity-level tax caused by the Transfer of any Residual Certificate
to a Person which is not a Permitted Transferee, or cause a Person other
than the prospective Transferee to be subject to a REMIC-related tax caused
by the Transfer of a Residual Certificate to a Person that is not a
Permitted Transferee.
(e) If a Person is acquiring any Subordinated Certificate or interest
therein as a fiduciary or agent for one or more accounts, such Person shall be
required to deliver to the Certificate Registrar (or, in the case of an interest
in a Subordinated Certificate that constitutes a Book-Entry Certificate, to the
Certificate Owner that is transferring such interest) a certification to the
effect that, and such other evidence as may be reasonably required by the
Trustee (or such Certificate Owner) to confirm that, it has (i) sole investment
discretion with respect to each such account and (ii) full power to make the
foregoing acknowledgments, representations, warranties, certifications and
agreements with respect to each such account as set forth in subsections (b),
(c) and (d), as applicable, of this Section 5.02.
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(f) Subject to the preceding provisions of this Section 5.02, upon
surrender for registration of transfer of any Certificate at the offices of the
Certificate Registrar maintained for such purpose, the Trustee shall execute and
the Certificate Registrar shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Certificates of the same
Class of a like aggregate Percentage Interest.
(g) At the option of any Holder, its Certificates may be exchanged for
other Certificates of authorized denominations of the same Class of a like
aggregate Percentage Interest, upon surrender of the Certificates to be
exchanged at the offices of the Certificate Registrar maintained for such
purpose. Whenever any Certificates are so surrendered for exchange, the Trustee
shall execute and the Certificate Registrar shall authenticate and deliver the
Certificates which the Certificateholder making the exchange is entitled to
receive.
(h) Every Certificate presented or surrendered for transfer or exchange
shall (if so required by the Certificate Registrar) be duly endorsed by, or be
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder thereof or his attorney duly
authorized in writing.
(i) No service charge shall be imposed for any transfer or exchange of
Certificates, but the Trustee or the Certificate Registrar may require payment
of a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any transfer or exchange of Certificates.
(j) All Certificates surrendered for transfer and exchange shall be
physically canceled by the Certificate Registrar, and the Certificate Registrar
shall dispose of such canceled Certificates in accordance with its standard
procedures.
(k) The Certificate Registrar or the Trustee shall provide to each of the
other parties hereto, upon reasonable written request and at the expense of the
requesting party, an updated copy of the Certificate Register.
SECTION 5.03. Book-Entry Certificates.
(a) The Class S, Class A and Class B-1 Certificates shall, in the case of
each Class thereof, initially be issued as one or more Certificates registered
in the name of the Depository or its nominee and, except as provided in Section
5.03(c), transfer of such Certificates may not be registered by the Certificate
Registrar unless such transfer is to a successor Depository that agrees to hold
such Certificates for the respective Certificate Owners with Ownership Interests
therein. Such Certificate Owners shall hold and, subject to Section 5.02(c),
transfer their respective Ownership Interests in and to such Certificates
through the book-entry facilities of the Depository and, except as provided in
Section 5.03(c) below, shall not be entitled to fully registered, physical
Certificates ("Definitive Certificates") in respect of such Ownership Interests.
All transfers by Certificate Owners of their respective Ownership Interests in
the Book-Entry
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Certificates shall be made in accordance with the procedures established by the
Depository Participant or brokerage firm representing each such Certificate
Owner. Each Depository Participant shall only transfer the Ownership Interests
in the Book-Entry Certificates of Certificate Owners it represents or of
brokerage firms for which it acts as agent in accordance with the Depository's
normal procedures.
(b) The Depositor, the Master Servicer, the Special Servicer, the REMIC
Administrator, the Trustee and the Certificate Registrar may for all purposes,
including, without limitation, the making of payments due on the Book-Entry
Certificates, deal with the Depository as the authorized representative of the
Certificate Owners with respect to such Certificates for the purposes of
exercising the rights of Certificateholders hereunder. The rights of Certificate
Owners with respect to the Book-Entry Certificates shall be limited to those
established by law and agreements between such Certificate Owners and the
Depository Participants and brokerage firms representing such Certificate
Owners. Multiple requests and directions from, and votes of, the Depository as
Holder of the Book-Entry Certificates with respect to any particular matter
shall not be deemed inconsistent if they are made with respect to different
Certificate Owners. The Trustee may establish a reasonable record date in
connection with solicitations of consents from or voting by Certificateholders
and shall give notice to the Depository of such record date.
(c) If (i)(A) the Depositor advises the Trustee and the Certificate
Registrar in writing that the Depository is no longer willing or able to
properly discharge its responsibilities with respect to any Class of Book-Entry
Certificates, and (B) the Depositor is unable to locate a qualified successor,
or (ii) the Depositor at its option advises the Trustee and the Certificate
Registrar in writing that it elects to terminate the book-entry system through
the Depository with respect to any Class of Book-Entry Certificates (or any
portion of any Class thereof), the Certificate Registrar shall notify all
affected Certificate Owners, through the Depository, of the occurrence of any
such event and of the availability of Definitive Certificates to such
Certificate Owners requesting the same. Upon surrender to the Certificate
Registrar of any Class of Book- Entry Certificates (or any portion of any Class
thereof) by the Depository, accompanied by registration instructions from the
Depository for registration of transfer, the Trustee shall execute, and the
Certificate Registrar shall authenticate and deliver, the Definitive
Certificates in respect of such Class (or portion thereof) to the Certificate
Owners identified in such instructions. None of the Depositor, the Master
Servicer, the Special Servicer, the REMIC Administrator, the Trustee or the
Certificate Registrar shall be liable for any delay in delivery of such
instructions and may conclusively rely on, and shall be protected in relying on,
such instructions. Upon the issuance of Definitive Certificates for purposes of
evidencing ownership of any Book-Entry Certificates, the registered holders of
such Definitive Certificates shall be recognized as Certificateholders 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.
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SECTION 5.04. Mutilated, Destroyed, Lost or Stolen Certificates.
If (i) any mutilated Certificate is surrendered to the Certificate
Registrar, or the Certificate Registrar receives evidence to its satisfaction of
the destruction, loss or theft of any Certificate, and (ii) there is delivered
to the Trustee and the Certificate Registrar such security or indemnity as may
be reasonably required by them to save each of them harmless, then, in the
absence of actual notice to the Trustee or the Certificate Registrar that such
Certificate has been acquired by a bona fide purchaser, the Trustee shall
execute and the Certificate Registrar shall authenticate and deliver, in
exchange for or in lieu of any such mutilated, destroyed, lost or stolen
Certificate, a new Certificate of the same Class and like Percentage Interest.
Upon the issuance of any new Certificate under this Section, the Trustee and the
Certificate Registrar may require the payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in relation thereto and any
other expenses (including the fees and expenses of the Trustee and the
Certificate Registrar) connected therewith. Any replacement Certificate issued
pursuant to this Section shall constitute complete and indefeasible evidence of
ownership in the applicable REMIC created hereunder, as if originally issued,
whether or not the lost, stolen or destroyed Certificate shall be found at any
time.
SECTION 5.05. Persons Deemed Owners.
Prior to due presentment for registration of transfer, the Depositor, the
Master Servicer, the Special Servicer, the REMIC Administrator, the Trustee, the
Certificate Registrar and any agent of any of them may treat the person in whose
name any Certificate is registered as the owner of such Certificate for the
purpose of receiving distributions pursuant to Section 4.01 and for all other
purposes whatsoever, and none of the Depositor, the Master Servicer, the Special
Servicer, the REMIC Administrator, the Trustee, the Certificate Registrar or any
agent of any of them shall be affected by notice to the contrary.
SECTION 5.06 Certification by Certificate Owners.
(a) Each Certificate Owner is hereby deemed by virtue of its acquisition of
an Ownership Interest in any Book-Entry Certificates representing any Class of
Subordinated Certificates to agree to comply with the transfer requirements of
Section 5.02(c).
(b) To the extent that under the terms of this Agreement, it is necessary
to determine whether any Person is a Certificate Owner, the Trustee shall make
such determination based on a certificate of such Person which shall specify, in
reasonable detail satisfactory to the Trustee, the Class and Certificate
Principal Balance of the Book-Entry Certificate beneficially owned, the value of
such Person's interest in such Certificate and any intermediaries through which
such Person's Ownership Interest in such Book-Entry Certificate is held;
provided, however, that the Trustee shall not knowingly recognize such Person as
a Certificate Owner if such Person, to the knowledge of a Responsible Officer of
the Trustee, acquired its Ownership Interest in a Book-Entry Certificate
representing any Class of Subordinated Certificates in
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violation of Section 5.02(c), or if such Person's certification that it is a
Certificate Owner is in direct conflict with information obtained by the Trustee
from the Depository, Depository Participants, and/or indirect participating
brokerage firms for which a Depository Participant acts as agent, with respect
to the identity of a Certificate Owner. The Trustee shall exercise its
reasonable discretion in making any determination under this Section 5.06(b) and
shall afford any Person providing information with respect to its beneficial
ownership of any Certificates an opportunity to resolve any discrepancies
between the information provided and any other information available to the
Trustee.
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ARTICLE VI
THE DEPOSITOR, THE MASTER SERVICER,
THE SPECIAL SERVICER AND THE REMIC ADMINISTRATOR
SECTION 6.01. Liability of the Depositor, the Master Servicer, the Special
Servicer and the REMIC Administrator.
The Depositor, the Master Servicer, the Special Servicer and the REMIC
Administrator shall be liable in accordance herewith only to the extent of the
respective obligations specifically imposed upon and undertaken by the
Depositor, the Master Servicer, the Special Servicer and the REMIC Administrator
herein.
SECTION 6.02. Merger, Consolidation or Conversion of the Depositor, the
Master Servicer, the Special Servicer or the REMIC
Administrator.
Subject to the following paragraph, the Depositor, the Master Servicer, the
Special Servicer and the REMIC Administrator shall each keep in full effect its
existence, rights and franchises as a corporation, bank, trust company,
partnership or association under the laws of the jurisdiction wherein it was
organized, and each will obtain and preserve its qualification to do business as
a foreign corporation, bank, trust company, partnership or association in each
jurisdiction in which such qualification is or shall be necessary to protect the
validity and enforceability of this Agreement, the Certificates or any of the
Mortgage Loans and to perform its respective duties under this Agreement.
The Depositor, the Master Servicer, the Special Servicer or the REMIC
Administrator may be merged or consolidated with or into any Person, or transfer
all or substantially all of its assets to any Person, in which case any Person
resulting from any merger or consolidation to which the Depositor, the Master
Servicer, the Special Servicer or the REMIC Administrator shall be a party, or
any Person succeeding to the business of the Depositor, the Master Servicer, the
Special Servicer or the REMIC Administrator, shall be the successor of the
Depositor, the Master Servicer, the Special Servicer or the REMIC Administrator,
as the case may be, hereunder, without the execution or filing of any paper or
any further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding; provided, however, that no successor or surviving
Person shall succeed to the rights of the Master Servicer or the Special
Servicer unless such succession will not result in any withdrawal, downgrade or
qualification of the rating then assigned by either Rating Agency to any Class
of Certificates (as confirmed in writing by each Rating Agency).
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SECTION 6.03. Limitation on Liability of the Depositor, the Master
Servicer, the Special Servicer and the REMIC Administrator.
None of the Depositor, the Master Servicer, the Special Servicer or the
REMIC Administrator shall be under any liability to the Trust Fund, the Trustee
or the Certificateholders for any action taken, or not taken, in good faith
pursuant to this Agreement, or for errors in judgment; provided, however, that
this provision shall not protect the Depositor, the Master Servicer, the Special
Servicer or the REMIC Administrator against any liability to the Trust Fund, the
Trustee or the Certificateholders for the breach of a representation, warranty
or covenant made herein, or against any expense or liability specifically
required to be borne by such party without right of reimbursement pursuant to
the terms hereof, or against any liability which would otherwise be imposed by
reason of misfeasance, bad faith or negligence in the performance of, or
reckless disregard of, obligations or duties hereunder. The Depositor, the
Master Servicer, the Special Servicer, the REMIC Administrator and any director,
officer, employee or agent of any such party may rely in good faith on any
document of any kind which, prima facie, is properly executed and submitted by
any Person respecting any matters arising hereunder. The Depositor, the Master
Servicer, the Special Servicer, the REMIC Administrator and any director,
officer, employee or agent of any such party shall be indemnified and held
harmless by the Trust Fund against any loss, liability or expense incurred in
connection with any legal action relating to this Agreement or the Certificates,
other than any loss, liability or expense: (i) specifically required to be borne
thereby pursuant to the terms hereof or otherwise incidental to the performance
of obligations and duties hereunder, including, without limitation, in the case
of the Master Servicer or Special Servicer, the prosecution of an enforcement
action in respect of any specific Mortgage Loan or Mortgage Loans (except as any
such loss, liability or expense shall be otherwise reimbursable pursuant to this
Agreement); or (ii) incurred in connection with any legal action against such
party resulting from any breach of a representation, warranty or covenant made
herein, any misfeasance, bad faith or negligence in the performance of, or
reckless disregard of, obligations or duties hereunder or any violation of any
state or federal securities law. None of the Depositor, the Master Servicer, the
Special Servicer or the REMIC Administrator shall be under any obligation to
appear in, prosecute or defend any legal action unless such action is related to
its respective duties under this Agreement and, except in the case of a legal
action the costs of which it is specifically required hereunder to bear, in its
opinion does not involve it in any ultimate expense or liability; provided,
however, that the Depositor, the Master Servicer, the Special Servicer or the
REMIC Administrator may in its discretion undertake any such action which it may
reasonably deem necessary or desirable with respect to the enforcement and/or
protection of the rights and duties of the parties hereto and the interests of
the Certificateholders hereunder. In such event, the legal expenses and costs of
such action, and any liability resulting therefrom, shall be expenses, costs and
liabilities of the Trust Fund, and the Depositor, the Master Servicer, the
Special Servicer and the REMIC Administrator shall be entitled to be reimbursed
therefor from the Collection Account as provided in Section 3.05(a).
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SECTION 6.04. Master Servicer, Special Servicer and REMIC Administrator
Not to Resign.
None of the Master Servicer, the Special Servicer or, subject to the last
paragraph of this Section 6.04, the REMIC Administrator shall resign from the
obligations and duties hereby imposed on it, except upon determination that its
duties hereunder are no longer permissible under applicable law or are in
material conflict by reason of applicable law with any other activities carried
on by it, the other activities of the Master Servicer, the Special Servicer or
the REMIC Administrator, as the case may be, so causing such a conflict being of
a type and nature carried on by the Master Servicer, the Special Servicer or the
REMIC Administrator, as the case may be, at the date of this Agreement. Any such
determination permitting the resignation of the Master Servicer, the Special
Servicer or the REMIC Administrator, as applicable, shall be evidenced by an
Opinion of Counsel to such effect which shall be delivered to the Trustee. No
such resignation shall become effective until the Trustee or other successor
shall have assumed the responsibilities and obligations of the resigning party
hereunder.
Consistent with the foregoing, none of the Master Servicer, the Special
Servicer or the REMIC Administrator shall, except as expressly provided herein,
assign or transfer any of its rights, benefits or privileges hereunder to any
other Person or delegate to, subcontract with, or authorize or appoint any other
Person to perform any of the duties, covenants or obligations to be performed by
it hereunder. If, pursuant to any provision hereof, the duties of the Master
Servicer, the Special Servicer or the REMIC Administrator are transferred to a
successor thereto, the entire amount of compensation payable to the Master
Servicer, the Special Servicer or the REMIC Administrator, as the case may be,
that accrues pursuant hereto from and after the date of such transfer shall be
payable to such successor.
Notwithstanding the foregoing, if the same Person is acting as both REMIC
Administrator and Trustee, and such Person resigns as Trustee pursuant to
Section 8.07, then such Person shall be deemed to have also resigned as the
REMIC Administrator, and the successor Trustee shall also act as successor REMIC
Administrator or shall appoint a successor REMIC Administrator whose appointment
will not (as evidenced in writing) result in a qualification, downgrade or
withdrawal of any of the ratings then assigned by either Rating Agency to the
respective Classes of Certificates.
SECTION 6.05. Rights of the Depositor and the Trustee in Respect of the
Master Servicer, the Special Servicer and the REMIC
Administrator.
The Master Servicer, the Special Servicer and the REMIC Administrator shall
each afford the Depositor, the Trustee and each Rating Agency, upon reasonable
notice, during normal business hours access to all records maintained by it in
respect of its rights and obligations hereunder and access to such of its
officers as are responsible for such obligations. Upon reasonable request, the
Master Servicer, the Special Servicer and the REMIC Administrator shall
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each furnish the Depositor, the Trustee and each Rating Agency with its most
recent financial statements and such other information as it possesses, and
which it is not prohibited by applicable law or contract from disclosing,
regarding its business, affairs, property and condition, financial or otherwise.
The Depositor may, but is not obligated to, enforce the obligations of the
Master Servicer, the Special Servicer and the REMIC Administrator hereunder and
may, but is not obligated to, perform, or cause a designee to perform, any
defaulted obligation of the Master Servicer, the Special Servicer or the REMIC
Administrator hereunder or exercise the rights of the Master Servicer, the
Special Servicer or the REMIC Administrator hereunder; provided, however, that
none of the Master Servicer, the Special Servicer or the REMIC Administrator
shall be relieved of any of its obligations hereunder by virtue of such
performance by the Depositor or its designee. The Depositor shall not have any
responsibility or liability for any action or failure to act by the Master
Servicer, the Special Servicer or the REMIC Administrator and is not obligated
to supervise the performance of the Master Servicer, the Special Servicer or the
REMIC Administrator under this Agreement or otherwise.
SECTION 6.06. [RESERVED]
SECTION 6.07. Master Servicer or Special Servicer as Owner of a
Certificate.
The Master Servicer or an Affiliate of the Master Servicer or the Special
Servicer or an Affiliate of the Special Servicer may become the Holder of (or,
in the case of a Book-Entry Certificate, Certificate Owner with respect to) any
Certificate with the same rights it would have if it were not the Master
Servicer or the Special Servicer or an Affiliate thereof. If, at any time during
which the Master Servicer or the Special Servicer or an Affiliate of the Master
Servicer or the Special Servicer is the Holder of (or, in the case of a
Book-Entry Certificate, Certificate Owner with respect to) any Certificate, the
Master Servicer or the Special Servicer proposes to take action (including for
this purpose, omitting to take action) that (i) is not expressly prohibited by
the terms hereof and would not, in the Master Servicer's or the Special
Servicer's reasonable good faith judgment, violate the Servicing Standard, and
(ii) if taken, might nonetheless, in the Master Servicer's or the Special
Servicer's reasonable good faith judgment, be considered by other Persons to
violate the Servicing Standard, the Master Servicer or the Special Servicer may
(but need not) seek the approval of the Certificateholders to such action by
delivering to the Trustee a written notice that (a) states that it is delivered
pursuant to this Section 6.07, (b) identifies the Percentage Interest in each
Class of Certificates beneficially owned by the Master Servicer or the Special
Servicer or an Affiliate of the Master Servicer or the Special Servicer, as
applicable, and (c) describes in reasonable detail the action that the Master
Servicer or the Special Servicer, as the case may be, proposes to take. The
Trustee, upon receipt of such notice, shall forward it to the Certificateholders
(other than the Master Servicer and its Affiliates or the Special Servicer and
its Affiliates, as appropriate), together with a request for approval by the
Certificateholders of each such proposed action. If at any time
Certificateholders holding greater than 50% of the Voting Rights of all
Certificateholders (calculated without regard to the Certificates beneficially
owned by the Master Servicer or its Affiliates or the Special Servicer or its
Affiliates, as the case may
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be) shall have consented in writing to the proposal described in the written
notice, and if the Master Servicer or the Special Servicer, as the case may be,
shall act as proposed in the written notice, such action shall be deemed to
comply with the Servicing Standard. The Trustee shall be entitled to
reimbursement from the Master Servicer or the Special Servicer, as applicable,
for the reasonable expenses of the Trustee incurred pursuant to this paragraph.
It is not the intent of the foregoing provision that the Master Servicer or the
Special Servicer be permitted to invoke the procedure set forth herein with
respect to routine servicing matters arising hereunder, but rather in the case
of unusual circumstances.
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ARTICLE VII
DEFAULT
SECTION 7.01. Events of Default.
(a) "Event of Default", wherever used herein, means any one of the
following events:
(i) any failure by the Master Servicer to deposit into the Collection
Account any amount required to be so deposited under this Agreement which
continues unremedied for one Business Day following the date on which such
deposit was first required to be made; or
(ii) any failure by the Special Servicer to deposit into, or to remit
to the Master Servicer for deposit into, the Collection Account any amount
required to be so deposited or remitted under this Agreement; or any
failure by the Special Servicer to deposit into the REO Account any amount
required to be so deposited under this Agreement which continues unremedied
for one Business Day following the date on which such deposit was first
required to be made; or
(iii) any failure by the Master Servicer to remit to the Trustee for
deposit into the Distribution Account, on any P&I Advance Date, the full
amount of P&I Advances required to be made on such date and/or the full
amount of the Master Servicer Remittance Amount required to be remitted on
such date, which failure continues unremedied until 10:00 a.m., New York
City time, on the Business Day immediately preceding the related
Distribution Date; or
(iv) any failure by the Master Servicer to timely make any Servicing
Advance required to be made by it pursuant to the second paragraph of
Section 3.19(b) which continues unremedied for a period of three days
following the date on which notice shall have been given to the Master
Servicer by the Trustee as provided in Section 3.11(e); or
(v) any failure by the Special Servicer to timely make any Emergency
Advance required to be made by it pursuant to the second paragraph of
Section 3.19(b) which continues unremedied for a period of three days
following the date on which notice has been given to the Special Servicer
by the Trustee as provided in Section 3.11(e); or
(vi) any failure on the part of the Master Servicer or the Special
Servicer duly to observe or perform in any material respect any other of
the covenants or agreements on the part of the Master Servicer or the
Special Servicer, as the case
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may be, contained in this Agreement which continues unremedied for a period
of 30 days (or, in the case of payment of insurance premiums, for a period
of 15 days) after the date on which written notice of such failure,
requiring the same to be remedied, shall have been given to the Master
Servicer or the Special Servicer, as the case may be, by any other party
hereto or to the Master Servicer or the Special Servicer, as the case may
be, (with a copy to each other party hereto) by the Holders of Certificates
entitled to at least 25% of the Voting Rights; or
(vii) any failure on the part of the REMIC Administrator duly to
observe or perform in any material respect any of the covenants or
agreements on the part of the REMIC Administrator contained in this
Agreement which continues unremedied for a period of 30 days after the date
on which written notice of such failure, requiring the same to be remedied,
shall have been given to the REMIC Administrator by any other party hereto,
or to the REMIC Administrator (with a copy to each other party hereto) by
the Holders of Certificates entitled to at least 25% of the Voting Rights;
or
(viii) any breach on the part of the Master Servicer or the Special
Servicer of any representation or warranty contained in this Agreement that
materially and adversely affects the interests of any Class of
Certificateholders and which continues unremedied for a period of 30 days
after the date on which notice of such breach, requiring the same to be
remedied, shall have been given to the Master Servicer or the Special
Servicer, as the case may be, by any other party hereto or to the Master
Servicer or the Special Servicer, as the case may be, (with a copy to each
other party hereto) by the Holders of Certificates entitled to at least 25%
of the Voting Rights; or
(ix) any breach on the part of the REMIC Administrator of any
representation or warranty contained in this Agreement that materially and
adversely affects the interests of any Class of Certificateholders and
which continues unremedied for a period of 30 days after the date on which
notice of such breach, requiring the same to be remedied, shall have been
given to the REMIC Administrator by any other party hereto or to the REMIC
Administrator (with a copy to each other party hereto) by the Holders of
Certificates entitled to at least 25% of the Voting Rights; or
(x) a decree or order of a court or agency or supervisory authority
having jurisdiction in the premises in an involuntary case under any
present or future federal or state bankruptcy, insolvency or similar law
for the appointment of a conservator, receiver, liquidator, trustee or
similar official in any bankruptcy, insolvency, readjustment of debt,
marshalling of assets and liabilities or similar proceedings, or for the
winding-up or liquidation of its affairs, shall have been entered against
the Master Servicer, the Special Servicer or the REMIC
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Administrator and such decree or order shall have remained in force
undischarged or unstayed for a period of 60 days; or
(xi) the Master Servicer, the Special Servicer or the REMIC
Administrator shall consent to the appointment of a conservator, receiver,
liquidator, trustee or similar official in any bankruptcy, insolvency,
readjustment of debt, marshalling of assets and liabilities or similar
proceedings of or relating to it or of or relating to all or substantially
all of its property; or
(xii) the Master Servicer, the Special Servicer or the REMIC
Administrator shall admit in writing its inability to pay its debts
generally as they become due, file a petition to take advantage of any
applicable bankruptcy, insolvency or reorganization statute, make an
assignment for the benefit of its creditors, voluntarily suspend payment of
its obligations, or take any corporate action in furtherance of the
foregoing; or
(xiii) the Trustee shall have received written notice from either
Rating Agency that the continuation of the Master Servicer or the Special
Servicer in such capacity would result in a downgrade, qualification or
withdrawal of any rating then assigned by such Rating Agency to any Class
of Certificates.
When a single entity acts as Master Servicer, Special Servicer and REMIC
Administrator, or in any two of the foregoing capacities, an Event of Default in
one capacity shall constitute an Event of Default in each capacity.
(b) If any Event of Default with respect to the Master Servicer or the
Special Servicer (in either case, for purposes of this Section 7.01(b), the
"Defaulting Party") shall occur and be continuing, then, and in each and every
such case, so long as the Event of Default shall not have been remedied, the
Depositor and the Trustee may, and at the written direction of the Holders of
Certificates entitled to at least 25% of the Voting Rights or if the relevant
Event of Default is one described in clause (iii) or clause (xiii) of Section
7.01(a), the Trustee shall, terminate, by notice in writing to the Defaulting
Party (with a copy of such notice to each other party hereto), all of the rights
and obligations (accruing from and after such notice) of the Defaulting Party
under this Agreement and in and to the Trust Fund (other than as a Holder of any
Certificate). From and after the receipt by the Defaulting Party of such written
notice, all authority and power of the Defaulting Party under this Agreement,
whether with respect to the Certificates (other than as a Holder of any
Certificate) or the Mortgage Loans or otherwise, shall pass to and be vested in
the Trustee pursuant to and under this Section, and, without limitation, the
Trustee is hereby authorized and empowered to execute and deliver, on behalf of
and at the expense of the Defaulting Party, as attorney-in-fact or otherwise,
any and all documents and other instruments, and to do or accomplish all other
acts or things necessary or appropriate to effect the purposes of such notice of
termination, whether to complete the transfer and endorsement or assignment of
the Mortgage Loans and related documents, or otherwise. Each of the Master
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Servicer and the Special Servicer agrees that, if it is terminated pursuant to
this Section 7.01(b), it shall promptly (and in any event no later than ten
Business Days subsequent to its receipt of the notice of termination) provide
the Trustee with all documents and records requested thereby to enable the
Trustee to assume the Master Servicer's or Special Servicer's, as the case may
be, functions hereunder, and shall cooperate with the Trustee in effecting the
termination of the Master Servicer's or Special Servicer's, as the case may be,
responsibilities and rights hereunder, including, without limitation, the
transfer within two Business Days to the Trustee for administration by it of all
cash amounts which shall at the time be or should have been credited by the
Master Servicer to the Collection Account, the Distribution Account or any
Servicing Account (if it is the Defaulting Party) or by the Special Servicer to
the REO Account, the Collection Account or any Servicing Account (if it is the
Defaulting Party) or thereafter be received by or on behalf of it with respect
to any Mortgage Loan or REO Property (provided, however, that the Master
Servicer and the Special Servicer each shall, if terminated pursuant to this
Section 7.01(b), continue to be obligated to pay and entitled to receive all
amounts accrued or owing by or to it under this Agreement on or prior to the
date of such termination, whether in respect of Advances or otherwise, and it
and its directors, officers, employees and agents shall continue to be entitled
to the benefits of Section 6.03 notwithstanding any such termination). Any costs
or expenses in connection with any actions to be taken by the Master Servicer or
Special Servicer pursuant to this paragraph shall be borne by the Master
Servicer or Special Servicer, as the case may be.
(c) If any Event of Default with respect to the REMIC Administrator shall
occur and be continuing, then, and in each and every such case, so long as the
Event of Default shall not have been remedied, the Depositor or the Trustee may,
and at the written direction of the Holders of Certificates entitled to at least
25% of the Voting Rights, the Trustee (or, if the Trustee is also the REMIC
Administrator, the Master Servicer) shall, terminate, by notice in writing to
the REMIC Administrator (with a copy to each of the other parties hereto), all
of the rights and obligations of the REMIC Administrator under this Agreement.
From and after the receipt by the REMIC Administrator of such written notice
(or, if the Trustee is also the REMIC Administrator, from and after such time as
another successor appointed as contemplated by Section 7.02 accepts such
appointment), all authority and power of the REMIC Administrator under this
Agreement shall pass to and be vested in the Trustee (or such other successor)
pursuant to and under this Section, and, without limitation, the Trustee (or
such other successor) is hereby authorized and empowered to execute and deliver,
on behalf of and at the expense of the REMIC Administrator, as attorney-in-fact
or otherwise, any and all documents and other instruments, and to do or
accomplish all other acts or things necessary or appropriate to effect the
purposes of such notice of termination. The REMIC Administrator agrees promptly
(and in any event no later than ten Business Days subsequent to its receipt of
the notice of the termination) to provide the Trustee (or, if the Trustee is
also the REMIC Administrator, such other successor appointed as contemplated by
Section 7.02) with all documents and records requested thereby to enable the
Trustee (or such other successor) to assume the REMIC Administrator's functions
hereunder, and to cooperate with the Trustee (or such other successor) in
effecting the termination of the REMIC Administrator's responsibilities and
rights hereunder (provided, however, that the REMIC Administrator shall
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continue to be obligated to pay and entitled to receive all amounts accrued or
owing by or to it under this Agreement on or prior to the date of such
termination, and it and its directors, officers, employees and agents shall
continue to be entitled to the benefits of Section 6.03 notwithstanding any such
termination). Any costs or expenses in connection with any actions to be taken
by the REMIC Administrator pursuant to this paragraph shall be borne by the
REMIC Administrator.
SECTION 7.02. Trustee to Act; Appointment of Successor.
On and after the time the Master Servicer, the Special Servicer or the
REMIC Administrator resigns pursuant to the first paragraph of Section 6.04 or
receives a notice of termination pursuant to Section 7.01, the Trustee shall be
the successor in all respects to the Master Servicer, the Special Servicer or
(unless it had also been acting as such) the REMIC Administrator, as the case
may be, in its capacity as such under this Agreement and the transactions set
forth or provided for herein and shall be subject to all the responsibilities,
duties and liabilities relating thereto and arising thereafter placed on the
Master Servicer, the Special Servicer or the REMIC Administrator, as the case
may be, by the terms and provisions hereof, including, without limitation, if
the Master Servicer is the resigning or terminated party, the Master Servicer's
obligation to make P&I Advances; provided that any failure to perform such
duties or responsibilities caused by the Master Servicer's, the Special
Servicer's or the REMIC Administrator's, as the case may be, failure to
cooperate or to provide information or monies required by Section 7.01 shall not
be considered a default by the Trustee hereunder. Neither the Trustee nor any
other successor shall be liable for any of the representations and warranties of
the resigning or terminated party or for any losses incurred by the resigning or
terminated party pursuant to Section 3.06 hereunder nor shall the Trustee nor
any other successor be required to purchase any Mortgage Loan hereunder. As
compensation therefor, the Trustee shall be entitled to all fees and other
compensation which the resigning or terminated party would have been entitled to
for future services rendered if the resigning or terminated party had continued
to act hereunder. Notwithstanding the above, the Trustee may, if it shall be
unwilling to so act, or shall, if it is unable, or is not approved as a
successor Master Servicer or Special Servicer, as the case may be, by each
Rating Agency, to so act or if the Holders of Certificates entitled to at least
51% of the Voting Rights shall request in writing to the Trustee or if the REMIC
Administrator is the resigning or terminated party and the Trustee had been
acting in such capacity, promptly appoint, or petition a court of competent
jurisdiction to appoint, any established and qualified institution as the
successor to the Master Servicer, the Special Servicer or the REMIC
Administrator, as the case may be, hereunder in the assumption of all or any
part of the responsibilities, duties or liabilities of the Master Servicer, the
Special Servicer or the REMIC Administrator, as the case may be, hereunder;
provided that such appointment does not result in the downgrading, withdrawal or
qualification of any rating then assigned by either Rating Agency to any Class
of Certificates (as evidenced by written confirmation to such effect from each
Rating Agency). No appointment of a successor to the Master Servicer, the
Special Servicer or the REMIC Administrator hereunder shall be effective until
the assumption of the successor to such party of all its responsibilities,
duties and liabilities hereunder, and pending such appointment and assumption,
the Trustee shall act in such capacity as hereinabove provided. In connection
with
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any such appointment and assumption, the Trustee may make such arrangements for
the compensation of such successor out of payments on the Mortgage Loans or
otherwise as it and such successor shall agree; provided, however, that no such
compensation shall be in excess of that permitted the resigning or terminated
party hereunder. The Depositor, the Trustee, such successor and each other party
hereto shall take such action, consistent with this Agreement, as shall be
necessary to effectuate any such succession.
SECTION 7.03. Notification to Certificateholders.
(a) Upon any resignation of the Master Servicer, the Special Servicer or
the REMIC Administrator pursuant to Section 6.04, any termination of the Master
Servicer, the Special Servicer or the REMIC Administrator pursuant to Section
7.01, any appointment of a successor to the Master Servicer, the Special
Servicer or the REMIC Administrator pursuant to Section 6.04 or 7.02 or the
effectiveness of any designation of a new Special Servicer pursuant to Section
6.06, the Trustee shall give prompt written notice thereof to Certificateholders
at their respective addresses appearing in the Certificate Register.
(b) Not later than the later of (i) 60 days after the occurrence of any
event which constitutes or, with notice or lapse of time or both, would
constitute an Event of Default and (ii) five days after a Responsible Officer of
the Trustee has notice of the occurrence of such an event, the Trustee shall
transmit by mail to the Depositor and all Certificateholders notice of such
occurrence, unless such default shall have been cured.
SECTION 7.04. Waiver of Events of Default.
The Holders representing at least 66-2/3% of the Voting Rights allocated to
the Classes of Certificates affected by any Event of Default hereunder may waive
such Event of Default; provided, however, that an Event of Default under clause
(i), clause (ii) or clause (iii) of Section 7.01(a) may be waived only by all of
the Certificateholders of the affected Classes. Upon any such waiver of an Event
of Default, such Event of Default shall cease to exist and shall be deemed to
have been remedied for every purpose hereunder. No such waiver shall extend to
any subsequent or other Event of Default or impair any right consequent thereon
except to the extent expressly so waived. Notwithstanding any other provisions
of this Agreement, for purposes of waiving any Event of Default pursuant to this
Section 7.04, Certificates registered in the name of the Depositor or any
Affiliate of the Depositor shall be entitled to the same Voting Rights with
respect to the matters described above as they would if registered in the name
of any other Person.
SECTION 7.05. Additional Remedies of Trustee Upon Event of Default.
During the continuance of any Event of Default, so long as such Event of
Default shall not have been remedied, the Trustee, in addition to the rights
specified in Section 7.01, shall have the right (exercisable subject to Section
8.01(a)), in its own name and as trustee of an express trust, to take all
actions now or hereafter existing at law, in equity or by statute to enforce its
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rights and remedies and to protect the interests, and enforce the rights and
remedies, of the Certificateholders (including the institution and prosecution
of all judicial, administrative and other proceedings and the filings of proofs
of claim and debt in connection therewith). Except as otherwise expressly
provided in this Agreement, no remedy provided for by this Agreement shall be
exclusive of any other remedy, and each and every remedy shall be cumulative and
in addition to any other remedy, and no delay or omission to exercise any right
or remedy shall impair any such right or remedy or shall be deemed to be a
waiver of any Event of Default.
SECTION 7.06. Advance Collateral Fund for Trustee.
(a) Pursuant to the terms of the Collateral Fund Custodial Agreement, for
so long as the Trustee's long-term unsecured debt rating by the Rating Agencies
is not in at least the second highest applicable rating category of each such
Rating Agency, the Trustee shall establish and maintain the Advance Collateral
Fund to secure the Trustee's obligations to make P&I Advances as successor
Master Servicer under the terms hereof. Pursuant to Section 3.03 of the
Collateral Fund Custodial Agreement, the Trustee shall grant a security interest
in the Advance Collateral Fund to the Advance Collateral Custodian for the
benefit of the Certificateholders.
(b) If at any time that the Trustee is the successor Master Servicer or is
otherwise obligated to make P&I Advances and the Trustee for any reason does not
make a P&I Advance required to be made by the Trustee pursuant to this
Agreement, then by 11:30 a.m., New York City time, on the Business Day
immediately preceding the related Distribution Date, pursuant to Section 2.02 of
the Collateral Fund Custodial Agreement, the Trustee shall deliver a notice to
the Collateral Fund Custodian to withdraw the necessary amount from the Advance
Collateral Fund and deposit such funds into the Distribution Account.
(c) In accordance with the provisions of the Collateral Fund Custodial
Agreement, the Trustee may, at any time, substitute a surety bond, letter of
credit, insurance policy or other security arrangement (the "Substitute
Collateral") for the Advance Collateral Fund and amounts on deposit therein or
any substitute therefor; provided that it has received written confirmation from
each Rating Agency that such action would not result in the downgrade,
qualification or withdrawal of the rating then assigned by any Rating Agency to
any Class of Certificates, and such substitution would not result in an Adverse
REMIC Event in respect of any REMIC created hereunder.
(d) If the arrangements for the Advance Collateral Fund have been
terminated because the Trustee's long-term unsecured debt rating by the Rating
Agencies was upgraded to at least the second highest applicable rating category
of each such Rating Agency and, subsequent to such termination of the Advance
Collateral Fund, the Trustee's long-term unsecured debt rating by the Rating
Agencies shall have been downgraded below the second highest applicable rating
category of each such Rating Agency, then the Trustee shall be required to enter
into an agreement similar to the Collateral Fund Custodial Agreement that is
acceptable to the Rating Agencies. If
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such substitute arrangement is not made within 60 days of such downgrade, then
such failure by the Trustee will render the Trustee ineligible under Section
8.06.
(e) The Advance Collateral Fund shall be an "outside reserve fund" within
the meaning of the REMIC Provisions and shall not be an asset of any REMIC. The
Advance Collateral Fund shall be beneficially owned by the Bank for federal
income tax purposes, and the Bank shall report all income, gain, loss or
deduction with respect thereto. Any reimbursement from the Trust Fund to the
Advance Collateral Fund shall be treated as amounts distributed by such REMIC to
the Trustee or any successor, all within the meaning of Section 1.860G-2(h) of
the Treasury Regulations.
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ARTICLE VIII
CONCERNING THE TRUSTEE
SECTION 8.01. Duties of Trustee.
(a) The Trustee, prior to the occurrence of an Event of Default and after
the curing or waiver of all Events of Default which may have occurred,
undertakes to perform such duties and only such duties as are specifically set
forth in this Agreement. If an Event of Default occurs and is continuing, then
(subject to Section 8.01(c)(iv) below) the Trustee shall exercise such of the
rights and powers vested in it by this Agreement, and use the same degree of
care and skill in their exercise as a prudent man would exercise or use under
the circumstances in the conduct of his own affairs. Any permissive right of the
Trustee contained in this Agreement shall not be construed as a duty.
(b) The Trustee, upon receipt of all resolutions, certificates, statements,
opinions, reports, documents, orders or other instruments furnished to the
Trustee which are specifically required to be furnished pursuant to any
provision of this Agreement (other than the Mortgage Files, the review of which
is specifically governed by the terms of Article II), shall examine them to
determine whether they conform to the requirements of this Agreement. If any
such instrument is found not to conform to the requirements of this Agreement in
a material manner, the Trustee shall make a request to the responsible party to
have the instrument corrected. The Trustee shall not be responsible for the
accuracy or content of any resolution, certificate, statement, opinion, report,
document, order or other instrument furnished by any other party hereto, and
accepted by the Trustee in good faith, pursuant to this Agreement.
(c) No provision of this Agreement shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own willful misconduct; provided, however, that:
(i) Prior to the occurrence of an Event of Default, and after the
curing or waiver of all Events of Default which may have occurred, the
duties and obligations of the Trustee shall be determined solely by the
express provisions of this Agreement, the Trustee shall not be liable
except for the performance of such duties and obligations as are
specifically set forth in this Agreement, no implied covenants or
obligations shall be read into this Agreement against the Trustee and, in
the absence of bad faith on the part of the Trustee, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon any certificates or opinions furnished
to the Trustee and conforming to the requirements of this Agreement.
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(ii) The Trustee shall not be personally liable for an error of
judgment made in good faith by a Responsible Officer or Responsible
Officers of the Trustee, unless it shall be proved that the Trustee was
negligent in ascertaining the pertinent facts.
(iii) The Trustee shall not be personally liable with respect to any
action taken, suffered or omitted to be taken by it in good faith in
accordance with the direction of Holders of Certificates entitled to at
least 25% (or, as to any particular matter, any higher percentage as may be
specifically provided for hereunder) of the Voting Rights relating to the
time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred upon
the Trustee, under this Agreement.
(iv) The Trustee shall not be required to take action with respect to,
or be deemed to have notice or knowledge of, any default or Event of
Default (except an Event of Default under Section 7.01(a)(xiii) or the
failure to deliver any monies, including, without limitation, P&I Advances,
or to provide any report, certificate or statement to the Trustee when
required pursuant to this Agreement) unless a Responsible Officer of the
Trustee shall have received written notice or otherwise have actual
knowledge thereof. In the absence of receipt of such notice and such actual
knowledge otherwise obtained, the Trustee may conclusively assume that
there is no default or Event of Default.
(v) Subject to the other provisions of this Agreement and without
limiting the generality of this Section 8.01, the Trustee shall have no
duty except in the capacity as successor Master Servicer or successor
Special Servicer (A) to see to any recording, filing, or depositing of this
Agreement or any agreement referred to herein or any financing statement or
continuation statement evidencing a security interest, or to see to the
maintenance of any such recording or filing or depositing or to any
rerecording, refiling or redepositing of any thereof, (B) to see to any
insurance, and (C) to confirm or verify the contents of any reports or
certificates of the Master Servicer or Special Servicer delivered to the
Trustee pursuant to this Agreement reasonably believed by the Trustee to be
genuine and to have been signed or presented by the proper party or
parties.
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SECTION 8.02. Certain Matters Affecting Trustee.
Except as otherwise provided in Section 8.01:
(i) the Trustee may rely upon and shall be protected in acting or
refraining from acting upon any resolution, Officer's Certificate,
certificate of auditors or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, appraisal, bond or other
paper or document reasonably believed by it to be genuine and to have been
signed or presented by the proper party or parties;
(ii) the Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken or suffered or
omitted by it hereunder in good faith and in accordance therewith;
(iii) the Trustee shall be under no obligation to exercise any of the
trusts or powers vested in it by this Agreement or to make any
investigation of matters arising hereunder or to institute, conduct or
defend any litigation hereunder or in relation hereto at the request, order
or direction of any of the Certificateholders, pursuant to the provisions
of this Agreement, unless in the Trustee's reasonable opinion, such
Certificateholders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which may be incurred
therein or thereby; the Trustee shall not be required to expend or risk its
own funds or otherwise incur any financial liability in the performance of
any of its duties hereunder, or in the exercise of any of its rights or
powers, if it shall have reasonable grounds for believing that repayment of
such funds or adequate indemnity against such risk or liability is not
reasonably assured to it; nothing contained herein shall, however, relieve
the Trustee of the obligation, upon the occurrence of an Event of Default
which has not been waived or cured, to exercise such of the rights and
powers vested in it by this Agreement, and to use the same degree of care
and skill in their exercise as a prudent man would exercise or use under
the circumstances in the conduct of his own affairs;
(iv) the Trustee shall not be personally liable for any action
reasonably taken, suffered or omitted by it in good faith and believed by
it to be authorized or within the discretion or rights or powers conferred
upon it by this Agreement;
(v) prior to the occurrence of an Event of Default and after the
waiver or curing of all Events of Default which may have occurred, the
Trustee shall not be bound to make any investigation into the facts or
matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request,
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consent, order, approval, bond or other paper or document, unless requested
in writing to do so by Holders of Certificates entitled to at least 25% of
the Voting Rights; provided, however, that if the payment within a
reasonable time to the Trustee of the costs, expenses or liabilities likely
to be incurred by it in the making of such investigation is, in the opinion
of the Trustee, not reasonably assured to the Trustee by the security
afforded to it by the terms of this Agreement, the Trustee may require
reasonable indemnity against such expense or liability as a condition to
taking any such action;
(vi) the Trustee shall not be required to give any bond or surety in
respect of the execution of the Trust Fund created hereby or the powers
granted hereunder;
(vii) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys, provided that the use of agents or attorneys shall not be deemed
to relieve the Trustee of any of its duties and obligations hereunder; and
(viii) the Trustee shall not be responsible for any act or omission of
the Master Servicer, the Special Servicer or the REMIC Administrator
(unless the Trustee is acting as Master Servicer, Special Servicer or REMIC
Administrator, as the case may be) or of the Depositor.
SECTION 8.03. Trustee not Liable for Validity or Sufficiency of
Certificates or Mortgage Loans.
The recitals contained herein and in the Certificates (other than the
statements attributed to, and the representations and warranties of, the Trustee
in Article II, and the signature of the Trustee set forth on each outstanding
Certificate) shall be taken as the statements of the Depositor, the Master
Servicer, the Special Servicer or the REMIC Administrator, as the case may be,
and the Trustee (in its capacity as such) assumes no responsibility for their
correctness. The Trustee makes no representation as to the validity or
sufficiency of this Agreement (except as regards the enforceability of this
Agreement against it) or of any Certificate (other than as to the signature of
the Trustee set forth thereon) or of any Mortgage Loan or related document. The
Trustee shall not be accountable for the use or application by the Depositor of
any of the Certificates issued to it or of the proceeds of such Certificates, or
for the use or application of any funds paid to the Depositor in respect of the
assignment of the Mortgage Loans to the Trust Fund, or any funds deposited in or
withdrawn from the Collection Account or any other account by or on behalf of
the Depositor, the Master Servicer, the Special Servicer or the REMIC
Administrator (in each case, unless the Trustee is acting in such capacity). The
Trustee shall not be responsible for the accuracy or content of any resolution,
certificate, statement, opinion, report, document, order or other instrument
furnished by the Depositor, the Master Servicer, the Special Servicer or the
REMIC Administrator (in each case, unless the Trustee is acting in such
capacity), and
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accepted by the Trustee in good faith, pursuant to this Agreement. The Trustee
shall not be responsible for the legality or validity of this Agreement (other
than insofar as it relates to the obligations of the Trustee hereunder) or the
validity, priority, perfection or sufficiency of the security for the
Certificates issued or intended to be issued hereunder. The Trustee shall not
have any responsibility for filing any financing or continuation statement in
any public office at any time or to otherwise perfect or maintain the perfection
of any security interest or lien granted to it hereunder or to record this
Agreement.
SECTION 8.04. Trustee May Own Certificates.
The Trustee (in its individual or any other capacity) or any agent of the
Trustee may become the owner or pledgee of Certificates with the same rights it
would have if it were not the Trustee or such agent.
SECTION 8.05. Fees and Expenses of Trustee; Indemnification of Trustee and
the REMIC Administrator.
(a) On each Distribution Date, the Trustee shall withdraw from the
Distribution Account, prior to any distributions to be made therefrom to
Certificateholders on such date, and pay to itself all earned but unpaid
Trustee's Fees in respect of the Mortgage Loans and any REO Loans, as
compensation for all services rendered by the Trustee in the execution of the
trusts hereby created and in the exercise and performance of any of the powers
and duties of the Trustee hereunder. As to each Mortgage Loan and REO Loan, the
Trustee's Fee shall accrue from time to time at the Trustee's Fee Rate, whether
or not interest is actually collected on each Mortgage Loan and REO Loan, on the
basis of the same principal amount and for the same period respecting which any
related interest payment due on such Mortgage Loan or deemed due on such REO
Loan is computed. The Trustee's Fees (which shall not be limited by any
provision of law in regard to the compensation of a trustee of an express trust)
shall constitute the Trustee's sole compensation for such services to be
rendered by it.
(b) The Trustee and any director, officer, employee or agent of the Trustee
shall be entitled to be indemnified for and held harmless by the Trust Fund (to
the extent of amounts on deposit in the Distribution Account from time to time)
against any loss, liability, claim or expense (including, without limitation,
costs and expenses of litigation, and of investigation, counsel fees, damages,
judgments and amounts paid in settlement) arising out of, or incurred in
connection with, this Agreement, the Certificates, the Mortgage Loans (to the
extent it does not act in the capacity of successor Master Servicer or Special
Servicer) or any act or omission of the Trustee relating to the exercise and
performance of any of the powers and duties of the Trustee hereunder if such
loss, liability, claim or expense constitutes an "unanticipated expense" within
the meaning of Treasury regulation Section 1.860G-1(b)(3)(ii); provided that
neither the Trustee nor any of the other above specified Persons shall be
entitled to indemnification pursuant to this Section 8.05(b) for (1) any expense
or liability specifically required to be borne thereby pursuant to the terms
hereof, or (2) any loss, liability, claim or expense incurred by reason of any
breach
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on the part of the Trustee of any of its representations, warranties or
covenants contained herein or any willful misfeasance, bad faith or negligence
in the performance of, or reckless disregard of, the Trustee's obligations and
duties hereunder.
(c) Each of the Master Servicer and the Special Servicer shall indemnify
the Trustee and the REMIC Administrator from and hold each of them harmless
against any loss, liability, claim or expense arising in respect of the Master
Servicer's, or Special Servicer's as the case may be, negligent acts or
omissions in connection with this Agreement including, without limitation, the
negligent use by the Master Servicer or the Special Servicer, as the case may
be, of any powers of attorney delivered to it by the Trustee pursuant to the
provisions hereof and the Mortgage Loans serviced by the Master Servicer or the
Special Servicer, as the case may be.
(d) This Section 8.05 shall survive the termination of this Agreement or
the resignation or removal of the Trustee, the REMIC Administrator, the Master
Servicer and the Special Servicer as regards rights and obligations prior to
such termination, resignation or removal.
SECTION 8.06. Eligibility Requirements for Trustee.
The Trustee hereunder shall at all times be a corporation, bank, trust
company or association organized and doing business under the laws of the United
States of America or any State thereof or the District of Columbia, authorized
under such laws to exercise trust powers, having a combined capital and surplus
of at least $[50,000,000] and subject to supervision or examination by federal
or state authority. If such corporation, bank, trust company or association
publishes reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for the
purposes of this Section the combined capital and surplus of such corporation,
bank, trust company or association shall be deemed to be its combined capital
and surplus as set forth in its most recent report of condition so published.
The Trustee shall at all times maintain a long-term unsecured debt rating in one
of the two highest (or, so long as the Trustee is satisfying the requirements of
Section 7.06, one of the three highest) applicable rating categories of each
Rating Agency (or, in the case of either Rating Agency, such lower rating that
shall not result in the qualification, downgrading or withdrawal of the rating
or ratings assigned to one or more Classes of the Certificates by such Rating
Agency, as confirmed in writing by such Rating Agency). In case at any time the
Trustee shall cease to be eligible in accordance with the provisions of this
Section, the Trustee shall resign immediately in the manner and with the effect
specified in Section 8.07. The corporation or association serving as Trustee may
have normal banking and trust relationships with the Depositor, the Master
Servicer, the Special Servicer, the REMIC Administrator and their respective
Affiliates.
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SECTION 8.07. Resignation and Removal of Trustee.
(a) The Trustee may at any time resign and be discharged from the trusts
hereby created by giving written notice thereof to the Depositor, the Master
Servicer, the Special Servicer, the REMIC Administrator and to all
Certificateholders. Upon receiving such notice of resignation, the Depositor
shall promptly appoint a successor trustee acceptable to the Master Servicer by
written instrument, in duplicate, which instrument shall be delivered to the
resigning Trustee and to the successor trustee. A copy of such instrument shall
be delivered to the Master Servicer, the Special Servicer, the REMIC
Administrator and the Certificateholders by the Depositor. If no successor
trustee shall have been so appointed and have accepted appointment within 30
days after the giving of such notice of resignation, the resigning Trustee may
petition any court of competent jurisdiction for the appointment of a successor
trustee.
(b) If at any time the Trustee shall cease to be eligible in accordance
with the provisions of Section 8.06 and shall fail to resign after written
request therefor by the Depositor or the Master Servicer, or if at any time the
Trustee shall become incapable of acting, or shall be adjudged bankrupt or
insolvent, or a receiver of the Trustee or of its property shall be appointed,
or any public officer shall take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation, or if the continued use of the Trustee would (as evidenced in
writing from either Rating Agency) result in a qualification, downgrading or
withdrawal of the rating assigned by such Rating Agency to any Class of
Certificates, then the Depositor may remove the Trustee and appoint a successor
trustee acceptable to the Master Servicer by written instrument, in duplicate,
which instrument shall be delivered to the Trustee so removed and to the
successor trustee. A copy of such instrument shall be delivered to the Master
Servicer, the Special Servicer, the REMIC Administrator and the
Certificateholders by the Depositor.
(c) The Holders of Certificates entitled to not less than 51% of the Voting
Rights (or, if such removal is in connection with the Trustee's failure to make
any required Advance, 25% of the Voting Rights) may at any time remove the
Trustee and appoint a successor trustee by written instrument or instruments, in
triplicate, signed by such Holders or their attorneys-in-fact duly authorized,
one complete set of which instruments shall be delivered to the Master Servicer,
one complete set to the Trustee so removed and one complete set to the successor
so appointed. A copy of such instrument shall be delivered to the Depositor, the
Special Servicer, the REMIC Administrator and the remaining Certificateholders
by the successor so appointed.
(d) Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to any of the provisions of this Section 8.07 shall
not become effective until acceptance of appointment by the successor trustee as
provided in Section 8.08 and written confirmation from each Rating Agency that
the appointment of such successor Trustee shall not result in the downgrade,
qualification or withdrawal of any rating then assigned thereby to any Class of
Certificates. Notwithstanding anything herein to the contrary, if any Person is
acting as both Trustee and REMIC Administrator, then any resignation or removal
of such Person as the
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Trustee shall be accompanied by the resignation or removal of such Person as
REMIC Administrator, and the successor trustee shall serve as successor to the
REMIC Administrator as well.
SECTION 8.08. Successor Trustee.
(a) Any successor trustee appointed as provided in Section 8.07 shall
execute, acknowledge and deliver to the Depositor, the Master Servicer, the
Special Servicer, the REMIC Administrator and to its predecessor trustee an
instrument accepting such appointment hereunder, and thereupon the resignation
or removal of the predecessor trustee shall become effective and such successor
trustee, without any further act, deed or conveyance, shall become fully vested
with all the rights, powers, duties and obligations of its predecessor
hereunder, with the like effect as if originally named as trustee herein. The
predecessor trustee shall deliver to the successor trustee all Mortgage Files
and related documents and statements held by it hereunder (other than any
Mortgage Files at the time held on its behalf by a Custodian, which Custodian
shall become the agent of the successor trustee), and the Depositor, the Master
Servicer, the Special Servicer, the REMIC Administrator and the predecessor
trustee shall execute and deliver such instruments and do such other things as
may reasonably be required to more fully and certainly vest and confirm in the
successor trustee all such rights, powers, duties and obligations, and to enable
the successor trustee to perform its obligations hereunder.
(b) No successor trustee shall accept appointment as provided in this
Section 8.08 unless at the time of such acceptance such successor trustee shall
be eligible under the provisions of Section 8.06.
(c) Upon acceptance of appointment by a successor trustee as provided in
this Section 8.08, such successor trustee shall mail notice of the succession of
such trustee hereunder to the Depositor and the Certificateholders.
SECTION 8.09. Merger or Consolidation of Trustee.
Any entity into which the Trustee may be merged or converted or with which
it may be consolidated or any entity resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any entity succeeding to
the corporate trust business of the Trustee, shall be the successor of the
Trustee hereunder, provided such entity shall be eligible under the provisions
of Section 8.06, without the execution or filing of any paper or any further act
on the part of any of the parties hereto, anything herein to the contrary
notwithstanding.
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SECTION 8.10. Appointment of Co-Trustee or Separate Trustee.
(a) Notwithstanding any other provisions hereof, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any part
of the Trust Fund or property securing the same may at the time be located, the
Master Servicer and the Trustee acting jointly shall have the power and shall
execute and deliver all instruments to appoint one or more Persons approved by
the Trustee to act as co-trustee or co-trustees, jointly with the Trustee, or
separate trustee or separate trustees, of all or any part of the Trust Fund, and
to vest in such Person or Persons, in such capacity, such title to the Trust
Fund, or any part thereof, and, subject to the other provisions of this Section
8.10, such powers, duties, obligations, rights and trusts as the Master Servicer
and the Trustee may consider necessary or desirable. If the Master Servicer
shall not have joined in such appointment within 15 days after the receipt by it
of a request to do so, or in case an Event of Default in respect of the Master
Servicer shall have occurred and be continuing, the Trustee alone shall have the
power to make such appointment. No co-trustee or separate trustee hereunder
shall be required to meet the terms of eligibility as a successor trustee under
Section 8.06 hereunder and no notice to Holders of Certificates of the
appointment of co-trustee(s) or separate trustee(s) shall be required under
Section 8.08 hereof.
(b) In the case of any appointment of a co-trustee or separate trustee
pursuant to this Section 8.10 all rights, powers, duties and obligations
conferred or imposed upon the Trustee shall be conferred or imposed upon and
exercised or performed by the Trustee and such separate trustee or co-trustee
jointly, except to the extent that under any law of any jurisdiction in which
any particular act or acts are to be performed (whether as Trustee hereunder or
as successor to the Master Servicer, the Special Servicer or the REMIC
Administrator hereunder), the Trustee shall be incompetent or unqualified to
perform such act or acts, in which event such rights, powers, duties and
obligations (including the holding of title to the Trust Fund or any portion
thereof in any such jurisdiction) shall be exercised and performed by such
separate trustee or co-trustee at the direction of the Trustee.
(c) Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the then separate trustees and co-trustees,
as effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Agreement and the conditions
of this Article VIII. Each separate trustee and co-trustee, upon its acceptance
of the trusts conferred, shall be vested with the estates or property specified
in its instrument of appointment, either jointly with the Trustee or separately,
as may be provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the conduct
of, affecting the liability of, or affording protection to, the Trustee. Every
such instrument shall be filed with the Trustee.
(d) Any separate trustee or co-trustee may, at any time, constitute the
Trustee, its agent or attorney-in-fact, with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of
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its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
(e) The appointment of a co-trustee or separate trustee under this Section
8.10 shall not relieve the Trustee of its duties and responsibilities hereunder.
SECTION 8.11. Appointment of Custodians.
The Trustee may, with the consent of the Master Servicer, appoint at the
Trustee's own expense one or more Custodians to hold all or a portion of the
Mortgage Files as agent for the Trustee; provided that if the Custodian is an
Affiliate of the Trustee such consent of the Master Servicer need not be
obtained and the Trustee shall inform the Master Servicer of such appointment.
Each Custodian shall be a depository institution supervised and regulated by a
federal or state banking authority, shall have combined capital and surplus of
at least $10,000,000, shall be qualified to do business in the jurisdiction in
which it holds any Mortgage File, shall not be the Depositor or any Affiliate of
the Depositor, and shall have in place a fidelity bond and errors and omissions
policy, each in such form and amount as customarily required of custodians
acting on behalf of FHLMC or FNMA. Each Custodian shall be subject to the same
obligations, standard of care, protection and indemnities as would be imposed
on, or would protect, the Trustee hereunder in connection with the retention of
Mortgage Files directly by the Trustee. The appointment of one or more
Custodians shall not relieve the Trustee from any of its obligations hereunder,
and the Trustee shall remain responsible for all acts and omissions of any
Custodian.
SECTION 8.12. Access to Certain Information.
(a) The Trustee shall afford to the Depositor, the Master Servicer, the
Special Servicer, each Holder of a Class B-3 Certificate, a Class B-4
Certificate or a Class C Certificate, the REMIC Administrator and each Rating
Agency and to the OTS, the FDIC and any other banking or insurance regulatory
authority that may exercise authority over any Certificateholder, access to any
documentation regarding the Mortgage Loans within its control that may be
required to be provided by this Agreement or by applicable law. Such access
shall be afforded without charge but only upon reasonable prior written request
and during normal business hours at the offices of the Trustee designated by it.
(b) The Trustee shall maintain at its office primarily responsible for
administration of the Trust Fund and, upon reasonable prior written request and
during normal business hours, shall make available for review by the Depositor,
the Rating Agencies, and, subject to the succeeding paragraph, any
Certificateholder, Certificate Owner or Person identified to the Trustee as a
prospective transferee of a Certificate or an interest therein, originals and/or
copies of the following items: (i) the prospectus and prospectus supplement
relating to the Class S, Class A and Class B-1 Certificates and any private
placement memorandum or other disclosure document relating to the Private
Certificates, in each case in the form most recently provided to the Trustee by
the Depositor or by any Person designated by the Depositor; (ii) this Agreement
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and any amendments hereto entered into pursuant to Section 11.01; (iii) all
Trustee Reports delivered to Certificateholders pursuant to Section 4.02(a)
since the Closing Date; (iv) all Officer's Certificates delivered by the Master
Servicer and the Special Servicer to the Trustee since the Closing Date pursuant
to Section 3.13; (v) all accountants' reports caused to be delivered by the
Master Servicer and the Special Servicer to the Trustee since the Closing Date
pursuant to Section 3.14; (vi) the most recent inspection report prepared by the
Master Servicer or the Special Servicer and delivered to the Trustee in respect
of each Mortgaged Property pursuant to Section 3.12(a); (vii) the most recent
quarterly and annual operating statement and rent roll of each related Mortgaged
Property and financial statements of the related Mortgagor collected by the
Master Servicer or the Special Servicer and delivered to the Trustee pursuant to
Section 3.12(b); (viii) any and all notices and reports delivered to the Trustee
with respect to any Mortgaged Property as to which the environmental testing
contemplated by Section 3.09(c) revealed that neither of the conditions set
forth in clauses (i) and (ii) of the first sentence thereof was satisfied; (ix)
all Determination Date Reports, Special Servicer Reports and Operating Statement
Analyses delivered to the Trustee since the Closing Date pursuant to Sections
4.02(b) and 4.02(c); (x) each of the Mortgage Files, including, without
limitation, any and all modifications, waivers and amendments of the terms of a
Mortgage Loan entered into or consented to by the Master Servicer or the Special
Servicer and delivered to the Trustee pursuant to Section 3.20; (xi) the most
recent Appraisal for each Mortgage Loan and REO Property that has been delivered
to the Trustee (such item to be delivered to the Trustee by the Master Servicer
or Special Servicer, as applicable, promptly following its having been obtained
or formulated); and (xii) any and all Officer's Certificates and other evidence
delivered to or by the Trustee to support its, the Master Servicer's or the
Special Servicer's, as the case may be, determination that any Advance was or,
if made, would be, a Nonrecoverable Advance. The Trustee shall provide copies of
any and all of the foregoing items upon request of any of the parties set forth
in the previous sentence; however, except in the case of the Rating Agencies,
the Trustee shall be permitted to require payment of a sum sufficient to cover
the reasonable costs and expenses of providing such copies.
In connection with providing access to or copies of the items described in
the preceding paragraph, the Trustee shall require (a) in the case of
Certificate Owners, a confirmation executed by the requesting Person
substantially in the form of Exhibit L-1 hereto generally to the effect that
such Person is a beneficial holder of Certificates, is requesting the
information solely for use in evaluating such Person's investment in the
Certificates and will otherwise keep such information confidential and (b) in
the case of a prospective purchaser, confirmation executed by the requesting
Person substantially in the form of Exhibit L-2 hereto generally to the effect
that such Person is a prospective purchaser of a Certificate or an interest
therein, is requesting the information solely for use in evaluating a possible
investment in Certificates and will otherwise keep such information
confidential. The Holders of the Certificates, by their acceptance thereof, will
be deemed to have agreed to keep such information confidential. The Trustee
shall not be liable for providing information in accordance with Section 8.12(a)
or for the dissemination of information in accordance with this Section 8.12(b).
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ARTICLE IX
TERMINATION
SECTION 9.01. Termination Upon Repurchase or Liquidation of All Mortgage
Loans.
Subject to Section 9.02, the Trust Fund and the respective obligations and
responsibilities under this Agreement of the Depositor, the Master Servicer, the
Special Servicer, the Trustee and the REMIC Administrator (other than the
obligations of the Trustee to provide for and make payments to
Certificateholders as hereafter set forth) shall terminate upon payment (or
provision for payment) to the Certificateholders of all amounts held by or on
behalf of the Trustee and required hereunder to be so paid on the Distribution
Date following the earlier to occur of (i) the purchase by the Special Servicer
or the Master Servicer of all Mortgage Loans and each REO Property remaining in
REMIC I at a price equal to (A) the aggregate Purchase Price of all the Mortgage
Loans included in REMIC I, plus (B) the appraised value of each REO Property, if
any, included in REMIC I, such appraisal to be conducted by an Independent
MAI-designated appraiser selected by the Master Servicer and approved by the
Trustee, minus (C) the aggregate amount of unreimbursed Advances made by the
Master Servicer or the Special Servicer, as applicable, together with any unpaid
Advance Interest in respect of such unreimbursed Advances and any unpaid
servicing compensation owing to such party (which items shall be deemed to have
been paid or reimbursed to the Master Servicer or Special Servicer, as the case
may be, in connection with such purchase), and (ii) the final payment or other
liquidation (or any advance with respect thereto) of the last Mortgage Loan or
REO Property remaining in REMIC I; provided, however, that in no event shall the
trust created hereby continue beyond the expiration of 21 years from the death
of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
ambassador of the United States to the Court of St. Xxxxx, living on the date
hereof.
The Special Servicer or the Master Servicer may at its option elect to
purchase all of the Mortgage Loans and each REO Property remaining in REMIC I as
contemplated by clause (i) of the preceding paragraph by giving written notice
to the other parties hereto no later than 60 days prior to the anticipated date
of purchase; provided that the aggregate Stated Principal Balance of the
Mortgage Pool at the time of such election is less than ___% of the aggregate
Cut-off Date Balance of the Mortgage Pool set forth in the Preliminary
Statement; and provided further that, in the case of any such written notice
delivered by the Master Servicer, the Special Servicer does not elect in a
writing delivered to the other parties hereto, within seven days of receiving
such written notice from the Master Servicer, to effect such purchase. No
Prepayment Premiums or Yield Maintenance Premiums will be payable in connection
with such a purchase. If the Trust Fund is to be terminated in connection with
the purchase of all of the Mortgage Loans and each REO Property remaining in
REMIC I by the Special Servicer or the Master Servicer, the Special Servicer or
the Master Servicer, as applicable, shall deliver to the Trustee for deposit in
the Distribution Account not later than the Master Servicer Remittance Date
relating to the anticipated Final Distribution Date an amount in immediately
available funds equal to the above-described
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purchase price (exclusive of any portion thereof payable to any Person other
than the Certificateholders pursuant to Section 3.05(a), which portion shall be
deposited in the Collection Account). In addition, the Master Servicer shall
transfer to the Distribution Account all amounts required to be transferred
thereto on such Master Servicer Remittance Date from the Collection Account
pursuant to the first paragraph of Section 3.04(b), together with any other
amounts on deposit in the Collection Account that would otherwise be held for
future distribution. Upon confirmation that such final deposit has been made,
the Trustee shall release or cause to be released to the purchasing party the
Mortgage Files for the remaining Mortgage Loans and shall execute all
assignments, endorsements and other instruments furnished to it by the
purchasing party as shall be necessary to effectuate transfer of the Mortgage
Loans and REO Properties to the purchasing party (or its designee).
Notice of any termination shall be given promptly by the Trustee by letter
to Certificateholders mailed (x) if such notice is given in connection with the
purchase of the Mortgage Loans and each REO Property remaining in REMIC I by the
Special Servicer or the Master Servicer, not earlier than the 15th day and not
later than the 25th day of the month next preceding the month of the final
distribution on the Certificates and (y) otherwise during the month of such
final distribution on or before the Master Servicer Remittance Date in such
month, in any event specifying (i) the Distribution Date upon which the Trust
Fund will terminate and final payment of the Certificates will be made, (ii) the
amount of any such final payment and (iii) that the Record Date otherwise
applicable to such Distribution Date is not applicable, payments being made only
upon presentation and surrender of the Certificates at the office or agency of
the Trustee therein designated. The Trustee shall give such notice to the
Depositor, the Master Servicer, the Special Servicer and the REMIC Administrator
at the time such notice is given to Certificateholders.
Upon presentation and surrender of the Certificates by the
Certificateholders on the Final Distribution Date, the Trustee shall distribute
to each Certificateholder so presenting and surrendering its Certificates such
Certificateholder's Percentage Interest of that portion of the Available
Distribution Amount that is allocable to payments on the relevant Class in
accordance with Sections 4.01(a) and 4.01(b).
Any funds not distributed to any Holder or Holders of Certificates of any
Class on the Final Distribution Date because of the failure of such Holder or
Holders to tender their Certificates shall, on such date, be set aside and held
uninvested in trust and credited to the account or accounts of the appropriate
non-tendering Holder or Holders. If any Certificates as to which notice has been
given pursuant to this Section 9.01 shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation in order to
receive the final distribution with respect thereto. If within one year after
the second notice all such Certificates shall not have been surrendered for
cancellation, the Trustee, directly or through an agent, shall take such
reasonable steps to contact the remaining non-tendering Certificateholders
concerning the surrender of their Certificates as it shall deem
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appropriate. The costs and expenses of holding such funds in trust and of
contacting such Certificateholders following the first anniversary of the
delivery of such second notice to the non- tendering Certificateholders shall be
paid out of such funds. No interest shall accrue or be payable to any former
Holder on any amount held in trust hereunder. If by the second anniversary of
the delivery of such second notice, all of the Certificates shall not have been
surrendered for cancellation, the Class R-III Certificateholders shall be
entitled to all unclaimed funds and other assets which remain subject thereto.
SECTION 9.02. Additional Termination Requirements.
(a) If the Special Servicer or the Master Servicer purchases all of the
Mortgage Loans and each REO Property remaining in REMIC I as provided in Section
9.01, the Trust Fund (and, accordingly, REMIC I, REMIC II and REMIC III) shall
be terminated in accordance with the following additional requirements, unless
the purchasing party obtains at its own expense and delivers to the Trustee and
the REMIC Administrator an Opinion of Counsel, addressed to the Trustee and the
REMIC Administrator, to the effect that the failure of the Trust Fund to comply
with the requirements of this Section 9.02 will not result in the imposition of
taxes on "prohibited transactions" on any of REMIC I, REMIC II or REMIC III as
defined in Section 860F of the Code or cause REMIC I, REMIC II or REMIC III to
fail to qualify as a REMIC at any time that any Certificates are outstanding:
(i) the REMIC Administrator shall specify the first day in the 90-day
liquidation period in a statement attached to the final Tax Return for each
of REMIC I, REMIC II and REMIC III pursuant to Treasury regulation Section
1.860F-1 and shall satisfy all requirements of a qualified liquidation
under Section 860F of the Code and any regulations thereunder;
(ii) during such 90-day liquidation period and at or prior to the time
of making the final payment on the Certificates, the Trustee shall sell all
of the assets of REMIC I to the Special Servicer or the Master Servicer, as
the case may be, for cash; and
(iii) immediately following the making of the final payment on the
Certificates, the Trustee shall distribute or credit, or cause to be
distributed or credited, to the Holders of the applicable Class of Residual
Certificates all remaining cash on hand (other than cash retained to meet
claims), and each of REMIC I, REMIC II and REMIC III shall terminate at
that time.
(b) By their acceptance of Certificates, the Holders thereof hereby agree
to authorize any purchaser of the Mortgage Loans and each REO Property as
provided in Section 9.01 to prepare (and such Person shall prepare), and to
authorize the Trustee to adopt on behalf of the Trust, a plan of complete
liquidation of each of REMIC I, REMIC II and REMIC III in accordance with the
terms and conditions of this Agreement, which authorization shall be binding
upon all successor Certificateholders.
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ARTICLE X
ADDITIONAL REMIC PROVISIONS
SECTION 10.01. REMIC Administration.
(a) The REMIC Administrator shall elect to treat each of REMIC I, REMIC II
and REMIC III as a REMIC under the Code and, if necessary, under applicable
state law. Each such election will be made on Form 1066 or other appropriate
federal tax or information return or any appropriate state Tax Returns for the
taxable year ending on the last day of the calendar year in which the
Certificates are issued.
(b) The REMIC I Regular Interests are hereby designated as "regular
interests" (within the meaning of Section 860G(a)(1) of the Code), and the Class
R-I Certificates are hereby designated as the sole class of "residual interests"
(within the meaning of Section 860G(a)(2) of the Code), in REMIC I. The REMIC II
Regular Interests are hereby designated as "regular interests" (within the
meaning of Section 860G(a)(1) of the Code), and the Class R-II Certificates are
hereby designated as the sole class of "residual interests" (within the meaning
of Section 860G(a)(2) of the Code), in REMIC II. The Class A-1A, Class X-0X,
Xxxxx X-0, Class A-3, Class B-1, Class B-2, Class B-3, Class B-4 and Class C
Certificates, together with the respective Components of the Class S
Certificates, are hereby designated as "regular interests" (within the meaning
of Section 860G(a)(1) of the Code), and the Class R-III Certificates are hereby
designated as the sole class of "residual interests" (within the meaning of
Section 860G(a)(2) of the Code), in REMIC III. None of the REMIC Administrator,
the Master Servicer, the Special Servicer or the Trustee shall, to the extent
within the control of such Person, create or permit the creation of any other
"interests" in REMIC I, REMIC II or REMIC III (within the meaning of Treasury
regulation Section 1.860D-1(b)(1)).
(c) The Closing Date is hereby designated as the "Startup Day" of each of
REMIC I, REMIC II and REMIC III within the meaning of Section 860G(a)(9) of the
Code.
(d) The applicable Plurality Residual Certificateholder is hereby
designated as the Tax Matters Person of each of REMIC I, REMIC II and REMIC III,
and shall act on behalf of the related REMIC in relation to any tax matter or
controversy, shall represent the related REMIC in any administrative or judicial
proceeding relating to an examination or audit by any governmental taxing
authority, shall request an administrative adjustment as to any taxable year of
the related REMIC, shall enter into settlement agreements with any governmental
taxing agency with respect to the related REMIC, shall extend any statute of
limitations relating to any tax item of the related REMIC and shall otherwise
act on behalf of the related REMIC in relation to any tax matter or controversy
involving such REMIC; provided that the REMIC Administrator is hereby
irrevocably appointed to act and shall act (in consultation with the Tax Matters
Person for each of REMIC I, REMIC II and REMIC III) as agent and
attorney-in-fact for the Tax Matters Person for each of REMIC I, REMIC II and
REMIC III in the performance of its duties as such.
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The legal expenses and costs of any action described in this subsection (d) and
any liability resulting therefrom shall be expenses, costs and liabilities of
the Trust Fund payable out of amounts on deposit in the Distribution Account as
provided by Section 3.05(b) unless such legal expenses and costs are incurred by
reason of a Tax Matters Person's or the REMIC Administrator's misfeasance, bad
faith or negligence in the performance of, or such Person's reckless disregard
of, its obligations or are expressly provided by this Agreement to be borne by
any party hereto.
(e) The REMIC Administrator shall prepare or cause to be prepared and file,
and the Trustee shall sign, all of the Tax Returns in respect of each of REMIC
I, REMIC II and REMIC III other than Tax Returns required to be filed by the
Master Servicer pursuant to Section 3.09(g). The expenses of preparing and
filing such returns shall be borne by the REMIC Administrator without any right
of reimbursement therefor.
(f) The REMIC Administrator shall perform on behalf of each of REMIC I,
REMIC II and REMIC III all reporting and other tax compliance duties that are
the responsibility of each such REMIC under the Code, the REMIC Provisions or
other compliance guidance issued by the Internal Revenue Service or any state or
local taxing authority. Included among such duties, the REMIC Administrator
shall provide to: (i) any Transferor of a Residual Certificate, such information
as is necessary for the application of any tax relating to the transfer of a
Residual Certificate to any Person who is not a Permitted Transferee; (ii) the
Certificateholders, such information or reports as are required by the Code or
the REMIC Provisions, including, without limitation, reports relating to
interest, original issue discount and market discount or premium (using the
Prepayment Assumption as required); and (iii) the Internal Revenue Service, the
name, title, address and telephone number of the Person who will serve as the
representative of each of REMIC I, REMIC II and REMIC III. In addition, the
Depositor shall provide or cause to be provided to the REMIC Administrator,
within (10) days after the Closing Date, all information or data that the REMIC
Administrator reasonably determines to be relevant for tax purposes as to the
valuations and issue prices of the Certificates, including without limitation,
the price, yield, Prepayment Assumption and projected cash flow of the
Certificates.
(g) The REMIC Administrator shall take such action and shall cause each of
REMIC I, REMIC II and REMIC III to take such action as shall be necessary to
create or maintain the status thereof as a REMIC under the REMIC Provisions (and
the Master Servicer shall assist it, to the extent reasonably requested by it).
The REMIC Administrator shall not take any action, cause REMIC I, REMIC II or
REMIC III to take any action or fail to take (or fail to cause to be taken) any
action that, under the REMIC Provisions, if taken or not taken, as the case may
be, could, except as provided in Section 3.17, result in an Adverse REMIC Event
in respect of REMIC I, REMIC II or REMIC III, unless the REMIC Administrator has
received an Opinion of Counsel to the effect that the contemplated action will
not result in an Adverse REMIC Event. None of the other parties hereto shall
take or fail to take any action (whether or not authorized hereunder) as to
which the REMIC Administrator has advised it in writing that it has received an
Opinion of Counsel to the effect that an Adverse REMIC Event could occur with
respect to such
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action. In addition, prior to taking any action with respect to REMIC I, REMIC
II or REMIC III or the assets of any of them, or causing REMIC I, REMIC II or
REMIC III to take any action, which is not expressly permitted under the terms
of this Agreement, each of the other parties hereto will consult with the REMIC
Administrator, in writing, with respect to whether such action could cause an
Adverse REMIC Event to occur, and no such other party shall take any such action
or cause REMIC I, REMIC II or REMIC III to take any such action as to which the
REMIC Administrator has advised it in writing that an Adverse REMIC Event could
occur. The REMIC Administrator may consult with counsel to make such written
advice, and the cost of same shall be borne by the party seeking to take the
action not permitted by this Agreement.
(h) In the event that any tax is imposed on REMIC I, REMIC II or REMIC III,
including, without limitation, "prohibited transactions" taxes as defined in
Section 860F(a)(2) of the Code, any tax on "net income from foreclosure
property" as defined in Section 860G(c) of the Code, any taxes on contributions
to REMIC I, REMIC II or REMIC III after the Startup Day pursuant to Section
860G(d) of the Code, and any other tax imposed by the Code or any applicable
provisions of state or local tax laws (other than any tax permitted to be
incurred by the Special Servicer pursuant to Section 3.17(a)(iii)), such tax,
together with all incidental costs and expenses (including, without limitation,
penalties and reasonable attorneys' fees), shall be charged to and paid by: (i)
the REMIC Administrator, if such tax arises out of or results from a breach of
any of its obligations under this Article X; (ii) the Trustee, if such tax
arises out of or results from a breach of any of its obligations under this
Article X; (iii) the Master Servicer, if such tax arises out of or results from
a breach by the Master Servicer of any of its obligations under Article III or
this Article X; (iv) the Special Servicer, if such tax arises out of or results
from a breach by the Special Servicer of any of its obligations under Article
III or this Article X; or (v) the Trust Fund in all other instances. Any tax
permitted to be incurred by the Special Servicer pursuant to Section
3.17(a)(iii) shall be charged to and paid by the Trust Fund. Any such amounts
payable by the Trust Fund in respect of taxes shall be paid by the Trustee at
the direction of the REMIC Administrator out of amounts on deposit in the
Distribution Account.
(i) The REMIC Administrator and, to the extent that records are maintained
thereby in the normal course of its business, each of the other parties hereto
shall, for federal income tax purposes, maintain books and records with respect
to each of REMIC I, REMIC II and REMIC III on a calendar year and on an accrual
basis.
(j) Following the Startup Day therefor, the Trustee shall not accept any
contributions of assets to REMIC I, REMIC II or REMIC III unless it shall have
received an Opinion of Counsel (at the expense of the party seeking to cause
such contribution) to the effect that the inclusion of such assets in such REMIC
will not cause: (i) such REMIC to fail to qualify as a REMIC at any time that
any Certificates are outstanding; or (ii) the imposition of any tax on such
REMIC under the REMIC Provisions or other applicable provisions of federal,
state and local law or ordinances.
157
(k) None of the REMIC Administrator, the Master Servicer, the Special
Servicer or the Trustee shall consent to or permit: (i) the sale or disposition
of any of Mortgage Loan (except in connection with (A) a breach of any
representation or warranty regarding any Mortgage Loan set forth in the Mortgage
Loan Purchase Agreement or as otherwise contemplated by Section 2.02(e), (B) the
foreclosure, default or reasonably foreseeable material default of a Mortgage
Loan, including but not limited to, the sale or other disposition of a Mortgaged
Property acquired by deed in lieu of foreclosure, (C) the bankruptcy of REMIC I,
REMIC II or REMIC III, or (D) the termination of the Trust Fund pursuant to
Article IX of this Agreement); (ii) the sale or disposition of any investments
in the Collection Account or the REO Account for gain; or (iii) the acquisition
of any assets for the Trust Fund (other than a Mortgaged Property acquired
through foreclosure, deed in lieu of foreclosure or otherwise in respect of a
defaulted Mortgage Loan and other than Permitted Investments acquired in
connection with the investment of funds in the Collection Account or the REO
Account); in any event unless it has received an Opinion of Counsel (at the
expense of the party seeking to cause such sale, disposition, or acquisition) to
the effect that such sale, disposition, or acquisition will not cause (x) REMIC
I, REMIC II or REMIC III to fail to qualify as a REMIC at any time that any
Certificates are outstanding or (y) the imposition of any tax on REMIC I, REMIC
II or REMIC III under the REMIC Provisions or other applicable provisions of
federal, state and local law or ordinances.
(l) Except as otherwise permitted by Section 3.17(a), none of the REMIC
Administrator, the Master Servicer, the Special Servicer or the Trustee shall
enter into any arrangement by which REMIC I, REMIC II or REMIC III will receive
a fee or other compensation for services or, to the extent it is within the
control of such Person, permit REMIC I, REMIC II or REMIC III to receive any
income from assets other than "qualified mortgages" as defined in Section
860G(a)(3) of the Code or "permitted investments" as defined in Section
860G(a)(5) of the Code. At all times as may be required by the Code, the REMIC
Administrator shall ensure that substantially all of the assets of REMIC I,
REMIC II and REMIC III will consist of "qualified mortgages" as defined in
Section 860G(a)(3) of the Code and "permitted investments" as defined in Section
860G(a)(5) of the Code.
(m) Within 30 days after the Closing Date, the REMIC Administrator shall
prepare and file with the Internal Revenue Service Form 8811 "Information Return
for Real Estate Mortgage Investment Conduits (REMICs) and Issuers of
Collateralized Debt Obligations" for the Trust Fund.
(n) On or before April 15 of each calendar year, commencing April 15,
199__, unless the REMIC Administrator and the Trustee are the same Person, the
REMIC Administrator shall deliver to the Trustee an Officer's Certificate from a
Responsible Officer of the REMIC Administrator stating the REMIC Administrator's
compliance with this Article X.
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SECTION 10.02. Depositor, Master Servicer, Special Servicer and Trustee to
Cooperate with REMIC Administrator.
(a) The Depositor shall provide or cause to be provided to the REMIC
Administrator, within ten days after the Closing Date, all information or data
that the REMIC Administrator reasonably determines to be relevant for tax
purposes as to the valuations and issue prices of the Certificates, including,
without limitation, the price, yield, prepayment assumption and projected cash
flow of the Certificates.
(b) Each of the Master Servicer, the Special Servicer and the Trustee shall
furnish such reports, certifications and information in its possession, and
access to such books and records maintained thereby, as may relate to the
Certificates or the Trust Fund and as shall be reasonably requested by the REMIC
Administrator in order to enable it to perform its duties hereunder.
SECTION 10.03. Indemnification by Trustee, REMIC Administrator, Master
Servicer and Special Servicer.
(a) Each of the Trustee and the REMIC Administrator agrees severally to
indemnify the Trust Fund, the Depositor, the Master Servicer and the Special
Servicer for any taxes and costs (including, without limitation, any reasonable
attorneys' fees) imposed on or incurred by the Trust Fund, the Depositor, the
Master Servicer or the Special Servicer, as a result of a breach of the
Trustee's or the REMIC Administrator's, as the case may be, covenants set forth
in this Article X.
(b) Each of the Master Servicer and the Special Servicer agrees severally
to indemnify the Trust Fund, the Depositor, the Trustee and the REMIC
Administrator for any taxes and costs (including, without limitation, any
reasonable attorneys' fees) imposed on or incurred by the Trust Fund, the
Depositor, the Trustee or the REMIC Administrator, as a result of a breach of
the Master Servicer's or the Special Servicer's, as the case may be, covenants
set forth in this Article X or in Article III.
SECTION 10.04. Fees of the REMIC Administrator.
In the event the Trustee and the REMIC Administrator are not the same
Person, the Trustee covenants and agrees to pay to the REMIC Administrator from
time to time, and the REMIC Administrator shall be entitled to, reasonable
compensation (as set forth in a written agreement between the Trustee and the
REMIC Administrator) for all services rendered by the REMIC Administrator in the
exercise and performance of any of its obligations and duties hereunder.
159
SECTION 10.05. Use of Agents.
The REMIC Administrator may execute any of its obligations and duties
hereunder either directly or by or through agents or attorneys consented to by
the Trustee which consent shall not be unreasonably withheld; provided that the
REMIC Administrator will not be relieved of its obligations hereunder by reason
of the use of such agents.
160
ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.01. Amendment.
(a) This Agreement may be amended from time to time by the mutual agreement
of the parties hereto, without the consent of any of the Certificateholders, (i)
to cure any ambiguity, (ii) to correct, modify or supplement any provision
herein which may be inconsistent with any other provision herein, (iii) to add
any other provisions with respect to matters or questions arising hereunder
which shall not be inconsistent with the provisions hereof, (iv) to relax or
eliminate any requirement hereunder imposed by the REMIC Provisions if the REMIC
Provisions are amended or clarified such that any such requirement may be
relaxed or eliminated, or by the Securities Act or the rules thereunder if the
Securities Act or such rules are amended or clarified such that any requirement
may be relaxed or eliminated; (v) if such amendment, as evidenced by an Opinion
of Counsel delivered to the Trustee and the REMIC Administrator, is reasonably
necessary to comply with any requirements imposed by the Code or any successor
or amendatory statute or any temporary or final regulation, revenue ruling,
revenue procedure or other written official announcement or interpretation
relating to federal income tax laws or any such proposed action which, if made
effective, would apply retroactively to REMIC I, REMIC II or REMIC III at least
from the effective date of such amendment, or would be necessary to avoid the
occurrence of a prohibited transaction or to reduce the incidence of any tax
that would arise from any actions taken with respect to the operation of REMIC
I, REMIC II or REMIC III; (vi) as provided in Section 5.02(d)(iv), to modify,
add to or eliminate any of the provisions of Section 5.02(d)(i), (ii) or (iii);
or (vii) for any other purpose; provided that such amendment (other than any
amendment for any of the specific purposes described in clauses (v) and (vi)
above) shall not, as evidenced by an Opinion of Counsel obtained by or delivered
to the Trustee, adversely affect in any material respect the interests of any
Certificateholder without the consent of such Certificateholder; and provided
further that any amendment covered solely by clause (vii) above shall not
adversely affect the then current rating assigned to any Class of Certificates
by either Rating Agency, as evidenced by written confirmation to such effect
from each Rating Agency obtained by or delivered to the Trustee.
(b) This Agreement may also be amended from time to time by the mutual
agreement of the parties hereto with the consent of the Holders of Certificates
entitled to at least 66 2/3% of the Voting Rights allocated to the affected
Classes for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Agreement or of modifying in any
manner the rights of the Holders of Certificates; provided, however, that no
such amendment shall (i) reduce in any manner the amount of, or delay the timing
of, payments received or advanced on Mortgage Loans and/or REO Properties which
are required to be distributed on any Certificate without the consent of the
Holder of such Certificate, [(ii) adversely affect in any material respect the
interests of the Holders of any Class of Certificates in a manner other than as
described in clause (i) above without the consent of the Holders of all
161
Certificates of such Class] or [(iii) modify the provisions of this Section
11.01 without the consent of the Holders of all Certificates then outstanding].
Notwithstanding any other provision of this Agreement, for purposes of the
giving or withholding of consents pursuant to this Section 11.01, Certificates
registered in the name of the Depositor or any Affiliate of the Depositor shall
be entitled to the same Voting Rights with respect to the matters described
above as they would if registered in the name of any other Person.
(c) Notwithstanding any contrary provision of this Agreement, neither the
Trustee nor the REMIC Administrator shall consent to any amendment to this
Agreement unless it shall first have obtained or been furnished with an Opinion
of Counsel to the effect that such amendment or the exercise of any power
granted to any party hereto in accordance with such amendment will not result in
the imposition of a tax on REMIC I, REMIC II or REMIC III pursuant to the REMIC
Provisions or cause REMIC I, REMIC II or REMIC III to fail to qualify as a REMIC
at any time that any Certificates are outstanding.
(d) Promptly after the execution of any such amendment, the Trustee shall
send a copy thereof to each Certificateholder and to each Rating Agency.
(e) It shall not be necessary for the consent of Certificateholders under
this Section 11.01 to approve the particular form of any proposed amendment, but
it shall be sufficient if such consent shall approve the substance thereof. The
manner of obtaining such consents and of evidencing the authorization of the
execution thereof by Certificateholders shall be subject to such reasonable
regulations as the Trustee may prescribe.
(f) The Trustee may but shall not be obligated to enter into any amendment
pursuant to this Section that affects its rights, duties and immunities under
this Agreement or otherwise.
(g) The cost of any Opinion of Counsel to be delivered pursuant to Section
11.01(a) or (c) shall be borne by the Person seeking the related amendment,
except that if the Trustee requests any amendment of this Agreement that it
reasonably believes protects or is in furtherance of the rights and interests of
Certificateholders, the cost of any Opinion of Counsel required in connection
therewith pursuant to Section 11.01(a) or (c) shall be payable out of the
Distribution Account.
SECTION 11.02. Recordation of Agreement; Counterparts.
(a) To the extent permitted by applicable law, this Agreement is subject to
recordation in all appropriate public offices for real property records in all
the counties or other comparable jurisdictions in which any or all of the
properties subject to the Mortgages are situated, and in any other appropriate
public recording office or elsewhere, such recordation to be effected by the
Master Servicer at the expense of the Trust Fund on direction by the Trustee,
but only upon direction accompanied by an Opinion of Counsel (the cost of which
may be paid
162
out of the Collection Account) to the effect that such recordation materially
and beneficially affects the interests of the Certificateholders.
(b) For the purpose of facilitating the recordation of this Agreement as
herein provided and for other purposes, this Agreement may be executed
simultaneously in any number of counterparts, each of which counterparts shall
be deemed to be an original, and such counterparts shall constitute but one and
the same instrument.
SECTION 11.03. Limitation on Rights of Certificateholders.
(a) The death or incapacity of any Certificateholder shall not operate to
terminate this Agreement or the Trust Fund, nor entitle such Certificateholder's
legal representatives or heirs to claim an accounting or to take any action or
proceeding in any court for a partition or winding up of the Trust Fund, nor
otherwise affect the rights, obligations and liabilities of the parties hereto
or any of them.
(b) No Certificateholder shall have any right to vote (except as expressly
provided for herein) or in any manner otherwise control the operation and
management of the Trust Fund, or the obligations of the parties hereto, nor
shall anything herein set forth, or contained in the terms of the Certificates,
be construed so as to constitute the Certificateholders from time to time as
partners or members of an association; nor shall any Certificateholder be under
any liability to any third party by reason of any action taken by the parties to
this Agreement pursuant to any provision hereof.
(c) No Certificateholder shall have any right by virtue of any provision of
this Agreement to institute any suit, action or proceeding in equity or at law
upon or under or with respect to this Agreement or any Mortgage Loan, unless,
with respect to any suit, action or proceeding upon or under or with respect to
this Agreement, such Holder previously shall have given to the Trustee a written
notice of default hereunder, and of the continuance thereof, as hereinbefore
provided, and unless also (except in the case of a default by the Trustee) the
Holders of Certificates entitled to at least 25% of the Voting Rights shall have
made written request upon the Trustee to institute such action, suit or
proceeding in its own name as Trustee hereunder and shall have offered to the
Trustee such reasonable indemnity as it may require against the costs, expenses
and liabilities to be incurred therein or thereby, and the Trustee, for 60 days
after its receipt of such notice, request and offer of indemnity, shall have
neglected or refused to institute any such action, suit or proceeding. It is
understood and intended, and expressly covenanted by each Certificateholder with
every other Certificateholder and the Trustee, that no one or more Holders of
Certificates shall have any right in any manner whatsoever by virtue of any
provision of this Agreement to affect, disturb or prejudice the rights of the
Holders of any other of such Certificates, or to obtain or seek to obtain
priority over or preference to any other such Holder, 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
163
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, DLJ Commercial
Mortgage Corp., 000 Xxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
[N. Xxxxx XxXxxxx], telecopy number: [(000) 000-0000]; (ii) in the case of the
Master Servicer, ________________, _________________, Attention: ___________,
telecopy number: ____________; (iii) in the case of the Special
Servicer,________________, _________________, Attention: ___________, telecopy
number: ____________ (with copies to ________________, _________________,
Attention: ___________, telecopy number: ____________; (iv) in the case of the
Trustee, ________________, _________________, Attention: ___________, telecopy
number: ____________; (v) in the case of the REMIC Administrator,
________________, _________________, Attention: ___________, telecopy number:
____________; and (vi) in the case of the Ratings Agencies: (A)________________,
_________________, Attention: ___________, telecopy number: ____________; and
(B)________________, _________________, Attention: ___________, telecopy number:
____________; or as to each such Person such other address and/or telecopy
number as may hereafter be furnished by such Person to the parties hereto in
writing. Any communication required or permitted to be delivered to a
Certificateholder shall be deemed to have been duly given when mailed first
class, postage prepaid, to the address of such Holder as shown in the
Certificate Register.
SECTION 11.06. Severability of Provisions.
If any one or more of the covenants, agreements, provisions or terms of
this Agreement shall be for any reason whatsoever held invalid, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and shall
in no way affect the validity or enforceability of the other provisions of this
Agreement or of the Certificates or the rights of the Holders thereof.
164
SECTION 11.07. Successors and Assigns; Beneficiaries.
The provisions of this Agreement shall be binding upon and inure to the
benefit of the parties hereto, their respective successors and assigns and the
other Persons referred to in Sections 6.03 and 8.05, and all such provisions
shall inure to the benefit of the Certificateholders. No other person,
including, without limitation, any Mortgagor, shall be entitled to any benefit
or equitable right, remedy or claim under this Agreement.
SECTION 11.08. Article and Section Headings.
The article and section headings herein are for convenience of reference
only, and shall not limit or otherwise affect the meaning hereof.
SECTION 11.09. Notices to Rating Agencies.
(a) The Trustee shall promptly provide notice to each Rating Agency with
respect to each of the following of which a Responsible Officer of the Trustee
has actual knowledge:
(i) any material change or amendment to this Agreement;
(ii) the occurrence of any Event of Default that has not been cured;
(iii) the resignation or termination of the Master Servicer, the
Special Servicer or the REMIC Administrator and the appointment of a
successor;
(iv) any change in the location of the Distribution Account; and
(v) the final payment to any Class of Certificateholders.
(b) The Master Servicer shall promptly provide notice to each Rating Agency
with respect to each of the following of which it has actual knowledge:
(i) the resignation or removal of the Trustee and the appointment of a
successor; and
(ii) any change in the location of the Collection Account.
(c) Each of the Master Servicer and the Special Servicer, as the case may
be, shall furnish each Rating Agency such information with respect to the
Mortgage Loans as the Rating Agency shall reasonably request and which the
Master Servicer or the Special Servicer, as the case may be, can reasonably
provide.
165
(d) Each of the Master Servicer and the Special Servicer, as the case may
be, shall promptly furnish each Rating Agency copies of the following items:
(i) each of its annual statements as to compliance described in
Section 3.13;
(ii) each of its annual independent public accountants' servicing
reports described in Section 3.14; and
(iii) each report prepared pursuant to Section 3.09(e) and Section
3.12.
(e) The Trustee shall promptly deliver to each Rating Agency a copy of each
statement to Certificateholders described in Section 4.02(a) and the reports
referred to in Section 4.02(c).
SECTION 11.10. Complete Agreement.
This Agreement embodies the complete agreement among the parties and may
not be varied or terminated except by a written agreement conforming to the
provisions of Section 11.01. All prior negotiations or representations of the
parties are merged into this Agreement and shall have no force or effect unless
expressly stated herein.
166
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.
DLJ COMMERCIAL MORTGAGE CORP.
Depositor
By:
--------------------------------
Name:
Title:
[---------------------------------]
Master Servicer
By:
--------------------------------
Name:
Title:
[----------------------------------]
Special Servicer
By:
--------------------------------
Name:
Title:
[----------------------------------]
Trustee and REMIC Administrator
By:
--------------------------------
Name:
Title:
STATE OF NEW YORK ___________________)
) ss.:
COUNTY OF NEW YORK __________________)
On the ______ day of ____________ 199__, before me, a notary public in and
for said State, personally appeared ____________________, known to me to be a
____________________ of DLJ Commercial Mortgage Corp., one of the entities that
executed the within instrument, and also known to me to be the person who
executed it on behalf of such entity, and acknowledged to me that such entity
executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
---------------------------
Notary Public
[Notarial Seal]
STATE OF ____________________)
)ss.:
COUNTY OF ___________________)
On the ______ day of _____________ 199__, before me, a notary public in and
for said State, personally appeared ____________________, known to me to be a
____________________ of _____________________, one of the entities that executed
the within instrument, and also known to me to be the person who executed it on
behalf of such entity, and acknowledged to me that such entity executed the
within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
---------------------------
Notary Public
[Notarial Seal]
STATE OF ______________)
)ss.:
COUNTY OF _____________)
On this _____ day of ____________ 199__, before me, a notary public in and
for said State, personally appeared _________________________, personally known
to me to be the ______________________________ of ___________________________,
one of the entities that executed the within instrument, and also known to me to
be the person who executed it on behalf of such entity, and acknowledged to me
that such entity executed the within instrument.
IN WITNESS WHEREOF, I have hereunder set my hand and affixed my official
seal the day and year in this certificate first above written.
---------------------------
Notary Public
[Notarial Seal]
STATE OF ______________)
)ss.:
COUNTY OF _____________)
On the ______ day of _____________ 199__, before me, a notary public in and
for said State, personally appeared ____________________, known to me to be a
____________________ of ____________________, one of the entities that executed
the within instrument as Trustee and as REMIC Administrator, and also known to
me to be the person who executed it on behalf of such entity, and acknowledged
to me that such entity executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in this certificate first above written.
---------------------------
Notary Public
[Notarial Seal]
EXHIBIT A-1
FORM OF CLASS S CERTIFICATE
CLASS S COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 199_-___
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
DLJ COMMERCIAL MORTGAGE CORP.
Initial Effective Pass-Through Class Notional Amount of the
Rate: ___% per annum Class S Certificates as of
the Closing Date: _________
Cut-off Date: _________, 199_ Initial Certificate Notional
Amount of this Class S
Closing Date: _________, 199_ Certificate as of the Closing
Date: $____________
First Distribution Date:
______________, 199_
Master Servicer: ______________ Aggregate Stated Principal
Balance of the Mortgage Loans
_______________________________ as of the Closing Date:
$____________
Special Servicer: _____________ Trustee and REMIC
Administrator: ___________
Certificate No. S-__ CUSIP No.
- 2 -
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR
ANY AGENT THEREOF FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN DLJ
COMMERCIAL MORTGAGE CORP., ___________________, _____________________,
____________________. NEITHER THIS CERTIFICATE NOR ANY OF THE UNDERLYING
MORTGAGE LOANS IS GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES OR ANY OTHER PERSON.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
[THE FOLLOWING INFORMATION IS PROVIDED SOLELY FOR THE PURPOSES OF APPLYING THE
U.S. FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS
CERTIFICATE. THE ISSUE DATE OF THIS CERTIFICATE IS ___________, 199_. ASSUMING
THAT THE MORTGAGE LOANS ARE NOT SUBJECT TO ANY VOLUNTARY OR INVOLUNTARY
PREPAYMENT, THIS CERTIFICATE HAS BEEN ISSUED WITH NO MORE THAN $______ OF OID
PER $100,000 OF INITIAL CERTIFICATE NOTIONAL AMOUNT, THE YIELD TO MATURITY IS
____% PER ANNUM, AND THE AMOUNT OF OID ATTRIBUTABLE TO THE INITIAL ACCRUAL
PERIOD IS NO MORE THAN $____ PER $100,000 OF INITIAL CERTIFICATE NOTIONAL
AMOUNT, COMPUTED UNDER THE EXACT METHOD. NO REPRESENTATION IS MADE THAT THE
MORTGAGE LOANS WILL NOT PREPAY OR, IF THEY DO, THAT THEY WILL PREPAY AT ANY
PARTICULAR RATE.]
REDUCTIONS OF THE CERTIFICATE NOTIONAL AMOUNT OF THIS CERTIFICATE MAY BE MADE
MONTHLY AS SET FORTH IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
ACCORDINGLY, THE OUTSTANDING CERTIFICATE NOTIONAL AMOUNT HEREOF AT ANY TIME MAY
BE LESS THAN THE AMOUNT SHOWN ABOVE. THIS CERTIFICATE DOES NOT HAVE A
CERTIFICATE PRINCIPAL BALANCE AND WILL NOT ENTITLE THE HOLDER HEREOF TO
DISTRIBUTIONS OF PRINCIPAL.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Class S Certificate (obtained by dividing the
notional amount of this Class S Certificate (its "Certificate Notional Amount")
as of the Closing Date by the aggregate notional amount of all the Class S
Certificates (their "Class Notional Amount") as of the Closing
- 3 -
Date) in that certain beneficial ownership interest evidenced by all the Class S
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as of the Cut-off Date specified above (the "Agreement"), among
DLJ Commercial Mortgage Corp. (the "Depositor", which term includes any
successor entity under the Agreement), __________________________________ (the
"Master Servicer", which term includes any successor entity under the
Agreement), _______________________________________ (the "Special Servicer",
which term includes any successor entity under the Agreement) and ___________
___________________ ____ (the "Trustee" and "REMIC Administrator", depending
upon the capacity in which it is acting, each of which terms includes any
successor entity under the Agreement), a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
capitalized terms used herein have the respective meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
__th day of each month or, if such __th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed to all the Holders of the
Class S Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on the Class S
Certificates will be made by the Trustee by wire transfer of immediately
available funds to the account of the Person entitled thereto at a bank or other
entity having appropriate facilities therefor, if such Certificateholder shall
have provided the Trustee with wiring instructions no less than five Business
Days prior to the related Record Date (which wiring instructions may be in the
form of a standing order applicable to all subsequent distributions) and is the
registered owner of Certificates the aggregate initial Certificate Notional
Amount of which is at least $10,000,000, or otherwise by check mailed to the
address of such Certificateholder as it appears in the Certificate Register.
Notwithstanding the foregoing, the final distribution on this Certificate will
be made in like manner, but only upon presentation and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to the Holder hereof of such final distribution.
Notwithstanding anything herein to the contrary, no distributions will be made
with respect to a Certificate that has previously been surrendered as
contemplated by the preceding
- 4 -
sentence or, with limited exception, that should have been surrendered as
contemplated by the preceding sentence.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Distribution Account, the Collection Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Class S Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, Class S
Certificates are exchangeable for new Class S Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Class S Certificates in authorized
denominations evidencing the same aggregate Percentage Interest will be issued
to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Class S Certificates, but the Trustee or the Certificate Registrar
may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of Class
S Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the Trustee, the
REMIC Administrator, the Certificate Registrar and any agent of the Depositor,
the Master Servicer, the Special Servicer, the Trustee, the REMIC Administrator
or the
- 5 -
Certificate Registrar may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and none of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, the REMIC Administrator, the
Certificate Registrar or any such agent shall be affected by notice to the
contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the final payment
or other liquidation (or any advance with respect thereto) of the last Mortgage
Loan or REO Property remaining in the Trust Fund, and (ii) the purchase by the
Special Servicer, the Master Servicer or the Majority Certificateholder of the
Controlling Class at a price determined as provided in the Agreement of all the
Mortgage Loans and each REO Property remaining in the Trust Fund. The Agreement
permits, but does not require, the Special Servicer, the Master Servicer or the
Majority Certificateholder of the Controlling Class to purchase from the Trust
Fund all the Mortgage Loans and each REO Property remaining therein. The
exercise of such right may effect early retirement of the Class S Certificates;
however, such right to purchase is subject to the aggregate Stated Principal
Balance of the Mortgage Pool at the time of purchase being less than __% of the
aggregate Stated Principal Balance of the Mortgage Loans as of the Closing Date
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the REMIC Administrator
and the Trustee and the rights of the Certificateholders under the Agreement at
any time by the Depositor, the Master Servicer, the Special Servicer, the REMIC
Administrator and the Trustee with the consent of the Holders of Certificates
entitled to at least (66 2/3%) of the Voting Rights allocated to the affected
Classes. Any such consent by the Holder of this Certificate shall be conclusive
and binding on such Holder and upon all future Holders of this Certificate and
of any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
limited circumstances, including any amendment necessary to maintain the status
of REMIC I, REMIC II or REMIC III as a REMIC, without the consent of the Holders
of any of the Certificates.
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.
- 6 -
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 Trustee has caused this Certificate to be duly
executed.
____________________________
as Trustee
By:_________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class S Certificates referred to in the within-mentioned
Agreement.
Dated:
____________________________
as Certificate Registrar
By: ________________________
Authorized Officer
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-2
FORM OF CLASS A-1A CERTIFICATE
CLASS A-1A COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 199_-___
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
DLJ COMMERCIAL MORTGAGE CORP.
Pass-Through Rate: ___% per Class Principal Balance of
annum the Class A-1A Certificates
as of the Closing Date:_____
________________
Cut-off Date: _________, 199_ Initial Certificate Principal
Balance of this Class A-1A
Closing Date: _________, 199_ Certificate as of the Closing
Date: $_______
First Distribution Date:
______________, 199_
Master Servicer: ______________ Aggregate Stated Principal
Balance of the Mortgage Loans
_______________________________ as of the Closing Date:
$____________
Special Servicer: _____________ Trustee and REMIC
Administrator: _____________
Certificate No. A-1A-___ CUSIP No.
-2-
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR
ANY AGENT THEREOF FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN DLJ
COMMERCIAL MORTGAGE CORP. __________________
_________________,_______________________________________,
______________________________________________________________. NEITHER THIS
CERTIFICATE NOR ANY OF THE UNDERLYING MORTGAGE LOANS IS GUARANTEED BY ANY AGENCY
OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
[THE FOLLOWING INFORMATION IS PROVIDED SOLELY FOR THE PURPOSES OF APPLYING THE
U.S. FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS
CERTIFICATE. THE ISSUE DATE OF THIS CERTIFICATE IS __________, 199_. ASSUMING
THAT THE MORTGAGE LOANS ARE NOT SUBJECT TO ANY VOLUNTARY OR INVOLUNTARY
PREPAYMENT, THIS CERTIFICATE HAS BEEN ISSUED WITH NO MORE THAN $______ OF OID
PER $1,000 OF INITIAL CERTIFICATE PRINCIPAL BALANCE, THE YIELD TO MATURITY IS
____% PER ANNUM, AND THE AMOUNT OF OID ATTRIBUTABLE TO THE INITIAL ACCRUAL
PERIOD IS NO MORE THAN $____ PER $1,000 OF INITIAL CERTIFICATE PRINCIPAL
BALANCE, COMPUTED UNDER THE EXACT METHOD. NO REPRESENTATION IS MADE THAT THE
MORTGAGE LOANS WILL NOT PREPAY OR, IF THEY DO PREPAY, THAT THEY WILL PREPAY AT
ANY PARTICULAR RATE.]
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN. IN ADDITION, IF THE AGGREGATE CERTIFICATE
PRINCIPAL BALANCE OF THE CLASS A-2, CLASS A-3, CLASS B-1, CLASS B-2, CLASS B-3,
CLASS B-4 AND CLASS C CERTIFICATES OF THE SAME SERIES IS REDUCED TO ZERO, THE
CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE REDUCED BY CERTAIN
LOSSES AND EXPENSES EXPERIENCED BY THE TRUST FUND AS SET FORTH IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN. ACCORDINGLY, THE OUTSTANDING
CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT
SHOWN ABOVE.
-3-
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Class A-1A Certificate (obtained by dividing the
principal amount of this Class A-1A Certificate (its "Certificate Principal
Balance") as of the Closing Date by the aggregate principal amount of all the
Class A-1A Certificates (their "Class Principal Balance") as of the Closing
Date) in that certain beneficial ownership interest evidenced by all the Class
A-1A Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as of the Cut-off Date specified above (the "Agreement"), among
DLJ Commercial Mortgage Corp. (the "Depositor", which term includes any
successor entity under the Agreement), _________ _______________________ (the
"Master Servicer", which term includes any successor entity under the
Agreement), __________ ____________________________ (the "Special Servicer",
which term includes any successor entity under the Agreement) and _________
______________ (the "Trustee" and "REMIC Administrator", depending upon the
capacity in which it is acting, each of which terms includes any successor
entity under the Agreement), a summary of certain of the pertinent provisions of
which is set forth hereafter. To the extent not defined herein, capitalized
terms used herein have the respective meanings assigned in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
__th day of each month or, if such __th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed to all the Holders of the
Class A-1A Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on the Class A-1A
Certificates will be made by the Trustee by wire transfer of immediately
available funds to the account of the Person entitled thereto at a bank or other
entity having appropriate facilities therefor, if such Certificateholder shall
have provided the Trustee with wiring instructions no less than five Business
Days prior to the related Record Date (which wiring instructions may be in the
form of a standing order applicable to all subsequent distributions) and is the
registered owner of Certificates the aggregate initial Certificate Principal
Balance of which is at least $5,000,000, or otherwise by check mailed to the
address of such Certificateholder as it appears in the Certificate Register.
Notwithstanding the foregoing, the final distribution on this Certificate
(determined without regard
-4-
to any possible future reimbursement of any Realized Loss or Additional Trust
Fund Expense previously allocated to this Certificate) will be made in like
manner, but only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to the Holder hereof of such final distribution. Notwithstanding anything
herein to the contrary, no distributions will be made with respect to a
Certificate that has previously been surrendered as contemplated by the
preceding sentence or, with limited exception, that should have been surrendered
as contemplated by the preceding sentence.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Distribution Account, the Collection Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Class A-1A Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, Class
A-1A Certificates are exchangeable for new Class A-1A Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Class A-1A Certificates in authorized
denominations evidencing the same aggregate Percentage Interest will be issued
to the designated transferee or transferees.
-5-
No service charge will be imposed for any registration of transfer or
exchange of Class A-1A Certificates, but the Trustee or the Certificate
Registrar may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any transfer or
exchange of Class A-1A Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the Trustee, the
REMIC Administrator, the Certificate Registrar and any agent of the Depositor,
the Master Servicer, the Special Servicer, the Trustee, the REMIC Administrator
or the Certificate Registrar may treat the Person in whose name this Certificate
is registered as the owner hereof for all purposes, and none of the Depositor,
the Master Servicer, the Special Servicer, the Trustee, the REMIC Administrator,
the Certificate Registrar or any such agent shall be affected by notice to the
contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the final payment
or other liquidation (or any advance with respect thereto) of the last Mortgage
Loan or REO Property remaining in the Trust Fund, and (ii) the purchase by the
Special Servicer, the Master Servicer or the Majority Certificateholder of the
Controlling Class at a price determined as provided in the Agreement of all the
Mortgage Loans and each REO Property remaining in the Trust Fund. The Agreement
permits, but does not require, the Special Servicer, the Master Servicer or the
Majority Certificateholder of the Controlling Class to purchase from the Trust
Fund all the Mortgage Loans and each REO Property remaining therein. The
exercise of such right may effect early retirement of the Class A-1A
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Pool at the time of purchase being less than
_% of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Closing Date specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the REMIC Administrator
and the Trustee and the rights of the Certificateholders under the Agreement at
any time by the Depositor, the Master Servicer, the Special Servicer, the
-6-
REMIC Administrator and the Trustee with the consent of the Holders of
Certificates entitled to at least [66 2/3]% of the Voting Rights allocated to
the affected Classes. Any such consent by the Holder of this Certificate shall
be conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange herefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof, in
certain limited circumstances, including any amendment necessary to maintain the
status of REMIC I, REMIC II or REMIC III as a REMIC, without the consent of the
Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York applicable to agreements made and to be performed in said
State, and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
________________________
as Trustee
By: ________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-1A Certificates referred to in the
within-mentioned Agreement.
Dated:
________________________
as Certificate Registrar
By: ________________________
Authorized Officer
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-3
FORM OF CLASS A-1B CERTIFICATE
CLASS A-1B COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 199_-___
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
DLJ COMMERCIAL MORTGAGE CORP.
Pass-Through Rate: ___% per Class Principal Balance of
annum the Class A-1B Certificates
as of the Closing Date:_____
______________
Cut-off Date: _________, 199_ Initial Certificate Principal
Balance of this Class A-1B
Closing Date: _________, 199_ Certificate as of the Closing
Date: $_______
First Distribution Date:
______________, 199_
Master Servicer: ______________ Aggregate Stated Principal
_______________________________ Balance of the Mortgage Loans
as of the Closing Date:
$___________
Special Servicer: _____________ Trustee and REMIC
Administrator: _____________
Certificate No. A-1B-_ CUSIP No.
-2-
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR
ANY AGENT THEREOF FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN DLJ
COMMERCIAL MORTGAGE CORP. ______________________________________________
______________, ______________________________________________________________,
______________________________________________________________.
NEITHER THIS CERTIFICATE NOR ANY OF THE UNDERLYING MORTGAGE LOANS IS GUARANTEED
BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
[THE FOLLOWING INFORMATION IS PROVIDED SOLELY FOR THE PURPOSES OF APPLYING THE
U.S. FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS
CERTIFICATE. THE ISSUE DATE OF THIS CERTIFICATE IS __________, 199_. ASSUMING
THAT THE MORTGAGE LOANS ARE NOT SUBJECT TO ANY VOLUNTARY OR INVOLUNTARY
PREPAYMENT, THIS CERTIFICATE HAS BEEN ISSUED WITH NO MORE THAN $______ OF OID
PER $1,000 OF INITIAL CERTIFICATE PRINCIPAL BALANCE, THE YIELD TO MATURITY IS
____% PER ANNUM, AND THE AMOUNT OF OID ATTRIBUTABLE TO THE INITIAL ACCRUAL
PERIOD IS NO MORE THAN $____ PER $1,000 OF INITIAL CERTIFICATE PRINCIPAL
BALANCE, COMPUTED UNDER THE EXACT METHOD. NO REPRESENTATION IS MADE THAT THE
MORTGAGE LOANS WILL NOT PREPAY OR, IF THEY DO PREPAY, THAT THEY WILL PREPAY AT
ANY PARTICULAR RATE.]
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN. IN ADDITION, IF THE AGGREGATE CERTIFICATE
PRINCIPAL BALANCE OF THE CLASS A-2, CLASS A-3, CLASS B-1, CLASS B-2, CLASS B-3,
CLASS B-4 AND CLASS C CERTIFICATES OF THE SAME SERIES IS REDUCED TO ZERO, THE
CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE REDUCED BY CERTAIN
LOSSES AND EXPENSES EXPERIENCED BY THE TRUST FUND AS SET FORTH IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN. ACCORDINGLY, THE OUTSTANDING
CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT
SHOWN ABOVE.
-3-
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Class A-1B Certificate (obtained by dividing the
principal amount of this Class A-1B Certificate (its "Certificate Principal
Balance") as of the Closing Date by the aggregate principal amount of all the
Class A-1B Certificates (their "Class Principal Balance") as of the Closing
Date) in that certain beneficial ownership interest evidenced by all the Class
A-1B Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as of the Cut-off Date specified above (the "Agreement"), among
DLJ Commercial Mortgage Corp. (the "Depositor", which term includes any
successor entity under the Agreement), _________ _______________________ (the
"Master Servicer", which term includes any successor entity under the
Agreement), __________ ____________________________ (the "Special Servicer",
which term includes any successor entity under the Agreement) and _________
______________ (the "Trustee" and "REMIC Administrator", depending upon the
capacity in which it is acting, each of which terms includes any successor
entity under the Agreement), a summary of certain of the pertinent provisions of
which is set forth hereafter. To the extent not defined herein, capitalized
terms used herein have the respective meanings assigned in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
__th day of each month or, if such __th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed to all the Holders of the
Class A-1B Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on the Class A-1B
Certificates will be made by the Trustee by wire transfer of immediately
available funds to the account of the Person entitled thereto at a bank or other
entity having appropriate facilities therefor, if such Certificateholder shall
have provided the Trustee with wiring instructions no less than five Business
Days prior to the related Record Date (which wiring instructions may be in the
form of a standing order applicable to all subsequent distributions) and is the
registered owner of Certificates the aggregate initial Certificate Principal
Balance of which is at least $5,000,000, or otherwise by check mailed to the
address of such Certificateholder as it appears in the Certificate Register.
Notwithstanding the foregoing, the final distribution on this Certificate
(determined without regard
-4-
to any possible future reimbursement of any Realized Loss or Additional Trust
Fund Expense previously allocated to this Certificate) will be made in like
manner, but only upon presentation and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to the Holder hereof of such final distribution. Notwithstanding anything
herein to the contrary, no distributions will be made with respect to a
Certificate that has previously been surrendered as contemplated by the
preceding sentence or, with limited exception, that should have been surrendered
as contemplated by the preceding sentence.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Distribution Account, the Collection Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Class A-1B Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, Class
A-1B Certificates are exchangeable for new Class A-1B Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Class A-1B Certificates in authorized
denominations evidencing the same aggregate Percentage Interest will be issued
to the designated transferee or transferees.
-5-
No service charge will be imposed for any registration of transfer or
exchange of Class A-1B Certificates, but the Trustee or the Certificate
Registrar may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any transfer or
exchange of Class A-1B Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the Trustee, the
REMIC Administrator, the Certificate Registrar and any agent of the Depositor,
the Master Servicer, the Special Servicer, the Trustee, the REMIC Administrator
or the Certificate Registrar may treat the Person in whose name this Certificate
is registered as the owner hereof for all purposes, and none of the Depositor,
the Master Servicer, the Special Servicer, the Trustee, the REMIC Administrator,
the Certificate Registrar or any such agent shall be affected by notice to the
contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the final payment
or other liquidation (or any advance with respect thereto) of the last Mortgage
Loan or REO Property remaining in the Trust Fund, and (ii) the purchase by the
Special Servicer, the Master Servicer or the Majority Certificateholder of the
Controlling Class at a price determined as provided in the Agreement of all the
Mortgage Loans and each REO Property remaining in the Trust Fund. The Agreement
permits, but does not require, the Special Servicer, the Master Servicer or the
Majority Certificateholder of the Controlling Class to purchase from the Trust
Fund all the Mortgage Loans and each REO Property remaining therein. The
exercise of such right may effect early retirement of the Class A-1B
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Pool at the time of purchase being less than
_% of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Closing Date specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the REMIC Administrator
and the Trustee and the rights of the Certificateholders under the Agreement at
any time by the Depositor, the Master Servicer, the Special Servicer, the
-6-
REMIC Administrator and the Trustee with the consent of the Holders of
Certificates entitled to at least [66 2/3]% of the Voting Rights allocated to
the affected Classes. Any such consent by the Holder of this Certificate shall
be conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange herefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof, in
certain limited circumstances, including any amendment necessary to maintain the
status of REMIC I, REMIC II or REMIC III as a REMIC, without the consent of the
Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York applicable to agreements made and to be performed in said
State, and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
-7-
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
________________________
as Trustee
By: _____________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-1B Certificates referred to in the
within-mentioned Agreement.
Dated:
________________________
as Certificate Registrar
By: ________________________
Authorized Officer
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s),
assign(s) and transfer(s) unto
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Mortgage Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to assignee on the Certificate Register of the Trust
Fund.
I (we) further direct the Certificate Registrar to issue a new Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and deliver such Mortgage Pass-Through Certificate to the
following address:
Dated:
_____________________________________
Signature by or on behalf of Assignor
_____________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to ___________________________________________
______________________________________________________________________________
______________________________________________________ for the account of
_________________________________________________.
Distributions made by check (such check to be made payable to
____________________) and all applicable statements and notices should be mailed
to ___________________________________________________________________________
_______________________________________________________________________.
This information is provided by ___________________________, the Assignee
named above, or ____________________________________, as its agent.
EXHIBIT A-4
FORM OF CLASS A-2 CERTIFICATE
CLASS A-2 COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 199_-___
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
DLJ COMMERCIAL MORTGAGE CORP.
Pass-Through Rate: ___% per Class Principal Balance of
annum the Class A-2 Certificates as
of the Closing Date:_____
______________
Cut-off Date: _________, 199_ Initial Certificate Principal
Balance of this Class A-2
Closing Date: _________, 199_ Certificate as of the Closing
Date: $_______
First Distribution Date:
______________, 199_
Master Servicer: ______________ Aggregate Stated Principal
Balance of the Mortgage Loans
_______________________________ as of the Closing Date:
$_________
Special Servicer: _____________ Trustee and REMIC
Administrator:
Certificate No. A-2-__ CUSIP No.
-2-
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR
ANY AGENT THEREOF FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE (A) TO ANY
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT THAT IS SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR THE
INTERNAL REVENUE CODE OF 1986 (THE "CODE"), OR (B) TO ANY PERSON WHO IS DIRECTLY
OR INDIRECTLY PURCHASING THIS CERTIFICATE OR SUCH INTEREST HEREIN ON BEHALF OF,
AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE
BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE
PROVISIONS OF SECTION 5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN DLJ
COMMERCIAL MORTGAGE CORP., _________________________________,
____________________________________________________________________,
____________________________________________________________________________.
NEITHER THIS CERTIFICATE NOR ANY OF THE UNDERLYING MORTGAGE LOANS IS GUARANTEED
BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1A, CLASS A-1B AND CLASS S
CERTIFICATES OF THE SAME SERIES TO THE EXTENT DESCRIBED IN THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
[THE FOLLOWING INFORMATION IS PROVIDED SOLELY FOR THE PURPOSES OF APPLYING THE
U.S. FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS
CERTIFICATE. THE ISSUE DATE OF THIS CERTIFICATE IS __________, 199_. ASSUMING
THAT THE MORTGAGE LOANS ARE NOT SUBJECT TO ANY VOLUNTARY OR INVOLUNTARY
PREPAYMENT, THIS CERTIFICATE HAS BEEN ISSUED WITH NO MORE THAN $______ OF OID
PER $1,000 OF INITIAL CERTIFICATE PRINCIPAL BALANCE, THE YIELD TO MATURITY IS
____% PER ANNUM, AND THE AMOUNT OF OID ATTRIBUTABLE TO THE INITIAL ACCRUAL
PERIOD IS NO MORE THAN $____ PER $1,000 OF INITIAL CERTIFICATE PRINCIPAL
BALANCE, COMPUTED UNDER THE EXACT METHOD. NO REPRESENTATION IS MADE THAT THE
MORTGAGE LOANS WILL
-3-
NOT PREPAY OR, IF THEY DO PREPAY, THAT THEY WILL PREPAY AT ANY PARTICULAR RATE.]
IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS A-1A AND CLASS A-1B
CERTIFICATES OF THE SAME SERIES IS REDUCED TO ZERO, DISTRIBUTIONS IN REDUCTION
OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS
SET FORTH IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN. IN
ADDITION, IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS A-3, CLASS
B-1, CLASS B-2, CLASS B-3, CLASS B-4 AND CLASS C CERTIFICATES OF THE SAME SERIES
IS REDUCED TO ZERO, THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE
REDUCED BY CERTAIN LOSSES AND EXPENSES EXPERIENCED BY THE TRUST FUND AS SET
FORTH IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Class A-2 Certificate (obtained by dividing the
principal amount of this Class A-2 Certificate (its "Certificate Principal
Balance") as of the Closing Date by the aggregate principal amount of all the
Class A-2 Certificates (their "Class Principal Balance") as of the Closing Date)
in that certain beneficial ownership interest evidenced by all the Class A-2
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as of the Cut-off Date specified above (the "Agreement"), among
DLJ Commercial Mortgage Corp. (the "Depositor", which term includes any
successor entity under the Agreement), _________ _______________________ (the
"Master Servicer", which term includes any successor entity under the
Agreement), __________ ____________________________ (the "Special Servicer",
which term includes any successor entity under the Agreement) and _________
______________ (the "Trustee" and "REMIC Administrator", depending upon the
capacity in which it is acting, each of which terms includes any successor
entity under the Agreement), a summary of certain of the pertinent provisions of
which is set forth hereafter. To the extent not defined herein, capitalized
terms used herein have the respective meanings assigned in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
__th day of each month or, if such __th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of
-4-
such distribution (the "Record Date"), in an amount equal to the product of the
Percentage Interest evidenced by this Certificate and the amount required to be
distributed to all the Holders of the Class A-2 Certificates on the applicable
Distribution Date pursuant to the Agreement. All distributions made under the
Agreement on the Class A-2 Certificates will be made by the Trustee by wire
transfer of immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Trustee with wiring instructions
no less than five Business Days prior to the related Record Date (which wiring
instructions may be in the form of a standing order applicable to all subsequent
distributions) and is the registered owner of Certificates the aggregate initial
Certificate Principal Balance of which is at least $5,000,000, or otherwise by
check mailed to the address of such Certificateholder as it appears in the
Certificate Register. Notwithstanding the foregoing, the final distribution on
this Certificate (determined without regard to any possible future reimbursement
of any Realized Loss or Additional Trust Fund Expense previously allocated to
this Certificate) will be made in like manner, but only upon presentation and
surrender of this Certificate at the offices of the Certificate Registrar or
such other location specified in the notice to the Holder hereof of such final
distribution. Notwithstanding anything herein to the contrary, no distributions
will be made with respect to a Certificate that has previously been surrendered
as contemplated by the preceding sentence or, with limited exception, that
should have been surrendered as contemplated by the preceding sentence.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Distribution Account, the Collection Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued 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
-5-
subject to certain limitations therein set forth, Class A-2 Certificates are
exchangeable for new Class A-2 Certificates in authorized denominations
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No transfer of a Subordinated Certificate or any interest therein shall be
made (A) to any employee benefit plan or other retirement arrangement, including
individual retirement accounts and annuities, Xxxxx plans and collective
investment funds and separate accounts in which such plans, accounts or
arrangements are invested, including, without limitation, insurance company
general accounts, that is subject to ERISA or the Code (each, a "Plan"), or (B)
to any Person who is directly or indirectly purchasing such Certificate or
interest therein on behalf of, as named fiduciary of, as trustee of, or with
assets of a Plan, unless: (i) the purchase and holding of such Certificate or
interest therein is exempt from the prohibited transaction provisions of Section
406 of ERISA and Section 4975 of the Code under Sections I and III of Prohibited
Transaction Class Exemption 95-60; or (ii) in the case of a Subordinated
Certificate that is a Definitive Certificate, the prospective Transferee
provides the Certificate Registrar with a certification of facts and an Opinion
of Counsel which establish to the satisfaction of the Trustee that such transfer
will not result in a violation of Section 406 of ERISA or Section 4975 of the
Code or result in the imposition of an excise tax under Section 4975 of the Code
or subject the Trustee, the Master Servicer or the Special Servicer to any
obligation in addition to those undertaken in the Agreement. Each Person who
acquires any Subordinated Certificate or interest therein (unless it shall have
delivered to the Certificate Registrar the certification of facts and Opinion of
Counsel referred to in clause (ii) the preceding sentence) will be required to
deliver to the Certificate Registrar (or, in the case of an interest in a
Subordinated Certificate that constitutes a Book-Entry Certificate, to the
Certificate Owner that is transferring such interest) a certification to the
effect that: (i) it is neither a Plan nor any Person who is directly or
indirectly purchasing such Certificate or interest therein on behalf of, as
named fiduciary of, as trustee of, or with assets of a Plan; or (ii) that the
purchase and holding of such Certificate or interest therein by such person is
exempt from the prohibited transaction provisions of Section 406 of ERISA and
Section 4975 of the Code under Sections I and III of Prohibited Transaction
Class Exemption 95-60. It is hereby acknowledged that the forms of certification
attached to the Agreement as Exhibit G-1 (in the case of Subordinated
Certificates that are Definitive Certificates) and Exhibit G-2 (in the case of
ownership interests in Subordinated Certificates that are Book-Entry
Certificates) are acceptable for purposes of the preceding sentence.
-6-
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Class A-2 Certificates in authorized
denominations evidencing the same aggregate Percentage Interest will be issued
to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Class A-2 Certificates, but the Trustee or the Certificate Registrar
may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of Class
A-2 Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the Trustee, the
REMIC Administrator, the Certificate Registrar and any agent of the Depositor,
the Master Servicer, the Special Servicer, the Trustee, the REMIC Administrator
or the Certificate Registrar may treat the Person in whose name this Certificate
is registered as the owner hereof for all purposes, and none of the Depositor,
the Master Servicer, the Special Servicer, the Trustee, the REMIC Administrator,
the Certificate Registrar or any such agent shall be affected by notice to the
contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the final payment
or other liquidation (or any advance with respect thereto) of the last Mortgage
Loan or REO Property remaining in the Trust Fund, and (ii) the purchase by the
Special Servicer, the Master Servicer or the Majority Certificateholder of the
Controlling Class at a price determined as provided in the Agreement of all the
Mortgage Loans and each REO Property remaining in the Trust Fund. The Agreement
permits, but does not require, the Special Servicer, the Master Servicer or the
Majority Certificateholder of the Controlling Class to purchase from the Trust
Fund all the Mortgage Loans and each REO Property remaining therein. The
exercise of such right may effect early
-7-
retirement of the Class A-2 Certificates; however, such right to purchase is
subject to the aggregate Stated Principal Balance of the Mortgage Pool at the
time of purchase being less than _% of the aggregate Stated Principal Balance of
the Mortgage Loans as of the Closing Date specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the REMIC Administrator
and the Trustee and the rights of the Certificateholders under the Agreement at
any time by the Depositor, the Master Servicer, the Special Servicer, the REMIC
Administrator and the Trustee with the consent of the Holders of Certificates
entitled to at least [66 2/3]% of the Voting Rights allocated to the affected
Classes. Any such consent by the Holder of this Certificate shall be conclusive
and binding on such Holder and upon all future Holders of this Certificate and
of any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
limited circumstances, including any amendment necessary to maintain the status
of REMIC I, REMIC II or REMIC III as a REMIC, without the consent of the Holders
of any of the Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York applicable to agreements made and to be performed in said
State, and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
-8-
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
________________________
as Trustee
By: _____________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-2 Certificates referred to in the
within-mentioned Agreement.
Dated:
________________________
as Certificate Registrar
By: ________________________
Authorized Officer
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-5
FORM OF CLASS A-3 CERTIFICATE
CLASS A-3 COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 199_-___
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
DLJ COMMERCIAL MORTGAGE CORP.
Pass-Through Rate: ___% per Class Principal Balance of
annum the Class A-3 Certificates as
of the Closing Date:_____
______________
Cut-off Date: _________, 199_ Initial Certificate Principal
Balance of this Class A-3
Closing Date: _________, 199_ Certificate as of the Closing
Date: $_______
First Distribution Date:
______________, 199_
Master Servicer: ______________ Aggregate Stated Principal
Balance of the Mortgage Loans
_______________________________ as of the Closing Date:
$_________
Special Servicer: _____________ Trustee and REMIC
Administrator: ___________
Certificate No. A-3-__ CUSIP No.
-2-
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR
ANY AGENT THEREOF FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE (A) TO ANY
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT THAT IS SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR THE
INTERNAL REVENUE CODE OF 1986 (THE "CODE"), OR (B) TO ANY PERSON WHO IS DIRECTLY
OR INDIRECTLY PURCHASING THIS CERTIFICATE OR SUCH INTEREST HEREIN ON BEHALF OF,
AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE
BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE
PROVISIONS OF SECTION 5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN DLJ
COMMERCIAL MORTGAGE CORP. _________________________________,
________________________________________________________________________,
_______________________________________________________________________________.
NEITHER THIS CERTIFICATE NOR ANY OF THE UNDERLYING MORTGAGE LOANS IS GUARANTEED
BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1A, CLASS A-1B, CLASS S AND CLASS
A-2 CERTIFICATES OF THE SAME SERIES TO THE EXTENT DESCRIBED IN THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
[THE FOLLOWING INFORMATION IS PROVIDED SOLELY FOR THE PURPOSES OF APPLYING THE
U.S. FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS
CERTIFICATE. THE ISSUE DATE OF THIS CERTIFICATE IS __________, 199_. ASSUMING
THAT THE MORTGAGE LOANS ARE NOT SUBJECT TO ANY VOLUNTARY OR INVOLUNTARY
PREPAYMENT, THIS CERTIFICATE HAS BEEN ISSUED WITH NO MORE THAN $______ OF OID
PER $1,000 OF INITIAL CERTIFICATE PRINCIPAL BALANCE, THE YIELD TO MATURITY IS
____% PER ANNUM, AND THE AMOUNT OF OID ATTRIBUTABLE TO THE INITIAL ACCRUAL
PERIOD IS NO MORE THAN $____ PER $1,000 OF INITIAL CERTIFICATE PRINCIPAL
BALANCE, COMPUTED UNDER THE EXACT
-3-
METHOD. NO REPRESENTATION IS MADE THAT THE MORTGAGE LOANS WILL NOT PREPAY OR, IF
THEY DO PREPAY, THAT THEY WILL PREPAY AT ANY PARTICULAR RATE.]
IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS A-1A, CLASS A-1B AND
CLASS A-2 CERTIFICATES OF THE SAME SERIES IS REDUCED TO ZERO, DISTRIBUTIONS IN
REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE MADE
MONTHLY AS SET FORTH IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
IN ADDITION, IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS B-1,
CLASS B-2, CLASS B-3, CLASS B-4 AND CLASS C CERTIFICATES OF THE SAME SERIES IS
REDUCED TO ZERO, THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE
REDUCED BY CERTAIN LOSSES AND EXPENSES EXPERIENCED BY THE TRUST FUND AS SET
FORTH IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN. ACCORDINGLY,
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Class A-3 Certificate (obtained by dividing the
principal amount of this Class A-3 Certificate (its "Certificate Principal
Balance") as of the Closing Date by the aggregate principal amount of all the
Class A-3 Certificates (their "Class Principal Balance") as of the Closing Date)
in that certain beneficial ownership interest evidenced by all the Class A-3
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as of the Cut-off Date specified above (the "Agreement"), among
DLJ Commercial Mortgage Corp. (the "Depositor", which term includes any
successor entity under the Agreement), _________ _______________________ (the
"Master Servicer", which term includes any successor entity under the
Agreement), __________ ____________________________ (the "Special Servicer",
which term includes any successor entity under the Agreement) and
________________________ (the "Trustee" and "REMIC Administrator", depending
upon the capacity in which it is acting, each of which terms includes any
successor entity under the Agreement), a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
capitalized terms used herein have the respective meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
__th day of each month or, if such __th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the first
-4-
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed to all the Holders of the
Class A-3 Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on the Class A-3
Certificates will be made by the Trustee by wire transfer of immediately
available funds to the account of the Person entitled thereto at a bank or other
entity having appropriate facilities therefor, if such Certificateholder shall
have provided the Trustee with wiring instructions no less than five Business
Days prior to the related Record Date (which wiring instructions may be in the
form of a standing order applicable to all subsequent distributions) and is the
registered owner of Certificates the aggregate initial Certificate Principal
Balance of which is at least $5,000,000, or otherwise by check mailed to the
address of such Certificateholder as it appears in the Certificate Register.
Notwithstanding the foregoing, the final distribution on this Certificate
(determined without regard to any possible future reimbursement of any Realized
Loss or Additional Trust Fund Expense previously allocated to this Certificate)
will be made in like manner, but only upon presentation and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to the Holder hereof of such final distribution.
Notwithstanding anything herein to the contrary, no distributions will be made
with respect to a Certificate that has previously been surrendered as
contemplated by the preceding sentence or, with limited exception, that should
have been surrendered as contemplated by the preceding sentence.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Distribution Account, the Collection Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
-5-
The Class A-3 Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, Class A-3
Certificates are exchangeable for new Class A-3 Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
No transfer of a Subordinated Certificate or any interest therein shall be
made (A) to any employee benefit plan or other retirement arrangement, including
individual retirement accounts and annuities, Xxxxx plans and collective
investment funds and separate accounts in which such plans, accounts or
arrangements are invested, including, without limitation, insurance company
general accounts, that is subject to ERISA or the Code (each, a "Plan"), or (B)
to any Person who is directly or indirectly purchasing such Certificate or
interest therein on behalf of, as named fiduciary of, as trustee of, or with
assets of a Plan, unless: (i) the purchase and holding of such Certificate or
interest therein is exempt from the prohibited transaction provisions of Section
406 of ERISA and Section 4975 of the Code under Sections I and III of Prohibited
Transaction Class Exemption 95-60; or (ii) in the case of a Subordinated
Certificate that is a Definitive Certificate, the prospective Transferee
provides the Certificate Registrar with a certification of facts and an Opinion
of Counsel which establish to the satisfaction of the Trustee that such transfer
will not result in a violation of Section 406 of ERISA or Section 4975 of the
Code or result in the imposition of an excise tax under Section 4975 of the Code
or subject the Trustee, the Master Servicer or the Special Servicer to any
obligation in addition to those undertaken in the Agreement. Each Person who
acquires any Subordinated Certificate or interest therein (unless it shall have
delivered to the Certificate Registrar the certification of facts and Opinion of
Counsel referred to in clause (ii) the preceding sentence) will be required to
deliver to the Certificate Registrar (or, in the case of an interest in a
Subordinated Certificate that constitutes a Book-Entry Certificate, to the
Certificate Owner that is transferring such interest) a certification to the
effect that: (i) it is neither a Plan nor any Person who is directly or
indirectly purchasing such Certificate or interest therein on behalf of, as
named fiduciary of, as trustee of, or with assets of a Plan; or (ii) that the
purchase and holding of such Certificate or interest therein by such person is
exempt from the prohibited transaction provisions of Section 406 of ERISA and
Section 4975 of the Code under Sections I and III of Prohibited Transaction
Class Exemption 95-60. It is hereby acknowledged that the forms of certification
attached to the Agreement as Exhibit G-1 (in the case of Subordinated
Certificates that are Definitive Certificates) and Exhibit G-2 (in the case of
ownership interests
-6-
in Subordinated Certificates that are Book-Entry Certificates) are acceptable
for purposes of the preceding sentence.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Class A-3 Certificates in authorized
denominations evidencing the same aggregate Percentage Interest will be issued
to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Class A-3 Certificates, but the Trustee or the Certificate Registrar
may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of Class
A-3 Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the Trustee, the
REMIC Administrator, the Certificate Registrar and any agent of the Depositor,
the Master Servicer, the Special Servicer, the Trustee, the REMIC Administrator
or the Certificate Registrar may treat the Person in whose name this Certificate
is registered as the owner hereof for all purposes, and none of the Depositor,
the Master Servicer, the Special Servicer, the Trustee, the REMIC Administrator,
the Certificate Registrar or any such agent shall be affected by notice to the
contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the final payment
or other liquidation (or any advance with respect thereto) of the last Mortgage
Loan or REO Property remaining in the Trust Fund, and (ii) the purchase by the
Special Servicer the Master Servicer or the Majority Certificateholder of the
Controlling Class at a price determined as provided in the Agreement of all the
Mortgage Loans and each REO Property remaining in the Trust Fund. The Agreement
permits, but does not require, the Special Servicer, the Master Servicer or the
-7-
Majority Certificateholder of the Controlling Class to purchase from the Trust
Fund all the Mortgage Loans and each REO Property remaining therein. The
exercise of such right may effect early retirement of the Class A-3
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Pool at the time of purchase being less than
_% of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Closing Date specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the REMIC Administrator
and the Trustee and the rights of the Certificateholders under the Agreement at
any time by the Depositor, the Master Servicer, the Special Servicer, the REMIC
Administrator and the Trustee with the consent of the Holders of Certificates
entitled to at least [66 2/3]% of the Voting Rights allocated to the affected
Classes. Any such consent by the Holder of this Certificate shall be conclusive
and binding on such Holder and upon all future Holders of this Certificate and
of any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
limited circumstances, including any amendment necessary to maintain the status
of REMIC I, REMIC II or REMIC III as a REMIC, without the consent of the Holders
of any of the Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York applicable to agreements made and to be performed in said
State, and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
-8-
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
________________________
as Trustee
By: _____________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class A-3 Certificates referred to in the
within-mentioned Agreement.
Dated:
________________________
as Certificate Registrar
By: ________________________
Authorized Officer
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s),
assign(s) and transfer(s) unto
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Mortgage Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to assignee on the Certificate Register of the Trust
Fund.
I (we) further direct the Certificate Registrar to issue a new Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and deliver such Mortgage Pass-Through Certificate to the
following address:
Dated:
_____________________________________
Signature by or on behalf of Assignor
_____________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to ___________________________________________
______________________________________________________________________________
______________________________________________________ for the account of
_________________________________________________.
Distributions made by check (such check to be made payable to ____________
____________________) and all applicable statements and notices should be mailed
to ____________________________________________________________________________
_________________________________________________________________________.
This information is provided by ___________________________, the Assignee
named above, or ____________________________________, as its agent.
EXHIBIT A-6
FORM OF CLASS B-1 CERTIFICATE
CLASS B-1 COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 199_-___
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
DLJ COMMERCIAL MORTGAGE CORP.
Pass-Through Rate: ___% per Class Principal Balance of
annum the Class B-1 Certificates as
of the Closing Date:_____
______________
Cut-off Date: _________, 199_ Initial Certificate Principal
Balance of this Class B-1
Closing Date: _________, 199_ Certificate as of the Closing
Date: $_______
First Distribution Date:
______________, 199_
Master Servicer: ______________ Aggregate Stated Principal
Balance of the Mortgage Loans
_______________________________ as of the Closing Date:
$__________
Special Servicer: _____________ Trustee and REMIC
Administrator: ___________
Certificate No. B-1-__ CUSIP No.
-2-
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR
ANY AGENT THEREOF FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE (A) TO ANY
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT THAT IS SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR THE
INTERNAL REVENUE CODE OF 1986 (THE "CODE"), OR (B) TO ANY PERSON WHO IS DIRECTLY
OR INDIRECTLY PURCHASING THIS CERTIFICATE OR SUCH INTEREST HEREIN ON BEHALF OF,
AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE
BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE
PROVISIONS OF SECTION 5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN DLJ
COMMERCIAL MORTGAGE CORP., _________________________________________________,
___________________________________________, _________________________________
_____________________________________________________________________________.
NEITHER THIS CERTIFICATE NOR ANY OF THE UNDERLYING MORTGAGE LOANS IS GUARANTEED
BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1A, CLASS A-1B, CLASS S AND CLASS
A-2 AND CLASS A-3 CERTIFICATES OF THE SAME SERIES TO THE EXTENT DESCRIBED IN THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
[THE FOLLOWING INFORMATION IS PROVIDED SOLELY FOR THE PURPOSES OF APPLYING THE
U.S. FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS
CERTIFICATE. THE ISSUE DATE OF THIS CERTIFICATE IS __________, 199_. ASSUMING
THAT THE MORTGAGE LOANS ARE NOT SUBJECT TO ANY VOLUNTARY OR INVOLUNTARY
PREPAYMENT, THIS CERTIFICATE HAS BEEN ISSUED WITH NO MORE THAN $______ OF OID
PER $1,000 OF INITIAL CERTIFICATE PRINCIPAL BALANCE, THE YIELD TO MATURITY IS
____% PER ANNUM, AND THE AMOUNT OF OID ATTRIBUTABLE TO THE INITIAL ACCRUAL
PERIOD IS NO MORE THAN $____ PER $1,000 OF INITIAL CERTIFICATE PRINCIPAL
BALANCE, COMPUTED UNDER THE EXACT
-3-
METHOD. NO REPRESENTATION IS MADE THAT THE MORTGAGE LOANS WILL NOT PREPAY OR, IF
THEY DO PREPAY, THAT THEY WILL PREPAY AT ANY PARTICULAR RATE.]
IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS A-1A, CLASS A-1B,
CLASS A-2 AND CLASS A-3 CERTIFICATES OF THE SAME SERIES IS REDUCED TO ZERO,
DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN. IN ADDITION, IF THE AGGREGATE CERTIFICATE
PRINCIPAL BALANCE OF THE CLASS B-2, CLASS B-3, CLASS B-4 AND CLASS C
CERTIFICATES OF THE SAME SERIES IS REDUCED TO ZERO, THE CERTIFICATE PRINCIPAL
BALANCE OF THIS CERTIFICATE MAY BE REDUCED BY CERTAIN LOSSES AND EXPENSES
EXPERIENCED BY THE TRUST FUND AS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL
BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Class B-1 Certificate (obtained by dividing the
principal amount of this Class B-1 Certificate (its "Certificate Principal
Balance") as of the Closing Date by the aggregate principal amount of all the
Class B-1 Certificates (their "Class Principal Balance") as of the Closing Date)
in that certain beneficial ownership interest evidenced by all the Class B-1
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as of the Cut-off Date specified above (the "Agreement"), among
DLJ Commercial Mortgage Corp. (the "Depositor", which term includes any
successor entity under the Agreement), ________________________________ (the
"Master Servicer", which term includes any successor entity under the
Agreement), __________ ____________________________ (the "Special Servicer",
which term includes any successor entity under the Agreement) and
________________________ (the "Trustee" and "REMIC Administrator", depending
upon the capacity in which it is acting, each of which terms includes any
successor entity under the Agreement), a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
capitalized terms used herein have the respective meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
__th day of each month or, if such __th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the first
-4-
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed to all the Holders of the
Class B-1 Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on the Class B-1
Certificates will be made by the Trustee by wire transfer of immediately
available funds to the account of the Person entitled thereto at a bank or other
entity having appropriate facilities therefor, if such Certificateholder shall
have provided the Trustee with wiring instructions no less than five Business
Days prior to the related Record Date (which wiring instructions may be in the
form of a standing order applicable to all subsequent distributions) and is the
registered owner of Certificates the aggregate initial Certificate Principal
Balance of which is at least $5,000,000, or otherwise by check mailed to the
address of such Certificateholder as it appears in the Certificate Register.
Notwithstanding the foregoing, the final distribution on this Certificate
(determined without regard to any possible future reimbursement of any Realized
Loss or Additional Trust Fund Expense previously allocated to this Certificate)
will be made in like manner, but only upon presentation and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to the Holder hereof of such final distribution.
Notwithstanding anything herein to the contrary, no distributions will be made
with respect to a Certificate that has previously been surrendered as
contemplated by the preceding sentence or, with limited exception, that should
have been surrendered as contemplated by the preceding sentence.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Distribution Account, the Collection Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
-5-
The Class B-1 Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, Class B-1
Certificates are exchangeable for new Class B-1 Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
No transfer of a Subordinated Certificate or any interest therein shall be
made (A) to any employee benefit plan or other retirement arrangement, including
individual retirement accounts and annuities, Xxxxx plans and collective
investment funds and separate accounts in which such plans, accounts or
arrangements are invested, including, without limitation, insurance company
general accounts, that is subject to ERISA or the Code (each, a "Plan"), or (B)
to any Person who is directly or indirectly purchasing such Certificate or
interest therein on behalf of, as named fiduciary of, as trustee of, or with
assets of a Plan, unless: (i) the purchase and holding of such Certificate or
interest therein is exempt from the prohibited transaction provisions of Section
406 of ERISA and Section 4975 of the Code under Sections I and III of Prohibited
Transaction Class Exemption 95-60; or (ii) in the case of a Subordinated
Certificate that is a Definitive Certificate, the prospective Transferee
provides the Certificate Registrar with a certification of facts and an Opinion
of Counsel which establish to the satisfaction of the Trustee that such transfer
will not result in a violation of Section 406 of ERISA or Section 4975 of the
Code or result in the imposition of an excise tax under Section 4975 of the Code
or subject the Trustee, the Master Servicer or the Special Servicer to any
obligation in addition to those undertaken in the Agreement. Each Person who
acquires any Subordinated Certificate or interest therein (unless it shall have
delivered to the Certificate Registrar the certification of facts and Opinion of
Counsel referred to in clause (ii) the preceding sentence) will be required to
deliver to the Certificate Registrar (or, in the case of an interest in a
Subordinated Certificate that constitutes a Book-Entry Certificate, to the
Certificate Owner that is transferring such interest) a certification to the
effect that: (i) it is neither a Plan nor any Person who is directly or
indirectly purchasing such Certificate or interest therein on behalf of, as
named fiduciary of, as trustee of, or with assets of a Plan; or (ii) that the
purchase and holding of such Certificate or interest therein by such person is
exempt from the prohibited transaction provisions of Section 406 of ERISA and
Section 4975 of the Code under Sections I and III of Prohibited Transaction
Class Exemption 95-60. It is hereby acknowledged that the forms of certification
attached to the Agreement as Exhibit G-1 (in the case of Subordinated
Certificates that are Definitive Certificates) and G-2 (in the case of ownership
interests in
-6-
Subordinated Certificates that are Book-Entry Certificates) are acceptable for
purposes of the preceding sentence.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Class B-1 Certificates in authorized
denominations evidencing the same aggregate Percentage Interest will be issued
to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Class B-1 Certificates, but the Trustee or the Certificate Registrar
may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of Class
B-1 Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the Trustee, the
REMIC Administrator, the Certificate Registrar and any agent of the Depositor,
the Master Servicer, the Special Servicer, the Trustee, the REMIC Administrator
or the Certificate Registrar may treat the Person in whose name this Certificate
is registered as the owner hereof for all purposes, and none of the Depositor,
the Master Servicer, the Special Servicer, the Trustee, the REMIC Administrator,
the Certificate Registrar or any such agent shall be affected by notice to the
contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the final payment
or other liquidation (or any advance with respect thereto) of the last Mortgage
Loan or REO Property remaining in the Trust Fund, and (ii) the purchase by the
Special Servicer, the Master Servicer or the Majority Certificateholder of the
Controlling Class at a price determined as provided in the Agreement of all the
Mortgage Loans and each REO Property remaining in the Trust Fund. The Agreement
permits, but does not require, the Special Servicer, the Master Servicer or the
-7-
Majority Certificateholder of the Controlling Class to purchase from the Trust
Fund all the Mortgage Loans and each REO Property remaining therein. The
exercise of such right may effect early retirement of the Class B-1
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Pool at the time of purchase being less than
_% of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Closing Date specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the REMIC Administrator
and the Trustee and the rights of the Certificateholders under the Agreement at
any time by the Depositor, the Master Servicer, the Special Servicer, the REMIC
Administrator and the Trustee with the consent of the Holders of Certificates
entitled to at least [662/3]% of the Voting Rights allocated to the affected
Classes. Any such consent by the Holder of this Certificate shall be conclusive
and binding on such Holder and upon all future Holders of this Certificate and
of any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
limited circumstances, including any amendment necessary to maintain the status
of REMIC I, REMIC II or REMIC III as a REMIC, without the consent of the Holders
of any of the Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York applicable to agreements made and to be performed in said
State, and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
________________________
as Trustee
By: ________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class B-1 Certificates referred to in the
within-mentioned Agreement.
Dated:
___________________________
as Certificate Registrar
By: ________________________
Authorized Officer
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Mortgage Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to assignee on the Certificate Register of the Trust
Fund.
I (we) further direct the Certificate Registrar to issue a new Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and deliver such Mortgage Pass-Through Certificate to the
following address:
Dated:
_____________________________________
Signature by or on behalf of Assignor
_____________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to ___________________________________________
______________________________________________________________________________
______________________________________________________ for the account of
_________________________________________________________________________.
Distributions made by check (such check to be made payable to ___________
____________________) and all applicable statements and notices should be mailed
to __________________________________________________________________________
________________________________________________________________
This information is provided by ___________________________, the Assignee
named above, or __________________________________, as its agent.
EXHIBIT A-7
FORM OF CLASS B-2 CERTIFICATE
CLASS B-2 COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 199_-___
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
DLJ COMMERCIAL MORTGAGE CORP.
Pass-Through Rate: ___% per Class Principal Balance of
annum the Class B-2 Certificates as
of the Closing Date:_____
______________
Cut-off Date: _________, 199_ Initial Certificate Principal
Balance of this Class B-1
Closing Date: _________, 199_ Certificate as of the Closing
Date: $_______
First Distribution Date:
______________, 199_
Master Servicer: ______________ Aggregate Stated Principal
Balance of the Mortgage Loans
_______________________________ as of the Closing Date:
$__________
Special Servicer: _____________ Trustee and REMIC
Administrator: ___________
Certificate No. B-2-__ CUSIP No.
-2-
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR
ANY AGENT THEREOF FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, PLEDGE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE OR ANY
INTEREST HEREIN WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A
TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH
IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE (A) TO ANY
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT THAT IS SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR THE
INTERNAL REVENUE CODE OF 1986 (THE "CODE"), OR (B) TO ANY PERSON WHO IS DIRECTLY
OR INDIRECTLY PURCHASING THIS CERTIFICATE OR SUCH INTEREST HEREIN ON BEHALF OF,
AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE
BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE
PROVISIONS OF SECTION 5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST
IN DLJ COMMERCIAL MORTGAGE CORP., _________________________,
______________________________,_________________________________
_________________________. NEITHER THIS CERTIFICATE NOR ANY OF THE UNDERLYING
MORTGAGE LOANS IS GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1A, CLASS A-1B, CLASS S, CLASS
A-2, CLASS A-3 AND CLASS B-1 CERTIFICATES OF THE SAME SERIES TO THE EXTENT
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
-3-
[THE FOLLOWING INFORMATION IS PROVIDED SOLELY FOR THE PURPOSES OF APPLYING THE
U.S. FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS
CERTIFICATE. THE ISSUE DATE OF THIS CERTIFICATE IS ___________, 199__. ASSUMING
THAT THE MORTGAGE LOANS ARE NOT SUBJECT TO ANY VOLUNTARY OR INVOLUNTARY
PREPAYMENT, THIS CERTIFICATE HAS BEEN ISSUED WITH NO MORE THAN $______ OF OID
PER $1,000 OF INITIAL CERTIFICATE PRINCIPAL BALANCE, THE YIELD TO MATURITY IS
____% PER ANNUM, AND THE AMOUNT OF OID ATTRIBUTABLE TO THE INITIAL ACCRUAL
PERIOD IS NO MORE THAN $____ PER $1,000 OF INITIAL CERTIFICATE PRINCIPAL
BALANCE, COMPUTED UNDER THE EXACT METHOD. NO REPRESENTATION IS MADE THAT THE
MORTGAGE LOANS WILL NOT PREPAY OR, IF THEY DO PREPAY, THAT THEY WILL PREPAY AT
ANY PARTICULAR RATE.]
IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS A-1A, CLASS X-0X,
XXXXX X-0, CLASS A-3 AND CLASS B-1 CERTIFICATES OF THE SAME SERIES IS REDUCED TO
ZERO, DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN. IN ADDITION, IF THE AGGREGATE CERTIFICATE
PRINCIPAL BALANCE OF THE CLASS B-3, CLASS B-4 AND CLASS C CERTIFICATES OF THE
SAME SERIES IS REDUCED TO ZERO, THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE REDUCED BY CERTAIN LOSSES AND EXPENSES EXPERIENCED BY THE
TRUST FUND AS SET FORTH IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY
TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the Percentage
Interest evidenced by this Class B-2 Certificate (obtained by dividing the
principal amount of this Class B-2 Certificate (its "Certificate Principal
Balance") as of the Closing Date by the aggregate principal amount of all the
Class B-2 Certificates (their "Class Principal Balance") as of the Closing Date)
in that certain beneficial ownership interest evidenced by all the Class B-2
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as of the Cut-off Date specified above (the "Agreement"), among
DLJ Commercial Mortgage Corp. (the "Depositor", which term includes any
successor entity under the Agreement), ____________ _________________________
(the "Master Servicer", which term includes any successor entity under the
Agreement), __________ _______________ (the "Special Servicer", which term
includes any successor entity under the Agreement) and ____________________
________________________ (the "Trustee" and "REMIC Administrator", depending
upon the capacity in which it is acting, each of which terms includes any
successor entity under the Agreement), a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
capitalized terms used herein have the respective
-4-
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
____th day of each month or, if such __th day is not a Business Day, the
Business Day immediately following (each, a "Distribution Date"), commencing on
the first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed to all the Holders
of the Class B-2 Certificates on the applicable Distribution Date pursuant to
the Agreement. All distributions made under the Agreement on the Class B-2
Certificates will be made by the Trustee by wire transfer of immediately
available funds to the account of the Person entitled thereto at a bank or other
entity having appropriate facilities therefor, if such Certificateholder shall
have provided the Trustee with wiring instructions no less than five Business
Days prior to the related Record Date (which wiring instructions may be in the
form of a standing order applicable to all subsequent distributions) and is the
registered owner of Certificates the aggregate initial Certificate Principal
Balance of which is at least $5,000,000, or otherwise by check mailed to the
address of such Certificateholder as it appears in the Certificate Register.
Notwithstanding the foregoing, the final distribution on this Certificate
(determined without regard to any possible future reimbursement of any Realized
Loss or Additional Trust Fund Expense previously allocated to this Certificate)
will be made in like manner, but only upon presentation and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to the Holder hereof of such final distribution.
Notwithstanding anything herein to the contrary, no distributions will be made
with respect to a Certificate that has previously been surrendered as
contemplated by the preceding sentence or, with limited exception, that should
have been surrendered as contemplated by the preceding sentence.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Distribution Account, the Collection Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the
-5-
Mortgage Loans and the payment of interest on such advances and expenses.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Class B-2 Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, Class B-2
Certificates are exchangeable for new Class B-2 Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
No transfer, sale, pledge or other disposition of any Private Certificate
or interest therein shall be made unless that transfer, sale, pledge or other
disposition is exempt from the registration and/or qualification requirements of
the Securities Act and any applicable state securities laws, or is otherwise
made in accordance with the Securities Act and such state securities laws. If a
transfer of any Private Certificate is to be made without registration under the
Securities Act (other than in connection with the initial issuance thereof or a
transfer thereof by the Depositor or one of its Affiliates), then the
Certificate Registrar shall refuse to register such transfer unless it receives
(and upon receipt, may conclusively rely upon) either: (i) a certificate from
the Certificateholder desiring to effect such transfer substantially in the form
attached as Exhibit F-1A to the Agreement; or (ii) a certificate from the
Certificateholder desiring to effect such transfer substantially in the form
attached as Exhibit F-1B to the Agreement and a certificate from such
Certificateholder's prospective Transferee substantially in the form attached
either as Exhibit F-2A or as Exhibit F-2B to the Agreement; or (iii) an Opinion
of Counsel satisfactory to the Trustee to the effect that such transfer may be
made without registration under the Securities Act (which Opinion of Counsel
shall not be an expense of the Trust Fund or of the Depositor, the Master
Servicer, the Special Servicer, the REMIC Administrator, the Trustee or the
Certificate Registrar in their respective capacities as such), together with the
written certification(s) as to the facts surrounding such transfer from the
Certificateholder desiring to effect such transfer and/or such
Certificateholder's prospective Transferee on which such Opinion of Counsel is
based. None of the Depositor, the Trustee or the Certificate Registrar is
obligated to register or qualify any Class of Private Certificates under the
Securities Act or any other securities law or to take any action not otherwise
required under the Agreement to permit the transfer of any Private
-6-
Certificate or interest therein without registration or qualification. Any
Holder of a Private Certificate desiring to effect a transfer of such Private
Certificate or interest therein shall, and does hereby agree to, indemnify, the
Depositor, the Underwriter, the Trustee, the Master Servicer, the Special
Servicer, the REMIC Administrator and the Certificate Registrar against any
liability that may result if the transfer is not so exempt or is not made in
accordance with such federal and state laws.
No transfer of a Subordinated Certificate or any interest therein shall be
made (A) to any employee benefit plan or other retirement arrangement, including
individual retirement accounts and annuities, Xxxxx plans and collective
investment funds and separate accounts in which such plans, accounts or
arrangements are invested, including, without limitation, insurance company
general accounts, that is subject to ERISA or the Code (each, a "Plan"), or (B)
to any Person who is directly or indirectly purchasing such Certificate or
interest therein on behalf of, as named fiduciary of, as trustee of, or with
assets of a Plan, unless: (i) the purchase and holding of such Certificate or
interest therein is exempt from the prohibited transaction provisions of Section
406 of ERISA and Section 4975 of the Code under Sections I and III of Prohibited
Transaction Class Exemption 95-60; or (ii) in the case of a Subordinated
Certificate that is a Definitive Certificate, the prospective Transferee
provides the Certificate Registrar with a certification of facts and an Opinion
of Counsel which establish to the satisfaction of the Trustee that such transfer
will not result in a violation of Section 406 of ERISA or Section 4975 of the
Code or result in the imposition of an excise tax under Section 4975 of the Code
or subject the Trustee, the Master Servicer or the Special Servicer to any
obligation in addition to those undertaken in the Agreement. Each Person who
acquires any Subordinated Certificate or interest therein (unless it shall have
delivered to the Certificate Registrar the certification of facts and Opinion of
Counsel referred to in clause (ii) the preceding sentence) will be required to
deliver to the Certificate Registrar (or, in the case of an interest in a
Subordinated Certificate that constitutes a Book-Entry Certificate, to the
Certificate Owner that is transferring such interest) a certification to the
effect that: (i) it is neither a Plan nor any Person who is directly or
indirectly purchasing such Certificate or interest therein on behalf of, as
named fiduciary of, as trustee of, or with assets of a Plan; or (ii) that the
purchase and holding of such Certificate or interest therein by such person is
exempt from the prohibited transaction provisions of Section 406 of ERISA and
Section 4975 of the Code under Sections I and III of Prohibited Transaction
Class Exemption 95-60. It is hereby acknowledged that the forms of certification
attached to the Agreement as Exhibit G-1 (in the case of Subordinated
Certificates that are Definitive
-7-
Certificates) and Exhibit G-2 (in the case of ownership interests in
Subordinated Certificates that are Book-Entry Certificates) are acceptable for
purposes of the preceding sentence.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Class B-2 Certificates in authorized
denominations evidencing the same aggregate Percentage Interest will be issued
to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Class B-2 Certificates, but the Trustee or the Certificate Registrar
may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of Class
B-2 Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Depositor, the Master Servicer, the Special Servicer, the Trustee, the
REMIC Administrator, the Certificate Registrar and any agent of the Depositor,
the Master Servicer, the Special Servicer, the Trustee, the REMIC Administrator
or the Certificate Registrar may treat the Person in whose name this Certificate
is registered as the owner hereof for all purposes, and none of the Depositor,
the Master Servicer, the Special Servicer, the Trustee, the REMIC Administrator,
the Certificate Registrar or any such agent shall be affected by notice to the
contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the final payment
or other liquidation (or any advance with respect thereto) of the last Mortgage
Loan or REO Property remaining in the Trust Fund, and (ii) the purchase by the
Special Servicer, the Master Servicer or the Majority Certificateholder of the
Controlling Class at a price determined as provided in the Agreement of all the
Mortgage Loans and each REO Property remaining in the Trust Fund. The Agreement
permits, but does not
-8-
require, the Special Servicer, the Master Servicer or the Majority
Certificateholder of the Controlling Class to purchase from the Trust Fund all
the Mortgage Loans and each REO Property remaining therein. The exercise of such
right may effect early retirement of the Class B-2 Certificates; however, such
right to purchase is subject to the aggregate Stated Principal Balance of the
Mortgage Pool at the time of purchase being less than __% of the aggregate
Stated Principal Balance of the Mortgage Loans as of the Closing Date specified
on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the REMIC Administrator
and the Trustee and the rights of the Certificateholders under the Agreement at
any time by the Depositor, the Master Servicer, the Special Servicer, the REMIC
Administrator and the Trustee with the consent of the Holders of Certificates
entitled to at least [66 2/3]% of the Voting Rights allocated to the affected
Classes. Any such consent by the Holder of this Certificate shall be conclusive
and binding on such Holder and upon all future Holders of this Certificate and
of any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
limited circumstances, including any amendment necessary to maintain the status
of REMIC I, REMIC II or REMIC III as a REMIC, without the consent of the Holders
of any of the Certificates.
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 Trustee has caused this Certificate to be duly
executed.
________________________
as Trustee
By:
________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class B-2 Certificates referred to in the
within-mentioned Agreement.
Dated:
__________________________
as Certificate Registrar
By: _______________________
Authorized Officer
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Mortgage Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to assignee on the Certificate Register of the Trust
Fund.
I (we) further direct the Certificate Registrar to issue a new Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and deliver such Mortgage Pass-Through Certificate to the
following address:
Dated:
_____________________________________
Signature by or on behalf of Assignor
__________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to
________________________________________________________________________________
________________________________________________________________________________
for the account of
________________________________________________________________________________
________.
Distributions made by check (such check to be made payable to _____________
____________________) and all applicable statements and notices should be mailed
to
______________________________________________________________________________.
-11-
This information is provided by ___________________________, the
Assignee named above, or ___________________________________, as its agent.
EXHIBIT A-8
FORM OF CLASS B-3 CERTIFICATE
CLASS B-3 COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 199_-___
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
DLJ COMMERCIAL MORTGAGE CORP.
Pass-Through Rate: ___% per Class Principal Balance of
annum the Class B-3 Certificates as
of the Closing Date:_____
______________
Cut-off Date: _________, 199_ Initial Certificate Principal
Balance of this Class B-3
Closing Date: _________, 199_ Certificate as of the Closing
Date: $_______
First Distribution Date:
______________, 199_
Master Servicer: ______________ Aggregate Stated Principal
Balance of the Mortgage Loans
_______________________________ as of the Closing Date:
$__________
Special Servicer: _____________ Trustee and REMIC
Administrator: ___________
Certificate No. B-3-__ CUSIP No.
-2-
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, PLEDGE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE OR ANY
INTEREST HEREIN WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A
TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH
IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE (A) TO ANY
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT THAT IS SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR THE
INTERNAL REVENUE CODE OF 1986 (THE "CODE"), OR (B) TO ANY PERSON WHO IS DIRECTLY
OR INDIRECTLY PURCHASING THIS CERTIFICATE OR SUCH INTEREST HEREIN ON BEHALF OF,
AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE
BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE
PROVISIONS OF SECTION 5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN DLJ
COMMERCIAL MORTGAGE CORP., ____________________________________________________
____________________________________,__________________________________________
____________________________________,_________________________________________.
NEITHER THIS CERTIFICATE NOR ANY OF THE UNDERLYING MORTGAGE LOANS IS GUARANTEED
BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1A, CLASS A-1B, CLASS S, CLASS
A-2, CLASS A-3, CLASS B-1 AND CLASS B-2 CERTIFICATES OF THE SAME SERIES TO THE
EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
[THE FOLLOWING INFORMATION IS PROVIDED SOLELY FOR THE PURPOSES OF APPLYING THE
U.S. FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS
CERTIFICATE. THE ISSUE DATE OF THIS CERTIFICATE IS ______________, 199_.
ASSUMING THAT THE MORTGAGE LOANS ARE NOT SUBJECT TO ANY VOLUNTARY OR INVOLUNTARY
PREPAYMENT, THIS CERTIFICATE HAS BEEN ISSUED WITH NO MORE THAN $______ OF OID
PER $1,000 OF INITIAL CERTIFICATE PRINCIPAL BALANCE, THE YIELD TO MATURITY IS
____% PER ANNUM, AND THE AMOUNT OF OID ATTRIBUTABLE TO THE INITIAL ACCRUAL
PERIOD IS NO MORE THAN $____ PER $1,000 OF INITIAL CERTIFICATE PRINCIPAL
BALANCE, COMPUTED UNDER THE EXACT METHOD. NO REPRESENTATION IS MADE THAT THE
MORTGAGE LOANS WILL
-3-
NOT PREPAY OR, IF THEY DO PREPAY, THAT THEY WILL PREPAY AT ANY PARTICULAR RATE.]
IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS A-1A, CLASS X-0X,
XXXXX X-0, CLASS A-3, CLASS B-1 AND CLASS B-2 CERTIFICATES OF THE SAME SERIES IS
REDUCED TO ZERO, DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE
OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH IN THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN. IN ADDITION, IF THE AGGREGATE
CERTIFICATE PRINCIPAL BALANCE OF THE CLASS B-4 AND CLASS C CERTIFICATES OF THE
SAME SERIES IS REDUCED TO ZERO, THE CERTIFICATE PRINCIPAL BALANCE OF THIS
CERTIFICATE MAY BE REDUCED BY CERTAIN LOSSES AND EXPENSES EXPERIENCED BY THE
TRUST FUND AS SET FORTH IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN. ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY
TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that __________________ is the registered owner of the
Percentage Interest evidenced by this Class B-3 Certificate (obtained by
dividing the principal amount of this Class B-3 Certificate (its "Certificate
Principal Balance") as of the Closing Date by the aggregate principal amount of
all the Class B-3 Certificates (their "Class Principal Balance") as of the
Closing Date) in that certain beneficial ownership interest evidenced by all the
Class B-3 Certificates in the Trust Fund created pursuant to a Pooling and
Servicing Agreement, dated as of the Cut-off Date specified above (the
"Agreement"), among DLJ Commercial Mortgage Corp. (the "Depositor", which term
includes any successor entity under the Agreement), __________________________
__________________________________ (the "Master Servicer", which term includes
any successor entity under the Agreement), ___________________________________
(the "Special Servicer", which term includes any successor entity under the
Agreement) and _____________________________ (the "Trustee" and "REMIC
Administrator", depending upon the capacity in which it is acting, each of which
terms includes any successor entity under the Agreement), a summary of certain
of the pertinent provisions of which is set forth hereafter. To the extent not
defined herein, capitalized terms used herein have the respective meanings
assigned in the Agreement. This Certificate is issued under and is subject to
the terms, provisions and conditions of the Agreement, to which Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
__th day of each month or, if such __th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name
-4-
this Certificate is registered at the close of business on the last Business Day
of the month immediately preceding the month of such distribution (the "Record
Date"), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed to all the Holders
of the Class B-3 Certificates on the applicable Distribution Date pursuant to
the Agreement. All distributions made under the Agreement on the Class B-3
Certificates will be made by the Trustee by wire transfer of immediately
available funds to the account of the Person entitled thereto at a bank or other
entity having appropriate facilities therefor, if such Certificateholder shall
have provided the Trustee with wiring instructions no less than five Business
Days prior to the related Record Date (which wiring instructions may be in the
form of a standing order applicable to all subsequent distributions) and is the
registered owner of Certificates the aggregate initial Certificate Principal
Balance of which is at least $5,000,000, or otherwise by check mailed to the
address of such Certificateholder as it appears in the Certificate Register.
Notwithstanding the foregoing, the final distribution on this Certificate
(determined without regard to any possible future reimbursement of any Realized
Loss or Additional Trust Fund Expense previously allocated to this Certificate)
will be made in like manner, but only upon presentation and surrender of this
Certificate at the offices of the Certificate Registrar or such other location
specified in the notice to the Holder hereof of such final distribution.
Notwithstanding anything herein to the contrary, no distributions will be made
with respect to a Certificate that has previously been surrendered as
contemplated by the preceding sentence or, with limited exception, that should
have been surrendered as contemplated by the preceding sentence.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Distribution Account, the Collection Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
-5-
The Class B-3 Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, Class B-3
Certificates are exchangeable for new Class B-3 Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
No transfer, sale, pledge or other disposition of any Private Certificate
or interest therein shall be made unless that transfer, sale, pledge or other
disposition is exempt from the registration and/or qualification requirements of
the Securities Act and any applicable state securities laws, or is otherwise
made in accordance with the Securities Act and such state securities laws. If a
transfer of any Private Certificate is to be made without registration under the
Securities Act (other than in connection with the initial issuance thereof or a
transfer thereof by the Depositor or one of its Affiliates), then the
Certificate Registrar shall refuse to register such transfer unless it receives
(and upon receipt, may conclusively rely upon) either: (i) a certificate from
the Certificateholder desiring to effect such transfer substantially in the form
attached as Exhibit F-1A to the Agreement; or (ii) a certificate from the
Certificateholder desiring to effect such transfer substantially in the form
attached as Exhibit F-1B to the Agreement and a certificate from such
Certificateholder's prospective Transferee substantially in the form attached
either as Exhibit F-2A or as Exhibit F-2B to the Agreement; or (iii) an Opinion
of Counsel satisfactory to the Trustee to the effect that such transfer may be
made without registration under the Securities Act (which Opinion of Counsel
shall not be an expense of the Trust Fund or of the Depositor, the Master
Servicer, the Special Servicer, the REMIC Administrator, the Trustee or the
Certificate Registrar in their respective capacities as such), together with the
written certification(s) as to the facts surrounding such transfer from the
Certificateholder desiring to effect such transfer and/or such
Certificateholder's prospective Transferee on which such Opinion of Counsel is
based. None of the Depositor, the Trustee or the Certificate Registrar is
obligated to register or qualify any Class of Private Certificates under the
Securities Act or any other securities law or to take any action not otherwise
required under the Agreement to permit the transfer of any Private Certificate
or interest therein without registration or qualification. Any Holder of a
Private Certificate desiring to effect a transfer of such Private Certificate or
interest therein shall, and does hereby agree to, indemnify, the Depositor, the
Underwriter, the Trustee, the Master Servicer, the Special Servicer, the REMIC
Administrator and the Certificate Registrar against any liability that may
result if the transfer is not so exempt or is not made in accordance with such
federal and state laws.
-6-
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 accounts in which such plans, accounts or
arrangements are invested, including, without limitation, insurance company
general accounts, that is subject to ERISA or the Code (each, a "Plan"), or (B)
to any Person who is directly or indirectly purchasing such Certificate or
interest therein on behalf of, as named fiduciary of, as trustee of, or with
assets of a Plan, unless: (i) the purchase and holding of such Certificate or
interest therein is exempt from the prohibited transaction provisions of Section
406 of ERISA and Section 4975 of the Code under Sections I and III of Prohibited
Transaction Class Exemption 95-60; or (ii) in the case of a Subordinated
Certificate that is a Definitive Certificate, the prospective Transferee
provides the Certificate Registrar with a certification of facts and an Opinion
of Counsel which establish to the satisfaction of the Trustee that such transfer
will not result in a violation of Section 406 of ERISA or Section 4975 of the
Code or result in the imposition of an excise tax under Section 4975 of the Code
or subject the Trustee, the Master Servicer or the Special Servicer to any
obligation in addition to those undertaken in the Agreement. Each Person who
acquires any Subordinated Certificate or interest therein (unless it shall have
delivered to the Certificate Registrar the certification of facts and Opinion of
Counsel referred to in clause (ii) the preceding sentence) will be required to
deliver to the Certificate Registrar (or, in the case of an interest in a
Subordinated Certificate that constitutes a Book-Entry Certificate, to the
Certificate Owner that is transferring such interest) a certification to the
effect that: (i) it is neither a Plan nor any Person who is directly or
indirectly purchasing such Certificate or interest therein on behalf of, as
named fiduciary of, as trustee of, or with assets of a Plan; or (ii) that the
purchase and holding of such Certificate or interest therein by such person is
exempt from the prohibited transaction provisions of Section 406 of ERISA and
Section 4975 of the Code under Sections I and III of Prohibited Transaction
Class Exemption 95-60. It is hereby acknowledged that the forms of certification
attached to the Agreement as Exhibit G-1 (in the case of Subordinated
Certificates that are Definitive Certificates) and Exhibit G-2 (in the case of
ownership interests in Subordinated Certificates that are Book-Entry
Certificates) are acceptable for purposes of the preceding sentence.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the
-7-
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Class B-3 Certificates in
authorized denominations evidencing the same aggregate Percentage Interest will
be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Class B-3 Certificates, but the Trustee or the Certificate Registrar
may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of Class
B-3 Certificates.
The Depositor, the Master Servicer, the Special Servicer, the Trustee, the
REMIC Administrator, the Certificate Registrar and any agent of the Depositor,
the Master Servicer, the Special Servicer, the Trustee, the REMIC Administrator
or the Certificate Registrar may treat the Person in whose name this Certificate
is registered as the owner hereof for all purposes, and none of the Depositor,
the Master Servicer, the Special Servicer, the Trustee, the REMIC Administrator,
the Certificate Registrar or any such agent shall be affected by notice to the
contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the final payment
or other liquidation (or any advance with respect thereto) of the last Mortgage
Loan or REO Property remaining in the Trust Fund, and (ii) the purchase by the
Special Servicer, the Master Servicer or the Majority Certificateholder of the
Controlling Class at a price determined as provided in the Agreement of all the
Mortgage Loans and each REO Property remaining in the Trust Fund. The Agreement
permits, but does not require, the Special Servicer, the Master Servicer or the
Majority Certificateholder of the Controlling Class to purchase from the Trust
Fund all the Mortgage Loans and each REO Property remaining therein. The
exercise of such right may effect early retirement of the Class B-3
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Pool at the time of purchase being less than
__% of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Closing Date specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the REMIC Administrator
and the Trustee and the rights of the Certificateholders under the Agreement at
any time by the Depositor, the Master Servicer, the Special Servicer, the
-8-
REMIC Administrator and the Trustee with the consent of the Holders of
Certificates entitled to at least [66 2/3]% of the Voting Rights allocated to
the affected Classes. Any such consent by the Holder of this Certificate shall
be conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange herefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof, in
certain limited circumstances, including any amendment necessary to maintain the
status of REMIC I, REMIC II or REMIC III as a REMIC, without the consent of the
Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York applicable to agreements made and to be performed in said
State, and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
___________________________
as Trustee
By:
________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class B-3 Certificates referred to in the
within-mentioned Agreement.
Dated:
___________________________
as Certificate Registrar
By:
________________________
Authorized Officer
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Mortgage Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to assignee on the Certificate Register of the Trust
Fund.
I (we) further direct the Certificate Registrar to issue a new Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and deliver such Mortgage Pass-Through Certificate to the
following address:
Dated:
_____________________________________
Signature by or on behalf of Assignor
______________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to
_______________________________________________________________________________
_______________________________________________________________________________
for the account of
_______________________________________________________________________________.
Distributions made by check (such check to be made payable to
____________________) and all applicable statements and notices should be mailed
to ____________________________________________________________________________.
-11-
This information is provided by ___________________________, the Assignee
named above, or ___________________________________, as its agent.
EXHIBIT A-9
FORM OF CLASS B-4 CERTIFICATE
CLASS B-4 COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 199_-___
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
DLJ COMMERCIAL MORTGAGE CORP.
Pass-Through Rate: ___% per Class Principal Balance of
annum the Class B-4 Certificates as
of the Closing Date:_____
______________
Cut-off Date: _________, 199_ Initial Certificate Principal
Balance of this Class B-4
Closing Date: _________, 199_ Certificate as of the Closing
Date: $_______
First Distribution Date:
______________, 199_
Master Servicer: ______________ Aggregate Stated Principal
Balance of the Mortgage Loans
_______________________________ as of the Closing Date:
$__________
Special Servicer: _____________ Trustee and REMIC
Administrator: ___________
Certificate No. B-4-__ CUSIP No.
-2-
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, PLEDGE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE OR ANY
INTEREST HEREIN WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A
TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH
IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE (A) TO ANY
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT THAT IS SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR THE
INTERNAL REVENUE CODE OF 1986 (THE "CODE"), OR (B) TO ANY PERSON WHO IS DIRECTLY
OR INDIRECTLY PURCHASING THIS CERTIFICATE OR SUCH INTEREST HEREIN ON BEHALF OF,
AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE
BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE
PROVISIONS OF SECTION 5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN DLJ
COMMERCIAL MORTGAGE CORP., ___________________________________________________
______________________________,
________________________________________________________________,_____________
__________________________________. NEITHER THIS CERTIFICATE NOR ANY OF THE
UNDERLYING MORTGAGE LOANS IS GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE
UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1A, CLASS A-1B, CLASS S, CLASS
A-2, CLASS A-3, CLASS B-1, CLASS B-2 AND CLASS B-3 CERTIFICATES OF THE SAME
SERIES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED
TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
[THE FOLLOWING INFORMATION IS PROVIDED SOLELY FOR THE PURPOSES OF APPLYING THE
U.S. FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS
CERTIFICATE. THE ISSUE DATE OF THIS CERTIFICATE IS ______________, 199_.
ASSUMING THAT THE MORTGAGE LOANS ARE NOT SUBJECT TO ANY VOLUNTARY OR INVOLUNTARY
PREPAYMENT, THIS CERTIFICATE HAS BEEN ISSUED WITH NO MORE THAN $______ OF OID
PER $1,000 OF INITIAL CERTIFICATE PRINCIPAL BALANCE, THE YIELD TO MATURITY IS
____% PER ANNUM, AND THE AMOUNT OF OID ATTRIBUTABLE TO THE INITIAL ACCRUAL
PERIOD IS NO MORE THAN $____ PER $1,000 OF INITIAL CERTIFICATE PRINCIPAL
BALANCE, COMPUTED UNDER THE EXACT METHOD. NO REPRESENTATION IS MADE THAT THE
MORTGAGE LOANS WILL
-3-
NOT PREPAY OR, IF THEY DO PREPAY, THAT THEY WILL PREPAY AT ANY PARTICULAR RATE.]
IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS A-1A, CLASS X-0X,
XXXXX X-0, CLASS A-3, CLASS B-1, CLASS B-2 AND CLASS B-3 CERTIFICATES OF THE
SAME SERIES IS REDUCED TO ZERO, DISTRIBUTIONS IN REDUCTION OF THE CERTIFICATE
PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN. IN ADDITION, IF THE
AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS C CERTIFICATES OF THE SAME
SERIES IS REDUCED TO ZERO, THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE
MAY BE REDUCED BY CERTAIN LOSSES AND EXPENSES EXPERIENCED BY THE TRUST FUND AS
SET FORTH IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
ACCORDINGLY, THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME
MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
This certifies that DLJ Commercial Mortgage Corp. is the registered owner
of the Percentage Interest evidenced by this Class B-4 Certificate (obtained by
dividing the principal amount of this Class B-4 Certificate (its "Certificate
Principal Balance") as of the Closing Date by the aggregate principal amount of
all the Class B-4 Certificates (their "Class Principal Balance") as of the
Closing Date) in that certain beneficial ownership interest evidenced by all the
Class B-4 Certificates in the Trust Fund created pursuant to a Pooling and
Servicing Agreement, dated as of the Cut-off Date specified above (the
"Agreement"), among DLJ Commercial Mortgage Corp. (the "Depositor", which term
includes any successor entity under the Agreement),___________________________
____________________________________(the "Master Servicer", which term includes
any successor entity under the Agreement), ___________________________________
_______________________________ (the "Special Servicer", which term includes any
successor entity under the Agreement) and ___________________________ (the
"Trustee" and "REMIC Administrator", depending upon the capacity in which it is
acting, each of which terms includes any successor entity under the Agreement),
a summary of certain of the pertinent provisions of which is set forth
hereafter. To the extent not defined herein, capitalized terms used herein have
the respective meanings assigned in the Agreement. This Certificate is issued
under and is subject to the terms, provisions and conditions of the Agreement,
to which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
__th day of each month or, if such __th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the
-4-
last Business Day of the month immediately preceding the month of such
distribution (the "Record Date"), in an amount equal to the product of the
Percentage Interest evidenced by this Certificate and the amount required to be
distributed to all the Holders of the Class B-4 Certificates on the applicable
Distribution Date pursuant to the Agreement. All distributions made under the
Agreement on the Class B-4 Certificates will be made by the Trustee by wire
transfer of immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Trustee with wiring instructions
no less than five Business Days prior to the related Record Date (which wiring
instructions may be in the form of a standing order applicable to all subsequent
distributions) and is the registered owner of Certificates the aggregate initial
Certificate Principal Balance of which is at least $5,000,000, or otherwise by
check mailed to the address of such Certificateholder as it appears in the
Certificate Register. Notwithstanding the foregoing, the final distribution on
this Certificate (determined without regard to any possible future reimbursement
of any Realized Loss or Additional Trust Fund Expense previously allocated to
this Certificate) will be made in like manner, but only upon presentation and
surrender of this Certificate at the offices of the Certificate Registrar or
such other location specified in the notice to the Holder hereof of such final
distribution. Notwithstanding anything herein to the contrary, no distributions
will be made with respect to a Certificate that has previously been surrendered
as contemplated by the preceding sentence or, with limited exception, that
should have been surrendered as contemplated by the preceding sentence.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Distribution Account, the Collection Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued upon the transfer hereof
or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Class B-4 Certificates are issuable in fully registered form only
without coupons in minimum denominations
-5-
specified in the Agreement. As provided in the Agreement and subject to certain
limitations therein set forth, Class B-4 Certificates are exchangeable for new
Class B-4 Certificates in authorized denominations evidencing the same aggregate
Percentage Interest, as requested by the Holder surrendering the same.
No transfer, sale, pledge or other disposition of any Private Certificate
or interest therein shall be made unless that transfer, sale, pledge or other
disposition is exempt from the registration and/or qualification requirements of
the Securities Act and any applicable state securities laws, or is otherwise
made in accordance with the Securities Act and such state securities laws. If a
transfer of any Private Certificate is to be made without registration under the
Securities Act (other than in connection with the initial issuance thereof or a
transfer thereof by the Depositor or one of its Affiliates), then the
Certificate Registrar shall refuse to register such transfer unless it receives
(and upon receipt, may conclusively rely upon) either: (i) a certificate from
the Certificateholder desiring to effect such transfer substantially in the form
attached as Exhibit F-1A to the Agreement; or (ii) a certificate from the
Certificateholder desiring to effect such transfer substantially in the form
attached as Exhibit F-1B to the Agreement and a certificate from such
Certificateholder's prospective Transferee substantially in the form attached
either as Exhibit F-2A or as Exhibit F-2B to the Agreement; or (iii) an Opinion
of Counsel satisfactory to the Trustee to the effect that such transfer may be
made without registration under the Securities Act (which Opinion of Counsel
shall not be an expense of the Trust Fund or of the Depositor, the Master
Servicer, the Special Servicer, the REMIC Administrator, the Trustee or the
Certificate Registrar in their respective capacities as such), together with the
written certification(s) as to the facts surrounding such transfer from the
Certificateholder desiring to effect such transfer and/or such
Certificateholder's prospective Transferee on which such Opinion of Counsel is
based. None of the Depositor, the Trustee or the Certificate Registrar is
obligated to register or qualify any Class of Private Certificates under the
Securities Act or any other securities law or to take any action not otherwise
required under the Agreement to permit the transfer of any Private Certificate
or interest therein without registration or qualification. Any Holder of a
Private Certificate desiring to effect a transfer of such Private Certificate or
interest therein shall, and does hereby agree to, indemnify, the Depositor, the
Underwriter, the Trustee, the Master Servicer, the Special Servicer, the REMIC
Administrator and the Certificate Registrar against any liability that may
result if the transfer is not so exempt or is not made in accordance with such
federal and state laws.
No transfer of a Subordinated Certificate or any interest therein shall be
made (A) to any employee benefit plan
-6-
or other retirement arrangement, including individual retirement accounts and
annuities, Xxxxx plans and collective investment funds and separate accounts in
which such plans, accounts or arrangements are invested, including, without
limitation, insurance company general accounts, that is subject to ERISA or the
Code (each, a "Plan"), or (B) to any Person who is directly or indirectly
purchasing such Certificate or interest therein on behalf of, as named fiduciary
of, as trustee of, or with assets of a Plan, unless: (i) the purchase and
holding of such Certificate or interest therein is exempt from the prohibited
transaction provisions of Section 406 of ERISA and Section 4975 of the Code
under Sections I and III of Prohibited Transaction Class Exemption 95-60; or
(ii) in the case of a Subordinated Certificate that is a Definitive Certificate,
the prospective Transferee provides the Certificate Registrar with a
certification of facts and an Opinion of Counsel which establish to the
satisfaction of the Trustee that such transfer will not result in a violation of
Section 406 of ERISA or Section 4975 of the Code or result in the imposition of
an excise tax under Section 4975 of the Code or subject the Trustee, the Master
Servicer or the Special Servicer to any obligation in addition to those
undertaken in the Agreement. Each Person who acquires any Subordinated
Certificate or interest therein (unless it shall have delivered to the
Certificate Registrar the certification of facts and Opinion of Counsel referred
to in clause (ii) the preceding sentence) will be required to deliver to the
Certificate Registrar (or, in the case of an interest in a Subordinated
Certificate that constitutes a Book-Entry Certificate, to the Certificate Owner
that is transferring such interest) a certification to the effect that: (i) it
is neither a Plan nor any Person who is directly or indirectly purchasing such
Certificate or interest therein on behalf of, as named fiduciary of, as trustee
of, or with assets of a Plan; or (ii) that the purchase and holding of such
Certificate or interest therein by such person is exempt from the prohibited
transaction provisions of Section 406 of ERISA and Section 4975 of the Code
under Sections I and III of Prohibited Transaction Class Exemption 95-60. It is
hereby acknowledged that the forms of certification attached to the Agreement as
Exhibit G-1 (in the case of Subordinated Certificates that are Definitive
Certificates) and Exhibit G-2 (in the case of ownership interests in
Subordinated Certificates that are Book-Entry Certificates) are acceptable for
purposes of the preceding sentence.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more
-7-
new Class B-4 Certificates in authorized denominations evidencing the same
aggregate Percentage Interest will be issued to the designated transferee or
transferees.
No service charge will be imposed for any registration of transfer or
exchange of Class B-4 Certificates, but the Trustee or the Certificate Registrar
may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of Class
B-4 Certificates.
The Depositor, the Master Servicer, the Special Servicer, the Trustee, the
REMIC Administrator, the Certificate Registrar and any agent of the Depositor,
the Master Servicer, the Special Servicer, the Trustee, the REMIC Administrator
or the Certificate Registrar may treat the Person in whose name this Certificate
is registered as the owner hereof for all purposes, and none of the Depositor,
the Master Servicer, the Special Servicer, the Trustee, the REMIC Administrator,
the Certificate Registrar or any such agent shall be affected by notice to the
contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the final payment
or other liquidation (or any advance with respect thereto) of the last Mortgage
Loan or REO Property remaining in the Trust Fund, and (ii) the purchase by the
Special Servicer, the Master Servicer or the Majority Certificateholder of the
Controlling Class at a price determined as provided in the Agreement of all the
Mortgage Loans and each REO Property remaining in the Trust Fund. The Agreement
permits, but does not require, the Special Servicer, the Master Servicer or the
Majority Certificateholder of the Controlling Class to purchase from the Trust
Fund all the Mortgage Loans and each REO Property remaining therein. The
exercise of such right may effect early retirement of the Class B-4
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Pool at the time of purchase being less than
__% of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Closing Date specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the REMIC Administrator
and the Trustee and the rights of the Certificateholders under the Agreement at
any time by the Depositor, the Master Servicer, the Special Servicer, the REMIC
Administrator and the Trustee with the consent of the Holders of Certificates
entitled to at least [66 2/3]% of the
-8-
Voting Rights allocated to the affected Classes. Any such consent by the Holder
of this Certificate shall be conclusive and binding on such Holder and upon all
future Holders of this Certificate and of any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such consent is made upon this Certificate. The Agreement also permits the
amendment thereof, in certain limited circumstances, including any amendment
necessary to maintain the status of REMIC I, REMIC II or REMIC III as a REMIC,
without the consent of the Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York applicable to agreements made and to be performed in said
State, and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
_______________________________
as Trustee
By:
____________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class B-4 Certificates referred to in the
within-mentioned Agreement.
Dated:
_______________________________
as Certificate Registrar
By:
____________________________
Authorized Officer
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Mortgage Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to assignee on the Certificate Register of the Trust
Fund.
I (we) further direct the Certificate Registrar to issue a new Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and deliver such Mortgage Pass-Through Certificate to the
following address:
Dated:
_____________________________________
Signature by or on behalf of Assignor
_____________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to
________________________________________________________________________________
________________________________________________________________________________
for the account of
_______________________________________________________________________________.
Distributions made by check (such check to be made payable to _____________
____________________) and all applicable statements and notices should be mailed
to _____________________________________________________________________________
_______________________________________________________________________________.
-11-
This information is provided by ___________________________, the Assignee
named above, or ___________________________________, as its agent.
EXHIBIT A-10
FORM OF CLASS C CERTIFICATE
CLASS C COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 199_-___
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
DLJ COMMERCIAL MORTGAGE CORP.
Pass-Through Rate: ___% per Class Principal Balance of
annum the Class C Certificates as
of the Closing Date:_____
______________
Cut-off Date: _________, 199_ Initial Certificate Principal
Balance of this Class C
Closing Date: _________, 199_ Certificate as of the Closing
Date: $_______
First Distribution Date:
______________, 199_
Master Servicer: ______________ Aggregate Stated Principal
Balance of the Mortgage Loans
_______________________________ as of the Closing Date:
$__________
Special Servicer: _____________ Trustee and REMIC
Administrator: ___________
Certificate No. C- __ CUSIP No.
-2-
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, PLEDGE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE OR ANY
INTEREST HEREIN WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A
TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH
IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE (A) TO ANY
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT THAT IS SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR THE
INTERNAL REVENUE CODE OF 1986 (THE "CODE"), OR (B) TO ANY PERSON WHO IS DIRECTLY
OR INDIRECTLY PURCHASING THIS CERTIFICATE OR SUCH INTEREST HEREIN ON BEHALF OF,
AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE
BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE
PROVISIONS OF SECTION 5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN DLJ
COMMERCIAL MORTGAGE CORP., ___________________________________________________
__________________________, ___________________________________,
_______________________________________. NEITHER THIS CERTIFICATE NOR ANY OF THE
UNDERLYING MORTGAGE LOANS IS GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE
UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1A, CLASS A-1B, CLASS S, CLASS
A-2, CLASS A-3, CLASS B-1, CLASS B-2, CLASS B-3 AND CLASS B-4 CERTIFICATES OF
THE SAME SERIES TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
[THE FOLLOWING INFORMATION IS PROVIDED SOLELY FOR THE PURPOSES OF APPLYING THE
U.S. FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES TO THIS
CERTIFICATE. THE ISSUE DATE OF THIS CERTIFICATE IS ___________, 199_. ASSUMING
THAT THE MORTGAGE LOANS ARE NOT SUBJECT TO ANY VOLUNTARY OR INVOLUNTARY
PREPAYMENT, THIS CERTIFICATE HAS BEEN ISSUED WITH NO MORE THAN $______ OF OID
PER $1,000 OF INITIAL CERTIFICATE PRINCIPAL BALANCE, THE YIELD TO MATURITY IS
____% PER ANNUM, AND THE AMOUNT OF OID ATTRIBUTABLE TO THE INITIAL ACCRUAL
PERIOD IS NO MORE THAN $____ PER $1,000 OF INITIAL CERTIFICATE PRINCIPAL
BALANCE, COMPUTED UNDER THE EXACT METHOD. NO REPRESENTATION IS MADE THAT THE
MORTGAGE LOANS WILL
-3-
NOT PREPAY OR, IF THEY DO PREPAY, THAT THEY WILL PREPAY AT ANY PARTICULAR RATE.]
IF THE AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE CLASS A-1A, CLASS X-0X,
XXXXX X-0, CLASS A-3, CLASS B-1, CLASS B-2, CLASS B-3 AND CLASS B-4 CERTIFICATES
OF THE SAME SERIES IS REDUCED TO ZERO, DISTRIBUTIONS IN REDUCTION OF THE
CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE MADE MONTHLY AS SET
FORTH IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN. IN ADDITION,
THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE REDUCED BY CERTAIN
LOSSES AND EXPENSES EXPERIENCED BY THE TRUST FUND AS SET FORTH IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN. ACCORDINGLY, THE OUTSTANDING
CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN THE AMOUNT
SHOWN ABOVE.
This certifies that __________________ is the registered owner of the
Percentage Interest evidenced by this Class C Certificate (obtained by dividing
the principal amount of this Class C Certificate (its "Certificate Principal
Balance") as of the Closing Date by the aggregate principal amount of all the
Class C Certificates (their "Class Principal Balance") as of the Closing Date)
in that certain beneficial ownership interest evidenced by all the Class C
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as of the Cut-off Date specified above (the "Agreement"), among
DLJ Commercial Mortgage Corp. (the "Depositor", which term includes any
successor entity under the Agreement), ___________ _____________________________
(the "Master Servicer", which term includes any successor entity under the
Agreement), ___________ _____________________________ (the "Special Servicer",
which term includes any successor entity under the Agreement) and ________
______________________ (the "Trustee" and "REMIC Administrator", depending upon
the capacity in which it is acting, each of which terms includes any successor
entity under the Agreement), a summary of certain of the pertinent provisions of
which is set forth hereafter. To the extent not defined herein, capitalized
terms used herein have the respective meanings assigned in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
__th day of each month or, if such __th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the
-4-
product of the Percentage Interest evidenced by this Certificate and the amount
required to be distributed to all the Holders of the Class C Certificates on the
applicable Distribution Date pursuant to the Agreement. All distributions made
under the Agreement on the Class C Certificates will be made by the Trustee by
wire transfer of immediately available funds to the account of the Person
entitled thereto at a bank or other entity having appropriate facilities
therefor, if such Certificateholder shall have provided the Trustee with wiring
instructions no less than five Business Days prior to the related Record Date
(which wiring instructions may be in the form of a standing order applicable to
all subsequent distributions) and is the registered owner of Certificates the
aggregate initial Certificate Principal Balance of which is at least $5,000,000,
or otherwise by check mailed to the address of such Certificateholder as it
appears in the Certificate Register. Notwithstanding the foregoing, the final
distribution on this Certificate (determined without regard to any possible
future reimbursement of any Realized Loss or Additional Trust Fund Expense
previously allocated to this Certificate) will be made in like manner, but only
upon presentation and surrender of this Certificate at the offices of the
Certificate Registrar or such other location specified in the notice to the
Holder hereof of such final distribution. Notwithstanding anything herein to the
contrary, no distributions will be made with respect to a Certificate that has
previously been surrendered as contemplated by the preceding sentence or, with
limited exception, that should have been surrendered as contemplated by the
preceding sentence.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Distribution Account, the Collection Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
Any distribution to the Holder of this Certificate in reduction of the
Certificate Principal Balance hereof is binding on such Holder and all future
Holders of this Certificate and any Certificate issued 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
-5-
Certificates are exchangeable for new Class C Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
No transfer, sale, pledge or other disposition of any Private Certificate
or interest therein shall be made unless that transfer, sale, pledge or other
disposition is exempt from the registration and/or qualification requirements of
the Securities Act and any applicable state securities laws, or is otherwise
made in accordance with the Securities Act and such state securities laws. If a
transfer of any Private Certificate is to be made without registration under the
Securities Act (other than in connection with the initial issuance thereof or a
transfer thereof by the Depositor or one of its Affiliates), then the
Certificate Registrar shall refuse to register such transfer unless it receives
(and upon receipt, may conclusively rely upon) either: (i) a certificate from
the Certificateholder desiring to effect such transfer substantially in the form
attached as Exhibit F-1A to the Agreement; or (ii) a certificate from the
Certificateholder desiring to effect such transfer substantially in the form
attached as Exhibit F-1B to the Agreement and a certificate from such
Certificateholder's prospective Transferee substantially in the form attached
either as Exhibit F-2A or as Exhibit F-2B to the Agreement; or (iii) an Opinion
of Counsel satisfactory to the Trustee to the effect that such transfer may be
made without registration under the Securities Act (which Opinion of Counsel
shall not be an expense of the Trust Fund or of the Depositor, the Master
Servicer, the Special Servicer, the REMIC Administrator, the Trustee or the
Certificate Registrar in their respective capacities as such), together with the
written certification(s) as to the facts surrounding such transfer from the
Certificateholder desiring to effect such transfer and/or such
Certificateholder's prospective Transferee on which such Opinion of Counsel is
based. None of the Depositor, the Trustee or the Certificate Registrar is
obligated to register or qualify any Class of Private Certificates under the
Securities Act or any other securities law or to take any action not otherwise
required under the Agreement to permit the transfer of any Private Certificate
or interest therein without registration or qualification. Any Holder of a
Private Certificate desiring to effect a transfer of such Private Certificate or
interest therein shall, and does hereby agree to, indemnify, the Depositor, the
Underwriter, the Trustee, the Master Servicer, the Special Servicer, the REMIC
Administrator and the Certificate Registrar against any liability that may
result if the transfer is not so exempt or is not made in accordance with such
federal and state laws.
No transfer of a Subordinated Certificate or any interest therein shall be
made (A) to any employee benefit plan or other retirement arrangement, including
individual retirement accounts and annuities, Xxxxx plans and collective
investment
-6-
funds and separate accounts in which such plans, accounts or arrangements are
invested, including, without limitation, insurance company general accounts,
that is subject to ERISA or the Code (each, a "Plan"), or (B) to any Person who
is directly or indirectly purchasing such Certificate or interest therein on
behalf of, as named fiduciary of, as trustee of, or with assets of a Plan,
unless: (i) the purchase and holding of such Certificate or interest therein is
exempt from the prohibited transaction provisions of Section 406 of ERISA and
Section 4975 of the Code under Sections I and III of Prohibited Transaction
Class Exemption 95-60; or (ii) in the case of a Subordinated Certificate that is
a Definitive Certificate, the prospective Transferee provides the Certificate
Registrar with a certification of facts and an Opinion of Counsel which
establish to the satisfaction of the Trustee that such transfer will not result
in a violation of Section 406 of ERISA or Section 4975 of the Code or result in
the imposition of an excise tax under Section 4975 of the Code or subject the
Trustee, the Master Servicer or the Special Servicer to any obligation in
addition to those undertaken in the Agreement. Each Person who acquires any
Subordinated Certificate or interest therein (unless it shall have delivered to
the Certificate Registrar the certification of facts and Opinion of Counsel
referred to in clause (ii) the preceding sentence) will be required to deliver
to the Certificate Registrar (or, in the case of an interest in a Subordinated
Certificate that constitutes a Book-Entry Certificate, to the Certificate Owner
that is transferring such interest) a certification to the effect that: (i) it
is neither a Plan nor any Person who is directly or indirectly purchasing such
Certificate or interest therein on behalf of, as named fiduciary of, as trustee
of, or with assets of a Plan; or (ii) that the purchase and holding of such
Certificate or interest therein by such person is exempt from the prohibited
transaction provisions of Section 406 of ERISA and Section 4975 of the Code
under Sections I and III of Prohibited Transaction Class Exemption 95-60. It is
hereby acknowledged that the forms of certification attached to the Agreement as
Exhibit G-1 (in the case of Subordinated Certificates that are Definitive
Certificates) and Exhibit G-2 (in the case of ownership interests in
Subordinated Certificates that are Book-Entry Certificates) are acceptable for
purposes of the preceding sentence.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Class C Certificates in authorized
denominations evidencing
-7-
the same aggregate Percentage Interest will be issued to the designated
transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Class C Certificates, but the Trustee or the Certificate Registrar
may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of Class
C Certificates.
The Depositor, the Master Servicer, the Special Servicer, the Trustee, the
REMIC Administrator, the Certificate Registrar and any agent of the Depositor,
the Master Servicer, the Special Servicer, the Trustee, the REMIC Administrator
or the Certificate Registrar may treat the Person in whose name this Certificate
is registered as the owner hereof for all purposes, and none of the Depositor,
the Master Servicer, the Special Servicer, the Trustee, the REMIC Administrator,
the Certificate Registrar or any such agent shall be affected by notice to the
contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the final payment
or other liquidation (or any advance with respect thereto) of the last Mortgage
Loan or REO Property remaining in the Trust Fund, and (ii) the purchase by the
Special Servicer, the Master Servicer or the Majority Certificateholder of the
Controlling Class at a price determined as provided in the Agreement of all the
Mortgage Loans and each REO Property remaining in the Trust Fund. The Agreement
permits, but does not require, the Special Servicer, the Master Servicer or the
Majority Certificateholder of the Controlling Class to purchase from the Trust
Fund all the Mortgage Loans and each REO Property remaining therein. The
exercise of such right may effect early retirement of the Class C Certificates;
however, such right to purchase is subject to the aggregate Stated Principal
Balance of the Mortgage Pool at the time of purchase being less than __% of the
aggregate Stated Principal Balance of the Mortgage Loans as of the Closing Date
specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the REMIC Administrator
and the Trustee and the rights of the Certificateholders under the Agreement at
any time by the Depositor, the Master Servicer, the Special Servicer, the REMIC
Administrator and the Trustee with the consent of the Holders of Certificates
entitled to at least [66 2/3]% of the Voting Rights allocated to the affected
Classes. Any such
-8-
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain limited
circumstances, including any amendment necessary to maintain the status of REMIC
I, REMIC II or REMIC III as a REMIC, without the consent of the Holders of any
of the Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York applicable to agreements made and to be performed in said
State, and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
________________________________
as Trustee
By:
____________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class C Certificates referred to in the within-mentioned
Agreement.
Dated:
_______________________________
as Certificate Registrar
By:
____________________________
Authorized Officer
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Mortgage Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to assignee on the Certificate Register of the Trust
Fund.
I (we) further direct the Certificate Registrar to issue a new Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and deliver such Mortgage Pass-Through Certificate to the
following address:
Dated:
_____________________________________
Signature by or on behalf of Assignor
_____________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of distribution:
Distributions shall, if permitted, be made by wire transfer or otherwise,
in immediately available funds, to
________________________________________________________________________________
________________________________________________________________________________
for the account of
_______________________________________________________________________________.
Distributions made by check (such check to be made payable to _____________
____________________) and all applicable statements and notices should be mailed
to _____________________________________________________________________________
_______________________________________________________________________________.
-11-
This information is provided by ___________________________, the Assignee
named above, or ___________________________________, as its agent.
EXHIBIT A-11
FORM OF CLASS R-I CERTIFICATE
CLASS R-I COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 199_-___
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
DLJ COMMERCIAL MORTGAGE CORP.
Cut-off Date: ________, 199__ Percentage Interest evidenced
by this Class R-I Certificate:
_____%
Closing Date: _________, 199_ Aggregate Stated Principal
Balance of the Mortgage Loans
as of the Closing Date:
$__________
First Distribution Date:
______________, 199_
Master Servicer: ______________ Trustee and REMIC
Administrator: ___________
_______________________________
Special Servicer: _____________
Certificate No. R-I- __
-2-
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, PLEDGE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE OR ANY
INTEREST HEREIN WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A
TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH
IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE (A) TO ANY
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT THAT IS SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR THE
INTERNAL REVENUE CODE OF 1986 (THE "CODE"), OR (B) TO ANY PERSON WHO IS DIRECTLY
OR INDIRECTLY PURCHASING THIS CERTIFICATE OR SUCH INTEREST HEREIN ON BEHALF OF,
AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE
BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE
PROVISIONS OF SECTION 5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN DLJ
COMMERCIAL MORTGAGE CORP., ________________________________________________,
___________________________________________________________________________,
______________________________________________. NEITHER THIS CERTIFICATE NOR ANY
OF THE UNDERLYING MORTGAGE LOANS IS GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY
OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1A, CLASS A-1B, CLASS S, CLASS
A-2, CLASS A-3, CLASS B-1, CLASS B-2, CLASS B-3, CLASS B-4 AND CLASS C
CERTIFICATES OF THE SAME SERIES TO THE EXTENT DESCRIBED IN THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
CONSEQUENTLY, TRANSFER OF THIS CERTIFICATE IS ALSO SUBJECT TO THE ADDITIONAL TAX
RELATED TRANSFER RESTRICTIONS DESCRIBED HEREIN. IF ANY PERSON BECOMES THE
REGISTERED HOLDER OF THIS CERTIFICATE IN VIOLATION OF SUCH TRANSFER
RESTRICTIONS, SUCH REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR
EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER
FOR ANY PURPOSE HEREUNDER OR UNDER THE POOLING AND SERVICING AGREEMENT REFERRED
TO HEREIN, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS, IF ANY,
ON THIS CERTIFICATE.
This certifies that __________________ is the registered owner of the Percentage
Interest evidenced by this
-3-
Class R-I Certificate (as specified above) in that certain beneficial ownership
interest evidenced by all the Class R-I Certificates in the Trust Fund created
pursuant to a Pooling and Servicing Agreement, dated as of the Cut-off Date
specified above (the "Agreement"), among DLJ Commercial Mortgage Corp. (the
"Depositor", which term includes any successor entity under the Agreement),
____________________________________ (the "Master Servicer", which term includes
any successor entity under the Agreement), ________________________________ (the
"Special Servicer", which term includes any successor entity under the
Agreement) and _______________________________ (the "Trustee" and "REMIC
Administrator", depending upon the capacity in which it is acting, each of which
terms includes any successor entity under the Agreement), a summary of certain
of the pertinent provisions of which is set forth hereafter. To the extent not
defined herein, capitalized terms used herein have the respective meanings
assigned in the Agreement. This Certificate is issued under and is subject to
the terms, provisions and conditions of the Agreement, to which Agreement the
Holder of this Certificate by virtue of the acceptance hereof assents and by
which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
__th day of each month or, if such __th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed to all the Holders of the
Class R-I Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on the Class R-I
Certificates will be made by the Trustee to the Person entitled thereto by check
mailed to the address of such Certificateholder as it appears in the Certificate
Register. Notwithstanding the foregoing, the final distribution on this
Certificate will be made in like manner, but only upon presentation and
surrender of this Certificate at the offices of the Certificate Registrar or
such other location specified in the notice to the Holder hereof of such final
distribution. Notwithstanding anything herein to the contrary, no distributions
will be made with respect to a Certificate that has previously been surrendered
as contemplated by the preceding sentence or, with limited exception, that
should have been surrendered as contemplated by the preceding sentence.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the
-4-
Distribution Account, the Collection Account and, if established, the REO
Account may be made from time to time for purposes other than, and, in certain
cases, prior to, distributions to Certificateholders, such purposes including
the reimbursement of advances made, or certain expenses incurred, with respect
to the Mortgage Loans and the payment of interest on such advances and expenses.
The Class R-I Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, Class R-I
Certificates are exchangeable for new Class R-I Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
No transfer, sale, pledge or other disposition of any Private Certificate
or interest therein shall be made unless that transfer, sale, pledge or other
disposition is exempt from the registration and/or qualification requirements of
the Securities Act and any applicable state securities laws, or is otherwise
made in accordance with the Securities Act and such state securities laws. If a
transfer of any Private Certificate is to be made without registration under the
Securities Act (other than in connection with the initial issuance thereof or a
transfer thereof by the Depositor or one of its Affiliates), then the
Certificate Registrar shall refuse to register such transfer unless it receives
(and upon receipt, may conclusively rely upon) either: (i) a certificate from
the Certificateholder desiring to effect such transfer substantially in the form
attached as Exhibit F-1A to the Agreement; or (ii) a certificate from the
Certificateholder desiring to effect such transfer substantially in the form
attached as Exhibit F-1B to the Agreement and a certificate from such
Certificateholder's prospective Transferee substantially in the form attached
either as Exhibit F-2A or as Exhibit F-2B to the Agreement; or (iii) an Opinion
of Counsel satisfactory to the Trustee to the effect that such transfer may be
made without registration under the Securities Act (which Opinion of Counsel
shall not be an expense of the Trust Fund or of the Depositor, the Master
Servicer, the Special Servicer, the REMIC Administrator, the Trustee or the
Certificate Registrar in their respective capacities as such), together with the
written certification(s) as to the facts surrounding such transfer from the
Certificateholder desiring to effect such transfer and/or such
Certificateholder's prospective Transferee on which such Opinion of Counsel is
based. None of the Depositor, the Trustee or the Certificate Registrar is
obligated to register or qualify any Class of Private Certificates under the
Securities Act or any other securities law or to take any action not otherwise
required under the Agreement to permit the transfer of any Private Certificate
or interest therein without registration or qualification. Any Holder of a
Private Certificate desiring to
-5-
effect a transfer of such Private Certificate or interest therein shall, and
does hereby agree to, indemnify, the Depositor, the Underwriter, the Trustee,
the Master Servicer, the Special Servicer, the REMIC Administrator and the
Certificate Registrar against any liability that may result if the transfer is
not so exempt or is not made in accordance with such federal and state laws.
No transfer of a Subordinated Certificate or any interest therein shall be
made (A) to any employee benefit plan or other retirement arrangement, including
individual retirement accounts and annuities, Xxxxx plans and collective
investment funds and separate accounts in which such plans, accounts or
arrangements are invested, including, without limitation, insurance company
general accounts, that is subject to ERISA or the Code (each, a "Plan"), or (B)
to any Person who is directly or indirectly purchasing such Certificate or
interest therein on behalf of, as named fiduciary of, as trustee of, or with
assets of a Plan, unless: (i) the purchase and holding of such Certificate or
interest therein is exempt from the prohibited transaction provisions of Section
406 of ERISA and Section 4975 of the Code under Sections I and III of Prohibited
Transaction Class Exemption 95-60; or (ii) in the case of a Subordinated
Certificate that is a Definitive Certificate, the prospective Transferee
provides the Certificate Registrar with a certification of facts and an Opinion
of Counsel which establish to the satisfaction of the Trustee that such transfer
will not result in a violation of Section 406 of ERISA or Section 4975 of the
Code or result in the imposition of an excise tax under Section 4975 of the Code
or subject the Trustee, the Master Servicer or the Special Servicer to any
obligation in addition to those undertaken in the Agreement. Each Person who
acquires any Subordinated Certificate or interest therein (unless it shall have
delivered to the Certificate Registrar the certification of facts and Opinion of
Counsel referred to in clause (ii) the preceding sentence) will be required to
deliver to the Certificate Registrar (or, in the case of an interest in
Subordinated Certificates that constitutes a Book-Entry Certificate, to the
Certificate Owner that is transferring such interest) a certification to the
effect that: (i) it is neither a Plan nor any Person who is directly or
indirectly purchasing such Certificate or interest therein on behalf of, as
named fiduciary of, as trustee of, or with assets of a Plan; or (ii) that the
purchase and holding of such Certificate or interest therein by such person is
exempt from the prohibited transaction provisions of Section 406 of ERISA and
Section 4975 of the Code under Sections I and III of Prohibited Transaction
Class Exemption 95-60. It is hereby acknowledged that the forms of certification
attached to the Agreement as Exhibit G-1 (in the case of Subordinated
Certificates that are Definitive Certificates) and G-2 (in the case of ownership
interests
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Subordinated Certificates that are in Book-Entry Certificates) are acceptable
for purposes of the preceding sentence.
Each Person who has or who acquires any Ownership Interest in this
Certificate shall be deemed by the acceptance or acquisition of such Ownership
Interest to have agreed to be bound by the provisions of Section 5.02(d) of the
Agreement and, if any purported Transferee shall become a Holder of this
Certificate in violation of the provisions of such Section 5.02(d), to have
irrevocably authorized the Trustee under clause (ii)(A) of such Section 5.02(d)
to deliver payments to a Person other than such Person and to have irrevocably
authorized the Trustee under clause (ii)(B) of such Section 5.02(d) to negotiate
the terms of any mandatory sale and to execute all instruments of Transfer and
to do all other things necessary in connection with any such sale. Each Person
holding or acquiring any Ownership Interest in this Certificate must be a
Permitted Transferee and shall promptly notify the Trustee and the REMIC
Administrator of any change or impending change in its status as a Permitted
Transferee. In connection with any proposed Transfer of any Ownership Interest
in this Certificate, the Certificate Registrar shall require delivery to it, and
shall not register the Transfer of this Certificate until its receipt of, an
affidavit and agreement substantially in the form attached as Exhibit H-1 to the
Agreement (a "Transfer Affidavit and Agreement") from the proposed Transferee,
in form and substance satisfactory to the Certificate Registrar, representing
and warranting, among other things, that such Transferee is a Permitted
Transferee, that it is not acquiring its Ownership Interest in this Certificate
as a nominee, trustee or agent for any Person that is not a Permitted
Transferee, that for so long as it retains its Ownership Interest in this
Certificate, it will endeavor to remain a Permitted Transferee, and that it has
reviewed the provisions of Section 5.02(d) of the Agreement and agrees to be
bound by them. Notwithstanding the delivery of a Transfer Affidavit and
Agreement by a proposed Transferee, if a Responsible Officer of the Certificate
Registrar or Trustee has actual knowledge that the proposed Transferee is not a
Permitted Transferee, no Transfer of an Ownership Interest in this Certificate
to such proposed Transferee shall be effected.
Each Person holding or acquiring any Ownership Interest in this Certificate
shall agree (x) to require a Transfer Affidavit and Agreement from any other
Person to whom such Person attempts to transfer its Ownership Interest herein
and (y) not to transfer its Ownership Interest herein unless it provides to the
Certificate Registrar a certificate substantially in the form attached as
Exhibit H-2 to the Agreement stating that, among other things, it has no actual
knowledge that such other Person is not a Permitted Transferee. Each Person
holding or acquiring an Ownership Interest in this Certificate, by purchasing
such Ownership Interest herein, agrees to give the Trustee and the
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REMIC Administrator written notice that it is a "pass-through interest holder"
within the meaning of temporary Treasury regulation Section 1.67-3T(a)(2)(i)(A)
immediately upon acquiring such Ownership Interest, if it is, or is holding such
Ownership Interest on behalf of, a "pass-through interest holder".
The provisions of Section 5.02(d) of the Agreement may be modified, added
to or eliminated, provided that there shall have been delivered to the Trustee
and the REMIC Administrator the following: (a) written confirmation from each
Rating Agency to the effect that the modification of, addition to or elimination
of such provisions will not cause such Rating Agency to qualify, downgrade or
withdraw its then-current ratings of any Class of Certificates; and (b) an
Opinion of Counsel, in form and substance satisfactory to the Trustee and the
REMIC Administrator, to the effect that such modification of, addition to or
elimination of such provisions will not cause any of REMIC I, REMIC II or REMIC
III to (x) cease to qualify as a REMIC or (y) be subject to an entity-level tax
caused by the Transfer of any Class R-I Certificate to a Person that is not a
Permitted Transferee, or cause a Person other than the prospective Transferee to
be subject to a REMIC-related tax caused by the Transfer of a Class R-I
Certificate to a Person that is not a Permitted Transferee.
A "Permitted Transferee" is any Transferee other than a "Disqualified
Organization" and a "Non-United States Person". A "Disqualified Organization" is
any of (i) the United States, any State or political subdivision thereof, any
possession of the United States, or any agency or instrumentality of any of the
foregoing (other than an instrumentality which is a corporation if all of its
activities are subject to tax and, except for the FHLMC, a majority of its board
of directors is not selected by such governmental unit), (ii) a foreign
government, any international organization, or any agency or instrumentality of
any of the foregoing, (iii) any organization (other than certain farmers'
cooperatives described in Section 521 of the Code) which is exempt from the tax
imposed by Chapter 1 of the Code (including the tax imposed by Section 511 of
the Code on unrelated business taxable income), (iv) rural electric and
telephone cooperatives described in Section 1381 of the Code and (v) any other
Person so designated by the REMIC Administrator based upon an Opinion of Counsel
provided to it that the holding of an Ownership Interest in a Residual
Certificate by such Person may cause the Trust Fund or any Person having an
Ownership Interest in any Class of Certificates (other than such Person) to
incur a liability for any federal tax imposed under the Code that would not
otherwise be imposed but for the Transfer of an Ownership Interest in a Residual
Certificate to such Person. The terms "United States", "State" and
"international organization" shall have the meanings set forth in Section 7701
of the Code or successor provisions.
-8-
A "Non-United States Person" is any Person other than a United States
Person. A "United States Person" is a citizen or resident of the United States,
a corporation, partnership or other entity created or organized in, or under the
laws of, the United States or any political subdivision thereof, or an estate or
trust whose income from sources without the United States is includible in gross
income for United States federal income tax purposes regardless of its
connection with the conduct of a trade or business within the United States.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Class R-I Certificates in authorized
denominations evidencing the same aggregate Percentage Interest will be issued
to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Class R-I Certificates, but the Trustee or the Certificate Registrar
may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of Class
R-I Certificates.
The Depositor, the Master Servicer, the Special Servicer, the Trustee, the
REMIC Administrator, the Certificate Registrar and any agent of the Depositor,
the Master Servicer, the Special Servicer, the Trustee, the REMIC Administrator
or the Certificate Registrar may treat the Person in whose name this Certificate
is registered as the owner hereof for all purposes, and none of the Depositor,
the Master Servicer, the Special Servicer, the Trustee, the REMIC Administrator,
the Certificate Registrar or any such agent shall be affected by notice to the
contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the final payment
or other liquidation (or any advance with respect thereto) of the last Mortgage
Loan or REO Property remaining in the Trust Fund, and (ii) the purchase by the
Special Servicer, the Master Servicer or the Majority Certificateholder of the
Controlling Class at a price determined as provided in the Agreement of all the
Mortgage Loans and each REO Property remaining in the Trust Fund. The Agreement
permits, but does not
-9-
require, the Special Servicer, the Master Servicer or the Majority
Certificateholder of the Controlling Class to purchase from the Trust Fund all
the Mortgage Loans and each REO Property remaining therein. The exercise of such
right will effect early retirement of the Class R-I Certificates; however, such
right to purchase is subject to the aggregate Stated Principal Balance of the
Mortgage Pool at the time of purchase being less than __% of the aggregate
Stated Principal Balance of the Mortgage Loans as of the Closing Date specified
on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the REMIC Administrator
and the Trustee and the rights of the Certificateholders under the Agreement at
any time by the Depositor, the Master Servicer, the Special Servicer, the REMIC
Administrator and the Trustee with the consent of the Holders of Certificates
entitled to at least [66 2/3]% of the Voting Rights allocated to the affected
Classes. Any such consent by the Holder of this Certificate shall be conclusive
and binding on such Holder and upon all future Holders of this Certificate and
of any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
limited circumstances, including any amendment necessary to maintain the status
of REMIC I, REMIC II or REMIC III as a REMIC, without the consent of the Holders
of any of the Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York applicable to agreements made and to be performed in said
State, and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
_______________________________
as Trustee
By:
____________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class R-I Certificates referred to in the
within-mentioned Agreement.
Dated:
________________________
as Certificate Registrar
By:
____________________________
Authorized Officer
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Mortgage Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to assignee on the Certificate Register of the Trust
Fund.
I (we) further direct the Certificate Registrar to issue a new Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and deliver such Mortgage Pass-Through Certificate to the
following address:
Dated:
_____________________________________
Signature by or on behalf of Assignor
_____________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of distribution:
Distributions shall be by check made payable to
__________________________________ and mailed to
_______________________________________________________________________________.
Applicable statements and notices should be mailed to
________________________________________________________________________________
_______________________________________________________________________________.
This information is provided by ___________________________, the Assignee
named above, or ____________________________________, as its agent.
EXHIBIT A-12
FORM OF CLASS R-II CERTIFICATE
CLASS R-II COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 199_-___
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
DLJ COMMERCIAL MORTGAGE CORP.
Cut-off Date: ________, 199__ Percentage Interest evidenced
by this Class R-II
Certificate: _____%
Closing Date: _________, 199_ Aggregate Stated Principal
Balance of the Mortgage Loans
as of the Closing Date:
$__________
First Distribution Date:
______________, 199_
Master Servicer: ______________ Trustee and REMIC
Administrator: ___________
_______________________________
Special Servicer:
Certificate No. R-II- __
-2-
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, PLEDGE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE OR ANY
INTEREST HEREIN WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A
TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH
IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE (A) TO ANY
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT THAT IS SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR THE
INTERNAL REVENUE CODE OF 1986 (THE "CODE"), OR (B) TO ANY PERSON WHO IS DIRECTLY
OR INDIRECTLY PURCHASING THIS CERTIFICATE OR SUCH INTEREST HEREIN ON BEHALF OF,
AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE
BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE
PROVISIONS OF SECTION 5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN DLJ
COMMERCIAL MORTGAGE CORP., ____________________________________________________,
____________________________________,___________________________________________
____________________________________________. NEITHER THIS CERTIFICATE NOR ANY
OF THE UNDERLYING MORTGAGE LOANS IS GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY
OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1A, CLASS A-1B, CLASS S, CLASS
A-2, CLASS A-3, CLASS B-1, CLASS B-2, CLASS B-3, CLASS B-4 AND CLASS C
CERTIFICATES OF THE SAME SERIES TO THE EXTENT DESCRIBED IN THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
CONSEQUENTLY, TRANSFER OF THIS CERTIFICATE IS ALSO SUBJECT TO THE ADDITIONAL TAX
RELATED TRANSFER RESTRICTIONS DESCRIBED HEREIN. IF ANY PERSON BECOMES THE
REGISTERED HOLDER OF THIS CERTIFICATE IN VIOLATION OF SUCH TRANSFER
RESTRICTIONS, SUCH REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR
EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER
FOR ANY PURPOSE HEREUNDER OR UNDER THE POOLING AND SERVICING AGREEMENT REFERRED
TO HEREIN, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS, IF ANY,
ON THIS CERTIFICATE.
This certifies that __________________ is the registered owner of the
Percentage Interest evidenced by this
-3-
Class R-II Certificate (as specified above) in that certain beneficial ownership
interest evidenced by all the Class R-II Certificates in the Trust Fund created
pursuant to a Pooling and Servicing Agreement, dated as of the Cut-off Date
specified above (the "Agreement"), among DLJ Commercial Mortgage Corp. (the
"Depositor", which term includes any successor entity under the Agreement),
_______________________________________ (the "Master Servicer", which term
includes any successor entity under the Agreement),__________________________
_____________________________________ (the "Special Servicer", which term
includes any successor entity under the Agreement) and _____________________
(the "Trustee" and "REMIC Administrator", depending upon the capacity in which
it is acting, each of which terms includes any successor entity under the
Agreement), a summary of certain of the pertinent provisions of which is set
forth hereafter. To the extent not defined herein, capitalized terms used herein
have the respective meanings assigned in the Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of the
acceptance hereof assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
__th day of each month or, if such __th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed to all the Holders of the
Class R-II Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on the Class R-II
Certificates will be made by the Trustee to the Person entitled thereto by check
mailed to the address of such Certificateholder as it appears in the Certificate
Register. Notwithstanding the foregoing, the final distribution on this
Certificate will be made in like manner, but only upon presentation and
surrender of this Certificate at the offices of the Certificate Registrar or
such other location specified in the notice to the Holder hereof of such final
distribution. Notwithstanding anything herein to the contrary, no distributions
will be made with respect to a Certificate that has previously been surrendered
as contemplated by the preceding sentence or, with limited exception, that
should have been surrendered as contemplated by the preceding sentence.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the
-4-
Distribution Account, the Collection Account and, if established, the REO
Account may be made from time to time for purposes other than, and, in certain
cases, prior to, distributions to Certificateholders, such purposes including
the reimbursement of advances made, or certain expenses incurred, with respect
to the Mortgage Loans and the payment of interest on such advances and expenses.
The Class R-II Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, Class
R-II Certificates are exchangeable for new Class R-II Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
No transfer, sale, pledge or other disposition of any Private Certificate
or interest therein shall be made unless that transfer, sale, pledge or other
disposition is exempt from the registration and/or qualification requirements of
the Securities Act and any applicable state securities laws, or is otherwise
made in accordance with the Securities Act and such state securities laws. If a
transfer of any Private Certificate is to be made without registration under the
Securities Act (other than in connection with the initial issuance thereof or a
transfer thereof by the Depositor or one of its Affiliates), then the
Certificate Registrar shall refuse to register such transfer unless it receives
(and upon receipt, may conclusively rely upon) either: (i) a certificate from
the Certificateholder desiring to effect such transfer substantially in the form
attached as Exhibit F-1A to the Agreement; or (ii) a certificate from the
Certificateholder desiring to effect such transfer substantially in the form
attached as Exhibit F-1B to the Agreement and a certificate from such
Certificateholder's prospective Transferee substantially in the form attached
either as Exhibit F-2A or as Exhibit F-2B to the Agreement; or (iii) an Opinion
of Counsel satisfactory to the Trustee to the effect that such transfer may be
made without registration under the Securities Act (which Opinion of Counsel
shall not be an expense of the Trust Fund or of the Depositor, the Master
Servicer, the Special Servicer, the REMIC Administrator, the Trustee or the
Certificate Registrar in their respective capacities as such), together with the
written certification(s) as to the facts surrounding such transfer from the
Certificateholder desiring to effect such transfer and/or such
Certificateholder's prospective Transferee on which such Opinion of Counsel is
based. None of the Depositor, the Trustee or the Certificate Registrar is
obligated to register or qualify any Class of Private Certificates under the
Securities Act or any other securities law or to take any action not otherwise
required under the Agreement to permit the transfer of any Private Certificate
or interest therein without registration or qualification. Any Holder of a
Private Certificate desiring to
-5-
effect a transfer of such Private Certificate or interest therein shall, and
does hereby agree to, indemnify, the Depositor, the Underwriter, the Trustee,
the Master Servicer, the Special Servicer, the REMIC Administrator and the
Certificate Registrar against any liability that may result if the transfer is
not so exempt or is not made in accordance with such federal and state laws.
No transfer of a Subordinated Certificate or any interest therein shall be
made (A) to any employee benefit plan or other retirement arrangement, including
individual retirement accounts and annuities, Xxxxx plans and collective
investment funds and separate accounts in which such plans, accounts or
arrangements are invested, including, without limitation, insurance company
general accounts, that is subject to ERISA or the Code (each, a "Plan"), or (B)
to any Person who is directly or indirectly purchasing such Certificate or
interest therein on behalf of, as named fiduciary of, as trustee of, or with
assets of a Plan, unless: (i) the purchase and holding of such Certificate or
interest therein is exempt from the prohibited transaction provisions of Section
406 of ERISA and Section 4975 of the Code under Sections I and III of Prohibited
Transaction Class Exemption 95-60; or (ii) in the case of a Subordinated
Certificate that is a Definitive Certificate, the prospective Transferee
provides the Certificate Registrar with a certification of facts and an Opinion
of Counsel which establish to the satisfaction of the Trustee that such transfer
will not result in a violation of Section 406 of ERISA or Section 4975 of the
Code or result in the imposition of an excise tax under Section 4975 of the Code
or subject the Trustee, the Master Servicer or the Special Servicer to any
obligation in addition to those undertaken in the Agreement. Each Person who
acquires any Subordinated Certificate or interest therein (unless it shall have
delivered to the Certificate Registrar the certification of facts and Opinion of
Counsel referred to in clause (ii) the preceding sentence) will be required to
deliver to the Certificate Registrar (or, in the case of an interest in
Subordinated Certificates that constitute a Book-Entry Certificate, to the
Certificate Owner that is transferring such interest) a certification to the
effect that: (i) it is neither a Plan nor any Person who is directly or
indirectly purchasing such Certificate or interest therein on behalf of, as
named fiduciary of, as trustee of, or with assets of a Plan; or (ii) that the
purchase and holding of such Certificate or interest therein by such person is
exempt from the prohibited transaction provisions of Section 406 of ERISA and
Section 4975 of the Code under Sections I and III of Prohibited Transaction
Class Exemption 95-60. It is hereby acknowledged that the forms of certification
attached to the Agreement as Exhibit G-1 (in the case of Subordinated
Certificates that are Definitive Certificates) and G-2 (in the case of ownership
interests in
-6-
Subordinated Certificates that are Book-Entry Certificates) are acceptable for
purposes of the preceding sentence.
Each Person who has or who acquires any Ownership Interest in this
Certificate shall be deemed by the acceptance or acquisition of such Ownership
Interest to have agreed to be bound by the provisions of Section 5.02(d) of the
Agreement and, if any purported Transferee shall become a Holder of this
Certificate in violation of the provisions of such Section 5.02(d), to have
irrevocably authorized the Trustee under clause (ii)(A) of such Section 5.02(d)
to deliver payments to a Person other than such Person and to have irrevocably
authorized the Trustee under clause (ii)(B) of such Section 5.02(d) to negotiate
the terms of any mandatory sale and to execute all instruments of Transfer and
to do all other things necessary in connection with any such sale. Each Person
holding or acquiring any Ownership Interest in this Certificate must be a
Permitted Transferee and shall promptly notify the Trustee and the REMIC
Administrator of any change or impending change in its status as a Permitted
Transferee. In connection with any proposed Transfer of any Ownership Interest
in this Certificate, the Certificate Registrar shall require delivery to it, and
shall not register the Transfer of this Certificate until its receipt of, an
affidavit and agreement substantially in the form attached as Exhibit H-1 to the
Agreement (a "Transfer Affidavit and Agreement") from the proposed Transferee,
in form and substance satisfactory to the Certificate Registrar, representing
and warranting, among other things, that such Transferee is a Permitted
Transferee, that it is not acquiring its Ownership Interest in this Certificate
as a nominee, trustee or agent for any Person that is not a Permitted
Transferee, that for so long as it retains its Ownership Interest in this
Certificate, it will endeavor to remain a Permitted Transferee, and that it has
reviewed the provisions of Section 5.02(d) of the Agreement and agrees to be
bound by them. Notwithstanding the delivery of a Transfer Affidavit and
Agreement by a proposed Transferee, if a Responsible Officer of the Certificate
Registrar or Trustee has actual knowledge that the proposed Transferee is not a
Permitted Transferee, no Transfer of an Ownership Interest in this Certificate
to such proposed Transferee shall be effected.
Each Person holding or acquiring any Ownership Interest in this Certificate
shall agree (x) to require a Transfer Affidavit and Agreement from any other
Person to whom such Person attempts to transfer its Ownership Interest herein
and (y) not to transfer its Ownership Interest herein unless it provides to the
Certificate Registrar a certificate substantially in the form attached as
Exhibit H-2 to the Agreement stating that, among other things, it has no actual
knowledge that such other Person is not a Permitted Transferee. Each Person
holding or acquiring an Ownership Interest in this Certificate, by purchasing
such Ownership Interest herein, agrees to give the Trustee and the
-7-
REMIC Administrator written notice that it is a "pass-through interest holder"
within the meaning of temporary Treasury regulation Section 1.67-3T(a)(2)(i)(A)
immediately upon acquiring such Ownership Interest, if it is, or is holding such
Ownership Interest on behalf of, a "pass-through interest holder".
The provisions of Section 5.02(d) of the Agreement may be modified, added
to or eliminated, provided that there shall have been delivered to the Trustee
and the REMIC Administrator the following: (a) written confirmation from each
Rating Agency to the effect that the modification of, addition to or elimination
of such provisions will not cause such Rating Agency to qualify, downgrade or
withdraw its then-current ratings of any Class of Certificates; and (b) an
Opinion of Counsel, in form and substance satisfactory to the Trustee and the
REMIC Administrator, to the effect that such modification of, addition to or
elimination of such provisions will not cause any of REMIC I, REMIC II or REMIC
III to (x) cease to qualify as a REMIC or (y) be subject to an entity-level tax
caused by the Transfer of any Class R-II Certificate to a Person that is not a
Permitted Transferee, or cause a Person other than the prospective Transferee to
be subject to a REMIC-related tax caused by the Transfer of a Class R-II
Certificate to a Person that is not a Permitted Transferee.
A "Permitted Transferee" is any Transferee other than a "Disqualified
Organization" and a "Non-United States Person". A "Disqualified Organization" is
any of (i) the United States, any State or political subdivision thereof, any
possession of the United States, or any agency or instrumentality of any of the
foregoing (other than an instrumentality which is a corporation if all of its
activities are subject to tax and, except for the FHLMC, a majority of its board
of directors is not selected by such governmental unit), (ii) a foreign
government, any international organization, or any agency or instrumentality of
any of the foregoing, (iii) any organization (other than certain farmers'
cooperatives described in Section 521 of the Code) which is exempt from the tax
imposed by Chapter 1 of the Code (including the tax imposed by Section 511 of
the Code on unrelated business taxable income), (iv) rural electric and
telephone cooperatives described in Section 1381 of the Code and (v) any other
Person so designated by the REMIC Administrator based upon an Opinion of Counsel
provided to it that the holding of an Ownership Interest in a Residual
Certificate by such Person may cause the Trust Fund or any Person having an
Ownership Interest in any Class of Certificates (other than such Person) to
incur a liability for any federal tax imposed under the Code that would not
otherwise be imposed but for the Transfer of an Ownership Interest in a Residual
Certificate to such Person. The terms "United States", "State" and
"international organization" shall have the meanings set forth in Section 7701
of the Code or successor provisions.
-8-
A "Non-United States Person" is any Person other than a United States
Person. A "United States Person" is a citizen or resident of the United States,
a corporation, partnership or other entity created or organized in, or under the
laws of, the United States or any political subdivision thereof, or an estate or
trust whose income from sources without the United States is includible in gross
income for United States federal income tax purposes regardless of its
connection with the conduct of a trade or business within the United States.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Class R-II Certificates in authorized
denominations evidencing the same aggregate Percentage Interest will be issued
to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Class R-II Certificates, but the Trustee or the Certificate
Registrar may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any transfer or
exchange of Class R-II Certificates.
The Depositor, the Master Servicer, the Special Servicer, the Trustee, the
REMIC Administrator, the Certificate Registrar and any agent of the Depositor,
the Master Servicer, the Special Servicer, the Trustee, the REMIC Administrator
or the Certificate Registrar may treat the Person in whose name this Certificate
is registered as the owner hereof for all purposes, and none of the Depositor,
the Master Servicer, the Special Servicer, the Trustee, the REMIC Administrator,
the Certificate Registrar or any such agent shall be affected by notice to the
contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the final payment
or other liquidation (or any advance with respect thereto) of the last Mortgage
Loan or REO Property remaining in the Trust Fund, and (ii) the purchase by the
Master Servicer or the Majority Certificateholder of the Controlling Class at a
price determined as provided in the Agreement of all the Mortgage Loans and each
REO Property remaining in the Trust Fund. The Agreement permits, but does not
require, the Master Servicer or
-9-
the Majority Certificateholder of the Controlling Class to purchase from the
Trust Fund all the Mortgage Loans and each REO Property remaining therein. The
exercise of such right will effect early retirement of the Class R-II
Certificates; however, such right to purchase is subject to the aggregate Stated
Principal Balance of the Mortgage Pool at the time of purchase being less than
__% of the aggregate Stated Principal Balance of the Mortgage Loans as of the
Closing Date specified on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the REMIC Administrator
and the Trustee and the rights of the Certificateholders under the Agreement at
any time by the Depositor, the Master Servicer, the Special Servicer, the REMIC
Administrator and the Trustee with the consent of the Holders of Certificates
entitled to at least [66 2/3]% of the Voting Rights allocated to the affected
Classes. Any such consent by the Holder of this Certificate shall be conclusive
and binding on such Holder and upon all future Holders of this Certificate and
of any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
limited circumstances, including any amendment necessary to maintain the status
of REMIC I, REMIC II or REMIC III as a REMIC, without the consent of the Holders
of any of the Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York applicable to agreements made and to be performed in said
State, and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
_______________________________
as Trustee
By:
____________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class R-II Certificates referred to in the
within-mentioned Agreement.
Dated:
______________________________
as Certificate Registrar
By:
__________________________
Authorized Officer
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Mortgage Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to assignee on the Certificate Register of the Trust
Fund.
I (we) further direct the Certificate Registrar to issue a new Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and deliver such Mortgage Pass-Through Certificate to the
following address:
Dated:
_____________________________________
Signature by or on behalf of Assignor
_____________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of distribution:
Distributions shall be by check made payable to __________________________
__________________________________ and mailed to
_______________________________________________________________________________
_______________________________________________________________________________.
Applicable statements and notices should be mailed to ____________________
_______________________________________________________________________________
________________________________________.
This information is provided by ___________________________, the Assignee
named above, or ____________________________________, as its agent.
EXHIBIT A-13
FORM OF CLASS R-III CERTIFICATE
CLASS R-III COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 199_-___
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
DLJ COMMERCIAL MORTGAGE CORP.
Cut-off Date: ________, 199__ Percentage Interest evidenced
by this Class R - III
Certificate: _____%
Closing Date: _________, 199_ Aggregate Stated Principal
Balance of the Mortgage Loans
as of the Closing Date:
$__________
First Distribution Date:
______________, 199_
Master Servicer: Trustee and REMIC
Administrator: ___________
_______________________________
Special Servicer:
Certificate No. R-III- __
-2-
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, PLEDGE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE OR ANY
INTEREST HEREIN WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A
TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH
IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE (A) TO ANY
EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT THAT IS SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR THE
INTERNAL REVENUE CODE OF 1986 (THE "CODE"), OR (B) TO ANY PERSON WHO IS DIRECTLY
OR INDIRECTLY PURCHASING THIS CERTIFICATE OR SUCH INTEREST HEREIN ON BEHALF OF,
AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE
BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE
PROVISIONS OF SECTION 5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN DLJ
COMMERCIAL MORTGAGE CORP., ______________________________________________,
____________________________________,______________________________________
__________________________________________. NEITHER THIS CERTIFICATE NOR ANY OF
THE UNDERLYING MORTGAGE LOANS IS GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF
THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1A, CLASS A-1B, CLASS S, CLASS
A-2, CLASS A-3, CLASS B-1, CLASS B-2, CLASS B-3, CLASS B-4 AND CLASS C
CERTIFICATES OF THE SAME SERIES TO THE EXTENT DESCRIBED IN THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
CONSEQUENTLY, TRANSFER OF THIS CERTIFICATE IS ALSO SUBJECT TO THE ADDITIONAL TAX
RELATED TRANSFER RESTRICTIONS DESCRIBED HEREIN. IF ANY PERSON BECOMES THE
REGISTERED HOLDER OF THIS CERTIFICATE IN VIOLATION OF SUCH TRANSFER
RESTRICTIONS, SUCH REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR
EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER
FOR ANY PURPOSE HEREUNDER OR UNDER THE POOLING AND SERVICING AGREEMENT REFERRED
TO HEREIN, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF DISTRIBUTIONS, IF ANY,
ON THIS CERTIFICATE.
This certifies that __________________ is the registered owner of the
Percentage Interest evidenced by this
-3-
Class R-III Certificate (as specified above) in that certain beneficial
ownership interest evidenced by all the Class R-III Certificates in the Trust
Fund created pursuant to a Pooling and Servicing Agreement, dated as of the
Cut-off Date specified above (the "Agreement"), among DLJ Commercial Mortgage
Corp. (the "Depositor", which term includes any successor entity under the
Agreement), __________________________________ (the "Master Servicer", which
term includes any successor entity under the Agreement),______________________
____________________________________ (the "Special Servicer", which term
includes any successor entity under the Agreement) and ________________________
_________________________________ (the "Trustee" and "REMIC Administrator",
depending upon the capacity in which it is acting, each of which terms includes
any successor entity under the Agreement), a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
capitalized terms used herein have the respective meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, distributions will be made on the
__th day of each month or, if such __th day is not a Business Day, the Business
Day immediately following (each, a "Distribution Date"), commencing on the first
Distribution Date specified above, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed to all the Holders of the
Class R-III Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on the Class R-III
Certificates will be made by the Trustee to the Person entitled thereto by check
mailed to the address of such Certificateholder as it appears in the Certificate
Register. Notwithstanding the foregoing, the final distribution on this
Certificate will be made in like manner, but only upon presentation and
surrender of this Certificate at the offices of the Certificate Registrar or
such other location specified in the notice to the Holder hereof of such final
distribution. Notwithstanding anything herein to the contrary, no distributions
will be made with respect to a Certificate that has previously been surrendered
as contemplated by the preceding sentence or, with limited exception, that
should have been surrendered as contemplated by the preceding sentence.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the
-4-
Distribution Account, the Collection Account and, if established, the REO
Account may be made from time to time for purposes other than, and, in certain
cases, prior to, distributions to Certificateholders, such purposes including
the reimbursement of advances made, or certain expenses incurred, with respect
to the Mortgage Loans and the payment of interest on such advances and expenses.
The Class R-III Certificates are issuable in fully registered form only
without coupons in minimum denominations specified in the Agreement. As provided
in the Agreement and subject to certain limitations therein set forth, Class
R-III Certificates are exchangeable for new Class R-III Certificates in
authorized denominations evidencing the same aggregate Percentage Interest, as
requested by the Holder surrendering the same.
No transfer, sale, pledge or other disposition of any Private Certificate
or interest therein shall be made unless that transfer, sale, pledge or other
disposition is exempt from the registration and/or qualification requirements of
the Securities Act and any applicable state securities laws, or is otherwise
made in accordance with the Securities Act and such state securities laws. If a
transfer of any Private Certificate is to be made without registration under the
Securities Act (other than in connection with the initial issuance thereof or a
transfer thereof by the Depositor or one of its Affiliates), then the
Certificate Registrar shall refuse to register such transfer unless it receives
(and upon receipt, may conclusively rely upon) either: (i) a certificate from
the Certificateholder desiring to effect such transfer substantially in the form
attached as Exhibit F-1A to the Agreement; or (ii) a certificate from the
Certificateholder desiring to effect such transfer substantially in the form
attached as Exhibit F-1B to the Agreement and a certificate from such
Certificateholder's prospective Transferee substantially in the form attached
either as Exhibit F-2A or as Exhibit F-2B to the Agreement; or (iii) an Opinion
of Counsel satisfactory to the Trustee to the effect that such transfer may be
made without registration under the Securities Act (which Opinion of Counsel
shall not be an expense of the Trust Fund or of the Depositor, the Master
Servicer, the Special Servicer, the REMIC Administrator, the Trustee or the
Certificate Registrar in their respective capacities as such), together with the
written certification(s) as to the facts surrounding such transfer from the
Certificateholder desiring to effect such transfer and/or such
Certificateholder's prospective Transferee on which such Opinion of Counsel is
based. None of the Depositor, the Trustee or the Certificate Registrar is
obligated to register or qualify any Class of Private Certificates under the
Securities Act or any other securities law or to take any action not otherwise
required under the Agreement to permit the transfer of any Private Certificate
or interest therein without registration or qualification. Any Holder of a
Private Certificate desiring to
-5-
effect a transfer of such Private Certificate or interest therein shall, and
does hereby agree to, indemnify, the Depositor, the Underwriter, the Trustee,
the Master Servicer, the Special Servicer, the REMIC Administrator and the
Certificate Registrar against any liability that may result if the transfer is
not so exempt or is not made in accordance with such federal and state laws.
No transfer of a Subordinated Certificate or any interest therein shall be
made (A) to any employee benefit plan or other retirement arrangement, including
individual retirement accounts and annuities, Xxxxx plans and collective
investment funds and separate accounts in which such plans, accounts or
arrangements are invested, including, without limitation, insurance company
general accounts, that is subject to ERISA or the Code (each, a "Plan"), or (B)
to any Person who is directly or indirectly purchasing such Certificate or
interest therein on behalf of, as named fiduciary of, as trustee of, or with
assets of a Plan, unless: (i) the purchase and holding of such Certificate or
interest therein is exempt from the prohibited transaction provisions of Section
406 of ERISA and Section 4975 of the Code under Sections I and III of Prohibited
Transaction Class Exemption 95-60; or (ii) in the case of a Subordinated
Certificate that is a Definitive Certificate, the prospective Transferee
provides the Certificate Registrar with a certification of facts and an Opinion
of Counsel which establish to the satisfaction of the Trustee that such transfer
will not result in a violation of Section 406 of ERISA or Section 4975 of the
Code or result in the imposition of an excise tax under Section 4975 of the Code
or subject the Trustee, the Master Servicer or the Special Servicer to any
obligation in addition to those undertaken in the Agreement. Each Person who
acquires any Subordinated Certificate or interest therein (unless it shall have
delivered to the Certificate Registrar the certification of facts and Opinion of
Counsel referred to in clause (ii) the preceding sentence) will be required to
deliver to the Certificate Registrar (or, in the case of an interest in a
Subordinated Certificate that constitute a Book-Entry Certificate, to the
Certificate Owner that is transferring such interest) a certification to the
effect that: (i) it is neither a Plan nor any Person who is directly or
indirectly purchasing such Certificate or interest therein on behalf of, as
named fiduciary of, as trustee of, or with assets of a Plan; or (ii) that the
purchase and holding of such Certificate or interest therein by such person is
exempt from the prohibited transaction provisions of Section 406 of ERISA and
Section 4975 of the Code under Sections I and III of Prohibited Transaction
Class Exemption 95-60. It is hereby acknowledged that the forms of certification
attached to the Agreement as Exhibit G-1 (in the case of Subordinated
Certificates that are Definitive Certificates) and Exhibit G-2 (in the case of
ownership interests
-6-
in Subordinated Certificates that are Book-Entry Certificates) are acceptable
for purposes of the preceding sentence.
Each Person who has or who acquires any Ownership Interest in this
Certificate shall be deemed by the acceptance or acquisition of such Ownership
Interest to have agreed to be bound by the provisions of Section 5.02(d) of the
Agreement and, if any purported Transferee shall become a Holder of this
Certificate in violation of the provisions of such Section 5.02(d), to have
irrevocably authorized the Trustee under clause (ii)(A) of such Section 5.02(d)
to deliver payments to a Person other than such Person and to have irrevocably
authorized the Trustee under clause (ii)(B) of such Section 5.02(d) to negotiate
the terms of any mandatory sale and to execute all instruments of Transfer and
to do all other things necessary in connection with any such sale. Each Person
holding or acquiring any Ownership Interest in this Certificate must be a
Permitted Transferee and shall promptly notify the Trustee and the REMIC
Administrator of any change or impending change in its status as a Permitted
Transferee. In connection with any proposed Transfer of any Ownership Interest
in this Certificate, the Certificate Registrar shall require delivery to it, and
shall not register the Transfer of this Certificate until its receipt of, an
affidavit and agreement substantially in the form attached as Exhibit H-1 to the
Agreement (a "Transfer Affidavit and Agreement") from the proposed Transferee,
in form and substance satisfactory to the Certificate Registrar, representing
and warranting, among other things, that such Transferee is a Permitted
Transferee, that it is not acquiring its Ownership Interest in this Certificate
as a nominee, trustee or agent for any Person that is not a Permitted
Transferee, that for so long as it retains its Ownership Interest in this
Certificate, it will endeavor to remain a Permitted Transferee, and that it has
reviewed the provisions of Section 5.02(d) of the Agreement and agrees to be
bound by them. Notwithstanding the delivery of a Transfer Affidavit and
Agreement by a proposed Transferee, if a Responsible Officer of the Certificate
Registrar or Trustee has actual knowledge that the proposed Transferee is not a
Permitted Transferee, no Transfer of an Ownership Interest in this Certificate
to such proposed Transferee shall be effected.
Each Person holding or acquiring any Ownership Interest in this Certificate
shall agree (x) to require a Transfer Affidavit and Agreement from any other
Person to whom such Person attempts to transfer its Ownership Interest herein
and (y) not to transfer its Ownership Interest herein unless it provides to the
Certificate Registrar a certificate substantially in the form attached as
Exhibit H-2 to the Agreement stating that, among other things, it has no actual
knowledge that such other Person is not a Permitted Transferee. Each Person
holding or acquiring an Ownership Interest in this Certificate, by purchasing
such Ownership Interest herein, agrees to give the Trustee and the
-7-
REMIC Administrator written notice that it is a "pass-through interest holder"
within the meaning of temporary Treasury regulation Section 1.67-3T(a)(2)(i)(A)
immediately upon acquiring such Ownership Interest, if it is, or is holding such
Ownership Interest on behalf of, a "pass-through interest holder".
The provisions of Section 5.02(d) of the Agreement may be modified, added
to or eliminated, provided that there shall have been delivered to the Trustee
and the REMIC Administrator the following: (a) written confirmation from each
Rating Agency to the effect that the modification of, addition to or elimination
of such provisions will not cause such Rating Agency to qualify, downgrade or
withdraw its then-current ratings of any Class of Certificates; and (b) an
Opinion of Counsel, in form and substance satisfactory to the Trustee and the
REMIC Administrator, to the effect that such modification of, addition to or
elimination of such provisions will not cause any of REMIC I, REMIC II or REMIC
III to (x) cease to qualify as a REMIC or (y) be subject to an entity-level tax
caused by the Transfer of any Class R-III Certificate to a Person that is not a
Permitted Transferee, or cause a Person other than the prospective Transferee to
be subject to a REMIC-related tax caused by the Transfer of a Class R-III
Certificate to a Person that is not a Permitted Transferee.
A "Permitted Transferee" is any Transferee other than a "Disqualified
Organization" and a "Non-United States Person". A "Disqualified Organization" is
any of (i) the United States, any State or political subdivision thereof, any
possession of the United States, or any agency or instrumentality of any of the
foregoing (other than an instrumentality which is a corporation if all of its
activities are subject to tax and, except for the FHLMC, a majority of its board
of directors is not selected by such governmental unit), (ii) a foreign
government, any international organization, or any agency or instrumentality of
any of the foregoing, (iii) any organization (other than certain farmers'
cooperatives described in Section 521 of the Code) which is exempt from the tax
imposed by Chapter 1 of the Code (including the tax imposed by Section 511 of
the Code on unrelated business taxable income), (iv) rural electric and
telephone cooperatives described in Section 1381 of the Code and (v) any other
Person so designated by the REMIC Administrator based upon an Opinion of Counsel
provided to it that the holding of an Ownership Interest in a Residual
Certificate by such Person may cause the Trust Fund or any Person having an
Ownership Interest in any Class of Certificates (other than such Person) to
incur a liability for any federal tax imposed under the Code that would not
otherwise be imposed but for the Transfer of an Ownership Interest in a Residual
Certificate to such Person. The terms "United States", "State" and
"international organization" shall have the meanings set forth in Section 7701
of the Code or successor provisions.
-8-
A "Non-United States Person" is any Person other than a United States
Person. A "United States Person" is a citizen or resident of the United States,
a corporation, partnership or other entity created or organized in, or under the
laws of, the United States or any political subdivision thereof, or an estate or
trust whose income from sources without the United States is includible in gross
income for United States federal income tax purposes regardless of its
connection with the conduct of a trade or business within the United States.
As provided in the Agreement and subject to certain limitations therein set
forth, the transfer of this Certificate is registrable in the Certificate
Register upon surrender of this Certificate for registration of transfer at the
offices of the Certificate Registrar, duly endorsed by, or accompanied by a
written instrument of transfer in the form satisfactory to the Certificate
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Class R-III Certificates in authorized
denominations evidencing the same aggregate Percentage Interest will be issued
to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer or
exchange of Class R-III Certificates, but the Trustee or the Certificate
Registrar may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any transfer or
exchange of Class R-III Certificates.
The Depositor, the Master Servicer, the Special Servicer, the Trustee, the
REMIC Administrator, the Certificate Registrar and any agent of the Depositor,
the Master Servicer, the Special Servicer, the Trustee, the REMIC Administrator
or the Certificate Registrar may treat the Person in whose name this Certificate
is registered as the owner hereof for all purposes, and none of the Depositor,
the Master Servicer, the Special Servicer, the Trustee, the REMIC Administrator,
the Certificate Registrar or any such agent shall be affected by notice to the
contrary.
The Trust Fund and the obligations created by the Agreement shall terminate
upon distribution (or provision for distribution) to the Certificateholders of
all amounts held by or on behalf of the Trustee and required to be distributed
to them pursuant to the Agreement following the earlier of (i) the final payment
or other liquidation (or any advance with respect thereto) of the last Mortgage
Loan or REO Property remaining in the Trust Fund, and (ii) the purchase by the
Special Servicer, the Master Servicer or the Majority Certificateholder of the
Controlling Class at a price determined as provided in the Agreement of all the
Mortgage Loans and each REO Property remaining in the Trust Fund. The Agreement
permits, but does not
-9-
require, the Special Servicer, the Master Servicer or the Majority
Certificateholder of the Controlling Class to purchase from the Trust Fund all
the Mortgage Loans and each REO Property remaining therein. The exercise of such
right will effect early retirement of the Class R-III Certificates; however,
such right to purchase is subject to the aggregate Stated Principal Balance of
the Mortgage Pool at the time of purchase being less than __% of the aggregate
Stated Principal Balance of the Mortgage Loans as of the Closing Date specified
on the face hereof.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the REMIC Administrator
and the Trustee and the rights of the Certificateholders under the Agreement at
any time by the Depositor, the Master Servicer, the Special Servicer, the REMIC
Administrator and the Trustee with the consent of the Holders of Certificates
entitled to at least [66 2/3]% of the Voting Rights allocated to the affected
Classes. Any such consent by the Holder of this Certificate shall be conclusive
and binding on such Holder and upon all future Holders of this Certificate and
of any Certificate issued upon the transfer hereof or in exchange herefor or in
lieu hereof whether or not notation of such consent is made upon this
Certificate. The Agreement also permits the amendment thereof, in certain
limited circumstances, including any amendment necessary to maintain the status
of REMIC I, REMIC II or REMIC III as a REMIC, without the consent of the Holders
of any of the Certificates.
Unless the certificate of authentication hereon has been executed by the
Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that it will
look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal laws of
the State of New York applicable to agreements made and to be performed in said
State, and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
______________________________
as Trustee
By:
____________________________
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class R-III Certificates referred to in the
within-mentioned Agreement.
Dated:
_______________________________
as Certificate Registrar
By:
___________________________
Authorized Officer
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
Mortgage Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to assignee on the Certificate Register of the Trust
Fund.
I (we) further direct the Certificate Registrar to issue a new Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and deliver such Mortgage Pass-Through Certificate to the
following address:
Dated:
_____________________________________
Signature by or on behalf of Assignor
_____________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of distribution:
Distributions shall be by check made payable to __________________________
__________________________________ and mailed to
________________________________________________________________________________
___.
Applicable statements and notices should be mailed to_____________________
_______________________________________________________________________________
____________________________________.
This information is provided by ___________________________, the
Assignee named above, or ____________________________________, as its agent.
EXHIBIT B-1
MORTGAGE LOAN SCHEDULE
EXHIBIT B-2
SCHEDULE OF EXCEPTIONS TO
MORTGAGE FILE DELIVERY
EXHIBIT C
LETTER OF REPRESENTATIONS
EXHIBIT D-1
FORM OF MASTER SERVICER REQUEST FOR RELEASE
[Date]
__________________________
__________________________
__________________________
Attention: _______________________________________
Re: DLJ Commercial Mortgage Corp. Series 199_-___
In connection with the administration of the Mortgage Files held by or on
behalf of you as trustee under a certain Pooling and Servicing Agreement, dated
as of__________, 199_ (the "Pooling and Servicing Agreement"), among DLJ
Commercial Mortgage Corp. as depositor, the undersigned as master servicer,
______________________________________________ as special servicer, and you as
trustee (in such capacity, the "Trustee") and REMIC administrator, the
undersigned hereby requests a release of the Mortgage File (or the portion
thereof specified below) held by or on behalf of you as Trustee with respect to
the following described Mortgage Loan for the reason indicated below.
Mortgagor's Name:
Address:
Loan No.:
If only particular documents in the Mortgage File are requested, please specify
which:
Reason for requesting file (or portion thereof):
______ 1. Mortgage Loan paid in full.
The undersigned hereby certifies that all amounts received in
connection with the Mortgage Loan that are required to be
credited to the Collection Account pursuant to the Pooling and
Servicing Agreement, have been or will be so credited.
______ 2. Other. (Describe)
The undersigned acknowledges that the above Mortgage File (or requested
portion thereof) will be held by the undersigned in accordance with the
provisions of the Pooling and Servicing Agreement and will be returned to you or
your designee within ten (10) days of our receipt thereof, unless the Mortgage
-2-
Loan has been paid in full, in which case the Mortgage File (or such portion
thereof) will be retained by us permanently.
-3-
Capitalized terms used but not defined herein shall have the meanings
ascribed to them in the Pooling and Servicing Agreement.
------------------------
as Master Servicer
By:
Name:
Title:
EXHIBIT D-2
FORM OF SPECIAL SERVICER REQUEST FOR RELEASE
[Date]
_________________________
_________________________
_________________________
Attention: _______________________________
Re: DLJ Commercial Mortgage Corp., Series 199_-___
In connection with the administration of the Mortgage Files held by or on
behalf of you as trustee under a certain Pooling and Servicing Agreement, dated
as of ____________, 199_ (the "Pooling and Servicing Agreement"), among DLJ
Commercial Mortgage Corp. as depositor, ____________________
____________________ as master servicer, the undersigned as special servicer,
and you as trustee (in such capacity, the "Trustee") and REMIC administrator,
the undersigned hereby requests a release of the Mortgage File (or the portion
thereof specified below) held by or on behalf of you as Trustee with respect to
the following described Mortgage Loan for the reason indicated below.
Mortgagor's Name:
Address:
Loan No.:
If only particular documents in the Mortgage File are requested, please specify
which:
Reason for requesting file (or portion thereof):
______ 1. The Mortgage Loan is being foreclosed.
______ 2. Other. (Describe)
The undersigned acknowledges that the above Mortgage File (or requested
portion thereof) will be held by the undersigned in accordance with the
provisions of the Pooling and Servicing Agreement and will be returned to you or
your designee within ten (10) days of our receipt thereof, unless the Mortgage
Loan is being foreclosed, in which case the Mortgage File (or such portion
thereof) will be returned when no longer required by us for such purpose.
-2-
Capitalized terms used but not defined herein shall have the meanings
ascribed to them in the Pooling and Servicing Agreement.
--------------------------
as Special Servicer
By:
Name:
Title:
EXHIBIT E-1
FORM OF TRUSTEE REPORT
EXHIBIT E-2
FORM OF DETERMINATION DATE REPORT
Issue Identifier
Loan Number
Note Rate %
Scheduled P & I Payment
Scheduled Interest Amount
Scheduled Principal Amount
Curtailment Amount
Curtailment Adjustment
Curtailment Date (YYYYMMDD)
Payoff Amount
Payoff Date (YYYYMMDD)
Payoff Code
Ending Scheduled Balance
Paid Through Date (YYYYMMDD)
Loan Status Code
Recovered Delinquency Amount
Debt Service Coverage Ratio (DSCR)
Filler
EXHIBIT E-3
FORM OF SPECIAL SERVICER REPORT
Loan Number
Property Name
Property Type
Property Address
MSA
Past Due Status
Paid-To Date
Date of Last Financial Statement
Date of Last Inspection Report
Current NOI
Number of Months of Revenue Annualized
Current Occupancy
Original Loan Balance*
Current Principal Balance
Scheduled Monthly P&I
Gross Coupon
Appraised Value at Origination and Date of Appraisal*
Current Appraised Value and Date of Appraisal
Debt Service Coverage at Origination*
Occupancy at Origination*
Current Debt Service Coverage
Modified Since Origination (Y/N)*
Comments that the Special Servicer has regarding loan status and certain factual
matters regarding servicing including modifications, foreclosures and notices
* Special Servicer's information with respect to these items is based solely
upon information, if any, in files delivered to the Special Servicer.
EXHIBIT E-4
FORM OF OPERATING STATEMENT ANALYSIS
EXHIBIT F-1A
FORM I OF TRANSFEROR CERTIFICATE
FOR TRANSFERS OF PRIVATE CERTIFICATES
[Date]
__________________________ as Certificate Registrar
__________________________
__________________________
Attention: _______________________________________
Re: DLJ Commercial Mortgage Corp. Commercial Mortgage Pass-Through
Certificates, Series 199_-___ (the "Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
_________________ (the "Transferor") to _________________ (the "Transferee") of
Class ______ Certificates [having an initial aggregate Certificate Principal
Balance as of ____________, 199_ (the "Closing Date") of $__________]
[evidencing a ____% Percentage Interest in the related Class] (the "Transferred
Certificates"). The Certificates, including the Transferred Certificates, were
issued pursuant to the Pooling and Servicing Agreement, dated as of
_____________, 199_ the "Pooling and Servicing Agreement"), among DLJ Commercial
Mortgage Corp. as depositor, _____________ _______________________ as master
servicer, _________________ ______________________ as special servicer, and
_______________ _______________ as trustee and REMIC administrator. All
capitalized terms used but not otherwise defined herein shall have the
respective meanings set forth in the Pooling and Servicing Agreement. The
Transferor hereby certifies, represents and warrants to you as Certificate
Registrar, that:
1. The Transferor is the lawful owner of the Transferred Certificates
with the full right to transfer such Certificates free from any and all
claims and encumbrances whatsoever.
2. Neither the Transferor nor anyone acting on its behalf has (a)
offered, transferred, pledged, sold or otherwise disposed of any Private
Certificate, any interest in any Private Certificate or any other similar
security to any person in any manner, (b) solicited any offer to buy or
accept a transfer, pledge or other disposition of any Private Certificate,
any interest in any Private Certificate or any other similar security from
any person in any manner, (c) otherwise approached or negotiated with
respect to any Private Certificate, any interest in any Private Certificate
or any other similar security with any person in any manner, (d) made any
general solicitation by means of general
-2-
advertising or in any other manner, or (e) taken any other action, which
(in the case of any of the acts described in clauses (a) through (e)
hereof) would constitute a distribution of any Transferred Certificate
under the Securities Act of 1933, as amended (the "Securities Act"), or
would render the disposition of any Transferred Certificate a violation of
Section 5 of the Securities Act or any state securities laws, or would
require registration or qualification of any Transferred Certificate
pursuant to the Securities Act or any state securities laws.
3. The Transferor and any person acting on behalf of the Transferor in
this matter reasonably believe that the Transferee is a "qualified
institutional buyer" as that term is defined in Rule 144A ("Rule 144A")
under the Securities Act (a "Qualified Institutional Buyer") purchasing for
its own account or for the account of a Qualified Institutional Buyer. In
determining whether the Transferee is a Qualified Institutional Buyer, the
Transferor and any person acting on behalf of the Transferor in this matter
have relied upon the following method(s) of establishing the Transferee's
ownership and discretionary investments of securities (check one or more):
___ (a) The Transferee's most recent publicly available financial
statements, which statements present the information as of a date
within 16 months preceding the date of sale of the Transferred
Certificate in the case of a U.S. purchaser and within 18 months
preceding such date of sale for a foreign purchaser; or
___ (b) The most recent publicly available information appearing in
documents filed by the Transferee with the Securities and Exchange
Commission or another United States federal, state, or local
governmental agency or self-regulatory organization, or with a foreign
governmental agency or self-regulatory organization, which information
is as of a date within 16 months preceding the date of sale of the
Transferred Certificate in the case of a U.S. purchaser and within 18
months preceding such date of sale for a foreign purchaser; or
___ (c) The most recent publicly available information appearing in a
recognized securities manual, which information is as of a date within
16 months preceding the date of sale of the Transferred Certificate in
the case of a U.S. purchaser and within 18 months preceding such date
of sale for a foreign purchaser; or
-3-
___ (d) A certification by the chief financial officer, a person
fulfilling an equivalent function, or other executive officer of the
Transferee, specifying the amount of securities owned and invested on
a discretionary basis by the Transferee as of a specific date on or
since the close of the Transferee's most recent fiscal year, or, in
the case of a Transferee that is a member of a "family of investment
companies", as that term is defined in Rule 144A, a certification by
an executive officer of the investment adviser specifying the amount
of securities owned by the "family of investment companies" as of a
specific date on or since the close of the Transferee's most recent
fiscal year.
4. The Transferor and any person acting on behalf of the Transferor
understand that in determining the aggregate amount of securities owned and
invested on a discretionary basis by an entity for purposes of establishing
whether such entity is a Qualified Institutional Buyer:
(a) the following instruments and interests shall be excluded:
securities of issuers that are affiliated with the Transferee;
securities that are part of an unsold allotment to or subscription by
the Transferee, if the Transferee is a dealer; securities of issuers
that are part of the Transferee's "family of investment companies", if
the Transferee is a registered investment company; bank deposit notes
and certificates of deposit; loan participations; repurchase
agreements; securities owned but subject to a repurchase agreement;
and currency, interest rate and commodity swaps;
(b) the aggregate value of the securities shall be the cost of such
securities, except where the entity reports its securities holdings in
its financial statements on the basis of their market value, and no
current information with respect to the cost of those securities has
been published, in which case the securities may be valued at market;
(c) securities owned by subsidiaries of the entity that are
consolidated with the entity in its financial statements prepared in
accordance with generally accepted accounting principles may be
included if the investments of such subsidiaries are managed under the
direction of the entity, except that, unless the entity is a
-4-
reporting company under Section 13 or 15(d) of the Securities Exchange
Act of 1934, as amended, securities owned by such subsidiaries may not
be included if the entity itself is a majority-owned subsidiary that
would be included in the consolidated financial statements of another
enterprise.
5. The Transferor or a person acting on its behalf has taken
reasonable steps to ensure that the Transferee is aware that the Transferor
is relying on the exemption from the provisions of Section 5 of the
Securities Act provided by Rule 144A.
6. The Transferor or a person acting on its behalf has furnished, or
caused to be furnished, to the Transferee all information regarding (a) the
Transferred Certificates and distributions thereon, (b) the nature,
performance and servicing of the Mortgage Loans, (c) the Pooling and
Servicing Agreement and (d) any credit enhancement mechanism associated
with the Transferred Certificates, that the Transferee has requested.
Very truly yours,
_______________________________
(Transferor)
By:
____________________________
Name:
Title:
EXHIBIT F-1B
FORM II OF TRANSFEROR CERTIFICATE
FOR TRANSFERS OF PRIVATE CERTIFICATES
[Date]
_______________________ as Certificate Registrar
_______________________
_______________________
Attention: _____________________________________
Re: DLJ Commercial Mortgage Corp. Commercial Mortgage Pass-Through
Certificates, Series 199_-___ (the "Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
_________________ (the "Transferor") to _________________ (the "Transferee") of
Class ______ Certificates [having an initial aggregate Certificate Principal
Balance as of ____________, 199_ (the "Closing Date") of $__________]
[evidencing a ____% Percentage Interest in the related Class] (the "Transferred
Certificates"). The Certificates, including the Transferred Certificates, were
issued pursuant to the Pooling and Servicing Agreement, dated as of
_______________, 199_ (the "Pooling and Servicing Agreement"), among DLJ
Commercial Mortgage Corp. as depositor, _________ __________________________ as
master servicer, _________________ ________________ as special servicer, and
______________________ ___________ as trustee and REMIC administrator. All
capitalized terms used but not otherwise defined herein shall have the
respective meanings set forth in the Pooling and Servicing Agreement. The
Transferor hereby certifies, represents and warrants to you as Certificate
Registrar, that:
1. The Transferor is the lawful owner of the Transferred Certificates
with the full right to transfer such Certificates free from any and all
claims and encumbrances whatsoever.
2. Neither the Transferor nor anyone acting on its behalf has (a)
offered, transferred, pledged, sold or otherwise disposed of any Private
Certificate, any interest in any Private Certificate or any other similar
security to any person in any manner, (b) solicited any offer to buy or
accept a transfer, pledge or other disposition of any Private Certificate,
any interest in any Private Certificate or any other similar security from
any person in any manner, (c) otherwise approached or negotiated with
respect to any Private Certificate, any interest in any Private Certificate
or any other similar security with any person in any manner, (d) made any
general solicitation by means of general
-2-
advertising or in any other manner, or (e) taken any other action, which
(in the case of any of the acts described in clauses (a) through (e)
hereof) would constitute a distribution of any Transferred Certificate
under the Securities Act of 1933, as amended (the "Securities Act"), or
would render the disposition of any Transferred Certificate a violation of
Section 5 of the Securities Act or any state securities laws, or would
require registration or qualification of any Transferred Certificate
pursuant to the Securities Act or any state securities laws.
Very truly yours,
_______________________________
(Transferor)
By:
____________________________
Name:
Title:
EXHIBIT F-2A
FORM I OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF PRIVATE CERTIFICATES
[Date]
__________________________ as Certificate Registrar
__________________________
__________________________
Attention: _______________________________________
Re: DLJ Commercial Mortgage Corp., Commercial Mortgage Pass-Through
Certificates, Series 199_-___ (the "Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
_________________ (the "Transferor") to _________________ (the "Transferee") of
Class ______ Certificates [having an initial aggregate Certificate Principal
Balance as of __________, 199_ (the "Closing Date") of $__________] [evidencing
a ____% Percentage Interest in the related Class] (the "Transferred
Certificates"). The Certificates, including the Transferred Certificates, were
issued pursuant to the Pooling and Servicing Agreement, dated as of ____________
199_ (the "Pooling and Servicing Agreement"), among DLJ Commercial Mortgage
Corp. as depositor, ____________________________ as master servicer,
________________________ as special servicer, and ____________________________
as trustee and REMIC administrator. All capitalized terms used but not otherwise
defined herein shall have the respective meanings set forth in the Pooling and
Servicing Agreement. The Transferee hereby certifies, represents and warrants to
you as Certificate Registrar, that:
1. The Transferee is a "qualified institutional buyer" (a "Qualified
Institutional Buyer") as that term is defined in Rule 144A ("Rule 144A")
under the Securities Act of 1933, as amended (the "Securities Act") and has
completed one of the forms of certification to that effect attached hereto
as Annex 1 and Annex 2. The Transferee is aware that the sale to it of the
Transferred Certificates is being made in reliance on Rule 144A. The
Transferee is acquiring the Transferred Certificates for its own account or
for the account of a Qualified Institutional Buyer, and understands that
such Transferred Certificates may be resold, pledged or transferred only
(i) to a person reasonably believed to be a Qualified Institutional Buyer
that purchases for its own account or for the account of a Qualified
Institutional Buyer to whom notice is given that the resale, pledge or
transfer is being made in reliance on Rule 144A, or (ii) pursuant to
another exemption from registration under the Securities Act.
-2-
2. The Transferee has been furnished with all information regarding
(a) the Transferred Certificates and distributions thereon, (b) the nature,
performance and servicing of the Mortgage Loans, (c) the Pooling and
Servicing Agreement, and (d) any credit enhancement mechanism associated
with the Transferred Certificates, that it has requested.
Very truly yours,
_______________________________
(Transferee)
By:
____________________________
Name:
Title:
ANNEX 1 TO EXHIBIT F-2A
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[for Transferees other than Registered Investment Companies]
The undersigned hereby certifies as follows to [name of Transferor] (the
"Transferor") and _________________________ as Certificate Registrar, with
respect to the mortgage pass-through certificates being transferred (the
"Transferred Certificates") as described in the Transferee Certificate to which
this certification relates and to which this certification is an Annex:
1. As indicated below, the undersigned is the chief financial officer,
a person fulfilling an equivalent function, or other executive officer of
the entity purchasing the Transferred Certificates (the "Transferee").
2. The Transferee is a "qualified institutional buyer" as that term is
defined in Rule 144A under the Securities Act of 1933, as amended ("Rule
144A") because (i) the Transferee owned and/or invested on a discretionary
basis $______________________ (1) in securities (other than the excluded
securities referred to below) as of the end of the Transferee's most recent
fiscal year (such amount being calculated in accordance with Rule 144A) and
(ii) the Transferee satisfies the criteria in the category marked below.
___ Corporation, etc. The Transferee is a corporation (other than a bank,
savings and loan association or similar institution), Massachusetts or
similar business trust, partnership, or any organization described in
Section 501(c)(3) of the Internal Revenue Code of 1986.
___ Bank. The Transferee (a) is a national bank or a banking institution
organized under the laws of any State, U.S. territory or the District
of Columbia, the business of which is substantially confined to
banking and is supervised by the State or territorial banking
commission or similar official or is a foreign bank or equivalent
institution, and (b) has an audited net worth of at least $25,000,000
as demonstrated in its latest annual financial statements, a copy of
which is attached hereto, as of a date not more than 16 months
preceding the date of sale of the Certificate in the case of a U.S.
bank, and not more than 18 months preceding such date of sale for a
foreign bank or equivalent institution.
___ 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.
-2-
___ 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.
___ Broker-dealer. The Transferee is a dealer registered pursuant to
Section 15 of the Securities Exchange Act of 1934, as amended.
___ Insurance Company. The Transferee is an insurance company whose
primary and predominant business activity is the writing of insurance
or the reinsuring of risks underwritten by insurance companies and
which is subject to supervision by the insurance commissioner or a
similar official or agency of a State, U.S. territory or the District
of Columbia.
___ State or Local Plan. The Transferee is a plan established and
maintained by a State, its political subdivisions, or any agency or
instrumentality of the State or its political subdivisions, for the
benefit of its employees.
___ ERISA Plan. The Transferee is an employee benefit plan within the
meaning of Title I of the Employee Retirement Income Security Act of
1974.
___ Investment Advisor. The Transferee is an investment advisor registered
under the Investment Advisers Act of 1940, as amended.
___ Other. (Please supply a brief description of the entity and a
cross-reference to the paragraph and subparagraph under subsection
(a)(1) of Rule 144A pursuant to which it qualifies. Note that
registered investment companies should complete Annex 2 rather than
this Annex 1.)_______________________________________________________
_____________________________________________________________________
_____________________________________________________________________
_____________________________________________________________________
3. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Transferee, (ii)
securities that are part of an unsold allotment to
-3-
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, as
amended.
5. The Transferee acknowledges that it is familiar with Rule 144A and
understands that the Transferor and other parties related to the
Transferred Certificates are relying and will continue to rely on the
statements made herein because one or more sales to the Transferee may be
in reliance on Rule 144A.
Yes No Will the Transferee be purchasing the Transferred
Certificates only for the Transferee's own account?
6. If the answer to the foregoing question is "no", then in each case
where the Transferee is purchasing for an account other than its own, such
account belongs to a third party that is itself a "qualified institutional
buyer" within the meaning of Rule 144A, and the "qualified institutional
buyer" status of such third party has been established by the Transferee
through one or more of the appropriate methods contemplated by Rule 144A.
-4-
7. The Transferee will notify each of the parties to which this
certification is made of any changes in the information and conclusions
herein. Until such notice is given, the Transferee's purchase of the
Transferred Certificates will constitute a reaffirmation of this
certification as of the date of such purchase. In addition, if the
Transferee is a bank or savings and loan as provided above, the Transferee
agrees that it will furnish to such parties any updated annual financial
statements that become available on or before the date of such purchase,
promptly after they become available.
-------------------------------
Print Name of Transferee
By:
----------------------------
Name:
Title:
Date:
ANNEX 2 TO EXHIBIT F-2A
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[for Transferees that are Registered Investment Companies]
The undersigned hereby certifies as follows to [name of Transferor] (the
"Transferor") and [name of Certificate Registrar] as Certificate Registrar, with
respect to the mortgage pass-through certificate being transferred (the
"Transferred Certificates") as described in the Transferee Certificate to which
this certification relates and to which this certification is an Annex:
1. As indicated below, the undersigned is the chief financial officer,
a person fulfilling an equivalent function, or other executive officer of
the entity purchasing the Transferred Certificates (the "Transferee") or,
if the Transferee is a "qualified institutional buyer" as that term is
defined in Rule 144A under the Securities Act of 1933, as amended ("Rule
144A") because the Transferee is part of a Family of Investment Companies
(as defined below), is an executive officer of the investment adviser (the
"Adviser").
2. The Transferee is a "qualified institutional buyer" as defined in
Rule 144A because (i) the Transferee is an investment company registered
under the Investment Company Act of 1940, as amended, and (ii) as marked
below, the Transferee alone owned and/or invested on a discretionary basis,
or the Transferee's Family of Investment Companies owned, at least
$100,000,000 in securities (other than the excluded securities referred to
below) as of the end of the Transferee's most recent fiscal year. For
purposes of determining the amount of securities owned by the Transferee or
the Transferee's Family of Investment Companies, the cost of such
securities was used, unless the Transferee or any member of the
Transferee's Family of Investment Companies, as the case may be, reports
its securities holdings in its financial statements on the basis of their
market value, and no current information with respect to the cost of those
securities has been published, in which case the securities of such entity
were valued at market.
____ The Transferee owned and/or invested on a discretionary basis
$___________________ in securities (other than the excluded securities
referred to below) as of the end of the Transferee's most recent
fiscal year (such amount being calculated in accordance with Rule
144A).
____ The Transferee is part of a Family of Investment Companies which owned
in the aggregate $______________ in securities (other than the
excluded securities referred to below) as of the end of the
Transferee's most recent
-2-
fiscal year (such amount being calculated in accordance with Rule
144A).
3. The term "Family of Investment Companies" as used herein means two
or more registered investment companies (or series thereof) that have the
same investment adviser or investment advisers that are affiliated (by
virtue of being majority owned subsidiaries of the same parent or because
one investment adviser is a majority owned subsidiary of the other).
4. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Transferee or are part
of the Transferee's Family of Investment Companies, (ii) bank deposit notes
and certificates of deposit, (iii) loan participations, (iv) repurchase
agreements, (v) securities owned but subject to a repurchase agreement and
(vi) currency, interest rate and commodity swaps. For purposes of
determining the aggregate amount of securities owned and/or invested on a
discretionary basis by the Transferee, or owned by the Transferee's Family
of Investment Companies, the securities referred to in this paragraph were
excluded.
5. The Transferee is familiar with Rule 144A and understands that the
parties to which this certification is being made are relying and will
continue to rely on the statements made herein because one or more sales to
the Transferee will be in reliance on Rule 144A.
Yes No Will the Transferee be purchasing the Transferred
Certificates only for the Transferee's own account?
6. If the answer to the foregoing question is "no", then in each case
where the Transferee is purchasing for an account other than its own, such
account belongs to a third party that is itself a "qualified institutional
buyer" within the meaning of Rule 144A, and the "qualified institutional
buyer" status of such third party has been established by the Transferee
through one or more of the appropriate methods contemplated by Rule 144A.
-3-
7. The undersigned will notify the parties to which this certification
is made of any changes in the information and conclusions herein. Until
such notice, the Transferee's purchase of the Transferred Certificates will
constitute a reaffirmation of this certification by the undersigned as of
the date of such purchase.
------------------------------
Print Name of Transferee or
Adviser
By:
---------------------------
Name:
Title:
IF AN ADVISER:
------------------------------
Print Name of Transferee
Date:
-------------------------
EXHIBIT F-2B
FORM II OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF PRIVATE CERTIFICATES
[Date]
________________________ as Certificate Registrar
________________________
________________________
Attention: _____________________________________
Re: DLJ Commercial Mortgage Corp., Commercial Mortgage Pass-Through
Certificates, Series 199 - (the "Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
_______________________ (the "Transferor") to _______________________________
(the "Transferee") of Class ___ Certificates [having an initial aggregate
Certificate Principal Balance as of ____________, 199_ (the "Closing Date") of
$__________] [evidencing a ___% Percentage Interest in the related Class] (the
"Transferred Certificates"). The Certificates, including the Transferred
Certificates, were issued pursuant to the Pooling and Servicing Agreement, dated
as of _____________, 199_ (the "Pooling and Servicing Agreement"), among DLJ
Commercial Mortgage Corp. as depositor (the "Depositor"),_____________________
________________________________ as master servicer, _____________
_________________ as special servicer, and ________________________ as trustee
(in such capacity, the "Trustee") and REMIC administrator. All capitalized terms
used but not otherwise defined herein shall have the respective meanings set
forth in the Pooling and Servicing Agreement. The Transferee hereby certifies,
represents and warrants to you as Certificate Registrar, that:
1. The Transferee is acquiring the Transferred Certificates for its
own account for investment and not with a view to or for sale or transfer
in connection with any distribution thereof, in whole or in part, in any
manner which would violate the Securities Act of 1933, as amended (the
"Securities Act"), or any applicable state securities laws.
2. The Transferee understands that (a) the Class of Certificates to
which the Transferred Certificates belong has not been and will not be
registered under the Securities Act or registered or qualified under any
applicable state securities laws, (b) none of the Depositor, the Trustee or
the Certificate Registrar is obligated so to register or qualify the Class
of Certificates to which the Transferred Certificates belong, and (c) no
Transferred Certificate may be resold or transferred unless it is (i)
registered pursuant to the Securities Act and registered or
-2-
qualified pursuant any applicable state securities laws or (ii) sold or
transferred in transactions which are exempt from such registration and
qualification and the Certificate Registrar has received either: (A) a
certificate from the Certificateholder desiring to effect such transfer
substantially in the form attached as Exhibit F-1A to the Pooling and
Servicing Agreement; (B) a certificate from such Certificateholder
substantially in the form attached as Exhibit F-1B to the Pooling and
Servicing Agreement and a certificate from such Certificateholder's
prospective transferee substantially in the form attached either as Exhibit
F-2A or as Exhibit F-2B to the Pooling and Servicing Agreement; or (C) an
opinion of counsel satisfactory to the Trustee with respect to the
availability of such exemption from registration under the Securities Act,
together with copies of the written certification(s) from the transferor
and/or transferee setting forth the facts surrounding the transfer upon
which such opinion is based.
3. The Transferee understands that it may not sell or otherwise
transfer any Transferred Certificate except in compliance with the
provisions of Section 5.02 of the Pooling and Servicing Agreement, which
provisions it has carefully reviewed, and that each Transferred Certificate
will bear the following legends:
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE
SECURITIES LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER
DISPOSITION OF THIS CERTIFICATE OR ANY INTEREST HEREIN WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH
DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE (A)
TO AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT THAT IS
SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED ("ERISA"), OR THE INTERNAL REVENUE CODE OF 1986 (THE "CODE"),
OR (B) TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS
CERTIFICATE OR SUCH INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY
OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH EMPLOYEE BENEFIT PLAN OR
OTHER RETIREMENT ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE PROVISIONS
OF SECTION 5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
4. Neither the Transferee nor anyone acting on its behalf has (a)
offered, pledged, sold, disposed of or otherwise transferred any
Certificate, any interest in any Certificate or any
-3-
other similar security to any person in any manner, (b) solicited any offer
to buy or accept a pledge, disposition or other transfer of any
Certificate, any interest in any Certificate or any other similar security
from any person in any manner, (c) otherwise approached or negotiated with
respect to any Certificate, any interest in any Certificate or any other
similar security with any person in any manner, (d) made any general
solicitation with respect to any Certificate, any interest in any
Certificate or any other similar security by means of general advertising
or in any other manner, or (e) taken any other action with respect to any
Certificate, any interest in any Certificate or any other similar security,
which (in the case of any of the acts described in clauses (a) through (e)
above) would constitute a distribution of the Transferred Certificates
under the Securities Act, would render the disposition of the Transferred
Certificates a violation of Section 5 of the Securities Act or any state
securities law or would require registration or qualification of the
Transferred Certificates pursuant thereto. The Transferee will not act, nor
has it authorized or will it authorize any person to act, in any manner set
forth in the foregoing sentence with respect to any Certificate, any
interest in any Certificate or any other similar security.
5. The Transferee has been furnished with all information regarding
(a) the Depositor, (b) the Transferred Certificates and distributions
thereon, (c) the Pooling and Servicing Agreement and the Trust Fund created
pursuant thereto, (d) the nature, performance and servicing of the Mortgage
Loans, and (e) all related matters, that it has requested.
6. The Transferee is an "accredited investor" as defined in any of
paragraphs (1), (2), (3) and (7) of Rule 501(a) under the Securities Act or
an entity in which all of the equity owners come within such paragraphs.
The Transferee has such knowledge and experience in financial and business
matters as to be capable of evaluating the merits and risks of an
investment in the Transferred Certificates; the Transferee has sought such
accounting, legal and tax advice as it has considered necessary to make an
informed investment decision; and the Transferee is able to bear the
economic risks of such investment and can afford a complete loss of such
investment.
Very truly yours,
------------------------------
(Transferee)
By:
---------------------------
Name:
Title:
EXHIBIT G-1
FORM OF TRANSFEREE CERTIFICATE
IN CONNECTION WITH ERISA (DEFINITIVE CERTIFICATES)
[Date]
____________________________ as Certificate Registrar
____________________________
____________________________
Attention: __________________________________________
Re: DLJ Commercial Mortgage Corp. Commercial Mortgage Pass-Through
Certificates, Series 199_-___ (the "Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
_________________ (the "Transferor") to _________________ (the "Transferee") of
Class ______ Certificates [having an initial aggregate Certificate Principal
Balance as of_______, 199_ (the "Closing Date") of $__________] [evidencing a
____% Percentage Interest in the related Class] (the "Transferred
Certificates"). The Certificates, including the Transferred Certificates, were
issued pursuant to the Pooling and Servicing Agreement (the "Pooling and
Servicing Agreement"), dated as of ______________, 199_, among DLJ Commercial
Mortgage Corp. as depositor, ___________________________________________ as
master servicer, ___________________________________________ as special servicer
and ___________________________________________ as trustee and REMIC
administrator. All capitalized terms used but not otherwise defined herein shall
have the respective meanings set forth in the Pooling and Servicing Agreement.
The Transferee hereby certifies, represents and warrants to you as Certificate
Registrar, as follows (check the applicable paragraph):
___ The Transferee is neither (A) an employee benefit plan or other
retirement arrangement, including an individual retirement account or
annuity, a Xxxxx plan or a collective investment fund or separate
account in which such plans, accounts or arrangements are invested,
including, without limitation, an insurance company general account,
that is subject to ERISA or the Code (each, a "Plan"), nor (B) a
Person who is directly or indirectly purchasing the Transferred
Certificates on behalf of, as named fiduciary of, as trustee of, or
with assets of a Plan;
___ The Transferee is using funds from an insurance company general
account to acquire the Transferred Certificates, however, the purchase
and holding of such Certificates by such Person is exempt from the
prohibited transaction provisions of Section 406 of ERISA and Section
4975 of the Code under
-1-
Sections I and III of Prohibited Transaction Class Exemption 95-60.
Very truly yours,
-----------------------------
(Transferee)
By:
--------------------------
Name:
Title:
EXHIBIT G-2
FORM OF TRANSFEREE CERTIFICATE
IN CONNECTION WITH ERISA (BOOK-ENTRY CERTIFICATES)
[Date]
[TRANSFEROR]
Re: DLJ Commercial Mortgage Corp., Commercial Mortgage Pass-Through
Certificates, Series 199_-___ (the "Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
______________________ (the "Transferor") to _________________ (the
"Transferee") through our respective DTC Participants of the Transferor's
beneficial ownership interest (currently maintained on the books and records of
The Depository Trust Corporation ("DTC") and the Depository Participants) in
Class ___ Certificates [having an initial aggregate Certificate Principal
Balance as of __________, 199_ (the "Closing Date") of $__________] [evidencing
a ____% Percentage Interest in the related Class] (the "Transferred
Certificates"). The Certificates, including the Transferred Certificates, were
issued pursuant to the Pooling and Servicing Agreement, dated as of ___________,
199_ (the "Pooling and Servicing Agreement"), among DLJ Commercial Mortgage
Corp. as depositor, _______________ ___________________as master servicer,
____________________________ as special servicer and ___________________________
as trustee (in such capacity, the "Trustee") and REMIC administrator. All
capitalized terms used but not otherwise defined herein shall have the
respective meanings set forth in the Pooling and Servicing Agreement. The
Transferee hereby certifies, represents and warrants to you as follows (check
the applicable paragraph):
___ The Transferee is neither (A) an employee benefit plan or other
retirement arrangement, including an individual retirement account or
annuity, a Xxxxx plan or a collective investment fund or separate
account in which such plans, accounts or arrangements are invested,
including, without limitation, an insurance company general account,
that is subject to ERISA or the Code (each, a "Plan"), nor (B) a
Person who is directly or indirectly purchasing an interest in the
Transferred Certificates on behalf of, as named fiduciary of, as
trustee of, or with assets of a Plan;
___ The Transferee is using funds from an insurance company general
account to acquire an interest in the Transferred Certificates,
however, the purchase and holding of such interest by such Person is
exempt from the prohibited transaction provisions of Section 406 of
ERISA and Section
-1-
4975 of the Code under Sections I and III of Prohibited Transaction
Class Exemption 95-60.
Very truly yours,
----------------------------
(Transferee)
By:
--------------------------
Name:
Title:
EXHIBIT H-1
FORM OF TRANSFER AFFIDAVIT AND AGREEMENT
FOR TRANSFERS OF RESIDUAL CERTIFICATES
STATE OF )
) ss:
COUNTY OF )
____________________, being first duly sworn, deposes and says that:
1. He/She is the ____________________ of ____________________ (the
prospective transferee (the "Transferee") of DLJ Commercial Mortgage Corp.,
Commercial Mortgage Pass-Through Certificates, Series 199_-___, Class [R-I]
[R-II] [R-III], evidencing a ____% Percentage Interest in such Class (the
"Residual Certificates")), a ________________________ duly organized and validly
existing under the laws of ____________________, on behalf of which he/she makes
this affidavit. All capitalized terms used but not otherwise defined herein
shall have the respective meanings set forth in the Pooling and Servicing
Agreement pursuant to which the Residual Certificates were issued (the "Pooling
and Servicing Agreement").
2. The Transferee (i) is, and as of the date of transfer will be, a
"Permitted Transferee" and will endeavor to remain a "Permitted Transferee" for
so long as it holds the Residual Certificates, and (ii) is acquiring the
Residual Certificates for its own account or for the account of another
prospective transferee from which it has received an affidavit in substantially
the same form as this affidavit. A "Permitted Transferee" is any Person other
than a "disqualified organization" or a possession of the United States. (For
this purpose, a "disqualified organization" means the United States, any state
or political subdivision thereof, any agency or instrumentality of any of the
foregoing (other than an instrumentality, all of the activities of which are
subject to tax and, except for the Federal Home Loan Mortgage Corporation, a
majority of whose board of directors is not selected by any such governmental
entity) or any foreign government, international organization or any agency or
instrumentality of such foreign government or organization, any rural electric
or telephone cooperative, or any organization (other than certain farmers'
cooperatives) that is generally exempt from federal income tax unless such
organization is subject to the tax on unrelated business taxable income.
3. The Transferee is aware (i) of the tax that would be imposed on
transfers of the Residual Certificates to "disqualified organizations" under the
Code that applies to all transfers of the Residual Certificates; (ii) that such
tax would be on the transferor, or, if such transfer is through an agent (which
Person includes a broker, nominee or middleman) for a non-Permitted
-2-
Transferee, on the agent; (iii) that the Person otherwise liable for the tax
shall be relieved of liability for the tax if the transferee furnishes to such
Person an affidavit that the transferee is a Permitted Transferee and, at the
time of transfer, such Person does not have actual knowledge that the affidavit
is false; and (iv) that the Residual Certificates may be a "noneconomic residual
interest" within the meaning of Treasury regulation Section 1.860E-1(c) and that
the transferor of a "noneconomic residual interest" will remain liable for any
taxes due with respect to the income on such residual interest, unless no
significant purpose of the transfer is to enable the transferor to impede the
assessment or collection of tax.
4. The Transferee is aware of the tax imposed on a "pass-through entity"
holding the Residual Certificates if at any time during the taxable year of the
pass-through entity a non- Permitted Transferee is the record holder of an
interest in such entity. (For this purpose, a "pass-through entity" includes a
regulated investment company, a real estate investment trust or common trust
fund, a partnership, trust or estate, and certain cooperatives.)
5. The Transferee is aware that the Certificate Registrar will not register
any transfer of the Residual Certificates by the Transferee unless the
Transferee's transferee, or such transferee's agent, delivers to the Certificate
Registrar, among other things, an affidavit and agreement in substantially the
same form as this affidavit and agreement. The Transferee expressly agrees that
it will not consummate any such transfer if it knows or believes that any
representation contained in such affidavit and agreement is false.
6. The Transferee consents to any additional restrictions or arrangements
that shall be deemed necessary upon advice of counsel to constitute a reasonable
arrangement to ensure that the Residual Certificate will only be owned, directly
or indirectly, by a Permitted Transferee.
7. The Transferee's taxpayer identification number is _________________.
8. The Transferee has reviewed the provisions of Section 5.02(d) of the
Pooling and Servicing Agreement, a description of which provisions is set forth
in the Residual Certificates (in particular, clause (ii)(A) of Section 5.02(d)
which authorizes the Trustee to deliver payments on the Residual Certificate to
a Person other than the Transferee and clause (ii)(B) of Section 5.02(d) which
authorizes the Trustee to negotiate a mandatory sale of the Residual
Certificates, in either case, in the event that the Transferee holds such
Residual Certificates in violation of Section 5.02(d)); and the Transferee
expressly agrees to be bound by and to comply with such provisions.
-3-
9. No purpose of the Transferee relating to its purchase or any sale of the
Residual Certificates is or will be to impede the assessment or collection of
any tax.
10. The Transferee hereby represents to and for the benefit of the
transferor that the Transferee intends to pay any taxes associated with holding
the Residual Certificates as they become due, fully understanding that it may
incur tax liabilities in excess of any cash flows generated by the Residual
Certificates.
11. The Transferee will, in connection with any transfer that it makes of
the Residual Certificates, deliver to the Certificate Registrar a representation
letter substantially in the form of Exhibit H-2 to the Pooling and Servicing
Agreement in which it will represent and warrant, among other things, that it is
not transferring the Residual Certificates to impede the assessment or
collection of any tax and that it has at the time of such transfer conducted a
reasonable investigation of the financial condition of the proposed transferee
as contemplated by Treasury regulation Section 1.860E-1(c)(4)(i) and has
satisfied the requirements of such provision.
12. The Transferee is a citizen or resident of the United States, a
corporation, a partnership or other entity created or organized in, or under the
laws of, the United States or any political subdivision thereof, or an estate or
trust whose income from sources without the United States is includible in gross
income for United States federal income tax purposes regardless of its
connection with the conduct of a trade or business within the United States.
-4-
IN WITNESS WHEREOF, the Transferee has caused this instrument to be
executed on its behalf, pursuant to the authority of its Board of Directors, by
its ____________________ and its corporate seal to be hereunto attached,
attested by its [Assistant] Secretary, this day of , 199__.
[NAME OF TRANSFEREE]
By:
----------------------------
[Name of Officer]
[Title of Officer]
[Corporate Seal]
ATTEST:
------------------------
[Assistant] Secretary
Personally appeared before me the above-named ____________________, known
or proved to me to be the same person who executed the foregoing instrument and
to be the ____________________ of the Transferee, and acknowledged to me that
he/she executed the same as his/her free act and deed and the free act and deed
of the Transferee
Subscribed and sworn before me this day of _____________________, 199__.
__________________________
NOTARY PUBLIC
COUNTY OF_________________
STATE OF__________________
My Commission expires the
_________ day of__________
___________, 19__.
EXHIBIT H-2
FORM OF TRANSFEROR CERTIFICATE
FOR TRANSFERS OF RESIDUAL CERTIFICATES
[Date]
_____________________________as Certificate Registrar
_____________________________
_____________________________
Attention: _________________________________________
Re: DLJ Commercial Mortgage Corp., Commercial Mortgage Pass-Through
Certificates, Series 199_-___ (the "Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
_________________ (the "Transferor") to _________________ (the "Transferee") of
[Class R-I] [Class R-II] [Class R-III] Certificates evidencing a ____%
Percentage Interest in the related Class (the "Residual Certificates"). The
Certificates, including the Residual Certificates, were issued pursuant to the
Pooling and Servicing Agreement (the "Pooling and Servicing Agreement"), dated
as of _____________, 199_, among DLJ Commercial Mortgage Corp. as depositor,
_______________________ as master servicer, ____________________________________
as special servicer and _________________________ as trustee and REMIC
administrator. All capitalized terms used but not otherwise defined herein shall
have the respective meanings set forth in the Pooling and Servicing Agreement.
The Transferor hereby certifies, represents and warrants to you as Certificate
Registrar, that:
1. No purpose of the Transferor relating to the transfer of the Residual
Certificates by the Transferor to the Transferee is or will be to impede the
assessment or collection of any tax.
2. The Transferor understands that the Transferee has delivered to you a
Transfer Affidavit and Agreement in the form attached to the Pooling and
Servicing Agreement as Exhibit H-1. The Transferor does not know or believe that
any representation contained therein is false.
3. The Transferor has at the time of this transfer conducted a reasonable
investigation of the financial condition of the Transferee as contemplated by
Treasury regulation Section 1.860E-1(c)(4)(i) and, as a result of that
investigation, the Transferor has determined that the Transferee has
historically paid its debts as they became due and has found no significant
evidence to indicate that the Transferee will not continue to pay its debts as
they become due in the future. The Transferor understands that
the transfer of the Residual Certificates may not be respected for United States
income tax purposes (and the Transferor may continue to be liable for United
States income taxes associated therewith) unless the Transferor has conducted
such an investigation.
Very truly yours,
-------------------------------
(Transferor)
By:
----------------------------
Name:
Title:
EXHIBIT I-1
FORM OF NOTICE AND ACKNOWLEDGEMENT
CONCERNING REPLACEMENT OF SPECIAL SERVICER
[Date]
[RATING AGENCIES]
Ladies and Gentlemen:
This notice is being delivered pursuant to Section 6.06 of the Pooling and
Servicing Agreement, dated as of ______________, 199_ and relating to DLJ
Commercial Mortgage Corp., Commercial Mortgage Pass-Through Certificates, Series
199_-___ (the "Agreement"). Capitalized terms used but not otherwise defined
herein shall have respective meanings assigned to them in the Agreement.
Notice is hereby given that the Holders of Certificates evidencing a
majority of the Voting Rights allocated to the Controlling Class have designated
________________ to serve as the Special Servicer under the Agreement.
The designation of __________________ as Special Servicer will become final
if certain conditions are met and each Rating Agency delivers to ______________
________________________________, the trustee under the Agreement (the
"Trustee"), written confirmation that if the person designated to become the
Special Servicer were to serve as such, such event would not result in the
qualification, downgrade or withdrawal of the rating or ratings assigned to one
or more Classes of the Certificates. Accordingly, such confirmation is hereby
requested as soon as possible.
Please acknowledge receipt of this notice by signing the enclosed copy of
this notice where indicated below and returning it to the Trustee, in the
enclosed stamped self-addressed envelope.
Very truly yours,
______________________________
as Trustee
By:
__________________________
Name:
Title:
Receipt acknowledged:
______________________________
By:
___________________________
Name:
Title:
Date:
______________________________
By:
___________________________
Name:
Title:
Date:
EXHIBIT I-2
FORM OF ACKNOWLEDGEMENT OF PROPOSED SPECIAL SERVICER
[Date]
[TRUSTEE]
[MASTER SERVICER]
[DEPOSITOR]
[REMIC ADMINISTRATOR]
Re: DLJ Commercial Mortgage Corp., Series 199_-___
Ladies and Gentlemen:
Pursuant to Section 6.06 of the Pooling and Servicing Agreement, dated as
of ___________, 199_, relating to DLJ Commercial Mortgage Corp., Commercial
Mortgage Pass-Through Certificates, Series 199_-___ (the "Agreement"), the
undersigned hereby agrees with all the other parties to the Agreement that the
undersigned shall serve as Special Servicer under, and as defined in, the
Agreement. The undersigned hereby acknowledges that, as of the date hereof, it
is and shall be a party to the Agreement and bound thereby to the full extent
indicated therein in the capacity of Special Servicer. The undersigned hereby
makes, as of the date hereof, the representations and warranties set forth in
Section 2.06 of the Agreement, with the following corrections with respect to
type of entity and jurisdiction of organization: ___________________________.
By:
___________________________
Name:
Title:
EXHIBIT J
FORM OF UCC-1 FINANCING STATEMENT
EXHIBIT 1 to EXHIBIT J
This Exhibit 1 is attached to and incorporated in a financing statement
pertaining to DLJ Commercial Mortgage Corp. as depositor (referred to as the
"Debtor" for the purpose of this financing statement only), and
_________________________ as trustee for the holders of the Series 199_-___
Certificates (referred to as the "Secured Party" for purposes of this financing
statement only), under that certain Pooling and Servicing Agreement, dated as of
____________, 199_ (the "Pooling and Servicing Agreement"), among the Debtor,
the Secured Party, _______________________________ as master servicer (the
"Master Servicer"), ____________________________ as special servicer (the
"Special Servicer") and ___________________ as REMIC administrator, relating to
the issuance of the Debtor's Commercial Mortgage Pass-Through Certificates,
Series 199_-___ (collectively, the "Series 199_-___ Certificates"). Capitalized
terms used herein and not defined shall have the respective meanings given to
them in the Pooling and Servicing Agreement. The attached financing statement
covers all of the Debtor's right (including the power to convey title thereto),
title and interest in and to the Trust Fund created pursuant to the Pooling and
Servicing Agreement, consisting of the following:
1. The mortgage notes or other evidence of indebtedness of a borrower
(the "Mortgage Notes") with respect to the mortgage loans (the
"Mortgage Loans") listed on the Mortgage Loan Schedule to the Pooling
and Servicing Agreement, which Mortgage Loan Schedule is attached
hereto as Exhibit 3;
2. The related mortgages, deeds of trust or other similar instruments
securing such Mortgage Notes (the "Mortgages");
3. With respect to each Mortgage Note and each Mortgage, each other
document in the related Mortgage File;
4. (a) the Collection Account maintained by the Master Servicer pursuant
to the Pooling and Servicing Agreement, (b) all funds from time to
time on deposit in the Collection Account, (c) the investments of any
such funds consisting of securities, instruments or other obligations
(including, without limitation, the Permitted Investments described on
Exhibit 2 hereto), and (d) the general intangibles consisting of the
contractual right to payment, including, without limitation, the right
to payments of principal and interest and the right to enforce the
related payment obligations, arising from or under any such
investments;
-2-
5. All REO Property;
6. (a) the REO Account required to be maintained by the Special Servicer
pursuant to the Pooling and Servicing Agreement, (b) all funds from
time to time on deposit in the REO Account, (c) the investments of any
such funds consisting of securities, instruments or other obligations
(including, without limitation, the Permitted Investments described on
Exhibit 2 hereto), and (d) the general intangibles consisting of the
contractual right to payment, including, without limitation, the right
to payments of principal and interest and the right to enforce the
related payment obligations, arising from or under any such
investments;
7. (a) the Servicing Account(s) and Reserve Account(s) maintained by the
Master Servicer or Special Servicer pursuant to the Pooling and
Servicing Agreement, and (b) all funds from time to time on deposit in
the Servicing Account(s) and Reserve Account(s);
8. (a) the Distribution Account maintained by the Trustee pursuant to the
Pooling and Servicing Agreement, (b) all funds from time to time on
deposit in the Distribution Account, (c) the investments of any such
funds consisting of securities, instruments or other obligations
(including, without limitation, the Permitted Investments described on
Exhibit 2 hereto), and (d) the general intangibles consisting of the
contractual right to payment, including, without limitation, the right
to payments of principal and interest and the right to enforce the
related payment obligations, arising from or under any such
investments;
9. All insurance policies, including the right to payments thereunder,
with respect to the Mortgage Loans required to be maintained pursuant
to the Pooling and Servicing Agreement, transferred to the Trust Fund
and to be serviced by the Master Servicer or Special Servicer; and
11. All income, payments, products and proceeds of any of the foregoing,
together with any additions thereto or substitutions therefor.
THE DEBTOR AND THE SECURED PARTY INTEND THE TRANSACTIONS CONTEMPLATED BY THE
POOLING AND SERVICING AGREEMENT TO CONSTITUTE
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A SALE OF THE INTEREST IN THE MORTGAGE NOTES, THE RELATED MORTGAGES AND THE
OTHER DOCUMENTS IN THE RELATED MORTGAGE FILES EVIDENCED BY THE SERIES 199_-___
CERTIFICATES, AND THIS FILING SHOULD NOT BE CONSTRUED AS A CONCLUSION THAT A
SALE HAS NOT OCCURRED. THE REFERENCES HEREIN TO MORTGAGE NOTES SHOULD NOT BE
CONSTRUED AS A CONCLUSION THAT ANY MORTGAGE NOTE IS NOT AN INSTRUMENT WITHIN THE
MEANING OF THE UNIFORM COMMERCIAL CODE OR THAT A FILING IS NECESSARY TO PERFECT
THE OWNERSHIP OR SECURITY INTEREST OF THE SECURED PARTY IN ANY MORTGAGE NOTE,
MORTGAGE OR OTHER DOCUMENT IN A MORTGAGE FILE. IN ADDITION, THE REFERENCES
HEREIN TO SECURITIES, INSTRUMENTS AND OTHER OBLIGATIONS (INCLUDING WITHOUT
LIMITATION, PERMITTED INVESTMENTS) SHOULD NOT BE CONSTRUED AS A CONCLUSION THAT
ANY SECURITY, INSTRUMENT OR OTHER OBLIGATION (INCLUDING WITHOUT LIMITATION, ANY
PERMITTED INVESTMENT) IS NOT AN INSTRUMENT, A CERTIFICATED SECURITY OR AN
UNCERTIFICATED SECURITY WITHIN THE MEANING OF THE UNIFORM COMMERCIAL CODE, AS IN
EFFECT IN ANY APPLICABLE JURISDICTION, NOR SHOULD THIS FINANCING STATEMENT BE
CONSTRUED AS A CONCLUSION THAT A FILING IS NECESSARY TO PERFECT THE OWNERSHIP OR
SECURITY INTEREST OF THE SECURED PARTY IN THE CONTRACTUAL RIGHT TO PAYMENT,
INCLUDING, WITHOUT LIMITATION, THE RIGHT TO PAYMENTS OF PRINCIPAL AND INTEREST
AND THE RIGHT TO ENFORCE THE RELATED PAYMENT OBLIGATIONS, ARISING FROM OR UNDER
ANY SECURITY, INSTRUMENT OR OTHER OBLIGATION (INCLUDING, WITHOUT LIMITATION, ANY
PERMITTED INVESTMENT). WITH RESPECT TO THE FOREGOING, THIS FILING IS MADE ONLY
IN THE EVENT OF CONTRARY ASSERTIONS BY THIRD PARTIES.
EXHIBIT 2 to EXHIBIT J
The term "Permitted Investments" shall include any of the following
instruments, securities or other obligations:
(i) direct obligations of, or obligations fully guaranteed as to timely
payment of principal and interest by, the United States or any agency
or instrumentality thereof, provided such obligations are backed by
the full faith and credit of the United States, have a predetermined,
fixed amount of principal due at maturity (that cannot vary or
change), do not have an "r" highlighter attached to any rating, and
each obligation has a fixed interest rate or has its interest rate
tied to a single interest rate index plus a single fixed spread;
(ii) certain obligations of agencies or instrumentalities of the United
States that are not backed by the full faith and credit of the United
States, provided such obligations have a predetermined, fixed amount
of principal due at maturity (that cannot vary or change), do not have
an "r" highlighter attached to any rating, and each obligation has a
fixed interest rate or has its interest rate tied to a single interest
rate index plus a single fixed spread;
(iii) federal funds, uncertificated certificates of deposit, time deposits,
bankers' acceptances and repurchase agreements having maturities of
not more than 365 days, of any bank or trust company organized under
the laws of the United States or any state thereof, provided that such
items are rated in the highest short-term debt rating category of ____
("_______") and, if rated thereby, _____ ("______" and, together with
______, the "Rating Agencies") or, in the case of each Rating Agency,
such lower rating as will not result in a qualification, downgrading
or withdrawal of the rating then assigned to any Class of Certificates
by such Rating Agency (as evidenced in writing by such Rating Agency),
do not have an "r" highlighter affixed to its rating and its terms
have a predetermined fixed amount of principal due at maturity (that
cannot vary or change), and each obligation has a fixed interest rate
or has its interest rate tied to a single interest rate index plus a
single fixed spread;
(iv) commercial paper (having original maturities of not more than 365
days) of any corporation incorporated
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under the laws of the United States or any state thereof (or of any
corporation not so incorporated, provided that the commercial paper is
United States Dollar denominated and amounts payable thereunder are
not subject to any withholding imposed by any non-United States
jurisdiction) which is rated in the highest short-term debt rating
category of each of the Rating Agencies or, in the case of each Rating
Agency, such lower rating as will not result in a qualification,
downgrading or withdrawal of the rating then assigned to any Class of
Certificates by such Rating Agency (as evidenced in writing by such
Rating Agency), do not have an "r" highlighter affixed to its rating
and its terms have a predetermined fixed amount of principal due at
maturity (that cannot vary or change), and each obligation has a fixed
interest rate or has its interest rate tied to a single interest rate
index plus a single fixed spread;
(v) units of money market funds which maintain a constant net asset value
and which are rated in the highest applicable rating category of each
of the Rating Agencies or, in the case of each Rating Agency, such
lower rating as will not result in a qualification, downgrading or
withdrawal of the rating then assigned to any Class of Certificates by
such Rating Agency (as evidenced in writing by such Rating Agency); or
(vi) any other obligation or security acceptable to each Rating Agency,
which will not result in a qualification, downgrading or withdrawal of
the rating then assigned to any Class of Certificates by such Rating
Agency (as evidenced in writing by such Rating Agency);
provided that (1) no investment described hereunder shall evidence either the
right to receive (x) only interest with respect to such investment or (y) a
yield to maturity greater than 120% of the yield to maturity at par of the
underlying obligations; and (2) that no investment described hereunder may be
purchased at a price greater than par if such investment may be prepaid or
called at a price less than its purchase price prior to stated maturity (that
cannot vary or change).
EXHIBIT 3 to EXHIBIT J
MORTGAGE LOAN SCHEDULE
EXHIBIT K
CALCULATION OF NET OPERATING INCOME
With respect to any Mortgaged Property, "Net Operating Income" shall mean
for each fiscal year or portion thereof, (i) the related Operating Income
allocable to such period, less (ii) the related Operating Expenses allocable to
such period, and less (iii) any U/W Recurring Replacement Reserve and U/W
Leasing Commission and U/W Tenant Improvement for such Mortgaged Property as
indicated in the Prospectus Supplement dated ___________, 199_ relating to the
publicly offered classes of the DLJ Commercial Mortgage Corp., Commercial
Mortgage Pass-Through Certificates, Series 199_-___ (the amounts described in
this clause (iii) to be prorated if "Net Operating Income" is being calculated
for less than a full fiscal year).
With respect to any Mortgaged Property "Operating Income" shall mean, for
each fiscal year or portion thereof, all revenue derived by the related
Mortgagor arising from the Mortgaged Property, including, without limitation,
rental revenues (whether denominated as basic rent, additional rent, percentage
rent, escalation payments, electrical payments or otherwise) and other fees and
charges payable pursuant to leases or otherwise in connection with the Mortgaged
Property, and rent insurance proceeds. Operating Income shall not include (a)
insurance proceeds (other than proceeds of business interruption or other
similar insurance allocable to the applicable period) and condemnation awards
(other than awards arising from a temporary taking or the use and occupancy of
all or part of the applicable Mortgaged Property allocable to the applicable
period), or interest accrued on such proceeds or awards, (b) proceeds of any
financing, (c) proceeds of any sale, exchange or transfer of the Mortgaged
Property or any part thereof or interest therein, (d) capital contributions or
loans to the Mortgagor or an Affiliate of the Mortgagor, (e) any item of income
otherwise includible in Operating Income but paid directly by any tenant to a
Person other than the Mortgagor except for real estate taxes paid directly to
any taxing authority by any tenant, (f) any other extraordinary, non-recurring
revenues, (g) rent paid by or on behalf of any lessee under space lease which is
the subject of any proceeding or action relating to its bankruptcy,
reorganization or other arrangement pursuant to federal bankruptcy law or any
similar federal or state law or which has been adjudicated a bankrupt or
insolvent, unless such space lease has been affirmed by the trustee in such
proceeding or action, or (h) rent paid by or on behalf of any lessee under a
space lease the demised premises of which are not occupied either by such lessee
or by a sublessee thereof.
With respect to any Mortgaged Property "Operating Expenses" shall mean, for
each fiscal year or portion thereof, all expenses directly attributable to the
operation, repair and/or maintenance of the Mortgaged Property, including,
without limitation,
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impositions, insurance premiums, management fees, payments to third party
suppliers, and costs attributable to the operation, repair and maintenance of
the systems for heating, ventilating and air conditioning, and actually paid for
by the Mortgagor. Operating Expenses shall not include interest, principal and
premium, if any, due under the Mortgage Note or otherwise in connection with any
other secured indebtedness, income taxes, extraordinary capital improvements
costs, or any non-cash charge or expense such as depreciation.
EXHIBIT L-1
FORM OF CERTIFICATE WITH RESPECT TO INFORMATION REQUEST BY
BENEFICIAL HOLDER
[Date]
_____________________________
_____________________________
_____________________________
Attention: ______________________________________
Re: DLJ Commercial Mortgage Corp., Series 199_-___
In accordance with Section 8.12(b) of the Pooling and Servicing Agreement,
dated as of______________, 199_ (the "Pooling and Servicing Agreement"), among
DLJ Commercial Mortgage Corp. as depositor (the "Depositor"),
________________________________ as master servicer, _________________________as
special servicer and _____________________________ as trustee (in such capacity,
the "Trustee") and REMIC administrator, with respect to the DLJ Commercial
Mortgage Corp. Commercial Mortgage Pass-Through Certificates, Series 199_-___
(the "Certificates"), the undersigned hereby certifies and agrees as follows:
1. The undersigned is a beneficial owner of the Class ____ Certificates.
2. The undersigned is requesting the information identified on the
schedule attached hereto pursuant to Section 8.12(b) of the Pooling
and Servicing Agreement (the "Information") for use in evaluating its
investment in the Class ____ Certificates.
3. In consideration of the Trustee's disclosure to the undersigned of the
Information, the undersigned will keep the Information confidential
(except from such outside persons as are assisting it in making the
evaluation described in paragraph 2), and such Information will not,
without the prior written consent of the Trustee, be disclosed by the
undersigned or by its officers, directors, partners employees, agents
or representatives (collectively, the "Representatives") in any manner
whatsoever, in whole or in part.
4. The undersigned will not use or disclose the Information in any manner
which could result in a violation of any provision of the Securities
Act of 1933, as amended (the "Securities Act"), or the Securities
Exchange Act of 1934, as amended, or would require registration of any
Certificate pursuant to Section 5 of the Securities Act.
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5. The undersigned shall be fully liable for any breach of this agreement
by itself or any of its Representatives and shall indemnify the
Depositor, the Trustee and the Trust Fund for any loss, liability or
expense incurred thereby with respect to any such breach by the
undersigned or any of its Representatives.
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IN WITNESS WHEREOF, the undersigned has caused its name to be signed hereto
by its duly authorized officer, as of the day and year written above.
[BENEFICIAL HOLDER OF A
CERTIFICATE]
By:
____________________________
Name:
Title:
EXHIBIT L-2
FORM OF CERTIFICATE WITH RESPECT TO INFORMATION REQUEST BY
PROSPECTIVE PURCHASER
[Date]
_____________________________ as Trustee
_____________________________
_____________________________
Attention: _____________________________
Re: DLJ Commercial Mortgage Corp., Series 199_-___
In accordance with Section 8.12(b) of the Pooling and Servicing Agreement,
dated as of _____________, 199_ (the "Pooling and Servicing Agreement"), among
DLJ Commercial Mortgage Corp. as depositor (the "Depositor"),__________________
____________________________ as master servicer, ______________________________
as special servicer and __________________ as trustee (in such capacity, the
"Trustee") and REMIC administrator, with respect to the DLJ Commercial Mortgage
Corp. Commercial Mortgage Pass-Through Certificates, Series 199_- ___ (the
"Certificates"), the undersigned hereby certifies and agrees as follows:
1. The undersigned is contemplating an investment in the Class ____
Certificates.
2. The undersigned is requesting the information identified on the
schedule attached hereto pursuant to Section 8.12(b) of the Pooling
and Servicing Agreement (the "Information") solely for use in
evaluating such possible investment.
3. In consideration of the Trustee's disclosure to the undersigned of the
Information, the undersigned will keep the Information confidential
(except from such outside persons as are assisting it in making the
investment decision described in paragraphs 1 and 2), and such
Information will not, without the prior written consent of the
Trustee, be disclosed by the undersigned or by its officers,
directors, partners employees, agents or representatives
(collectively, the "Representatives") in any manner whatsoever, in
whole or in part.
4. The undersigned will not use or disclose the Information in any manner
which could result in a violation of any provision of the Securities
Act of 1933, as amended (the "Securities Act"), or the Securities
Exchange Act of 1934, as amended, or would require registration of any
Certificate pursuant to Section 5 of the Securities Act.
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5. The undersigned shall be fully liable for any breach of this agreement
by itself or any of its Representatives and shall indemnify the
Depositor, the Trustee and the Trust Fund for any loss, liability or
expense incurred thereby with respect to any such breach by the
undersigned or any of its Representatives.
IN WITNESS WHEREOF, the undersigned has caused its name to be signed hereto
by its duly authorized officer, as of the day and year written above.
[PROSPECTIVE PURCHASER]
By:
____________________________
Name:
Title:
