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ASSET SECURITIZATION CORPORATION,
DEPOSITOR
AMRESCO MANAGEMENT, INC.,
SERVICER AND INITIAL SPECIAL SERVICER
LASALLE NATIONAL BANK,
TRUSTEE
and
ABN AMRO BANK N.V.,
FISCAL AGENT
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POOLING AND SERVICING AGREEMENT
Dated as of March 27, 1997
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Commercial Mortgage Pass-Through Certificates
Series 1997-D4
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TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
SECTION 1.01. Defined Terms
SECTION 1.02. Certain Calculations
SECTION 1.03. Certain Constructions
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
ORIGINAL ISSUANCE OF CERTIFICATES
SECTION 2.01. Conveyance of Mortgage Loans; Assignment of Mortgage
Loan Purchase and Sale Agreement
SECTION 2.02. Acceptance by Custodian and the Trustee
SECTION 2.03. Representations, Warranties and Covenants of the Depositor
SECTION 2.04. Representations, Warranties and Covenants of the
Servicer, Special Servicer and Trustee
SECTION 2.05. Execution and Delivery of Certificates; Issuance
of Lower-Tier Regular Interests
SECTION 2.06. Miscellaneous REMIC and Grantor Trust Provisions
ARTICLE III
ADMINISTRATION AND SERVICING OF THE MORTGAGE LOANS
SECTION 3.01. Servicer to Act as Servicer; Administration of the
Mortgage Loans
SECTION 3.02. Liability of the Servicer
SECTION 3.03. Collection of Certain Mortgage Loan Payments
SECTION 3.04. Collection of Taxes, Assessments and Similar Items;
Escrow Accounts
SECTION 3.05. Collection Account; Distribution Account; Upper-Tier
Distribution Account; Default Interest Distribution
Account; and Excess Interest Distribution Account
SECTION 3.06. Permitted Withdrawals from the Collection Account
SECTION 3.07. Investment of Funds in the Collection Account, the
REO Account, the Lock-Box Accounts, the Cash Collateral
Accounts, the Interest Reserve Account and the Reserve
Accounts
SECTION 3.08. Maintenance of Insurance Policies and Errors and Omissions
and Fidelity Coverage
SECTION 3.09. Enforcement of Due-On-Sale Clauses; Assumption Agreements;
Defeasance Provisions
SECTION 3.10. Appraisals; Realization Upon Defaulted Mortgage Loans
SECTION 3.11. Trustee to Cooperate; Release of Mortgage Files
SECTION 3.12. Servicing Fees, Trustee Fees and Special Servicing
Compensation
SECTION 3.13. Reports to the Trustee; Collection Account Statements
SECTION 3.14. Annual Statement as to Compliance
SECTION 3.15. Annual Independent Public Accountants' Servicing Report
SECTION 3.16. Access to Certain Documentation
SECTION 3.17. Title and Management of REO Properties and REO
Account Properties
SECTION 3.18. Sale of Specially Serviced Mortgage Loans and REO Properties
SECTION 3.19. Additional Obligations of the Servicer and the Special
Servicer; Inspections
SECTION 3.20. Authenticating Agent
SECTION 3.21. Appointment of Custodians
SECTION 3.22. Reports to the Securities and Exchange Commission;
Available Information
SECTION 3.23. Lock-Box Accounts, Cash Collateral Accounts, Escrow
Accounts and Reserve Accounts
SECTION 3.24. Property Advances
SECTION 3.25. Appointment of Special Servicer
SECTION 3.26. Transfer of Servicing Between Servicer and Special
Servicer; Record Keeping
SECTION 3.27. Interest Reserve Account
SECTION 3.28. Limitations on and Authorizations of the Servicer and
Special Servicer with Respect to Certain Mortgage
Loans
SECTION 3.29. Intentionally left Blank
SECTION 3.30. Modification, Waiver, Amendment and Consents
SECTION 3.31. Notices to Unitholders
ARTICLE IV
DISTRIBUTIONS TO CERTIFICATEHOLDERS
SECTION 4.01. Distributions
SECTION 4.02. Statements to Certificateholders; Reports by Trustee;
Other Information Available to the Holders and Others
SECTION 4.03. Compliance with Withholding Requirements
SECTION 4.04. REMIC Compliance
SECTION 4.05. Imposition of Tax on the Trust Fund
SECTION 4.06. Remittances; P&I Advances
SECTION 4.07. Grantor Trust Reporting
ARTICLE V
THE CERTIFICATES
SECTION 5.01. The Certificates
SECTION 5.02. Registration, Transfer and Exchange of Certificates
SECTION 5.03. Mutilated, Destroyed, Lost or Stolen Certificates
SECTION 5.04. Appointment of Paying Agent
SECTION 5.05. Access to Certificateholders' Names and Addresses
SECTION 5.06. Actions of Certificateholders
ARTICLE VI
THE DEPOSITOR, THE SERVICER AND THE SPECIAL SERVICER
SECTION 6.01. Liability of the Depositor, the Servicer and
the Special Servicer
SECTION 6.02. Merger or Consolidation of the Servicer
SECTION 6.03. Limitation on Liability of the Depositor, the
Servicer and Others
SECTION 6.04. Limitation on Resignation of the Servicer and the Special
Servicer; Termination of the Servicer and the Special
Servicer
SECTION 6.05. Rights of the Depositor and the Trustee in Respect of
the Servicer and the Special Servicer
SECTION 6.06. Servicer or Special Servicer as Owner of a Certificate
ARTICLE VII
DEFAULT
SECTION 7.01. Events of Default
SECTION 7.02. Trustee to Act; Appointment of Successor
SECTION 7.03. Notification to Certificateholders
SECTION 7.04. Other Remedies of Trustee
SECTION 7.05. Waiver of Past Events of Default; Termination
ARTICLE VIII
CONCERNING THE TRUSTEE
SECTION 8.01. Duties of Trustee
SECTION 8.02. Certain Matters Affecting the Trustee
SECTION 8.03. Trustee and Fiscal Agent Not Liable for Certificates
or Mortgage Loans
SECTION 8.04. Trustee and Fiscal Agent May Own Certificates
SECTION 8.05. Payment of Trustee's Fees and Expenses; Indemnification
SECTION 8.06. Eligibility Requirements for Trustee
SECTION 8.07. Resignation and Removal of the Trustee
SECTION 8.08. Successor Trustee and Fiscal Agent
SECTION 8.09. Merger or Consolidation of Trustee
SECTION 8.10. Appointment of Co-Trustee or Separate Trustee
SECTION 8.11. Fiscal Agent Appointed; Concerning the Fiscal Agent
ARTICLE IX
TERMINATION
SECTION 9.01. Termination
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.01. Counterparts
SECTION 10.02. Limitation on Rights of Certificateholders
SECTION 10.03. Governing Law
SECTION 10.04. Notices.
SECTION 10.05. Severability of Provisions
SECTION 10.06. Notice to the Depositor and Each Rating Agency
SECTION 10.07. Amendment
SECTION 10.08. Confirmation of Intent
SECTION 10.09. Xxxxxx Act.
SECTION 10.10. No Intended Third-Party Beneficiaries
TABLE OF EXHIBITS
Exhibit A-1 Form of Class A-1A Certificate
Exhibit A-2 Form of Class A-1B Certificate
Exhibit A-3 Form of Class A-1C Certificate
Exhibit A-4 Form of Class A-1D Certificate
Exhibit A-5 Form of Class A-1E Certificate
Exhibit A-6 Form of Class A-2 Certificate
Exhibit A-7 Form of Class A-3 Certificate
Exhibit A-8 Form of Class A-4 Certificate
Exhibit A-9 Form of Class A-5 Certificate
Exhibit A-10 Form of Class A-6 Certificate
Exhibit A-11 Form of Class A-7 Certificate
Exhibit A-12 Form of Class A-8 Certificate
Exhibit A-13 Form of Class A-CS1 Certificate
Exhibit A-14 Form of Class PS-1 Certificate
Exhibit A-15 Form of Class B-1 Certificate
Exhibit A-16 Form of Class B-2 Certificate
Exhibit A-17 Form of Class B-3 Certificate
Exhibit A-18 Form of Class B-4 Certificate
Exhibit A-19 Form of Class B-5 Certificate
Exhibit A-20 Form of Class B-6 Certificate
Exhibit A-21 Form of Class B-7 Certificate
Exhibit A-22 Form of Class B-7H Certificate
Exhibit A-23 Form of Class V-1 Certificate
Exhibit A-24 Form of Class V-2 Certificate
Exhibit A-25 Form of Class R Certificate
Exhibit A-26 Form of Class LR Certificate
Exhibit B Mortgage Loan Schedule
Exhibit C-1 Form of Transferee Affidavit
Exhibit C-2 Form of Transferor Letter
Exhibit D-1 Form of Investment Representation Letter
Exhibit D-2 Form of ERISA Representation Letter
Exhibit E Form of Request for Release
Exhibit F Form of Custodial Agreement
Exhibit G Securities Legend
Exhibit H Mortgage Loan Purchase and Sale Agreement
Exhibit I-1 Form of Comparative Financial Status Report
Exhibit I-2 Form of Delinquent Loan Status Report
Exhibit I-3 Form of Historical Loan Modification Report
Exhibit I-4 Form of Historical Loss Estimate Report
Exhibit I-5 Form of REO Status Report
Exhibit I-6 Form of Watch List
Exhibit I-7 Form of Operating Statement Analysis Report
Exhibit I-8 Form of NOI Adjustment Worksheet
Pooling and Servicing Agreement, dated as of March 27, 1997, among Asset
Securitization Corporation, as Depositor, AMRESCO Management, Inc., as Servicer
and initial Special Servicer, LaSalle National Bank, as Trustee, and ABN AMRO
Bank N.V., as Fiscal Agent.
PRELIMINARY STATEMENT:
(Terms used but not defined in this Preliminary Statement shall have the
meanings specified in Article I hereof)
The Depositor intends to sell pass-through certificates to be issued
hereunder in multiple Classes which in the aggregate will evidence the entire
beneficial ownership interest in the Trust Fund consisting primarily of the
Mortgage Loans. As provided herein, the Trustee will elect that the Trust Fund,
exclusive of the Lock-Box Accounts, Cash Collateral Accounts, Reserve Accounts,
the Default Interest, the Default Interest Distribution Account, the Excess
Interest and the Excess Interest Distribution Account (such portion of the Trust
Fund, the "Trust REMICs"), be treated for federal income tax purposes as two
separate real estate mortgage investment conduits (each, a "REMIC" or, in the
alternative, the "Lower-Tier REMIC" and the "Upper-Tier REMIC," respectively).
The Class A-1A, Class A-1B, Class A-1C, Class A-1D, Class A-CS1, Class PS-1,
Class A-1E, Class A-2, Class A-3, Class A-4, Class A-5, Class A-6, Class A-7,
Class A-8, Class B-1, Class B-2, Class B-3, Class B-4, Class B-5, Class B-6,
Class B-7 and Class B-7H Certificates constitute "regular interests" in the
Upper-Tier REMIC and the Class R Certificates constitute the sole Class of
"residual interests" in the Upper-Tier REMIC for purposes of the REMIC
Provisions. The Class LR Certificates constitute the sole Class of "residual
interests" in the Lower-Tier REMIC for purposes of the REMIC Provisions. There
are also seventeen Classes of uncertificated Lower-Tier Regular Interests issued
under this Agreement (the Class A-1A-L, Class A-1B-L, Class A-1C-L, Class
A-1D-L, Class A-1E-L, Class A-2-L, Class A-3-L, Class A-4-L, Class A-5-L, Class
A-6-L, Class A-7-L, Class A-8-L, Class B-1-L, Class B-2-L, Class B-3-L, Class
B-4-L, Class B-5-L, Class B-6-L, Class B-7-L and Class B-7H-L Interests), each
of which will constitute a regular interest in the Lower-Tier REMIC. All such
Lower-Tier Regular Interests will be held by the Trustee as assets of the
Upper-Tier REMIC. The parties intend that the portions of the Trust Fund
representing the Default Interest, the Default Interest Distribution Account,
the Excess Interest and the Excess Interest Distribution Account will be treated
as a grantor trust under Subpart E of Part 1 of Subchapter J of the Code, that
the Class V-1 Certificates represent pro rata undivided beneficial interests in
the portion of the Trust Fund consisting of the Net Default Interest and the
Default Interest Distribution Account and that the Class V-2 Certificates
represent pro rata undivided beneficial interests in the portion of the Trust
Fund consisting of the Excess Interest and the Excess Interest Distribution
Account.
The following table sets forth the designation and aggregate initial
Certificate Balance (or, with respect to the Class A-CS1 and Class PS-1
Certificates, Notional Balance) for each Class of Certificates comprising
interests in the Upper-Tier REMIC.
Class Certificate Balance or Notional Balance
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Class A-1A $127,000,000.00
Class A-1B $91,010,000.00
Class A-1C $65,000,000.00
Class A-1D $671,228,903.00
Class A-1E $84,197,550.00
Class A-CS1(1) $127,000,000.00
Class PS-1(2) $1,403,292,505.00
Class A-2 $28,065,850.00
Class A-3 $49,115,237.00
Class A-4 $21,049,387.00
Class A-5 $42,098,775.00
Class A-6 $28,065,850.00
Class A-7 $21,049,387.00
Class A-8 $21,049,387.00
Class B-1 $35,082,312.00
Class B-2 $35,082,312.00
Class B-3 $14,032,925.00
Class B-4 $21,049,387.00
Class B-5 $14,032,925.00
Class B-6 $14,032,925.00
Class B-7 $21,048,393.00
Class B-7H $1,000.35
(1) The initial Notional Balance of Class PS-1 Certificates is equal to the
aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-off Date.
(2) The initial Notional Balance of the Class CS-1 Certificates is equal to the
initial Certificate Balance of the Class A-1A Certificates.
The initial Certificate Balance of each of the Class V-1, Class V-2, Class
R and Class LR Certificates is zero. Additionally, the Class V-1, Class V-2,
Class R and Class LR Certificates do not have a Notional Balance. The
Certificate Balance of any Class of Certificates outstanding at any time
represents the maximum amount which holders thereof are entitled to receive as
distributions allocable to principal from the cash flow on the Mortgage Loans
and the other assets in the Trust Fund; provided, however, that in the event
that amounts previously allocated as Realized Losses to a Class of Certificates
in reduction of the Certificate Balance thereof are recovered subsequent to the
reduction of the Certificate Balance of such Class to zero, such Class may
receive distributions in respect of such recoveries in accordance with the
priorities set forth in Section 4.01.
As of the Cut-off Date, the Mortgage Loans have an aggregate Stated
Principal Balance equal to approximately $1,403,292,505.
In consideration of the mutual agreements herein contained, the Depositor,
the Servicer, the initial Special Servicer, the Trustee and the Fiscal Agent
agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Defined Terms.
Whenever used in this Agreement, the following words and phrases, unless
the context otherwise requires, shall have the meanings specified in this
Article.
"Act": The Securities Act of 1933, as it may be amended from time to time.
"Actual/360 Mortgage Loans": The Mortgage Loans indicated as such in the
Mortgage Loan Schedule.
"Advance": Any P&I Advance or Property Advance.
"Advance Interest Amount": Interest at the Advance Rate on the aggregate
amount of P&I Advances and Property Advances for which the Servicer, the Special
Servicer, the Trustee or the Fiscal Agent, as applicable, have not been
reimbursed and Servicing Fees, Trustee Fees or Special Servicing Compensation
for which the Servicer, the Trustee or the Special Servicer, as applicable, has
not been timely paid or reimbursed for the number of days from the date on which
such Advance was made or such Servicing Fees, Trustee Fees or Special Servicing
Compensation were due through the date of payment or reimbursement of the
related Advance or other such amount, less any amount of interest previously
paid on such Advance or Servicing Fees, Trustee Fees or Special Servicing
Compensation; provided, that, with respect to a P&I Advance, in the event that
the related Borrower makes payment of the amount in respect of which such P&I
Advance was made with interest at the Default Rate, the Advance Interest Amount
payable to the Servicer, the Trustee or the Fiscal Agent shall be paid (i) first
from the amount of Default Interest paid by the Borrower and (ii) to the extent
such amounts are insufficient therefor, from amounts on deposit in the
Collection Account.
"Advance Rate": A per annum rate equal to the sum of (i) the Prime Rate (as
most recently published in the "Money Rates" section of The Wall Street Journal,
New York edition, on or before the related Record Date) plus (ii) 1%, compounded
monthly as of each Servicer Remittance Date. Interest at the Advance Rate will
accrue from (and including) the date on which the related Advance is made or the
related expense incurred to (but excluding) the first Servicer Remittance Date
after the date on which such amounts are recovered out of amounts received on
the Mortgage Loan as to which such Advances were made or servicing expenses
incurred or the first Servicer Remittance Date after a determination of
non-recoverability, as the case may be, is made, provided that such interest at
the Advance Rate will continue to accrue to the extent funds are not available
in the Collection Account for such reimbursement of such Advance.
"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. The Trustee may obtain
and rely on an Officers' Certificate of the Servicer, the Special Servicer, or
the Depositor to determine whether any Person is an Affiliate of such party.
"Affiliated Person": Any Person (other than a Rating Agency) involved in
the organization or operation of the Depositor or an affiliate, as defined in
Rule 405 of the Act, of such Person.
"Agent Member": Members of, or Depository Participants in, the Depository.
"Agreement": This Pooling and Servicing Agreement and all amendments hereof
and supplements hereto.
"Allocated Loan Amount": With respect to each Mortgaged Property, the
portion of the principal amount of the related Mortgage Loan allocated to such
Mortgaged Property in the applicable Mortgage or Loan Agreement.
"Annual Compliance Report": A report consisting of an annual statement of
compliance required by Section 3.14 hereof and an annual report of an
Independent accountant required pursuant to Section 3.15 hereof.
"Anticipated Repayment Date": With respect to any Mortgage Loan that is
indicated on the Mortgage Loan Schedule as having a Revised Mortgage Rate, the
date upon which such Mortgage Loan commences accruing interest at such Revised
Rate.
"Anticipated Termination Date": Any Distribution Date on which it is
anticipated that the Trust Fund will be terminated pursuant to Section 9.01(c).
"Applicable Monthly Payment": As defined in Section 4.06(a).
"Appraisal Reduction Amount": For any Distribution Date and for any
Mortgage Loan as to which an Appraisal Reduction Event has occurred, an amount
equal to the excess, if any, of (a) the Stated Principal Balance of such
Mortgage Loan over (b) the excess of (i) 90% of the sum of the appraised values
of the related Mortgaged Properties as determined by Updated Appraisals obtained
by the Servicer of the Mortgaged Properties securing such Mortgage Loan over
(ii) the sum of (A) to the extent not previously advanced by the Servicer, the
Trustee or the Fiscal Agent, all unpaid interest on such Mortgage Loan at a per
annum rate equal to its Mortgage Rate, (B) all unreimbursed Advances, with
interest thereon at the Advance Rate, in respect of such Mortgage Loan and (C)
all currently due and unpaid real estate taxes, ground rents and assessments and
insurance premiums and all other amounts due and unpaid with respect to such
Mortgage Loan (which taxes, premiums and other amounts have not been the subject
of an Advance by the Servicer, the Trustee or the Fiscal Agent, as applicable).
If no Updated Appraisal has been obtained within the last 12 months prior to the
first Distribution Date on or after an Appraisal Reduction Event has occurred,
the Servicer shall estimate the value of the related Mortgaged Properties (the
"Servicer's Appraisal Estimate") and such estimate shall be used for purposes of
determining the Appraisal Reduction Amount for such Distribution Date. Within 30
days after the Servicer receives notice or is otherwise aware of the Appraisal
Reduction Event, the Servicer shall obtain an Updated Appraisal. On the first
Distribution Date occurring on or after the delivery of such appraisal, the
Servicer shall adjust the Appraisal Reduction Amount to take into account such
appraisal (regardless of whether the Updated Appraisal is higher or lower than
the Servicer's Appraisal Estimate). Each Appraisal Reduction Amount shall also
be adjusted to take into account any subsequent Updated Appraisal and annual
letter updates, as of the date of each such subsequent Updated Appraisal or
letter update.
"Appraisal Reduction Event": With respect to any Mortgage Loan, the first
Distribution Date following the earliest of (i) the third anniversary of the
date on which an extension of the Maturity Date of such Mortgage Loan becomes
effective as a result of a modification of such Mortgage Loan by the Special
Servicer pursuant to the terms hereof, which extension does not change the
amount of Monthly Payments on the Mortgage Loan (unless during such extension
period the borrower has been delinquent for 60 days or more, in which case, the
first Distribution Date following such 60 day delinquency), (ii) 90 days after
an uncured Delinquency (without regard to the application of any grace period)
occurs in respect of such Mortgage Loan, (iii) immediately after the date on
which a reduction in the amount of Monthly Payments on such Mortgage Loan, or a
change in any other material economic term of such Mortgage Loan (other than an
extension of the Maturity Date), becomes effective as a result of a modification
of such Mortgage Loan by the Special Servicer, (iv) immediately after a receiver
has been appointed, (v) immediately after a borrower declares bankruptcy, (vi)
immediately after a Mortgage Loan becomes an REO Mortgage Loan, (vii) upon a
default in the payment of a Balloon Payment, (viii) immediately upon the
occurrence of an event for which a Property Advance would be required to be made
by the Servicer or (ix) any other event which, in the discretion of the Servicer
and of which the Servicer becomes aware in performing its obligations hereunder,
in accordance with the Servicing Standard, would materially and adversely impair
the value of a Mortgaged Property and security for the related Mortgage Loan.
The Special Servicer shall notify the Servicer promptly upon the occurrence of
any of the foregoing events.
"Assignment of Leases, Rents and Profits": With respect to any Mortgaged
Property, any assignment of leases, rents and profits or similar agreement
executed by the Borrower, assigning to the mortgagee all of the income, rents
and profits derived from the ownership, operation, leasing or disposition of all
or a portion of such Mortgaged Property, in the form which was duly executed,
acknowledged and delivered, as amended, modified, renewed or extended through
the date hereof and from time to time hereafter.
"Assignment of Mortgage": An assignment of Mortgage without recourse,
notice of transfer or equivalent instrument, in recordable form, which is
sufficient under the laws of the jurisdiction in which the related Mortgaged
Property is located to reflect of record the sale of the Mortgage, which
assignment, notice of transfer or equivalent instrument may be in the form of
one or more blanket assignments covering Mortgages encumbering Mortgaged
Properties located in the same jurisdiction, if permitted by law and acceptable
for recording; provided, however, that none of the Trustee, the Custodian and
the Servicer shall be responsible for determining whether any assignment is
legally sufficient or in recordable form.
"Assumed Maturity Date": With respect to any Mortgage Loan that is not a
Balloon Loan, the maturity date of such Mortgage Loan. With respect to any
Balloon Loan, the date on which such Mortgage Loan would be deemed to mature in
accordance with its original amortization schedule absent its Balloon Payment.
"Assumed Scheduled Payment": With respect to any Mortgage Loan that is
delinquent in respect of its Balloon Payment (including any REO Mortgage Loan as
to which the Balloon Payment would have been past due), an amount equal to the
sum of (a) the principal portion of the Monthly Payment that would have been due
on such Mortgage Loan on the related Due Date (or portion thereof not received),
based on the constant Monthly Payment that would have been due on such Mortgage
Loan on the related Due Date based on the constant payment required by the
related Note or the amortization or payment schedule thereof (as calculated with
interest at the related Mortgage Rate) (if any), assuming such Balloon Payment
had not become due, after giving effect to any prior modification, and (b)
interest at the applicable Mortgage Pass-Through Rate.
"Assumption Fees": Any fees collected by the Servicer or Special Servicer
in connection with an assumption or modification of a Mortgage Loan or
substitution of a Borrower thereunder permitted to be executed under the
provisions of this Agreement.
"Authenticating Agent": Any authenticating agent appointed by the Trustee
pursuant to Section 3.20.
"Available Funds": For a Distribution Date, the sum of (i) all previously
undistributed Monthly Payments, Minimum Defaulted Monthly Payments or other
receipts on account of principal and interest (including Unscheduled Payments
and any Net REO Proceeds transferred from an REO Account pursuant to Section
3.17(b)) on or in respect of the Mortgage Loans, received by the Servicer in the
Collection Period relating to such Distribution Date, (ii) all other amounts
received by the Servicer in such Collection Period and required to be placed in
the Collection Account by the Servicer pursuant to Section 3.05 allocable to
such Mortgage Loans, and including all P&I Advances (excluding Subordinate Class
Advance Amounts) made by the Servicer, the Trustee or the Fiscal Agent in
respect of such Distribution Date, (iii) for the Distribution Date occurring in
each March, the Withheld Amounts remitted to the Distribution Account pursuant
to Section 3.27(b), (iv) any late payments of Monthly Payments received after
the end of the Collection Period relating to such Distribution Date but prior to
the related Servicer Remittance Date and (v) any Servicer Prepayment Interest
Shortfalls remitted by the Servicer to the Collection Account, but excluding the
following:
(a) amounts permitted to be used to reimburse the Servicer, the Special
Servicer, the Trustee or the Fiscal Agent, as applicable, for
previously unreimbursed Advances and interest thereon as described in
Section 3.06(ii) and (iii);
(b) those portions of each payment of interest which represent the
applicable Servicing Fee, and Trustee Fee and an amount representing
any applicable Special Servicing Compensation, including interest
thereon at the Advance Rate as provided in this Agreement;
(c) all amounts in the nature of late fees (subject to Section 3.12
hereof), loan modification fees, extension fees, loan service
transaction fees, demand fees, beneficiary statement charges,
Assumption Fees and similar fees, which the Servicer or the Special
Servicer is entitled to retain as Servicing Compensation or Special
Servicing Compensation, respectively;
(d) all amounts representing scheduled Monthly Payments due after the
related Due Date;
(e) that portion of Net Liquidation Proceeds or Net Insurance Proceeds
with respect to a Mortgage Loan which represents any unpaid Servicing
Fee, Trustee Fee and Special Servicing Compensation, including
interest thereon at the Advance Rate as provided in this Agreement, to
which the Servicer, Trustee and the Special Servicer, respectively,
are entitled;
(f) all amounts representing certain expenses reimbursable or payable to
the Servicer, the Special Servicer, the Trustee or the Fiscal Agent
and other amounts permitted to be retained by the Servicer or
withdrawn by the Servicer from the Collection Account to the extent
expressly set forth in this Agreement (including, without limitation,
as provided in Section 3.06 and including any indemnities provided for
herein), including interest thereon as provided in this Agreement;
(g) any interest or investment income on funds on deposit in the
Collection Account, the Upper-Tier Distribution Account, the
Distribution Account, the Default Interest Distribution Account, the
Excess Interest Distribution Account, the Interest Reserve Account,
any Cash Collateral Account, any Lock-Box Account, any Reserve Account
or any REO Account or in Permitted Investments in which such funds may
be invested;
(h) with respect to the Interest Reserve Loans and any Distribution Date
relating to each Interest Accrual Period ending in each February or
any January in a year immediately preceding a year which is not a leap
year, an amount equal to one day of interest on the Stated Principal
Balance of such Mortgage Loan as of the Due Date in the month
preceding the month in which such Distribution Date occurs at the
related Mortgage Rate to the extent such amounts are to be deposited
in the Interest Reserve Account and held for future distribution
pursuant to Section 3.27;
(i) all amounts received with respect to each Mortgage Loan previously
purchased or repurchased pursuant to Sections 2.03(d), 2.03(e), 3.18
or 9.01 during the related Collection Period and subsequent to the
date as of which the amount required to effect such purchase or
repurchase was determined;
(j) the amount reasonably determined by the Trustee to be necessary to pay
any applicable federal, state or local taxes imposed on the Upper-Tier
REMIC or the Lower-Tier REMIC under the circumstances and to the
extent described in Section 4.05;
(k) Prepayment Premiums;
(l) Default Interest; and
(m) Excess Interest.
"Balloon Loan": Any Mortgage Loan that requires a payment of principal on
the maturity date in excess of its constant Monthly Payment.
"Balloon Payment": With respect to each Mortgage Loan, the scheduled
payment of principal due on the Maturity Date (less principal included in the
applicable amortization schedule or scheduled Monthly Payment).
"Beneficial Owner": With respect to a Global 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 Person maintaining an account with such
Depository (directly as a Depository Participant or indirectly through a
Depository Participant, in accordance with the rules of such Depository) and
with respect to the Classes of Global Certificates comprising the Units, the
beneficial owner of such Unit as reflected on the books of the Depository or on
the books of a Person maintaining an account with such Depository (directly as a
Depository Participant or indirectly through a Depository Participant, in
accordance with the rules of such Depository) with respect to such Classes. Each
of the Trustee and the Servicer shall have the right to require, as a condition
to acknowledging the status of any Person as a Beneficial Owner under this
Agreement, that such Person provide evidence at its expense of its status as a
Beneficial Owner hereunder.
"Bloomfield Purchase Agreement": With respect to any Mortgage Loan not
originated by the Mortgage Loan Seller, the agreement between the Mortgage Loan
Seller and Bloomfield Acceptance Company, LLC pursuant to which the Mortgage
Loan Seller acquired such Mortgage Loan.
"Borrower": With respect to any Mortgage Loan, any obligor or obligors on
any related Note or Notes.
"Borrower Account": As defined in Section 3.07(a).
"Business Day": Any day other than a Saturday, a Sunday or any day on which
banking institutions in the City of New York, New York, the City of Chicago,
Illinois, the State of Georgia or the State of Texas are authorized or obligated
by law, executive order or governmental decree to be closed.
"Cash Collateral Account": With respect to any Mortgage Loan that has a
Lock-Box Account, any account or accounts created pursuant to the related
Mortgage, Loan Agreement, Cash Collateral Account Agreement or other loan
document into which the Lock-Box Account monies are swept on a regular basis for
the benefit of the Trustee as successor to the Mortgage Loan Seller. Any Cash
Collateral Account shall be beneficially owned for federal income tax purposes
by the Person who is entitled to receive all reinvestment income or gain thereon
in accordance with the terms and provisions of the related Mortgage Loan and
Section 3.07, which Person shall be taxed on all reinvestment income or gain
thereon. The Servicer shall be permitted to make withdrawals therefrom for
deposit into the Collection Account. To the extent not inconsistent with the
terms of the related Mortgage Loan, each such Cash Collateral Account shall be
an Eligible Account.
"Cash Collateral Account Agreement": With respect to any Mortgage Loan, the
cash collateral account agreement, if any, between the Originator and the
related Borrower, pursuant to which the related Cash Collateral Account, if any,
may have been established.
"Cash Deposit": An amount equal to all cash payments of principal and
interest received by the Mortgage Loan Seller in respect of the Mortgage Loans
prior to or on the Closing Date that are due after the Cut-off Date.
"CEDEL": Citibank, N.A., as depositary for Centrale de Livraison de Valeurs
Mobilieres, S.A., or its successor in such capacity.
"Certificate": Any Class A-1A, Class A-1B, Class A-1C, Class A-1D, Class
A-1E, Class A-CS1, Class PS-1, Class A-2, Class A-3, Class A-4, Class A-5, Class
A-6, Class A-7, Class A-8, Class B-1, Class B-2, Class B-3, Class B-4, Class
B-5, Class B-6, Class B-7, Class B-7H, Class V-1, Class V-2, Class R or Class LR
Certificate issued, authenticated and delivered hereunder.
"Certificate Balance": With respect to any Class of Certificates or
Lower-Tier Regular Interests (other than the Class A-CS1, Class PS-1, Class V-1,
Class V-2, Class R and Class LR Certificates) (a) on or prior to the first
Distribution Date, an amount equal to the aggregate initial Certificate Balance
of such Class, as specified in the Preliminary Statement hereto, (b) as of any
date of determination after the first Distribution Date, the Certificate Balance
of such Class of Certificates or Lower-Tier Regular Interests on the
Distribution Date immediately prior to such date of determination after
distributions and Realized Losses allocable to principal have been made thereon
on such prior Distribution Date; provided that for purposes of determining
Voting Rights, the Certificate Balance of the Class (other than the Class A-1A,
Class A-1B, Class A-1C and Class A-1D Certificates) shall be deemed to have been
reduced by an amount equal to the amount of Appraisal Reductions allocated for
purposes of Section 4.06 and in reverse order of alphabetical designation;
provided further that no such reduction shall apply to the Voting Rights of the
Class PS-1 and Class A-CS1 Certificates. With respect to any Class of Lower-Tier
Regular Interests, the Certificate Balance thereof shall, in any event, be equal
to the Certificate Balance of the Related Certificates.
"Certificate Custodian": Initially, LaSalle National Bank; thereafter any
other Certificate Custodian acceptable to the Depository and selected by the
Trustee.
"Certificate Register" and "Certificate Registrar": The register maintained
and the registrar appointed pursuant to Section 5.02.
"Certificateholder": The Person whose name is registered in the Certificate
Register subject to the following:
(i) except as provided in clause (ii), for the purpose of giving any
consent or taking any action pursuant to this Agreement, any Certificate
beneficially owned by the Depositor, the Servicer, the Special Servicer, the
Trustee, a Manager or a Borrower or any Person known to a Responsible Officer of
the Certificate Registrar to be an Affiliate of any thereof 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 or take any such action has been
obtained;
(ii) for purposes of obtaining the consent of Certificateholders to an
amendment of the Pooling and Servicing Agreement, any Certificates beneficially
owned by the Servicer or the Special Servicer or an Affiliate thereof shall be
deemed to be outstanding, unless such amendment relates to compensation of the
Servicer or the Special Servicer or benefits the Servicer or the Special
Servicer (in its capacity as such) or any Affiliate thereof (other than solely
in its capacity as Certificateholder) in any material respect, in which case
such Certificates shall be deemed not to be outstanding;
(iii) except as provided in clause (iv) below, for purposes of obtaining
the consent of Certificateholders to any action proposed to be taken by the
Special Servicer with respect to a Specially Serviced Mortgage Loan, any
Certificates beneficially owned by the Special Servicer or an Affiliate thereof
shall be deemed not to be outstanding;
(iv) for purposes of Section 3.30 (for purposes of determining who the
Directing Holders are), Certificates owned by the Special Servicer or an
Affiliate shall be deemed to be outstanding; and
(v) for purposes of providing or distributing any reports, statements or
other information required or permitted to be provided to a Certificateholder
hereunder, a Certificateholder shall include any Beneficial Owner, or any Person
identified by a Beneficial Owner as a prospective transferee of a Certificate
beneficially owned by such Beneficial Owner, but only if the Trustee or another
party hereto furnishing such report, statement or information has been provided
with the name of the Beneficial Owner of the related Certificate or the Person
identified as a prospective transferee thereof. For purposes of the foregoing,
the Depositor, the Servicer, the Special Servicer, the Trustee, the Paying
Agent, the Fiscal Agent or other such Person may rely, without limitation, on a
Depository Participant listing from the Depository or statements furnished by a
Person that on their face appear to be statements from a Depository Participant
to such Person indicating that such Person beneficially owns Certificates.
"Class": With respect to the Certificates or Lower-Tier Regular Interests,
all of the Certificates or Lower-Tier Regular Interests bearing the same
alphabetical and numerical Class designation.
"Class A-1A Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-3 hereto.
"Class A-1A Pass-Through Rate": A per annum rate equal to 7.35%.
"Class A-1A-L Interest": A regular interest in the Lower-Tier REMIC
entitled to monthly distributions payable thereto pursuant to Section 4.01.
"Class A-1B Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-4 hereto.
"Class A-1B Pass-Through Rate": A per annum rate equal to 7.40%.
"Class A-1B-L Interest": A regular interest in the Lower-Tier REMIC
entitled to monthly distributions payable thereto pursuant to Section 4.01.
"Class A-1C Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-5 hereto.
"Class A-1C Pass-Through Rate": A per annum rate equal to 7.42%.
"Class A-1C-L Interest": A regular interest in the Lower-Tier REMIC
entitled to monthly distributions payable thereto pursuant to Section 4.01.
"Class A-1D Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-6 hereto.
"Class A-1D Pass-Through Rate": A per annum rate equal to 7.49%.
"Class A-1D-L Interest": A regular interest in the Lower-Tier REMIC
entitled to monthly distributions payable thereto pursuant to Section 4.01.
"Class A-1E Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-7 hereto.
"Class A-1E Pass-Through Rate": A per annum rate equal to 7.525%.
"Class A-1E-L Interest": A regular interest in the Lower-Tier REMIC
entitled to monthly distributions payable thereto pursuant to Section 4.01.
"Class A-2 Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-8 hereto.
"Class A-2 Pass-Through Rate": A per annum rate equal to the Weighted
Average Net Mortgage Pass-Through Rate minus 1.21%.
"Class A-2-L Interest": A regular interest in the Lower-Tier REMIC entitled
to monthly distributions payable thereto pursuant to Section 4.01.
"Class A-3 Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-9 hereto.
"Class A-3 Pass-Through Rate": A per annum rate equal to the Weighted
Average Net Mortgage Pass-Through Rate minus 1.16%.
"Class A-3-L Interest": A regular interest in the Lower-Tier REMIC entitled
to the monthly distributions payable thereto pursuant to Section 4.01.
"Class A-4 Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-10 hereto.
"Class A-4 Pass-Through Rate": A per annum rate equal to the Weighted
Average Net Mortgage Pass-Through Rate minus 1.13%.
"Class A-4-L Interest": A regular interest in the Lower-Tier REMIC entitled
to the monthly distributions payable thereto pursuant to Section 4.01.
"Class A-5 Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-11 hereto.
"Class A-5 Pass-Through Rate": A per annum rate equal to the Weighted
Average Net Mortgage Pass-Through Rate minus 1.08%.
"Class A-5-L Interest": A regular interest in the Lower-Tier REMIC entitled
to the monthly distributions payable thereto pursuant to Section 4.01.
"Class A-6 Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-12 hereto.
"Class A-6 Pass-Through Rate": A per annum rate equal to the Weighted
Average Net Mortgage Pass-Through Rate minus 0.99%.
"Class A-6-L Interest": A regular interest in the Lower-Tier REMIC entitled
to the monthly distributions payable thereto pursuant to Section 4.01.
"Class A-7 Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-13 hereto.
"Class A-7 Pass-Through Rate": A per annum rate equal to the Weighted
Average Net Mortgage Pass-Through Rate minus 0.94%.
"Class A-7-L Interest": A regular interest in the Lower-Tier REMIC entitled
to the monthly distributions payable thereto pursuant to Section 4.01.
"Class A-8 Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-14 hereto.
"Class A-8 Pass-Through Rate": A per annum rate equal to the Weighted
Average Net Mortgage Pass-Through Rate minus 0.59%.
"Class A-8-L Interest": A regular interest in the Lower-Tier REMIC entitled
to the monthly distributions payable thereto pursuant to Section 4.01.
"Class A-CS1 Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-1 hereto.
"Class A-CS1 Pass-Through Rate": A per annum rate equal to the Weighted
Average Net Mortgage Pass-Through Rate minus 7.35%.
"Class B-1 Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-15 hereto.
"Class B-1 Pass-Through Rate": A per annum rate equal to 7.525%.
"Class B-1-L Interest": A regular interest in the Lower-Tier REMIC entitled
to the monthly distributions payable thereto pursuant to Section 4.01.
"Class B-2 Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-__ hereto.
"Class B-2 Pass-Through Rate": A per annum rate equal to 7.525%.
"Class B-2-L Interest": A regular interest in the Lower-Tier REMIC entitled
to the monthly distributions payable thereto pursuant to Section 4.01.
"Class B-3 Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-17 hereto.
"Class B-3 Pass-Through Rate": A per annum rate equal to 7.525%.
"Class B-3-L Interest": A regular interest in the Lower-Tier REMIC entitled
to the monthly distributions payable thereto pursuant to Section 4.01.
"Class B-4 Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-18 hereto.
"Class B-4 Pass-Through Rate": A per annum rate equal to 7.525%.
"Class B-4-L Interest": A regular interest in the Lower-Tier REMIC entitled
to monthly distributions payable thereto pursuant to Section 4.01.
"Class B-5 Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-19 hereto.
"Class B-5 Pass-Through Rate": A per annum rate equal to 7.525%.
"Class B-5-L Interest": A regular interest in the Lower-Tier REMIC entitled
to monthly distributions payable thereto pursuant to Section 4.01.
"Class B-6 Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-20 hereto.
"Class B-6 Pass-Through Rate": A per annum rate equal to 7.525%.
"Class B-6-L Interest": A regular interest in the Lower-Tier REMIC entitled
to monthly distributions payable thereto pursuant to Section 4.01.
"Class B-7 Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-21 hereto.
"Class B-7 Pass-Through Rate": A per annum rate equal to the Weighted
Average Net Mortgage Pass-Through Rate.
"Class B-7-L Interest": A regular interest in the Lower-Tier REMIC entitled
to the monthly distributions payable thereto pursuant to Section 4.01.
"Class B-7H Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-22 hereto.
"Class B-7H Pass-Through Rate": A per annum rate equal to the Weighted
Average Net Mortgage Pass-Through Rate.
"Class B-7H-L Interest": A regular interest in the Lower-Tier REMIC
entitled to the monthly distributions payable thereto pursuant to Section 4.01.
"Class Interest Distribution Amount": With respect to any Distribution Date
and the Class A-1A, Class A-1B, Class A-1C, Class A-1D, Class A-1E, Class A-CS1,
Class A-2, Class A-3, Class A-4, Class A-5, Class A-6, Class A-7, Class A-8,
Class B-1, Class B-2, Class B-3, Class B-4, Class B-5, Class B-6, Class B-7 and
Class B-7H Certificates, an amount equal to the Interest Accrual Amount thereof
for such Distribution Date; with respect to any Distribution Date and the Class
PS-1 Certificates, the Interest Accrual Amounts thereof for such Distribution
Date minus the aggregate Reduction Interest Distribution Amounts in respect of
such Distribution Date.
"Class Interest Shortfall": On any Distribution Date for any Class of
Certificates, the amount of interest (other than Net Default Interest, Excess
Interest, Reduction Interest Distribution Amounts or Reduction Interest
Shortfalls) required to be distributed to the Holders of such Class pursuant to
Section 4.01(b) on such Distribution Date minus the amount of interest (other
than Net Default Interest, Excess Interest, Reduction Interest Distribution
Amounts or Reduction Interest Shortfalls) actually distributed to such Holders
pursuant to such Section, if any.
"Class PS-1 Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-2 hereto.
"Class PS-1 Pass Through Rate": A per annum rate equal to the Weighted
Average Net Mortgage Pass-Through Rate minus the Weighted Average Pass-Through
Rate.
"Class LR Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-26 hereto. The Class
LR Certificates have no Pass-Through Rate, Certificate Balance or Notional
Balance.
"Class R Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-25 hereto. The Class
R Certificates have no Pass-Through Rate, Certificate Balance or Notional
Balance.
"Class V-1 Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibit A-23 hereto. The Class
V-1 Certificates have no Pass-Through Rate, Certificate Balance or Notional
Balance.
"Class V-2 Certificate": Any one of the Certificates executed and
authenticated by the Trustee or the Authenticating Agent on behalf of the
Depositor in substantially the form set forth in Exhibits A-24 hereto. The Class
V-2 Certificates have no Pass-Through Rate, Certificate Balance or Notional
Balance.
"Closing Date": On or about March 27, 1997.
"Code": The Internal Revenue Code of 1986, as amended from time to time,
any successor statute thereto, and any temporary or final regulations of the
United States Department of the Treasury promulgated pursuant thereto.
"Collateral Account": As defined in Section 3.30(e). The Collateral Account
shall be maintained as an Eligible Account.
"Collection Account": The trust account or accounts created and maintained
by the Servicer pursuant to Section 3.05(a), which shall be entitled "AMRESCO
Management, Inc. in trust for LaSalle National Bank, as Trustee, in trust for
Holders of Asset Securitization Corporation, Commercial Mortgage Pass-Through
Certificates, Series 1997-D4, Collection Account" and which must be an Eligible
Account.
"Collection Period": With respect to a Distribution Date and each Mortgage
Loan, the period beginning on the day after the Due Date, in the month preceding
the month in which such Distribution Date occurs (or, in the case of the
Distribution Date occurring in April 1997, on the day after the Cut-off Date)
and ending at the close of business on the Due Date, in the month in which such
Distribution Date occurs.
"Commission": The Securities and Exchange Commission.
"Comparative Financial Status Report": A report substantially containing
the content described in Exhibit I-1 attached hereto, setting forth, among other
things, the occupancy, revenue, net operating income and Debt Service Coverage
Ratio for each Mortgage Loan as of the date of the latest financial information
available immediately preceding the preparation of such report for each of the
following three periods (to the extent such information is available): (i) the
most current available year-to-date, (ii) the previous two full fiscal years,
and (iii) the "base year" (representing the original analysis of information
used as of the Cut-off Date). For the purposes of the Servicer's production of
any such report that is required to state information for any period prior to
the Cut-off Date, the Servicer may conclusively rely (without independent
verification), absent manifest error, on information provided to it by the
Mortgage Loan Seller.
"Corporate Trust Office": The principal office of the Trustee located at
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000 or the principal
trust office of any successor trustee qualified and appointed pursuant to
Section 8.08.
"Cross-over Date": means the Distribution Date on which the Certificate
Balance of each Class of Certificates other than the Class A-1A, Class A-1B,
Class A-1C and Class A-1D Certificates have been reduced to zero.
"Custodial Agreement": The Custodial Agreement, if any, from time to time
in effect between the Custodian named therein and the Trustee, substantially in
the form of Exhibit F hereto, as the same may be amended or modified from time
to time in accordance with the terms thereof.
"Custodian": Any Custodian appointed pursuant to Section 3.21 and, unless
the Trustee is Custodian, named pursuant to any Custodial Agreement. The
Custodian may (but need not) be the Trustee or the Servicer or any Affiliate of
the Trustee or the Servicer, but may not be the Depositor or any Affiliate
thereof.
"Cut-off Date": March 27, 1997.
"DCR": Duff & Xxxxxx Credit Rating Co., or its successor in interest.
"Debt Service Coverage Ratio": With respect to any Mortgage Loan as of any
date of determination and for any period, the ratio calculated by dividing the
net operating income of the related Mortgaged Property or Mortgaged Properties,
as the case may be, for the most recently ended one-year period for which data
is available from the related Borrower, before payment of any scheduled payments
of principal and interest on such Mortgage Loan but after funding of required
reserves and "normalized" by the Servicer pursuant to Section 3.13, by the
annual debt service required by such Mortgage Loan. Annual debt service shall be
calculated by multiplying the Monthly Payment in effect on such date of
determination for such Mortgage Loan by 12.
"Default Interest": With respect to any Mortgage Loan, interest accrued on
such Mortgage Loan at the excess of (i) the related Default Rate over (ii) the
sum of the related Mortgage Rate and, if applicable, the related Excess Rate.
The Default Interest shall not be an asset of the Lower-Tier REMIC or the
Upper-Tier REMIC formed hereunder.
"Default Interest Distribution Account": The trust account or accounts
created and maintained as a separate trust account or accounts by the Trustee
pursuant to Section 3.05(d), which shall be entitled "LaSalle National Bank, as
Trustee, in trust for Holders of Asset Securitization Corporation, Commercial
Mortgage Pass-Through Certificates, Series 1997-D4, Default Interest
Distribution Account" and which must be an Eligible Account. The Default
Interest Distribution Account shall not be an asset of the Lower-Tier REMIC or
the Upper-Tier REMIC formed hereunder.
"Default Rate": With respect to each Mortgage Loan, the per annum rate at
which interest accrues on such Mortgage Loan following any event of default on
such Mortgage Loan, including a default in the payment of a Monthly Payment or a
Balloon Payment, as such rate is set forth on the Mortgage Loan Schedule.
"Delinquency": Any failure of a Borrower to make a scheduled payment on a
Due Date.
"Delinquency Reduction Amount": In connection with a Delinquency, an amount
equal to the scheduled payment (or portion thereof) due on the related Due Date
(adjusted to the applicable Net Mortgage Pass-Through Rate with respect to the
interest portion) and not received from a Borrower under any Mortgage Loan.
"Delinquent Loan Status Report": A report substantially containing the
content described in Exhibit I-2 attached hereto, setting forth, among other
things, those Mortgage Loans which, as of the close of business on the Due Date
immediately preceding the preparation of such report, were delinquent 1
Collection Period, delinquent 2 Collection Periods, delinquent 3 Collection
Periods or more, current but specially serviced, or were in foreclosure but were
not REO Property.
"Denomination": As defined in Section 5.01(a).
"Depositor": Asset Securitization Corporation, a Delaware corporation, and
its successors and assigns.
"Depository": The Depository Trust Company or a successor appointed by the
Certificate Registrar (which appointment shall be at the direction of the
Depositor if the Depositor is legally able to do so).
"Depository Participant": A Person for whom, from time to time, the
Depository effects book-entry transfers and pledges of securities deposited with
the Depository.
"Directing Holders": As defined in Section 3.30(d).
"Directly Operate": With respect to any REO Property, the furnishing or
rendering of services to the tenants thereof that are not customarily provided
to tenants in connection with the rental of space for occupancy only within the
meaning of Treasury Regulations Section 1.512(b)-1(c)(5), the management or
operation of such REO Property, the holding of such REO Property primarily for
sale to customers in the ordinary course of a trade or business, or any use of
such REO Property in a trade or business conducted by the Trust Fund, or the
performance of any construction work on the REO Property other than through an
Independent Contractor; provided, however, that the Special Servicer, on behalf
of the Trust Fund, shall not be considered to Directly Operate an REO Property
solely because the Special Servicer, on behalf of the Trust Fund, 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 or takes other actions consistent with Section
1.856-4(b)(5)(ii) of the regulations of the United States Department of the
Treasury.
"Discount Rate": With respect to any Class of Certificates, the rate
determined by the Trustee, in its good faith, to be the rate (interpolated and
rounded to the nearest one-thousandth of a percent, if necessary) in the
secondary market for United States Treasury securities with a maturity equal to
the then computed weighted average life (or in the case of the Class A-CS1 and
Class PS-1 Certificates, the weighted average life of the interest payments) of
such class (rounded to the nearest month), without taking into account the
related prepayment of principal.
"Disqualified Non-U.S. Person": With respect to a Class R or Class LR
Certificate, any Non-U.S. Person or agent thereof other than (i) a Non-U.S.
Person that holds the Class R or Class LR Certificate in connection with the
conduct of a trade or business within the United States and has furnished the
transferor and the Certificate Registrar with an effective IRS Form 4224 or (ii)
a Non-U.S. Person that has delivered to both the transferor and the Certificate
Registrar an opinion of a nationally recognized tax counsel to the effect that
the transfer of the Class R or Class LR Certificate to it is in accordance with
the requirements of the Code and the regulations promulgated thereunder and that
such transfer of the Class R or Class LR Certificate will not be disregarded for
federal income tax purposes.
"Disqualified Organization": Either (a) the United States, a State or any
political subdivision thereof, any possession of the United States, or any
agency or instrumentality of any of the foregoing (other than an instrumentality
that is a corporation if all of its activities are subject to tax and a majority
of its board of directors is not selected by any such governmental unit), (b) a
foreign government, International Organization or agency or instrumentality of
either of the foregoing, (c) an organization that is exempt from tax imposed by
Chapter 1 of the Code (including the tax imposed by Code Section 511 on
unrelated business taxable income) on any excess inclusions (as defined in Code
Section 860E(c)(1)) with respect to the Class R or Class LR Certificates (except
certain farmers' cooperatives described in Code Section 521), (d) rural electric
and telephone cooperatives described in Code Section 1381(a)(2), or (e) any
other Person so designated by the Certificate Registrar based upon an Opinion of
Counsel to the effect that any Transfer to such Person may cause the Upper-Tier
REMIC or Lower-Tier REMIC to be subject to tax or to fail to qualify as a REMIC
at any time that the Certificates are outstanding. The terms "United States,"
"State" and "International Organization" shall have the meanings set forth in
Code Section 7701 or successor provisions.
"Distribution Account": The trust account or accounts created and
maintained as a separate trust account or accounts by the Trustee pursuant to
Section 3.05(b), which shall be entitled "LaSalle National Bank, as Trustee, in
trust for Holders of Asset Securitization Corporation, Commercial Mortgage
Pass-Through Certificates, Series 1997-D4, Distribution Account" and which must
be an Eligible Account.
"Distribution Date": The 14th day of each month, or if such 14th day is not
a Business Day, the Business Day immediately following such 14th day, commencing
in April, 1997; provided, however, that in any month, the Distribution Date will
be no earlier than the third Business Day following the 11th day of such month;
provided, further, that if the 11th day of any month is not a Business Day, the
Distribution Date will be the fourth Business Day following the 11th day of such
month.
"Distribution Date Statement": As defined in Section 4.02(a).
"Due Date": With respect to any Distribution Date and/or any Mortgage Loan,
as the case may be, the 11th day of the month (or in the case of certain of the
Mortgage Loans, if the 11th day is not a business day, as defined in the related
Loan Documents, either the next business day or the first preceding business
day) in which such Distribution Date occurs.
"Early Termination Notice Date": Any date as of which the aggregate Stated
Principal Balance of the Mortgage Loans is less than 1.0% of the aggregate
Stated Principal Balance of the Mortgage Loans as of the Cut-off Date.
"Eligible Account": Either (i) (A) an account or accounts maintained with a
depository institution or trust company the short term unsecured debt
obligations or commercial paper of which are rated at least A-1 by S&P, P-1 by
Xxxxx'x, D-1 by DCR and F-1+ by Fitch in the case of accounts in which funds are
held for 30 days or less (or, in the case of accounts in which funds are held
for more than 30 days, the long term unsecured debt obligations of which are
rated at least "AA" by Fitch, DCR and S&P and "Aaa" by Xxxxx'x) or (B) as to
which the Trustee has received written confirmation from each of the Rating
Agencies that holding funds in such account would not cause any Rating Agency to
qualify, withdraw or downgrade any of its ratings on the Certificates or (ii) a
segregated trust account or accounts maintained with a federal or state
chartered depository institution or trust company acting in its fiduciary
capacity which, in the case of a state chartered depository institution or trust
company is subject to regulations substantially similar to 12 C.F.R. ss.9.10(b),
having in either case a combined capital and surplus of at least $50,000,000 and
subject to supervision or examination by federal and state authority, or (any
other account that, as evidenced by a written confirmation from each Rating
Agency would not, in and of itself, cause a downgrade, qualification or
withdrawal of the then current ratings assigned to the Certificates), which may
be an account maintained with the Trustee or the Servicer. Eligible Accounts may
bear interest.
"Eligible Investor": Any of (i) a Qualified Institutional Buyer that is
purchasing for its own account or for the account of a Qualified Institutional
Buyer to whom notice is given that the offer, sale or transfer is being made in
reliance on Rule 144A or (ii) an Institutional Accredited Investor.
"Environmental Report": The environmental audit report or reports with
respect to each Mortgaged Property delivered to the Mortgage Loan Seller in
connection with the related Mortgage.
"ERISA": The Employee Retirement Income Security Act of 1974, as it may be
amended from time to time.
"Escrow Account": As defined in Section 3.04(b). Any Escrow Account may be
a sub-account of the related Cash Collateral Account.
"Escrow Payment": Any payment made by any Borrower to the Servicer pursuant
to the related Mortgage, Cash Collateral Agreement, Lock-Box Agreement or Loan
Agreement for the account of such Borrower for application toward the payment of
taxes, insurance premiums, assessments and similar items in respect of the
related Mortgaged Property.
"Euroclear": Xxxxxx Guaranty Trust Company of New York, Brussels Office, as
operator of the Euroclear System, or its successor in such capacity.
"Event of Default": A Servicer Event of Default or Special Servicer Event
of Default, as applicable.
"Excess Interest": With respect to each of the Mortgage Loans indicated on
the Mortgage Loan Schedule as having a Revised Rate, interest accrued on such
Mortgage Loan allocable to the Excess Rate. The Excess Interest shall not be an
asset of the Lower-Tier REMIC or the Upper-Tier REMIC formed hereunder.
"Excess Interest Distribution Account": The trust account or accounts
created and maintained as a separate trust account or accounts by the Trustee
pursuant to Section 3.05(e), which shall be entitled "LaSalle National Bank, as
Trustee, in trust for Holders of Asset Securitization Corporation, Commercial
Mortgage Pass-Through Certificates, Series 1997-D4, Excess Interest Distribution
Account" and which must be an Eligible Account. The Excess Interest Distribution
Account shall not be an asset of the Lower-Tier REMIC or the Upper-Tier REMIC
formed hereunder.
"Excess Rate": With respect to each of the Mortgage Loans indicated on the
Mortgage Loan Schedule as having a Revised Rate, the excess of (i) the
applicable Revised Rate over (ii) the applicable Mortgage Rate, each as set
forth in the Mortgage Loan Schedule.
"Exchange Act": The Securities Exchange Act of 1934, as amended.
"Exchange Act Report": A monthly Distribution Date Statement, Comparative
Financial Status Report, Delinquent Loan Status Report, Historical Loss Estimate
Report, Historical Loan Modification Report, REO Status Report, Operating
Statement Analysis, NOI Adjustment Worksheet, Watch List, or report pursuant to
Section 4.02(b)(i) or Annual Compliance Report to be filed with the Commission,
under cover of the related form required by the Exchange Act.
"FDIC": The Federal Deposit Insurance Corporation, or any successor
thereto.
"FHA": The Federal Housing Administration.
"FHLMC": The Federal Home Loan Mortgage Corporation, or any successor
thereto.
"Final Recovery Determination": With respect to any Specially Serviced
Mortgage Loan or Mortgage Loan subject to repurchase by the Depositor or the
Mortgage Loan Seller pursuant to Sections 2.03(d) or 2.03(e), the recovery of
all Insurance Proceeds, Liquidation Proceeds, the related Repurchase Price and
other payments or recoveries (including proceeds of the final sale of any REO
Property) which the Servicer (or in the case of a Specially Serviced Mortgage
Loan, the Special Servicer), in its reasonable judgment as evidenced by a
certificate of a Servicing Officer delivered to the Trustee and the Custodian
(and the Servicer, if the Certificate is from the Special Servicer), expects to
be finally recoverable. The Servicer shall maintain records, prepared by a
Servicing Officer, of each Final Recovery Determination until the earlier of (i)
its termination as Servicer hereunder and the transfer of such records to a
successor servicer and (ii) five years following the termination of the Trust
Fund.
"Financial Market Publisher": Bloomberg Financial Service.
"Fiscal Agent": ABN AMRO Bank N.V., a Netherlands banking corporation in
its capacity as fiscal agent of the Trustee, or its successor in interest, or
any successor fiscal agent appointed as herein provided.
"Fitch": Fitch Investors Service, L.P., or its successor in interest.
"Fixed Voting Rights": As defined in the definition of "Voting Rights."
"Form 8-K": A Current Report on Form 8-K under the Exchange Act, or such
successor form as the Commission may specify from time to time.
"FNMA": The Federal National Mortgage Association, or any successor
thereto.
"Global Certificates": The Class A-1A, Class A-1B, Class A-1C, Class A-1D,
Class A-1E, Class A-CS1, Class PS-1, Class A-2, Class A-3, Class A-4, Class A-5,
Class A-6, Class A-7, Class A-8, Class B-1, Class B-2, Class B-3, Class B-4,
Class B-5, and Class B-6 Certificates.
"Hazardous Materials": Any dangerous, toxic or hazardous pollutants,
chemicals, wastes, or substances, including, without limitation, those so
identified pursuant to the Comprehensive Environmental Response, Compensation
and Liability Act, 42 U.S.C. Section 9601 et seq., or any other environmental
laws now existing, and specifically including, without limitation, asbestos and
asbestos-containing materials, polychlorinated biphenyls ("PCBs"), radon gas,
petroleum and petroleum products, urea formaldehyde and any substances
classified as being "in inventory", "usable work in process" or similar
classification which would, if classified as unusable, be included in the
foregoing definition.
"Historical Loan Modification Report": A report substantially containing
the content described in Exhibit I-3 attached hereto, setting forth, among other
things, those Mortgage Loans which, as of the close of business on the Due Date
immediately preceding the preparation of such report, have been modified
pursuant to this Agreement (i) during the related Collection Period and (ii)
since the Cut-off Date, showing the original and the revised terms thereof.
"Historical Loss Estimate Report": A report substantially containing the
content described in Exhibit I-4 attached hereto, setting forth, among other
things, as of the close of business on the Due Date immediately preceding the
preparation of such report, (i) the aggregate amount of Liquidation Proceeds and
Liquidation Expenses, both for the current period and historically, and (ii) the
amount of Realized Losses occurring during the related Collection Period, set
forth on a Mortgage Loan-by-Mortgage Loan basis.
"Holder": With respect to any Certificate, a Certificateholder; with
respect to the Classes of Certificates comprising any Unit, a Unitholder; with
respect to any Lower-Tier Regular Interest, the Trustee.
"Indemnified Party": As defined in Section 8.05(c).
"Independent": When used with respect to any specified Person, any such
Person who (i) does not have any direct financial interest, or any material
indirect financial interest, in any of the Depositor, the Trustee, the Servicer,
the Special Servicer, any Borrower or Manager or any Affiliate thereof, and (ii)
is not connected with any such Person thereof as an officer, employee, promoter,
underwriter, trustee, partner, director or Person performing similar functions.
"Independent Contractor": Either (i) any Person that would be an
"independent contractor" with respect to the Trust Fund within the meaning of
Section 856(d)(3) of the Code if the Trust Fund were a real estate investment
trust (except that the ownership tests 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 or 35% or more of the aggregate value of all Classes of
Certificates), provided that the Trust Fund does not receive or derive any
income from such Person and the relationship between such Person and the Trust
Fund is at arm's length, all within the meaning of Treasury Regulations Section
1.856-4(b)(5) (except neither the Servicer nor the Special Servicer shall be
considered to be an Independent Contractor under the definition in this clause
(i) unless an Opinion of Counsel (at the expense of the party seeking to be
deemed an Independent) addressed to the Servicer and the Trustee has been
delivered to the Trustee to that effect) or (ii) any other Person (including the
Servicer and the Special Servicer) if the Servicer, on behalf of itself and the
Trustee, has received an Opinion of Counsel (at the expense of the party seeking
to be deemed an Independent Contractor) to the effect that the taking of any
action in respect of any REO Property by such Person, subject to any conditions
therein specified, that is otherwise herein contemplated to be taken by an
Independent Contractor will not cause such REO Property to cease to qualify as
"foreclosure property" within the meaning of Section 860G(a)(8) of the Code
(determined without regard to the exception applicable for purposes of Section
860D(a) of the Code) or cause any income realized in respect of such REO
Property to fail to qualify as Rents from Real Property (provided that such
income would otherwise so qualify).
"Individual Certificate": Any Certificate in definitive, fully registered
physical form without interest coupons.
"Institutional Accredited Investor": An entity meeting the requirements of
Rule 501(a)(1), (2), (3) or (7) of Regulation D promulgated under the Act, or an
entity in which all the equity owners meet such requirements.
"Instructions": As defined in Section 3.30(d).
"Insurance Proceeds": Proceeds of any fire and hazard insurance policy,
title policy or other insurance policy relating to a Mortgage Loan (including
any amounts paid by the Servicer pursuant to Section 3.08).
"Interest Accrual Amount": With respect to any Distribution Date and any
Class of Certificates (other than the Class A-CS1, Class PS-1, Class V-1, Class
V-2, Class R and Class LR Certificates), an amount equal to interest for the
related Interest Accrual Period at the Pass-Through Rate for such Class on the
related Certificate Balance or Notional Balance, as applicable (provided, that
for interest accrual purposes any distributions in reduction of Certificate
Balance or reductions in Certificate Balance as a result of allocations of
Realized Losses on the Distribution Date occurring in an Interest Accrual Period
shall be deemed to have been made on the first day of such Interest Accrual
Period). The "Interest Accrual Amount" with respect to any Distribution Date and
the Class A-CS1 Certificates is equal to interest for the related Interest
Accrual Period at the Pass-Through Rate for such class for such Interest Accrual
Period on the Notional Balance of such class (provided, that any reductions in
the Notional Balance of such class as a result of distributions in reduction of
the Certificate Balance of the Class A-1A Certificates or allocations of
Realized Losses to the Certificate Balance of the Class A-1A Certificates on the
Distribution Date occurring in an Interest Accrual Period, shall be deemed to
have occurred on the first day of such Interest Accrual Period). The "Interest
Accrual Amount" with respect to any Distribution Date and the Class PS-1
Certificates shall be equal to interest for the related Interest Accrual Period
at the Pass-Through Rate for such class for such Interest Accrual Period on the
Notional Balance of such class. Calculations of interest due in respect of the
Certificates shall be made on the basis of a 360-day year consisting of twelve
30-day months. With respect to any Lower-Tier Regular Interest and any
Distribution Date, an amount equal to interest for the related Interest Accrual
Period at the Lower-Tier Pass-Through Rate for such Interest Accrual Period on
the Certificate Balance of such Lower-Tier Regular Interest, provided that, for
such purpose, (i) any distributions in reduction of Certificate Balance on such
Distribution Date and (ii) reductions of Certificate Balance as a result of
allocations of Realized Losses on such Distribution Date shall be deemed to have
been made as of the first day of such Interest Accrual Period.
"Interest Accrual Period": With respect to any Distribution Date, the
period which commences on the eleventh day of the month preceding the month in
which such Distribution Date occurs and ends on the tenth day of the month in
which such Distribution Date occurs, provided that the Interest Accrual Period
with respect to the Distribution Date occurring in April 1997 shall be assumed
to consist of 14 days. Interest for each Interest Accrual Period, other than the
Interest Accrual Period with respect to the Distribution Date occurring in April
1997, is calculated based on a 360-day year consisting of twelve 30-day months.
"Interest Reserve Account": The trust account created and maintained by the
Servicer pursuant to Section 3.27, which shall be entitled "AMRESCO Management,
Inc., in trust for LaSalle National Bank, as Trustee, in trust for Holders of
Asset Securitization Corporation, Commercial Mortgage Pass-Through Certificates,
Series 1997-D4, Interest Reserve Account" and which must be an Eligible Account.
"Interest Reserve Loans": The Mortgage Loans identified as the Saracen,
Xxxxxxx Pacific, M&H, Lakeside and Ambassador loans on the Mortgage Loan
Schedule.
"Interested Person": As of any date of determination, the Depositor, the
Servicer, Special Servicer, the Trustee, the Fiscal Agent, any Borrower, any
manager of a Mortgaged Property, any Independent Contractor engaged by the
Special Servicer pursuant to Section 3.17, or any Person known to a Responsible
Officer of the Trustee to be an Affiliate of any of them.
"Investment Account": As defined in Section 3.07(a).
"Investment Representation Letter": As defined in Section 5.02(c)(i)(A).
"IRS": The Internal Revenue Service.
"Liquidation Expenses": Expenses incurred by the Servicer, the Special
Servicer and the Trustee in connection with the liquidation of any Mortgage Loan
or property acquired in respect thereof (including, without limitation, legal
fees and expenses, committee or referee fees, and, if applicable, brokerage
commissions, and conveyance taxes) and any Property Protection Expenses incurred
with respect to such Mortgage Loan or such property including interest thereon
at the Advance Rate not previously reimbursed from collections or other proceeds
therefrom.
"Liquidation Proceeds": The amount (other than Insurance Proceeds) received
in connection with (i) the taking of a Mortgaged Property (or portion thereof)
by exercise of the power of eminent domain or condemnation, (ii) the liquidation
of a Specially Serviced Mortgage Loan through a trustee's sale, foreclosure sale
or otherwise or (iii) a sale of a Mortgage Loan or an REO Property in accordance
with Section 3.18 or Section 9.01.
"Loan Agreement": With respect to any Mortgage Loan, the loan agreement, if
any, between the Originator and the Borrower, pursuant to which such Mortgage
Loan was made.
"Loan Documents": With respect to any Mortgage Loan, the documents executed
or delivered in connection with the origination of such Mortgage Loan or
subsequently added to the related Mortgage File.
"Loan Number": With respect to any Mortgage Loan, the loan number by which
such Mortgage Loan was identified on the books and records of the Depositor or
any sub-servicer for the Depositor, as set forth in the Mortgage Loan Schedule.
"Lock-Box Account": With respect to any Mortgaged Property, if applicable,
any account created pursuant to any documents relating to a Mortgage Loan to
receive revenues therefrom. Any Lock-Box Account shall be beneficially owned for
federal income tax purposes by the Person who is entitled to receive the
reinvestment income or gain thereon in accordance with the terms and provisions
of the related Mortgage Loan and Section 3.07, which Person shall be taxed on
all reinvestment income or gain thereon. The Servicer shall be permitted to make
withdrawals therefrom for deposit into the related Cash Collateral Accounts.
"Lock-Box Agreement": With respect to any Mortgage Loan, the lock-box
agreement, if any, between the Originator or the Mortgage Loan Seller and the
Borrower, pursuant to which the related Lock-Box Account, if any, may have been
established.
"Lock-out Period" With respect to any Mortgage Loan, the period of time
specified in the related Loan Documents during which voluntary prepayments by
the related Borrower are prohibited.
"Lower Rate": As defined in the definition of Minimum Defaulted Monthly
Payment.
"Lower-Tier Pass-Through Rate": With respect to any Distribution Date and
any Class of Lower-Tier Regular Interests, a per annum rate equal to the
Weighted Average Net Mortgage Pass-Through Rate.
"Lower-Tier Regular Interests": The Class A-1A-L, Class A-1B-L, Class
A-1C-L, Class A-1D-L, Class A-1E-L, Class A-2-L, Class A-3-L, Class A-4-L, Class
A-5-L, Class A-6-L, Class A-7-L, Class A-8-L, Class B-1-L, Class B-2-L, Class
B-3-L, Class B-4-L, Class B-5-L, Class B-6-L, Class B-7-L and Class B-7H-L
Interests.
"Lower-Tier REMIC": A segregated asset pool within the Trust Fund
consisting of the Mortgage Loans (exclusive of Default Interest and Excess
Interest), collections thereon, any REO Property acquired in respect thereof and
amounts held from time to time in the Collection Account and the Distribution
Account.
"LTV": With respect to any Mortgage Loan and any date of determination, the
outstanding principal balance of such Mortgage Loan as of such date divided by
the appraised value of the Mortgaged Properties securing such Mortgage Loan as
evidenced by an Updated Appraisal obtained by the Servicer or an update thereto.
"MAI": Member of the Appraisal Institute.
"Management Agreement": With respect to any Mortgage Loan, the Management
Agreement, if any, by and between the Manager and the related Borrower, or any
successor Management Agreement between such parties.
"Manager": With respect to any Mortgage Loan, any property manager for the
related Mortgaged Properties.
"Maturity Date": With respect to each Mortgage Loan, the Maturity Date as
set forth on the Mortgage Loan Schedule.
"Minimum Defaulted Monthly Payment": With respect to any extension pursuant
to Section 3.30(c) of a Mortgage Loan that is delinquent in respect of its
Balloon Payment, an amount equal to (a) the principal portion of the Monthly
Payment that would have been due on such Mortgage Loan on the related Due Date
based on the original amortization schedule thereof, or, if there is no
amortization schedule, the principal portion of the constant Monthly Payment
that would have been due (in each case calculated with interest at the Mortgage
Rate), assuming such Balloon Payment had not become due, after giving effect to
any modification, and (b) interest at the applicable Default Rate; provided,
however, that the Special Servicer may, in its discretion, agree that the
Minimum Defaulted Monthly Payments may include interest at a rate lower than the
related Default Rate (but in no event lower than the related Mortgage Rate) (the
"Lower Rate"); provided that if, after notice to all Certificateholders, Holders
of Certificates evidencing at least 66-2/3% of the Voting Rights of each Class
(,or, that in the event that the Special Servicer is not the Servicer and the
Servicer would not agree to the Lower Rate, Certificateholders representing
greater than (a) 50% of the aggregate Voting Rights of all Certificateholders
and (b) 66-2/3% of the aggregate Voting Rights of all Certificateholders who
respond to such notice within 30 Business Days of the delivery of such notice),
direct the Special Servicer not to agree to permit payments to include interest
at the Lower Rate, the Special Servicer shall not agree to payments with
interest at the Lower Rate, provided, further, that, if the Minimum Defaulted
Monthly Payment is to include interest at the Lower Rate, the Special Servicer
may agree that interest on such Mortgage Loan accrues at the Lower Rate if,
after notice to all Certificateholders, holders of Certificates evidencing at
least 66-2/3% of the Voting Rights of each Class direct the Special Servicer
that such Mortgage Loan shall accrue interest at the related Default Rate, then
such Mortgage Loan will continue to accrue interest at the Default Rate thereof
and the excess of interest accrued on such Mortgage Loan over the amount
included in the Minimum Defaulted Monthly Payments (i.e., interest at the Lower
Rate) shall be added to the outstanding principal balance of such Mortgage Loan.
Notwithstanding the foregoing, if the Directing Holders have given Instructions
to the Special Servicer to extend, the Special Servicer shall be required to
follow the Directing Holders' Instructions with respect to interest so long as
the Minimum Defaulted Monthly Payment is at least equal to the Lower Rate.
"Monthly Payment": With respect to any Mortgage Loan (other than any REO
Mortgage Loan) and any Due Date, the scheduled monthly payment of principal, if
any, and interest at the Mortgage Rate, excluding any Balloon Payment (but not
excluding any constant Monthly Payment), which is payable by the related
Borrower on such Due Date under the related Note. With respect to an REO
Mortgage Loan, the monthly payment that would otherwise have been payable on the
related Due Date had the related Note not been discharged, determined as set
forth in the preceding sentence and on the assumption that all other amounts, if
any, due thereunder are paid when due.
"Xxxxx'x": Xxxxx'x Investors Services, Inc., or its successor in interest.
"Mortgage": The mortgage, deed of trust or other instrument creating a
first lien on or first priority ownership interest in a Mortgaged Property
securing a Note.
"Mortgage File": With respect to any Mortgage Loan, the mortgage documents
listed in Section 2.01(i) through (xv) pertaining to such particular Mortgage
Loan and any additional documents required to be added to such Mortgage File
pursuant to the express provisions of this Agreement.
"Mortgage Loan": Each of the mortgage loans transferred and assigned to the
Trustee pursuant to Section 2.01 and from time to time held in the Trust Fund,
the mortgage loans originally so transferred, assigned and held being identified
on the Mortgage Loan Schedule as of the Cut-off Date. Such term shall include
any REO Mortgage Loan, Specially Serviced Mortgage Loan or any Mortgage Loan
that has been defeased in whole or in part.
"Mortgage Loan Purchase and Sale Agreement": The Mortgage Loan
Contribution, Purchase and Sale Agreement dated as of the Cut-off Date, by and
between the Depositor and the Mortgage Loan Seller, a copy of which is attached
hereto as Exhibit H.
"Mortgage Loan Schedule": The list of Mortgage Loans included in the Trust
Fund as of the Closing Date being attached hereto as Exhibit B, which list shall
set forth the following information with respect to each Mortgage Loan:
(a) the Loan Number;
(b) the property name, city and state where each related Mortgaged
Property is located;
(c) the Monthly Payment in effect as of the Cut-off Date;
(d) the Mortgage Rate;
(e) the Maturity Date;
(f) the Stated Principal Balance as of the Cut-off Date and, as
applicable, the allocation of such balance to each related Mortgaged
Property;
(g) the Originator of such Mortgage Loan; and
(h) whether the Mortgage Loan is an Actual/360 Mortgage Loan.
The Mortgage Loan Schedule shall also set forth the total of the amounts
described under clause (c) and (f) above for all of the Mortgage Loans. The
Mortgage Loan Schedule may also set forth, for selected Mortgage Loans, the net
operating income or debt service coverage ratio. The Mortgage Loan Schedule may
be in the form of more than one list, collectively setting forth all of the
information required.
"Mortgage Loan Seller": Nomura Asset Capital Corporation, a Delaware
corporation, and its successors in interest.
"Mortgage Pass-Through Rate": With respect to the Mortgage Loans that
provide for calculations of interest based on twelve months of 30 days each, the
Mortgage Pass-Through Rate for any Interest Accrual Period is equal to the
Mortgage Rate thereof. The Mortgage Pass-Through Rate with respect to the
Actual/360 Mortgage Loans (other than the Mortgage Loans identified on the
Mortgage Loan Schedule as the Nassau Park II, Saracen, Xxxxxxx Pacific, M&H,
Lakeside and Ambassador loans) for any Interest Accrual Period, is equal to the
Mortgage Rate thereof multiplied by a fraction the numerator of which is the
actual number of days in such Interest Accrual Period and the denominator of
which is 30. The Mortgage Pass-Through Rate with respect to the Mortgage Loan
secured by Nassau Park II for any Interest Accrual Period is an annual rate
equal to (a) the Mortgage Rate of such Mortgage Loan, multiplied by a fraction,
the numerator of which is the actual number of days in such Interest Accrual
Period and the denominator of which is 30 plus (b) 0.05%. The Mortgage
Pass-Through Rate with respect to the Interest Reserve Loans for any
Distribution Date (a) relating to any Interest Accrual Period commencing in any
January, February, April, June, September and November and in any December
occurring in a year immediately preceding any year which is not a leap year, is
the Mortgage Rate thereof, and (b) relating to any Interest Accrual Period
commencing in any March, May, July, August and October and in any December
occurring in a year immediately preceding a year which is a leap year, is equal
to the Mortgage Rate thereof multiplied by a fraction the numerator of which is
the actual number of days in such Interest Accrual Period and the denominator of
which is 30. Notwithstanding the foregoing, the Mortgage Pass-Through Rate with
respect to each Mortgage Loan (other than the Mortgage Loan identified on the
Mortgage Loan Schedule as the Nassau Park II loan) for the first Interest
Accrual Period is the Mortgage Rate thereof and the Mortgage Pass-Through Rate
for the Mortgage Loan identified on the Mortgage Loan Schedule as the Nassau
Park II loan for the first Interest Accrual Period is the Mortgage Rate thereof
plus (i) 0.05%.
"Mortgage Rate": With respect to each Mortgage Loan and any Interest
Accrual Period, the annual rate, not including any Excess Rate, at which
interest accrues on such Mortgage Loan during such period (in the absence of a
default), as set forth on the Mortgage Loan Schedule. The Mortgage Rate for
purposes of calculating the Weighted Average Net Mortgage Pass-Through Rate
shall be the Mortgage Rate of such Mortgage Loan without taking into account any
reduction in the interest rate by a bankruptcy court pursuant to a plan of
reorganization or pursuant to any of its equitable powers or a reduction in
interest or principal due to a modification pursuant to Section 3.30 hereof.
"Mortgaged Property": The underlying property securing a Mortgage Loan,
including any REO Property, consisting of a fee simple estate, and, with respect
to certain Mortgage Loans, a leasehold estate or both a leasehold estate and a
fee simple estate, or a leasehold estate in a portion of the property and a fee
simple estate in the remainder, in a parcel of land improved by a commercial
property, together with any personal property, fixtures, leases and other
property or rights pertaining thereto.
"Net Default Interest": As defined in Section 3.05(d).
"Net Income": With respect to any REO Property, all income received in
connection with such REO Property, less any operating expenses, including, but
not limited to, utilities, real estate taxes, property management fees,
insurance premiums, leasing commission fees, expenses for maintenance and
repairs and any other capital expenses directly related to such REO Property and
permitted to be incurred under this Agreement.
"Net Insurance Proceeds": Insurance Proceeds, to the extent such proceeds
are not to be applied to the restoration of the related Mortgaged Property or
released to the Borrower in accordance with the express requirements of the
Mortgage or Note or other documents included in the Mortgage File or in
accordance with prudent and customary servicing practices.
"Net Liquidation Proceeds": The Liquidation Proceeds received with respect
to any Mortgage Loan net of the amount of (i) Liquidation Expenses incurred with
respect thereto and, (ii) with respect to proceeds received in connection with
the taking of a Mortgaged Property (or portion thereof) by the power of eminent
domain in condemnation, amounts required to be applied to the restoration or
repair of the related Mortgaged Property.
"Net Mortgage Pass-Through Rate": With respect to any Mortgage Loan and any
Distribution Date, the per annum rate equal to the Mortgage Pass-Through Rate
for such Mortgage Loan, minus the aggregate of the applicable Servicing Fee Rate
and Trustee Fee Rate.
"Net REO Proceeds": With respect to each REO Property, REO Proceeds with
respect to such REO Property net of any insurance premiums, taxes, assessments
and other costs and expenses permitted to be paid therefrom pursuant to Section
3.17(b) of this Agreement.
"New Lease": Any lease of REO Property entered into on behalf of the Trust
Fund, including any lease renewed or extended on behalf of the Trust Fund if the
Trust Fund has the right to renegotiate the terms of such lease.
"NOI Adjustment Worksheet": A report prepared by the Servicer or the
Special Servicer, as the case may be, substantially containing the content
described in Exhibit I-8 attached hereto, presenting the computations made in
accordance with the methodology described in said Exhibit I-8 to "normalize" the
full year net operating income and debt service coverage numbers used in the
other reports required by this Agreement, sent to the Trustee with each annual
operating statement for a Mortgaged Property pursuant to Section 3.13(d).
"Nonrecoverable Advance": Any portion of an Advance proposed to be made or
previously made which has not been previously reimbursed to the Servicer, the
Special Servicer, the Trustee or the Fiscal Agent, as applicable, and which, in
the good faith business judgment of the Servicer, the Special Servicer, the
Trustee or the Fiscal Agent, as applicable, will not or, in the case of a
proposed Advance, would not be ultimately recoverable from late payments,
Insurance Proceeds, Liquidation Proceeds and other collections on or in respect
of the related Mortgage Loan. The judgment or determination by the Servicer, the
Special Servicer, the Trustee or the Fiscal Agent that it has made a
Nonrecoverable Advance or that any proposed Advance, if made, would constitute a
Nonrecoverable Advance shall be evidenced in the case of the Servicer or Special
Servicer, by a certificate of a Servicing Officer delivered to the Trustee, the
Fiscal Agent, the Depositor and, in the case of the Special Servicer, to the
Servicer, and in the case of the Trustee or the Fiscal Agent, by a certificate
of a Responsible Officer of the Trustee or Fiscal Agent, as applicable,
delivered to the Depositor (and the Trustee if the Certificate is from the
Fiscal Agent), which in each case sets forth such judgment or determination and
the procedures and considerations of the Servicer, Special Servicer, Trustee or
Fiscal Agent, as applicable, forming the basis of such determination (including,
but not limited to, information selected by the Person making such judgment or
determination in its good faith discretion, such as related income and expense
statements, rent rolls, occupancy status, property inspections, Servicer,
Special Servicer, Trustee or Fiscal Agent inquiries, third party engineering and
environmental reports, and an appraisal conducted by an MAI appraiser in
accordance with MAI standards or any Updated Appraisal thereof conducted within
the past 12 months; copies of such documents to be included with the certificate
of a Servicing Officer or a Responsible Officer). Any determination of
non-recoverability made by the Servicer may be made without regard to any value
determination made by the Special Servicer other than pursuant to an Updated
Appraisal. Notwithstanding the above, the Trustee and the Fiscal Agent shall be
entitled to rely upon any determination by the Servicer that any Advance
previously made is a Nonrecoverable Advance or that any proposed Advance would,
if made, constitute a Nonrecoverable Advance (and with respect to a proposed P&I
Advance, the Trustee and the Fiscal Agent, as applicable, shall rely on the
Servicer's determination that the Advance would be a Nonrecoverable Advance if
the Trustee or Fiscal Agent, as applicable, determines that it does not have
sufficient time to make such a determination).
"Non-U.S. Person": A person that is not 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, an
estate whose income is subject to United States federal income tax regardless of
its source, or a trust if (A) for taxable years beginning after December 31,
1996 (or for taxable years ending after August 20, 1996, if the trustee has made
an applicable election) a court within the United States is able to exercise
primary supervision over the administration of such trust, and one or more
United States fiduciaries have the authority to control all substantial
decisions of such trust, or (B) for all other taxable years, such trust is
subject to United States federal income tax regardless of the source of its
income.
"Note": With respect to any Mortgage Loan as of any date of determination,
the note or other evidence of indebtedness and/or agreements evidencing the
indebtedness of a Borrower under such Mortgage Loan, including any amendments or
modifications, or any renewal or substitution notes, as of such date.
"Notice of Termination": Any of the notices given to the Trustee by the
Servicer or any Holder of a Class LR Certificate pursuant to Section 9.01(c).
"Notional Amount" or "Notional Balance": With respect to each of the Class
PS-1 and Class A-CS1 Certificates, (a) on or prior to the Distribution Date
occurring in April 1997, a notional principal amount equal to the aggregate
initial Notional Balance of such Class, as specified in the Preliminary
Statement hereto, and (b)(i) in the case of the Class A-CS1 Certificates, as of
any date of determination after the Distribution Date occurring in April 1997,
the Notional Balance of such Class on the Distribution Date immediately prior to
such date of determination, after distributions of principal on the Class A-1A
Certificates and allocations of Realized Losses on such Class on such prior
Distribution Date and (ii) in the case of the Class PS-1 Certificates, as of any
Distribution Date after April 1997 a notional principal amount equal to the
aggregate Stated Principal Balance of the Mortgage Loans as of the first day of
the related Interest Accrual Period.
"Officers' Certificate": A certificate signed by the Chairman of the Board,
the Vice Chairman of the Board, the President or a Vice President (however
denominated) and by the Treasurer, the Secretary, one of the Assistant
Treasurers or Assistant Secretaries, any Trust Officer or other officer of the
Servicer customarily performing functions similar to those performed by any of
the above designated officers and also with respect to a particular matter, any
other officer to whom such matter is referred because of such officer's
knowledge of and familiarity with the particular subject, or an authorized
officer of the Depositor, and delivered to the Depositor, the Trustee or the
Servicer, as the case may be.
"Operating Statement Analysis": With respect to each Mortgage Loan and REO
Mortgage Property, a report substantially containing the content described in
Exhibit I-7 attached hereto.
"Opinion of Counsel": A written opinion of counsel, who may, without
limitation, be counsel for the Depositor, the Special Servicer or the Servicer,
as the case may be, acceptable to the Trustee, except that any opinion of
counsel relating to (a) qualification of the Upper-Tier REMIC or Lower-Tier
REMIC as a REMIC or the imposition of tax under the REMIC Provisions on any
income or property of either REMIC, (b) compliance with the REMIC Provisions
(including application of the definition of "Independent Contractor") or (c) a
resignation of the Servicer pursuant to Section 6.04, must be an opinion of
counsel who is Independent of the Depositor and the Servicer.
"Originator": Any of (i) the Mortgage Loan Seller, and (ii) Bloomfield
Acceptance Company, LLC.
"Ownership Interest": Any record or beneficial interest in a Class R or
Class LR Certificate.
"P&I Advance": As to any Mortgage Loan, any advance made by the Servicer,
the Trustee, or the Fiscal Agent pursuant to Section 4.06. Each reference to the
payment or reimbursement of a P&I Advance shall be deemed to include, whether or
not specifically referred to and without duplication, payment or reimbursement
of interest thereon at the Advance Rate from and including the date of the
making of such P&I Advance through and including the date of payment or
reimbursement.
"Pass-Through Rate": With respect to each Class of Certificates (other than
the Class V-1, Class V-2, Class R and Class LR Certificates), the Pass-Through
Rate for such Class as set forth below:
Class Pass-Through Rate
Class A-1A Class A-1A Pass-Through Rate
Class A-1B Class A-1B Pass-Through Rate
Class A-1C Class A-1C Pass-Through Rate
Class A-1D Class A-1D Pass-Through Rate
Class A-1E Class A-1E Pass-Through Rate
Class A-CS1 Class A-CS1 Pass-Through Rate
Class PS-1 Class PS-1 Pass-Through Rate
Class A-2 Class A-2 Pass-Through Rate
Class A-3 Class A-3 Pass-Through Rate
Class A-4 Class A-4 Pass-Through Rate
Class A-5 Class A-5 Pass-Through Rate
Class A-6 Class A-6 Pass-Through Rate
Class A-7 Class A-7 Pass-Through Rate
Class A-8 Class A-8 Pass-Through Rate
Class B-1 Class B-1 Pass-Through Rate
Class B-2 Class B-2 Pass-Through Rate
Class B-3 Class B-3 Pass-Through Rate
Class B-4 Class B-4 Pass Through Rate
Class B-5 Class B-5 Pass Through Rate
Class B-6 Class B-6 Pass Through Rate
Class B-7 Class B-7 Pass-Through Rate
Class B-7H Class B-7H Pass-Through Rate
"Paying Agent": The paying agent appointed pursuant to Section 5.04.
"Percentage Interest": As to any Certificate, the percentage interest
evidenced thereby in distributions required to be made with respect to the
related Class. With respect to any Certificate (except the Class V-1, Class V-2,
Class R and Class LR Certificates), the percentage interest is equal to the
initial denomination of such Certificate divided by the initial Certificate
Balance or Notional Balance, as applicable, of such Class of Certificates. With
respect to any Class V-1, Class V-2, Class R or Class LR Certificate, the
percentage interest is set forth on the face thereof.
"Permitted Investments": Any one or more of the following obligations or
securities payable on demand or having a scheduled maturity on or before the
Business Day preceding the date upon which such funds are required to be drawn,
regardless of whether issued by the Depositor, the Servicer, the Trustee or any
of their respective Affiliates and having at all times the required ratings, if
any, provided for in this definition, unless each Rating Agency shall have
confirmed in writing to the Servicer that a lower rating would not, in and of
itself, result in a downgrade, qualification or withdrawal of the then current
ratings assigned to the Certificates:
(i) obligations of, or obligations fully guaranteed as to 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 of America including,
without limitation, obligations of: the U.S. Treasury (all direct or
fully guaranteed obligations), the Farmers Home Administration
(certificates of beneficial ownership), the General Services
Administration (participation certificates), the U.S. Maritime
Administration (guaranteed Title XI financing), the Small Business
Administration (guaranteed participation certificates and guaranteed
pool certificates), the U.S. Department of Housing and Urban
Development (local authority bonds) and the Washington Metropolitan
Area Transit Authority (guaranteed transit bonds); provided, however,
that the investments described in this clause must (A) have a
predetermined fixed dollar of principal due at maturity that cannot
vary or change, (B) if rated by S&P, must not have an "r" highlighter
affixed to their rating, (C) if such investments have a variable rate
of interest, such interest rate must be tied to a single interest rate
index plus a fixed spread (if any) and must move proportionately with
that index, and (D) such investments must not be subject to
liquidation prior to their maturity;
(ii) Federal Housing Administration debentures;
(iii) obligations of the following United States government sponsored
agencies: Federal Home Loan Mortgage Corp. (debt obligations), the
Farm Credit System (consolidated systemwide bonds and notes), the
Federal Home Loan Banks (consolidated debt obligations), the Federal
National Mortgage Association (debt obligations), the Student Loan
Marketing Association (debt obligations), the Financing Corp. (debt
obligations), and the Resolution Funding Corp. (debt obligations);
provided, however, that the investments described in this clause must
(A) have a predetermined fixed dollar of principal due at maturity
that cannot vary or change, (B) if rated by S&P, must not have an "r"
highlighter affixed to their rating, (C) if such investments have a
variable rate of interest, such interest rate must be tied to a single
interest rate index plus a fixed spread (if any) and must move
proportionately with that index, and (D) such investments must not be
subject to liquidation prior to their maturity;
(iv) federal funds, unsecured certificates of deposit, time or similar
deposits, bankers' acceptances and repurchase agreements, with
maturities of not more than 365 days, of any bank, the short term
obligations of which are rated in the highest short term rating
category by each Rating Agency (or, if not rated by DCR, Xxxxx'x or
Fitch, otherwise acceptable to DCR, Xxxxx'x or Fitch, as applicable,
as confirmed in writing that such investment would not, in and of
itself, result in a downgrade, qualification or withdrawal of the then
current ratings assigned to the Certificates); provided, however, that
the investments described in this clause must (A) have a predetermined
fixed dollar of principal due at maturity that cannot vary or change,
(B) if rated by S&P, must not have an "r" highlighter affixed to their
rating, (C) if such investments have a variable rate of interest, such
interest rate must be tied to a single interest rate index plus a
fixed spread (if any) and must move proportionately with that index,
and (D) such investments must not be subject to liquidation prior to
their maturity;
(v) fully Federal Deposit Insurance Corporation-insured demand and time
deposits in, or certificates of deposit of, or bankers' acceptances
issued by, any bank or trust company, savings and loan association or
savings bank, the short term obligations of which are rated in the
highest short term rating category by each Rating Agency (or, if not
rated by DCR, Xxxxx'x or Fitch, otherwise acceptable to DCR, Xxxxx'x
or Fitch, as applicable, as confirmed in writing that such investment
would not, in and of itself, result in a downgrade, qualification or
withdrawal of the then current ratings assigned to the Certificates);
provided, however, that the investments described in this clause must
(A) have a predetermined fixed dollar of principal due at maturity
that cannot vary or change, (B) if rated by S&P, must not have an "r"
highlighter affixed to their rating, (C) if such investments have a
variable rate of interest, such interest rate must be tied to a single
interest rate index plus a fixed spread (if any) and must move
proportionately with that index, and (D) such investments must not be
subject to liquidation prior to their maturity;
(vi) debt obligations with maturities of not more than 365 days rated by
each Rating Agency (or, if not rated by DCR, Xxxxx'x or Fitch,
otherwise acceptable to DCR, Xxxxx'x or Fitch, as applicable, as
confirmed in writing that such investment would not, in and of itself,
result in a downgrade, qualification or withdrawal of the then current
ratings assigned to the Certificates) in its highest long-term
unsecured rating category; provided, however, that the investments
described in this clause must (A) have a predetermined fixed dollar of
principal due at maturity that cannot vary or change, (B) if rated by
S&P, must not have an "r" highlighter affixed to their rating, (C) if
such investments have a variable rate of interest, such interest rate
must be tied to a single interest rate index plus a fixed spread (if
any) and must move proportionately with that index, and (D) such
investments must not be subject to liquidation prior to their
maturity;
(vii) commercial paper (including both non-interest-bearing discount
obligations and interest-bearing obligations payable on demand or on a
specified date not more than one year after the date of issuance
thereof) with maturities of not more than 365 days and that is rated
by each Rating Agency (or, if not rated by DCR, Xxxxx'x or Fitch,
otherwise acceptable to DCR, Xxxxx'x or Fitch, as applicable, as
confirmed in writing that such investment would not, in and of itself,
result in a downgrade, qualification or withdrawal of the then current
ratings assigned to the Certificates) in its highest short-term
unsecured debt rating; provided, however, that the investments
described in this clause must (A) have a predetermined fixed dollar of
principal due at maturity that cannot vary or change, (B) if rated by
S&P, must not have an "r" highlighter affixed to their rating, (C) if
such investments have a variable rate of interest, such interest rate
must be tied to a single interest rate index plus a fixed spread (if
any) and must move proportionately with that index, and (D) such
investments must not be subject to liquidation prior to their
maturity;
(viii) the Federated Prime Obligation Money Market Fund (the "Fund") so
long as the Fund is rated by each Rating Agency in its highest
short-term unsecured debt ratings category (or, if not rated by DCR,
Xxxxx'x or Fitch, otherwise acceptable to DCR, Xxxxx'x or Fitch, as
applicable, as confirmed in writing that such investment would not, in
and of itself, result in a downgrade, qualification or withdrawal of
the then current ratings assigned to the Certificates); and
(ix) any other demand, money market or time deposit, demand obligation or
any other obligation, security or investment, provided that each
Rating Agency has confirmed in writing to the Servicer, Special
Servicer or Trustee, as applicable, that such investment would not, in
and of itself, result in a downgrade, qualification or withdrawal of
the then current ratings assigned to the Certificates;
provided, however, that, in the judgment of the Servicer, such instrument
continues to qualify as a "cash flow investment" pursuant to Code Section
860G(a)(6) earning a passive return in the nature of interest and that no
instrument or security shall be a Permitted Investment if (i) such instrument or
security evidences a right to receive only interest payments or (ii) the right
to receive principal and interest payments derived from the underlying
investment provides a yield to maturity in excess of 120% of the yield to
maturity at par of such underlying investment.
"Permitted Transferee": With respect to a Class R or Class LR Certificate,
any Person or agent thereof that is a Qualified Institutional Buyer, an
Affiliated Person or an Institutional Accredited Investor, other than (a) a
Disqualified Organization, (b) any other Person so designated by the Certificate
Registrar based upon an Opinion of Counsel (provided at the expense of such
Person or the Person requesting the Transfer) to the effect that the Transfer of
an Ownership Interest in any Class R or Class LR Certificate to such Person may
cause the Upper-Tier REMIC or Lower-Tier REMIC to fail to qualify as a REMIC at
any time that the Certificates are outstanding, (c) a Person that is a
Disqualified Non-U.S. Person and (d) a Plan or any Person investing the assets
of a Plan.
"Person": Any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Plan": As defined in Section 5.02(k).
"Prepayment Assumption": The assumption that each Mortgage Loan with an
Anticipated Repayment Date prepays on such date and that each other Mortgage
Loan does not prepay prior to its respective Maturity Date.
"Prepayment Interest Shortfall": With respect to any Distribution Date, the
amount of any shortfall in collections of interest (adjusted to the applicable
Net Mortgage Pass-Through Rate plus the Trustee Fee) resulting from a Principal
Prepayment on such Mortgage Loan during the related Collection Period and prior
to the related Due Date other than Prepayment Interest Shortfalls relating to
any Specially Serviced Mortgage Loan.
"Prepayment Premium": Payments received on a Mortgage Loan as the result of
a Principal Prepayment thereon, not otherwise due thereon in respect of
principal or interest, other than an amount paid in connection with the release
of the related Mortgaged Property through defeasance, which are intended to
compensate the holder of the related Note for prepayment.
"Principal Distribution Amount": For any Distribution Date will be equal to
the sum of:
(i) the principal component of all scheduled Monthly Payments (other than
Balloon Payments) due on the Mortgage Loans on or before the related Due Date
(if received or advanced);
(ii) the principal component of all Assumed Scheduled Payments or Minimum
Defaulted Monthly Payments, as applicable, due on or before the related Due Date
(if received or advanced) with respect to any Mortgage Loan that is delinquent
in respect of its Balloon Payment;
(iii) the Stated Principal Balance of each Mortgage Loan that was, during
the related Collection Period, repurchased from the Trust Fund in connection
with the breach of a representation or warranty pursuant to Section 2.03 or
purchased from the Trust Fund pursuant to Section 9.01;
(iv) the portion of Unscheduled Payments allocable to principal of any
Mortgage Loan that was liquidated during the related Collection Period;
(v) the principal component of all Balloon Payments and, to the extent not
included in the preceding clauses, any other principal payment on any Mortgage
Loan received on or after the Maturity Date thereof, to the extent received
during the related Collection Period;
(vi) to the extent not included in the preceding clauses (iii) or (iv), all
other Principal Prepayments received in the related Collection Period; and
(vii) to the extent not included in the preceding clauses, any other full
or partial recoveries in respect of principal, including Insurance Proceeds,
Liquidation Proceeds and Net REO Proceeds received in the related Collection
Period (in the case of clauses (i) through (vii) net of any reimbursement for
related outstanding P&I Advances allocable to principal and amounts received on
a Mortgage Loan which represent recoveries in respect of any Subordinate Class
Advance Amount);
The principal component of the amounts set forth above shall be determined in
accordance with Section 1.02 hereof.
"Principal Prepayment": Any payment of principal made by the Borrower on a
Mortgage Loan which is received in advance of its scheduled Due Date and which
is not accompanied by an amount of interest representing the full amount of
scheduled interest due on any date or dates in any month or months subsequent to
the month of prepayment other than any amount paid in connection with the
release of the related Mortgaged Property through defeasance.
"Property Advance": As to any Mortgage Loan, any advance made by the
Servicer, Special Servicer, the Trustee or the Fiscal Agent in respect of
Property Protection Expenses or any expenses incurred to protect, preserve and
enforce the security for a Mortgage Loan or taxes and assessments or insurance
premiums, pursuant to Section 3.04 or Section 3.24, as applicable. Each
reference to the payment or reimbursement of a Property Advance shall be deemed
to include, whether or not specifically referred to, payment or reimbursement of
interest thereon at the Advance Rate from and including the date of the making
of such Advance through and including the date of payment or reimbursement.
"Property Protection Expenses": Any costs and expenses incurred by the
Servicer or the Special Servicer pursuant to Sections 3.04, 3.08, 3.10(b),
3.10(e), 3.10(f), 3.10(g), 3.10(h), 3.10(k), 3.17(b) and 3.18 or indicated
herein as being a cost or expense of the Trust Fund or the Lower-Tier REMIC or
Upper-Tier REMIC to be advanced by the Servicer or the Special Servicer, as
applicable.
"Prospectus": The Depositor's Prospectus Supplement dated March 26, 1997
relating to the Class A-1A, Class A-1B, Class A-1C, Class A-1D, Class A-CS1,
Class PS-1, Class A-1E, Class A-2, Class A-3, Class A-4, Class A-5, Class A-6,
Class A-7 and Class A-8 Certificates.
"Qualified Institutional Buyer": A qualified institutional buyer within the
meaning of Rule 144A.
"Qualified Insurer": As used in Section 3.08, (i) an insurance company or
security or bonding company qualified to write the related insurance policy in
the relevant jurisdiction which shall have a claims paying ability of "AA" or
better by S&P and Fitch (or, if such company is not rated by Fitch, is rated at
least A-1X by A.M. Best's Key Rating Guide) and "Baa3" or better by Xxxxx'x and
"A" or better by DCR (or, if such company is not rated by DCR, is rated at least
in an equivalent category by at least two nationally recognized statistical
ratings organizations), (ii) in the case of public liability insurance policies
required to be maintained with respect to REO Properties in accordance with
Section 3.08(a), shall have a claims paying ability of "A" or better by S&P and
Fitch (or, if such company is not rated by Fitch, is rated at least A-1X by A.M.
Best's Key Rating Guide) and DCR (or, if such company is not rated by DCR, is
rated at least in an equivalent category by at least two nationally recognized
statistical ratings organizations) and "Baa3" or better by Xxxxx'x and (iii) in
the case of the fidelity bond and the errors and omissions insurance required to
be maintained pursuant to Section 3.08(c), shall have a claims paying ability
rated by each Rating Agency no lower than two ratings categories (without regard
to pluses or minuses or numeric qualifications) lower than the highest rating of
any outstanding Class of Certificates from time to time (or if such company is
not rated by DCR, is rated at least in an equivalent category by at least two
nationally recognized statistical ratings organizations and, if such company is
not rated by Fitch, is rated at least A-VIII by A.M. Best's Key Rating Guide),
but in no event lower than "BBB" by S&P, Fitch and DCR and "Baa3" by Xxxxx'x,
unless in any such case each of the Rating Agencies has confirmed in writing
that obtaining the related insurance from an insurance company that is not rated
by each of the Rating Agencies (subject to the foregoing exceptions) or that has
a lower claims-paying ability than such requirements shall not result, in and of
itself, in a downgrade, qualification or withdrawal of the then current ratings
by such Rating Agency to any Class of Certificates.
"Qualified Mortgage": A Mortgage Loan that is a "qualified mortgage" within
the meaning of Code Section 860G(a)(3) of the Code (but without regard to the
rule in Treasury Regulations 1.860G-2(f)(2) that treats a defective obligation
as a qualified mortgage), or any substantially similar successor provision.
"Rated Final Distribution Date": April 14, 2029, the next Distribution Date
occurring two years after the latest Assumed Maturity Date of any of the
Mortgage Loans.
"Rating Agency": Any of DCR, Fitch, Xxxxx'x or S&P. References herein to
the highest long-term unsecured debt rating category of a Rating Agency shall
mean "AAA" with respect to DCR, Fitch and S&P and "Aaa" with respect to Xxxxx'x
and in the case of any other rating agency shall mean such highest rating
category or better without regard to any plus or minus or numerical
qualification.
"Real Property": Land or improvements thereon such as buildings or other
inherently permanent structures thereon (including items that are structural
components of the buildings or structures), in each such case as such terms are
used in the REMIC Provisions.
"Realized Loss": With respect to any Distribution Date shall mean the
amount, if any, by which the aggregate Certificate Balance of the Certificates
after giving effect to distributions made on such Distribution Date exceeds the
aggregate Stated Principal Balance of the Mortgage Loans as of the Due Date in
the month in which such Distribution Date occurs.
"Reassignment of Assignment of Leases, Rents and Profits": As defined in
Section 2.01(viii).
"Record Date": With respect to each Distribution Date, the close of
business on the tenth day of the month in which such Distribution Date occurs
or, if such day is not a Business Day, the preceding Business Day; provided,
however, that with respect to the first Distribution Date, for all purposes
other than receipt of the distribution pursuant to Section 4.01 on such
Distribution Date, the Record Date shall be the Closing Date.
"Reduction Interest Distribution Amount": For the Class PS-1 Certificates,
with respect to any Distribution Date and each of clauses ninth, thirteenth,
seventeenth, twenty-first, twenty-fifth, twenty-ninth, thirty-third,
thirty-seventh, forty-first, forty-fifth, forty-ninth, fifty-third,
fifty-seventh and sixty-first of Section 4.01(b) shall be the amount of interest
accrued for the Interest Accrual Period at the applicable Reduction Interest
Pass-Through Rate for such Interest Accrual Period on the aggregate amount of
Appraisal Reduction Amounts and Delinquency Reduction Amounts notionally
allocated to the related classes referred to in subclause (B) of each such
clause as of such Distribution Date, pursuant to Section 4.01(i).
"Reduction Interest Pass-Through Rate": (i) With respect to Appraisal
Reduction Amounts and Delinquency Reduction Amounts notionally allocated to the
Class B-6 Certificates pursuant to Section 4.01(i), the Weighted Average Net
Mortgage Pass-Through Rate minus 7.525%, (ii) with respect to Appraisal
Reduction Amounts and Delinquency Reduction Amounts notionally allocated to the
Class B-5 Certificates pursuant to Section 4.01(i), the Weighted Average Net
Mortgage Pass-Through Rate minus 7.525%, (iii) with respect to Appraisal
Reduction Amounts and Delinquency Reduction Amounts notionally allocated to the
Class B-4 Certificates pursuant to Section 4.01(i), the Weighted Average Net
Mortgage Pass-Through Rate minus 7.525%, (iv) with respect to Appraisal
Reduction Amounts and Delinquency Reduction Amounts notionally allocated to the
Class B-3 Certificates pursuant to Section 4.01(i), the Weighted Average Net
Mortgage Pass-Through Rate minus 7.525%, (v) with respect to Appraisal Reduction
Amounts and Delinquency Reduction Amounts notionally allocated to the Class B-2
Certificates pursuant to Section 4.01(i), the Weighted Average Net Mortgage
Pass-Through Rate minus 7.525%, (vi) with respect to Appraisal Reduction Amounts
and Delinquency Reduction Amounts notionally allocated to the Class B-1
Certificates pursuant to Section 4.01(i), the Weighted Average Net Mortgage
Pass-Through Rate minus 7.525%, (vii) with respect to Appraisal Reduction
Amounts and Delinquency Reduction Amounts notionally allocated to the Class A-8
Certificates pursuant to Section 4.01(i), 0.59%, (viii) with respect to
Appraisal Reduction Amounts and Delinquency Reduction Amounts notionally
allocated to the Class A-7 Certificates pursuant to Section 4.01(i), 0.94%, (ix)
with respect to Appraisal Reduction Amounts and Delinquency Reduction Amounts
notionally allocated to the Class A-6 Certificates pursuant to Section 4.01(i),
0.99%, (x) with respect to Appraisal Reduction Amounts and Delinquency Reduction
Amounts notionally allocated to the Class A-5 Certificates pursuant to Section
4.01(i), 1.08%, (xi) with respect to Appraisal Reduction Amounts and Delinquency
Reduction Amounts notionally allocated to the Class A-4 Certificates pursuant to
Section 4.01(i), 1.13%, (xii) with respect to Appraisal Reduction Amounts and
Delinquency Reduction Amounts notionally allocated to the Class A-3 Certificates
pursuant to Section 4.01(i), 1.16% and (xiii) with respect to Appraisal
Reduction Amounts and Delinquency Reduction Amounts notionally allocated to the
Class A-2 Certificates pursuant to Section 4.01(i), 1.21%. With respect to
Appraisal Reduction Amounts and Delinquency Reduction Amounts notionally
allocated to the Class A-1E Certificates pursuant to Section 4.01(i), the
Weighted Average Net Mortgage Pass-Through Rate minus 7.525%.
"Reduction Interest Shortfalls": With respect to any Distribution Date and
each of the clauses ninth, thirteenth, seventeenth, twenty-first, twenty-fifth,
twenty-ninth, thirty-third, thirty-seventh, forty-first, forty-fifth,
forty-ninth, fifty-third, fifty-seventh and sixty-first of Section 4.01(b), any
shortfall in the Reduction Interest Distribution Amount required to be
distributed to the Class PS-1 Certificates pursuant to such clause on such
Distribution Date.
"Regular Certificates": The Class A-1A, Class A-1B, Class A-1C, Class A-1D,
Class A-1E, Class A-CS1, Class PS-1, Class A-2, Class A-3, Class A-4, Class A-5,
Class A-6, Class A-7, Class A-8, Class B-1, Class B-2, Class B-3, Class B-4,
Class B-5, Class B-6, Class B-7 and Class B-7H Certificates.
"Regulation D": Regulation D under the Act.
"Regulation S": Regulation S under the Act.
"Regulation S Global Certificate": As defined in Section 5.01.
"Regulation S Investor": With respect to a transferee of an interest in a
Regulation S Global Certificate, a transferee that acquires such interest
pursuant to Regulation S.
"Regulation S Transfer Certificate": A certificate substantially in the
form of Exhibit G hereto.
"Related Certificate" and "Related Lower-Tier Regular Interest": For any
Class or Classes of Lower-Tier Regular Interests, the related Class of
Certificates set forth below and for any Class of Certificates (other than the
Class PS-1, Class A-CS1, Class V-1, Class V-2, Class R and Class LR), the
related Class of Lower-Tier Regular Interest set forth below:
Related Lower-Tier
Related Certificate Regular Interest
------------------- ------------------
Class A-1A Class A-1A-L Interest
Class A-1B Class A-1B-L Interest
Class A-1C Class A-1C-L Interest
Class A-1D Class A-1D-L Interest
Class A-1E Class A-1E-L Interest
Class A-2 Class A-2-L Interest
Class A-3 Class A-3-L Interest
Class A-4 Class A-4-L Interest
Class A-5 Class A-5-L Interest
Class A-6 Class A-6-L Interest
Class A-7 Class A-7-L Interest
Class A-8 Class A-8-L Interest
Class B-1 Class B-1-L Interest
Class B-2 Class B-2-L Interest
Class B-3 Class B-3-L Interest
Class B-4 Class B-4-L Interest
Class B-5 Class B-5-L Interest
Class B-6 Class B-6-L Interest
Class B-7 Class B-7-L Interest
Class B-7H Class B-7H-L Interest
"REMIC": A "real estate mortgage investment conduit" within the meaning of
Section 860D of the Code.
"REMIC Provisions": Provisions of the federal income tax law relating to
real estate mortgage investment conduits, which appear at Section 860A through
860G of Subchapter M of Chapter 1 of the Code, and related provisions, and
regulations (including any applicable proposed regulations) and rulings
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, which income, subject
to the terms and conditions of that Section of the Code in its present form,
does not include:
(i) except as provided in Section 856(d)(4) or (6) of the Code, any amount
received or accrued, directly or indirectly, with respect to such REO
Property, if the determination of such amount depends in whole or in
part on the income or profits derived by any Person from such property
(unless such amount is a fixed percentage or percentages of receipts
or sales and otherwise constitutes Rents from Real Property);
(ii) any amount received or accrued, directly or indirectly, from any
Person if the Trust Fund owns directly or indirectly (including by
attribution) a ten percent or greater interest in such Person
determined in accordance with Sections 856(d)(2)(B) and (d)(5) of the
Code;
(iii) any amount received or accrued, directly or indirectly, with respect
to such REO Property if any Person Directly Operates such REO
Property;
(iv) any amount charged for services that are not customarily furnished in
connection with the rental of property to tenants in buildings of a
similar class in the same geographic market as such REO Property
within the meaning of Treasury Regulations Section 1.856-4(b)(1)
(whether or not such charges are separately stated); and
(v) rent attributable to personal property unless such personal property
is leased under, or in connection with, the lease of such REO Property
and, for any taxable year of the Trust Fund, such rent is no greater
than 15 percent of the total rent received or accrued under, or in
connection with, the lease.
"REO Account": As defined in Section 3.17(b).
"REO Mortgage Loan": Any Mortgage Loan as to which the related Mortgaged
Property has become an REO Property.
"REO Proceeds": With respect to any REO Property and the related REO
Mortgage Loan, all revenues received by the Special Servicer with respect to
such REO Property or REO Mortgage Loan which do not constitute Liquidation
Proceeds.
"REO Property": A Mortgaged Property title to which has been acquired by
the Special Servicer on behalf of the Trust Fund through foreclosure, deed in
lieu of foreclosure or otherwise.
"REO Status Report": A report substantially containing the content
described in Exhibit I-5 attached hereto, setting forth, among other things,
with respect to each REO Property that was included in the Trust Fund as of the
close of business on the Due Date immediately preceding the preparation of such
report, (i) the acquisition date of such REO Property, (ii) the amount of income
collected with respect to any REO Property net of related expenses and other
amounts, if any, received on such REO Property during the related Collection
Period and (iii) the value of the REO Property based on the most recent
appraisal or other valuation thereof available to the Special Servicer as of
such date of determination (including any prepared internally by the Special
Servicer).
"Repurchase Price": With respect to any Mortgage Loan to be repurchased
pursuant to Section 2.03(d), 2.03(e) or 9.01, or any Specially Serviced Mortgage
Loan or any REO Mortgage Loan to be sold or repurchased pursuant to Section
3.18, an amount, calculated by the Servicer, equal to:
(i) the unpaid principal balance of such Mortgage Loan as of the Due Date
as to which a payment was last made by the Borrower (less any Advances
previously made on account of principal); plus
(ii) unpaid accrued interest from the Due Date as to which interest was
last paid by the Borrower up to the Due Date in the month following
the month in which the purchase or repurchase occurred at a rate equal
to the Mortgage Rate on the unpaid principal balance of such Mortgage
Loan (less any Advances previously made on account of interest); plus
(iii) any unreimbursed Advances and unpaid Servicing Fees, Trustee Fees and
Special Servicing Compensation allocable to such Mortgage Loan
together with interest thereon at the Advance Rate; plus
(iv) in the event that the Mortgage Loan is required to be repurchased
pursuant to Sections 2.03(d) or 2.03(e), expenses reasonably incurred
or to be incurred by the Servicer, the Special Servicer or the Trustee
in respect of the breach or defect giving rise to the repurchase
obligation, including any expenses arising out of the enforcement of
the repurchase obligation.
"Request for Release": A request for a release signed by a Servicing
Officer, substantially in the form of Exhibit E hereto.
"Reserve Accounts": With respect to any Mortgage Loan, reserve accounts, if
any, established pursuant to the Mortgage or the Loan Agreement and any Escrow
Account. Any Reserve Account may be a sub-account of a related Cash Collateral
Account. Any Reserve Account shall be beneficially owned for federal income tax
purposes by the Person who is entitled to receive the reinvestment income or
gain thereon in accordance with the terms and provisions of the related Mortgage
Loan and Section 3.07, which Person shall be taxed on all reinvestment income or
gain thereon. The Servicer shall be permitted to make withdrawals therefrom for
deposit into the related Cash Collateral Account, if applicable, or the
Collection Account or for the purposes set forth under the related Mortgage
Loan.
"Responsible Officer": Any officer of the Asset-Backed Trust Services
Department of the Trustee or the Fiscal Agent (and, in the event that the
Trustee is the Certificate Registrar or the Paying Agent, of the Certificate
Registrar or the Paying Agent, as applicable) assigned to the Corporate Trust
Office with direct responsibility for the administration of this Agreement and
also, with respect to a particular matter, any other officer to whom such matter
is referred because of such officer's knowledge of and familiarity with the
particular subject, and, in the case of any certification required to be signed
by a Responsible Officer, such an officer whose name and specimen signature
appears on a list of corporate trust officers furnished to the Servicer by the
Trustee and the Fiscal Agent, as such list may from time to time be amended.
"Revised Rate": With respect to the Mortgage Loans, the increased interest
rate after the Anticipated Repayment Date (in the absence of a default) for each
applicable Mortgage Loan, as calculated and as set forth in the related Mortgage
Loan.
"S&P": Standard & Poor's Ratings Services, or its successor in interest.
"Scheduled Final Distribution Date": As to each Class of Certificates,
April 14, 2027, the next Distribution Date occurring after the latest maturity
date of any Mortgage Loan.
"Securities Legend": With respect to each Residual Certificate or any
Individual Certificate, the legend set forth in, and substantially in the form
of, Exhibit G hereto.
"Separation Date": With respect to any of the Class B-1, Class B-2, Class
B-3, Class B-4, Class B-5 and Class B-6 Certificates, the date on which such
Class is assigned a rating of "BBB" or higher by S&P or Fitch.
"Servicer": AMRESCO Management, Inc., a Texas corporation, or its successor
in interest, or any successor Servicer appointed as herein provided.
"Servicer Event of Default": As defined in Section 7.01(a).
"Servicer Prepayment Interest Shortfall": With respect to any Distribution
Date, the amount of any shortfall in collections of interest (adjusted to the
applicable Net Mortgage Pass-Through Rate plus the Trustee Fee Rate) resulting
from a Principal Prepayment on a Mortgage Loan during the related Collection
Period and prior to the related Due Date, which Principal Prepayment, pursuant
to the terms of the related Mortgage Loan, was not permitted to be made on any
date other than a Due Date under such Mortgage Loan, but was nonetheless
accepted by the Servicer; provided, however, that the aggregate amount of the
Servicer Prepayment Interest Shortfall with respect to any Interest Accrual
Period shall not exceed the amount of the Servicing Fee attributable to the
Mortgage Loan being prepaid and the investment income accruing on the related
Principal Prepayment with respect to such Interest Accrual Period.
"Servicer Remittance Date": With respect to any Distribution Date, the
Business Day preceding such Distribution Date.
"Servicer Remittance Report": A report prepared by the Servicer and/or the
Special Servicer in such media as may be agreed upon by the Servicer, the
Special Servicer and the Trustee containing such information regarding the
Mortgage Loans as will permit the Trustee to calculate the amounts to be
distributed pursuant to Section 4.01 and to furnish statements to
Certificateholders pursuant to Section 4.02, including information on the
outstanding principal balances of each Mortgage Loan specified therein, and
containing such additional information as the Servicer, the Special Servicer and
the Trustee may from time to time agree.
"Servicer's Appraisal Estimate": As defined in the definition of Appraisal
Reduction Amount.
"Servicing Compensation": With respect to any Distribution Date, the
related Servicing Fee and any other fees, charges or other amounts payable to
the Servicer on such Distribution Date.
"Servicing Fee": With respect to each Mortgage Loan and for any
Distribution Date, an amount per Interest Accrual Period equal to the product of
(i) one-twelfth of the Servicing Fee Rate and (ii) the Stated Principal Balance
of such Mortgage Loan as of the Due Date (after giving effect to all payments of
principal on such Mortgage Loan on such Due Date) in the month preceding the
month in which such Distribution Date occurs.
"Servicing Fee Rate": A rate equal to 0.04625% per annum.
"Servicing Officer": Any officer or employee of the Servicer or the Special
Servicer, as applicable, involved in, or responsible for, the administration and
servicing of the Mortgage Loans or this Agreement and also, with respect to a
particular matter, any other officer to whom such matter is referred because of
such officer's or employee's knowledge of and familiarity with the particular
subject, and, in the case of any certification required to be signed by a
Servicing Officer, such an officer or employee whose name and specimen signature
appears on a list of servicing officers furnished to the Trustee by the Servicer
or the Special Servicer, as applicable, as such list may from time to time be
amended.
"Servicing Standard": With respect to the Servicer or Special Servicer
shall mean the servicing of the Mortgage Loans by the Servicer or Special
Servicer solely in the best interests of and for the benefit of all of the
Certificateholders (as determined by the Servicer or Special Servicer as the
case may be, in its reasonable judgment) and in accordance with applicable law,
the specific terms of the respective Mortgage Loans and this Agreement and to
the extent not inconsistent with the foregoing, in the same manner in which, and
with the same care, skill, prudence and diligence with which, it (i) services
and administers similar mortgage loans for other third-party portfolios or (ii)
administers mortgage loans for its own account, whichever standard is higher,
but in any case without regard to:
(i) any known relationship that the Servicer, the Special Servicer, any
subservicer or any Affiliate of the Servicer, the Special Servicer or
any subservicer may have with any Borrower or any other parties to the
Pooling and Servicing Agreement;
(ii) the ownership of any Certificate by the Servicer, the Special Servicer
or any Affiliate of the Servicer or Special Servicer, as applicable;
(iii) the Servicer's or Special Servicer's obligation to make P&I Advances,
Property Advances or to incur servicing expenses with respect to the
Mortgage Loans;
(iv) the Servicer's, Special Servicer's or any sub-servicer's right to
receive compensation for its services hereunder or with respect to any
particular transaction; or
(v) the ownership, or servicing or management for others, by the Servicer,
the Special Servicer or any sub-servicer, of any other mortgage loans
or properties.
"Similar Law": As defined in Section 5.02(k) hereof.
"Special Servicer": The Servicer, in such capacity, or any successor
Special Servicer appointed as provided in Section 3.25. In the event that the
Servicer is terminated or resigns as the Servicer hereunder, the Servicer shall
be terminated as the Special Servicer hereunder.
"Special Servicer Event of Default": As defined in Section 7.01(b).
"Special Servicing Compensation": With respect to any Mortgage Loan, any of
the Special Servicing Fee and Principal Recovery Fee which shall be due to the
Special Servicer.
"Special Servicing Fee": With respect to each Specially Serviced Mortgage
Loan and any Distribution Date, an amount per Special Servicing Period equal to
the product of (i) one-twelfth of the Special Servicing Fee Rate and (ii) the
Stated Principal Balance of such Specially Serviced Mortgage Loan as of the Due
Date (after giving effect to all payments of principal on such Specially
Serviced Mortgage Loan on such Due Date) in the month preceding the month in
which such Distribution Date occurs.
"Special Servicing Fee Rate": A rate equal to 0.50% per annum (except that
if the Special Servicer is, or is an Affiliate of, the Holder or Holders of
Certificates, representing greater than 50% of the Voting Rights of the most
subordinate Class of Certificates then outstanding, the Special Servicer shall
provide written notice thereof to the Servicer and the rate shall equal 0.25%
per annum).
"Special Servicing Period": Any Interest Accrual Period during which a
Mortgage Loan is at any time a Specially Serviced Mortgage Loan.
"Specially Serviced Mortgage Loan": Subject to Section 3.26, any Mortgage
Loan with respect to which:
(i) the related Borrower has not made two consecutive Monthly Payments
(and has not cured at least one such delinquency by the next due date
under the related Mortgage Loan);
(ii) the Servicer, the Trustee or the Fiscal Agent, individually or
collectively, have made four consecutive P&I Advances (regardless of
whether such P&I Advances have been reimbursed);
(iii) the related Borrower has expressed to the Servicer an inability to
pay or a hardship in paying the Mortgage Loan in accordance with its
terms;
(iv) the Servicer has received notice that the Borrower has become the
subject of any bankruptcy, insolvency or similar proceeding, admitted
in writing the inability to pay its debts as they come due or made an
assignment for the benefit of creditors;
(v) the Servicer has received notice of a foreclosure or threatened
foreclosure of any lien on the Mortgage Property securing the Mortgage
Loan;
(vi) a default of which (A) the Servicer has notice (other than a failure
by the Borrower to pay principal or interest) and (B) which materially
and adversely affects the interests of the Certificateholders has
occurred and remained unremedied for the applicable grace period
specified in the Mortgage Loan (or, if no grace period is specified,
60 days); provided, that a default requiring a Property Advance shall
be deemed to materially and adversely affect the interests of the
Certificateholders;
(vii) the Special Servicer proposes to commence foreclosure or other
workout arrangements;
(viii) the related Borrower has failed to make a Balloon Payment as and
when due; or
(ix) in the opinion of the Servicer (consistent with the Servicing
Standard) a default under a Mortgage Loan is imminent and such
Mortgage Loan deserves the attention of the Special Servicer.
provided, however, that a Mortgage Loan will cease to be a Specially Serviced
Mortgage Loan:
(a) with respect to the circumstances described in clause (i) or (ii) or
(viii) above, when the Borrower thereunder has brought the Mortgage
Loan current (or, with respect to the circumstances described in
clause (viii), pursuant to any work-out implemented by the Special
Servicer) and thereafter made three consecutive full and timely
Monthly Payments (including pursuant to any workout of the Mortgage
Loan);
(b) with respect to the circumstances described in clause (iii), (iv), (v)
and (vii) above, when such circumstances cease to exist in the good
faith judgment of the Servicer; or
(c) with respect to the circumstances described in clause (vi) above, when
such default is cured;
provided, further, that at that time no circumstance identified in clauses (i)
through (vii) above exists that would cause the Mortgage Loan to continue to be
characterized as a Specially Serviced Mortgage Loan.
"Spread Rate": The Spread Rate for each Class of Certificates is as set
forth below:
Class Spread Rate
Class A-CS1..................................... 2.5%
Class PS-1...................................... 2.1%
Class A-1A...................................... 0.44%
Class A-1B...................................... 0.56%
Class A-1C...................................... 0.59%
Class A-1D...................................... 0.66%
"Startup Day": The day designated as such pursuant to Section 2.06(a)
hereof.
"Stated Principal Balance": With respect to any Mortgage Loan, at any date
of determination, an amount equal to (a) the principal balance as of the Cut-off
Date of such Mortgage Loan, minus (b) the sum of (i) the principal portion of
each Monthly Payment due on such Mortgage Loan after the Cut-off Date up to such
date of determination, if received from the Borrower or advanced (including
Subordinate Class Advance Amounts) by the Servicer, Trustee, or Fiscal Agent,
(ii) all voluntary and involuntary principal prepayments and other unscheduled
collections of principal received with respect to such Mortgage Loan and (iii)
any principal forgiven by the Special Servicer or Class Interest Shortfalls
resulting from reductions or deferrals of interest resulting from modifications
made pursuant to Section 3.30 hereof. The Stated Principal Balance of a Mortgage
Loan with respect to which title to the related Mortgaged Property has been
acquired by the Trust Fund is equal to the principal balance thereof outstanding
on the date on which such title is acquired less any Net REO Proceeds allocated
to principal on such Mortgage Loan. The Stated Principal Balance of a Specially
Serviced Mortgage Loan with respect to which the Servicer or Special Servicer
has made a Final Recovery Determination is zero.
"Subordinate Class Advance Amount": As defined in Section 4.06(d).
"Successor Manager": As defined in Section 3.19(b) below.
"Tax Returns": The federal income tax return on IRS Form 1066, U.S. Real
Estate Mortgage Investment Conduit Income Tax Return, including Schedule Q
thereto, Quarterly Notice to Residual Interest Holders of REMIC Taxable Income
or Net Loss Allocation, or any successor forms, to be filed on behalf of each of
the Upper-Tier REMIC or Lower-Tier 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 IRS or any other
governmental taxing authority under any applicable provisions of federal, state
or local tax laws.
"Terminated Party": As defined in Section 7.01(c).
"Terminating Party": As defined in Section 7.01(c).
"Termination Date": The Distribution Date on which the Trust Fund is
terminated pursuant to Section 9.01.
"Transfer": Any direct or indirect transfer or other form of assignment of
any Ownership Interest in a Class R or Class LR Certificate.
"Transferee Affidavit": As defined in Section 5.02(l)(ii).
"Transferor Letter": As defined in Section 5.02(l)(ii).
"Trust Fund": The corpus of the trust created hereby and to be administered
hereunder, consisting of: (i) such Mortgage Loans as from time to time are
subject to this Agreement, together with the Mortgage Files relating thereto;
(ii) all scheduled or unscheduled payments on or collections in respect of the
Mortgage Loans due after the Cut-off Date; (iii) any REO Property; (iv) all
revenues received in respect of any REO Property; (v) the Servicer's, the
Special Servicer's and the Trustee's rights under the insurance policies with
respect to the Mortgage Loans required to be maintained pursuant to this
Agreement and any proceeds thereof; (vi) any Assignments of Leases, Rents and
Profits and any security agreements; (vii) any indemnities or guaranties given
as additional security for any Mortgage Loans; (viii) all assets deposited in
the Lock-Box Accounts, Cash Collateral Accounts, Escrow Accounts and Reserve
Accounts (to the extent such assets are not assets of the respective Borrowers),
the Collection Account, the Distribution Account, the Upper-Tier Distribution
Account, the Excess Interest Distribution Account, Interest Reserve Account and
the Default Interest Distribution Account, including reinvestment income; (ix)
any environmental indemnity agreements relating to the Mortgaged Properties; (x)
the rights and remedies under the Mortgage Loan Purchase and Sale Agreement and
Bloomfield Purchase Agreement; and (xi) the proceeds of any of the foregoing
(other than any interest earned on deposits in the Lock-Box Accounts, Cash
Collateral Accounts, Escrow Accounts and any Reserve Accounts, to the extent
such interest belongs to the related Borrower).
"Trust REMICs": The Lower-Tier REMIC and the Upper-Tier REMIC.
"Trustee": LaSalle National Bank, a nationally chartered bank, in its
capacity as trustee, or its successor in interest, or any successor trustee
appointed as herein provided.
"Trustee Fee": With respect to each Mortgage Loan and for any Distribution
Date, an amount per Interest Accrual Period equal to the product of (i)
one-twelfth of the Trustee Fee Rate multiplied by (ii) the Stated Principal
Balance of such Mortgage Loan as of the Due Date (after giving effect to all
payments of principal on such Mortgage Loan on such Due Date) in the month
preceding the month in which such Distribution Date occurs.
"Trustee Fee Rate": A rate equal to 0.00375% per annum.
"Underwriter": Bear, Xxxxxxx & Co. Inc. with respect to the Class B-1,
Class B-2, Class B-3, Class B-4, Class B-5 and Class B-6 Certificates, and
Nomura Securities International, Inc. with respect to all Classes of
Certificates.
"Unitholder": Any Certificateholder holding a beneficial interest in the
Classes of Certificates comprising the Units.
"Units": Units consisting of the Class B-1 Certificates, the Class B-2
Certificates, the Class B-3 Certificates, the Class B-4 Certificates, the Class
B-5 Certificates and the Class B-6 Certificates, subject to any separation as
provided for in Section 5.01(j).
"Unscheduled Payments": With respect to a Mortgage Loan and a Collection
Period, all Net Liquidation Proceeds and Net Insurance Proceeds payable under
such Mortgage Loan, the Repurchase Price of any Mortgage Loan that is
repurchased or purchased pursuant to Sections 2.03(d), 2.03(e) or 9.01, and any
other payments under or with respect to such Mortgage Loan not scheduled to be
made, including Principal Prepayments received by the Servicer, but excluding
Prepayment Premiums, during such Collection Period.
"Updated Appraisal": An appraisal of a Mortgaged Property or REO Property,
as the case may be, conducted subsequent to any appraisal performed on or prior
to the Cut-off Date and in accordance with MAI standards, the costs of which
shall be paid as a Property Advance by the Servicer. Updated Appraisals shall be
conducted by an MAI appraiser selected by the Servicer after consultation with
the Special Servicer.
"Upper-Tier Distribution Account": The trust account or accounts created
and maintained as a separate trust account or accounts by the Trustee pursuant
to Section 3.05(c), which shall be entitled "LaSalle National Bank, as Trustee,
in trust for Holders of Asset Securitization Corporation, Commercial Mortgage
Pass-Through Certificates, Series 1997-D4, Upper-Tier Distribution Account" and
which must be an Eligible Account.
"Upper-Tier REMIC": A segregated asset pool within the Trust Fund
consisting of the Lower-Tier Regular Interests and amounts held from time to
time in the Upper-Tier Distribution Account.
"Voting Rights": The portion of the voting rights of all of the
Certificates that is allocated to any Certificate or Class of Certificates. At
all times during the term of this Agreement, the percentage of the Voting Rights
assigned to each Class shall be (a) 0%, in the case of the Class V-1, Class V-2,
Class R and Class LR Certificates, (b) 0.09% in the case of the Class A-CS1
Certificates, 3.58% in the case of the Class PS-1 Certificates (the sum of such
percentages for each such Class outstanding is the "Fixed Voting Rights
Percentage"); provided that the Voting Rights of (i) the Class ACS-1
Certificates will be reduced to zero upon the reduction of the Notional Balance
of such class to zero, and (ii) the Class PS-1 Certificates will be reduced to
zero on the Distribution Date on which none of the A-1B, Class A-1C, Class A-1D,
Class A-1E, Class B-1, Class B-2, Class B-3, Class B-4, Class B-5 and Class B-6
Certificates are outstanding, (c) in the case of any of the Class A-1A, Class
A-1B, Class A-1C, Class A-1D, Class A-1E, Class A-2, Class A-3, Class A-4, Class
A-5, Class A-6, Class A-7, Class A-8, Class B-1, Class B-2, Class B-3, Class
B-4, Class B-5, Class B-6, Class B-7, and Class B-7H Certificates, a percentage
equal to the product of (i) 100% minus the Fixed Voting Rights Percentage
multiplied by (ii) a fraction, the numerator of which is equal to the aggregate
outstanding Certificate Balance of any such Class and the denominator of which
is equal to the aggregate outstanding Certificate Balances of all Classes of
Certificates. The Class A-CS1 and Class PS-1 Certificates shall not be entitled
to vote with respect to proposed extensions of a Specially Serviced Mortgage
Loan. The Voting Rights of any Class of Certificates shall be allocated among
Holders of Certificates of such Class in proportion to their respective
Percentage Interests. The aggregate Voting Rights of Holders of more than one
Class of Certificates shall be equal to the sum of the products of each such
Holder's Voting Rights and the percentage of Voting Rights allocated to the
related Class of Certificates. Any Certificateholder may transfer its Voting
Rights without transferring its ownership interest in the related Certificates
provided that such Certificateholder provides notice of such transfer to the
Trustee prior to the effectiveness of such transfer. The Voting Rights of each
Class of Certificates will be deemed to be reduced on any day on which an
Appraisal Reduction Amount is allocated to such Class pursuant to Section
4.06(e). The Fixed Voting Right Percentage of the Class A-CS1 Certificates shall
be proportionally reduced upon the allocation of Appraisal Reduction Amounts
with respect to the Class A-1A Certificates pursuant to Section 4.06(e) based on
the amount of such reduction. The Fixed Voting Right Percentage of the Class
PS-1 Certificates shall be proportionally reduced upon the allocation of
Appraisal Reduction Amounts to the Class A-1B, Class A-1C, Class A-1D, Class
A-1E, Class A-2, Class A-3, Class A-4, Class A-5, Class A-6, Class A-7, Class
A-8, Class B-1, Class B-2 Class B-3, Class B-4 Class B-5 and Class B-6
Certificates pursuant to Section 4.06(e) based on the amount of such reduction.
"Watch List": A report substantially containing the content described in
Exhibit I-6 attached hereto, setting forth, among other things, any Mortgage
Loan that is in jeopardy of becoming a Specially Serviced Mortgage Loan.
"Weighted Average Net Mortgage Pass-Through Rate": With respect to any
Distribution Date, a per annum rate equal to the fraction (expressed as a
percentage) the numerator of which is the sum of the products of (i) the Net
Mortgage Pass-Through Rate of each Mortgage Loan and (ii) the Stated Principal
Balance of each Mortgage Loan and the denominator of which is the sum of the
Stated Principal Balances of each Mortgage Loan, as of the Due Date occurring in
the month preceding the month in which such Distribution Date occurs.
"Weighted Average Pass-Through Rate": With respect to any Interest Accrual
Period, a fraction (expressed as a percentage), the numerator of which is the
sum of (i) the sum of the products of (A) the Pass-Through Rate with respect to
each class of Certificates having a Pass-Through Rate (other than the Class PS-1
and Class A-CS1 Certificates) and (B) the Certificate Balance of such Class as
of the first day of such Interest Accrual Period and (ii) the product of (A) the
Pass-Through Rate on the Class A-CS1 Certificates and (B) the Notional Balance
of such class as of such date and the denominator of which is the sum of the
Certificate Balances of each class included in clause (i)(A) above as of such
date (provided in the case of clauses (i) and (ii), any reductions in
Certificate Balance as a result of distributions or allocations of Realized
Losses to such class, respectively, occurring in an Interest Accrual Period
shall be deemed to have been made on the first day of such Interest Accrual
Period).
"Withheld Amounts": As defined in Section 3.27(a).
SECTION 1.02. Certain Calculations.
Unless otherwise specified herein, the following provisions shall apply:
(a) All calculations of interest with respect to the Mortgage Loans (other
than the Actual/360 Mortgage Loans) and of Advances provided for herein shall be
made on the basis of a 360-day year consisting of twelve 30-day months. All
calculations of interest with respect to the Actual/360 Mortgage Loans and of
Advances provided for herein shall be made as set forth in such Mortgage Loans
with respect to the calculation of the related Mortgage Rate.
(b) Any Mortgage Loan payment is deemed to be received on the date such
payment is actually received by the Servicer, or the Trustee; provided, however,
that for purposes of calculating distributions on the Certificates, Principal
Prepayments with respect to any Mortgage Loan are deemed to be received on the
date they are applied in accordance with Section 3.01(b) to reduce the
outstanding principal balance of such Mortgage Loan on which interest accrues.
(c) Any amounts received in respect of a Mortgage Loan as to which a
default has occurred and is continuing in excess of Monthly Payments shall be
applied to Default Interest and other amounts due on such Mortgage Loan prior to
the application to late fees.
SECTION 1.03. Certain Constructions.
For purposes of the definitions of "Minimum Defaulted Monthly Payment",
"Special Servicing Fee", Section 3.19, Section 3.12, Section 3.25, Section 3.30
and Section 4.06(d), references to the most or next most subordinate Class of
Certificates (or Lower-Tier Regular Interests) outstanding at any time shall
mean the most or next most subordinate Class of Certificates (or Lower-Tier
Regular Interests) then outstanding as among the Class A-1A, Class A-1B, Class
A-1C, Class A-1D, Class A-CS1, Class PS-1, Class A-1E, Class A-2, Class A-3,
Class A-4, Class A-5, Class A-6, Class A-7, Class A-8, Class B-1, Class B-2,
Class B-3, Class B-4, Class B-5, Class B-6, Class B-7 and Class B-7H
Certificates (and the Classes of Related Lower-Tier Regular Interests). For such
purposes, the Class B-7 and Class B-7H Certificates (and the Classes of Related
Lower-Tier Regular Interests) together shall be considered to be one Class and
the Class A-1A, Class A-1B, Class A-1C, Class A-1D, Class A-CS1 and Class PS-1
Certificates (and the Classes of Related Lower-Tier Regular Interests)
collectively shall be considered to be one Class. For purposes of this
Agreement, each Class of Certificates other than the Class V-1, Class V-2, Class
LR and Class R Certificates shall be deemed to be outstanding only to the extent
its respective Certificate Balance has not been reduced to zero. For purposes of
this Agreement, the Class V-1 Certificates shall be deemed to be outstanding so
long as there are any Notes outstanding, the Class V-2 Certificates shall be
deemed outstanding so long as there are any Notes outstanding that provide for
the payment of Excess Interest, the Class B-7H Certificates and the Class B-7H-L
Interest shall be deemed to be outstanding so long as there are any Notes
outstanding that provide for payments of Prepayment Premiums in connection with
voluntary or involuntary prepayments and the Class R and Class LR Certificates
shall be deemed to be outstanding so long as the Trust Fund has not been
terminated pursuant to Section 9.01. For purposes of this Agreement, the Class
A-CS1 and Class PS-1 Certificates shall be deemed to be outstanding until their
respective Notional Balances have been reduced to zero.
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
ORIGINAL ISSUANCE OF CERTIFICATES
SECTION 2.01. Conveyance of Mortgage Loans; Assignment of Mortgage Loan
Purchase and Sale Agreement.
The Depositor, concurrently with the execution and delivery hereof, does
hereby sell, transfer, assign, set over and otherwise convey to the Trustee
without recourse (except to the extent herein provided) all the right, title and
interest of the Depositor in and to the Mortgage Loans, including all rights to
payment in respect thereof, except as set forth below, and any security interest
thereunder (whether in real or personal property and whether tangible or
intangible) in favor of the Depositor, and all Reserve Accounts, Lock-Box
Accounts, Cash Collateral Accounts and all other assets included or to be
included in the Trust Fund for the benefit of the Certificateholders. Such
transfer and assignment includes all interest and principal due on or with
respect to the Mortgage Loans after the Cut-off Date. In connection with such
transfer and assignment, the Depositor shall make a cash deposit to the
Collection Account in an amount equal to the Cash Deposit. The Depositor,
concurrently with execution and delivery hereof, does also hereby transfer,
assign, set over and otherwise convey to the Trustee without recourse (except to
the extent provided herein) all the right, title and interest of the Depositor
in, to and under the Mortgage Loan Purchase and Sale Agreement and, in, to and
under each Bloomfield Purchase Agreement as assignee of the Mortgage Loan
Seller's rights thereunder to the extent related to any Mortgage Loan. The
Servicer, Special Servicer or the Trustee shall notify the Mortgage Loan Seller
and the Depositor upon such party's becoming aware of any breach of the
representations and warranties contained in this Agreement or the Mortgage Loan
Purchase and Sale Agreement that gives rise to a cure or repurchase obligation;
provided, that the failure of the Servicer, the Special Servicer or Trustee to
give such notification shall not constitute a waiver of any cure or repurchase
obligation. The Depositor shall cause the Reserve Accounts, Cash Collateral
Accounts and Lock-Box Accounts to be transferred to and held in the name of the
Servicer on behalf of the Trustee as successor to the Mortgage Loan Seller and
the Originators.
In connection with such transfer and assignment, the Depositor does hereby
deliver to, and deposit with, the Custodian (on behalf of the Trustee), with
copies to the Servicer and the Special Servicer, the following documents or
instruments with respect to each Mortgage Loan so assigned (provided, however,
the documents specified in item (ix) shall be delivered only to the Servicer):
(i) the original of the Note, endorsed without recourse to the order of
the Trustee in the following form: "Pay to the order of LaSalle
National Bank, as Trustee, without recourse", or in blank, which Note
and all endorsements thereon shall, unless the Mortgage Loan was
originated by the Mortgage Loan Seller (as indicated on the Mortgage
Loan Schedule), show a complete chain of endorsement from the
Originator to the Trustee;
(ii) the original recorded Mortgage or counterpart thereof showing the
Originator as mortgagee or, if any such original Mortgage has not been
returned from the applicable public recording office, a copy thereof
certified to be a true and complete copy of the original thereof
submitted for recording;
(iii) an executed Assignment of Mortgage in suitable form for recordation
in the jurisdiction in which the Mortgaged Property is located to
"LaSalle National Bank, as Trustee, without recourse";
(iv) if the related security agreement is separate from the Mortgage, the
original executed version or counterpart thereof of such security
agreement and the assignment thereof to Trustee;
(v) a copy of the UCC-1 financing statement, together with an original
executed UCC-2 or UCC-3 financing statement, in a form suitable for
filing, disclosing the assignment to the Trustee of the security
interest in the personal property (if any) constituting security for
repayment of the Mortgage Loan;
(vi) the original of the Loan Agreement or counterpart thereof relating to
such Mortgage Loan, if any;
(vii) the original lender's title insurance policy (or the original pro
forma title insurance policy), together with any endorsements thereto;
(viii) if any related Assignment of Leases, Rents and Profits is separate
from the Mortgage, the original executed version or counterpart
thereof, together with an executed reassignment of such instrument to
the Trustee (a "Reassignment of Assignment of Leases, Rents and
Profits") in suitable form for recordation in the jurisdiction in
which the Mortgaged Property is located (which reassignment, however,
may be included in the Assignment of Mortgage and need not be a
separate instrument);
(ix) copies of the original Environmental Reports of the Mortgaged
Properties made in connection with origination of the Mortgage Loans,
if any;
(x) copies of the original Management Agreements, if any, for the
Mortgaged Property;
(xi) a copy of the related ground lease, as amended, for the Mortgaged
Property, if any;
(xii) if the related assignment of contracts is separate from the Mortgage,
the original executed version of such assignment of contracts and the
assignment thereof to the Trustee;
(xiii) if any related Lock-Box Agreement or Cash Collateral Agreement is
separate from the Mortgage or Loan Agreement, a copy thereof; with
respect to the Reserve Accounts, Cash Collateral Accounts and Lock-Box
Accounts, if any, a copy of the UCC-1 financing statements, if any,
submitted for filing with respect to the Mortgage Loan Seller's
security interest in the Reserve Accounts, Cash Collateral Accounts
and Lock-Box Accounts and all funds contained therein (and UCC-3
financing statements assigning such security interest to the Trustee
on behalf of the Certificateholders);
(xiv) any and all amendments, modifications and supplements to, and waivers
related to, any of the foregoing; and
(xv) any other written agreements related to the Mortgage Loan.
On or promptly following the Closing Date, the Servicer shall, to the
extent possession thereof has been delivered to it, at the expense of the
Depositor, (1) record, (a) each Assignment of Mortgage referred to in Section
2.01(iii) which has not yet been submitted for recording and (b) each
Reassignment of Assignment of Leases, Rents and Profits referred to in Section
2.01(viii) (if not otherwise included in the related Assignment of Mortgage)
which has not yet been submitted for recordation; and (2) file, each UCC-2 or
UCC-3 financing statement referred to in Section 2.01(v) or (xiii) which has not
yet been submitted for filing. The Servicer shall upon delivery promptly submit
(and in no event later than five Business Days following the receipt of the
related documents in the case of clause 1(a) above and 60 days following the
Closing Date in the case of clauses 1(b) and 2 above) for recording or filing,
as the case may be, in the appropriate public recording office, each such
document. In the event that any such document is lost or returned unrecorded
because of a defect therein, the Servicer, at the expense of the Depositor,
shall use its best efforts to promptly prepare a substitute document for
signature by the Depositor, and thereafter the Servicer shall cause each such
document to be duly recorded. The Servicer shall, promptly upon receipt of the
original recorded copy (and in no event later than five Business Days following
such receipt) deliver such original to the Custodian. Notwithstanding anything
to the contrary contained in this Section 2.01, in those instances where the
public recording office retains the original Mortgage, Assignment of Mortgage or
Reassignment of Assignment of Leases, Rents and Profits, if applicable, after
any has been recorded, the obligations hereunder of the Depositor shall be
deemed to have been satisfied upon delivery to the Custodian of a copy of such
Mortgage, Assignment of Mortgage or Reassignment of Assignment of Leases, Rents
and Profits, if applicable, certified by the public recording office to be a
true and complete copy of the recorded original thereof. If a pro forma title
insurance policy has been delivered to the Custodian in lieu of an original
title insurance policy, the Depositor will promptly deliver to the Custodian the
related original title insurance policy upon receipt thereof. The Depositor
shall promptly cause the UCC-1's referred to in Section 2.01(v) to be filed in
the applicable public recording office and upon filing will promptly deliver to
the Custodian the related UCC-1, with evidence of filing thereon. The Depositor
shall reimburse the Servicer for all out-of-pocket expenses incurred and filing
fees paid by the Servicer in connection with its obligations under this
paragraph. Copies of recorded or filed Assignments, Reassignments, UCC-1's and
UCC-3's shall be delivered to the Trustee by the Depositor or Servicer, as
applicable.
All original documents relating to the Mortgage Loans which are not
delivered to the Custodian are and shall be held by the Depositor, the Trustee
or the Servicer, as the case may be, in trust for the benefit of the
Certificateholders. In the event that any such original document is required
pursuant to the terms of this Section to be a part of a Mortgage File, such
document shall be delivered promptly to the Custodian.
SECTION 2.02. Acceptance by Custodian and the Trustee.
If the Depositor cannot deliver any original or certified recorded document
described in Section 2.01 on the Closing Date, the Depositor shall use its best
efforts, promptly upon receipt thereof and in any case not later than 45 days
from the Closing Date, to deliver such original or certified recorded documents
to the Custodian (unless the Depositor is delayed in making such delivery by
reason of the fact that such documents shall not have been returned by the
appropriate recording office in which case it shall notify the Custodian and the
Trustee in writing of such delay and shall deliver such documents to the
Custodian promptly upon the Depositor's receipt thereof). By its execution and
delivery of this Agreement, the Trustee acknowledges the assignment to it of the
Mortgage Loans in good faith without notice of adverse claims and declares that
the Custodian holds and will hold such documents and all others delivered to it
constituting the Mortgage File (to the extent the documents constituting the
Mortgage File are actually delivered to the Custodian) for any Mortgage Loan
assigned to the Trustee hereunder in trust, upon the conditions herein set
forth, for the use and benefit of all present and future Certificateholders.
With the exception of any Notes listed by the Trustee on an exception report and
delivered to the Depositor on the Closing Date, the Trustee hereby acknowledges
the receipt of the Notes. The Trustee agrees to review each Mortgage File within
45 days after the later of (a) the Trustee's receipt of such Mortgage File or
(b) execution and delivery of this Agreement, to ascertain that all documents
(other than documents referred to in clause (ix) of Section 2.01 which shall be
delivered to the Servicer) referred to in Section 2.01 above (in the case of the
documents referred to in Section 2.01(iv), (v), (vi), (vii) (in the case of any
endorsement thereto), (viii) and (x) through (xv), as identified to it in
writing by the Depositor) and any original recorded documents referred to in the
first sentence of this Section included in the delivery of a Mortgage File have
been received, have been executed, appear to be what they purport to be, purport
to be recorded or filed (as applicable) and have not been torn, mutilated or
otherwise defaced, and that such documents relate to the Mortgage Loans
identified in the Mortgage Loan Schedule. In so doing, the Trustee may rely on
the purported due execution and genuineness of any such document and on the
purported genuineness of any signature thereon. If at the conclusion of such
review any document or documents constituting a part of a Mortgage File have not
been executed or received, have not been recorded or filed (if required), are
unrelated to the Mortgage Loans identified in the Mortgage Loan Schedule, appear
not to be what they purport to be or have been torn, mutilated or otherwise
defaced, the Trustee shall promptly so notify the Depositor and the Mortgage
Loan Seller by providing a written report, setting forth for each affected
Mortgage Loan, with particularity, the nature of the defective or missing
document. The Depositor shall, or shall cause the Mortgage Loan Seller to,
deliver an executed, recorded or undamaged document, as applicable, or, if the
failure to deliver such document in such form has a material adverse effect on
the security provided by the related Mortgaged Property, the Depositor shall, or
shall cause the Mortgage Loan Seller to, repurchase the related Mortgage Loan in
the manner provided in Section 2.03. None of the Servicer, the Special Servicer
and Trustee shall be responsible for any loss, cost, damage or expense to the
Trust Fund resulting from any failure to receive any document constituting a
portion of a Mortgage File noted on such a report or for any failure by the
Depositor to use its best efforts to deliver any such document.
In reviewing any Mortgage File pursuant to the preceding paragraph or
Section 2.01, the Servicer shall have no responsibility to cause the Trustee to,
and the Trustee will have no responsibility to, determine whether any document
or opinion is legal, valid, binding or enforceable, whether the text of any
assignment or endorsement is in proper or recordable form (except, if
applicable, to determine if the Trustee is the assignee or endorsee), whether
any document has been recorded in accordance with the requirements of any
applicable jurisdiction, whether a blanket assignment is permitted in any
applicable jurisdiction, or whether any Person executing any document or
rendering any opinion is authorized to do so or whether any signature thereon is
genuine.
The Trustee shall hold that portion of the Trust Fund delivered to the
Trustee consisting of "instruments" (as such term is defined in Section 9-105(i)
of the Uniform Commercial Code as in effect in Illinois on the date hereof) in
Illinois and, except as otherwise specifically provided in this Agreement, shall
not remove such instruments from Illinois, as applicable, unless it receives an
Opinion of Counsel (obtained and delivered at the expense of the Person
requesting the removal of such instruments from Illinois) that in the event the
transfer of the Mortgage Loans to the Trustee is deemed not to be a sale, after
such removal, the Trustee will possess a first priority perfected security
interest in such instruments.
SECTION 2.03. Representations, Warranties and Covenants of the Depositor.
(a) The Depositor hereby represents and warrants 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 Depositor has taken all necessary action to authorize the
execution, delivery and performance of this Agreement by it, and has
the power and authority to execute, deliver and perform this Agreement
and all the transactions contemplated hereby, including, but not
limited to, the power and authority to sell, assign and transfer the
Mortgage Loans in accordance with this Agreement;
(iii) This Agreement has been duly and validly authorized, executed and
delivered by the Depositor and assuming the due authorization,
execution and delivery of this Agreement by each other party hereto,
this Agreement and all of the obligations of the Depositor hereunder
are the legal, valid and binding obligations of the Depositor,
enforceable in accordance with the terms of this Agreement, except as
such enforcement may be limited by bankruptcy, insolvency,
reorganization, liquidation, receivership, moratorium or other laws
relating to or affecting creditors' rights generally, or by general
principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law);
(iv) The execution and delivery of this Agreement and the performance of
its obligations hereunder by the Depositor will not conflict with any
provision of its certificate of incorporation or bylaws, or any law or
regulation to which the Depositor is subject, or conflict with, result
in a breach of or constitute a default under (or an event which with
notice or lapse of time or both would constitute a default under) any
of the terms, conditions or provisions of any agreement or instrument
to which the Depositor is a party or by which it is bound, or any
order or decree applicable to the Depositor, or result in the creation
or imposition of any lien on any of the Depositor's assets or
property, which would materially and adversely affect the ability of
the Depositor to carry out the transactions contemplated by this
Agreement. The Depositor has obtained any consent, approval,
authorization or order of any court or governmental agency or body
required for the execution, delivery and performance by the Depositor
of this Agreement;
(v) The certificate of incorporation of the Depositor provides that the
Depositor is permitted to engage in only the following activities:
(A) to acquire, own, hold, sell, transfer, assign, pledge, finance,
refinance and otherwise deal with (I) loans secured by first or
second mortgages, deeds of trust or similar liens on residential,
including single-family and multi-family, commercial or mixed
commercial and residential properties, shares issued by private
non-profit housing corporations, or manufactured housing
contracts, (II) any participation interest in, security (in bond
or pass-through form) or funding agreement based on, backed or
collateralized by, directly or indirectly, any of the foregoing
(the loans described in clause (A)(I) and the participation
interests, securities and funding agreements described in clause
(A)(II), collectively, "Mortgage Loans"), (III) receivables and
loan obligations, whether secured or unsecured, including, but
not limited to, retail automotive, truck or manufactured housing
installment sale contracts or loans or automotive, truck or
manufactured housing leases, consumer or commercial loans or
leases, credit card accounts, accounts receivable, corporate
receivables, trade receivables, trade bills, boat and
recreational vehicle loans, computer or other equipment loans or
leases, mobile home loans and pads, construction equipment,
dealer and floor plan financing notes, insurance policy loans,
medical and health care receivables, municipal and other
governmental leases, short-term notes secured by a lien on a
small business or all or part of its assets, and loans to
lesser-developed countries, (IV) any participation interest in,
security (in bond or pass-through form) or funding agreement
based on, backed or collateralized by, directly or indirectly,
any of the foregoing (the receivables and loans described in
clause (A)(III) and the participation interests, securities and
funding agreements described in clause (A)(IV), collectively,
"Receivables");
(B) to authorize and issue one or more series (each, a "Pass-Through
Series") of pass-through securities ("Certificates") pursuant to
pooling and servicing agreements (each, a "Pooling and Servicing
Agreement"), each of which Pass-Through Series (I) represents an
ownership interest in Mortgage Loans or Receivables, related
property and/or collections in respect thereof and (II) may be
structured to contain one or more classes of Certificates, each
class having the characteristics specified in the related Pooling
and Servicing Agreement, and to acquire, own, hold, sell,
transfer, assign, pledge, finance or refinance one or more
Certificates or classes of Certificates of any Pass-Through
Series;
(C) to establish one or more trusts ("Trusts") to issue, acquire,
own, and hold one or more series (each, a "Bond Series") of debt
obligations ("Bonds"), each issued pursuant to an indenture
("Indenture"), each of which bond series (I) is collateralized by
Mortgage Loans, receivables and any supplemental collateral (the
"Supplemental Collateral"; Mortgage Loans, Receivables and
Supplemental Collateral, collectively, the "Collateral") and/or
related property and/or collections in respect thereof and (II)
may be structured to contain one or more classes of Bonds, each
class having the characteristics specified in the related
Indenture, and to acquire, own, hold, sell, transfer, assign,
pledge, finance or refinance one or more Bonds or classes of
Bonds of any Bond Series; provided, however, that the Bonds of
any Bond Series have been rated in one of the two highest rating
categories by one or more nationally recognized statistical
rating agencies and, provided further, that the Bonds of any Bond
Series other than the initial Bond Series issued by a Trust have
been rated in the same or a higher rating category by the
nationally recognized statistical rating agency or agencies that
rated the initial Bond Series issued by such Trust;
(D) to issue, acquire, assume, own, hold, sell, transfer, assign,
pledge and finance indebtedness that (I) is subordinated to the
Bonds; (II) is nonrecourse to the Depositor and the related Trust
other than to cash flow on the Collateral securing a Bond Series
issued by the related Trust in excess of amounts necessary to pay
holders of Bonds ("Bondholders") of such Bond Series; (III) does
not constitute a claim against the Depositor to the extent that
funds are insufficient to pay such indebtedness; and (IV) does
not result in a lowering or withdrawal of the rating or ratings
then assigned to the Bonds of any Bond Series issued by the Trust
issuing such subordinated indebtedness, as confirmed in writing
by the nationally recognized statistical rating agency or
agencies rating such Bond Series;
(E) (I) to establish one or more Trusts to engage in any one or more
of the activities described in (A) and (D) above, each of which
Trusts and any Trust formed to engage in one or more of the
activities described in (C) above may deliver to the Depositor
Certificates ("Trust Certificates") representing the ownership
interest in the assets of such Trust, (II) to acquire, own, hold,
sell, transfer, assign, pledge, finance, and otherwise deal with
any or all of the Trust Certificates in any Trust that it
establishes and (III) to act as settlor or depositor of such
Trusts and to invest in or sell Trust Certificates; and
(F) to engage in any other acts and activities and to exercise any
powers permitted to corporations under the laws of the State of
Delaware which are incidental to, or connected with, the
foregoing, and necessary, suitable or convenient to accomplish
any of the foregoing;
Capitalized terms defined in this clause (v) shall apply only to such
clause.
(vi ) There is no action, suit or proceeding pending against the Depositor
in any court or by or before any other governmental agency or
instrumentality which would materially and adversely affect the
ability of the Depositor to carry out its obligations under this
Agreement; and
(vii) The Trustee, if not the owner of the related Mortgage Loan, will have
a valid and perfected security interest of first priority in each of
the Mortgage Loans and any proceeds thereof.
(b) The Depositor hereby represents and warrants with respect to each
Mortgage Loan that:
(i) Immediately prior to the transfer and assignment to the Trustee, the
Note and the Mortgage were not subject to an assignment or pledge, and
the Depositor had good title to, and was the sole owner of, the
Mortgage Loan and had full right to transfer and sell the Mortgage
Loan to the Trustee free and clear of any encumbrance, equity, lien,
pledge, charge, claim or security interest;
(ii) The Depositor is transferring such Mortgage Loan free and clear of any
and all liens, pledges, charges or security interests of any nature
encumbering such Mortgage Loan;
(iii) The related Assignment of Mortgage constitutes the legal, valid and
binding assignment of such Mortgage from the Depositor to the Trustee,
and any related Reassignment of Assignment of Leases, Rents and
Profits constitutes the legal, valid and binding assignment from the
Depositor to the Trustee;
(iv) No claims have been made by the Depositor under the lender's title
insurance policy, and the Depositor has not done, by act or omission,
anything which would impair the coverage of such lender's title
insurance policy;
(v) All of the representations and warranties of the Mortgage Loan Seller
contained in the Mortgage Loan Purchase and Sale Agreement are true
and correct as of the Cut-off Date;
(vi) (1) Such Mortgage Loan is directly secured by a Mortgage on Real
Property, and (2) either (i) substantially all of the proceeds of such
Mortgage Loan were used to acquire or improve or protect an interest
in real property that, at the origination date, was the only security
for the Mortgage Loan (in the case of a Mortgage Loan that has not
been modified in a manner that constituted a deemed exchange under
Section 1001 of the Code at a time when the Mortgage Loan was not in
default or default with respect thereto was not reasonably
foreseeable) or (ii) the fair market value of such real property was
at least equal to 80% of the principal amount of the Mortgage Loan (a)
at origination (or, if the Mortgage Loan has been modified in a manner
that constituted a deemed exchange under Section 1001 of the Code at a
time when the Mortgage Loan was not in default or default with respect
thereto was not reasonably foreseeable, the date of the last such
modification) or (b) at the Closing Date; provided that for purposes
of this clause (ii) the fair market value of the real property
interest must first be reduced by (A) the amount of any lien on the
real property interest that is senior to the Mortgage Loan (unless
such senior lien also secures a Mortgage Loan, in which event the
computation described in (a) and (b) of this clause (ii) shall be made
on an aggregate basis) and (B) a proportionate amount of any lien that
is in parity with the Mortgage Loan (unless such other lien secures a
Mortgage Loan that is cross-collateralized with such Mortgage Loan, in
which event the computation described in (a) and (b) of this clause
(ii) shall be made on an aggregate basis); and
(vii) The information set forth with respect to such Mortgage Loan on the
Mortgage Loan Schedule is true and correct in all material respects as
of the dates respecting which such information is given, or if no date
is specified, as of the Cut-off Date.
(c) It is understood and agreed that the representations and warranties set
forth in this Section 2.03 shall survive delivery of the respective Mortgage
Files to the Trustee until the termination of this Agreement, and shall inure to
the benefit of the Certificateholders and the Servicer.
(d) Upon discovery by the Custodian, the Servicer, the Special Servicer or
the Trustee of a breach of the representation and warranty set forth in Section
2.03(b)(vi) or that any Mortgage Loan otherwise fails to constitute a Qualified
Mortgage, such Person shall give prompt notice thereof to the Depositor and the
Depositor shall correct such condition or repurchase or cause the Mortgage Loan
Seller to repurchase such Mortgage Loan at the Repurchase Price within 90 days
of discovery of such failure; it being understood and agreed that none of such
Persons has an obligation to conduct any investigation with respect to such
matters. It is understood and agreed that the obligations of the Depositor set
forth in this Section 2.03(d) to cure or repurchase a Mortgage Loan which fails
to constitute a Qualified Mortgage shall be the sole remedies available to the
Trustee against the Depositor respecting, a breach of a representation or
warranty set forth in Section 2.03(b)(vi).
(e) Upon discovery by the Custodian, the Servicer, the Special Servicer or
the Trustee of a breach of any representation or warranty of the Mortgage Loan
Seller in the Mortgage Loan Purchase and Sale Agreement with respect to any
Mortgage Loan, or that any document required to be included in the Mortgage File
does not conform to the requirements of Section 2.01, such Person shall give
prompt notice thereof to the Mortgage Loan Seller and the Mortgage Loan Seller
shall, to the extent the Mortgage Loan Seller is obligated to cure or repurchase
the related Mortgage Loan under the terms of the Mortgage Loan Purchase and Sale
Agreement, either cure such breach or repurchase said Mortgage Loan at the
Repurchase Price within 90 days of the receipt of notice of the breach as
provided in the Mortgage Loan Purchase and Sale Agreement; it being understood
and agreed that none of the Custodian, the Servicer, the Special Servicer, and
the Trustee has an obligation to conduct any investigation with respect to such
matters (except, in the case of the Mortgage Files, to the extent provided in
Section 2.01); provided, however, that in the event that such breach is capable
of being cured as determined by the Servicer or the Special Servicer, as
applicable, but not within such 90 day period and the Mortgage Loan Seller has
commenced and is diligently proceeding with the cure of such breach within such
90 day period (other than a breach that is also a breach of Section 2.03(b)(vi)
or 2.03(d)), the Mortgage Loan Seller shall have an additional 90 days to
complete such cure; provided, further, that with respect to such additional 90
day period the Mortgage Loan Seller shall have delivered an officer's
certificate to the Trustee and the Servicer setting forth the reason such breach
is not capable of being cured within the initial 90 day period and 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 the additional 90 day period; and, provided, further, that in the event
the Mortgage Loan Seller fails to cure such breach within such additional 90-day
period, the Repurchase Price shall include interest on any Advances made in
respect of the related Mortgage Loan during such period.
(f) Upon receipt by the Servicer from the Depositor or Mortgage Loan Seller
of the Repurchase Price for the repurchased Mortgage Loan, the Servicer shall
deposit such amount in the Collection Account, and the Trustee, pursuant to
Section 3.11, shall, upon receipt of a certificate of a Servicing Officer
certifying as to the receipt by the Servicer of the Repurchase Price and the
deposit of the Repurchase Price into the Collection Account pursuant to this
Section 2.03(f), release or cause to be released to the Depositor or the
Mortgage Loan Seller the related Mortgage File and shall execute and deliver
such instruments of transfer or assignment, in each case without recourse,
representation or warranty, as shall be prepared by the Servicer to vest in the
Depositor or the Mortgage Loan Seller any Mortgage Loan released pursuant
hereto, and any rights of the Depositor in, to and under the Mortgage Loan
Purchase and Sale Agreement as it related to such Mortgage Loan that was
initially transferred to the Trust Fund under Section 2.01, and if applicable
any rights of the Mortgage Loan Seller or Depositor in, to and under the related
Bloomfield Purchase Agreement as it related to such Mortgage Loan that were
initially transferred to the Trust Fund under Section 2.01, and the Trustee and
the Servicer shall have no further responsibility with regard to such Mortgage
File.
(g) In the event that the Mortgage Loan Seller incurs any expense in
connection with curing a breach of a representation or warranty pursuant to
Section 2.03(e) which also constitutes a default under the related Mortgage
Loan, the Mortgage Loan Seller shall have a right, subrogated to that of the
Trustee, as successor to the mortgagee, to recover the amount of such expenses
from the related Borrower. The Servicer shall use reasonable efforts in
recovering, or assisting the Mortgage Loan Seller in recovering, from the
related Borrower the amount of any such expenses.
(h) In the event that any litigation is commenced which alleges facts
which, in the judgment of the Depositor, could constitute a breach of any of the
Depositor's representations and warranties relating to the Mortgage Loans, the
Depositor hereby reserves the right to conduct the defense of such litigation at
its expense.
(i) If for any reason the Mortgage Loan Seller or the Depositor fails to
fulfill its obligations under this Section 2.03 with respect to any Mortgage
Loan, the Servicer shall use reasonable efforts in enforcing any obligation of
the Originator to cure or repurchase such Mortgage Loan under the terms of the
related Bloomfield Purchase Agreement.
(j) The Depositor additionally represents, warrants and covenants that: (i)
The Depositor will at all times maintain its valid corporate existence in good
standing under the laws of the state of its incorporation. The Depositor has
otherwise complied and will comply in all respects with the laws of the state of
its incorporation, and with all other laws, federal, state, or otherwise,
insofar as they are related to its separate corporate existence, and it will
observe all requisite corporate formalities.
(ii) Although all directors and officers of the Depositor, except any
director who is Independent, are directors, officers, or employees of
the Mortgage Loan Seller and/or Nomura Securities International, Inc.
("NSI"), such persons have not directly received, and will not
directly receive, any remuneration from the Depositor for serving as
directors or officers of the Depositor. The Depositor is charged and
pays a fair estimate, adjusted every six months, of payroll and
related expenses for work and services performed by the directors,
officers, and employees of the Mortgage Loan Seller or NSI for
services performed as directors or officers of the Depositor. The
officers and directors of the Depositor, when acting in such capacity,
act in the best interests of the Depositor, consistent with their
fiduciary duties as directors and officers of such corporation. The
Depositor is not obligated to pay or distribute to the Mortgage Loan
Seller or any of its affiliates, by dividend or otherwise, any portion
of any of its profits or its other assets. The Depositor's profits, if
any, may, at the discretion of the Depositor's Board of Directors and
subject to applicable law, be transferred by dividend to the
Depositor's shareholder(s), which is presently the Mortgage Loan
Seller.
(iii) The Depositor maintains its business in separately allocated and
identifiable office space within the offices of its affiliates in New
York City. The Depositor's presence at such offices is noted in the
building directory and on other signs. As set forth above in
connection with payroll expenses, the Depositor is charged and pays
rent in an amount corresponding to the portion of the office space
allocated to the Depositor.
(iv) The Depositor has a telephone number different from any telephone
numbers of the Mortgage Loan Seller and NSI or any of their
affiliates. The Depositor uses its own stationery that indicates its
separate telephone number and identifies it as a separate corporate
entity.
(v) The Depositor does not fail to correct any known misunderstanding
regarding the separate identity of the Depositor or, purport to
operate as an integrated, single economic unit with any of its
affiliates in dealing with any unaffiliated entity. Neither the
Mortgage Loan Seller nor NSI finances the Depositor's operations or
guarantees the Depositor's obligations, and the Depositor does not
finance the operations or guarantee the obligations of the Mortgage
Loan Seller or NSI; provided, however, that the Mortgage Loan Seller
has made capital contributions to the Depositor, and is making a
capital contribution of a portion of the Mortgage Loans in connection
with the transfer of the Mortgage Loans to the Trust Fund, and may
make additional capital contributions from time to time in connection
with the expansion of the Depositor's business. However, the Mortgage
Loan Seller does not pay or subsidize any of the Depositor's normal
operating expenses. The Depositor will pay from its own funds its
operating expenses and liabilities, including legal fees and expenses,
or will reimburse the Mortgage Loan Seller or NSI for any such
expenses or liabilities paid by the Mortgage Loan Seller or NSI on the
Depositor's behalf. To facilitate the registration process, the
Mortgage Loan Seller and/or NSI has advanced and may advance certain
expenses of the Depositor associated with the registration process.
The Depositor has repaid or will repay to the Mortgage Loan Seller
and/or NSI these expenses on an allocable basis out of the proceeds of
mortgage pass-through transactions. Neither the Mortgage Loan Seller
nor NSI has funded or will fund the Depositor's operating expenses.
The assets or creditworthiness of the Mortgage Loan Seller, NSI or any
of their affiliates are not held out by the Depositor as being
available for the payment of the Depositor's liabilities or
obligations, and the assets or creditworthiness of the Depositor are
not held out by the Depositor as being available for the payment of
the liabilities of the Mortgage Loan Seller, NSI or any of their
affiliates other than the Depositor. The assets or creditworthiness of
the Depositor are not held out by the Mortgage Loan Seller or NSI, to
the knowledge of the Depositor, and the Depositor will not permit that
its assets or creditworthiness will be held out by the Mortgage Loan
Seller or NSI, as being available for the payment of the liabilities
or obligations of the Mortgage Loan Seller, NSI or any of their
affiliates. The assets or creditworthiness of the Mortgage Loan
Seller, NSI or any of their affiliates are not held out by the
Mortgage Loan Seller or NSI, to the knowledge of the Depositor, and
the Depositor will not permit that the assets or creditworthiness of
the Mortgage Loan Seller or NSI will be held out by the Mortgage Loan
Seller or NSI, as being available for the payment of the liabilities
of the Depositor. The Depositor's assets are now, and are expected in
the future to be, sufficient to pay the Depositor's ongoing expenses
as they are incurred and to discharge all of the Depositor's
liabilities in the event that the business of the Depositor is
required to be liquidated.
(vi) The separate corporate existence of the Depositor is not used by
either the Depositor, or, to the knowledge of the Depositor, by the
Mortgage Loan Seller or NSI, and the Depositor will not permit that
its separate corporate existence will be used by the Mortgage Loan
Seller or NSI, to abuse creditors or to perpetrate a fraud, injury, or
injustice on creditors.
(vii) The Depositor's existence is not dependent on it being a subsidiary of
the Mortgage Loan Seller or an affiliate of NSI and it is expected
that the Depositor would be able to maintain its business and affairs
even if it were not a subsidiary of the Mortgage Loan Seller or an
affiliate of NSI. To the knowledge of the Depositor, the Mortgage Loan
Seller's existence is not dependent on the Depositor being its
subsidiary and it is expected that the Mortgage Loan Seller would be
able to maintain its business and affairs even if the Depositor were
not its subsidiary. To the knowledge of the Depositor, the Mortgage
Loan Seller's existence is not dependent on the Depositor being its
affiliate and it is expected that NSI would be able to maintain its
business and affairs even if the Depositor were not its affiliate. The
Depositor conducts its business separate and apart from the business
conducted by any other person or entity.
(viii) The Depositor maintains corporate records distinct and separately
identifiable from the corporate records of the Mortgage Loan Seller,
NSI and any other person or entity. The Depositor prepares monthly
financial records distinct and separately identifiable from the
financial records of the Mortgage Loan Seller, NSI or any of their
affiliates. These statements and reports are prepared and maintained
in accordance with generally accepted accounting principles,
susceptible to audit and audited, at least annually, in connection
with the audit of the Depositor and its affiliates on a consolidated
basis by independent public accountants in accordance with generally
accepted auditing standards. Such consolidated financial statements
will henceforth indicate that the assets of the Depositor are not
available to satisfy the creditors of any entity other than the
Depositor. The Depositor keeps its funds separate and apart from the
funds of the Mortgage Loan Seller, NSI and any of their affiliates,
and its other assets are separately identifiable and distinguishable
from the assets of the Mortgage Loan Seller, NSI and any of their
affiliates.
(ix) The Depositor acts solely in its own corporate name and solely through
its duly authorized officers or agents. The Depositor complies with
the provisions of its Certificate of Incorporation and its By-Laws and
complies in all material respects, in connection with its separate
existence, with the laws of the state in which it is incorporated. In
addition, the sole shareholder and the Board of Directors of the
Depositor hold all such meetings or execute consents necessary to
authorize corporate action by the Depositor, and the Depositor
maintains appropriate minutes of such meetings or records of its
written consents. The Depositor observes all requisite corporate
formalities.
(x) All transactions between the Mortgage Loan Seller or NSI (or any of
their affiliates), on the one hand, and the Depositor, on the other,
are, and will be, duly authorized and documented, and recorded
accurately in the appropriate books and records of the Depositor, and
to the knowledge of the Depositor, in the appropriate books and
records of the Mortgage Loan Seller or NSI, if the Mortgage Loan
Seller or NSI is a party to such transaction. All such transactions
are fair to each party, constitute exchanges for fair consideration
and for reasonably equivalent value, and are made in good faith and
without any actual intent to hinder, delay, or defraud creditors. The
Depositor will not take any action, and will not engage in
transactions with the Mortgage Loan Seller, NSI or any of their
affiliates unless the respective Boards of Directors or officers, as
appropriate, of the Depositor and the Mortgage Loan Seller or NSI, if
the Mortgage Loan Seller or NSI, respectively, is a party to such
transaction, determine in a reasonable fashion that such actions or
transactions are in their respective companies' best interests.
(xi) The Depositor intends the transfer of the Mortgage Loans from the
Mortgage Loan Seller to the Depositor pursuant to the Mortgage Loan
Purchase and Sale Agreement to be a sale of a portion of the Mortgage
Loan for cash (the "Sold Mortgage Loans") and a capital contribution
of the balance of the Mortgage Loans (the "Contributed Mortgage
Loans"). The Depositor intends the transfer of the Mortgage Loans from
the Depositor to the Trustee pursuant to the Pooling and Servicing
Agreement, and the transfer of the NSI Certificates to NSI, to be
sales from the Depositor to the Trustee (the "Depositor/Trustee
Transfer") and from the Depositor to NSI (the "Depositor/NSI
Transfer"), respectively. The Depositor further intends that the
contemplated transfer of the Subordinated Public Certificates to the
Subordinated Underwriters (the "Depositor/Subordinated Underwriters
Transfer", and, together with all of the transfers described in this
paragraph, the "Transfers") to be a sale of the Subordinated Public
Certificates from the Depositor to the Subordinated Underwriters. The
Depositor will treat the transfer of the Sold Mortgage Loans, the
Depositor/Trustee Transfer, the Depositor/NSI Transfer and the
Depositor/Subordinated Underwriters Transfer as sales for accounting
and tax purposes. The Depositor will treat the transfer of the
Contributed Mortgage Loans as a capital contribution from the Mortgage
Loan Seller to the Depositor for accounting and tax purposes. The
purchase prices for the Sold Mortgage Loans and the NSI Certificates
reflect the good faith determinations of the Depositor of the fair
market value of the Sold Mortgage Loans and the NSI Certificates,
respectively, and are equal to the prices that the Depositor believes
would be paid in sales of the Sold Mortgage Loans or the NSI
Certificates between non-affiliated entities. No provision exists
whereby such consideration may be modified subsequent to closing, and
the Depositor has no obligation to repay such consideration, or
interest thereon, to the Trustee or NSI, as applicable. The Depositor
will receive the consideration for the NSI Certificates and will also
receive, on the date hereof, the Subordinated Public Certificates, and
will hold such Certificates in contemplation for sale pursuant to the
Depositor/Subordinated Underwriters Transfer as described above.
(xii) The Depositor irrevocably transfers and relinquishes all rights with
respect to the Mortgage Loans and, specifically, has no right to sell,
pledge or otherwise dispose of the Mortgage Loans. Subject to the
terms of the Pooling and Servicing Agreement, the Trustee is free to
deal with the Mortgage Loans as its property. The Depositor transfers
the Mortgage Loans without recourse and has no obligation to deliver
other property to the Trustee either in substitution for or in
addition to the Mortgage Loans in the event of a credit loss or
decline in value of the Mortgage Loans. The Depositor has no right to
transfer the Mortgage Loans back to the Mortgage Loan Seller.
(xiii) The Depositor has not transferred the Mortgage Loans in contemplation
of insolvency or with a design to prefer one or more creditors to the
exclusion in whole or in part of others or with an actual intent to
hinder, delay or defraud any of its creditors.
(xiv) The assets of the Depositor are now, and are expected in the future to
be, sufficient to pay the ongoing business expenses of the Depositor
as they are incurred and to discharge all of its liabilities in the
event that the business of the Depositor is required to be liquidated.
(xv) The property remaining in the hands of the Depositor after giving
effect to the Transfers is not an unreasonably small amount of capital
for the business in which the Depositor is engaged.
SECTION 2.04. Representations, Warranties and Covenants
of the Servicer, Special Servicer and Trustee.
(a) The Servicer, as Servicer, and if it is also the Special Servicer, as
the Special Servicer, hereby represents, warrants and covenants that as of the
Closing Date or as of such date specifically provided herein:
(i) The Servicer is a corporation, duly organized, validly existing and in
good standing under the laws of the State of Texas and has all
licenses necessary to carry on its business as now being conducted or
is in compliance with the laws of each state in which any Mortgaged
Property is located to the extent necessary to comply with its duties
and responsibilities hereunder with respect to each Mortgage Loan in
accordance with the terms of this Agreement;
(ii) The Servicer has the full corporate power, authority and legal right
to execute and deliver this Agreement and to perform in accordance
herewith; the execution and delivery of this Agreement by the Servicer
and its performance and compliance with the terms of this Agreement
will not violate the Servicer's charter or by-laws or constitute a
default (or an event which, with notice or lapse of time, or both,
would constitute a default) under, or result in the breach of, any
material contract, agreement or other instrument to which the Servicer
is a party or which may be applicable to the Servicer or any of its
assets;
(iii) This Agreement has been duly and validly authorized, executed and
delivered by the Servicer and, assuming due authorization, execution
and delivery by the other parties hereto, constitutes a legal, valid
and binding obligation of the Servicer, enforceable against it in
accordance with the terms of this Agreement, except as such
enforcement may be limited by bankruptcy, insolvency, reorganization,
liquidation, receivership, moratorium or other laws relating to or
affecting creditors' rights generally, or by general principles of
equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law), and all requisite corporate action
has been taken by the Servicer to make this Agreement and all
agreements contemplated hereby valid and binding upon the Servicer in
accordance with their terms;
(iv) The Servicer is not in violation of, and the execution and delivery of
this Agreement by the Servicer and its performance and compliance with
the terms of this Agreement will not constitute a violation with
respect to, any order or decree of any court binding on the Servicer
or any order or regulation of any federal, state, municipal or
governmental agency having jurisdiction, or result in the creation or
imposition of any lien, charge or encumbrance which, in any such
event, would have consequences that would materially and adversely
affect the condition (financial or otherwise) or operation of the
Servicer or its properties or impair the ability of the Trust Fund to
realize on the Mortgage Loans;
(v) There is no action, suit, proceeding or investigation pending or
threatened against the Servicer which, either in any one instance or
in the aggregate, would result in any material adverse change in the
business, operations, financial condition, properties or assets of the
Servicer, or in any material impairment of the right, or would, if
adversely determined, materially impair the ability of the Servicer,
to carry on its business substantially as now conducted, or in any
material liability on the part of the Servicer, or which would draw
into question the validity of this Agreement or the Mortgage Loans or
of any action taken or to be taken in connection with the obligations
of the Servicer contemplated herein, or which would be likely to
impair materially the ability of the Servicer to perform under the
terms of this Agreement; and
(vi) No consent, approval, authorization or order of, or registration or
filing with, or notice to any court or governmental agency or body, is
required for the execution, delivery and performance by the Servicer
of or compliance by the Servicer with this Agreement, or if required,
such approval has been obtained prior to the Cut-off Date.
(b) It is understood and agreed that the representations and warranties set
forth in this Section shall survive delivery of the respective Mortgage Files to
the Trustee or the Custodian on behalf of the Trustee until the termination of
this Agreement, and shall inure to the benefit of the Trustee, the Depositor and
the Servicer or Special Servicer, as the case may be. Upon discovery by the
Depositor, the Servicer, Special Servicer or a Responsible Officer of the
Trustee (or upon written notice thereof from any Certificateholder) of a breach
of any of the representations and warranties set forth in this Section which
materially and adversely affects the interests of the Certificateholders, the
Servicer, Special Servicer or the Trustee in any Mortgage Loan, the party
discovering such breach shall give prompt written notice to the other parties
hereto and the Mortgage Loan Seller.
(c) The Trustee hereby represents and warrants that as of the Closing Date:
(i) The Trustee is a nationally chartered bank duly organized, validly
existing, and in good standing under the laws of the United States and
has full power, authority and legal right to own its properties and
conduct its business as presently conducted and to execute, deliver
and perform the terms of this Agreement.
(ii) This Agreement has been duly authorized, executed and delivered by the
Trustee and, assuming due authorization, execution and delivery by the
other parties hereto, constitutes a legal, valid and binding
instrument enforceable against the Trustee in accordance with its
terms, except as such enforcement may be limited by bankruptcy,
insolvency, reorganization or other similar laws affecting the
enforcement of creditors' rights in general and by general equity
principles (regardless of whether such enforcement is considered in a
proceeding in equity or at law).
(iii) Neither the execution and delivery of this Agreement by the Trustee
nor the consummation by the Trustee of the transactions herein
contemplated to be performed by the Trustee, nor compliance by the
Trustee with the provisions hereof, will conflict with or result in a
breach of, or constitute a default under, any of the provisions of any
applicable law (subject to the appointment in accordance with such
applicable law of any co-trustee or separate trustee required pursuant
to this Agreement), governmental rule, regulation, judgment, decree or
order binding on the Trustee or its properties or the organizational
documents of the Trustee or the terms of any material agreement,
instrument or indenture to which the Trustee is a party or by which it
is bound.
SECTION 2.05. Execution and Delivery of Certificates; Issuance of
Lower-Tier Regular Interests.
The Trustee acknowledges the assignment to it of the Mortgage Loans and the
delivery of the Mortgage Files to the Custodian (to the extent the documents
constituting the Mortgage Files are actually delivered to the Custodian),
subject to the provisions of Section 2.01 and Section 2.02 and, concurrently
with such delivery, (i) acknowledges the issuance of and hereby declares that it
holds the Lower-Tier Regular Interests on behalf of the Upper-Tier REMIC and the
Holders of the Regular Certificates and the Class R Certificates and (ii) has
caused to be executed and caused to be authenticated and delivered to or upon
the order of the Depositor, or as directed by the terms of this Agreement, Class
A-1A, Class X-0X, Xxxxx X- 0X, Class A-1D, Class A-CS1, Class PS-1, Class A-1E,
Class A-2, Class A-3, Class A-4, Class A-5, Class A-6, Class A-7, Class A-8,
Class B-1, Class B-2, Class B-3, Class B-4, Class B-5, Class B-6, Class B-7,
Class B-7H, Class V-1, Class V-2, Class R and Class LR Certificates in
authorized denominations, in each case registered in the names set forth in such
order or so directed in this Agreement and duly authenticated by the
Authenticating Agent, which Certificates (described in the preceding clause
(ii)) and Lower Tier Regular Interests evidence ownership of the entire Trust
Fund.
SECTION 2.06. Miscellaneous REMIC and Grantor Trust Provisions.
(a) The Class A-1A-L, Class A-1B-L, Class A-1C-L, Class A-1D-L, Class
A-1E-L, Class A-2-L, Class A-3-L, Class A-4-L, Class A-5-L, Class A-6-L, Class
A-7-L, Class A-8-L, Class B-1-L, Class B-2-L, Class B-3-L, Class B-4-L, Class
B-5-L, Class B-6-L, Class B-7-L and Class B-7H-L Interests are hereby designated
as "regular interests" in the Lower-Tier REMIC within the meaning of Section
860G(a)(1) of the Code, and the Class LR Certificates are hereby designated as
the sole Class of "residual interests" in the Lower-Tier REMIC within the
meaning of Section 860G(a)(2) of the Code. The Class A-1A, Class A-1B, Class
A-1C, Class A-1D, Class A-1E, Class A-CS1, Class PS-1, Class A-2, Class A-3,
Class A-4, Class A-5, Class A-6, Class A-7, Class A-8, Class B-1, Class B-2,
Class B-3, Class B-4, Class B-5, Class B-6, Class B-7 and Class B-7H
Certificates are hereby designated as "regular interests" in the Upper-Tier
REMIC within the meaning of Section 860G(a)(1) of the Code and the Class R
Certificates are hereby designated as the sole Class of "residual interests" in
the Upper-Tier REMIC within the meaning of Section 860G(a)(2) of the Code. The
Closing Date is hereby designated as the "Startup Day" of the Lower-Tier REMIC
and the Upper-Tier REMIC within the meaning of Section 860G(a)(9) of the Code.
The "latest possible maturity date" of the Lower-Tier Regular Interests and the
Regular Certificates for purposes of Section 860G(a)(1) of the Code is the
Scheduled Final Distribution Date. The initial Certificate Balance of each Class
of the Lower-Tier Regular Interests is equal to the Certificate Balance of the
Related Certificates. The rate of interest for each Class of Lower-Tier Regular
Interests is a per annum rate equal to the Weighted Average Net Mortgage
Pass-Through Rate.
(b) The Class V-1 Certificates represent pro rata undivided beneficial
interests in the Default Interest subject to the liability of the Trust Fund to
pay interest on Advances at the Advance Rate. The Class V-2 Certificates
represent beneficial pro rata undivided interests in the Excess Interest. The
Class V-1 and Class V-2 Certificates do not represent regular or residual
interests in either the Upper-Tier REMIC or the Lower-Tier REMIC.
(c) None of the Depositor, the Trustee, the Servicer, the Fiscal Agent or
the Special Servicer shall enter into any arrangement by which the Trust Fund
will receive a fee or other compensation for services other than as specifically
contemplated herein.
ARTICLE III
ADMINISTRATION AND SERVICING
OF THE MORTGAGE LOANS
SECTION 3.01. Servicer to Act as Servicer;
Administration of the Mortgage Loans.
(a) The Servicer and the Special Servicer, each as an independent
contractor servicer, shall service and administer the Mortgage Loans on behalf
of the Trust Fund and the Trustee (as trustee for Certificateholders) in
accordance with the Servicing Standard.
The Servicer's or Special Servicer's liability for actions and omissions in
its capacity as Servicer or Special Servicer, as the case may be, hereunder is
limited as provided herein (including, without limitation, pursuant to Section
6.03 hereof). To the extent consistent with the foregoing and subject to any
express limitations set forth in this Agreement, the Servicer and Special
Servicer shall seek to maximize the timely and complete recovery of principal
and interest on the Notes; provided, however, that nothing herein contained
shall be construed as an express or implied guarantee by the Servicer or Special
Servicer of the collectability of the Mortgage Loans. Subject only to the
Servicing Standard, the Servicer and Special Servicer shall have full power and
authority, acting alone or through sub-servicers (subject to paragraph (c) of
this Section 3.01 and to Section 3.02), to do or cause to be done any and all
things in connection with such servicing and administration which it may deem
consistent with the Servicing Standard and, in its reasonable judgment, in the
best interests of the Certificateholders, including, without limitation, with
respect to each Mortgage Loan, to prepare, 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 on each Mortgaged Property and related collateral; (ii)
subject to Sections 3.09, 3.10 and 3.30, any modifications, waivers, consents or
amendments to or with respect to any documents contained in the related Mortgage
File; and (iii) any and all instruments of satisfaction or cancellation, or of
partial or full release or discharge, and all other comparable instruments, with
respect to the Mortgage Loans and the Mortgaged Properties. Notwithstanding the
foregoing, neither the Servicer nor the Special Servicer shall modify, amend,
waive or otherwise consent to any change of the terms of any Mortgage Loan
except under the circumstances described in Sections 3.09, 3.10, 3.28 and 3.30
or the definition of Minimum Defaulted Monthly Payment hereof. The Servicer and
Special Servicer shall service and administer the Mortgage Loans in accordance
with applicable law and shall provide to the Borrowers any reports required to
be provided to them thereby. Subject to Section 3.11, the Trustee shall, upon
the receipt of a written request of a Servicing Officer, execute and deliver to
the Servicer and Special Servicer any powers of attorney and other documents
prepared by the Servicer and Special Servicer and necessary or appropriate (as
certified in such written request) to enable the Servicer and Special Servicer
to carry out their servicing and administrative duties hereunder.
(b) Unless otherwise provided in the related Note, the Servicer shall apply
any partial Principal Prepayment received on a Mortgage Loan on a date other
than a Due Date to the principal balance of such Mortgage Loan as of the Due
Date immediately following the date of receipt of such partial Principal
Prepayment. Unless otherwise provided in the related Note, the Servicer shall
apply any amounts received on U.S. Treasury obligations (which shall not be
redeemed by the Servicer prior to the maturity thereof) in respect of a Mortgage
Loan being defeased pursuant to its terms to the principal balance of and
interest on such Mortgage Loan as of the Due Date immediately following the
receipt of such amounts.
(c) Each of the Servicer and the Special Servicer may enter into
sub-servicing agreements with third parties with respect to any of its
respective obligations hereunder, provided, that (i) any such agreement shall be
consistent with the provisions of this Agreement and (ii) no sub-servicer
retained by the Servicer or the Special Servicer, as applicable, shall grant any
modification, waiver or amendment to any Mortgage Loan without the approval of
the Servicer or the Special Servicer, as applicable, which approval shall be
given or withheld in accordance with the procedures set forth in Sections 3.09,
3.10, 3.28 or 3.30 (or the definition of Minimum Defaulted Monthly Payment), and
(iii) such agreement shall be consistent with the Servicing Standard. Any such
sub-servicing agreement may permit the sub-servicer to delegate its duties to
agents or subcontractors so long as the related agreements or arrangements with
such agents or subcontractors are consistent with the provisions of this Section
3.01(c).
Any sub-servicing agreement entered into by the Servicer or the Special
Servicer, as applicable, shall provide that it may be assumed or terminated by
the Trustee or the Servicer, respectively, if the Trustee or the Servicer,
respectively, has assumed the duties of the Servicer or the Special Servicer,
respectively, or any successor Servicer or Special Servicer, as applicable,
without cost or obligation to the assuming or terminating party or the Trust
Fund, upon the assumption by such party of the obligations of the Servicer or
the Special Servicer, as applicable, pursuant to Section 7.02.
Any sub-servicing agreement, and any other transactions or services
relating to the Mortgage Loans involving a sub-servicer, shall be deemed to be
between the Servicer or the Special Servicer, as applicable, and such
sub-servicer alone, and the Trustee, the Trust Fund and the Certificateholders
shall not be deemed parties thereto and shall have no claims, rights,
obligations, duties or liabilities with respect to the sub-servicer, except as
set forth in Section 3.01(d) and no provision herein may be construed so as to
require the Trust Fund to indemnify any such sub-servicer.
(d) If the Trustee or any successor Servicer assumes the obligations of the
Servicer, or if the Servicer or any successor Special Servicer assumes the
obligations of the Special Servicer, in each case in accordance with Section
7.02, the Trustee, the Servicer or such successor, as applicable, to the extent
necessary to permit the Trustee, the Servicer or such successor, as applicable,
to carry out the provisions of Section 7.02, shall, without act or deed on the
part of the Trustee, the Servicer or such successor, as applicable, succeed to
all of the rights and obligations of the Servicer or the Special Servicer, as
applicable, under any sub-servicing agreement entered into by the Servicer or
the Special Servicer, as applicable, pursuant to Section 3.01(c), subject to the
right of termination by the Trustee or Servicer, as applicable, set forth in
Section 3.01(c). In such event, the Trustee, the Servicer or the successor
Servicer or the Special Servicer, as applicable, shall be deemed to have assumed
all of the Servicer's or the Special Servicer's interest, as applicable, therein
(but not any liabilities or obligations in respect of acts or omissions of the
Servicer or the Special Servicer, as applicable, prior to such deemed
assumption) and to have replaced the Servicer or the Special Servicer, as
applicable, as a party to such sub-servicing agreement to the same extent as if
such sub-servicing agreement had been assigned to the Trustee, the Servicer or
such successor Servicer or successor Special Servicer, as applicable, except
that the Servicer or the Special Servicer, as applicable, shall not thereby be
relieved of any liability or obligations under such sub-servicing agreement that
accrued prior to the succession of the Trustee, the Servicer or the successor
Servicer or successor Special Servicer, as applicable.
In the event that the Trustee, the Servicer or any successor Servicer or
Special Servicer, as applicable, assumes the servicing obligations of the
Servicer or the Special Servicer, as applicable, upon request of the Trustee,
the Servicer or such successor Servicer or Special Servicer, as applicable, the
Servicer or Special Servicer shall at its own expense (except in the event that
the Servicer is terminated pursuant to Section 6.04(c), in which event, at the
expense of the Certificateholders effecting such termination) deliver to the
Trustee, the Servicer or such successor Servicer or Special Servicer, as
applicable, all documents and records relating to any sub-servicing agreement
and the Mortgage Loans then being serviced thereunder and an accounting of
amounts collected and held by it, if any, and will otherwise use its best
efforts to effect the orderly and efficient transfer of any sub-servicing
agreement to the Trustee, the Servicer or the successor Servicer or Special
Servicer, as applicable.
SECTION 3.02. Liability of the Servicer.
Notwithstanding any sub-servicing agreement, any of the provisions of this
Agreement relating to agreements or arrangements between the Servicer or Special
Servicer and any Person acting as sub-servicer (or its agents or subcontractors)
or any reference to actions taken through any Person acting as sub-servicer or
otherwise, the Servicer or Special Servicer, as applicable, shall remain
obligated and primarily liable to the Trustee and Certificateholders for the
servicing and administering of the Mortgage Loans in accordance with the
provisions of this Agreement without diminution of such obligation or liability
by virtue of such sub-servicing agreements or arrangements or by virtue of
indemnification from the Depositor or any other Person acting as sub-servicer
(or its agents or subcontractors) to the same extent and under the same terms
and conditions as if the Servicer or Special Servicer, as applicable, alone were
servicing and administering the Mortgage Loans. Each of the Servicer and the
Special Servicer shall be entitled to enter into an agreement with any
sub-servicer providing for indemnification of the Servicer or Special Servicer,
as applicable, by such sub-servicer, and nothing contained in this Agreement
shall be deemed to limit or modify such indemnification, but no such agreement
for indemnification shall be deemed to limit or modify this Agreement.
SECTION 3.03. Collection of Certain Mortgage Loan Payments.
(a) The Servicer or the Special Servicer, as applicable, shall use
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
follow the Servicing Standard with respect to such collection procedures. With
respect to each Specially Serviced Mortgage Loan, the Special Servicer shall use
its reasonable efforts to collect income statements and rent rolls from
Borrowers as required by the Loan Documents and the terms hereof and shall
provide copies thereof to the Servicer as provided herein. The Servicer shall
provide at least six months' notice to the Special Servicer and Borrowers of
Balloon Payments coming due. Consistent with the foregoing, the Servicer or
Special Servicer, as applicable, may in its discretion waive any late payment
charge in connection with any delinquent Monthly Payment or Balloon Payment with
respect to any Mortgage Loan. In addition, the Servicer shall be entitled to
take such actions with respect to the collection of payments on the Mortgage
Loans as are permitted or required under Section 3.28 hereof.
(b) In the event that the Servicer or Special Servicer receives, or
receives notice from the related Borrower that it will be receiving, Excess
Interest in any Collection Period, the Servicer or Special Servicer, as
applicable, will promptly notify the Trustee.
SECTION 3.04. Collection of Taxes, Assessments and Similar Items;
Escrow Accounts.
(a) With respect to each Mortgage Loan (other than any REO Mortgage Loan),
the Servicer shall maintain accurate records with respect to each related
Mortgaged Property reflecting the status of taxes, assessments and other similar
items that are or may become a lien on the related Mortgaged Property and the
status of insurance premiums payable with respect thereto. From time to time,
the Servicer shall (i) obtain all bills for the payment of such items (including
renewal premiums), and (ii) effect payment of all such bills with respect to
such Mortgaged Properties prior to the applicable penalty or termination date,
in each case employing for such purpose Escrow Payments as allowed under the
terms of the related Mortgage Loan. If a Borrower fails to make any such payment
on a timely basis or collections from the Borrower are insufficient to pay any
such item before the applicable penalty or termination date, the Servicer shall
advance the amount of any shortfall as a Property Advance unless the Servicer
determines in its good faith business judgment that such Advance would be a
Nonrecoverable Advance. The Servicer shall be entitled to reimbursement of
Advances, with interest thereon at the Advance Rate, that it makes pursuant to
the preceding sentence from amounts received on or in respect of the related
Mortgage Loan respecting which such Advance was made or if such Advance has
become a Nonrecoverable Advance, to the extent permitted by Section 3.06 of this
Agreement. No costs incurred by the Servicer in effecting the payment of taxes
and assessments on the Mortgaged Properties shall, for the purpose of
calculating distributions to Certificateholders, be added to the amount owing
under the related Mortgage Loans, notwithstanding that the terms of such
Mortgage Loans so permit.
(b) The Servicer shall segregate and hold all funds collected and received
pursuant to any Mortgage Loan constituting Escrow Payments separate and apart
from any of its own funds and general assets and shall establish and maintain
one or more segregated custodial accounts (each, an "Escrow Account") into which
all Escrow Payments shall be deposited within one (1) Business Day after
receipt. The Servicer shall also deposit into each Escrow Account any amounts
representing losses on Permitted Investments pursuant to Section 3.07(b) and any
Insurance Proceeds or Liquidation Proceeds which are required to be applied to
the restoration or repair of any Mortgaged Property pursuant to the related
Mortgage Loan. Escrow Accounts shall be Eligible Accounts (except to the extent
the related Mortgage Loan requires it to be held in an account that is not an
Eligible Account) and shall be entitled "AMRESCO Management, Inc., as Servicer,
in trust for LaSalle National Bank, as Trustee in trust for Holders of Asset
Securitization Corporation, Commercial Mortgage Pass-Through Certificates,
Series 1997-D4, and Various Borrowers". Withdrawals from an Escrow Account may
be made by the Servicer only:
(i) to effect timely payments of items constituting Escrow Payments for
the related Mortgage;
(ii) to transfer funds to the Collection Account to reimburse the Servicer,
the Special Servicer, the Trustee or the Fiscal Agent, as applicable,
for any Advance (with interest thereon at the Advance Rate) relating
to Escrow Payments, but only from amounts received with respect to the
related Mortgage Loan which represent late collections of Escrow
Payments thereunder;
(iii) for application to the restoration or repair of the related Mortgaged
Property in accordance with the related Mortgage Loan and the
Servicing Standard;
(iv) to clear and terminate such Escrow Account upon the termination of
this Agreement;
(v) to pay from time to time to the related Borrower any interest or
investment income earned on funds deposited in the Escrow Account if
such income is required to be paid to the related Borrower under law
or by the terms of the Mortgage Loan, or otherwise to the Servicer;
and
(vi) to remove any funds deposited in an Escrow Account that were not
required to be deposited therein.
SECTION 3.05. Collection Account; Distribution Account;
Upper-Tier Distribution Account; Default
Interest Distribution Account; and Excess
Interest Distribution Account.
(a) The Servicer shall establish and maintain the Collection Account in the
Trustee's name, for the benefit of the Certificateholders and the Trustee as the
Holder of the Lower-Tier Regular Interests. The Collection Account shall be
established and maintained as an Eligible Account. The Servicer shall deposit or
cause to be deposited in the Collection Account within one Business Day
following receipt the following payments and collections received or made by it
on or with respect to the Mortgage Loans:
(i) all payments on account of principal on the Mortgage Loans, including
the principal component of Unscheduled Payments;
(ii) all payments on account of interest on the Mortgage Loans and the
interest portion of all Unscheduled Payments and all Prepayment
Premiums;
(iii) any amounts required to be deposited pursuant to Section 3.07(b), in
connection with net losses realized on Permitted Investments with
respect to funds held in the Collection Account;
(iv) all Net REO Proceeds withdrawn from an REO Account pursuant to Section
3.17(b) and all Net Insurance Proceeds and Net Liquidation Proceeds;
(v) any amounts received from Borrowers which represent recoveries of
Property Protection Expenses, to the extent not permitted to be
retained by the Servicer or Special Servicer as provided herein;
(vi) any other amounts required by the provisions of this Agreement to be
deposited into the Collection Account by the Servicer or Special
Servicer, including, without limitation, proceeds of any repurchase of
a Mortgage Loan pursuant to Sections 2.03(d) and (e) hereof; and
(vii) any Servicer Prepayment Interest Shortfalls.
The foregoing requirements for deposits in the Collection Account shall be
exclusive, it being understood and agreed that, without limiting the generality
of the foregoing, payments in the nature of late payment charges (subject to
Section 3.12 hereof), Assumption Fees, loan modification fees, loan service
transaction fees, extension fees, demand fees, beneficiary statement charges and
similar fees need not be deposited in the Collection Account by the Servicer
and, to the extent permitted by applicable law, the Servicer or the Special
Servicer, as applicable in accordance with Section 3.12 hereof, shall be
entitled to retain any such charges and fees received with respect to the
Mortgage Loans. In the event that the Servicer deposits 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.
(b) The Trustee shall establish and maintain the Distribution Account in
the name of the Trustee, in trust for the benefit of the Certificateholders and
the Trustee as the Holder of the Lower-Tier Regular Interests. The Distribution
Account shall be established and maintained as an Eligible Account.
(c) The Trustee shall establish and maintain the Upper-Tier Distribution
Account in the name of the Trustee, in trust for the benefit of the
Certificateholders. The Upper-Tier Distribution Account shall be established and
maintained as an Eligible Account. With respect to each Distribution Date, the
Trustee shall withdraw from the Distribution Account and deposit in the
Upper-Tier Distribution Account on or before such date the amount of Available
Funds (including P&I Advances) and Prepayment Premiums to be distributed in
respect of the Lower-Tier Regular Interests pursuant to Section 4.01 hereof on
such date.
(d) Prior to the Servicer Remittance Date relating to any Collection
Period, in which Default Interest is received, the Trustee shall establish and
maintain the Default Interest Distribution Account in the name of the Trustee in
trust for the benefit of the Holders of the Class V-1 Certificates. The Default
Interest Distribution Account shall be established and maintained as an Eligible
Account. On or before the Servicer Remittance Date related to each Distribution
Date, the Servicer shall remit to the Trustee for deposit in the Default
Interest Distribution Account an amount equal to (i) the amount of the aggregate
Default Interest received during the preceding Collection Period, minus (ii) any
portions thereof withdrawn from the Collection Account pursuant to clause (iii)
of Section 3.06 (such amount, if any, the "Net Default Interest" for such
Distribution Date).
(e) Prior to the Servicer Remittance Date relating to any Collection
Period, in which Excess Interest is received, the Trustee shall establish and
maintain the Excess Interest Distribution Account in the name of the Trustee in
trust for the benefit of the Holders of the Class V-2 Certificates. The Excess
Interest Distribution Account shall be established and maintained as an Eligible
Account. On or before the Servicer Remittance Date related to the applicable
Distribution Date, the Servicer shall remit to the Trustee for deposit in the
Excess Interest Distribution Account an amount equal to the Excess Interest
received during the applicable Collection Period. Following the distribution of
Excess Interest to Certificateholders on the first Distribution Date after which
there are no longer any Mortgage Loans outstanding which pursuant to their terms
could pay Excess Interest, the Trustee shall terminate the Excess Interest
Distribution Account.
(f) Funds in the Collection Account, the Distribution Account, the
Upper-Tier Distribution Account, the Default Interest Distribution Account and
the Excess Interest Distribution Account may be invested in Permitted
Investments in accordance with the provisions of Section 3.07. The Servicer
shall give written notice to the Trustee of the location and account number of
the Collection Account and shall notify the Trustee in writing prior to any
subsequent change thereof.
SECTION 3.06. Permitted Withdrawals from the Collection Account.
The Servicer may make withdrawals from the Collection Account only as
described below (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
Default Interest Distribution Account, the Interest Reserve Account,
and the Excess Interest Distribution Account, the amounts required to
be deposited in the Distribution Account, the Default Interest
Distribution Account, the Interest Reserve Account, and the Excess
Interest Distribution Account pursuant to Sections 4.06, 3.05(c),
3.05(d), 3.27(a) and 3.05(e);
(ii) to pay or reimburse the Trustee, the Fiscal Agent, the Servicer and
the Special Servicer for Advances (provided, that the Trustee and the
Fiscal Agent shall have priority with respect to such payment or
reimbursement), the Servicer's right to reimburse any such Person
pursuant to this clause (ii) being limited to (x) any collections on
or in respect of the particular Mortgage Loan or REO Property with
respect to which such Advance was made, (y) with respect to P&I
Advances, any Subordinate Class Advance Amounts with respect to the
related Distribution Date as provided in Section 4.06(d), or (z) any
other amounts in the Collection Account in the event that such
Advances have been deemed to be Nonrecoverable Advances or are not
reimbursed from recoveries in respect of the related Mortgage Loan or
REO Property after a Final Recovery Determination;
(iii) (A) to pay to the Servicer, the Trustee or the Fiscal Agent the
Advance Interest Amount relating to P&I Advances and (B) to pay to the
Servicer, Special Servicer, Trustee or Fiscal Agent any Advance
Interest Amounts not relating to any P&I Advances, in each case,
first, out of any collected Default Interest (provided that in the
case of both (A) and (B), the Trustee and the Fiscal Agent shall have
priority with respect to such payments);
(iv) to pay on or before each Servicer Remittance Date to the Servicer and
the Special Servicer, as applicable, as compensation, the aggregate
unpaid Servicing Compensation and Special Servicing Compensation (if
any), respectively, in respect of the immediately preceding month, to
be paid, in the case of the Servicing Fee, from interest received on
the related Mortgage Loan, and to pay from time to time to the
Servicer in accordance with Section 3.07(b) any interest or investment
income earned on funds deposited in the Collection Account) (the
Servicer may rely on a certification of the Special Servicer as to
amounts of Special Servicing Compensation to be withdrawn pursuant to
this clause (iv));
(v) to remit to the Distribution Account, an amount equal to the Trustee
Fee in respect of the immediately preceding month to be paid from
interest received on the related Mortgage Loan;
(vi) to pay on or before each Distribution Date to the Depositor, the
Mortgage Loan Seller or other Originator, as the case may be, with
respect to each Mortgage Loan or REO Property that has previously been
purchased or repurchased by it pursuant to Section 2.03(d), Section
2.03(e), Section 3.18 or Section 9.01, all amounts received thereon
during the related Collection Period and subsequent to the date as of
which the amount required to effect such purchase or repurchase was
determined;
(vii) to the extent not reimbursed or paid pursuant to any other clause of
this Section 3.06, to reimburse or pay the Servicer, the Trustee, the
Special Servicer, the Depositor or the Fiscal Agent, as applicable,
for unpaid Servicing Fees, Special Servicing Compensation and other
unpaid items incurred by such Person pursuant to the second sentence
of Section 3.07(c), Section 3.08(a) and (b), Section 3.10, Section
3.12(e), Section 3.17(a), (b) and (c), Section 3.18(a), the fourth
paragraph of Section 3.22, Section 6.03, Section 7.04, Section
8.01(c)(v), Section 8.05(d) or Section 10.07, or any other provision
of this Agreement pursuant to which such Person is entitled to
reimbursement or payment from the Trust Fund, in each case only to the
extent reimbursable under such Section, it being acknowledged that
this clause (vii) shall not be deemed to modify the substance of any
such Section, including the provisions of such Section that set forth
the extent to which one of the foregoing Persons is or is not entitled
to payment or reimbursement;
(viii) to transfer to the Trustee for deposit in one or more separate,
non-interest bearing accounts any amount reasonably determined by the
Trustee to be necessary to pay any applicable federal, state or local
taxes imposed on the Upper-Tier REMIC or the Lower-Tier REMIC under
the circumstances and to the extent described in Section 4.05;
(ix) to withdraw any amount deposited into the Collection Account that was
not required to be deposited therein; and
(x) to clear and terminate the Collection Account pursuant to Section
9.01.
The Servicer shall keep and maintain separate accounting, on a Mortgage
Loan by Mortgage Loan basis, for the purpose of justifying any withdrawal from
the Collection Account pursuant to subclauses (ii)-(vii) above.
The Servicer shall pay to the Trustee, the Fiscal Agent or the Special
Servicer from the Collection Account (to the extent permitted by clauses
(i)-(vii) above) amounts permitted to be paid to the Trustee, the Fiscal Agent
or the Special Servicer therefrom, promptly upon receipt of a certificate of a
Responsible Officer of the Trustee or the Fiscal Agent or a certificate of a
Servicing Officer, as applicable, describing the item and amount to which such
Person is entitled. The Servicer may rely conclusively on any such certificate
and shall have no duty to recalculate the amounts stated therein.
The Trustee, the Fiscal Agent, the Special Servicer and the Servicer shall
in all cases have a right prior to the Certificateholders to any funds on
deposit in the Collection Account from time to time for the reimbursement or
payment of the Servicing Compensation (including investment income), or Trustee
Fees, Special Servicing Compensation, Advances, Advance Interest Amounts, their
respective expenses hereunder to the extent such fees and expenses are to be
reimbursed or paid from amounts on deposit in the Collection Account pursuant to
this Agreement (and to have such amounts paid directly to third party
contractors for any invoices approved by the Trustee, the Servicer or the
Special Servicer, as applicable) and any federal, state or local taxes imposed
on either the Upper-Tier REMIC or Lower-Tier REMIC.
SECTION 3.07. Investment of Funds in the Collection Account,
the REO Account, the Lock-Box Accounts, the Cash
Collateral Accounts, the Interest Reserve Account
and the Reserve Accounts.
(a) The Servicer (or with respect to any REO Account, the Special Servicer,
or with respect to the Interest Reserve Account, Nomura Securities
International, Inc.) may direct any depository institution maintaining the
Collection Account, any Borrower Accounts (subject to the second succeeding
sentence), the Interest Reserve Account and any REO Account (each, for purposes
of this Section 3.07, an "Investment Account"), to invest the funds in such
Investment Account in one or more Permitted Investments that bear interest or
are sold at a discount, and that mature, unless payable on demand, no later than
the Business Day preceding the date on which such funds are required to be
withdrawn from such Investment Account pursuant to this Agreement. Any direction
by the Servicer, the Special Servicer or by Nomura Securities International,
Inc., to invest funds on deposit in an Investment Account shall be in writing
and shall certify that the requested investment is a Permitted Investment which
matures at or prior to the time required hereby or is payable on demand. In the
case of any Escrow Account, Lock-Box Account, Cash Collateral Account or Reserve
Account (the "Borrower Accounts"), the Servicer shall act upon the written
request of the related Borrower or Manager to the extent the Servicer is
required to do so under the terms of the respective Mortgage Loan or related
documents, provided that in the absence of appropriate written instructions from
the related Borrower or Manager meeting the requirements of this Section 3.07,
the Servicer shall have no obligation to, but will be entitled to, direct the
investment of funds in such accounts in Permitted Investments. 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) or in the name of a nominee of the Trustee.
The Trustee shall have sole control (except with respect to investment direction
which shall be in the control of the Servicer (or Nomura Securities
International, Inc., with respect to the Interest Reserve Account, or the
Special Servicer, with respect to any REO Accounts), as an independent
contractor to the Trust Fund) over each such investment and any certificate or
other instrument evidencing any such investment shall be delivered directly to
the Trustee or its agent (which shall initially be the Servicer), together with
any document of transfer, if any, necessary to transfer title to such investment
to the Trustee or its nominee. The Trustee shall have no responsibility or
liability with respect to the investment directions of the Servicer, the Special
Servicer, Nomura Securities International, Inc., any Borrower or Manager or any
losses resulting therefrom, whether from Permitted Investments or otherwise. The
Servicer shall have no responsibility or liability with respect to the
investment directions of Nomura Securities International, Inc., the Special
Servicer, any Borrower or Manager or any losses resulting therefrom, whether
from Permitted Investments or otherwise. In the event amounts on deposit in an
Investment Account are at any time invested in a Permitted Investment payable on
demand, the Servicer (or the Special Servicer or Nomura Securities
International, Inc., as applicable) 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 Servicer
(or the Special Servicer or Nomura
Securities International, Inc., as
applicable) that such Permitted Investment
would not constitute a Permitted Investment
in respect of funds thereafter on deposit in
the related Investment Account.
(b) All income and gain realized from investment of funds deposited in any
Investment Account shall be for the benefit of the Servicer (except with respect
to the investment of funds deposited in (i) any Borrower Account, which shall be
for the benefit of the related Borrower to the extent required under the
Mortgage Loan or applicable law, (ii) any REO Account, which shall be for the
benefit of the Special Servicer or (iii) the Interest Reserve Account, which
shall be for the benefit of Nomura Securities International, Inc.) and, if held
in the Collection Account or REO Account shall be subject to withdrawal by the
Servicer or the Special Servicer, as applicable, in accordance with Section 3.06
or Section 3.17(b), as applicable, and if held in the Interest Reserve Account,
shall be subject to withdrawal by Nomura Securities International, Inc. pursuant
to written instructions. The Servicer (or with respect to any REO Account, the
Special Servicer or with respect to the Interest Reserve Account, Nomura
Securities International, Inc.) shall deposit from its own funds into the
Collection Account, any REO Account or the Interest Reserve Account, as
applicable, the amount of any loss incurred in respect of any such Permitted
Investment immediately upon realization of such loss; provided, however, that
the Servicer, Special Servicer, or Nomura Securities International, Inc. as
applicable, may reduce the amount of such payment to the extent it forgoes any
investment income in such Investment Account otherwise payable to it. The
Servicer shall also deposit from its own funds in any Borrower Account the
amount of any loss incurred in respect of Permitted Investments, except to the
extent that amounts are invested for the benefit of the Borrower under the terms
of the Mortgage Loan or applicable law.
(c) Except as otherwise expressly provided in this Agreement, if any
default occurs in the making of a payment due under any Permitted Investment, or
if a default occurs in any other performance required under any Permitted
Investment, the Trustee may, and upon the request of Holders of Certificates
representing greater than 50% of the Percentage Interests of any Class shall,
take such action as may be appropriate to enforce such payment or performance,
including the institution and prosecution of appropriate proceedings. In the
event the Trustee takes any such action, the Trust Fund shall pay or reimburse
the Trustee for all reasonable out-of-pocket expenses, disbursements and
advances incurred or made by the Trustee in connection therewith. In the event
that the Trustee does not take any such action, the Servicer may take such
action at its own cost and expense.
SECTION 3.08. Maintenance of Insurance Policies and Errors
and Omissions and Fidelity Coverage.
(a) The Servicer on behalf of the Trustee, as mortgagee, shall cause the
related Borrower to maintain, to the extent required by each Mortgage Loan
(other than REO Mortgage Loans), and if the Borrower does not so maintain, shall
itself maintain (subject to the provisions of this Agreement concerning
Nonrecoverable Advances) to the extent the Trustee as mortgagee has an insurable
interest and to the extent available at commercially reasonable rates, (i) fire
and hazard insurance with extended coverage on the related Mortgaged Property in
an amount which is at least equal to the lesser of (A) one hundred percent
(100%) of the then "full replacement cost" of the improvements and equipment,
(excluding foundations, footings and excavation costs), without deduction for
physical depreciation, and (B) the outstanding principal balance of the related
Mortgage Loan or such greater amount as is necessary to prevent any reduction in
such policy by reason of the application of co-insurance and to prevent the
Trustee thereunder from being deemed a co-insurer and provided such policy shall
include a "replacement cost" rider, (ii) insurance providing coverage against 18
months (or such longer period or with such extended period endorsement as
provided in the related Mortgage or other loan document) of rent interruptions
and (iii) such other insurance as is required in the related Mortgage Loan. The
Special Servicer shall maintain fire and hazard insurance with extended coverage
on each REO Property (subject to the provisions of this Agreement concerning
Nonrecoverable Advances) in an amount which is at least equal to one hundred
percent (100%) of the then "full replacement cost" of the improvements and
equipment (excluding foundations, footings and excavation costs), without
deduction for physical depreciation. If the Special Servicer does not maintain
the insurance described in the preceding sentence or the required flood
insurance described below, the Servicer shall, as soon as practicable after
receipt of notice of such failure, maintain such insurance, and if the Servicer
does not maintain such insurance, the insurance required in the first sentence
of this Section 3.08(a) or the required flood insurance described below (if the
related Borrower fails to maintain such insurance), the Trustee shall, as soon
as practicable after receipt of notice of such failure, maintain such insurance
and if the Trustee does not maintain such insurance, the Fiscal Agent shall do
so, provided that, in each such case, such obligation will be subject to the
provisions of this Agreement concerning Nonrecoverable Advances. The Special
Servicer shall maintain, with respect to each REO Property (i) public liability
insurance providing such coverage against such risks as the Special Servicer
determines, consistent with the related Mortgage and the Servicing Standard, to
be in the best interests of the Trust Fund, (ii) insurance providing coverage
against 24 months of rent interruptions and (iii) such other insurance as was
required pursuant to the terms of the related Mortgage Loan. All insurance for
an REO Property shall be from a Qualified Insurer. Any amounts collected by the
Servicer or the Special Servicer under any such policies (other than amounts
required to be applied to the restoration or repair of the related Mortgaged
Property or amounts to be released to the Borrower in accordance with the terms
of the related Mortgage) shall be deposited into the Collection Account pursuant
to Section 3.05, subject to withdrawal pursuant to Section 3.06. Any cost
incurred by the Servicer, Special Servicer, Trustee or Fiscal Agent in
maintaining any such insurance shall not, for the purpose of calculating
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. It is understood and agreed that no other additional insurance other
than flood insurance or earthquake insurance subject to the conditions set forth
below is to be required of any Borrower or to be maintained by the Servicer
other than pursuant to the terms of the related Mortgage and pursuant to such
applicable laws and regulations as shall at any time be in force and as shall
require such additional insurance. If the Mortgaged Property (other than an REO
Property) is located in a federally designated special flood hazard area, the
Servicer will use its best efforts to cause the related Borrower to maintain, to
the extent required by each Mortgage Loan, and if the related Borrower does not
so maintain, will itself obtain (subject to the provisions of this Agreement
concerning Nonrecoverable Advances) flood insurance in respect thereof. Such
flood insurance shall be in an amount equal to the lesser of (i) the unpaid
principal balance of the related Mortgage Loan and (ii) the maximum amount of
such insurance required by the terms of the related Mortgage and as is available
for the related property under the national flood insurance program (assuming
that the area in which such property is located is participating in such
program). If an REO Property (i) is located in a federally designated special
flood hazard area or (ii) is related to a Mortgage Loan pursuant to which
earthquake insurance was in place at the time of origination and continues to be
available at commercially reasonable rates, the Special Servicer will obtain
(subject to the provisions of this Agreement concerning Nonrecoverable Advances)
flood insurance and/or earthquake insurance in respect thereof providing
substantially the same coverage as described in the preceding sentences or, with
respect to earthquake insurance, in the amount required by the Mortgage Loan or,
if not specified, in-place at origination. If at any time during the term of
this Agreement a recovery under a flood or fire and hazard insurance policy in
respect of an REO Property is not available but would have been available if
such insurance were maintained thereon in accordance with the standards applied
to Mortgaged Properties described herein, the Special Servicer shall (subject to
the provisions of this Agreement concerning Nonrecoverable Advances) either (i)
immediately deposit into the Collection Account from its own funds the amount
that would have been recovered or (ii) apply to the restoration and repair of
the property from its own funds the amount that would have been recovered, if
such application would be consistent with the Servicing Standard; provided,
however, that the Special Servicer shall not be responsible for any shortfall in
insurance proceeds resulting from an insurer's refusal or inability to pay a
claim. In the case of any insurance otherwise required to be maintained pursuant
to this Section that is not being so maintained because the Servicer or the
Special Servicer, as applicable, has determined that it is not available at
commercially reasonable rates, the Servicer or the Special Servicer, as
applicable, shall deliver an Officer's Certificate to the Trustee and each
Rating Agency which details the steps that were taken in seeking such insurance
and the factors which led to the determination that such insurance was not so
available. Costs to the Servicer or Special Servicer of maintaining insurance
policies pursuant to this Section 3.08 shall be paid by the Servicer or Special
Servicer as a Property Advance and shall be reimbursable to the Servicer or
Special Servicer with interest at the Advance Rate, which reimbursement may be
effected under Section 3.06(ii) or (vii).
The Servicer (or the Special Servicer, with respect to the Specially
Serviced Mortgage Loans) agrees to prepare and present, on behalf of itself, the
Trustee and the Certificateholders, claims under each related insurance policy
maintained pursuant to this Section 3.08(a) in a timely fashion in accordance
with the terms of such policy and to take such reasonable steps as are necessary
to receive payment or to permit recovery thereunder.
All insurance policies required hereunder shall name the Trustee or the
Servicer or the Special Servicer, on behalf of the Trustee as the mortgagee, as
loss payee.
Any determination made by the Servicer or Special Servicer that insurance
is not commercially reasonably available shall be subject to confirmation by
Fitch that such determination not to purchase such insurance will not result in
a downgrade, qualification or withdrawal of the then current ratings assigned to
the Certificates rated by Fitch.
(b) (I) If the Servicer or the Special Servicer, as applicable, obtains and
maintains a blanket insurance policy insuring against fire and hazard losses on
all of the Mortgaged Properties (other than REO Properties) as to which the
related Borrower has not maintained insurance required by the related Mortgage
Loan or on all of the REO Properties, as the case may be, it shall conclusively
be deemed to have satisfied its respective obligations concerning the
maintenance of insurance coverage set forth in Section 3.08(a). Any such blanket
insurance policy shall be maintained with a Qualified Insurer. A blanket
insurance policy may contain a deductible clause, in which case the Servicer or
the Special Servicer, as applicable, shall, in the event that (i) there shall
not have been maintained on the related Mortgaged Property a policy otherwise
complying with the provisions of Section 3.08(a), and (ii) there shall have been
one or more losses which would have been covered by such a policy had it been
maintained, immediately deposit into the Collection Account from its own funds
the amount not otherwise payable under the blanket policy because of such
deductible clause to the extent that any such deductible exceeds the deductible
limitation that pertained to the related Mortgage Loan, or, in the absence of
any such deductible limitation, the deductible limitation which is consistent
with the Servicing Standard. In connection with its activities as Servicer or
the Special Servicer hereunder, as applicable, the Servicer or the Special
Servicer, respectively, agrees to prepare and present, on behalf of itself, the
Trustee and Certificateholders, claims under any such blanket policy which it
maintains in a timely fashion in accordance with the terms of such policy and to
take such reasonable steps as are necessary to receive payment or permit
recovery thereunder.
(II) If the Servicer or the Special Servicer, as applicable, causes
any Mortgaged Property or REO Property to be covered by a master force placed
insurance policy, such policy shall be issued by a Qualified Insurer and provide
no less coverage in scope and amount for such Mortgaged Property or REO Property
than the insurance required to be maintained pursuant to Section 3.08(a) in
which case the Servicer or Special Servicer shall conclusively be deemed to have
satisfied its respective obligations to maintain insurance pursuant to Section
3.08(a). Such policy may contain a deductible clause, in which case the Servicer
or the Special Servicer, as applicable, shall, in the event that (i) there shall
not have been maintained on the related Mortgaged Property or REO Property a
policy otherwise complying with the provisions of Section 3.08(a), and (ii)
there shall have been one or more losses which would have been covered by such a
policy had it been maintained, immediately deposit into the Collection Account
from its own funds the amount not otherwise payable under such policy because of
such deductible to the extent that any such deductible exceeds the deductible
limitation that pertained to the related Mortgage Loan, or, in the absence of
any such deductible limitation, the deductible limitation which is consistent
with the Servicing Standard.
(c) The Servicer and the Special Servicer shall maintain a fidelity bond in
the form and amount that would meet the servicing requirements of prudent
institutional commercial mortgage lenders and loan servicers with the Trustee
named as loss payee. The Servicer and the Special Servicer each shall be deemed
to have complied with this provision if one of its respective Affiliates has
such fidelity bond coverage and, by the terms of such fidelity bond, the
coverage afforded thereunder extends to the Servicer and the Special Servicer,
as applicable. In addition, the Servicer and the Special Servicer shall keep in
force during the term of this Agreement a policy or policies of insurance
covering loss occasioned by the errors and omissions of its officers and
employees in connection with its obligations to service the Mortgage Loans
hereunder in the form and amount that would meet the servicing requirements of
prudent institutional commercial mortgage lenders and loan servicers with the
Trustee named as loss payee. The Servicer shall cause each and every
sub-servicer for it to maintain, or cause to be maintained by any agent or
contractor servicing any Mortgage Loan on behalf of such sub-servicer, a
fidelity bond and an errors and omissions insurance policy which satisfy the
requirements for the fidelity bond and the errors and omissions policy to be
maintained by the Servicer pursuant to this Section 3.08(c). All fidelity bonds
and policies of errors and omissions insurance obtained under this Section
3.08(c) shall be issued by a Qualified Insurer.
SECTION 3.09. Enforcement of Due-On-Sale Clauses;
Assumption Agreements; Defeasance Provisions.
(a) If any Mortgage Loan contains a provision in the nature of a
"due-on-sale" clause, which by its terms:
(i) provides that such Mortgage Loan shall (or may at the mortgagee's
option) become due and payable upon the sale or other transfer of an
interest in the related Mortgaged Property, or
(ii) provides that such Mortgage Loan may not be assumed without the
consent of the related mortgagee in connection with any such sale or
other transfer,
then, for so long as such Mortgage Loan is included in the Trust Fund, the
Servicer or Special Servicer, as applicable, on behalf of the Trust Fund shall
not be required to enforce such due-on-sale clause and in connection therewith
shall not be required to (x) accelerate payments thereon or (y) withhold its
consent to such an assumption to the extent permitted under the terms of the
related Mortgage Loan if (x) such provision is not exercisable under applicable
law or such exercise is reasonably likely to result in meritorious legal action
by the Borrower or (y) the Servicer or Special Servicer, as applicable,
determines, in accordance with the Servicing Standard, that granting such
consent would be likely to result in a greater recovery, on a present value
basis (discounting at the related Mortgage Rate) than would enforcement of such
clause. If the Servicer or Special Servicer, as applicable, determines that
granting of such consent would likely result in a greater recovery or such
provision is not legally enforceable, the Servicer or Special Servicer, as
applicable, is authorized to take or enter into an assumption agreement from or
with the Person to whom the related Mortgaged Property has been or is about to
be conveyed, and to release the original Borrower from liability upon the
Mortgage Loan and substitute the new Borrower as obligor thereon, provided, that
(a) the credit status of the prospective new Borrower is in compliance with the
Servicer's or Special Servicer's regular commercial mortgage origination or
servicing standards and criteria (as evidenced in writing by the Servicer or
Special Servicer) and the terms of the related Mortgage and (b) the Servicer or
Special Servicer has received written confirmation from each of Fitch, Xxxxx'x
and S&P, and, if the Mortgage Loan represents greater than 2% of the aggregate
Stated Principal Balances of the Mortgage Loans, DCR that such assumption or
substitution would not, in and of itself, cause a downgrade, qualification or
withdrawal of the then current ratings assigned to the Certificates. In
connection with each such assumption or substitution entered into by the Special
Servicer, the Special Servicer shall give prior notice thereof to the Servicer.
The Servicer or Special Servicer, as applicable, shall notify the Trustee that
any such assumption or substitution agreement has been completed by forwarding
to the Trustee (with a copy to the Servicer, if applicable,) the original copy
of such agreement, which copies shall be added to the related Mortgage File and
shall, for all purposes, be considered a part of such Mortgage File to the same
extent as all other documents and instruments constituting a part thereof.
(b) If any Mortgage Loan contains a provision in the nature of a
"due-on-encumbrance" clause, which by its terms:
(i) provides that such Mortgage Loan shall (or may at the mortgagee's
option) become due and payable upon the creation of any lien or other
encumbrance on the related Mortgaged Property, or
(ii) requires the consent of the related mortgagee to the creation of any
such lien or other encumbrance on the related Mortgaged Property,
then the Servicer or Special Servicer, as applicable, on behalf of the Trust
Fund, shall not be required to enforce such due-on-encumbrance clause and in
connection therewith will not be required to (i) accelerate the payments on the
related Mortgage Loan or (ii) withhold its consent to such lien or encumbrance
if the Servicer or Special Servicer, as applicable, (x) determines, in
accordance with the Servicing Standard, that such consent would be in the best
interests of the Trust Fund and (y) receives prior written confirmation from
each of Fitch, Xxxxx'x and S&P, and, if the Mortgage Loan represents greater
than 2% of the aggregate Stated Principal Balances of the Mortgage Loans, DCR
that granting such consent would not, in and of itself, cause a downgrade,
qualification or withdrawal of any of the then current ratings assigned to the
Certificates.
(c) Nothing in this Section 3.09 shall constitute a waiver of the Trustee's
right, as the mortgagee of record, to receive notice of any assumption of a
Mortgage Loan, any sale or other transfer of the related Mortgaged Property or
the creation of any lien or other encumbrance with respect to such Mortgaged
Property.
(d) In connection with the taking of, or the failure to take, any action
pursuant to this Section 3.09, neither the Servicer nor the Special Servicer
shall agree to modify, waive or amend, and no assumption or substitution
agreement entered into pursuant to Section 3.09(a) shall contain any terms that
are different from, any term of any Mortgage Loan or the related Note, other
than pursuant to Section 3.30.
(e) With respect to any Mortgage Loan which permits release of Mortgaged
Properties through defeasance:
(i) In the event such Mortgage Loan requires that the Servicer on behalf
of the Trustee purchase the required U.S. government obligations, the
Servicer shall purchase such obligations in accordance with the terms
of such Mortgage Loan; provided, that the Servicer shall not accept
the amounts paid by the related Borrower to effect defeasance until
acceptable U.S. government obligations have been identified.
(ii) In the event that such Mortgage Loan permits the assumption of the
obligations of the related Borrower by a successor mortgagor, prior to
permitting such assumption and to the extent not inconsistent with
such Mortgage Loan, the Servicer shall obtain written confirmation
from each Rating Agency that such assumption would not, in and of
itself, cause a downgrade, qualification or withdrawal of the then
current ratings assigned to the Certificates.
(iii) To the extent not inconsistent with such Mortgage Loan, the Servicer
shall require an Opinion of Counsel to the related Borrower (which
shall be an expense of the related Borrower) to the effect that the
Trustee has a first priority security interest in the defeasance
deposit and the U.S. government obligations and the assignment thereof
is valid and enforceable; such opinion, together with any other
certificates or documents to be required in connection with such
defeasance shall be in form and substance acceptable to each Rating
Agency.
(iv) To the extent not inconsistent with the Mortgage Loan, the Servicer
shall require a certificate at the related Borrower's expense from an
Independent certified public accountant certifying that the U.S.
government obligations comply with the requirements of the related
Loan Agreement or Mortgage.
(v) Prior to permitting release of any Mortgaged Properties through
defeasance, to the extent not inconsistent with the related Mortgage
Loan, the Servicer shall obtain written confirmation from each Rating
Agency that such defeasance would not, in and of itself, result in a
downgrade, qualification or withdrawal of the then current ratings
assigned to the Certificates.
(vi) Prior to permitting release of any Mortgaged Property through
defeasance, if the related Mortgage Loan so requires and provides for
the related Borrower to pay the cost thereof, the Servicer shall
require an Opinion of Counsel of the related Borrower to the effect
that such release will not cause either the Upper-Tier REMIC or
Lower-Tier REMIC to fail to qualify as a REMIC at any time that any
Certificates are outstanding or cause a tax to be imposed on the Trust
Fund under the REMIC Provisions.
SECTION 3.10. Appraisals; Realization Upon Defaulted Mortgage Loans.
(a) Contemporaneously with the earliest of (i) the effective date of any
(A) modification of a Mortgage Rate, principal balance or amortization terms of
any Mortgage Loan, or any other term of a Mortgage Loan, (B) extension of the
Maturity Date of a Mortgage Loan as described below in Section 3.30(c), or (C)
consent to the release of any Mortgaged Property from the lien of the related
Mortgage other than pursuant to the terms of the related Mortgage Loan, (ii) the
occurrence of any Appraisal Reduction Event, (iii) a default in the payment of a
Balloon Payment, or (iv) the date on which the Special Servicer, consistent with
the Servicing Standard, requests that an Updated Appraisal be obtained, the
Servicer (after consultation with the Special Servicer) shall obtain an Updated
Appraisal; provided, however, that the Servicer shall not be required to obtain
an Updated Appraisal pursuant to clauses (i) through (iv) above with respect to
any Mortgaged Property for which there exists an appraisal which is less than
twelve months old. The Servicer shall obtain letter updates to each Updated
Appraisal annually and prior to the Special Servicer granting extensions beyond
one year or any subsequent extension after granting a one year extension with
respect to the same Mortgage Loan. For so long as any Mortgage Loan for which an
Updated Appraisal has been obtained is included in the Trust Fund, the Servicer
shall obtain a new Updated Appraisal with respect to an Updated Appraisal which
is more than three years old. The Servicer shall send all such letter updates
and Updated Appraisals to the Rating Agencies.
(b) Upon the occurrence of a material default under a Specially Serviced
Mortgage Loan, except as otherwise specifically provided in Section 3.09(a) and
(b), the Special Servicer may, consistent with the Servicing Standard,
accelerate such Specially Serviced Mortgage Loan and commence a foreclosure or
other acquisition with respect to the related Mortgaged Property or Properties,
provided, that the Special Servicer determines that such acceleration and
foreclosure are more likely to produce a greater recovery to Certificateholders
on a present value basis (discounting at the related Mortgage Rate) than would a
waiver of such default or an extension or modification in accordance with the
provisions of Section 3.30 hereof. In connection with any foreclosure or other
acquisition as to which the Special Servicer is not required to act under
Instructions from the Directing Holders, the Servicer shall pay the costs and
expenses in any such proceedings as an Advance unless the Servicer determines,
in its good faith judgment, that such Advance would constitute a Nonrecoverable
Advance. The Servicer shall be entitled to reimbursement of Advances (with
interest at the Advance Rate) made pursuant to the preceding sentence to the
extent permitted by Section 3.06(ii), (iii) and (vii). If the Special Servicer
is acting pursuant to Instructions, the cost and expenses in any such proceeding
shall be paid by the Directing Certificateholders or the Special Servicer,
without reimbursement therefor by the Trust Fund.
(c) If the Special Servicer elects to proceed with a non-judicial
foreclosure in accordance with the laws of the state where the Mortgaged
Property is located, the Special Servicer shall not be required to pursue a
deficiency judgment against the related Borrower or any other liable party if
the laws of the state do not permit such a deficiency judgment after a
non-judicial foreclosure or if the Special Servicer determines, in its best
judgment, that the likely recovery if a deficiency judgment is obtained will not
be sufficient to warrant the cost, time, expense and/or exposure of pursuing the
deficiency judgment and such determination is evidenced by an Officers'
Certificate delivered to the Trustee.
(d) In the event that title to any Mortgaged Property is acquired in
foreclosure or by deed in lieu of foreclosure, the deed or certificate of sale
shall be issued to the Trustee, or to its nominee (which shall not include the
Special Servicer) or a separate trustee or co-trustee on behalf of the Trustee
as holder of the Lower-Tier Regular Interests and Certificateholders.
Notwithstanding any such acquisition of title and cancellation of the related
Mortgage Loan, such Mortgage Loan shall (except for purposes of Section 9.01) be
considered to be an REO Loan held in the Trust Fund until such time as the
related REO Property shall be sold by the Trust Fund and shall be reduced only
by collections net of expenses. Consistent with the foregoing, for purposes of
all calculations hereunder, so long as such Mortgage Loan shall be considered to
be an outstanding Mortgage Loan:
(i) it shall be assumed that, notwithstanding that the indebtedness
evidenced by the related Note shall have been discharged, such Note
and, for purposes of determining the Stated Principal Balance thereof,
the related amortization schedule in effect at the time of any such
acquisition of title shall remain in effect; and
(ii) Subject to Section 1.02(b), Net REO Proceeds received in any month
shall be applied to amounts that would have been payable under the
related Note in accordance with the terms of such Note. In the absence
of such terms, Net REO Proceeds shall be deemed to have been received
first in payment of the accrued interest (not including Excess
Interest) that remained unpaid on the date that the related REO
Property was acquired by the Trust Fund; second in respect of the
delinquent principal installments that remained unpaid on such date;
and thereafter, Net REO Proceeds received in any month shall be
applied to the payment of installments of principal and accrued
interest on such Mortgage Loan deemed to be due and payable in
accordance with the terms of such Note and such amortization schedule
until such principal has been paid in full and then to Excess Interest
and other amounts due under such Mortgage Loan. If such Net REO
Proceeds exceed the Monthly Payment then payable, the excess shall be
treated as a Principal Prepayment received in respect of such Mortgage
Loan.
(e) Notwithstanding any provision herein to the contrary, the Special
Servicer shall not acquire for the benefit of the Trust Fund any personal
property pursuant to this Section 3.10 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 for the benefit of the Trust Fund; or
(ii) the Special Servicer shall have requested and received an Opinion of
Counsel (which opinion shall be an expense of the Lower-Tier REMIC) to
the effect that the holding of such personal property by the
Lower-Tier REMIC will not cause the imposition of a tax on the
Lower-Tier REMIC or Upper-Tier REMIC under the REMIC Provisions or
cause the Lower-Tier REMIC or Upper-Tier REMIC to fail to qualify as a
REMIC at any time that any Certificate is outstanding.
(f) Notwithstanding any provision to the contrary in this Agreement, the
Special Servicer shall not, on behalf of the Trust Fund, obtain title to any
direct or indirect partnership interest or other equity interest in any Borrower
pledged pursuant to any pledge agreement unless the Special Servicer shall have
requested and received an Opinion of Counsel (which opinion shall be an expense
of the Trust Fund) to the effect that the holding of such partnership interest
or other equity interest by the Trust Fund will not cause the imposition of a
tax on the Lower-Tier REMIC or Upper-Tier REMIC under the REMIC Provisions or
cause the Lower-Tier REMIC or Upper-Tier REMIC to fail to qualify as a REMIC at
any time that any Certificate is outstanding.
(g) Notwithstanding any provision to the contrary contained in this
Agreement, the Special Servicer shall not, on behalf of the Trust Fund, obtain
title to a Mortgaged Property as a result of or in lieu of foreclosure or
otherwise, obtain title to any direct or indirect partnership interest in any
Borrower pledged pursuant to a pledge agreement and thereby be the beneficial
owner of a Mortgaged Property, and shall not otherwise acquire possession of, or
take any other action with respect to, any Mortgaged Property if, as a result of
any such action, the Trustee, for the Trust Fund or the Certificateholders,
would be considered to hold title to, to be a "mortgagee-in-possession" of, or
to be an "owner" or "operator" of such Mortgaged Property within the meaning of
the Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended from time to time, or any comparable law, unless the Special
Servicer has previously determined in accordance with the Servicing Standard,
based on an updated environmental assessment report prepared by an Independent
Person who regularly conducts environmental audits, that:
(i) such Mortgaged Property is in compliance with applicable environmental
laws or, if not, after consultation with an environmental consultant,
that it would be in the best economic interest of the Trust Fund to
take such actions as are necessary to bring such Mortgaged Property in
compliance therewith, and
(ii) there are no circumstances present at such Mortgaged Property relating
to the use, management or disposal of any Hazardous Materials for
which investigation, testing, monitoring, containment, clean-up or
remediation could be required under any currently effective federal,
state or local law or regulation, or that, if any such Hazardous
Materials are present for which such action could be required, after
consultation with an environmental consultant, it would be in the best
economic interest of the Trust Fund to take such actions with respect
to the affected Mortgaged Property.
In the event that the environmental assessment first obtained by the
Special Servicer with respect to a Mortgaged Property indicates that such
Mortgaged Property may not be in compliance with applicable environmental laws
or that Hazardous Materials may be present but does not definitively establish
such fact, the Special Servicer shall cause such further environmental tests to
be conducted by an Independent Person who regularly conducts such tests as the
Special Servicer shall deem prudent to protect the interests of
Certificateholders. Any such tests shall be deemed part of the environmental
assessment obtained by the Special Servicer for purposes of this Section 3.10.
(h) The environmental assessment contemplated by Section 3.10(g) shall be
prepared within three months of the determination that such assessment is
required by any Independent Person who regularly conducts environmental audits
for purchasers of commercial property where the Mortgaged Property is located,
as determined by the Special Servicer in a manner consistent with the Servicing
Standard. The Servicer shall advance the cost of preparation of such
environmental assessments unless the Servicer determines, in its good faith
judgment, that such Advance would be a Nonrecoverable Advance. The Servicer
shall be entitled to reimbursement of Advances (with interest at the Advance
Rate) made pursuant to the preceding sentence in the manner set forth in Section
3.06.
(i) If the Special Servicer determines pursuant to Section 3.10(g)(i) that
a Mortgaged Property is not in compliance with applicable environmental laws but
that it is in the best economic interest of the Trust Fund to take such actions
as are necessary to bring such Mortgaged Property in compliance therewith, or if
the Special Servicer determines pursuant to Section 3.10(g)(ii) that the
circumstances referred to therein relating to Hazardous Materials are present
but that it is in the best economic interest of the Trust Fund to take such
action with respect to the containment, clean-up or remediation of Hazardous
Materials affecting such Mortgaged Property as is required by law or regulation,
the Special Servicer shall take such action as it deems to be in the best
economic interest of the Trust Fund, but only if the Trustee has mailed notice
to the Holders of the Regular Certificates of such proposed action, which notice
shall be prepared by the Special Servicer, and only if the Trustee does not
receive, within 30 days of such notification, instructions from the Holders of
greater than 50% of the aggregate Voting Rights of such Classes directing the
Special Servicer not to take such action. Notwithstanding the foregoing, if the
Special Servicer reasonably determines that it is likely that within such 30-day
period irreparable environmental harm to such Mortgage Property would result
from the presence of such Hazardous Materials and provides a prior written
statement to the Trustee setting forth the basis for such determination, then
the Special Servicer may take such action to remedy such condition as may be
consistent with the Servicing Standard. None of the Trustee, the Servicer or the
Special Servicer shall be obligated to take any action or not take any action
pursuant to this Section 3.10(i) at the direction of the Certificateholders
unless the Certificateholders agree to indemnify the Trustee, the Servicer and
the Special Servicer with respect to such action or inaction. The Special
Servicer shall advance the cost of any such compliance, containment, clean-up or
remediation unless the Special Servicer determines, in its good faith judgment,
that such Advance would constitute a Nonrecoverable Advance.
(j) The Special Servicer shall report to the IRS and to the related
Borrower, in the manner required by applicable law, the information required to
be reported regarding any Mortgaged Property which is abandoned or foreclosed or
regarding any cancellation of indebtedness with respect to any Mortgage Loan.
The Special Servicer shall deliver a copy of any such report to the Trustee.
(k) The costs of any Updated Appraisal obtained pursuant to this Section
3.10 shall be paid by the Servicer as an Advance and shall be reimbursable from
the Collection Account (or from the Collateral Account to the extent Advances
are otherwise reimbursable therefrom pursuant to this Section 3.10).
SECTION 3.11. Trustee to Cooperate; Release of Mortgage Files.
Upon the payment in full of any Mortgage Loan, or the receipt by the
Servicer of a notification that payment in full has been escrowed in a manner
customary for such purposes, the Servicer shall immediately notify the Trustee
or the Custodian by a certification (which certification shall include a
statement to the effect that all amounts received or to be received in
connection with such payment which are required to be deposited in the
Collection Account pursuant to Section 3.05 have been or will be so deposited)
of a Servicing Officer and shall request delivery to it of the Mortgage File. No
expenses incurred in connection with any instrument of satisfaction or deed of
reconveyance shall be chargeable to the Trust Fund.
From time to time upon request of the Servicer or Special Servicer and
delivery to the Trustee and the Custodian of a Request for Release, the Trustee
shall promptly cause the Custodian to release the Mortgage File (or any portion
thereof) designated in such Request for Release to the Servicer or Special
Servicer, as applicable. Upon return of the foregoing to the Custodian, or in
the event of a liquidation or conversion of the Mortgage Loan into an REO
Property, receipt by the Trustee of a certificate of a Servicing Officer stating
that such Mortgage Loan was liquidated and that all amounts received or to be
received in connection with such liquidation which are required to be deposited
into the Collection Account or Distribution Account have been so deposited, or
that such Mortgage Loan has become an REO Property, the Custodian shall deliver
a copy of the Request for Release to the Servicer or Special Servicer, as
applicable.
Upon written certification of a Servicing Officer, the Trustee shall
execute and deliver to the Special Servicer any court pleadings, requests for
trustee's sale or other documents prepared by the Special Servicer, its agents
or attorneys, 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
Borrower on the Note or Mortgage or to obtain a deficiency judgment, or to
enforce any other remedies or rights provided by the Note or Mortgage or
otherwise available at law or in equity. Each such certification shall include a
request that such pleadings or documents be executed by the Trustee and a
statement as to the reason such documents or pleadings are required, and that
the execution and delivery thereof by the Trustee will not invalidate or
otherwise affect the lien of the Mortgage, except for the termination of such a
lien upon completion of the foreclosure or trustee's sale.
SECTION 3.12. Servicing Fees, Trustee Fees and Special Servicing
Compensation.
(a) As compensation for its activities hereunder, the Servicer shall be
entitled with respect to each Mortgage Loan to the Servicing Fee, which shall be
payable from amounts on deposit in the Collection Account as set forth in
Section 3.06(iv). The Servicer's rights to the Servicing Fee may not be
transferred in whole or in part except in connection with the transfer of all of
the Servicer's responsibilities and obligations under this Agreement. In
addition, the Servicer shall be entitled to receive, as additional Servicing
Compensation, to the extent permitted by applicable law and the related Mortgage
Loans (and not otherwise payable to the Special Servicer pursuant to Section
3.12(b)), any late payment charges, assumption fees, loan modification fees,
extension fees, loan service transaction fees, demand fees, beneficiary
statement charges or similar items (but not including any Prepayment Premiums),
in each case to the extent received and not required to be deposited or retained
in the Collection Account pursuant to Section 3.05; provided, however, that the
Servicer shall not be entitled to apply or retain any amounts as additional
compensation, any late payment charges with respect to any Mortgage Loan with
respect to which a default or event of default thereunder has occurred and is
continuing unless and until such default or event of default has been cured and
all delinquent amounts (including any Default Interest) due with respect to such
Mortgage Loan have been paid. The Servicer shall also be entitled pursuant to,
and to the extent provided in, Sections 3.06(iv) and 3.07(b) to withdraw from
the Collection Account and to receive from any Borrower Accounts (to the extent
not payable to the related Borrower under the Mortgage Loan or applicable law),
the Distribution Account, Upper-Tier Distribution Account, Default Interest
Distribution Account, and the Excess Interest Distribution Account, any interest
or other income earned on deposits therein. Notwithstanding the foregoing, the
Servicing Fee and investment income earned on any Principal Prepayments during
the related Collection Period and due to the Servicer on any Distribution Date
shall be reduced by the amount of any Servicer Prepayment Interest Shortfalls.
As compensation for its activities hereunder on each Distribution Date, the
Trustee shall be entitled with respect to each Mortgage Loan to the Trustee Fee,
which shall be payable from amounts on deposit in the Collection Account as set
forth in Section 3.06(v). The Trustee shall pay the routine fees and expenses of
the Certificate Registrar, the Paying Agent, the Custodian and the
Authenticating Agent. The Trustee's rights to the Trustee Fee may not be
transferred in whole or in part except in connection with the transfer of all of
the Trustee's responsibilities and obligations under this Agreement.
Except as otherwise provided herein, the Servicer shall pay all expenses
incurred by it in connection with its servicing activities hereunder, including
all fees of any sub-servicers retained by it. Except as otherwise provided
herein, the Trustee shall pay all expenses incurred by it in connection with its
activities hereunder.
(b) As compensation for its activities hereunder, the Special Servicer
shall be entitled with respect to each Specially Serviced Mortgage Loan to the
Special Servicing Fee, which shall be payable from amounts on deposit in the
Collection Account as set forth in Section 3.06(iv). The Special Servicer's
rights to the Special Servicing 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. In addition, the Special
Servicer shall be entitled to receive, as Special Servicing Compensation, (i) to
the extent permitted by applicable law and the related Loan Documents, any
Assumption Fees, loan service transaction fees, demand fees, statement charges
and other fees relating to any Specially Serviced Mortgage Loan or with respect
to servicing activities performed by the Special Servicer and, for any
modification, extension or other action by the Special Servicer for which the
consent of, or review by, the Servicer is required, one-half of any
modification, extension or other fees payable by the related Borrower in
connection therewith and (ii) any interest or other income earned on deposits in
the REO Accounts. If a review by, or the consent of, the Servicer is not
required in connection with an extension, modification or other action, the
Special Servicer shall be entitled to the full amount of any modification,
extension or other fees.
Except as otherwise provided herein, the Special Servicer shall pay all
expenses incurred by it in connection with its servicing activities hereunder.
(c) Reserved.
(d) Notwithstanding the foregoing, in the event that the Special Servicer
is, or is an Affiliate of, or has an economic arrangement for the purpose of
retaining the full Special Servicing Fee Rate with, the Holder or Holders of
Certificates representing greater than 50% of the Percentage Interests of the
most subordinate Class of Certificates then outstanding, the Special Servicer
shall provide written notice thereof to the Servicer and the Special Servicer
shall be entitled to receive a Special Servicing Fee that accrues at a rate
equal to one-half of the Special Servicing Fee Rate.
(e) The Servicer, Special Servicer and Trustee shall be entitled to
reimbursement from the Trust Fund for the costs and expenses incurred by them in
the performance of their duties under this Agreement which are "unanticipated
expenses incurred by the REMIC" within the meaning of Treasury Regulations
Section 1.860G-1(b)(3)(iii). Such expenses shall include, by way of example and
not by way of limitation, environmental assessments, Updated Appraisals and
appraisals in connection with foreclosure, the fees and expenses of any
administrative or judicial proceeding and expenses expressly identified as
reimbursable in Section 3.06(vii).
(f) No provision of this Agreement or of the Certificates shall require the
Servicer, the Special Servicer, the Trustee or the Fiscal Agent to expend or
risk their own funds or otherwise incur any financial liability in the
performance of any of their duties hereunder or thereunder, or in the exercise
of any of their rights or powers, if, in the good faith business judgment of the
Servicer, Special Servicer, Trustee or Fiscal Agent, as the case may be,
repayment of such funds would not be ultimately recoverable from late payments,
Net Insurance Proceeds, Net Liquidation Proceeds and other collections on or in
respect of the Mortgage Loans, or from adequate indemnity from other assets
comprising the Trust Fund against such risk or liability.
If the Servicer, the Special Servicer or the Trustee receives a request or
inquiry from a Borrower, any Certificateholder or any other Person the response
to which would, in the Servicer's or the Trustee's good faith business judgment
require the assistance of Independent legal counsel or other consultant to the
Servicer, the Special Servicer or the Trustee, the cost of which would not be an
expense of the Trust Fund hereunder, then the Servicer, the Special Servicer or
the Trustee, as the case may be, shall not be required to take any action in
response to such request or inquiry unless the Borrower or such
Certificateholder or such other Person, as applicable, makes arrangements for
the payment of the Servicer's, the Special Servicer's or the Trustee's expenses
associated with such counsel (including, without limitation, posting an advance
payment for such expenses) satisfactory to the Servicer, the Special Servicer or
the Trustee, as the case may be, in its sole discretion. Unless such
arrangements have been made, the Servicer, the Special Servicer or the Trustee,
as the case may be, shall have no liability to any Person for the failure to
respond to such request or inquiry.
SECTION 3.13. Reports to the Trustee; Collection Account Statements.
(a) The Servicer shall deliver to the Trustee and the Special Servicer, no
later than 12:00 noon Central time on the Servicer Remittance Date prior to each
Distribution Date, the Servicer Remittance Report with respect to the related
Distribution Date (which shall include, without limitation, the amount of
Available Funds for such related Collection Period) including a written
statement of anticipated P&I Advances for the related Distribution Date. The
Servicer's responsibilities under this Section 3.13(a) with respect to REO Loans
shall be subject to the satisfaction of the Special Servicer's obligations under
Section 3.26.
(b) For so long as the Servicer makes deposits into and withdrawals from
the Collection Account, not later than fifteen days after each Distribution
Date, the Servicer shall forward to the Trustee and the Fiscal Agent a statement
prepared by the Servicer setting forth the status of the Collection Account as
of the close of business on the last Business Day of the related Collection
Period and showing the aggregate amount of deposits into and withdrawals from
the Collection Account of each category of deposit specified in Section 3.05 and
each category of withdrawal specified in Section 3.06 for the related Collection
Period. The Trustee and its agents and attorneys may at any time during normal
business hours, upon reasonable notice, inspect and copy the books, records and
accounts of the Servicer solely relating to the Mortgage Loans and the
performance of its duties hereunder.
(c) No later than 12:00 noon Central time on the Servicer Remittance Date,
the Servicer shall deliver or cause to be delivered to the Trustee the following
reports with respect to the Mortgage Loans (and, if applicable, the related REO
Properties), providing the required information as of the Due Date: (i) a
Comparative Financial Status Report, (ii) a Delinquent Loan Status Report; (iii)
an Historical Loss Estimate Report; (iv) an Historical Loan Modification Report;
and (v) an REO Status Report. Such reports shall be presented in writing and on
a computer readable medium reasonably acceptable to the Trustee. The information
that pertains to Specially Serviced Mortgage Loans and REO Properties reflected
in such reports shall be based solely upon the reports delivered by the Special
Servicer to the Servicer at least one Business Day prior to the related Servicer
Remittance Date in the form required by Section 3.13(f) or shall be provided by
means of such reports so delivered by the Special Servicer to the Servicer in
the form so required. In the absence of manifest error, the Servicer shall be
entitled to conclusively rely upon, without investigation or inquiry, the
information and reports delivered to it by the Special Servicer, and the Trustee
shall be entitled to conclusively rely upon the Servicer's reports and the
Special Servicer's reports without any duty or obligation to recompute, verify
or recalculate any of the amounts and other information stated therein.
(d) The Servicer shall deliver or cause to be delivered to the Trustee the
following materials, in each case to the extent that such materials or the
information on which they are based have been received by the Servicer:
(i) At least annually by June 30th, with respect to each Mortgage
Loan and REO Mortgage Loan (to the extent prepared by and received
from the Special Servicer in the case of any Specially Serviced
Mortgage Loan or REO Mortgage Loan), an Operating Statement Analysis
for the related Mortgaged Property or REO Property as of the end of
the preceding fiscal year, together with copies of the operating
statements and rent rolls (but only to the extent the related Borrower
is required by the Mortgage to deliver, or otherwise agrees to provide
such information and, with respect to operating statements and rent
rolls for Specially Serviced Mortgage Loans and REO Properties, only
to the extent requested by the Special Servicer) for the related
Mortgaged Property or REO Property as of the end of the preceding
fiscal year. The Servicer shall use its best reasonable efforts to
obtain said annual operating statements and rent rolls with respect to
each of the Mortgage Loans other than Specially Serviced Mortgage
Loans or REO Mortgage Loans, which efforts shall include a letter sent
to the related Borrower each quarter (followed up with telephone
calls) requesting such annual operating statements and rent rolls
until they are received to the extent such action is consistent with
applicable law and the terms of the Mortgage Loans.
(ii) Within thirty days after receipt by the Servicer (or the
Special Servicer in the case of a Specially Serviced Mortgage Loan or
REO Property) of any annual operating statements with respect to any
Mortgaged Property or REO Property (to the extent prepared by and
received from the Special Servicer in the case of any Specially
Serviced Mortgage Loan or REO Property), an NOI Adjustment Worksheet
for such Mortgaged Property (with the annual operating statements
attached thereto as an exhibit).
The Servicer shall maintain one Operating Statement Analysis report for each
Mortgaged Property and REO Property (to the extent prepared by and received from
the Special Servicer in the case of any REO Property or any Mortgaged Property
constituting security for a Specially Serviced Mortgage Loan). The Operating
Statement Analysis report for each Mortgaged Property (other than any such
Mortgaged Property which is REO Property or constitutes security for a Specially
Serviced Mortgage Loan) is to be updated by the Servicer and such updated report
delivered to the Trustee within thirty days after receipt by the Servicer of
updated operating statements for such Mortgaged Property. The Servicer will use
the "Normalized" column from the NOI Adjustment Worksheet to update the
Operating Statement Analysis report and will use any operating statements
received with respect to any Mortgaged Property (other than any such Mortgaged
Property which is REO Property or constitutes security for a Specially Serviced
Mortgage Loan) to update the Operating Statement Analysis report for such
Mortgaged Property, such updates to be completed and copies thereof sent to the
Trustee within thirty days after receipt of the necessary information.
The Special Servicer will be required pursuant to Section 3.13(g) to
deliver to the Servicer the information required pursuant to this Section
3.13(d) with respect to Specially Serviced Mortgage Loans and REO Mortgage Loans
on or before June 10th of each year, commencing on June 10, 1997, and within ten
days after its receipt of any operating statement for any related Mortgaged
Property or REO Property.
(e) No later than 12:00 noon Central time on the Servicer Remittance Date,
beginning in May 1997, the Servicer shall prepare and deliver to the Trustee and
the Special Servicer, a Watch List of all Mortgage Loans that the Servicer has
determined are in jeopardy of becoming Specially Serviced Mortgage Loans. For
this purpose, Mortgage Loans that are in jeopardy of becoming Specially Serviced
Mortgage Loans shall include, without limitation: (i) Mortgage Loans having a
current Debt Service Coverage Ratio that is 80% or less of the Debt Service
Coverage Ratio as of the Cut-off Date or having a Debt Service Coverage Ratio
that is less than 1.00x, (ii) Mortgage Loans as to which any required inspection
of the related Mortgaged Property conducted by the Servicer indicates a problem
that the Servicer determines can reasonably be expected to materially adversely
affect the cash flow generated by such Mortgaged Property, (iii) Mortgage Loans
which have come to the Servicer's attention in the performance of its duties
under this Agreement (without any expansion of such duties by reason hereof)
that (A) any tenant occupying 25% or more of the space in the related Mortgaged
Property has vacated (without being replaced by a comparable tenant and lease)
or been the subject of bankruptcy or similar proceedings or (B) relate to a
borrower or an affiliate that is the subject of a bankruptcy or similar
proceeding, (iv) Mortgage Loans that are at least one Collection Period
delinquent in payment, and (v) Mortgage Loans that are within 60 days of
maturity.
The Special Servicer shall report to the Servicer any of the foregoing
events promptly upon the Special Servicer having knowledge of such event. In
addition, in connection with their servicing of the Mortgage Loans, the Servicer
and the Special Servicer shall provide to each other and to the Trustee written
notice of any event that comes to their knowledge with respect to a Mortgage
Loan or REO Property that the Servicer or the Special Servicer, respectively,
determines, in accordance with Servicing Standards, would have a material
adverse effect on such Mortgage Loan or REO Property, which notice shall include
an explanation as to the reason for such material adverse effect.
(f) At least one Business Day prior to each Servicer Remittance Date, the
Special Servicer shall deliver, or cause to be delivered, to the Servicer and
S&P and, upon the request of any of the Trustee, the Depositor or any other
Rating Agency, to such requesting party, the following reports with respect to
the Specially Serviced Mortgage Loans (and, if applicable, the related REO
Properties), providing the required information as of the Due Date: (i) a
Delinquent Loan Status Report; (ii) an Historical Loss Estimate Report; (iii) an
Historical Loan Modification Report; (iv) an REO Status Report; (v) Comparative
Financial Status Reports with respect to all Specially Serviced Mortgage Loans;
and (vi) a Watch List. Such reports shall be presented in writing and on a
computer readable magnetic medium.
(g) The Special Servicer shall deliver or cause to be delivered to the
Servicer and S&P and, upon the request of any of the Trustee, the Depositor or
any other Rating Agency, to such requesting party, the following materials, in
each case to the extent that such materials or the information on which they are
based have been received by the Special Servicer:
(i) Annually, on or before June 10 of each year, commencing with
June 10, 1997, with respect to each Specially Serviced Mortgage Loan
and REO Mortgage Loan, an Operating Statement Analysis for the related
Mortgaged Property or REO Property as of the end of the preceding
calendar year, together with copies of the operating statements and
rent rolls for the related Mortgaged Property or REO Property as of
the end of the preceding calendar year. The Special Servicer shall use
its best reasonable efforts to obtain said annual operating statements
and rent rolls with respect to each Mortgaged Property constituting
security for a Specially Serviced Mortgage Loan and each REO Property,
which efforts shall include a letter sent to the related Borrower or
other appropriate party each quarter (followed up with telephone
calls) requesting such annual operating statements and rent rolls
until they are received.
(ii) Within 10 days of receipt by the Special Servicer of any
annual operating statements with respect to any Mortgaged Property
relating to a Specially Serviced Mortgage Loan, or at least six months
of operating information with respect to any REO Property, an NOI
Adjustment Worksheet for such Mortgaged Property or REO Property (with
the annual operating statements attached thereto as an exhibit).
The Special Servicer shall maintain one Operating Statement Analysis report for
each Mortgaged Property securing a Specially Serviced Mortgage Loan and REO
Property. The Operating Statement Analysis report for each Mortgaged Property
which constitutes security for a Specially Serviced Mortgage Loan or is a REO
Property is to be updated by the Special Servicer and such updated report
delivered to the Servicer within ten days after receipt by the Special Servicer
of updated operating statements for each such Mortgaged Property. The Special
Servicer will use the "Normalized" column from the NOI Adjustment Worksheet to
update the Operating Statement Analysis report and will use any operating
statements received with respect to any Mortgaged Property which constitutes
security for a Specially Serviced Mortgage Loan or is a REO Property to update
the Operating Statement Analysis report for such Mortgaged Property, such
updates to be completed and copies thereof sent to the Servicer within ten days
after receipt of the necessary information.
(h) The Trustee shall be entitled to rely conclusively on and shall
not be responsible for the content or accuracy of any information provided to it
by the Servicer or the Special Servicer pursuant to this Agreement.
SECTION 3.14. Annual Statement as to Compliance.
The Servicer and the Special Servicer (the "reporting person") each shall
deliver to the Trustee, the Depositor and to the Rating Agencies on or before
March 15 of each year, beginning with March 15, 1998, an Officer's Certificate
stating, as to each signatory thereof, (i) that a review of the activities of
the reporting person during the preceding calendar year (or such shorter period
from the Closing Date to the end of the related calendar year) and of its
performance under this Agreement has been made under such officer's supervision,
(ii) that, to the best of such officer's knowledge, based on such review, the
reporting person has fulfilled all of its obligations under this Agreement
throughout such year (or such shorter period), or, if there has been a default
in the fulfillment of any such obligation, specifying each such default known to
such officer, the nature and status thereof and what action it proposes to take
with respect thereto, (iii) that, to the best of such officer's knowledge, each
related sub-servicer has fulfilled its obligations under its sub-servicing
agreement in all material respects, or, if there has been a material default in
the fulfillment of such obligations, specifying each such default known to such
officer and the nature and status thereof, and (iv) whether it has received any
notice regarding qualification, or challenging the status, of the Upper-Tier
REMIC or Lower-Tier REMIC as a REMIC from the IRS or any other governmental
agency or body.
SECTION 3.15. Annual Independent Public Accountants' Servicing Report.
On or before March 15 of each year, beginning with March 15, 1998, the
Servicer and the Special Servicer (the "reporting person") each at the reporting
person's expense shall cause a firm of nationally recognized Independent public
accountants (who may also render other services to the reporting person) which
is a member of the American Institute of Certified Public Accountants to furnish
a statement (an "Accountant's Statement") to the Trustee, the Depositor and to
the Rating Agencies, to the effect that such firm has examined certain documents
and records relating to the servicing of the similar mortgage loans under
similar agreements and that, on the basis of such examination conducted
substantially in compliance with generally accepted auditing standards and the
Uniform Single Attestation Program for Mortgage Bankers or the Audit Program for
Mortgages serviced for FHLMC, such servicing has been conducted in compliance
with similar agreements except for such significant exceptions or errors in
records that, in the opinion of such firm, generally accepted auditing standards
and the Uniform Single Attestation Program for Mortgage Bankers or the Audit
Program for Mortgages serviced for FHLMC require it to report, in which case
such exceptions and errors shall be so reported. Each reporting person shall
obtain from the related accountants, or shall prepare, an electronic version of
each Accountant's Statement and provide such electronic version to the Trustee
for filing in accordance with the procedures set forth in Section 3.22 hereof.
With respect to any electronic version of an Accountant's Statement prepared by
the reporting person, the reporting person shall receive written confirmation
from the related accountants that such electronic version is a conformed copy of
the original Accountant's Statement.
SECTION 3.16. Access to Certain Documentation.
The Servicer and Special Servicer shall provide to any Certificateholders
that are federally insured financial institutions, the Federal Reserve Board,
the FDIC and the OTS and the supervisory agents and examiners of such boards and
such corporations, and any other governmental or regulatory body to the
jurisdiction of which any Certificateholder is subject, access to the
documentation regarding the Mortgage Loans required by applicable regulations of
the Federal Reserve Board, FDIC, OTS or any such governmental or regulatory
body, such access being afforded without charge but only upon reasonable request
and during normal business hours at the offices of the Servicer or Special
Servicer. Nothing in this Section 3.16 shall detract from the obligation of the
Servicer and Special Servicer to observe any applicable law prohibiting
disclosure of information with respect to the Borrowers, and the failure of the
Servicer and Special Servicer to provide access as provided in this Section 3.16
as a result of such obligation shall not constitute a breach of this Section
3.16.
SECTION 3.17. Title and Management of REO Properties
and REO Account Properties.
(a) In the event that title to any Mortgaged Property is acquired for the
benefit of Certificateholders in foreclosure, by deed in lieu of foreclosure or
upon abandonment or reclamation from bankruptcy, the deed or certificate of sale
shall be taken in the name of the Trustee, or its nominee (which shall not
include the Servicer), or a separate trustee or co-trustee, on behalf of the
Trust Fund. The Special Servicer, on behalf of the Trust Fund, shall dispose of
any REO Property within two years after the Trust Fund acquires ownership of
such REO Property for purposes of Section 860G(a)(8) of the Code, unless (i) the
Special Servicer on behalf of the Lower-Tier REMIC has applied for an extension
of such two-year period pursuant to Sections 856(e)(3) and 860G(a)(8)(A) of the
Code, in which case the Special Servicer shall sell such REO Property within the
applicable extension period or (ii) the Special Servicer seeks and subsequently
receives an Opinion of Counsel (which opinion shall be an expense of the Trust
Fund), addressed to the Special Servicer and Trustee, to the effect that the
holding by the Trust Fund of such REO Property for an additional specified
period will not cause such REO Property to fail to qualify as "foreclosure
property" within the meaning of Section 860G(a)(8) of the Code (determined
without regard to the exception applicable for purposes of Section 860D(a) of
the Code) at any time that any Certificate is outstanding, in which event such
two-year period shall be extended by such additional specified period subject to
any conditions set forth in such Opinion of Counsel. The Special Servicer, on
behalf of the Trust Fund, shall dispose of any REO Property held by the Trust
Fund prior to the last day of such period (taking into account extensions) by
which such REO Property is required to be disposed of pursuant to the provisions
of the immediately preceding sentence in a manner provided under Section 3.18
hereof. The Special Servicer shall manage, conserve, protect and operate each
REO Property for the Certificateholders solely for the purpose of its prompt
disposition and sale in a manner which does not cause such REO Property to fail
to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of
the Code (determined without regard to the exception applicable for purposes of
Section 860D(a)).
(b) The Special Servicer shall have full power and authority, subject only
to the specific requirements and prohibitions of this Agreement, to do any and
all things in connection with any REO Property as are consistent with the manner
in which the Special Servicer manages and operates similar property owned or
managed by the Special Servicer or any of its Affiliates, all on such terms and
for such period as the Special Servicer deems to be in the best interests of
Certificateholders, and, in connection therewith, the Special Servicer shall
agree to the payment of management fees that are consistent with general market
standards. Consistent with the foregoing, the Special Servicer shall cause or
permit to be earned with respect to such REO Property any "net income from
foreclosure property," within the meaning of Section 860G(c) of the Code, which
is subject to tax under the REMIC Provisions only if it has determined, and has
so advised the Trustee in writing, that the earning of such income on a net
after-tax basis could reasonably be expected to result in a greater recovery on
behalf of Certificateholders than an alternative method of operation or rental
of such REO Property that would not be subject to such a tax. The Special
Servicer shall segregate and hold all revenues received by it with respect to
any REO Property separate and apart from its own funds and general assets and
shall establish and maintain with respect to any REO Property a segregated
custodial account (each, an "REO Account"), each of which shall be an Eligible
Account and shall be entitled "LaSalle National Bank, as Trustee, in trust for
Holders of Asset Securitization Corporation, Commercial Mortgage Pass-Through
Certificates, Series 1997-D4, REO Account." The Special Servicer shall be
entitled to withdraw for its account any interest or investment income earned on
funds deposited in an REO Account to the extent provided in Section 3.07(b). The
Special Servicer shall deposit or cause to be deposited in the REO Account
within one Business Day after receipt all revenues received by it with respect
to any REO Property (other than Liquidation Proceeds), and shall withdraw
therefrom funds necessary for the proper operation, management and maintenance
of such REO Property and for other Property Protection Expenses with respect to
such REO Property, including:
(i) all insurance premiums due and payable in respect of any REO Property;
(ii) all real estate taxes and assessments in respect of any REO Property
that may result in the imposition of a lien thereon;
(iii) all costs and expenses reasonable and necessary to protect, maintain,
manage, operate, repair and restore any REO Property; and
(iv) any taxes imposed on the Upper Tier REMIC or Lower-Tier REMIC in
respect of net income from foreclosure property in accordance with
Section 4.05.
To the extent that such REO Proceeds are insufficient for the purposes set
forth in clauses (i) through (iii) above and the Special Servicer has provided
written notice of such shortfall to the Servicer at least five Business Days
prior to the date that such amounts are due, the Servicer shall advance the
amount of such shortfall unless the Servicer determines, in its good faith
judgment, that such Advance would be a Nonrecoverable Advance. If the Servicer
does not make any such Advance in violation of the immediately preceding
sentence, the Trustee shall make such Advance; and if the Trustee fails to make
any such Advance, the Fiscal Agent shall make such Advance, unless in either
case, the Trustee or the Fiscal Agent determines that such Advance would be a
Nonrecoverable Advance. The Trustee and the Fiscal Agent shall be entitled to
rely, conclusively, on any determination by the Servicer that an Advance, if
made, would be a Nonrecoverable Advance. The Trustee and the Fiscal Agent, in
determining whether or not a proposed Advance would be a Nonrecoverable Advance,
shall be subject to the standards applicable to the Servicer hereunder. The
Servicer, the Trustee or the Fiscal Agent, as applicable, shall be entitled to
reimbursement of such Advances (with interest at the Advance Rate) made pursuant
to the preceding sentence, to the extent set forth in Section 3.06. The Special
Servicer shall withdraw from each REO Account and remit to the Servicer for
deposit into the Collection Account on a monthly basis prior to or on the
related Due Date the Net REO Proceeds received or collected from each REO
Property, except that in determining the amount of such Net REO Proceeds, the
Special Servicer may retain in each REO Account reasonable reserves for repairs,
replacements and necessary capital improvements and other related expenses.
Notwithstanding the foregoing, the Special Servicer shall not:
(i) permit the Trust Fund to enter into, renew or extend any New Lease, if
the New Lease by its terms will give rise to any income that does not
constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New Lease, other
than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on any REO Property, other than
the repair or maintenance thereof or the completion of a building or
other improvement thereon, and then only if more than ten percent of
the construction of such building or other improvement was completed
before default on the related Mortgage Loan became imminent, all
within the meaning of Section 856(e)(4)(B) of the Code; or
(iv) Directly Operate or allow any Person to Directly Operate any REO
Property on any date more than 90 days after its date of acquisition
by the Trust Fund, unless such Person is an Independent Contractor;
unless, in any such case, the Special Servicer has requested and received an
Opinion of Counsel addressed to the Special Servicer and the Trustee (which
opinion shall be an expense of the Trust Fund) to the effect that such action
will not cause such REO Property to fail to qualify as "foreclosure property"
within the meaning of Section 860G(a)(8) of the Code (determined without regard
to the exception applicable for purposes of Section 860D(a) of the Code) at any
time that it is held by the Trust Fund, in which case the Special Servicer may
take such actions as are specified in such Opinion of Counsel.
The Special Servicer shall be required to contract with an Independent
Contractor (acceptable to each Rating Agency as evidenced by written
confirmation that contracting with such Independent Contractor would not, in and
of itself cause a downgrade, qualification or withdrawal of the then current
ratings assigned to any Class of Certificates), the fees and expenses of which
shall be an expense of the Trust Fund and payable out of REO Proceeds, for the
operation and management of any REO Property, within 90 days of the Trust Fund's
acquisition thereof (unless the Special Servicer shall have provided the Trustee
with an Opinion of Counsel that the operation and management of any REO Property
other than through an Independent Contractor shall not cause such REO Property
to fail to qualify as "foreclosure property" within the meaning of Code Section
860G(a)(8)) (which opinion shall be an expense of the Trust Fund), provided
that:
(i) the terms and conditions of any such contract shall be reasonable and
customary for the area and type of property and shall not be
inconsistent herewith;
(ii) any such contract shall require, or shall be administered to require,
that the Independent Contractor pay all costs and expenses incurred in
connection with the operation and management of such REO Property,
including those listed above, and remit all related revenues (net of
such costs and expenses) to the Special Servicer as soon as
practicable, but in no event later than thirty days following the
receipt thereof by such Independent Contractor;
(iii) none of the provisions of this Section 3.17(b) relating to any such
contract or to actions taken through any such Independent Contractor
shall be deemed to relieve the Special Servicer of any of its duties
and obligations to the Trust Fund or the Trustee on behalf of the
Certificateholders with respect to the operation and management of any
such REO Property; and
(iv) the Special Servicer shall be obligated with respect thereto to the
same extent as if it alone were performing all duties and obligations
in connection with the operation and management of such REO Property.
The Special Servicer shall be entitled to enter into any agreement with any
Independent Contractor performing services for it related to its duties and
obligations hereunder for indemnification of the Special Servicer by such
Independent Contractor, and nothing in this Agreement shall be deemed to limit
or modify such indemnification.
(c) Promptly following any acquisition by the Trust Fund of an REO
Property, the Special Servicer shall notify the Servicer thereof, and, upon
receipt of such notice, the Servicer shall obtain an Updated Appraisal thereof,
but only in the event that any Updated Appraisal with respect thereto is more
than 12 months old, in order to determine the fair market value of such REO
Property and shall notify the Depositor, the Special Servicer and the Trustee
hereto of the results of such appraisal. Any such appraisal shall be conducted
in accordance with MAI standards and the cost thereof shall be an expense of the
Trust Fund. The Servicer shall obtain a new Updated Appraisal or a letter update
every 12 months thereafter.
(d) When and as necessary, the Special Servicer shall send to the Trustee a
statement prepared by the Special Servicer setting forth the amount of net
income or net loss, as determined for federal income tax purposes, resulting
from the operation and management of a trade or business on, the furnishing or
rendering of a non-customary service to the tenants of, or the receipt of any
other amount not constituting Rents from Real Property in respect of, any REO
Property in accordance with Sections 3.17(a) and 3.17(b).
SECTION 3.18. Sale of Specially Serviced Mortgage Loans
and REO Properties.
(a) With respect to any Specially Serviced Mortgage Loan or REO Property
which the Special Servicer has determined to sell in accordance with Section
3.10, the Special Servicer shall deliver to the Trustee an Officers' Certificate
to the effect that pursuant to Section 3.10, the Special Servicer has determined
to sell such Specially Serviced Mortgage Loan or REO Property in accordance with
this Section 3.18. The Special Servicer may then offer to sell to any Person any
Specially Serviced Mortgage Loan or any REO Property or, subject to the
following sentence, purchase any such Specially Serviced Mortgage Loan or REO
Property (in each case at the Repurchase Price therefor), but shall, in any
event, so offer to sell any REO Property no later than the time determined by
the Special Servicer to be sufficient to result in the sale of such REO Property
within the period specified in Section 3.17(a). The Special Servicer shall
deliver such Officers' Certificate and give the Trustee not less than ten
Business Days prior written notice of its intention to sell any Specially
Serviced Mortgage Loan or REO Property, in which case the Special Servicer shall
accept the highest offer (of at least three offers) received from any Person for
any Specially Serviced Mortgage Loan or any REO Property in an amount at least
equal to the Repurchase Price therefor or, at its option, if it has received no
offer at least equal to the Repurchase Price therefor, purchase the Specially
Serviced Mortgage Loan or REO Property at the Repurchase Price.
In the absence of any such offer or purchase by the Special Servicer, the
Special Servicer shall accept the highest offer received from any Person that is
determined by the Special Servicer to be a fair price, as determined in
accordance with Section 3.18(b), for such Specially Serviced Mortgage Loan or
REO Property, if the highest offeror is a Person other than an Interested
Person, or is determined to be a fair price by the Trustee in accordance with
Section 3.18(b), if the highest offeror is an Interested Person; provided, that
the Trustee shall be entitled to engage, at the expense of the Trust Fund, an
Independent appraiser to determine whether the highest offer is a fair price
and, further provided, that if the highest offeror is an Interested Person such
offer shall not be accepted if it is less than the Repurchase Price, unless the
Rating Agencies have confirmed, in writing, that such acceptance will not, in
itself, result in the qualification, downgrade or withdrawal of the then-current
ratings assigned to the Certificates. Notwithstanding anything to the contrary
herein, neither the Trustee, in its individual capacity, nor any of its
Affiliates may make an offer or purchase any Specially Serviced Mortgage Loan or
any REO Property pursuant hereto.
The Special Servicer shall not be obligated by either of the foregoing
paragraphs or otherwise to accept the highest offer if the Special Servicer
determines, in accordance with the Servicing Standard, that rejection of such
offer would be in the best interests of the Certificateholders. In addition, the
Special Servicer may accept a lower offer if it determines, in accordance with
the Servicing Standard, that acceptance of such offer would be in the best
interests of the Certificateholders (for example, if the prospective buyer
making the lower offer is more likely to perform its obligations, or the terms
offered by the prospective buyer making the lower offer are more favorable),
provided that the offeror is not an Affiliate of the Special Servicer. In the
event that the Special Servicer determines with respect to any REO Property that
the offers being made with respect thereto are not in the best interests of the
Certificateholders and that the end of the two-year period referred to in
Section 3.17(a) with respect to such REO Property is approaching, the Special
Servicer shall seek an extension of such two-year period in the manner described
in Section 3.17(a); provided, however, that the Special Servicer shall use its
best efforts, consistent with the Servicing Standard, to sell any REO Property
prior to the Rated Final Distribution Date.
(b) In determining whether any offer received from an Interested Person
represents a fair price for any Specially Serviced Mortgage Loan or any REO
Property, the Trustee may conclusively rely on the opinion of an Independent
appraiser or other Independent expert in real estate matters retained by the
Trustee at the expense of the Trust Fund. In determining whether any offer
constitutes a fair price for any Specially Serviced Mortgage Loan or any REO
Property, the Special Servicer (if the highest offeror is not an Interested
Person) or the Trustee (or, if applicable, such appraiser) shall take into
account, and any appraiser or other expert in real estate matters shall be
instructed to take into account, as applicable, among other factors, any Updated
Appraisal previously obtained, the period and amount of any delinquency on the
affected Specially Serviced Mortgage Loan, the physical (including
environmental) condition of the related Mortgaged Property or such REO Property,
the state of the local economy and the Trust Fund's obligation to dispose of any
REO Property within the time period specified in Section 3.17(a).
(c) Subject to the provisions of Section 3.17, the Special Servicer shall
act on behalf of the Trust Fund in negotiating and taking any other action
necessary or appropriate in connection with the sale of any Specially Serviced
Mortgage Loan or REO Property, including the collection of all amounts payable
in connection therewith. Any sale of a Specially Serviced Mortgage Loan or any
REO Property shall be without recourse to, or representation or warranty by, the
Trustee, the Fiscal Agent, the Depositor, the Servicer, the Special Servicer or
the Trust Fund (except that any contract of sale and assignment and conveyance
documents may contain customary warranties of title, so long as the only
recourse for breach thereof is to the Trust Fund), and, if such sale is
consummated in accordance with the duties of the Special Servicer, the Servicer,
the Depositor, the Fiscal Agent and the Trustee pursuant to the terms of this
Agreement, no such Person who so performed shall have any liability to the Trust
Fund or any Certificateholder with respect to the purchase price therefor
accepted by the Special Servicer or, if the offeror is an Interested Person, the
Servicer (or the Trustee, if the Servicer is an offeror).
(d) The Special Servicer shall file information returns regarding the
abandonment or foreclosure of Mortgaged Properties with the IRS at the time and
in the manner required by the Code.
(e) The proceeds of any sale after deduction of the expenses of such sale
incurred in connection therewith shall be promptly, and in any event within one
Business Day following receipt thereof, deposited in the Collection Account in
accordance with Section 3.05(a)(iv).
SECTION 3.19. Additional Obligations of the Servicer and Special
Servicer; Inspections.
(a) The Servicer (or, with respect to Specially Serviced Mortgage Loans and
REO Properties, the Special Servicer) shall inspect or cause to be inspected (at
its own expense) each Mortgaged Property at such times and in such manner as are
consistent with the Servicing Standard, but in any event shall inspect each
Mortgaged Property with an Allocated Loan Amount of (A) $2,000,000 or more at
least once every 12 months and (B) less than $2,000,000 at least once every 24
months, in each case commencing in May 1997 (or at such lesser frequency as each
Rating Agency shall have confirmed in writing to the Servicer, will not result a
downgrade, qualification or withdrawal of the then current ratings assigned to
any Class of the Certificates) and (C) if the Mortgage Loan (i) becomes a
Specially Serviced Mortgage Loan, (ii) has a debt service coverage ratio of less
than 1.0 or (iii) is delinquent for 60 days, each related Mortgaged Property
shall be inspected by the Special Servicer as soon as practicable and thereafter
at least every 12 months for so long as such condition exists. The Servicer or
Special Servicer, as applicable, shall send to the Rating Agencies, within 20
days of completion, each inspection report.
(b) With respect to each Mortgage Loan, the Servicer (or the Special
Servicer, in the case of a Specially Serviced Mortgage Loan) shall enforce the
Trustee's rights with respect to the Manager under the related Loan Documents
and Management Agreement, provided, that, if such right accrues under the
related Loan Documents or Management Agreement only because of the occurrence of
the related Anticipated Repayment Date, if any, the Servicer (or Special
Servicer, if applicable) shall irrevocably waive such right with respect to such
date. In the event the Servicer (or Special Servicer, as applicable) is entitled
to terminate the Manager, the Servicer (or Special Servicer, as applicable)
shall promptly give notice to the Trustee (who shall copy the
Certificateholders), the Originator, the Depositor, and each Rating Agency.
After receipt of such notice, the most subordinate Class of Certificates then
outstanding shall have the right to recommend termination of the Manager, and if
so, to recommend a Successor Manager (meeting the requirements set forth below).
Certificateholders representing Percentage Interests of greater than 50% of such
subordinate Class of Certificates will have ten Business Days from the receipt
of such notice to respond to such notice. Upon receipt of a recommendation to
terminate the Manager and appoint a Successor Manager, the Servicer (or Special
Servicer, as applicable) shall give notice of such recommendation to the Trustee
(who shall copy the Certificateholders), and the Servicer (or Special Servicer,
as applicable) shall effect such recommendation unless: (i) within five Business
Days of the receipt of notice of such recommendation, Certificateholders
representing Percentage Interests of greater than 50% of any Class of
Certificates then outstanding which was assigned a rating by any Rating Agency
on the Closing Date reject such proposed Successor Manager in which case the
Servicer (or Special Servicer, as applicable) shall procure a Successor Manager
as set forth in the following sentence; or (ii) the Servicer (or Special
Servicer, as applicable) determines that effecting such recommendation to
terminate is not consistent with the Servicing Standard, the Servicer (or
Special Servicer, as applicable) shall only effect such recommendation if within
30 days of giving notice to all other Holders the Servicer (or Special Servicer,
as applicable) has not received a rejection of such recommendation from Holders
of Certificates representing Voting Rights of greater than 50% of any Class of
Certificates then outstanding which is assigned a rating by any Rating Agency on
the Closing Date. If the Servicer (or Special Servicer, as applicable) does not
receive a required response (or if the response received is inconsistent) or in
the event a Manager is otherwise terminated or resigns under the related
Mortgage or Management Agreement and the related Borrower does not appoint a
Successor Manager, the Servicer (or Special Servicer, as applicable) shall use
its best efforts to retain a Successor Manager (or the recommended Successor
Manager, if any) on terms substantially similar to the Management Agreement or,
failing that, on terms as favorable to the Trust Fund as can reasonably be
obtained by the Servicer (or Special Servicer, as applicable). For the purposes
of this paragraph, a "Successor Manager" shall be reasonably acceptable to the
Servicer (or Special Servicer, as applicable) and a professional management
corporation or business entity which (i) manages, and is experienced in
managing, other comparable commercial properties, (ii) will not result in a
downgrade, qualification or withdrawal of the then current ratings assigned to
the Certificates by each of Fitch, Xxxxx'x and S&P, and, if the Mortgage Loan
represents greater than 2% of the aggregate Stated Principal Balances of the
Mortgage Loan, DCR and (iii) otherwise satisfies any criteria set forth in the
Mortgage and related documents.
SECTION 3.20. Authenticating Agent.
The Trustee may appoint an Authenticating Agent to execute and to
authenticate Certificates. The Authenticating Agent must be acceptable to the
Depositor and the Servicer and must be a corporation organized and doing
business under the laws of the United States of America or any state, having a
principal office and place of business in a state and city acceptable to the
Depositor and the Servicer, having a combined capital and surplus of at least
$15,000,000, authorized under such laws to do a trust business and subject to
supervision or examination by federal or state authorities. The Trustee shall
serve as the initial Authenticating Agent and the Trustee hereby accepts such
appointment.
Any corporation into which the Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Authenticating Agent
shall be party, or any corporation succeeding to the corporate agency business
of the Authenticating Agent, shall be the Authenticating Agent without the
execution or filing of any paper or any further act on the part of the Trustee
or the Authenticating Agent.
The Authenticating Agent may at any time resign by giving at least 30 days'
advance written notice of resignation to the Trustee, the Depositor and the
Servicer. The Trustee may at any time terminate the agency of the Authenticating
Agent by giving written notice of termination to the Authenticating Agent, the
Depositor and the Servicer. Upon receiving a notice of resignation or upon such
a termination, or in case at any time the Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section 3.20, the Trustee
promptly shall appoint a successor Authenticating Agent, which shall be
acceptable to the Servicer and the Depositor, and shall mail notice of such
appointment to all Certificateholders. Any successor Authenticating Agent upon
acceptance of its appointment hereunder shall become vested with all the rights,
powers, duties and responsibilities of its predecessor hereunder, with like
effect as if originally named as Authenticating Agent herein. No successor
Authenticating Agent shall be appointed unless eligible under the provisions of
this Section 3.20.
The Authenticating Agent shall have no responsibility or liability for any
action taken by it as such at the direction of the Trustee. Any reasonable
compensation paid to the Authenticating Agent shall be an unreimbursable expense
of the Trustee.
SECTION 3.21. Appointment of Custodians.
The Trustee may appoint one or more Custodians to hold all or a portion of
the Mortgage Files as agent for the Trustee, by entering into a Custodial
Agreement. The Trustee agrees to comply with the terms of each Custodial
Agreement and to enforce the terms and provisions thereof against the Custodian
for the benefit of the Certificateholders. Each Custodian shall be a depository
institution subject to supervision by federal or state authority, shall have a
combined capital and surplus of at least $10,000,000, shall have a long-term
debt rating of at least "BBB" from Fitch, S&P and DCR and "Baa2" from Xxxxx'x ,
unless the Trustee shall have received prior written confirmation from each
Rating Agency that the appointment of such Custodian would not cause such Rating
Agency to withdraw, qualify or downgrade any of its then-current ratings on the
Certificates, and shall be qualified to do business in the jurisdiction in which
it holds any Mortgage File. Each Custodial Agreement may be amended only as
provided in Section 10.07. Any reasonable compensation paid to the Custodian
shall be an unreimbursable expense of the Trustee. The Trustee shall serve as
the initial Custodian. The Custodian shall be deemed to have complied with this
provision if one of its respective Affiliates has such fidelity bond coverage
and, by the terms of such fidelity bond, the coverage afforded thereunder
extends to the Custodian. In addition, the Custodian shall keep in force during
the term of this Agreement a policy or policies of insurance covering loss
occasioned by the errors and omissions of its officers and employees in
connection with its obligations hereunder in the form and amount that are
customary for securitizations similar to the securitization evidenced by this
Agreement, with the Trustee named as loss payee. All fidelity bonds and policies
of errors and omissions insurance obtained under this Section 3.21 shall be
issued by a Qualified Insurer.
SECTION 3.22. Reports to the Securities and Exchange
Commission; Available Information.
(a) The Servicer shall prepare and sign, on behalf of the Depositor, any
and all Exchange Act Reports; provided, however, that (i) the Depositor shall
prepare, sign and file with the Commission the initial Form 8-K relating to the
Trust Fund and (ii) the Special Servicer shall prepare and sign on behalf of the
Depositor any Exchange Act Report which includes an Annual Compliance Report
relating to the Special Servicer. Each Exchange Act Report consisting of a
monthly Distribution Date Statement, Comparative Financial Status Report,
Delinquent Loan Status Report, Historical Loss Estimate Report, Historical Loan
Modification Report, REO Status Report, Operating Statement Analysis, NOI
Adjustment Worksheet, Watch List, or report pursuant to Section 4.02(b)(i) shall
be prepared as an exhibit or exhibits to a Form 8-K. Each Exchange Act Report
consisting of an Annual Compliance Report shall be prepared as exhibits to an
Annual Report on Form 10-K and shall identify the aggregate number of Holders of
Public Certificates and Direct Participants holding positions in Public
Certificates as of December 31 (or the nearest Business Day if such date is not
a Business Day) of the related year based on information provided by the
Trustee. The Trustee shall provide the Servicer and the Special Servicer with a
list of Certificateholders and Direct Participants holding Public Certificates
as of December 31 of the related year no later than two Business Days prior to
the date on which the Servicer or Special Servicer, as applicable, is required
to deliver the related Exchange Act Report to the Trustee. For each Exchange Act
Report, the Servicer or the Special Servicer, as applicable, shall prepare (i) a
manually-signed paper version of such report and (ii) an electronic version of
such report, which version shall be prepared as a Microsoft Word for Windows
file (or in such other format as the Trustee, the Depositor and the Servicer or
the Special Servicer may agree), provided, that, with respect to the electronic
version of each Exchange Act Report consisting of a monthly Distribution Date
Statement, the Servicer need only deliver an electronic version of the related
Form 8-K and the Trustee shall attach an electronic version of the related
monthly Distribution Date Statement thereto as an exhibit. Exchange Act Reports
consisting of (i) a monthly Distribution Date Statement shall be filed within
ten days after the related Distribution Date; (ii) a Comparative Financial
Status Report, Delinquent Loan Status Report, Historical Loss Estimate Report,
Historical Loan Modification Report, REO Status Report, Operating Statement
Analysis, NOI Adjustment Worksheet, Watch List, or report pursuant to Section
4.02(b)(i) shall be filed within ten days after each Distribution Date; and
(iii) an Annual Compliance Report shall be filed on or prior to March 15 of each
calendar year. Electronic versions of each Exchange Act Report shall be
delivered to the Trustee on a computer diskette (delivered by courier in
packaging designed to shield such diskette from damage in transmission) or by
means of electronic data transfer system mutually agreed upon by the Trustee and
the Servicer or Special Servicer. The Trustee shall forward each Exchange Act
Report to the Depositor in a manner and in a format agreed upon by the Trustee
and the Depositor. Manually-signed copies of each Exchange Act Report shall be
delivered to the Depositor to the attention of Xxxxxxx Xxxxxx (or such other
Persons as are designated in writing by the Depositor), with a copy to the
Trustee.
If information for any Exchange Act Report is incomplete by the date on
which such report is required to be filed under the Exchange Act, the Servicer
or, with respect to any Annual Compliance Report relating to the Special
Servicer, the Special Servicer shall prepare and execute a Form 12b-25 under the
Exchange Act and shall deliver an electronic version of such form to the Trustee
for forwarding to the Depositor as provided above. The Servicer or the Special
Servicer, as applicable, shall deliver the related report in electronic form to
the Trustee when such information is available and such completed report shall
be forwarded electronically by the Trustee to the Depositor.
None of the Servicer, the Special Servicer and the Trustee shall (i) file a
Form ID with respect to the Depositor or (ii) cause the Trust Fund to stop
filing reports, statements and information with the Commission pursuant to this
Section unless directed to do so by the Depositor or the continued reporting is
prohibited under the Exchange Act or any regulations thereunder. Upon the
written request of the Depositor, the Servicer shall file a Form 15 relating to
the Trust Fund with the Commission and send a copy thereof to the Trustee and
the Depositor.
The Trustee shall solicit any and all proxies of the Certificateholders
whenever such proxies are required to be solicited pursuant to the Exchange Act.
(b) [Intentionally left blank].
(c) The Servicer shall, in accordance with such reasonable rules and
procedures as it may adopt (which may include the requirement that an agreement
that provides that such information shall be used solely for purposes of
evaluating the investment characteristics of the Certificates be executed to the
extent the Servicer deems such action to be necessary or appropriate), also make
available any additional information relating to the Mortgage Loans, the
Mortgaged Properties or the Borrowers, for review by the Depositor, the Rating
Agencies and any other Persons to whom the Servicer believes such disclosure is
appropriate, in each case except to the extent doing so is prohibited by
applicable law or by any related Loan Documents related to a Mortgage Loan.
(d) [Intentionally left blank].
The Servicer and the Special Servicer shall make available at its offices
during normal business hours, or send to the requesting party at the expense of
each such requesting party (other than the Rating Agencies and the Depositor)
for review by the Depositor, the Trustee, the Rating Agencies, any
Certificateholder, any Person identified to the Servicer or the Special
Servicer, as applicable, by a Certificateholder as a prospective transferee of a
Certificate and any other Persons to whom the Servicer or the Special Servicer,
as applicable, believes such disclosure to be appropriate the following items:
(i) all financial statements, occupancy information, rent rolls, retail sales
information, average daily room rates and similar information received by the
Servicer or the Special Servicer, as applicable, from each Borrower, (ii) the
inspection reports prepared by or on behalf of the Servicer or the Special
Servicer, as applicable, in connection with the property inspections pursuant to
Section 3.19, (iii) any and all modifications, waivers and amendments of the
terms of a Mortgage Loan entered into by the Servicer or the Special Servicer,
as applicable and (iv) any and all officer's certificates and other evidence
delivered to the Trustee and the Depositor to support the Servicer's
determination that any Advance was, or if made would be, a Nonrecoverable
Advance. Copies of any and all of the foregoing items shall be available from
the Servicer or the Special Servicer, as applicable, or the Trustee, as
applicable, upon request. However, all such items set forth in (i)-(iv) shall be
delivered to DCR without request (and, to the extent available, electronically),
except that, with respect to clause (i), only annual reports and statements
shall be sent without request.
(e) Notwithstanding the obligations of the Servicer set forth in the
preceding provisions of this Section 3.22, the Servicer may withhold any
information not yet included in a Form 8-K filed with the Commission or
otherwise made publicly available with respect to which the Trustee or the
Servicer has determined that such withholding is appropriate.
(f) Notwithstanding any provisions in this Agreement to the contrary, the
Trustee shall not be required to review the content of any Exchange Act Report
for compliance with applicable securities laws or regulations, completeness,
accuracy or otherwise, and the Trustee shall have no liability with respect to
any Exchange Act Report filed with the Commission or delivered to
Certificateholders. None of the Servicer, the Special Servicer and the Trustee
shall be responsible for the accuracy or completeness of any information
supplied by a Borrower or a third party for inclusion in any Form 8-K, and each
of the Servicer, the Special Servicer and the Trustee 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 any statement or omission or
alleged statement or omission therein. None of the Trustee, the Special Servicer
and the Servicer shall have any responsibility or liability with respect to any
Exchange Act Report filed by the Depositor, and each of the Servicer, the
Special Servicer and the Trustee 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 any statement or omission or alleged statement or
omission therein.
SECTION 3.23. Lock-Box Accounts, Cash Collateral Accounts,
Escrow Accounts and Reserve Accounts.
The Servicer shall administer each Lock-Box Account, Cash Collateral
Account, Escrow Account and Reserve Account in accordance with the related
Mortgage or Loan Agreement, Cash Collateral Account Agreement or Lock-Box
Agreement, if any.
SECTION 3.24. Property Advances.
(a) The Servicer (or, to the extent provided in Section 3.24(b), the
Trustee or the Fiscal Agent or to the extent specifically provided for in this
Agreement, the Special Servicer) shall make any Property Advances as and to the
extent otherwise required pursuant to the terms hereof. For purposes of
distributions to Certificateholders and compensation to the Servicer, Special
Servicer or Trustee, Property Advances shall not be considered to increase the
principal balance of any Mortgage Loan, notwithstanding that the terms of such
Mortgage Loan so provide.
(b) The Servicer shall notify the Trustee and the Fiscal Agent, and the
Special Servicer shall notify the Servicer, the Trustee and the Fiscal Agent, in
writing promptly upon, and in any event within one Business Day after, becoming
aware that it will be unable to make any Property Advance required to be made
pursuant to the terms hereof, and in connection therewith, shall set forth in
such notice the amount of such Property Advance, the Person to whom it will be
paid, and the circumstances and purpose of such Property Advance, and shall set
forth therein information and instructions for the payment of such Property
Advance, and, on the date specified in such notice for the payment of such
Property Advance, or, if the date for payment has passed or if no such date is
specified, then within five Business Days following such notice, the Trustee (or
with respect to a Property Advance required to be made by the Special Servicer,
the Servicer, and if the Servicer so fails, the Trustee), subject to the
provisions of Section 3.24(c), shall pay the amount of such Property Advance in
accordance with such information and instructions. If the Trustee fails to make
any Property Advance required to be made under this Section 3.24, the Fiscal
Agent, subject to the provisions of Section 3.24(c), shall make such Advance on
the same day the Trustee was required to make such Property Advance and,
thereby, the Trustee shall not be in default under this Agreement.
(c) None of the Servicer, the Trustee, the Fiscal Agent or the Special
Servicer shall be obligated to make a Property Advance as to any Mortgage Loan
or REO Property if the Servicer, the Trustee, the Fiscal Agent or the Special
Servicer, as applicable, determines that such Advance will be a Nonrecoverable
Advance. The Trustee and the Fiscal Agent (or the Servicer with respect to a
Property Advance required to be made by the Special Servicer) shall be entitled
to rely, conclusively, on any determination by the Servicer or Special Servicer,
as applicable, that a Property Advance, if made, would be a Nonrecoverable
Advance. The Trustee and the Fiscal Agent, in determining whether or not a
Property Advance previously made is, or a proposed Property Advance, if made,
would be, a Nonrecoverable Advance shall be subject to the standards applicable
to the Servicer hereunder.
(d) The Servicer, the Special Servicer, the Trustee and/or the Fiscal
Agent, as applicable, shall be entitled to the reimbursement of Property
Advances made by any of them to the extent permitted pursuant to Section
3.06(ii) of this Agreement, together with any related Advance Interest Amount in
respect of such Property Advances, and the Servicer and Special Servicer hereby
covenant and agree to promptly seek and effect the reimbursement of such
Property Advances from the related Borrowers to the extent permitted by
applicable law and the related Loan Documents.
SECTION 3.25. Appointment of Special Servicer.
(a) The Servicer is hereby appointed as the initial Special Servicer to
service each Specially Serviced Mortgage Loan.
(b) Certificateholders representing greater than 50% of the Percentage
Interests of the most subordinate Class of Certificates outstanding at any time
shall be entitled to remove the Special Servicer with or without cause and to
appoint a successor Special Servicer, provided that each Rating Agency confirms
to the Trustee in writing that such appointment, in and of itself, would not
have caused a downgrade, qualification or withdrawal of the then current ratings
assigned to any Class of Certificates. If there is a Special Servicer Event of
Default, the Special Servicer shall be removed and replaced pursuant to Sections
7.01(c) and 7.02.
(c) The appointment of any such successor Special Servicer, shall not
relieve the Servicer, the Trustee or the Fiscal Agent of their respective
obligations to make Advances as set forth herein; provided, however, the
Servicer shall not be liable for any actions or any inaction of such successor
Special Servicer. Any termination fee payable to the terminated Special Servicer
(and it is acknowledged that there is no such fee payable in the event of a
termination of the Servicer as Special Servicer or in the event of a termination
for breach of this Agreement) shall be paid by the Certificateholders so
terminating the Special Servicer and shall not in any event be an expense of the
Trust Fund.
(d) No termination of the Special Servicer and appointment of a successor
Special Servicer shall be effective until the successor Special Servicer has
assumed all of its responsibilities, duties and liabilities hereunder pursuant
to a writing satisfactory to the Trustee and each Rating Agency, as evidenced in
writing, and the Trustee has received written confirmation from each Rating
Agency that such appointment would not cause any Rating Agency to qualify,
withdraw or downgrade any of its then current ratings on any Certificates. Any
successor Special Servicer shall make the representations and warranties
provided for in Section 2.04(a) mutatis mutandis.
SECTION 3.26. Transfer of Servicing Between Servicer and Special
Servicer; Record Keeping.
(a) Upon determining that any Mortgage Loan has become a Specially Serviced
Mortgage Loan, the Servicer shall immediately give notice thereof, to the
Special Servicer and shall use its best efforts to provide the Special Servicer
with all information, documents (but excluding the original documents
constituting the Mortgage File) 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 duties hereunder with respect thereto without acting through a
sub-servicer. The Servicer shall use its best efforts to comply with the
preceding sentence within five Business Days of the date such Mortgage Loan
became a Specially Serviced Mortgage Loan and in any event shall continue to act
as Servicer and administrator of such Mortgage Loan until the Special Servicer
has commenced the servicing of such Mortgage Loan, which shall occur upon the
receipt by the Special Servicer of the information, documents and records
referred to in the preceding sentence. With respect to each Mortgage Loan that
becomes a Specially Serviced Mortgage Loan, the Servicer shall instruct the
related Borrower to continue to remit all payments in respect of such Mortgage
Loan to the Servicer. If AMRESCO Management, Inc. ceases to be the Servicer or
the Special Servicer, respectively, the remaining party of the two and the
successor Servicer or Special Servicer, as applicable, may agree that,
notwithstanding the preceding sentence, with respect to each Mortgage Loan that
became a Specially Serviced Mortgage Loan, the Servicer shall instruct the
related Borrower to remit all payments in respect of such Mortgage Loan to the
Special Servicer, provided that the payee in respect of such payments shall
remain the Servicer. The Special Servicer shall remit to the Servicer any such
payments received by it pursuant to the preceding sentence within one Business
Day of receipt. The Servicer shall forward any notices it would otherwise send
to the Borrower of a Specially Serviced Mortgage Loan to the Special Servicer
who shall send such notice to the related Borrower.
Upon determining that no event has occurred and is continuing with respect
to a Mortgage Loan that causes such Mortgage Loan to be a Specially Serviced
Mortgage Loan, the Special Servicer shall immediately give notice thereof to the
Servicer, and upon giving such notice, such Mortgage Loan shall cease to be a
Specially Serviced Mortgage Loan in accordance with the first proviso of the
definition of Specially Serviced Mortgage Loan, the Special Servicer's
obligation to service such Mortgage Loan shall terminate and the obligations of
the Servicer to service and administer such Mortgage Loan as a Mortgage Loan
that is not a Specially Serviced Mortgage Loan shall resume. In addition, if the
related Borrower has been instructed, pursuant to the last sentence of the
preceding paragraph, to make payments to the Special Servicer, upon such
determination, the Special Servicer shall instruct the related Borrower to remit
all payments in respect of such Specially Serviced Mortgage Loan directly to the
Servicer.
(b) In servicing any Specially Serviced Mortgage Loan, the Special Servicer
shall provide to the Trustee originals of documents included within the
definition of "Mortgage File" for inclusion in the related Mortgage File (to the
extent such documents are in the possession of the Special Servicer) and copies
of any additional related Mortgage Loan information, including correspondence
with the related Borrower, and the Special Servicer shall promptly provide
copies of all of the foregoing to the Servicer as well as copies of any analysis
or internal review prepared by or for the benefit of the Special Servicer.
(c) Not later than the Business Day preceding each date on which the
Servicer is required to furnish a report under Section 3.13(a) to the Trustee,
the Special Servicer shall deliver to the Trustee, with a copy to the Servicer,
a written statement describing, on a Mortgage Loan by Mortgage Loan basis, (i)
the amount of all payments on account of interest received on each Specially
Serviced Mortgage Loan, the amount of all payments on account of principal,
including Principal Prepayments, on each Specially Serviced Mortgage Loan, the
amount of Net Insurance Proceeds and Net Liquidation Proceeds received with
respect to each Specially Serviced Mortgage Loan, and the amount of net income
or net loss, as determined from management of a trade or business on, the
furnishing or rendering of a non-customary service to the tenants of, or the
receipt of any rental income that does not constitute Rents from Real Property
with respect to the REO Property relating to each applicable Specially Serviced
Mortgage Loan, in each case in accordance with Section 3.17 and (ii) such
additional information relating to the Specially Serviced Mortgage Loans as the
Servicer or Trustee reasonably requests to enable it to perform its duties under
this Agreement.
(d) Notwithstanding the provisions of the preceding subsection (c), the
Servicer shall maintain ongoing payment records with respect to each of the
Specially Serviced Mortgage Loans and shall provide the Special Servicer with
any information reasonably required by the Special Servicer to perform its
duties under this Agreement. The Special Servicer shall provide the Servicer
with any information reasonably required by the Servicer to perform its duties
under this Agreement.
(e) The Servicer shall furnish to the Special Servicer a current copy of
any "watch list" that it maintains with respect to the Mortgage Loans.
SECTION 3.27. Interest Reserve Account.
(a) On each Servicer Remittance Date relating to any Interest Accrual
Period ending in any February and on any Servicer Remittance Date relating to
any Interest Accrual Period ending in any January which occurs in a year which
is not a leap year, the Servicer shall remit to the Trustee, in respect of the
Interest Reserve Loans, for deposit into the Interest Reserve Account, an amount
equal to one day's interest on the Stated Principal Balance of the Interest
Reserve Loans as of the Due Date occurring in the month preceding the month in
which such Servicer Remittance Date occurs at the related Mortgage Rate, to the
extent a full Monthly Payment or P&I Advance is made in respect thereof (all
amounts so deposited in any consecutive January and February, "Withheld
Amounts").
(b) On each Servicer Remittance Date occurring in March, the Servicer shall
withdraw from the Interest Reserve Account an amount equal to the Withheld
Amounts from the preceding January, if any, and February and deposit such amount
into the Distribution Account.
SECTION 3.28. Limitations on and Authorizations of the Servicer
and Special Servicer with Respect to Certain Mortgage Loans.
(a) Prior to taking any action with respect to a Mortgage Loan secured by
Mortgaged Properties located in a "one-action" state, the Servicer or Special
Servicer, as applicable, shall consult with legal counsel, the fees and expenses
of which shall be an expense of the Trust Fund.
(b) With respect to any Mortgage Loan which permits the related Borrower,
with the consent or grant of a waiver by mortgagee, to incur additional
indebtedness or to amend or modify the related Borrower's organizational
documents, then the Special Servicer may only consent to either such action, or
grant a waiver with respect thereto, if the Special Servicer determines that
such consent or waiver is likely to result in a greater recovery on a present
value basis (discounted at the related Mortgage Rate) than would not consenting
to such action and the Special Servicer first obtains written confirmation from
each Rating Agency that such consent or grant of a waiver would not, in and of
itself, result in a downgrade, qualification or withdrawal of any of the then
current ratings assigned to the Certificates. The Servicer shall not be entitled
or required to consent to, or grant a waiver with respect to, either action.
(c) With respect to the Mortgage Loans that require the related Borrower to
pay Rating Agency monitoring or review fees, the Servicer shall enforce the
obligation of the related Borrowers to pay Rating Agency monitoring or review
fees and shall remit such fees from the related Cash Collateral Account for
payment of such fees to the applicable Rating Agencies. The Servicer shall
receive bills from the Rating Agencies for monitoring, review and surveillance
of the Certificates and the Mortgage Loans on behalf of Nomura Securities
International, Inc. and shall promptly notify and send such bills to Nomura
Securities International, Inc., Attention: Xxxxxx XxXxxx. Nomura Securities
International, Inc. will notify each Rating Agency to xxxx Xxxxxx Securities
International, Inc. for such services and to send such bills to the Servicer.
Nomura Securities International, Inc. will pay such portion of the xxxx not paid
from funds provided by the applicable Borrowers (as described in this section
(c)) and the Servicer shall notify Nomura Securities International, Inc., of the
portion of the xxxx that it has paid from funds collected from such Borrowers.
(d) With respect to the Mortgage Loan secured by the Mortgaged Property
known as Marina Harbor Apartments and Anchorage, if a material payment default
has occurred on the related maturity date or, if in the Servicer's reasonable
and good faith judgment, a default in respect of payment on such Mortgage Loan
on the maturity date is reasonably foreseeable then, notwithstanding Section
3.10 or Section 3.30 hereof, the Servicer shall extend the term of such Mortgage
Loan to the last day of the related amortization schedule provided that such
modification shall contain provisions substantially similar to the provisions
contained in the Mortgage Loans which have Anticipated Repayment Dates with
respect to (i) the application of all excess Cash Flow to principal, (ii) Excess
Interest and (iii) lockboxes has been executed.
(e) With respect to all Mortgage Loans that provide that the holder of the
related Note may apply the monthly payment against principal, interest and any
other sums due in the order as the holder shall determine, the Servicer shall
apply such Monthly Payment to interest (other than Excess Interest or Default
Interest) under the related Mortgage Loan prior to application to principal or
any other sums due.
(f) With respect to the Mortgage Loans that have Anticipated Repayment
Dates, the Servicer (including the Servicer in its capacity as a
Certificateholder, if applicable), shall not take any enforcement action with
respect to the payment of Excess Interest or principal in excess of the
principal component of the constant Monthly Payment, other than requests for
collection, until the maturity date of the related Mortgage Loan.
(g) To the extent not inconsistent with the related Mortgage Loan, the
Servicer shall not consent to a change of franchise affiliation with respect to
a Mortgaged Property unless it obtains written confirmation from Fitch, S&P, DCR
and Xxxxx'x that such consent would not, in and of itself, result in a
downgrade, qualification or withdrawal of the then current ratings assigned to
the Certificates.
(h) With respect to the Mortgaged Property known as the Residence
Inn-Xxxxxxx, the Servicer shall require the related borrower to implement a
lockbox if the property manager in place as of the date hereof is replaced.
(i) With respect to the Mortgage Loans that have Anticipated Repayment
Dates, the Servicer shall be permitted, in its discretion, to waive all or any
accrued Excess Interest if, prior to the related maturity date, the related
Borrower has requested the right to prepay the Mortgage Loan in full together
with all payments required by the Mortgage Loan in connection with such
prepayment except for all or a portion of accrued Excess Interest, provided that
the Servicer's determination to waive the right to such accrued Excess Interest
is reasonably likely to produce a greater payment to Certificateholders on a
present value basis than a refusal to waive the right to such Excess Interest.
Any such waiver shall not be effective until such prepayment is tendered. The
Servicer will have no liability to the Trust Fund, the Certificateholders or any
other person so long as such determination is based on such criteria. Other than
pursuant to Section 3.30, the Special Servicer shall have no right to waive the
payment of Excess Interest under the circumstances described in this Section
3.28(i).
(j) With respect to the Mortgage Loans that (i) require earthquake
insurance, or (ii) (A) at the date of origination were secured by Mortgaged
Properties on which the related Borrower maintained earthquake insurance and (B)
have provisions which enable the Servicer to continue to require the related
Borrower to maintain earthquake insurance, the Servicer shall require the
related Borrower to maintain such insurance in the amount, in the case of clause
(i), required by the Mortgage Loan and in the amount, in the case of clause
(ii), maintained at origination, in each case, to the extent such amounts are
available at commercially reasonable rates. Any determination by the Servicer
that such insurance is not available at commercially reasonable rates shall be
subject to confirmation by Fitch that such determination not to purchase such
insurance will not result in a downgrade, qualification or withdrawal of the
then current ratings assigned to the Certificates rated by Fitch.
(k) The Servicer shall send written notice to each Borrower and the related
Manager and clearing bank that, if applicable, the Servicer and/or the Trustee
has been appointed as the "Designee" of the "Lender" under any related Lock-Box
Agreement.
(l) With respect to any Mortgage Loan secured by a hotel the Special
Servicer shall hire a consultant which is experienced in the operation of hotels
in the event that such Mortgage Loan becomes a Specially Serviced Mortgage Loan.
(m) With respect to the $2,000,000 reserve established by the borrower with
respect to the Sunwest Pool Properties known as Facility Number 5859 and
Facility Number 7055, the Servicer shall in accordance with terms of the
Mortgage Loan not release the $2,000,000 to the borrower, except for testing and
remediation, unless and until the environmental issues disclosed in the related
environmental reports with respect to those two properties have been resolved.
If there is an event of default under the related Mortgage Loan, and the
Servicer, in its reasonable judgment, determines that the Trust Fund may become
liable due to such environmental hazards, the Servicer may in accordance with
terms of the Mortgage Loan apply the funds remaining in such reserve to pay down
the related Mortgage Loan in an amount equal to the Allocated Loan Amount for
such properties, and obtain an immediate release of such properties from the
lien of the related Mortgage Loan.
(n) For any Specially Serviced Mortgage Loan and with respect to which,
under the terms of the related Loan Documents, the mortgagee may, in its
discretion, apply Insurance Proceeds, condemnation awards or escrowed funds to
the prepayment of such loan prior to the expiration of the related Lock-out
Period, the Special Servicer may only make such a prepayment if the Special
Servicer has first received (i) the prior written consent of the Servicer (which
consent will be given or withheld in accordance with the Servicing Standard) or
(ii) the affirmative vote in favor of such prepayment from 66 2/3% of the Voting
Rights of all Certificateholders or 66 2/3% of the Voting Rights of all
Certificateholders responding within 20 Business Days of being given notice by
the Trustee of such proposed action. Upon the written request of the Special
Servicer, the Trustee shall forward Certificateholders any request of the
Special Servicer for the vote of the Certificateholders pursuant to this
Section.
(o) If any Mortgage Loan provides that the "Lender" with respect thereto is
required to purchase U.S. government obligations on behalf of the related
Borrower in connection with any defeasance of the related Note, the Servicer
shall purchase such obligations and effectuate such defeasance, at the
Borrower's expense, in accordance with the provisions of the related Loan
Documents, consistent with the Servicing Standard.
(p) Servicer shall promptly provide notice to the "licensor" or
"franchisor" with respect to the Mortgaged Properties that are Holiday Inns to
the effect that the related Mortgage Loan has been assigned to the Trust Fund.
In so doing, Servicer shall include in such notices the information specified in
the related "comfort" or "estoppel" letters executed by the related "licensor or
"franchisor." Trustee shall cooperate with Servicer in furnishing any
information required to be include in such notices.
(q) Neither the Servicer nor the Special Servicer or their affiliates shall
enter into refinancing arrangements with respect to the Mortgaged Properties
securing the Mortgage Loans. The Servicer shall not make its Mortgage Loan
Servicing System available to Servicer's affiliates engaged in the mortgage
lending business.
SECTION 3.29. [Intentionally left Blank].
SECTION 3.30. Modification, Waiver, Amendment and Consents.
(a) The Special Servicer may, consistent with the Servicing Standard, agree
to any modification, waiver or amendment of any term of any Mortgage Loan,
subject, however, to each of the following limitations, conditions and
restrictions:
(i) the Special Servicer shall not agree to any modification, waiver or
amendment of any term of, or take any action with respect to, any
Mortgage Loan, if such modification, waiver or amendment relates to
any payment term thereof, the release of the related Borrower from any
material term thereunder or the release or substitution of collateral
therefor except in accordance with clause (b) or (c) of this Section
3.30; and
(ii) the Special Servicer shall not consent to the modification of any term
of a Mortgage Loan pursuant to this clause (a), or otherwise alter,
delete or add, in whole or in part, any legal right or obligation of
the related Borrower or the Trustee, as holder of the related Mortgage
Loan, unless such modification would not be a "significant
modification" as such term is defined in Treasury Regulations Section
1.860G-2(b)(3).
(b) The Special Servicer may, consistent with the Servicing Standard, agree
to any modification, waiver or amendment of any term of, forgive or defer
interest on and principal of, and/or add collateral for, any Mortgage Loan with
the consent of Certificateholders representing 100% of the Percentage Interests
of the most subordinate Class of Certificates then outstanding determined as
provided below, subject, however, to each of the following limitations,
conditions and restrictions:
(i) a material default on such Mortgage Loan has occurred or, in the
Special Servicer's reasonable and good faith judgment, a default in
respect of payment on such Mortgage Loan is reasonably foreseeable,
and such modification, waiver, amendment or other action is reasonably
likely to produce a greater recovery to Certificateholders on a
present value basis (the relevant discounting of anticipated
collections that will be distributable to Certificateholders will be
done at the related Mortgage Rate), than would liquidation;
(ii) the Special Servicer shall not extend the date on which any Balloon
Payment is scheduled to be due on any Specially Serviced Mortgage Loan
except as provided for below;
(iii) no reduction of any scheduled monthly payment of principal and/or
interest on any Specially Serviced Mortgage Loan may result in a debt
service coverage ratio for such Mortgage Loan of greater than 1.10 to
1, and the Special Servicer may only agree to reductions lasting a
period of no more than twelve consecutive months and, in the
aggregate, no more than three consecutive reductions of twelve-months
or less each;
(iv) the Special Servicer shall not release or substitute collateral or
release mortgagors or guarantors except as provided in clause (v)
below;
(v) the Special Servicer may only allow a substitution of collateral and
the assumption of a Borrower's obligations with respect to a Mortgage
Loan in accordance with the terms thereof and the provisions of
Section 3.09 hereof;
(vi) the Special Servicer may not forgive an aggregate amount of principal
of the Mortgage Loans in excess of the Certificate Principal Balance
of the most subordinate Class of Certificates then outstanding (as
determined as provided below) minus the aggregate of the greater of
(A) any Appraisal Reduction Amounts and (B) Delinquency Reduction
Amounts of each Mortgage Loan that, in each case, have not resulted in
a Realized Loss;
(vii) the Special Servicer shall not permit any Borrower to add any
collateral unless (A) the Special Servicer has first determined in
accordance with the Servicing Standard, based upon an environmental
assessment prepared by an Independent Person who regularly conducts
environmental assessments, at the expense of the Borrower, that such
additional 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 (B) the Special Servicer has received an
Opinion of Counsel at the expense of the Special Servicer or the
Borrower (unless the Special Servicer owns the most subordinate Class
of Certificates in which case, at the expense of the Trust Fund), to
the effect that the addition of such collateral will not cause either
the Upper-Tier REMIC or the Lower-Tier REMIC to fail to qualify as a
REMIC or cause a tax to be imposed on the Trust Fund under the REMIC
Provisions; and
(viii) the Special Servicer may waive or reduce a Lock-out Period or any
Prepayment Premiums only if the commencement of a foreclosure
proceeding with respect to the related Mortgage Loan is imminent and
the Special Servicer first receives written notification from the
Servicer that such action in the opinion of the Servicer, consistent
with the Servicing Standard and based solely upon information
furnished by the Special Servicer without independent investigation of
the Servicer thereof, is more likely to result in a greater recovery,
on a present value basis, than would a foreclosure.
Notwithstanding the foregoing, the Special Servicer shall not be required
to oppose the confirmation of a plan in any bankruptcy or similar proceeding
involving a Borrower if in its reasonable and good faith judgment such
opposition would not (i) ultimately prevent the confirmation of such plan or one
substantially similar and (ii) produce a greater recovery to Certificateholders
on a present value basis.
For purposes of determining the amount of principal which the Special
Servicer may forgive pursuant to clause (vi) above, the most subordinate Class
shall include the next subordinate Class (determined as provided in the
preceding sentence) provided that Certificateholders evidencing 100% of the
Percentage Interests of such Class consent to such forgiveness.
(c) Following a default by a Borrower in the payment of a Balloon Payment
on the related Maturity Date, or if the Special Servicer reasonably determines
that a default with respect to such Balloon Loan is imminent, the Special
Servicer may elect to grant a one-year extension of such Balloon Loan; provided
that the Special Servicer may only extend such Balloon Loan if (i) immediately
prior to the default on the Balloon Payment the related Borrower had made twelve
consecutive Monthly Payments on or prior to their Due Dates, (ii) the Special
Servicer determines in its reasonable judgment that such Borrower has attempted
in good faith to refinance such Balloon Loan or Mortgaged Property, (iii) the
Special Servicer determines that (A) extension of such Balloon Loan is
consistent with the Servicing Standard and (B) extension of such Mortgage Loan
is likely to result in a recovery which on a net present value basis would be
greater than the recovery that would result from a foreclosure, (iv) such
extension requires that all cash flow on all related Mortgaged Property or
Properties in excess of amounts required to operate and maintain such Mortgaged
Property or Properties be applied to payments of principal and interest on such
Balloon Loan and (v) the Special Servicer terminates the related Manager unless
the Special Servicer determines that retaining such Manager is conducive to
maintaining the value of the related Mortgaged Properties; provided, further,
the Special Servicer shall provide notice to the Trustee (and the Trustee hereby
agrees to forward such notice immediately upon receipt to each
Certificateholder) that the Special Servicer has elected to extend the Balloon
Loan and submit a case to the Servicer (an "Extension Case") and if (A) the
Servicer, based on such Extension Case but without any independent investigation
thereof, concurs with such Extension Case but Holders of Certificates evidencing
at least 66-2/3% of the Percentage Interests of each Class of Certificates
entitled to vote direct the Special Servicer not to extend or (B) the Servicer,
based on such Extension Case and without any independent investigation thereof,
does not concur with such Extension Case and Holders of Certificates evidencing
greater than (x) 50% of the aggregate Voting Rights of all Certificateholders
entitled to vote and (y) 66-2/3% of the aggregate Voting Rights of all
Certificateholders entitled to vote who respond to such notice within 30 days,
direct the Special Servicer not to extend, then the Special Servicer shall not
extend.
The Special Servicer may, consistent with the Servicing Standard, grant
subsequent one-year extensions of such Balloon Loan if (i) the related Borrower
has made twelve consecutive Monthly Payments in an amount equal to or greater
than the Minimum Defaulted Monthly Payments, (ii) the requirements set forth in
clauses (ii) - (iv) of the preceding paragraph are satisfied; provided, however,
the Special Servicer shall provide notice to the Trustee (and the Trustee hereby
agrees to forward such notice immediately upon receipt to each
Certificateholder) that the Special Servicer has elected to extend the Balloon
Loan and submit an Extension Case to the Servicer and if (A) the Servicer, based
on such Extension Case but without any independent investigation thereof,
concurs with such Extension Case but Holders of Certificates evidencing at least
66-2/3% of the Percentage Interests of each Class of Certificates entitled to
vote direct the Special Servicer not to extend or (B) the Servicer, based on
such Extension Case and without any independent investigation thereof, does not
concur with such Extension Case and Holders of Certificates evidencing greater
than (x) 50% of the aggregate Voting Rights of all Certificateholders entitled
to vote and (y) 66-2/3% of the aggregate Voting Rights of all Certificateholders
entitled to vote who respond to such notice within 30 Business Days, direct the
Special Servicer not to extend, then the Special Servicer shall not extend. If
the related Borrower fails to make a timely Minimum Defaulted Monthly Payment
more than once during any two year period after an extension of a Balloon Loan,
no further extensions will be granted.
During the 30 day period after notice of a proposed extension of a Balloon
Loan has been given, each of the Servicer and Special Servicer shall be
permitted to communicate with the Certificateholders regarding its respective
position with respect to such extension. Notwithstanding the foregoing, the
Special Servicer shall not agree to any extension of a Mortgage Loan beyond two
years prior to the Rated Final Distribution Date. Notwithstanding the foregoing,
the Special Servicer may extend a defaulted payment due on the Maturity Date of
a Balloon Loan and grant subsequent extensions pursuant to the Instructions of
the Directing Holders (as described in paragraph (d) below). The Servicer shall
within five Business Days after receipt of an Extension Case from the Special
Servicer, give the Special Servicer written notice as to whether or not it
concurs with the extension set forth in such Extension Case. The Special
Servicer shall provide the necessary information and back-up material for the
Servicer to determine whether it would extend prior to sending any such notice
to the Trustee. The Special Servicer will notify the Servicer of any Mortgage
Loan with respect to which the Borrower has indicated in writing an intent to
request an extension.
The Holders of the Class A-CS1 and Class PS-1 Certificates shall not be
entitled to vote with respect to proposed extensions of a Balloon Loan.
Any extension of a Balloon Loan pursuant to this Section will require
monthly payments in an amount equal to or greater than the Minimum Defaulted
Monthly Payment.
(d) The Special Servicer may be given revocable instructions
("Instructions") (with a copy to the Servicer) to extend a Specially Serviced
Mortgage Loan that has defaulted on a Balloon Payment (which extension shall be
conditioned on the requirements of clauses (ii)-(iv) of Section 3.30(c) above
except that such Instructions shall not be subject to the rejection of the other
Certificateholders and the related Borrower will not be required to have made
twelve consecutive Monthly Payments on or prior to the Due Date) by the Holders
of Certificates representing greater than 50% of the Voting Rights of the most
subordinate Class or Classes of Certificates then outstanding representing a
minimum of 1.0% of the aggregate initial Certificate Balances of all Classes of
Certificates (or if the Certificate Balance of such Class or Classes has been
reduced to less than 40% of its initial Certificate Balance, the holders of such
Class together with the Holders of the next most subordinate Class) (the
"Directing Holders") under the following circumstance:
(i) If the Special Servicer has determined to commence foreclosure or
acquisition proceedings, the Special Servicer shall notify the Trustee
(and the Trustee hereby agrees to notify Directing Holders ), the
Depositor and the Servicer of its proposed action;
(ii) If the Special Servicer receives contrary Instructions from the
Directing Holders within seven days after notice was given to the
Directing Holders (and the Trustee hereby agrees to forward to the
Special Servicer promptly any Instructions provided by the Directing
Holders), the Special Servicer will delay such proceedings, and the
procedures described below shall apply to the servicing of such
Mortgage Loan; and
(iii) In the event that the Special Servicer does not receive such
Instructions within such seven-day period, the Special Servicer may
proceed in connection with the foreclosure or acquisition in a manner
consistent with the Servicing Standard.
If the Directing Holders revoke their Instructions to extend the Mortgage Loan,
the Special Servicer shall service the Mortgage Loan without regard to such
original Instructions; provided, however, that the Directing Holders shall be
required to maintain the Collateral Account in accordance with this Section 3.30
unless and until the Mortgage Loan is no longer a Specially Serviced Mortgage
Loan for nine consecutive months or has been liquidated; and provided, further,
that any such foreclosure shall be subject to the provisions of Section 3.10.
(e) If the Special Servicer receives Instructions and the Servicer has not
otherwise been required to obtain an Updated Appraisal as described in Section
3.10 above within the preceding twelve month period, the Special Servicer shall
notify the Servicer and the Servicer shall as soon as reasonably practicable
obtain an Updated Appraisal of the Mortgaged Property (the cost of which shall
be paid by the Servicer as a Property Advance), in order to determine the fair
market value of such Mortgaged Property, after accounting for the estimated
liquidation and carrying costs (the "Fair Market Value" of such Mortgaged
Property). Within two Business Days after the Special Servicer's receipt of
Instructions, the Servicer shall establish a segregated account (the "Collateral
Account") and the Directing Holders shall deposit therein (at the Servicer's
request), in proportion to their respective Percentage Interests, an amount
equal to the lesser of (i) 125% of the Fair Market Value of the related
Mortgaged Property and (ii) the outstanding principal balance of the Mortgage
Loan plus unreimbursed Advances (with interest thereon at the Advance Rate) and
unpaid accrued interest (the "Deposit"). If no Updated Appraisal has yet been
obtained, the amount of the Deposit will be determined based on the Servicer's
estimate of the Fair Market Value of the Mortgaged Property, in which case, upon
the Servicer's receipt of such Updated Appraisal, the Servicer shall remit any
excess deposit to the Directing Holders, or the Directing Holders will deposit
in the Collateral Account any shortfall, as the case may be. In the event that
the Directing Holders do not make the required deposit within two Business Days
following the Special Servicer's receipt of Instructions, the Special Servicer
shall act in accordance with the Servicing Standard without regard to such
Instructions. The Directing Holders shall be deemed to have granted to the
Servicer for the benefit of Certificateholders a first priority security
interest in the Collateral Account, as security for the obligations of the
Directing Holders.
If the Special Servicer is acting pursuant to Instructions, the Servicer
shall withdraw from the Collateral Account and deposit into the Collection
Account on or prior to the Business Day preceding each Servicer Remittance Date
an amount equal to the sum of (i) the Minimum Defaulted Monthly Payment on the
related Balloon Loan and (ii) any Property Protection Expenses or any expenses
incurred to protect and preserve the security for a Mortgage Loan or taxes and
assessments or insurance premiums (without regard to a non-recoverability
determination), and the Directing Holders shall, upon request therefor by the
Servicer, deposit from their own funds into the Collateral Account the amount of
such P&I Advance or Property Advance. Such withdrawals shall be reimbursed, with
interest, at the Advance Rate (but in no event greater than the Default Rate on
the related Mortgage Loan), and shall be recoverable only from funds recovered
from the related Mortgage Loan (whether pursuant to liquidation or the Mortgage
Loan being brought current) but only after such funds have been applied to the
purposes set forth in Section 3.06(i)-(x). If the Directing Holders fail to make
such deposit within one (1) Business Day after receipt of the Servicer's
request, the Special Servicer shall no longer be required to follow such
Instructions and shall specially service such Mortgage Loan as though no
Instructions had been given; provided, however, that the Directing Holders shall
be required to maintain the Collateral Account in accordance with the
requirements of this Section 3.30 unless and until the related Mortgage Loan is
no longer a Specially Serviced Mortgage Loan for nine consecutive months or has
been liquidated. The Servicer shall invest amounts on deposit in the Collateral
Account in Permitted Investments upon direction by the Directing Holders.
Directing Holders shall be entitled to reinvestment income as received, and will
reimburse the Collateral Account for any losses incurred. Any Collateral Account
established hereunder will be an "outside reserve fund" beneficially owned by
the related Directing Holders for federal income tax purposes, and any amounts
paid or reimbursed from the Upper-Tier REMIC or Lower-Tier REMIC to the
Collateral Account will be treated as paid to the Directing Holders as
beneficial owners.
(f) If a Balloon Loan or the related Mortgaged Property which is subject to
Instructions is liquidated or disposed of all Net Liquidation Proceeds shall be
deposited in the Collection Account and the Servicer shall withdraw from the
Collateral Account, and deposit into the Collection Account as additional
Liquidation Proceeds for distribution to Certificateholders the lesser of (a)
the amount by which 125% of the Fair Market Value (determined at the time of the
Deposit) (plus accrued and unpaid interest, accumulated carrying costs and
conveyance expenses) exceeds the net sales proceeds, and (b) the amount by which
the outstanding principal balance of the related Mortgage Loan plus unreimbursed
Advances (with interest thereon) and unpaid accrued interest exceeds the net
sales proceeds, provided that in no event shall such additional Liquidation
Proceeds exceed the unpaid principal balance, accrued and unpaid interest
(including Default Interest), unpaid Advances made by the Servicer, Special
Servicer, Trustee or Fiscal Agent and interest thereon, and any expenses paid by
the Trust Fund with respect to such Mortgage Loan.
If the amount realized upon disposition of the Mortgage Loan or Mortgaged
Property exceeds 125% of the Fair Market Value, the Servicer shall deposit the
excess in the Collection Account to the extent not required by applicable law to
be paid to the related Borrower. If the Mortgage Loan has not been sold,
liquidated or disposed of on or before the third anniversary of the Instructions
(or such earlier date so that the Trust Fund owns the Mortgaged Property for no
longer than the period permitted by Section 3.17(a)), the Directing Holders
shall immediately purchase the Mortgage Loan for a purchase price equal to Fair
Market Value (determined at the time of the Deposit) plus accrued and unpaid
interest, accumulated carrying costs and conveyance expenses and, in connection
therewith, amounts then on deposit in the Collateral Account shall be applied
first in payment of such purchase price. For purposes of this paragraph, if the
Updated Appraisal is dated more than twelve months prior to the date on which
such purchase is to occur, then the Servicer shall obtain an Updated Appraisal
upon which the calculation of Fair Market Value shall be based and the term
"Fair Market Value" for purposes of the purchase price and the first paragraph
of this section (d) shall be the greater of (i) the Fair Market Value calculated
at the time the Instructions were first given and (ii) the Fair Market Value
calculated in connection with the referenced Updated Appraisal, provided that in
no event shall such price exceed the unpaid principal balance, accrued interest
(including Default Interest), unpaid Advances made by the Servicer, Special
Servicer, Trustee or Fiscal Agent, and interest thereon and expenses paid by the
Trust Fund with respect to such Mortgage Loan.
If at any time following the establishment of a Collateral Account and
prior to the disposition of the Specially Serviced Mortgage Loan or Mortgaged
Property, the Mortgaged Property suffers a hazard loss that results in the
Mortgaged Property not being rebuilt and payments to the Trustee are made under
the related hazard insurance policy, the Servicer shall pay all amounts on
deposit in the Collateral Account to the Directing Holders. In addition, after
amounts required to be deposited in the Collection Account as set forth above
have been withdrawn from the Collateral Account following foreclosure,
liquidation, disposition, purchase by Directing Holders, or if the related
Mortgage Loan is no longer a Specially Serviced Mortgage Loan for nine
consecutive months, any remaining amounts in the Collateral Account shall be
released to the Directing Holders.
(h) Until the disposition of the Specially Serviced Mortgage Loan or
Mortgaged Property as to which Directing Holders have provided Instructions or
the cure of such default, no P&I Advances shall be made in respect of amounts
otherwise distributable to the Class of the Directing Holders in respect of such
Mortgage Loan. The Trustee shall notify the Servicer at least five Business Days
prior to the Servicer Remittance Date of the amount of distributions to be made
to the Directing Holders on the related Distribution Date.
(i) The Special Servicer shall provide copies of any modifications
or extensions to each Rating Agency. All modifications, waivers, amendments
and other actions entered into or taken in respect of the Mortgage Loans
pursuant to this Section 3.30 shall be in writing. The Special Servicer
shall notify the 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 3.30, prior to the effective date thereof
and the date as of which the related modification, waiver or amendment is to
take effect, and shall deliver to the Trustee or the related Custodian for
deposit in the related Mortgage File (with a copy to the Servicer) 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. Following the execution of any modification, waiver or
amendment agreed to by the Special Servicer pursuant to the clause (a) or (b)(i)
above, the Special Servicer shall deliver to the Trustee (with a copy to the
Servicer) an Officer's Certificate setting forth in reasonable detail the basis
of the determination made by it pursuant to clause (a) or (b)(i) above.
(j) If a modification, waiver or amendment results, in and of itself, in
the withdrawal, downgrade or qualification of any of the then-current ratings
assigned to any Class of Certificates (not including the Class of Certificates,
if any, that consented to such actions), then the Special Servicer shall be
terminated and shall be replaced pursuant to Section 7.02.
(k) Any payment of interest which is deferred as described herein shall
not, for purposes, including, without limitation, of 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.
SECTION 3.31. Notices to Unitholders.
Unless and until a Certificate has been separated from a Unit pursuant to
Section 5.01(j) hereof, all notices, reports, requests or any other information
required to be sent to Holders of any of the Class B-1, Class B-2, Class B-3,
Class B-4, Class B-5 or Class B-6 Certificates shall be sent to the related
Unitholder as well as to the Holder of the Individual Certificates of the Class
B-1, Class B-2 and Class B-4 Certificates each having an initial Certificate
Balance of $9.00. Only one copy of any such notice, report, request or other
information shall be sent to each Unitholder, unless such notice, report,
request or information is different with respect to each Class.
ARTICLE IV
DISTRIBUTIONS TO CERTIFICATEHOLDERS
SECTION 4.01. Distributions.
(a) On each Distribution Date, to the extent of Available Funds, amounts
held in the Distribution Account shall be withdrawn and distributed on the
Lower-Tier REMIC Regular Interests as follows:
(i) The amounts and timing of principal and interest payments and
Prepayment Interest Shortfall allocations on each Lower-Tier REMIC
Regular Interest will be identical to such amounts and timing on the
corresponding Related Certificates for such Distribution Date, except
that, solely for this purpose, all calculations with respect to the
Related Certificates shall be made as though (x) the Class A-1A, Class
A-1B, Class A-1C, Class A-1D, Class A-1E, Class A-2, Class A-3, Class
A-4, Class A-5, Class A-6, Class A-7, Class A-8, Class B-1, Class B-2,
Class B-3, Class B-4, Class B-5, and Class B-6 Certificate
Pass-Through Rates were equal to the Weighted Average Net Mortgage
Pass-Through Rate, (y) the Class PS-1 and Class A-CS1 Notional
Balances were zero at all times, and (z) any Reduction Interest
Shortfall allocated to, or any restoration of amounts corresponding to
such Reduction Interest Shortfall distributed on, the Class PS-1
Certificates on such Distribution Date based on notional reductions to
the Certificate Balance of a Related Certificate were allocated to or
distributed on, as the case may be, the Lower-Tier Regular Interest
that corresponds to such Related Certificate.
(ii) [Intentionally left blank]
(iii) Realized Losses shall be allocated to, and shall reduce the
Certificate Balances of, each Class of Lower-Tier Regular Interests
without distribution on any Distribution Date, to the extent that the
Certificate Balance of such Class exceeds the Certificate Balance of
the corresponding Related Certificates because of Realized Losses
allocated to such Related Certificates. Amounts recovered in respect
of any amounts previously written off as Realized Losses will be
distributed to the Related Lower-Tier Regular Interests, to the extent
that amounts recovered in respect of any amounts previously written
off as Realized Losses are distributed to the corresponding Related
Certificates.
(b) On each Distribution Date, (x) amounts distributed on the Lower-Tier
Regular Interests pursuant to Section 4.01(a) shall be deposited in the
Upper-Tier Distribution Account, (y) any amounts remaining in the Distribution
Account (other than Prepayment Premiums distributable pursuant to Section
4.01(c)(ii)) shall be distributed to the holders of the Class LR Certificates
and (z) Holders of each Class of Certificates (other than the Class LR
Certificates) shall receive distributions from amounts on deposit in the
Upper-Tier Distribution Account in respect of interest and principal, in the
amounts and in the order of priority set forth below:
(i) First, pro rata, in respect of interest, to the Class A-1A, Class
A-1B, Class A-1C, Class A-1D, Class A-CS1 and Class PS-1 Certificates,
up to an amount equal to the aggregate Class Interest Distribution
Amounts of such Classes;
(ii) Second, pro rata, to the Class A-1A, Class A-1B, Class A-1C, Class
A-1D, Class A-CS1 and Class PS-1 Certificates, in respect of interest,
up to an amount equal to the aggregate unpaid Class Interest
Shortfalls previously allocated to such Classes;
(iii) Third, prior to the Crossover Date, to the Class A-1A Certificates,
in reduction of the Certificate Balance thereof, an amount equal to
the Principal Distribution Amount until the Certificate Balance
thereof is reduced to zero;
(iv) Fourth, prior to the Crossover Date, to the Class A-1B Certificates,
in reduction of the Certificate Balance thereof, an amount equal to
the Principal Distribution Amount less amounts of Principal
Distribution Amount distributed pursuant to all prior clauses, until
the Certificate Balance of such Class is reduced to zero;
(v) Fifth, prior to the Crossover Date, to the Class A-1C Certificates, in
reduction of the Certificate Balance thereof, an amount equal to the
Principal Distribution Amount less amounts of Principal Distribution
Amount distributed pursuant to all prior clauses, until the
Certificate Balance of such Class is reduced to zero;
(vi) Sixth, prior to the Crossover Date, to the Class A-1D Certificates, in
reduction of the Certificate Balance thereof, an amount equal to the
Principal Distribution Amount less amounts of Principal Distribution
Amount distributed pursuant to all prior clauses, until the
Certificate Balance of such Class is reduced to zero;
(vii) Seventh, on and after the Crossover Date, to the Class A-1A, Class
A-1B, Class A-1C and Class A-1D Certificates, pro rata, in reduction
of the Certificate Balances thereof, an amount equal to the Principal
Distribution Amount less amounts of Principal Distribution Amount
distributed pursuant to all prior clauses, until the Certificate
Balances thereof are reduced to zero;
(viii) Eighth, to the Class A-1E Certificates in respect of interest, up to
an amount equal to the aggregate Class Interest Distribution Amount of
such Class;
(ix) Ninth, pro rata, (A) to the Class A-1E Certificates in respect of
interest, up to an amount equal to the aggregate unpaid Class Interest
Shortfalls previously allocated to such Class, (B) to the Class PS-1
Certificates in respect of the Reduction Interest Distribution Amount
attributable to the notional reduction in the Certificate Balance of
the Class A-1E Certificates pursuant to Section 4.01(i) up to an
amount equal to the aggregate Reduction Interest Distribution Amount
so attributable and (C) to the Class PS-1 Certificates, up to an
amount equal to the aggregate unpaid Reduction Interest Shortfalls
previously allocated to the Class PS-1 Certificate in respect of
Reduction Interest Distribution Amounts under Clause (B);
(x) Tenth, to the Class A-1E Certificates, in reduction of the Certificate
Balance thereof, an amount equal to the Principal Distribution Amount
less amounts of Principal Distribution Amount distributed pursuant to
all prior clauses, until the Certificate Balance of such Class is
reduced to zero;
(xi) Eleventh, to the Class A-1E Certificates, to the extent not
distributed pursuant to all prior clauses, for the unreimbursed
amounts of Realized Losses, if any, an amount equal to the aggregate
of such unreimbursed Realized Losses previously allocated to such
Class;
(xii) Twelfth, to the Class A-2 Certificates in respect of interest, up to
an amount equal to the aggregate Class Interest Distribution Amount of
such Class;
(xiii) Thirteenth, pro rata, (A) to the Class A-2 Certificates in respect
of interest, up to an amount equal to the aggregate unpaid Class
Interest Shortfalls previously allocated to such Class, (B) to the
Class PS-1 Certificates in respect of the Reduction Interest
Distribution Amount attributable to the notional reduction in the
Certificate Balance of the Class A-2 Certificates pursuant to Section
4.01(i) up to an amount equal to the aggregate Reduction Interest
Distribution Amount so attributable and (C) to the Class PS-1
Certificates, up to an amount equal to the aggregate unpaid Reduction
Interest Shortfalls previously allocated to the Class PS-1
Certificates in respect of Reduction Interest Distribution Amounts
under Clause (B);
(xiv) Fourteenth, to the Class A-2 Certificates, in reduction of the
Certificate Balance thereof, an amount equal to the Principal
Distribution Amount less amounts of Principal Distribution Amount
distributed pursuant to all prior clauses, until the Certificate
Balance of such Class is reduced to zero;
(xv) Fifteenth, to the Class A-2 Certificates, to the extent not
distributed pursuant to all prior clauses, for the unreimbursed
amounts of Realized Losses, if any, an amount equal to the aggregate
of such unreimbursed Realized Losses previously allocated to such
Class;
(xvi) Sixteenth, to the Class A-3 Certificates in respect of interest, up
to an amount equal to the aggregate Class Interest Distribution Amount
of such Class;
(xvii) Seventeenth, pro rata, (A) to the Class A-3 Certificates in respect
of interest, up to an amount equal to the aggregate unpaid Class
Interest Shortfalls previously allocated to such Class, (B) to the
Class PS-1 Certificates in respect of the Reduction Interest
Distribution Amount attributable to the notional reduction in the
Certificate Balance of the Class A-3 Certificates pursuant to Section
4.01(i) up to an amount equal to the aggregate Reduction Interest
Distribution Amount so attributable and (C) to the Class PS-1
Certificates, up to an amount equal to the aggregate unpaid Reduction
Interest Shortfalls previously allocated to the Class PS-1
Certificates in respect of Reduction Interest Distribution Amounts
under Clause (B);
(xviii) Eighteenth, to the Class A-3 Certificates in reduction of the
Certificate Balance thereof, an amount equal to the Principal
Distribution Amount, less the amount of the Principal Distribution
Amount distributed pursuant to all prior clauses, until the
Certificate Balance of such Class is reduced to zero;
(xix) Nineteenth, to the Class A-3 Certificates, to the extent not
distributed pursuant to all prior clauses, for the unreimbursed
amounts of Realized Losses, if any, up to an amount equal to the
aggregate of such unreimbursed Realized Losses previously allocated to
such Class;
(xx) Twentieth, to the Class A-4 Certificates in respect of interest, up to
an amount equal to the aggregate Class Interest Distribution Amount of
such Class;
(xxi) Twenty-first, pro rata, (A) to the Class A-4 Certificates in respect
of interest, up to an amount equal to the aggregate unpaid Class
Interest Shortfalls previously allocated to such Class, (B) to the
Class PS-1 Certificates in respect of the Reduction Interest
Distribution Amount attributable to the notional reduction in the
Certificate Balance of the Class A-4 Certificates pursuant to Section
4.01(i) up to an amount equal to the aggregate Reduction Interest
Distribution Amount so attributable and (C) to the Class PS-1
Certificates, up to an amount equal to the aggregate unpaid Reduction
Interest Shortfalls previously allocated to the Class PS-1
Certificates in respect of Reduction Interest Distribution Amounts
under Clause (B);
(xxii) Twenty-second, to the Class A-4 Certificates, in reduction of the
Certificate Balance thereof, an amount equal to the Principal
Distribution Amount less amounts of Principal Distribution Amount
distributed pursuant to all prior clauses, until the Certificate
Balance of such Class is reduced to zero;
(xxiii) Twenty-third, to the Class A-4 Certificates, to the extent not
distributed pursuant to all prior clauses, for the unreimbursed
amounts of Realized Losses, if any, an amount equal to the aggregate
of such unreimbursed Realized Losses previously allocated to such
Class;
(xxiv) Twenty-fourth, to the Class A-5 Certificates in respect of interest,
up to an amount equal to the aggregate Class Interest Distribution
Amount of such Class;
(xxv) Twenty-fifth, pro rata, (A) to the Class A-5 Certificates in respect
of interest, up to an amount equal to the aggregate unpaid Class
Interest Shortfalls previously allocated to such Class, (B) to the
Class PS-1 Certificates in respect of the Reduction Interest
Distribution Amount attributable to the notional reduction in the
Certificate Balance of the Class A-5 Certificates pursuant to Section
4.01(i) up to an amount equal to the aggregate Reduction Interest
Distribution Amount so attributable and (C) to the Class PS-1
Certificates, up to an amount equal to the aggregate unpaid Reduction
Interest Shortfalls previously allocated to the Class PS-1
Certificates in respect of Reduction Interest Distribution Amounts
under Clause (B);
(xxvi) Twenty-sixth, to the Class A-5 Certificates in reduction of the
Certificate Balance thereof, an amount equal to the Principal
Distribution Amount, less the amount of the Principal Distribution
Amount distributed pursuant to all prior clauses, until the
Certificate Balance of such Class is reduced to zero;
(xxvii) Twenty-seventh, to the Class A-5 Certificates, to the extent not
distributed pursuant to all prior clauses, for the unreimbursed
amounts of Realized Losses, if any, an amount equal to the aggregate
of such unreimbursed Realized Losses previously allocated to such
Class;
(xxviii) Twenty-eighth, to the Class A-6 Certificates in respect of
interest, up to an amount equal to the aggregate Class Interest
Distribution Amount of such Class;
(xxix) Twenty-ninth, pro rata, (A) to the Class A-6 Certificates in respect
of interest, up to an amount equal to the aggregate unpaid Class
Interest Shortfalls previously allocated to such Class, (B) to the
Class PS-1 Certificates in respect of the Reduction Interest
Distribution Amount attributable to the notional reduction in the
Certificate Balance of the Class A-6 Certificates pursuant to Section
4.01(i) up to an amount equal to the aggregate Reduction Interest
Distribution Amount so attributable and (C) to the Class PS-1
Certificates, up to an amount equal to the aggregate unpaid Reduction
Interest Shortfalls previously allocated to the Class PS-1
Certificates in respect of Reduction Interest Distribution Amounts
under Clause (B);
(xxx) Thirtieth, to the Class A-6 Certificates in reduction of the
Certificate Balance thereof, an amount equal to the Principal
Distribution Amount, less the amount of the Principal Distribution
Amount distributed pursuant to all prior clauses, until the
Certificate Balance of such Class is reduced to zero;
(xxxi) Thirty-first, to the Class A-6 Certificates, to the extent not
distributed pursuant to all prior clauses, for the unreimbursed
amounts of Realized Losses, if any, an amount equal to the aggregate
of such unreimbursed Realized Losses previously allocated to such
Class;
(xxxii) Thirty-second, to the Class A-7 Certificates in respect of interest,
up to an amount equal to the aggregate Class Interest Distribution
Amount of such Class;
(xxxiii) Thirty-third, pro rata, (A) to the Class A-7 Certificates in respect
of interest, up to an amount equal to the aggregate unpaid Class
Interest Shortfalls previously allocated to such Class, (B) to the
Class PS-1 Certificates in respect of the Reduction Interest
Distribution Amount attributable to the notional reduction in the
Certificate Balance of the Class A-7 Certificates pursuant to Section
4.01(i) up to an amount equal to the aggregate Reduction Interest
Distribution Amount so attributable and (C) to the Class PS-1
Certificates, up to an amount equal to the aggregate unpaid Reduction
Interest Shortfalls previously allocated to the Class PS-1
Certificates in respect of Reduction Interest Distribution Amounts
under Clause (B);
(xxxiv) Thirty-fourth, to the Class A-7 Certificates in reduction of the
Certificate Balance thereof, an amount equal to the Principal
Distribution Amount, less the amount of the Principal Distribution
Amount distributed pursuant to all prior clauses, until the
Certificate Balance of such Class is reduced to zero;
(xxxv) Thirty-fifth, to the Class A-7 Certificates, to the extent not
distributed pursuant to all prior clauses, for the unreimbursed
amounts of Realized Losses, if any, an amount equal to the aggregate
of such unreimbursed Realized Losses previously allocated to such
Class;
(xxxvi) Thirty-sixth, to the Class A-8 Certificates in respect of interest, up
to an amount equal to the aggregate Class Interest Distribution Amount
of such Class;
(xxxvii) Thirty-seventh, pro rata, (A) to the Class A-8 Certificates in respect
of interest, up to an amount equal to the aggregate unpaid Class
Interest Shortfalls previously allocated to such Class, (B) to the
Class PS-1 Certificates in respect of the Reduction Interest
Distribution Amount attributable to the notional reduction in the
Certificate Balance of the Class A-8 Certificates pursuant to Section
4.01(i) up to an amount equal to the aggregate Reduction Interest
Distribution Amount so attributable and (C) to the Class PS-1
Certificates, up to an amount equal to the aggregate unpaid Reduction
Interest Shortfalls previously allocated to the Class PS-1
Certificates in respect of Reduction Interest Distribution Amounts
under Clause (B);
(xxxviii) Thirty-eighth, to the Class A-8 Certificates in reduction of the
Certificate Balance thereof, an amount equal to the Principal
Distribution Amount, less the amount of the Principal Distribution
Amount distributed pursuant to all prior clauses, until the
Certificate Balance of such Class is reduced to zero;
(xxxix) Thirty-ninth, to the Class A-8 Certificates, to the extent not
distributed pursuant to all prior clauses, for the unreimbursed
amounts of Realized Losses, if any, an amount equal to the aggregate
of such unreimbursed Realized Losses previously allocated to such
Class;
(xl) Fortieth, to the Class B-1 Certificates in respect of interest, up to
an amount equal to the aggregate Class Interest Distribution Amount of
such Class;
(xli) Forty-first, pro rata, (A) to the Class B-1 Certificates in respect of
interest, up to an amount equal to the aggregate unpaid Class Interest
Shortfalls previously allocated to such Class, (B) to the Class PS-1
Certificates in respect of the Reduction Interest Distribution Amount
attributable to the notional reduction in the Certificate Balance of
the Class B-1 Certificates pursuant to Section 4.01(i) up to an amount
equal to the aggregate Reduction Interest Distribution Amount so
attributable and (C) to the Class PS-1 Certificates, up to an amount
equal to the aggregate unpaid Reduction Interest Shortfalls previously
allocated to the Class PS-1 Certificates in respect of Reduction
Interest Distribution Amounts under Clause (B);
(xlii) Forty-second, to the Class B-1 Certificates, in reduction of the
Certificate Balance thereof, an amount equal to the Principal
Distribution Amount less amounts of Principal Distribution Amount
distributed pursuant to all prior clauses, until the Certificate
Balance of such Class is reduced to zero;
(xliii) Forty-third, to the Class B-1 Certificates, to the extent not
distributed pursuant to all prior clauses, for the unreimbursed
amounts of Realized Losses, if any, an amount equal to the aggregate
of such unreimbursed Realized Losses previously allocated to such
Class;
(xliv) Forty-fourth, to the Class B-2 Certificates in respect of interest, up
to an amount equal to the aggregate Class Interest Distribution Amount
of such Class;
(xlv) Forty-fifth, pro rata, (A) to the Class B-2 Certificates in respect of
interest, up to an amount equal to the aggregate unpaid Class Interest
Shortfalls previously allocated to such Class, (B) to the Class PS-1
Certificates in respect of the Reduction Interest Distribution Amount
attributable to the notional reduction in the Certificate Balance of
the Class B-2 Certificates pursuant to Section 4.01(i) up to an amount
equal to the aggregate Reduction Interest Distribution Amount so
attributable and (C) to the Class PS-1 Certificates, up to an amount
equal to the aggregate unpaid Reduction Interest Shortfalls previously
allocated to the Class PS-1 Certificates in respect of Reduction
Interest Distribution Amounts under Clause (B);
(xlvi) Forty-sixth, to the Class B-2 Certificates, in reduction of the
Certificate Balance thereof, an amount equal to the Principal
Distribution Amount less amounts of Principal Distribution Amount
distributed pursuant to all prior clauses, until the Certificate
Balance of such Class is reduced to zero;
(xlvii) Forty-seventh, to the Class B-2 Certificates, to the extent not
distributed pursuant to all prior clauses, for the unreimbursed
amounts of Realized Losses, if any, an amount equal to the aggregate
of such unreimbursed Realized Losses previously allocated to such
Class;
(xlviii) Forty-eighth, to the Class B-3 Certificates in respect of interest, up
to an amount equal to the aggregate Class Interest Distribution Amount
of such Class;
(xlix) Forth-ninth, pro rata, (A) to the Class B-3 Certificates in respect of
interest, up to an amount equal to the aggregate unpaid Class Interest
Shortfalls previously allocated to such Class, (B) to the Class PS-1
Certificates in respect of the Reduction Interest Distribution Amount
attributable to the notional reduction in the Certificate Balance of
the Class B-3 Certificates pursuant to Section 4.01(i) up to an amount
equal to the aggregate Reduction Interest Distribution Amount so
attributable and (C) to the Class PS-1 Certificates, up to an amount
equal to the aggregate unpaid Reduction Interest Shortfalls previously
allocated to the Class PS-1 Certificates in respect of Reduction
Interest Distribution Amounts under Clause (B);
(l) Fiftieth, to the Class B-3 Certificates, in reduction of the
Certificate Balance thereof, an amount equal to the Principal
Distribution Amount less amounts of Principal Distribution Amount
distributed pursuant to all prior clauses, until the Certificate
Balance of such Class is reduced to zero;
(li) Fifty-first, to the Class B-3 Certificates, to the extent not
distributed pursuant to all prior clauses, for the unreimbursed
amounts of Realized Losses, if any, an amount equal to the aggregate
of such unreimbursed Realized Losses previously allocated to such
Class;
(lii) Fifty-second, to the Class B-4 Certificates in respect of interest,
up to an amount equal to the aggregate Class Interest Distribution
Amount of such Class;
(liii) Fifty-third, (A) to the Class B-4 Certificates in respect of interest,
up to an amount equal to the aggregate unpaid Class Interest
Shortfalls previously allocated to such Class, (B) to the Class PS-1
Certificates in respect of the Reduction Interest Distribution Amount
attributable to the notional reduction in the Certificate Balance of
the Class B-4 Certificates pursuant to Section 4.01(i) up to an amount
equal to the aggregate Reduction Interest Distribution Amount so
attributable and (C) to the Class PS-1 Certificates, up to an amount
equal to the aggregate unpaid Reduction Interest Shortfalls previously
allocated to the Class PS-1 Certificates in respect of Reduction
Interest Distribution Amounts under Clause (B);
(liv) Fifty-fourth, to the Class B-4 Certificates, in reduction of the
Certificate Balance thereof, an amount equal to the Principal
Distribution Amount less amounts of Principal Distribution Amount
distributed pursuant to all prior clauses, until the Certificate
Balance of such Class is reduced to zero;
(lv) Fifty-fifth, to the Class B-4 Certificates, to the extent not
distributed pursuant to all prior clauses, for the unreimbursed
amounts of Realized Losses, if any, an amount equal to the aggregate
of such unreimbursed Realized Losses previously allocated to such
Class;
(lvi) Fifty-sixth, to the Class B-5 Certificates in respect of interest, up
to an amount equal to the aggregate Class Interest Distribution Amount
of such Class;
(lvii) Fifty-seventh, pro rata, (A) to the Class B-5 Certificates in respect
of interest, up to an amount equal to the aggregate unpaid Class
Interest Shortfalls previously allocated to such Class, (B) to the
Class PS-1 Certificates in respect of the Reduction Interest
Distribution Amount attributable to the notional reduction in the
Certificate Balance of the Class B-5 Certificates pursuant to Section
4.01(i) up to an amount equal to the aggregate Reduction Interest
Distribution Amount so attributable and (C) to the Class PS-1
Certificates, up to an amount equal to the aggregate unpaid Reduction
Interest Shortfalls previously allocated to the Class PS-1
Certificates in respect of Reduction Interest Distribution Amounts
under Clause (B);
(lviii) Fifty-eighth, to the Class B-5 Certificates, in reduction of the
Certificate Balance thereof, an amount equal to the Principal
Distribution Amount less amounts of Principal Distribution Amount
distributed pursuant to all prior clauses, until the Certificate
Balance of such Class is reduced to zero;
(lix) Fifty-ninth, to the Class B-5 Certificates, to the extent not
distributed pursuant to all prior clauses, for the unreimbursed
amounts of Realized Losses, if any, an amount equal to the aggregate
of such unreimbursed Realized Losses previously allocated to such
Class;
(lx) Sixtieth, to the Class B-6 Certificates in respect of interest, up to
an amount equal to the aggregate Class Interest Distribution Amount of
such Class;
(lxi) Sixty-first, pro rata, (A) to the Class B-6 Certificates in respect of
interest, up to an amount equal to the aggregate unpaid Class Interest
Shortfalls previously allocated to such Class, (B) to the Class PS-1
Certificates in respect of the Reduction Interest Distribution Amount
attributable to the notional reduction in the Certificate Balance of
the Class B-6 Certificates pursuant to Section 4.01(i) up to an amount
equal to the aggregate Reduction Interest Distribution Amount so
attributable and (C) to the Class PS-1 Certificates, up to an amount
equal to the aggregate unpaid Reduction Interest Shortfalls previously
allocated to the Class PS-1 Certificates in respect of Reduction
Interest Distribution Amounts under Clause (B);
(lxii) Sixty-second, to the Class B-6 Certificates, in reduction of the
Certificate Balance thereof, an amount equal to the Principal
Distribution Amount less amounts of Principal Distribution Amount
distributed pursuant to all prior clauses, until the Certificate
Balance of such Class is reduced to zero;
(lxiii) Sixty-third, to the Class B-6 Certificates, to the extent not
distributed pursuant to all prior clauses, for the unreimbursed
amounts of Realized Losses, if any, an amount equal to the aggregate
of such unreimbursed Realized Losses previously allocated to such
Class;
(lxiv) Sixty-fourth, pro rata, to the Class B-7 and Class B-7H Certificates
in respect of interest, up to an amount equal to the aggregate Class
Interest Distribution Amounts of such classes;
(lxv) Sixty-fifth, pro rata, to the Class B-7 and Class B-7H Certificates in
respect of interest, up to an amount equal to the aggregate unpaid
Class Interest Shortfalls previously allocated to such classes;
(lxvi) Sixty-sixth, pro rata, based on Certificate Balance to the Class B-7
and Class B-7H Certificates in reduction of the Certificate Balances
thereof, an amount equal to the Principal Distribution Amount less
amounts of the Principal Distribution Amount distributed pursuant to
all prior clauses, until the Certificate Balance of each such class is
reduced to zero;
(lxvii) Sixty-seventh, pro rata, to the Class B-7 and Class B-7H Certificates,
to the extent not distributed pursuant to all prior clauses, for the
unreimbursed amounts of Realized Losses, if any, an amount equal to
the aggregate of such unreimbursed Realized Losses previously
allocated to such classes; and
(lxviii) Sixty-eighth, to the Class R Certificates.
On each Distribution Date, amounts received on a Mortgage Loan that
represent recoveries of Subordinate Class Advance Amounts shall be allocated by
the Trustee to the Class of Certificates and the Related Lower-Tier Regular
Interest that advanced the related Subordinate Class Advance Amount in respect
of the distributions to which such Class of Certificates and Related Lower-Tier
Regular Interest were entitled on the Distribution Date on which such
distributions were reduced by such Subordinate Class Advance Amount. Amounts
allocated with respect to interest shall be applied, first, to any related
unpaid Class Interest Shortfalls. On each Distribution Date, the Paying Agent
shall distribute such recoveries of Subordinate Class Advance Amounts allocated
to the related Class of Certificates and Related Lower-Tier Regular Interest
pursuant to this paragraph to such Class and Related Lower-Tier Regular
Interest.
All references to pro rata in the preceding clauses with respect to
interest and Class Interest Shortfalls shall mean pro rata based on the amount
distributable pursuant to such clauses, with respect to distribution of
principal other than for unreimbursed Realized Losses shall mean pro rata based
on Certificate Balance and with respect to distributions with respect to
unreimbursed Realized Losses shall mean pro rata based on the amount of
unreimbursed Realized Losses previously allocated to the applicable Classes.
(c) (i) On each Distribution Date, following the distribution from the
Distribution Account in respect of the Lower-Tier Regular Interests pursuant to
Section 4.01(c)(ii), the Paying Agent shall make distributions of Prepayment
Premiums with respect to any Principal Prepayments received in the related
Collection Period from amounts deposited in the Upper-Tier Distribution Account
pursuant to Section 3.05(c) in the following amounts and order of priority, with
respect to the Certificates of each Class in each case to the extent remaining
amounts of Prepayment Premiums are available therefor:
(I) First, to the Class A-CS1 Certificates, an amount equal to (A)
the present value (discounted at the Discount Rate (as defined
below) for the Class A-CS1 Certificates plus the Spread Rate (as
defined below) for the Class A-CS1 Certificates) of the aggregate
interest that would have been paid in respect of the Class A-CS1
Certificates from the Distribution Date occurring in the
following month until the Notional Balance of the Class A-CS1
Certificates would have been reduced to zero had the related
prepayment not occurred, minus the present value (discounted at
the Discount Rate for the Class A-CS1 Certificates plus the
Spread Rate for the Class A-CS1 Certificates) of the aggregate
interest that will be paid in respect of Class A-CS1 Certificates
from the Distribution Date occurring in the following month until
the Notional Balance of the Class A-CS1 Certificates is reduced
to zero following such prepayment (assuming no further
prepayments are made except that all Mortgage Loans prepay on
Anticipated Repayment Dates where applicable);
(II) Second, to the Class PS-1 Certificates, an amount equal to (A)
the present value (discounted at the Discount Rate for the Class
PS-1 Certificates plus the Spread Rate for the Class PS-1
Certificates) of the aggregate interest that would have been paid
in respect of the Class PS-1 Certificates from the Distribution
Date occurring in the following month until the Notional Balance
of the Class PS-1 Certificates would have been reduced to zero
had the related prepayment not occurred, minus the present value
(discounted at the Discount Rate for the Class PS-1 Certificates
plus the Spread Rate for the Class PS-1 Certificates) of the
aggregate interest that will be paid in respect of Class PS-1
Certificates from the Distribution Date occurring in the
following month until the Notional Balance of the Class PS-1
Certificates is reduced to zero following such prepayment
(assuming no further prepayments are made except that all
Mortgage Loans prepay on Anticipated Repayment Dates where
applicable);
(III) Third, to the Class A-1A Certificates, an amount equal to (A)
the present value (discounted at the Discount Rate for the Class
A-1A Certificates plus the Spread Rate for the Class A-1A
Certificates) of the aggregate principal and interest that would
have been paid in respect of the Class A-1A Certificates from the
Distribution Date occurring in the following month until the
Certificate Balance of the Class A-1A Certificates would have
been reduced to zero had the related prepayment not occurred,
minus the sum of (B) the amount of such prepayment distributed in
respect of the Class A-1A Certificates and (C) the present value
(discounted at the Discount Rate for the Class A-1A Certificates
plus the Spread Rate for the Class A-1A Certificates) of the
aggregate principal and interest that will be paid in respect of
the Class A-1A Certificates from the Distribution Date occurring
in the following month until the Certificate Balance of the Class
A-1A Certificates is reduced to zero following such prepayment
(assuming no further prepayments are made except that all
Mortgage Loans prepay on Anticipated Repayment Dates where
applicable);
(IV) Fourth, to the Class A-1B Certificates, an amount equal to (A)
the present value (discounted at the Discount Rate for the Class
A-1B Certificates plus the Spread Rate for the Class A-1B
Certificates) of the aggregate principal and interest that would
have been paid in respect of the Class A-1B Certificates from the
Distribution Date occurring in the following month until the
Certificate Balance of the Class A-1B Certificates would have
been reduced to zero had the related prepayment not occurred,
minus the sum of (B) the amount of such prepayment distributed in
respect of the Class A-1B Certificates and (C) the present value
(discounted at the Discount Rate for the Class A-1B Certificates
plus the Spread Rate for the Class A-1B Certificates) of the
aggregate principal and interest that will be paid in respect of
the Class A-1B Certificates from the Distribution Date occurring
in the following month until the Certificate Balance of the Class
A-1B Certificates is reduced to zero following such prepayment
(assuming no further prepayments are made except that all
Mortgage Loans prepay on Anticipated Repayment Dates where
applicable); and
(V) Fifth, to the Class A-1C Certificates, an amount equal to (A) the
present value (discounted at the Discount Rate for the Class A-1C
Certificates plus the Spread Rate for the Class A-1C
Certificates) of the aggregate principal and interest that would
have been paid in respect of the Class A-1C Certificates from the
Distribution Date occurring in the following month until the
Certificate Balance of the Class A-1C Certificates would have
been reduced to zero had the related prepayment not occurred,
minus the sum of (B) the amount of such prepayment distributed in
respect of the Class A-1C Certificates and (C) the present value
(discounted at the Discount Rate for the Class A-1C Certificates
plus the Spread Rate for the Class A-1C Certificates) of the
aggregate principal and interest that will be paid in respect of
the Class A-1C Certificates from the Distribution Date occurring
in the following month until the Certificate Balance of the Class
A-1C Certificates is reduced to zero following such prepayment
(assuming no further prepayments are made except that all
Mortgage Loans prepay on Anticipated Repayment Dates where
applicable); and
(VI) Sixth, to the Class A-1D Certificates, an amount equal to (A) the
present value (discounted at the Discount Rate for the Class A-1D
Certificates plus the Spread Rate for the Class A-1D
Certificates) of the aggregate principal and interest that would
have been paid in respect of the Class A-1D Certificates from the
Distribution Date occurring in the following month until the
Certificate Balance of the Class A-1D Certificates would have
been reduced to zero had the related prepayment not occurred,
minus the sum of (B) the amount of such prepayment distributed in
respect of the Class A-1D Certificates and (C) the present value
(discounted at the Discount Rate for the Class A-1D Certificates
plus the Spread Rate for the Class A-1D Certificates) of the
aggregate principal and interest that will be paid in respect of
the Class A-1D Certificates from the Distribution Date occurring
in the following month until the Certificate Balance of the Class
A-1D Certificates is reduced to zero following such prepayment
(assuming no further prepayments are made except that all
Mortgage Loans prepay on Anticipated Repayment Dates where
applicable).
In all clauses above, Prepayment Premiums will only be distributed on a
Distribution Date (i) if the respective Certificate Balance or Notional Balance
of the related Class or Classes is greater than zero on the last Business Day of
the Interest Accrual Period ending immediately prior to such Distribution Date
and (ii) if the amount computed pursuant to the related clause above is greater
than zero. Any Prepayment Premiums remaining following the distributions
described in the preceding clauses (I) through (VI) shall be distributed to
holders of the Class B-7H Certificates regardless of whether the Certificate
Balance thereof has been reduced to zero.
Notwithstanding the foregoing, Prepayment Premiums shall be distributed on any
Distribution Date only to the extent they are received in respect of the
Mortgage Loans in the related Collection Period.
(ii) On each Distribution Date, prior to the distributions to the
Certificates from the Upper-Tier Distribution Account pursuant to Section
4.01(c)(i), the Class A-1A-L Interest shall receive distributions in respect of
Prepayment Premiums distributable to the Class A-1A and Class A-CS1
Certificates, the Class A-1B-L Interest shall receive distributions in respect
of Prepayment Premiums distributable to the Class A-1B Certificates, the Class
A-1C-L Interest shall receive distributions in respect of Prepayment Premiums
distributable to the Class A-1C Certificates, the Class A-1D-L Interest shall
receive distributions in respect of Prepayment Premiums distributable to the
Class A-1D Certificates, the Class A-2-L Interest shall receive distributions in
respect of Prepayment Premiums distributable to the Class PS-1 Certificates and
the Class B-7H-L Interest shall receive distributions in respect of Prepayment
Premiums distributable to the Class B-7H Certificates, in each case from amounts
on deposit in the Distribution Account. The Class A-1A-L, Class A-1B-L, Class
A-1C-L, Class A-1D-L, Class A-2-L and Class B-7H-L Interests shall be entitled
to receive distributions of such Prepayment Premiums regardless of whether their
respective Certificate Balances have been reduced to zero.
(d) (i) On each Distribution Date, Net Default Interest for such
Distribution Date shall be distributed to the Class V-1 Certificates.
(ii) On any applicable Distribution Date, Excess Interest for such
Distribution Date shall be distributed to the Class V-2 Certificates.
(e) The Certificate Balances of each Class of Regular Certificates (other
than the Class A-CS1 and Class PS-1 Certificates) will be reduced without
distribution on any Distribution Date as a write-off to the extent of any
Realized Losses allocated to such Class with respect to such date. Any such
write-offs will be applied to Classes of Regular Certificates in the following
order, in each case until the Certificate Balance of such Class is reduced to
zero: first, to the Class B-7 Certificates and Class B-7H Certificates, pro
rata, based on their respective Certificate Balances; second to the Class B-6
Certificates; third, to the Class B-5 Certificates; fourth, to the Class B-4
Certificates; fifth, to the Class B-3 Certificates; sixth, to the Class B-2
Certificates; seventh, to the Class B-1 Certificates; eighth, to the Class A-8
Certificates; ninth, to the Class A-7 Certificates; tenth, to the Class A-6
Certificates; eleventh, to the Class A-5 Certificates; twelfth, to the Class A-4
Certificates; thirteenth, to the Class A-3 Certificates; fourteenth, to the
Class A-2 Certificates; fifteenth, to the Class A-1E Certificates; and finally,
to the Class A-1A, Class A-1B, A-1C and Class A-1D Certificates, pro rata, based
on their respective Certificate Balances. Any amounts recovered in respect of
amounts previously written off as Realized Losses shall be distributed to the
Classes of Certificates described above in reverse order of allocation of
Realized Losses thereto. Shortfalls in Available Funds due to servicing or
trustee compensation other than the Servicing Fee and the Trustee Fee (including
servicing compensation resulting solely from interest on Advances (to the extent
not payable from Default Interest)), extraordinary expenses of the Trust Fund
(other than indemnification expenses), a reduction in the Mortgage Rate on a
Mortgage Loan by a bankruptcy court pursuant to a plan of reorganization or
pursuant to any of its equitable powers, or otherwise, shall be allocated in the
same manner as Realized Losses.
Realized Losses and such other amounts described above which are applied to
each Class of Certificates will be allocated to reduce the Certificate Balance
of the Related Lower-Tier Regular Interests.
(f) All amounts distributable to a Class of Certificates pursuant to this
Section 4.01 on each Distribution Date shall be allocated pro rata among the
outstanding Certificates in each such Class based on their respective Percentage
Interests. Such distributions shall be made on each Distribution Date other than
the Termination Date to each Certificateholder of record or, in the case of the
Classes of Certificates comprising the Units, each Unitholder of record on the
related Record Date by check mailed by first Class mail to the address set forth
therefor in the Certificate Register or, provided that such Holder holds
Certificates with an aggregate initial Certificate Balance in excess of
$5,000,000, and shall have provided the Paying Agent with wire instructions in
writing at least five Business Days prior to the related Record Date, by wire
transfer of immediately available funds to the account of such Holder at a bank
or other entity located in the United States and having appropriate facilities
therefor. The final distribution on each Certificate shall be made in like
manner, but only upon presentment and surrender of such Certificate at the
office of the Trustee or its agent (which may be the Paying Agent or the
Certificate Registrar acting as such agent) maintained in the Borough of
Manhattan that is specified in the notice to Holders of such final distribution.
(g) Except as otherwise provided in Section 9.01 with respect to an
Anticipated Termination Date, the Trustee shall, no later than the fifteenth day
of the month in the month preceding the month in which the final distribution
with respect to any Class of Certificates is expected to be made, mail to each
Holder of such Class of Certificates, on such date a notice to the effect that:
(A) the Trustee reasonably expects based upon information previously
provided to it 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 Trustee therein specified, and
(B) if such final distribution is made on such Distribution Date, no
interest shall accrue on such Certificates from and after such
Distribution Date;
provided, however, that the Class V-1, Class V-2, Class R and Class LR
Certificates shall remain outstanding until there is no other Class of
Certificates or Lower-Tier Regular Interests outstanding and the Class B-7H
Certificates shall be deemed to be outstanding so long as there are any Mortgage
Loans outstanding that provide for payments of Prepayment Premiums in connection
with voluntary or involuntary prepayments.
Any funds not distributed to any Holder or Holders of such Classes of
Certificates 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
in trust for the benefit of the appropriate non-tendering Holder or Holders. If
any Certificates as to which notice has been given pursuant to this Section
4.01(g) 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 Holders to surrender their Certificates for cancellation
to receive the final distribution with respect thereto. If within one year after
the second notice not all of such Certificates shall have been surrendered for
cancellation, the Trustee may, directly or through an agent, take appropriate
steps to contact the remaining non-tendering Holders concerning surrender of
their Certificates. The costs and expenses of holding such funds in trust and of
contacting such Holders shall be paid out of such funds. If within two years
after the second notice any such Certificates shall not have been surrendered
for cancellation, the Paying Agent shall pay to the Trustee all amounts
distributable to the Holders thereof, and the Trustee shall thereafter hold such
amounts for the benefit of such Holders until the earlier of (i) its termination
as Trustee hereunder and the transfer of such amounts to a successor Trustee and
(ii) the termination of the Trust Fund and distribution of such amounts to the
Class R Certificateholders. No interest shall accrue or be payable to any Holder
on any amount held in trust hereunder or by the Trustee as a result of such
Holder's failure to surrender its Certificate(s) for final payment thereof in
accordance with this Section 4.01(g). Any such amounts transferred to the
Trustee may be invested in Permitted Investments and all income and gain
realized from investment of such funds shall be for the benefit of the Trustee.
(h) Notwithstanding any provision in this Agreement to the contrary, the
aggregate amount distributable to each Class pursuant to this Section 4.01 shall
be reduced by the aggregate amount paid to any Person pursuant to Section 6.03
or Section 8.05(b) and (d), such reduction to be allocated among such Classes
pro rata, based upon the respective amounts so distributable without taking into
account the provision of this Section 4.01(h). Such reduction of amounts
otherwise distributable to a Class shall be allocated first in respect of
interest and second in respect of principal. For purposes of determining Class
Interest Shortfalls and Certificate Balances, the amount of any such reduction
so allocated to a Class shall be deemed to have been distributed to such Class.
(i) On or after any Distribution Date on which the Class B-6 Certificates
are the most subordinate class of Certificates outstanding, the Certificate
Balances of the Class B-6, Class B-5, Class B-4, Class B-3, Class B-2, Class
B-1, Class A-8, Class A-7, Class A-6, Class A-5, Class A-4, Class A-3, Class A-2
and Class A-1E Certificates shall be notionally reduced on any Distribution Date
to the extent of any Delinquency Reduction Amounts or Appraisal Reduction
Amounts with respect to such Distribution Date; provided that (i) if a
Delinquency and an Appraisal Reduction Event occur with respect to the same
Distribution Date and the same Mortgage Loan, the reduction shall equal the
Appraisal Reduction Amount, (ii) following the occurrence of an Appraisal
Reduction Event with respect to any Mortgage Loan, no further Delinquency
Reduction Amounts shall be applied with respect to such Mortgage Loan and any
Delinquency Reduction Amounts previously applied shall be reversed and (iii) for
any Distribution Date, the aggregate of the Appraisal Reduction Amounts and
Delinquency Reduction Amounts shall not exceed the Certificate Balance (as
adjusted by any notional reductions) of the most subordinate class of
Certificates outstanding among the Class B-6, Class B-5, Class B-4, Class B-3,
Class B-2, Class B-1, Class A-8, Class A-7, Class A-6, Class A-5, Class A-4,
Class A-3, Class A-2 and Class A-1E Certificates (and to the extent the
aggregate of the Appraisal Reduction Amounts and Delinquency Reduction Amounts
exceeds such Certificate Balance, such excess shall be applied, subject to any
reversal described below, to notionally reduce the next most subordinate Class
of Certificates on the next Distribution Date). Any such reductions shall be
applied notionally, first, to the Class B-6 Certificates, second, to the Class
B-5 Certificates, third, to the Class B-4 Certificates, fourth, to the Class B-3
Certificates, fifth, to the Class B-2 Certificates, sixth, to the Class B-1
Certificates, seventh, to the Class A-8 Certificates, eighth, to the Class A-7
Certificates, ninth, to the Class A-6 Certificates, tenth to the Class A-5
Certificate, eleventh to the Class A-4 Certificates, twelfth, to the Class A-3
Certificates, thirteenth, to the Class A-2 Certificates and finally, to the
Class A-1E Certificates (provided in each case that no Certificate Balance in
respect of any such class shall be notionally reduced below zero). Any notional
reduction of the Certificate Balance of such Certificates as a result of any
Delinquency or Appraisal Reduction Event shall be reversed to the extent there
is a recovery of any or all of the Delinquency Amounts or a Realized Loss.
Additionally, a reversal or additional reduction shall occur to the extent that
the Servicer's Appraisal Estimate is less than or greater than the Appraisal
Reduction as adjusted to take into account a subsequent independent MAI
Appraisal. For purposes of calculating Interest Accrual Amounts, any such
reduction or reversal made on the Distribution Date occurring in an Interest
Accrual Period shall be deemed to have been made on the first day of such
Interest Accrual Period.
(j) Shortfalls in Available Funds resulting from Prepayment Interest
Shortfalls in excess of Servicer Prepayment Interest Shortfalls, shall be
allocated to, and be deemed distributed to, each Class of Certificates, pro
rata, based upon the Class Interest Distribution Amount (plus the aggregate
Reduction Interest Distribution Amount, in the case of the Class PS-1
Certificates) distributable to each such Class. Servicer Prepayment Interest
Shortfalls shall be deposited by the Servicer into the Collection Account on or
prior to the Servicer Remittance Date.
Shortfalls in Available Funds resulting from unanticipated indemnification
expenses pursuant to Section 6.03 shall be allocated to each Class of
Certificates, pro rata, based on amounts distributable to each Class and shall
be allocated, first, in respect of interest and, second, in respect of
principal. Unanticipated indemnification expenses which are applied to each
Class of Certificates shall be allocated to the Related Lower-Tier Regular
Interests.
Prepayment Interest Shortfalls in excess of Servicer Prepayment Interest
Shortfalls shall be allocated prior to the allocation of unanticipated
indemnification expenses.
SECTION 4.02. Statements to Certificateholders; Reports by Trustee;
Other Information Available to the Holders and Others.
(a) On each Distribution Date, based upon the information set forth in the
Servicer Remittance Report prepared by the Servicer and the other reports
prepared by the Servicer and Special Servicer relating to such Distribution
Date, and only to the extent such information is provided to the Trustee by the
Servicer or Special Servicer, the Trustee shall prepare and forward, or shall
cause the Paying Agent to prepare and forward, by first class mail to each
Holder of a Certificate, with copies to the Depositor, the Servicer, the Special
Servicer, each Underwriter and each Rating Agency a written report (a
"Distribution Date Statement") setting forth the following information:
(i) the aggregate amount of the distribution to be made on such
Distribution Date to the Holders of each Class of Certificates (other
than the Class R and Class LR Certificates) applied to reduce the
respective Certificate Balance thereof;
(ii) the aggregate amount of the distribution to be made on such
Distribution Date to the Holders of each Class of Certificates
allocable to (A) the Interest Accrual Amount less any Prepayment
Interest Shortfalls (in excess of the Prepayment Interest Shortfalls
paid by the Servicer pursuant to Section 4.01(j)), (B) Prepayment
Premiums and/or (C) Reduction Interest Distribution Amounts;
(iii) the aggregate Certificate Balance or aggregate Notional
Balance, as the case may be, of each Class of Certificates, before and
after giving effect to the distributions made on such Distribution
Date, separately identifying any reduction in the aggregate
Certificate Balance (or, if applicable, the aggregate Notional
Balance) of each such Class due to Realized Losses and/or additional
Trust Fund expenses;
(iv) the Pass-Through Rate and the Reduction Interest
Pass-Through Rate, if any, for each Class of Certificates applicable
to such Distribution Date;
(v) the number of outstanding Mortgage Loans and the aggregate
unpaid principal balance of the Mortgage Loans at the close of
business on the related Due Date;
(vi) the number and aggregate unpaid principal balance of
Mortgage Loans (A) delinquent one Collection Period, (B) delinquent
two Collection Periods, (C) delinquent three or more Collection
Periods, (D) that are Specially Serviced Mortgage Loans that are not
delinquent, or (E) as to which foreclosure proceedings have been
commenced;
(vii) with respect to any REO Mortgage Loan as to which the
related Mortgaged Property became an REO Property during the preceding
calendar month, the city, state, property type, latest Debt Service
Coverage Ratio, Stated Principal Balance and the unpaid principal
balance of such Mortgage Loan as of the date it became an REO Mortgage
Loan;
(viii) as to any Mortgage Loan repurchased by the Mortgage Loan
Seller or otherwise liquidated or disposed of during the related
Collection Period, (A) the Loan Number of the related Mortgage Loan
and (B) the amount of proceeds of any repurchase of a Mortgage Loan,
Liquidation Proceeds and/or other amounts, if any, received thereon
during the related Collection Period and the portion thereof included
in the Available Funds for such Distribution Date;
(ix) with respect to any REO Property included in the Trust Fund
at the close of business on the related Due Date (A) the Loan Number
of the related Mortgage Loan, (B) the value of such REO Property based
on the most recent appraisal or valuation, and (C) the aggregate
amount of Net Income and other revenues collected by the Special
Servicer with respect to such REO Property during the related
Collection Period and the portion thereof included in the Available
Funds for such Distribution Date;
(x) with respect to any REO Property sold or otherwise disposed
of during the related Collection Period and for which a Final Recovery
Determination has been made, (A) the Loan Number of the related
Mortgage Loan, (B) the Realized Loss attributable to such Mortgage
Loan, (C) the amount of sale proceeds and other amounts, if any,
received in respect of such REO Property during the related Collection
Period and the portion thereof included in the Available Funds for
such Distribution Date and (D) the date of the Final Recovery
Determination;
(xi) [Intentionally left blank];
(xii) the aggregate amount of Principal Prepayments (other than
Liquidation Proceeds and Insurance Proceeds) made during the related
Collection Period and any Prepayment Interest Shortfall in excess of
Servicer Prepayment Interest Shortfall for such Distribution Date;
(xiii) the amount of Property Advances and P&I Advances
outstanding (net of reimbursed Advances) which have been made by the
Servicer, the Special Servicer the Trustee, or the Fiscal Agent in the
aggregate and by Mortgaged Property or Mortgage Loan, as the case may
be;
(xiv) the aggregate amount of Servicing Fees, Special Servicing
Fees, Principal Recovery Fees and other servicing compensation
retained by or paid to the Servicer and the Special Servicer during
the related Collection Period;
(xv) the amount of any Appraisal Reduction Amounts allocated
during the related Collection Period on a loan-by-loan basis; the
total Appraisal Reduction Amounts allocated during the related
Collection Period; and the total Appraisal Reduction Amounts as of
such Distribution Date on a loan-by-loan basis; and
(xvi) the amount of Realized Losses, Trust Fund expenses, Class
Interest Shortfalls, and Reduction Interest Shortfalls if any,
incurred with respect to the Mortgage Loans during the related
Collection Period and in the aggregate for all prior Collection
Periods (except to the extent reimbursed or paid).
In the case of information furnished pursuant to subclauses (i), (ii) and
(iii) above, the amounts shall be expressed as a dollar amount in the aggregate
for all Certificates of each applicable Class and per $1,000 of original
Certificate Balance or Notional Balance, as the case may be.
On each Distribution Date, the Trustee shall forward to each Holder of a
Class R or Class LR Certificate a copy of the reports forwarded to the other
Certificateholders on such Distribution Date and a statement setting forth the
amounts, if any, actually distributed with respect to the Class R or Class LR
Certificates on such Distribution Date. Such obligation of the Trustee shall be
deemed to have been satisfied to the extent that it provided substantially
comparable information pursuant to any requirements of the Code as from time to
time in force.
Within a reasonable period of time after the end of each calendar year, the
Trustee shall send to each Person who at any time during the calendar year was a
Certificateholder of record, a report summarizing on an annual basis (if
appropriate) the items provided to Certificateholders pursuant to Section
4.02(a)(ii) above and such other information as may be required to enable such
Certificateholders to prepare their federal income tax returns. Such information
shall include the amount of original issue discount accrued on each Class of
Certificates held by Persons other than Holders exempted from the reporting
requirements and information regarding the expenses of the Trust. Such
requirement shall be deemed to be satisfied to the extent such information is
provided pursuant to applicable requirements of the Code from time to time in
force.
(b) On each Distribution Date, the Trustee shall deliver or cause to be
delivered by first class mail to each Certificateholder, each prospective
investor in a Certificate (upon request), the Depositor, the Servicer, the
Special Servicer, each Underwriter, and each Rating Agency a report containing
information regarding the Mortgage Loans as of the end of the related Collection
Period (after giving effect to Principal Prepayments and other collections of
principal required to be distributed on such Distribution Date), which report
shall contain substantially the categories of information regarding the Mortgage
Loans set forth in the Prospectus under the caption "Description of the Mortgage
Pool--Certain Terms and Conditions of the Mortgage Loans" (calculated, where
applicable, on the basis of the most recent relevant information provided by the
Borrowers to the Servicer or the Special Servicer, as the case may be, and by
the Servicer or the Special Servicer, as the case may be, to the Trustee), which
shall also include a loan-by-loan listing (in descending balance order) showing
loan name, property type, location, unpaid principal balance, Mortgage Rate,
paid through date, maturity date, net interest portion of the Monthly Payment,
principal portion of the Monthly Payment and any Prepayment Premium. Such report
shall be made available electronically; provided, however, that the Trustee will
provide Certificateholders with a written copy of such report upon written
request.
(c) On each Distribution Date, the Trustee shall deliver or shall cause to
be delivered by first class mail to each Certificateholder, each prospective
investor in a Certificate (upon request), Beneficial Owner (if known), the
Depositor, each Underwriter and each Rating Agency a copy of the Comparative
Financial Status Report, the Delinquent Loan Status Report, the Historical Loss
Estimate Report, the Historical Loan Modification Report, the REO Status Report
and a Watch List (indicating those Mortgage Loans that the Servicer has
determined are in jeopardy of becoming Specially Serviced Mortgage Loans)
provided by the Servicer to the Trustee pursuant to Section 3.13(c) and 3.13(e)
on the Servicer Remittance Date. The information that pertains to Specially
Serviced Mortgage Loans and REO Properties reflected in such reports shall be
based solely upon the reports delivered by the Special Servicer to the Servicer
at least one Business Day prior to the related Servicer Remittance Date. Absent
manifest error, (i) none of the Servicer, the Special Servicer or the Trustee
shall be responsible for the accuracy or completeness of any information
supplied to it by a Borrower or third party that is included in any reports,
statements, materials or information prepared or provided by the Servicer, the
Special Servicer or the Trustee, as applicable, (ii) the Trustee shall not be
responsible for the accuracy or completeness of any information supplied to it
by the Servicer or Special Servicer that is included in any reports, statements,
materials or information prepared or provided by the Servicer or Special
Servicer, as applicable, and (iii) the Trustee shall be entitled to conclusively
rely upon the Servicer's reports and the Special Servicer's reports without any
duty or obligation to recompute, verify or re-evaluate any of the amounts or
other information stated therein.
The Trustee shall deliver a copy of each Operating Statement Analysis
report and NOI Adjustment Worksheet that it receives from the Servicer and
Special Servicer to the Depositor, each Underwriter and each Rating Agency
promptly after its receipt thereof. Upon request, the Trustee shall make such
reports available to the Certificateholders and the Special Servicer. Upon
request, the Trustee shall also make available any NOI Adjustment Worksheet for
a Mortgaged Property or REO Property in the possession of the Trustee to any
potential investor in the Certificates.
(d) The Trustee shall make available at its offices, during normal business
hours, upon not less than two Business Day's prior notice, for review by any
Certificateholder, any prospective investor in a Certificate, the Depositor, the
Servicer, the Special Servicer, either Rating Agency, and any other Person to
whom the Depositor believes such disclosure is appropriate, originals or copies
of documents relating to the Mortgage Loans and any related REO Properties to
the extent in its possession, including, without limitation, the following items
(except to the extent prohibited by applicable law or by the terms of any of the
Mortgage Documents): (i) this Agreement and any amendments thereto; (ii) all
Distribution Date Statements delivered to the Certificateholders since the
Closing Date; (iii) all annual Officers' Certificates and all accountants'
reports delivered by the Servicer or Special Servicer to the Trustee since the
Closing Date regarding compliance with the relevant agreements; (iv) the most
recent property inspection report prepared by or on behalf of the Servicer or
the Special Servicer in respect of each Mortgaged Property; (v) the most recent
annual (or more frequent, if available) operating statements, rent rolls (to the
extent such rent rolls have been made available by the related Borrower) and/or
lease summaries and retail sales information, if any, collected by or on behalf
of the Servicer or the Special Servicer in respect to each Mortgaged Property;
(vi) any and all modifications, waivers and amendments of the terms of a
Mortgage Loan entered into by the Servicer and/or the Special Servicer; (vii)
any and all Officers' Certificates and other evidence delivered to or by the
Trustee to support the Servicer's, the Trustee's or the Fiscal Agent's, as the
case may be, determination that any Advance, if made, would be a Nonrecoverable
Advance; and (viii) any other materials not otherwise required to be provided
hereunder provided to a requesting Certificateholder as provided in this
Agreement in situations where such requesting Certificateholder declined to
enter into a confidentiality agreement with the Servicer. Copies of any and all
of the foregoing items will be available from the Trustee upon request. The
Trustee will be permitted to require payment by the requesting party (other than
a Rating Agency) of a sum sufficient to cover the reasonable costs and expenses
of making such information available and providing any copies thereof. The
Trustee's obligation under this Section 4.02(d) to make available any document
is subject to the Trustee's receipt of such document.
The Trustee shall provide access to the information in the Distribution
Date Statements referred to in Section 4.02(a) telephonically through the
Trustee's ASAP System or by such other mechanism as the Trustee may have in
place from time to time.
(e) On or within two Business Days following each Distribution Date, the
Trustee shall prepare and furnish to the Financial Market Publisher and the
Underwriter, using the format and media mutually agreed upon by the Trustee, the
Financial Market Publisher and the Underwriters, the following information
regarding each Mortgage Loan and any other information reasonably requested by
the Underwriters and available to the Trustee:
(i) the Loan Number;
(ii) each related Mortgage Rate; and
(iii) the principal balance as of such Distribution Date.
The Trustee shall only be obligated to deliver the statements, reports and
information contemplated by Section 4.02 to the extent it receives the necessary
underlying information from the Servicer or the Special Servicer and shall not
be liable for any failure to deliver any thereof on the prescribed due dates, to
the extent caused by failure to receive timely such underlying information.
Nothing herein shall obligate the Trustee, the Servicer or the Special Servicer
to violate any applicable law prohibiting disclosure of information with respect
to any Borrower and the failure of the Trustee, the Servicer or the Special
Servicer to disseminate information for such reason shall not be a breach
hereof.
SECTION 4.03. Compliance with Withholding Requirements.
Notwithstanding any other provision of this Agreement, the Paying Agent
shall comply with all federal withholding requirements with respect to payments
to Certificateholders of interest or original issue discount that the Paying
Agent reasonably believes are applicable under the Code. The consent of
Certificateholders shall not be required for any such withholding. The Paying
Agent agrees that it will not withhold with respect to payments of interest or
original issue discount in the case of a Holder that is non-U.S. Person that has
furnished or caused to be furnished (i) an effective Form W-8 or Form W-9 or an
acceptable substitute form or a successor form and who is not a "10-percent
shareholder" within the meaning of Code Section 871(h)(3)(B) or a "controlled
foreign corporation" described in Code Section 881(c)(3)(C) with respect to the
Trust Fund or the Depositor, or (ii) an effective Form 4224 or an acceptable
substitute form or a successor form. In the event the Paying Agent or its agent
withholds any amount from interest or original issue discount payments or
advances thereof to any Certificateholder pursuant to federal withholding
requirements, the Paying Agent shall indicate the amount withheld to such
Certificateholder or, in the case of the Classes of Certificates comprising the
Units, such Unitholder. Any amount so withheld shall be treated as having been
distributed to such Certificateholder or Unitholder for all purposes of this
Agreement.
SECTION 4.04. REMIC Compliance.
(a) The parties intend that each of the Upper-Tier REMIC and the Lower-Tier
REMIC shall constitute, and that the affairs of each of the Upper-Tier REMIC and
the Lower-Tier REMIC shall be conducted so as to qualify it as, a "real estate
mortgage investment conduit" as defined in, and in accordance with, the REMIC
Provisions, and the provisions hereof shall be interpreted consistently with
this intention. In furtherance of such intention, the Trustee shall, to the
extent permitted by applicable law, act as agent, and is hereby appointed to act
as agent, of each of the Upper-Tier REMIC and the Lower-Tier REMIC and shall on
behalf of each of the Upper-Tier REMIC and the Lower-Tier REMIC: (i) prepare,
sign and file, or cause to be prepared and filed, all required Tax Returns for
each of the Upper-Tier REMIC and the Lower-Tier REMIC, using a calendar year as
the taxable year for each of the Upper-Tier REMIC and the Lower-Tier REMIC when
and as required by the REMIC Provisions and other applicable federal, state or
local income tax laws; (ii) make an election, on behalf of each of the
Upper-Tier REMIC and the Lower-Tier REMIC, to be treated as a REMIC on Form 1066
for its first taxable year, in accordance with the REMIC Provisions; (iii)
prepare and forward, or cause to be prepared and forwarded, to the
Certificateholders and the Internal Revenue Service and applicable state and
local tax authorities all information reports as and when required to be
provided to them in accordance with the REMIC Provisions of the Code and Section
4.07; (iv) if the filing or distribution of any documents of an administrative
nature not addressed in clauses (i) through (iii) of this Section 4.05(a) is
then required by the REMIC Provisions in order to maintain the status of the
Upper-Tier REMIC or the Lower-Tier REMIC as a REMIC or is otherwise required by
the Code, prepare, sign and file or distribute, or cause to be prepared and
signed and filed or distributed, such documents with or to such Persons when and
as required by the REMIC Provisions or the Code or comparable provisions of
state and local law; (v) within thirty days of the Closing Date, furnish or
cause to be furnished to the Internal Revenue Service, on Form 8811 or as
otherwise may be required by the Code, the name, title and address of the Person
that the Holders of the Certificates may contact for tax information relating
thereto (and the Trustee shall act as the representative of each of the
Upper-Tier REMIC and the Lower-Tier REMIC for this purpose), together with such
additional information as may be required by such Form, and shall update such
information at the time or times and in the manner required by the Code (and the
Depositor agrees within 10 Business Days of the Closing Date to provide any
information reasonably requested by the Servicer, the Special Servicer or the
Trustee and necessary to make such filing); and (vi) maintain such records
relating to each of the Upper-Tier REMIC and the Lower-Tier REMIC as may be
necessary to prepare the foregoing returns, schedules, statements or
information, such records, for federal income tax purposes, to be maintained on
a calendar year and on an accrual basis. The Holder of the largest Percentage
Interest in the Class R or Class LR Certificates shall be the tax matters person
of the Upper-Tier REMIC or the Lower-Tier REMIC, respectively, pursuant to
Treasury Regulations Section 1.860F-4(d). If more than one Holder should hold an
equal Percentage Interest in the Class R or Class LR Certificates larger than
that held by any other Holder, the first such Holder to have acquired such Class
R or Class LR Certificates shall be such tax matters person. The Trustee shall
act as attorney-in-fact and agent for the tax matters person of each of the
Upper-Tier REMIC and Lower-Tier REMIC, and each Holder of a Percentage Interest
in the Class R or Class LR Certificates, by acceptance hereof, is deemed to have
consented to the Trustee's appointment in such capacity and agrees to execute
any documents required to give effect thereto, and any fees and expenses
incurred by the Trustee in connection with any audit or administrative or
judicial proceeding shall be paid by the Trust Fund. The Trustee shall not
intentionally take any action or intentionally omit to take any action if, in
taking or omitting to take such action, the Trustee knows that such action or
omission (as the case may be) would cause the termination of the REMIC status of
the Upper-Tier REMIC or the Lower-Tier REMIC or the imposition of tax on the
Upper-Tier REMIC or the Lower-Tier REMIC (other than a tax on income expressly
permitted or contemplated to be received by the terms of this Agreement).
Notwithstanding any provision of this paragraph to the contrary, the Trustee
shall not be required to take any action that the Trustee in good faith believes
to be inconsistent with any other provision of this Agreement, nor shall the
Trustee be deemed in violation of this paragraph if it takes any action
expressly required or authorized by any other provision of this Agreement, and
the Trustee shall have no responsibility or liability with respect to any act or
omission of the Depositor, the Servicer or the Special Servicer which does not
enable the Trustee to comply with any of clauses (i) through (vi) of the fifth
preceding sentence or which results in any action contemplated by clauses (i) or
(ii) of the next succeeding sentence. In this regard the Trustee shall (i)
exercise reasonable care not to allow the occurrence of any "prohibited
transactions" within the meaning of Code Section 860F(a), unless the party
seeking such action shall have delivered to the Trustee an Opinion of Counsel
(at such party's expense) that such occurrence would not (A) result in a taxable
gain, (B) otherwise subject the Upper-Tier REMIC or Lower-Tier REMIC to tax
(other than a tax at the highest marginal corporate tax rate on net income from
foreclosure property), or (C) cause either the Upper-Tier REMIC or Lower-Tier
REMIC to fail to qualify as a REMIC; and (ii) exercise reasonable care not to
allow the Trust Fund to receive income from the performance of services or from
assets not permitted under the REMIC Provisions to be held by a REMIC (provided,
however, that the receipt of any income expressly permitted or contemplated by
the terms of this Agreement shall not be deemed to violate this clause). None of
the Servicer, the Special Servicer and the Depositor shall be responsible or
liable (except in connection with any act or omission referred to in the two
preceding sentences) for any failure by the Trustee to comply with the
provisions of this Section 4.04. The Depositor, the Servicer and the Special
Servicer shall cooperate in a timely manner with the Trustee in supplying any
information within the Depositor's, the Servicer's or the Special Servicer's
control (other than any confidential information) that is reasonably necessary
to enable the Trustee to perform its duties under this Section 4.04.
(b) The following assumptions are to be used for purposes of determining
the anticipated payments of principal and interest for calculating the original
yield to maturity and original issue discount with respect to the Regular
Certificates: (i) each Mortgage Loan will pay principal and interest in
accordance with its terms and scheduled payments will be timely received on
their Due Dates, provided that the Mortgage Loans will prepay in accordance with
the Prepayment Assumption; (ii) none of the Servicer, the Depositor and the
Class LR Certificateholders will exercise the right described in Section 9.01 of
this Agreement to cause early termination of the Trust Fund; and (iii) no
Mortgage Loan is repurchased by the Mortgage Loan Seller, the Depositor or an
Mortgage Loan Seller pursuant to Article II hereof. Unless and until required
otherwise by applicable Treasury Regulations, the Trustee shall treat the Units
as a single aggregate debt instrument for original issue discount computation
and reporting purposes.
SECTION 4.05. Imposition of Tax on the Trust Fund.
In the event that any tax, including interest, penalties or assessments,
additional amounts or additions to tax, is imposed on the Upper-Tier REMIC or
Lower-Tier REMIC, such tax shall be charged against amounts otherwise
distributable to the Holders of the Certificates; provided, that any taxes
imposed on any net income from foreclosure property pursuant to Code Section
860G(d) or any similar tax imposed by a state or local jurisdiction shall
instead be treated as an expense of the related REO Property in determining Net
REO Proceeds with respect to the REO Property (and until such taxes are paid,
the Special Servicer from time to time shall withdraw from the REO Account and
transfer to the Trustee amounts reasonably determined by the Trustee to be
necessary to pay such taxes, which the Trustee shall maintain in a separate,
non-interest-bearing account, and the Trustee shall deposit in the Collection
Account the excess determined by the Trustee from time to time of the amount in
such account over the amount necessary to pay such taxes) and shall be paid
therefrom; provided that any such tax imposed on net income from foreclosure
property that exceeds the amount in any such reserve shall be retained from
Available Funds as provided in Section 3.06(viii) and the next sentence. Except
as provided in the preceding sentence, the Trustee is hereby authorized to and
shall retain or cause to be retained from Available Funds sufficient funds to
pay or provide for the payment of, and to actually pay, such tax as is legally
owed by the Upper-Tier REMIC or Lower-Tier REMIC (but such authorization shall
not prevent the Trustee from contesting, at the expense of the Trust Fund, any
such tax in appropriate proceedings, and withholding payment of such tax, if
permitted by law, pending the outcome of such proceedings). The Trustee is
hereby authorized to and shall segregate or cause to be segregated, into a
separate non-interest bearing account, (i) the net income from any "prohibited
transaction" under Code Section 860F(a) or (ii) the amount of any contribution
to the Upper-Tier REMIC or Lower-Tier REMIC after the Startup Day that is
subject to tax under Code Section 860G(d) and use such income or amount, to the
extent necessary, to pay such tax (and return the balance thereof, if any, to
the Collection Account or the Upper-Tier Distribution Account, as the case may
be). To the extent that any such tax is paid to the Internal Revenue Service,
the Trustee shall retain an equal amount from future amounts otherwise
distributable to the Holders of the Class R or the Class LR Certificates as the
case may be, and shall distribute such retained amounts to the Holders of
Regular Certificates or Lower-Tier Regular Interests, as applicable, until they
are fully reimbursed and then to the Holders of the Class R Certificates or the
Class LR Certificates, as applicable. Neither the Servicer, the Special Servicer
nor the Trustee shall be responsible for any taxes imposed on the Upper-Tier
REMIC or Lower-Tier REMIC except to the extent such tax is attributable to a
breach of a representation or warranty of the Servicer, the Special Servicer or
the Trustee or an act or omission of the Servicer, the Special Servicer or the
Trustee in contravention of this Agreement in both cases, provided, further,
that such breach, act or omission could result in liability under Section 6.03,
in the case of the Servicer or Section 4.04 or 8.01, in the case of the Trustee.
Notwithstanding anything in this Agreement to the contrary, in each such case,
the Servicer or the Special Servicer shall not be responsible for Trustee's
breaches, acts or omissions, and the Trustee shall not be responsible for the
breaches, acts or omissions of the Servicer or the Special Servicer.
SECTION 4.06. Remittances; P&I Advances.
(a) "Applicable Monthly Payment" shall mean, for any Mortgage Loan with
respect to any month, (A) if such Mortgage Loan is delinquent as to its Balloon
Payment (including any such Mortgage Loan as to which the related Mortgaged
Property has become an REO Property), the related Assumed Scheduled Payment, (B)
if such Mortgage Loan has been extended in accordance with the terms and
conditions otherwise set forth in this Agreement, the Minimum Defaulted Monthly
Payment and (C) if such Mortgage Loan is not described by the preceding two
sentences (including any such Mortgage Loan as to which the related Mortgaged
Property has become an REO Property), the Monthly Payment (after giving effect
to any modification other than as described in (A) or (B) above); provided,
however, that for purposes of calculating the amount of any P&I Advance required
to be made by the Servicer, the Trustee or the Fiscal Agent, notwithstanding the
amount of such Applicable Monthly Payment, interest shall be calculated at the
Mortgage Pass-Through Rate. The Applicable Monthly Payment shall be reduced, for
purposes of P&I Advances, by any modifications pursuant to Section 3.30 or
otherwise and by any reductions by a bankruptcy court pursuant to a plan of
reorganization or pursuant to any of its equitable powers.
(b) On the Servicer Remittance Date immediately preceding each Distribution
Date, the Servicer shall:
(i) remit to the Trustee for deposit in the Distribution Account an amount
equal to the Prepayment Premiums received by the Servicer or Special
Servicer in the Collection Period preceding such Distribution Date;
(ii) remit to the Trustee for deposit in the Distribution Account an amount
equal to the aggregate of the Available Funds (other than P&I
Advances) and Subordinate Class Advance Recoveries for such
Distribution Date; and
(iii) make a P&I Advance, by depositing into the Distribution Account, in
an amount equal to the sum of the Applicable Monthly Payments for each
Mortgage Loan to the extent such amounts were not received on such
Mortgage Loan as of the close of business on the immediately preceding
Due Date (and therefore are not included in the remittance described
in the preceding clause (ii)).
(c) [Intentionally left blank].
(d) Notwithstanding Section 4.06(b)(iii), the Servicer shall (i) make only
one full advance in respect of each Mortgage Loan pursuant to such Section in
respect of the most subordinate Class of Certificates then outstanding unless
the related Delinquency is cured prior to the following Due Date and (ii) not
make any P&I Advance in respect of Reduction Interest Distribution Amounts and
Reduction Interest Shortfalls, and accordingly, the Servicer may reduce the
aggregate amount of P&I Advances to be deposited by the Servicer on the related
Servicer Remittance Date in respect of such amounts the Servicer is not required
to advance. For purposes of clause (i) of the preceding sentence, the Servicer
shall reduce the aggregate amount of the P&I Advance it would otherwise be
required to make with respect to any Mortgage Loans that have had more than one
uncured Delinquency by the lesser of (a) the total amount that would be
distributable to the most subordinate outstanding Class in respect of all
Mortgage Loans on such Distribution Date if the Servicer were to make a full P&I
Advance and (b) the amount of the delinquent Monthly Payment on such Mortgage
Loans. In the event that there is more than one Mortgage Loan that has had more
than one uncured Delinquency as of any Servicer Remittance Date and the amount
determined pursuant to clause (b) of the preceding sentence exceeds the P&I
amount determined pursuant to clause (a) thereof, the P&I Advance that the
Servicer makes in respect of such Delinquent Loans (i.e., the amount by which
clause (b) exceeds clause (a) will be deemed to have been made in respect of
such delinquent Monthly Payment, pro rata in accordance with the amounts of
delinquent Monthly Payments. (The first P&I Advance made by the Servicer in
respect of a Mortgage Loan shall be deemed to be in respect of the most
subordinate Class for purposes of clause (i) of the last sentence of this
paragraph.) In addition, on any Servicer Remittance Date on which the Servicer
is not required to make a P&I Advance for the benefit of the most subordinate
class as described above, the Servicer shall initially make such P&I Advance
(for accounting purposes only) and shall, immediately subsequent to the making
of the P&I Advance on such Servicer Remittance Date, reimburse itself for such
P&I Advance from amounts otherwise distributable to such most subordinate class
on the related Distribution Date (such amount of reimbursement or any amount not
advanced by the Servicer which, if advanced, could have been so reimbursed, the
"Subordinate Class Advance Amount"). The Trustee shall provide to the Servicer
written statements one Business Day prior to the Servicer Remittance Date
listing (i) the aggregate Reduction Interest Distribution Amounts and Reduction
Interest Shortfalls for such Distribution Date and (ii) the distribution due to
the Holders of the most subordinate Class of Certificates.
(e) The Servicer shall not be required or permitted to make an advance for
Excess Interest or Default Interest or in respect of Reduction Interest
Distribution Amounts and Reduction Interest Shortfalls. The amount required to
be advanced by the Servicer in respect of Applicable Monthly Payments on
Mortgage Loans that have been subject to an Appraisal Reduction Event will equal
the product of (i) the amount required to be advanced by the Servicer without
giving effect to such Appraisal Reduction Amounts and (ii) a fraction, the
numerator of which is the Stated Principal Balance of the Mortgage Loan (as of
the last day of the related Collection Period) less any Appraisal Reduction
Amounts thereof and the denominator of which is the Stated Principal Balance (as
of the last day of the related Collection Period). The amount to be advanced by
the Servicer in respect of any Mortgage Loan on any Distribution Date shall be
reduced by the greater of the reduction in respect of any Appraisal Reduction
Event and the reduction described in clause (d)(i) above.
(f) Any amount advanced by the Servicer pursuant to Section 4.06(b)(iii)
shall constitute a P&I Advance for all purposes of this Agreement and the
Servicer shall be entitled to reimbursement (with interest at the Advance Rate)
thereof to the full extent as otherwise set forth in this Agreement.
(g) If as of 11:00 a.m., New York City time, on any Distribution Date the
Servicer shall not have made the P&I Advance required to have been made on the
related Servicer Remittance Date pursuant to Section 4.06(b)(iii), the Trustee
shall immediately notify the Fiscal Agent by telephone promptly confirmed in
writing, and the Trustee shall no later than 12:00 noon, New York City time, on
such Business Day deposit into the Distribution Account in immediately available
funds an amount equal to the P&I Advances otherwise required to have been made
by the Servicer. If the Trustee fails to make any P&I Advance required to be
made under this Section 4.06, the Fiscal Agent shall make such P&I Advance not
later than 2:00 p.m., New York City time, on such Business Day and, thereby, the
Trustee shall not be in default under this Agreement.
(h) None of the Servicer, the Trustee or the Fiscal Agent shall be
obligated to make a P&I Advance as to any Monthly Payment or Assumed Scheduled
Payment or Minimum Defaulted Monthly Payment on any date on which a P&I Advance
is otherwise required to be made by this Section 4.06 if the Servicer, the
Trustee or Fiscal Agent, as applicable, determines that such advance will be a
Nonrecoverable Advance. The Servicer shall be required to provide notice to the
Trustee and the Fiscal Agent on or prior to the Servicer Remittance Date of any
such non-recoverability determination made on or prior to such date. The Trustee
and the Fiscal Agent shall be entitled to rely, conclusively, on any
determination by the Servicer that a P&I Advance, if made, would be a
Nonrecoverable Advance (and with respect to a P&I Advance, the Trustee or the
Fiscal Agent, as applicable, shall rely on the Servicer's determination that the
Advance would be a Nonrecoverable Advance if the Trustee or Fiscal Agent, as
applicable, determines that it does not have sufficient time to make such
determination); provided, however, that if the Servicer has failed to make a P&I
Advance for reasons other than a determination by the Servicer that such Advance
would be a Nonrecoverable Advance, the Trustee or Fiscal Agent, as applicable,
shall make such advance within the time periods required by Section 4.06(g)
unless the Trustee or the Fiscal Agent, in good faith, makes a determination
prior to the times specified in Section 4.06(g) that such advance would be a
Nonrecoverable Advance. The Trustee and the Fiscal Agent, in determining whether
or not an Advance previously made is, or a proposed Advance, if made, would be,
a Nonrecoverable Advance shall be subject to the standards applicable to the
Servicer hereunder.
(i) The Servicer, the Trustee or the Fiscal Agent, as applicable, shall be
entitled to the reimbursement of P&I Advances it makes to the extent permitted
pursuant to Section 3.06(ii) of this Agreement together with any related Advance
Interest Amount in respect of such P&I Advances to the extent permitted pursuant
to Section 3.06(iii) and the Servicer and Special Servicer hereby covenant and
agree to promptly seek and effect the reimbursement of such Advances from the
related Borrowers to the extent permitted by applicable law and the related
Mortgage Loan.
SECTION 4.07. Grant or Trust Reporting.
The parties intend that the portions of the Trust Fund consisting of (i)
the Default Interest and the Default Interest Distribution Account and (ii) the
Excess Interest and the Excess Interest Distribution Account shall constitute,
and that the affairs of the Trust Fund (exclusive of the Trust REMICs) shall be
conducted so as to qualify such portion as a "grantor trust" under the Code, and
the provisions hereof shall be interpreted consistently with this intention. In
furtherance of such intention, the Trustee shall furnish or cause to be
furnished to Class V-1 and Class V-2 Certificateholders and shall file or cause
to be filed with the Internal Revenue Service together with Form 1041 or such
other form as may be applicable, income with respect to their applicable share
of Default Interest and the amount of any interest on unreimbursed Advances
payable to the Servicer, the Trustee and the Fiscal Agent, as applicable,
therefrom pursuant to Section 3.06(iii) in the case of the Class V-1
Certificates, and Excess Interest in the case of the Class V-2 Certificates, at
the time or times and in the manner required by the Code.
ARTICLE V
THE CERTIFICATES
SECTION 5.01. The Certificates.
(a) The Certificates consist of the Class A-1A Certificates, the Class A-1B
Certificates, the Class A-1C Certificates, the Class A-1D Certificates, the
Class A-CS1 Certificates, the Class PS-1 Certificates, the Class A-1E
Certificates, the Class A-2 Certificates, the Class A-3 Certificates, the Class
A-4 Certificates, the Class A-5 Certificates, the Class A-6 Certificates, the
Class A-7 Certificates, the Class A-8 Certificates, the Class B-1 Certificates,
the Class B-2 Certificates, the Class B-3 Certificates, the Class B-4
Certificates, the Class B-5 Certificates, the Class B-6 Certificates, the Class
B-7 Certificates, the Class B-7H Certificates, the Class V-1 Certificates, the
Class V-2 Certificates, the Class R Certificates and the Class LR Certificates.
The Class A-1A, Class A-1B, Class A-1C, Class A-1D, Class A-CS1, Class
PS-1, Class A-1E, Class A-2, Class A-3, Class A-4, Class A-5, Class A-6, Class
A-7, Class A-8, Class B-1, Class B-2, Class B-3, Class B-4, Class B-5, Class
B-6, Class B-7, Class B-7H, Class V-1, Class V-2, Class R and Class LR
Certificates will be substantially in the forms annexed hereto as Exhibits A-1
through A-26, as set forth in the Table of Exhibits hereto. The Certificates of
each Class will be issuable in registered form only, in minimum denominations of
authorized Certificate Balance or Notional Balance, as applicable, as described
in the succeeding table, and multiples of $1 in excess thereof (or such lesser
amount if the Certificate or Notional Balance, as applicable, is not a multiple
of $1). Notwithstanding the foregoing, one Individual Certificate for each of
the Class B-1 and B-2 and Class B-4 Certificates shall be issued, each having an
initial Certificate Balance of $9.00. With respect to any Certificate or any
beneficial interest in a Certificate, the "Denomination" thereof shall be (i)
the amount (A) set forth on the face thereof or (B) in the case of any Global
Certificate, set forth on a schedule attached thereto or, in the case of any
beneficial interest in a Global Certificate, the amount set forth on the books
and records of the related Participant or Indirect Participant, as applicable,
(ii) expressed in terms of Initial Certificate Balance or Notional Balance, as
applicable, and (iii) be in an authorized denomination, as set forth below.
Minimum Aggregate Denomination of all
Class Denomination Certificates of Class
----- ------------ -----------------------------
A-1A $ 50,000.00 $127,000,000.00
A-1B $ 50,000.00 $91,010,000.00
A-1C $ 50,000.00 $65,000,000.00
A-1D $ 50,000.00 $671,228,903.00
A-CS1(1) $ 50,000.00 $84,197,550.00
PS-1(2) $ 50,000.00 $127,000,000.00
A-1E $ 50,000.00 $1,403,292,505.00
A-2 $ 50,000.00 $28,065,850.00
A-3 $ 50,000.00 $49,115,237.00
A-4 $ 50,000.00 $21,049,387.00
A-5 $ 50,000.00 $42,098,775.00
A-6 $ 50,000.00 $28,065,850.00
A-7 $ 50,000.00 $21,049,387.00
A-8 $ 50,000.00 $21,049,387.00
B-1 $100,000.00 $35,082,312.00
B-2 $100,000.00 $35,082,312.00
B-3 $100,000.00 $14,032,925.00
B-4 $100,000.00 $21,049,387.00
B-5 $100,000.00 $14,032,925.00
B-6 $100,000.00 $14,032,925.00
B-7 $ 50,000.00 $21,048,393.00
B-7H $ 1,000.00 $1,000.35
The Class B-7 Certificates shall each be issued as one or more Individual
Certificates, substantially in the form of Exhibit A-21 hereto. Such
Certificates shall not be issuable as Global Certificates unless the Depositor
determines that issuance in such form is feasible under Procedures of the
Depository (after consideration of the date of the Distribution Date and the
requirements of the Depository) and the Paying Agent concurs in such
determination.
Each Certificate will share ratably in all rights of the related Class. The
Class B-7H Certificates shall be issuable in a single, registered definitive
physical certificate evidencing its aggregate initial Certificate Balance. The
Class V-1, Class V-2, Class R and LR Certificates will each be issuable in one
or more registered, definitive physical certificates in minimum denominations of
5% Percentage Interests and integral multiples of a 1% Percentage Interest in
excess thereof and together aggregating the entire 100% Percentage Interest in
each such Class.
The Global Certificates shall be issued as one or more certificates
registered in the name of a nominee designated by the Depository, and Beneficial
Owners shall hold interests in the Global Certificates through the book-entry
facilities of the Depository in the minimum Denominations and aggregate
Denominations and Classes as set forth above. The Global Certificates
representing each of the Class B-1, Class B-2, Class B-3, Class B-4, Class B-5
and Class B-6 Certificates shall be issued as and, prior to the Separation Date
with respect to any such Class, shall comprise a part of the Units. All
references to the Global Certificates herein are deemed to include the Global
Certificate comprising the Units.
The Global Certificates shall in all respects be entitled to the same
benefits under this Agreement as Individual Certificates authenticated and
delivered hereunder.
(b) Except insofar as pertains to any Individual Certificate, the Trust
Fund, the Paying Agent and the Trustee may for all purposes (including the
making of payments due on the Global Certificates and the giving of notice to
Holders thereof) deal with the Depository as the authorized representative of
the Beneficial Owners with respect to the Global Certificates for the purposes
of exercising the rights of Certificateholders hereunder; provided, however,
that, for purposes of providing information pursuant to Section 3.22 or
transmitting communications pursuant to Section 5.05(a), to the extent that the
Depositor has provided the Trustee with the names of Certificateholders (even if
such Certificateholders hold their Certificates through the Depository) the
Trustee shall provide such information to such Beneficial Owners directly. The
rights of Beneficial Owners with respect to Global Certificates shall be limited
to those established by law and agreements between such Certificateholders and
the Depository and Depository Participants. Except as set forth in Section
5.01(e) below, Beneficial Owners of Global Certificates shall not be entitled to
physical certificates for the Global Certificates as to which they are the
Beneficial Owners. Requests and directions from, and votes of, the Depository as
Holder of the Global Certificates shall not be deemed inconsistent if they are
made with respect to different Beneficial Owners. The Certificate Registrar may
establish a reasonable record date in connection with solicitations of consents
from or voting by Certificateholders and give notice to the Depository of such
record date. Without the written consent of the Depositor and the Certificate
Registrar, no Global Certificate may be transferred by the Depository except to
a successor Depository that agrees to hold the Global Certificates for the
account of the Beneficial Owners.
(c) 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.
(d) The Global Certificates (i) shall be delivered by the Certificate
Registrar to the Depository or, pursuant to the Depository's instructions on
behalf of the Depository to, and deposited with, the Certificate Custodian, and
in either case shall be registered in the name of Cede & Co. and (ii) shall bear
a legend substantially to the following effect:
"Unless this certificate is presented by an authorized representative
of The Depository Trust Company, a New York corporation ("DTC"), to
the Certificate Registrar 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."
The Global Certificates may be deposited with such other Depository as the
Certificate Registrar may from time to time designate, and shall bear such
legend as may be appropriate.
(e) If (i) the Depository advises the Trustee in writing that the
Depository is no longer willing, qualified or able properly to discharge its
responsibilities as Depository, and the Trustee is unable to locate a qualified
successor, (ii) the Depositor or the Trustee, at its sole option, elects to
terminate the book-entry system through the Depository with respect to all or
any portion of any Class of Certificates or (iii) after the occurrence of an
Event of Default, Beneficial Owners owning not less than a majority in
Certificate Balance or Notional Balance, as applicable, of the Global
Certificate for any Class then outstanding advise the Depository through
Depository Participants in writing that the continuation of a book-entry system
through the Depository is no longer in the best interest of the Beneficial Owner
or Owners of such Global Certificate, the Trustee shall notify the affected
Beneficial Owner or Owners through the Depository of the occurrence of such
event and the availability of Individual Certificates to such Beneficial Owners
requesting them. Upon surrender to the Trustee of Global Certificates by the
Depository, accompanied by registration instructions from the Depository for
registration of transfer, the Trustee shall issue the Individual Certificates.
Neither the Trustee, the Fiscal Agent, the Certificate Registrar, the Servicer,
the Special Servicer nor the Depositor shall be liable for any actions taken by
the Depository or its nominee, including, without limitation, any delay in
delivery of such instructions. Upon the issuance of Individual Certificates, the
Trustee, the Fiscal Agent, the Certificate Registrar, the Servicer, the Special
Servicer, and the Depositor shall recognize the Holders of Individual
Certificates as Certificateholders hereunder.
(f) If the Trustee, its agents or the Servicer or Special Servicer has
instituted or has been directed to institute any judicial proceeding in a court
to enforce the rights of the Certificateholders under the Certificates, and the
Trustee, the Servicer or the Special Servicer has been advised by counsel that
in connection with such proceeding it is necessary or appropriate for the
Trustee, the Servicer or the Special Servicer to obtain possession of the
Certificates, the Trustee, the Servicer or the Special Servicer may in its sole
discretion determine that the Certificates represented by the Global
Certificates shall no longer be represented by such Global Certificates. In such
event, the Trustee or the Authenticating Agent will execute and authenticate and
the Certificate Registrar will deliver, in exchange for such Global
Certificates, Individual Certificates (and if the Trustee or the Certificate
Custodian has in its possession Individual Certificates previously executed, the
Authenticating Agent will authenticate and the Certificate Registrar will
deliver such Certificates) in a Denomination equal to the aggregate Denomination
of such Global Certificates.
(g) If the Trust Fund ceases to be subject to Section 13 or 15(d) of the
Exchange Act, the Trustee shall make available to each Holder of a Class B-7,
Class B-7H, Class V-1, Class V-2, Class R or Class LR Certificate, upon request
of such a Holder, information substantially equivalent in scope to the
information currently filed by the Servicer with the Commission pursuant to the
Exchange Act, plus such additional information required to be provided for
securities qualifying for resales under Rule 144A under the Act, all of which
information referred to in this paragraph shall be provided on a timely basis to
the Trustee by the Servicer.
For so long as the Class B-7, Class B-7H, Class V-1, Class V-2, Class R or
Class LR Certificates remain outstanding, neither the Depositor nor the Trustee
nor the Certificate Registrar shall take any action which would cause the Trust
Fund to fail to be subject to Section 15(d) of the Exchange Act.
(h) Each Certificate may be printed or in typewritten or similar form, and
each Certificate shall, upon original issue, be executed and authenticated by
the Trustee or the Authenticating Agent and delivered to the Depositor. All
Certificates shall be executed by manual or facsimile signature on behalf of the
Trustee or Authenticating Agent by an authorized officer or signatory.
Certificates bearing the signature of an individual who was at any time the
proper officer or signatory of the Trustee or Authenticating Agent shall bind
the Trustee or Authenticating Agent, notwithstanding that such individual has
ceased to hold such office or position prior to the delivery of such
Certificates or did not hold such office or position at the date of such
Certificates. No Certificate shall be entitled to any benefit under this
Agreement, or be valid for any purpose, unless there appears on such Certificate
a certificate of authentication in the form set forth in Exhibits A-1 through
A-26 executed by the Authenticating Agent by manual signature, and such
certificate of authentication upon any Certificate shall be conclusive evidence,
and the only evidence, that such Certificate has been duly authenticated and
delivered hereunder. All Certificates shall be dated the date of their
authentication.
(i) Prior to the Separation Date of any Class of Certificates comprising
the Units, each such Certificate shall bear the following legend on the face
thereof:
THIS CERTIFICATE IS INITIALLY ISSUED AS PART OF A UNIT, THE
UNITS CONSIST OF THE CLASS B-1, CLASS B-2, CLASS B-3, CLASS
B-4, CLASS B-5 AND CLASS B-6 COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATES, SERIES 1997-D4, EACH ISSUED
PURSUANT TO THE POOLING AND SERVICING AGREEMENT (AS DEFINED
BELOW). PRIOR TO THE CLOSE OF BUSINESS ON THE DATE THAT THE
CLASS OF CERTIFICATES OF WHICH THIS CERTIFICATE IS A PART IS
ASSIGNED A RATING OF "BBB" OR HIGHER BY STANDARD & POOR'S
RATINGS SERVICES OR FITCH INVESTORS SERVICES, L.P. (THE
"SEPARATION DATE"), THIS CERTIFICATE MAY NOT BE TRANSFERRED
OR EXCHANGED SEPARATELY FROM, BUT MAY BE TRANSFERRED OR
EXCHANGED ONLY AS PART OF SUCH UNIT. FOLLOWING THE
SEPARATION DATE, THIS CERTIFICATE SHALL ONLY BE TRANSFERRED
OR EXCHANGED SEPARATELY FROM SUCH UNIT.
(j) Upon any Separation Date for any Class of Certificates, the Trustee
shall notify the Unitholders of (i) the Class of Certificates affected, (ii) the
rating or ratings assigned to such Class by S&P and/or Fitch and the date such
rating or ratings were assigned. Such notice shall also state that, from such
date, such Class shall be traded separately from the Units.
SECTION 5.02. Registration, Transfer and Exchange of Certificates.
(a) The Trustee shall keep or cause to be kept at the Corporate Trust
Office books (the "Certificate Register") for the registration, transfer and
exchange of Certificates (the Trustee, in such capacity, being the "Certificate
Registrar"). The names and addresses of all Certificateholders and the names and
addresses of the transferees of any Certificates shall be registered in the
Certificate Register; provided, however, in no event shall the Certificate
Registrar be required to maintain in the Certificate Register the names of the
individual Participants holding beneficial interests in the Trust Fund through
the Depository. The Person in whose name any Certificate is so registered shall
be deemed and treated as the sole owner and Holder thereof for all purposes of
this Agreement and the Depositor, Certificate Registrar, the Servicer, Special
Servicer, the Trustee, the Fiscal Agent, any Paying Agent and any agent of any
of them shall not be affected by any notice or knowledge to the contrary. An
Individual Certificate is transferable or exchangeable only upon the surrender
of such Certificate to the Certificate Registrar at the Corporate Trust Office
together with an assignment and transfer (executed by the Holder or his duly
authorized attorney), subject to the requirements of Sections 5.01(i) and
5.02(c), (d), (e), (f), (g) and (h). Upon request of the Trustee, the
Certificate Registrar shall provide the Trustee with the names, addresses and
Percentage Interests of the Holders.
(b) Upon surrender for registration of transfer of any Individual
Certificate, subject to the requirements of Sections 5.02(c), (d), (e), (f),
(g), (h) and (i), the Trustee shall execute and the Authenticating Agent shall
duly authenticate in the name of the designated transferee or transferees, one
or more new Certificates in Denominations of a like aggregate Denomination as
the Individual Certificate being surrendered. Such Certificates shall be
delivered by the Certificate Registrar in accordance with Section 5.02(e). Each
Certificate surrendered for registration of transfer shall be canceled and
subsequently destroyed by the Certificate Registrar. Each new Certificate issued
pursuant to this Section 5.02 shall be registered in the name of any Person as
the transferring Holder may request, subject to the provisions of Sections
5.01(i) and 5.02(c), (d), (e), (f), (g), (h) and (i).
(c) In addition to the provisions of Sections 5.01(i) and 5.02(d), (e),
(f), (g) and (h) and the rules of the Depository; the exchange, transfer and
registration of transfer of Individual Certificates shall be subject to the
following restrictions:
(i) Transfers between Holders of Individual Certificates. With
respect to the transfer and registration of transfer of an Individual
Certificate representing an interest in the Class B-7, Class B-7H,
Class V-1, Class V-2, Class R or Class LR Certificates to a transferee
that takes delivery in the form of an Individual Certificate:
(A) The Certificate Registrar shall register the transfer of
an Individual Certificate if the requested transfer is being made
by a transferee who has provided the Certificate Registrar with
an Investment Representation Letter substantially in the form of
Exhibit D-1 hereto (an "Investment Representation Letter"), to
the effect that the transfer is being made to a Qualified
Institutional Buyer in accordance with Rule 144A;
(B) The Certificate Registrar shall register the transfer of
an Individual Certificate pursuant to Regulation S after the
expiration of the Restricted Period if (1) the transferor has
provided the Certificate Registrar with a Regulation S Transfer
Certificate substantially in the form of Exhibit G hereto (a
"Regulation S Transfer Certificate"), and (2) the transferee
furnishes to the Certificate Registrar an Investment
Representation Letter; and
(C) The Certificate Registrar shall register the transfer of
an Individual Certificate if prior to the transfer such
transferee furnishes to the Certificate Registrar (1) an
Investment Representation Letter to the effect that the transfer
is being made to an Institutional Accredited Investor or to an
Affiliated Person in accordance with an applicable exemption
under the Act, and (2) an opinion of counsel acceptable to the
Certificate Registrar that such transfer is in compliance with
the Act;
and, in each case, the Certificate Registrar shall register the
transfer of an Individual Certificate only if prior to the
transfer the transferee furnishes to the Certificate Registrar a
written undertaking by the transferor to reimburse the Trust for
any costs incurred by it in connection with the proposed
transfer. In addition, the Certificate Registrar may, as a
condition of the registration of any such transfer, require the
transferor to furnish such other certificates, legal opinions or
other information (at the transferor's expense) as the
Certificate Registrar may reasonably require to confirm that the
proposed transfer is being made pursuant to an exemption from, or
in a transaction not subject to, the registration requirements of
the Act and other applicable laws.
(ii) [Intentionally left Blank].
(iii) All Transfers. An exchange of an Individual Certificate or
Certificates for another Individual Certificate or Certificates may be
made only in accordance with this Section 5.02.
(d) If Certificates are issued upon the transfer, exchange or replacement
of Certificates not bearing the Securities Legend, the Certificates so issued
shall not bear the Securities Legend. If Certificates are issued upon the
transfer, exchange or replacement of Certificates bearing the Securities Legend,
or if a request is made to remove the Securities Legend on a Certificate, the
Certificates so issued shall bear the Securities Legend, or the Securities
Legend shall not be removed, as the case may be, unless there is delivered to
the Certificate Registrar such satisfactory evidence, which may include an
opinion of counsel (at the expense of the party requesting the removal of such
legend) familiar with United States securities laws, as may be reasonably
required by the Certificate Registrar, that neither the Securities Legend nor
the restrictions on transfers set forth therein are required to ensure that
transfers of any Certificate comply with the provisions of Rule 144A or Rule 144
under the Act or that such Certificate is not a "restricted security" within the
meaning of Rule 144 under the Act. Upon provision of such satisfactory evidence,
the Certificate Registrar shall execute and deliver a Certificate that does not
bear the Securities Legend.
(e) Subject to the restrictions on transfer and exchange set forth in
Section 5.01(i) and in this Section 5.02, the Holder of any Individual
Certificate may transfer or exchange the same in whole or in part (with a
denomination equal to any authorized denomination) by surrendering such
Certificate at the Corporate Trust Office or at the office of any transfer agent
appointed as provided under this Agreement, together with an instrument of
assignment or transfer (executed by the Holder or its duly authorized attorney),
in the case of transfer, and a written request for exchange, in the case of
exchange. Following a proper request for transfer or exchange, the Certificate
Registrar shall, within five Business Days of such request if made at such
Corporate Trust Office or within ten Business Days if made at the office of a
transfer agent (other than the Certificate Registrar), execute and deliver at
the Corporate Trust Office or at the office of such transfer agent, as the case
may be, to the transferee (in the case of transfer) or Holder (in the case of
exchange) or send by first Class mail (at the risk of the transferee in the case
of transfer or Holder in the case of exchange) to such address as the transferee
or Holder, as applicable, may request, an Individual Certificate or
Certificates, as the case may require, for a like aggregate Denomination and in
such Denomination or Denominations as may be requested. The presentation for
transfer or exchange of any Individual Certificate shall not be valid unless
made at the Corporate Trust Office or at the office of a transfer agent by the
registered Holder in person, or by a duly authorized attorney-in-fact. The
Certificate Registrar may decline to accept any request for an exchange or
registration of transfer of any Certificate during the period of fifteen days
preceding any Distribution Date.
(f) An Individual Certificate may only be transferred to Eligible
Investors, as described herein. In the event that a Responsible Officer of the
Certificate Registrar becomes aware that such an Individual Certificate is being
held by or for the benefit of a Person who is not an Eligible Investor, or that
such holding is unlawful under the laws of a relevant jurisdiction, then the
Certificate Registrar shall have the right to void such transfer, if permitted
under applicable law, or to require the investor to sell such Individual
Certificate to an Eligible Investor within fourteen days after notice of such
determination and each Certificateholder by its acceptance of a Certificate
authorizes the Certificate Registrar to take such action.
(g) Subject to the provisions of Section 5.01(i) and this Section 5.02
regarding transfer and exchange, transfers of the Global Certificates shall be
limited to transfers of such Global Certificates in whole, but not in part, to
nominees of the Depository or to a successor of the Depository or such
successor's nominee.
(h) No fee or service charge shall be imposed by the Certificate Registrar
for its services in respect of any registration of transfer or exchange referred
to in this Section 5.02 other than for transfers to Institutional Accredited
Investors, as provided herein. In connection with any transfer to an
Institutional Accredited Investor, the transferor shall reimburse the Trust Fund
for any costs (including the cost of the Certificate Registrar's counsel's
review of the documents and any legal opinions, submitted by the transferor or
transferee to the Certificate Registrar as provided herein) incurred by the
Certificate Registrar in connection with such transfer. The Certificate
Registrar may require payment by each transferor of a sum sufficient to cover
any tax, expense or other governmental charge payable in connection with any
such transfer.
(i) Subject to Section 5.02(e), transfers of the Class B-7, Class B-7H,
Class V-1, Class V-2, Class R and Class LR Certificates may be made only in
accordance with this Section 5.02(i). The Certificate Registrar shall register
the transfer of a Class B-7, Class B-7H, Class V-1, Class V-2, Class R or Class
LR Certificate only if (x) the transferor has advised the Certificate Registrar
in writing that such Certificate is being transferred to a Qualified
Institutional Buyer, an Affiliated Person or an Institutional Accredited
Investor and (y) prior to such transfer the transferee furnishes to the
Certificate Registrar an Investment Representation Letter. In addition, the
Certificate Registrar may as a condition of the registration of any such
transfer require the transferor to furnish such other certifications, legal
opinions or other information (at the transferor's expense) as it may reasonably
require to confirm that the proposed transfer is being made pursuant to an
exemption from, or in a transaction not subject to, the registration
requirements of the Act and other applicable laws.
(j) Neither the Depositor, the Servicer, the Trustee nor the Certificate
Registrar is obligated to register or qualify the Class B-7, Class B-7H, Class
V-1, Class V-2, Class R or Class LR Certificates under the Act or any other
securities law or to take any action not otherwise required under this Agreement
to permit the transfer of such Certificates without registration or
qualification. Any Certificateholder desiring to effect such a transfer shall,
and does hereby agree to, indemnify the Depositor, the Servicer, the Trustee and
the Certificate Registrar, against any loss, liability or expense that may
result if the transfer is not so exempt or is not made in accordance with such
federal and state laws.
(k) No transfer of any Class A-1E, Class X-0, Xxxxx X-0, Class A-4, Class
A-5, Class A-6, Class A-7, Class A-8, Class B-1, Class B-2, Class B-3, Class
B-4, Class B-5, Class B-6, Class B-7, Class B-7H, Class V-1, Class V-2, Class R
or Class LR Certificate (each, a "Restricted Certificate") shall be made to (i)
an employee benefit plan subject to the fiduciary responsibility provisions of
ERISA, or Section 4975 of the Code, or a governmental plan subject to any
federal, state or local law ("Similar Law"), which is to a material extent,
similar to the foregoing provisions of ERISA or the Code (collectively, a
"Plan") or (ii) a collective investment fund in which a Plan is invested, an
insurance company that is using the assets of any insurance company separate
account or general account in which the assets of any such Plan are invested (or
which are deemed pursuant to ERISA or any Similar Law to include assets of
Plans) to acquire any such Restricted Certificate or any other Person acting on
behalf of any Plan or using the assets of any Plan to acquire any such
Restricted Certificate, other than an insurance company using the assets of its
general account under circumstances whereby such transfer to such insurance
company would not constitute a "prohibited transaction" within the meaning of
Section 406 or 407 of ERISA, Section 4975 of the Code, or a materially similar
characterization under any Similar Law. Each prospective transferee of a
Restricted Certificate shall either (i) deliver to the Depositor, the
Certificate Registrar and the Trustee, a transfer or representation letter,
substantially in the form of Exhibit D-2 hereto, stating that the prospective
transferee is not a Person referred to in (i) or (ii) above or (ii) in the event
the transferee is such an entity specified in (i) or (ii) above, except in the
case of a Residual Certificate, which may not be transferred unless the
transferee represents it is not such an entity, such entity shall provide an
opinion of counsel in form and substance satisfactory to the Certificate
Registrar that the purchase or holding of the certificates by or on behalf of a
plan will not result in the assets of the trust being deemed to be "plan assets"
and subject to the fiduciary responsibility provisions of ERISA or the
prohibited transaction provisions of ERISA and the Code or Similar Law, will not
constitute or result in a prohibited transaction within the meaning of Section
406 or 407 of ERISA or Section 4975 of the Code, and will not subject the
Servicer, the Special Servicer, the Depositor, the Trustee or the Certificate
Registrar to any obligation or liability. Neither the Trustee, the Servicer nor
the Certificate Registrar shall register a Class R or Class LR Certificate in
any Person's name unless such Person has provided the letter referred to in
clause (i) of the preceding sentence. The transferee of a beneficial interest in
a Global Certificate that is a Restricted Certificate shall be deemed to
represent that it is not a Plan or a Person acting on behalf of any Plan or
using the assets of any Plan to acquire such interest other than an insurance
company using the assets of its general account under circumstances whereby such
transfer to such insurance company would not constitute a "prohibited
transaction" within the meaning of Section 406 or 407 of ERISA, Section 4975 of
the Code, or a materially similar characterization under any Similar Law. Any
transfer of a Restricted Certificate that would violate or result in a
prohibited transaction under ERISA or Section 4975 of the Code shall be deemed
absolutely null and void ab initio.
(l) Each Person who has or acquires any Ownership Interest shall be deemed
by the acceptance or acquisition of such Ownership Interest to have agreed to be
bound by the following provisions and the rights of each Person acquiring any
Ownership Interest are expressly subject to the following provisions:
(i) Each Person acquiring or holding any Ownership Interest shall be
a Permitted Transferee and shall not acquire or hold such
Ownership Interest as agent (including a broker, nominee or other
middleman) on behalf of any Person that is not a Permitted
Transferee. Any such Person shall promptly notify the Certificate
Registrar of any change or impending change in its status (or the
status of the beneficial owner of such Ownership Interest) as a
Permitted Transferee. Any acquisition described in the first
sentence of this Section 5.02(l) by a Person who is not a
Permitted Transferee or by a Person who is acting as an agent of
a Person who is not a Permitted Transferee shall be void and of
no effect, and the immediately preceding owner who was a
Permitted Transferee shall be restored to registered and
beneficial ownership of the Ownership Interest as fully as
possible.
(ii) No Ownership Interest may be Transferred, and no such Transfer
shall be registered in the Certificate Register, without the
express written consent of the Certificate Registrar, and the
Certificate Registrar shall not recognize the Transfer, and such
proposed Transfer shall not be effective, without such consent
with respect thereto. In connection with any proposed Transfer of
any Ownership Interest, the Certificate Registrar shall, as a
condition to such consent, (x) require delivery to it in form and
substance satisfactory to it, and the proposed transferee shall
deliver to the Certificate Registrar and to the proposed
transferor an affidavit in substantially the form attached as
Exhibit C-1 (a "Transferee Affidavit") of the proposed transferee
(A) that such proposed transferee is a Permitted Transferee and
(B) stating that (i) the proposed transferee historically has
paid its debts as they have come due and intends to do so in the
future, (ii) the proposed transferee understands that, as the
holder of an Ownership Interest, it may incur liabilities in
excess of cash flows generated by the residual interest, (iii)
the proposed transferee intends to pay taxes associated with
holding the Ownership Interest as they become due, (iv) the
proposed transferee will not transfer the Ownership Interest to
any Person that does not provide a Transferee Affidavit or as to
which the proposed transferee has actual knowledge that such
Person is not a Permitted Transferee or is acting as an agent
(including a broker, nominee or other middleman) for a Person
that is not a Permitted Transferee, and (v) the proposed
transferee expressly agrees to be bound by and to abide by the
provisions of this Section 5.02(e) and (y) other than in
connection with the initial issuance of the Class R and Class LR
Certificates, require a statement from the proposed transferor
substantially in the form attached as Exhibit C-2 (the
"Transferor Letter"), that the proposed transferor has no actual
knowledge that the proposed transferee is not a Permitted
Transferee and has no actual knowledge or reason to know that the
proposed transferee's statements in the preceding clauses
(x)(B)(i) or (iii) are false.
(iii) Notwithstanding the delivery of a Transferee Affidavit by a
proposed transferee under clause (ii) above, if a Responsible
Officer of the Certificate Registrar has actual knowledge that
the proposed transferee is not a Permitted Transferee, no
Transfer to such proposed transferee shall be effected and such
proposed Transfer shall not be registered on the Certificate
Register; provided, however, that the Certificate Registrar shall
not be required to conduct any independent investigation to
determine whether a proposed transferee is a Permitted
Transferee.
Upon notice to the Certificate Registrar that there has occurred a Transfer
to any Person that is a Disqualified Organization or an agent thereof (including
a broker, nominee, or middleman) in contravention of the foregoing restrictions,
and in any event not later than 60 days after a request for information from the
transferor of such Ownership Interest, or such agent, the Certificate Registrar
and the Trustee agree to furnish to the IRS and the transferor of such Ownership
Interest or such agent such information necessary to the application of Section
860E(e) of the Code as may be required by the Code, including, but not limited
to, the present value of the total anticipated excess inclusions with respect to
such Class R or Class LR Certificate (or portion thereof) for periods after such
Transfer. At the election of the Certificate Registrar and the Trustee, the
Certificate Registrar and the Trustee may charge a reasonable fee for computing
and furnishing such information to the transferor or to such agent referred to
above; provided, however, that such Persons shall in no event be excused from
furnishing such information.
SECTION 5.03. 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 Certificate Registrar such security or indemnity as may be required by it
to save it, the Trustee and the Servicer harmless, then, in the absence of
actual knowledge by a Responsible Officer of the Certificate Registrar that such
Certificate has been acquired by a bona fide purchaser, the Trustee or the
Authenticating Agent shall execute and authenticate and the Certificate
Registrar shall deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Certificate, a new Certificate of the same Class and
of like tenor and Percentage Interest. Upon the issuance of any new Certificate
under this Section 5.03, the Certificate Registrar may require the payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in relation thereto and any other expenses (including the fees and expenses of
the Certificate Registrar) connected therewith. Any replacement Certificate
issued pursuant to this Section 5.03 shall constitute complete and indefeasible
evidence of ownership of the corresponding interest in the Trust Fund, as if
originally issued, whether or not the lost, stolen or destroyed Certificate
shall be found at any time.
SECTION 5.04. Appointment of Paying Agent.
The Trustee may appoint a paying agent for the purpose of making
distributions to Certificateholders pursuant to Section 4.01. The Trustee shall
cause such Paying Agent, if other than the Trustee or the Servicer, to execute
and deliver to the Servicer and the Trustee an instrument in which such Paying
Agent shall agree with the Servicer and the Trustee that such Paying Agent will
hold all sums held by it for the payment to Certificateholders in trust for the
benefit of the Certificateholders entitled thereto until such sums have been
paid to the Certificateholders or disposed of as otherwise provided herein. The
initial Paying Agent shall be the Trustee. Except for LaSalle National Bank, as
the initial Paying Agent, the Paying Agent shall at all times be an entity
having a long-term unsecured debt rating of at least "AA" by Fitch, S&P and DCR
and "Aa2" by Xxxxx'x, or shall be otherwise acceptable to each Rating Agency.
SECTION 5.05. Access to Certificateholders' Names and Addresses.
(a) If any Certificateholder (for purposes of this Section 5.05, an
"Applicant") applies in writing to the Certificate Registrar, and such
application states that the Applicant desires to communicate with other
Certificateholders, the Certificate Registrar shall furnish or cause to be
furnished to such Applicant a list of the names and addresses of the
Certificateholders as of the most recent Record Date, at the expense of the
Applicant.
(b) Every Certificateholder, by receiving and holding its Certificate,
agrees with the Trustee that the Trustee and the Certificate Registrar shall not
be held accountable in any way by reason of the disclosure of any information as
to the names and addresses of the Certificateholders hereunder, regardless of
the source from which such information was derived.
SECTION 5.06. Actions of Certificateholders.
(a) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Agreement to be given or taken by
Certificateholders may be embodied in and evidenced by one or more instruments
of substantially similar tenor signed by such Certificateholders in person or by
agent duly appointed in writing; and except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments
are delivered to the Trustee and, when required, to the Depositor or the
Servicer. Proof of execution of any such instrument or of a writing appointing
any such agent shall be sufficient for any purpose of this Agreement and
conclusive in favor of the Trustee, the Depositor and the Servicer, if made in
the manner provided in this Section.
(b) The fact and date of the execution by any Certificateholder of any such
instrument or writing may be proved in any reasonable manner which the Trustee
deems sufficient.
(c) Any request, demand, authorization, direction, notice, consent, waiver
or other act by a Certificateholder shall bind every Holder of every Certificate
issued upon the registration of transfer thereof or in exchange therefor or in
lieu thereof, in respect of anything done, or omitted to be done, by the
Trustee, the Depositor or the Servicer in reliance thereon, whether or not
notation of such action is made upon such Certificate.
(d) The Trustee or Certificate Registrar may require such additional proof
of any matter referred to in this Section 5.06 as it shall deem necessary.
ARTICLE VI
THE DEPOSITOR, THE SERVICER AND THE SPECIAL SERVICER
SECTION 6.01. Liability of the Depositor, the Servicer
and the Special Servicer.
The Depositor, the Servicer and the Special Servicer each shall be liable
in accordance herewith only to the extent of the obligations specifically
imposed by this Agreement.
SECTION 6.02. Merger or Consolidation of the Servicer.
Subject to the following paragraph, the Servicer will keep in full effect
its existence, rights and good standing as a corporation under the laws of the
State of Texas and will not jeopardize its ability to do business in each
jurisdiction in which the Mortgaged Properties are located or 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 Servicer may be merged or consolidated with or into any Person, or
transfer all or substantially all of its assets to any Person, in which case any
Person resulting from any merger or consolidation to which it shall be a party,
or any Person succeeding to its business, shall be the successor of the Servicer
hereunder, and shall be deemed to have assumed all of the liabilities of the
Servicer hereunder, if each of the Rating Agencies has confirmed in writing that
such merger or consolidation or transfer of assets and succession, in and of
itself, will not cause a downgrade, qualification or withdrawal of the then
current ratings assigned by such Rating Agency to any Class of Certificates.
SECTION 6.03. Limitation on Liability of the Depositor,
the Servicer and Others.
(a) Neither the Depositor, the Servicer, the Special Servicer nor any of
the directors, officers, employees or agents of the Depositor or the Servicer or
the Special Servicer shall be under any liability to the Trust Fund or the
Certificateholders for any action taken, or for refraining from the taking of
any action, in good faith pursuant to this Agreement, or for errors in judgment;
provided, however, that this provision shall not protect the Depositor or the
Servicer or the Special Servicer or any such Person against any breach of
warranties or representations made herein, or against any liability which would
otherwise be imposed by reason of willful misconduct, bad faith, fraud or
negligence in the performance of duties or by reason of reckless disregard of
obligations or duties hereunder. The Depositor, the Servicer, the Special
Servicer and any director, officer, employee or agent of the Depositor, the
Servicer or the Special Servicer may rely in good faith on any document of any
kind which, prima facie, is properly executed and submitted by any appropriate
Person respecting any matters arising hereunder. The Depositor, the Servicer,
the Special Servicer and any director, officer, employee or agent of the
Depositor or the Servicer or the Special Servicer shall be indemnified and held
harmless by the Trust Fund against any loss, liability or expense (including
legal fees and expenses) (i) incurred in connection with any legal action
relating to this Agreement or the Certificates, other than any loss, liability
or expense incurred by reason of willful misconduct, bad faith, fraud or
negligence (or in the case of the Servicer, by reason of any specific liability
imposed for a breach of the Servicing Standard) in the performance of duties
hereunder or by reason of reckless disregard of obligations or duties hereunder,
in each case by the Person being indemnified or (ii) imposed by any taxing
authority if such loss, liability or expense is not specifically reimbursable
pursuant to the terms of this Agreement. Neither the Depositor nor the Servicer
nor the Special Servicer shall be under any obligation to appear in, prosecute
or defend any legal action unless such action is related to its respective
duties under this Agreement and in its opinion does not expose it to any expense
or liability; provided, however, that the Depositor or the Servicer or the
Special Servicer may in its discretion undertake any action related to its
obligations hereunder which it may deem necessary or desirable with respect to
this Agreement and 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 Servicer and the
Special Servicer shall be entitled to be reimbursed therefor from the Collection
Account as provided in Section 3.06 of this Agreement.
SECTION 6.04. Limitation on Resignation of the Servicer
and the Special Servicer; Termination of the
Servicer and the Special Servicer.
(a) The Servicer and the Special Servicer may assign their respective
rights and delegate their respective duties and obligations under this Agreement
in connection with the sale or transfer of a substantial portion of their
mortgage servicing or asset management portfolio, provided that: (i) the
purchaser or transferee accepting such assignment and delegation (A) shall be
satisfactory to the Trustee and to the Depositor, (B) shall be an established
mortgage finance institution, bank or mortgage servicing institution, organized
and doing business under the laws of any state of the United States or the
District of Columbia, authorized under such laws to perform the duties of a
servicer of mortgage loans or a Person resulting from a merger, consolidation or
succession that is permitted under Section 6.02, (C) shall be acceptable to each
Rating Agency as confirmed by a letter from each Rating Agency delivered to the
Trustee that such assignment or delegation will not cause a downgrade,
withdrawal or qualification of the then current ratings of the Certificates, (D)
shall be rated at least "A" by DCR or otherwise acceptable to DCR, and (E) shall
execute and deliver to the Trustee an agreement, in form and substance
reasonably satisfactory to the Trustee, which contains an assumption by such
Person of the due and punctual performance and observance of each covenant and
condition to be performed or observed by the Servicer under this Agreement from
and after the date of such agreement; (ii) as confirmed by a letter from each
Rating Agency delivered to the Trustee, each Rating Agency's rating or ratings
of the Regular Certificates in effect immediately prior to such assignment, sale
or transfer will not be qualified, downgraded or withdrawn as a result of such
assignment, sale or transfer; (iii) the Servicer or the Special Servicer shall
not be released from its obligations under this Agreement that arose prior to
the effective date of such assignment and delegation under this Section 6.04;
and (iv) the rate at which the Servicer Compensation or Special Servicer
Compensation, as applicable (or any component thereof) is calculated shall not
exceed the rate then in effect. Upon acceptance of such assignment and
delegation, the purchaser or transferee shall be the successor Servicer or
Special Servicer, as applicable, hereunder.
(b) Except as provided in this Section 6.04, the Servicer and the Special
Servicer shall not resign from their respective obligations and duties hereby
imposed on them except upon determination that such duties hereunder are no
longer permissible under applicable law. Any such determination permitting the
resignation of the Servicer or the Special Servicer, as applicable, shall be
evidenced by an Opinion of Counsel (obtained at the resigning Servicer's or
Special Servicer's expense) to such effect delivered to the Trustee.
(c) The Depositor shall be permitted to remove the Servicer provided that
(i) (x) the replacement Servicer is an acquired servicing unit and (y) is an
affiliate of the Depositor and (ii) each Rating Agency has confirmed in writing
that such removal and replacement will not result in a downgrade, qualification
or withdrawal of the then current ratings by such Rating Agency to any class of
Certificates. If the Depositor removes the Servicer pursuant to the preceding
sentence, the Depositor shall pay for all costs and expenses that would
otherwise be incurred by the Trust Fund in connection with such removal and
replacement. Without limiting the generality of the succeeding paragraph, no
such removal shall be effective unless and until (i) the Servicer or the Special
Servicer has been paid any unpaid Servicer Compensation or Special Servicer
Compensation, as applicable, unreimbursed Advances (including Advance Interest
Amounts thereon to which it is entitled) and all other amounts to which the
Servicer or the Special Servicer is entitled hereunder to the extent such
amounts accrue prior to such effective date and (ii) with respect to a
resignation by the Servicer, the successor Servicer has deposited into the
Investment Accounts from which amounts were withdrawn to reimburse the
terminated Servicer, an amount equal to the amounts so withdrawn, to the extent
such amounts would not have been permitted to be withdrawn except pursuant to
this paragraph, in which case the successor Servicer shall, immediately upon
deposit, have the same right of reimbursement or payment as the terminated
Servicer had immediately prior to its termination without regard to the
operation of this paragraph.
No resignation or removal of the Servicer or the Special Servicer as
contemplated by the preceding paragraphs shall become effective until the
Trustee or a successor Servicer or Special Servicer shall have assumed the
Servicer's or the Special Servicer's responsibilities, duties, liabilities and
obligations hereunder. If no successor Servicer or Special Servicer can be
obtained to perform such obligations for the same compensation to which the
terminated Servicer or Special Servicer would have been entitled, additional
amounts payable to such successor Servicer or Special Servicer shall be treated
as Realized Losses.
SECTION 6.05. Rights of the Depositor and the Trustee
in Respect of the Servicer and the Special Servicer.
The Servicer and the Special Servicer shall afford the Depositor, the
Trustee and the Rating Agencies, 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 its officers responsible for such
obligations. Upon request, the Servicer and the Special Servicer shall furnish
to the Depositor, Servicer, Special Servicer and the Trustee its most recent
financial statements (or in the case of the Servicer or Special Servicer, the
financial statements of AMRESCO INC. if no separate financial statements have
been prepared for the Servicer) and such other information in its possession
regarding its business, affairs, property and condition, financial or otherwise
as the party requesting such information, in its reasonable judgment, determines
to be relevant to the performance of the obligations hereunder of the Servicer
and the Special Servicer. The Depositor may, but is not obligated to, enforce
the obligations of the Servicer or the Special Servicer hereunder which are in
default and may, but is not obligated to, perform, or cause a designee to
perform, any defaulted obligation of such Person hereunder or exercise its
rights hereunder, provided that the Servicer and the Special Servicer shall not
be relieved of any of its obligations hereunder by virtue of such performance by
the Depositor or its designee. In the event the Depositor or its designee
undertakes any such action it will be reimbursed by the Trust Fund from the
Collection Account as provided in Section 3.06 and Section 6.03(a) hereof to the
extent not recoverable from the Servicer or Special Servicer, as applicable.
Neither the Depositor nor the Trustee and neither the Servicer, with respect to
the Special Servicer, nor the Special Servicer, with respect to the Servicer,
shall have any responsibility or liability for any action or failure to act by
the Servicer or the Special Servicer and neither such Person is obligated to
monitor or supervise the performance of the Servicer or the Special Servicer
under this Agreement or otherwise. Neither the Servicer nor the Special Servicer
shall be under any obligation to disclose confidential or proprietary
information pursuant to this Section.
SECTION 6.06. Servicer or Special Servicer as Owner of a Certificate.
The Servicer or an Affiliate of the Servicer or the Special Servicer or an
Affiliate of the Special Servicer may become the Holder (or with respect to a
Global Certificate, Beneficial Owner) of any Certificate with the same rights it
would have if it were not the Servicer or the Special Servicer or an Affiliate
thereof. If, at any time during which the Servicer or the Special Servicer or an
Affiliate of the Servicer or the Special Servicer is the Holder or Beneficial
Owner of any Certificate, the 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 Servicer's or the
Special Servicer's good faith judgment, violate the Servicing Standard, and (ii)
if taken, might nonetheless, in the Servicer's or the Special Servicer's good
faith judgment, be considered by other Persons to violate the Servicing
Standard, the Servicer or the Special Servicer may seek the approval of the
Certificateholders to such action by delivering to the Trustee a written notice
that (i) states that it is delivered pursuant to this Section 6.06, (ii)
identifies the Percentage Interest in each Class of Certificates beneficially
owned by the Servicer or the Special Servicer or an Affiliate of the Servicer or
the Special Servicer, and (iii) describes in reasonable detail the action that
the Servicer or the Special Servicer proposes to take. The Trustee, upon receipt
of such notice, shall forward it to the Certificateholders (other than the
Servicer and its Affiliates or the Special Servicer and its Affiliates, as
appropriate) together with such instructions for response as the Trustee shall
reasonably determine. If at any time Certificateholders holding greater than 50%
of the Voting Rights of all Certificateholders (calculated without regard to the
Certificates beneficially owned by the Servicer or its Affiliates or the Special
Servicer or its Affiliates) shall have consented in writing to the proposal
described in the written notice, and if the Servicer or the Special Servicer
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 Servicer or the Special Servicer, as applicable, of the
reasonable expenses of the Trustee incurred pursuant to this paragraph. It is
not the intent of the foregoing provision that the Servicer or the Special
Servicer be permitted to invoke the procedure set forth herein with respect to
routine servicing matters arising hereunder, except in the case of unusual
circumstances.
ARTICLE VII
DEFAULT
SECTION 7.01. Events of Default.
(a) "Servicer Event of Default", wherever used herein, means any one of the
following events:
(i) any failure by the Servicer to remit to the Collection Account or any
failure by the Servicer to remit to the Trustee for deposit into the
Distribution Account, Upper-Tier Distribution Account, Excess Interest
Distribution Account, Interest Reserve Account or Default Interest
Distribution Account, any amount required to be so deposited by the
Servicer (including a P&I Advance) pursuant to, and at the time
specified by the terms of this Agreement; or
(ii) any failure on the part of the Servicer duly to observe or perform in
any material respect any other of the covenants or agreements or the
breach of any representations or warranties on the part of the
Servicer contained in this Agreement which continues unremedied for a
period of 30 days after the date on which written notice of such
failure, requiring the same to be remedied, shall have been given to
the Servicer by the Depositor or the Trustee, or to the Servicer, the
Depositor and the Trustee by the Holders of Certificates evidencing
Percentage Interests of at least 25% of any Class affected thereby; or
(iii) confirmation in writing by any Rating Agency that failure to remove
the Servicer will, in and of itself, cause a downgrade, qualification
or withdrawal of the then current ratings assigned to any Class of
Certificates; or
(iv) 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 or receiver or liquidator in any
insolvency, readjustment of debt, marshaling of assets and liabilities
or similar proceedings, or for the winding-up or liquidation of its
affairs, shall have been entered against the Servicer and such decree
or order shall have remained in force undischarged or unstayed for a
period of 60 days; or
(v) the Servicer shall consent to the appointment of a conservator or
receiver or liquidator in any insolvency, readjustment of debt,
marshaling of assets and liabilities or similar proceedings of or
relating to the Servicer, or of or relating to all or substantially
all of its property; or
(vi) the Servicer shall admit in writing its inability to pay its debts
generally as they become due, file a petition to take advantage of any
applicable insolvency or reorganization statute, make an assignment
for the benefit of its creditors, or voluntarily suspend payment of
its obligations; or
(vii) the Servicer shall fail to make any Property Advance required to be
made by the Servicer hereunder (whether or not the Trustee or the
Fiscal Agent makes such Advance), which failure continues unremedied
for a period of fifteen (15) days after the date on which such
Property Advance was first due (or for any shorter period as may be
required, if applicable, to avoid any lapse in insurance coverage
required under any Mortgage or this Agreement with respect to any
Mortgaged Property or to avoid any foreclosure or similar action with
respect to any Mortgaged Property by reason of a failure to pay real
estate taxes and assessments and if the Trustee makes a required
Property Advance pursuant to Section 3.08(a) due to the Servicer's
failure to make a required Advance, such Event of Default shall occur
immediately upon such Advance); or
(viii) the Servicer shall no longer be an "approved" servicer by each of the
Rating Agencies for mortgage pools similar to the Trust Funds;
then, and in each and every such case, so long as a Servicer Event of Default
shall not have been remedied, the Trustee may, and at the written direction of
the Holders of at least 25% of the aggregate Voting Rights of all Certificates
shall, terminate the Servicer.
In the event that the Servicer is also the Special Servicer and the
Servicer is terminated as provided in this Section 7.01, the Servicer shall also
be terminated as Special Servicer.
(b) "Special Servicer Event of Default", wherever used herein, means any
one of the following events:
(i) any failure by the Special Servicer to remit to the Collection Account
any amount required to be so deposited by the Special Servicer
pursuant to and in accordance with the terms of this Agreement; or
(ii) any failure on the part of the Special Servicer duly to observe or
perform in any material respect any other of the covenants or
agreements or the breach of any representations or warranties on the
part of the Special Servicer contained in this Agreement which
continues unremedied for a period of 30 days after the date on which
written notice of such failure, requiring the same to be remedied,
shall have been given to the Special Servicer by the Servicer, the
Depositor or the Trustee, or to the Special Servicer, the Servicer,
the Depositor and the Trustee by the Holders of Certificates
evidencing Percentage Interests of at least 25% of any Class affected
thereby; or
(iii) confirmation in writing by any Rating Agency that failure to remove
the Special Servicer would, in and of itself, cause a downgrade,
qualification or withdrawal of the then current ratings assigned to
any Class of Certificates; or
(iv) 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 or receiver or liquidator in any
insolvency, readjustment of debt, marshaling of assets and liabilities
or similar proceedings, or for the winding-up or liquidation of its
affairs, shall have been entered against the Special Servicer and such
decree or order shall have remained in force undischarged or unstayed
for a period of 60 days; or
(v) the Special Servicer shall consent to the appointment of a conservator
or receiver or liquidator in any insolvency, readjustment of debt,
marshaling of assets and liabilities or similar proceedings of or
relating to the Special Servicer, or of or relating to all or
substantially all of its property; or
(vi) the Special Servicer shall admit in writing its inability to pay its
debts generally as they become due, file a petition to take advantage
of any applicable insolvency or reorganization statute, make an
assignment for the benefit of its creditors, or voluntarily suspend
payment of its obligations; or
(vii) the Special Servicer shall no longer be an "approved" special
servicer by each of the Rating Agencies for mortgage pools similar to
the Trust Fund;
then, and in each and every such case, so long as a Special Servicer Event of
Default shall not have been remedied, the Trustee may, and at the written
direction of the Holders of at least 25% of the aggregate Voting Rights of all
Certificates shall, terminate the Special Servicer.
(c) In the event that the Servicer or the Special Servicer is terminated
pursuant to this Section 7.01, the Trustee (the "Terminating Party") shall, by
notice in writing to the Servicer or the Special Servicer, as the case may be
(the "Terminated Party"), terminate all of its rights and obligations under this
Agreement and in and to the Mortgage Loans and the proceeds thereof, other than
any rights the Terminated Party may have hereunder as a Certificateholder and
any rights or obligations that accrued prior to the date of such termination
(including the right to receive all amounts accrued or owing to it under this
Agreement, plus interest at the Advance Rate on such amounts until received to
the extent such amounts bear interest as provided in this Agreement, with
respect to periods prior to the date of such termination and the right to the
benefits of Section 6.03 notwithstanding any such termination). On or after the
receipt by the Terminated Party, of such written notice, all of its authority
and power under this Agreement, whether with respect to the Certificates (except
that the Terminated Party shall retain its rights as a Certificateholder in the
event and to the extent that it is a Certificateholder) or the Mortgage Loans or
otherwise, shall pass to and be vested in the Terminating Party pursuant to and
under this Section and, without limitation, the Terminating Party is hereby
authorized and empowered to execute and deliver, on behalf of and at the expense
of the Terminated Party, as attorney-in-fact or otherwise, any and all documents
and other instruments, and to do or accomplish all other acts or things
necessary or appropriate to effect the purposes of such notice of termination,
whether to complete the transfer and endorsement or assignment of the Mortgage
Loans and related documents, or otherwise. The Servicer and the Special Servicer
each agree in the event it is terminated pursuant to this Section 7.01 to
promptly (and in any event no later than ten Business Days subsequent to such
notice) provide, at its own expense, the Terminating Party with all documents
and records requested by the Terminating Party to enable the Terminating Party
to assume its functions hereunder, and to cooperate with the Terminating Party
and the successor to its responsibilities hereunder in effecting the termination
of its responsibilities and rights hereunder, including, without limitation, the
transfer to the successor Servicer or Special Servicer or the Terminating Party,
as applicable, for administration by it of all cash amounts which shall at the
time be or should have been credited by the Servicer or the Special Servicer to
the Collection Account, and any REO Account, Lock-Box Account or Cash Collateral
Account thereafter be received with respect to the Mortgage Loans, and shall
promptly provide the Terminating Party or such successor Servicer or successor
Special Servicer (which may include the Trustee), as applicable, all documents
and records reasonably requested by it, such documents and records to be
provided in such form as the Terminating Party or such successor Servicer or
Special Servicer shall reasonably request (including electromagnetic form), to
enable it to assume the Servicer's or Special Servicer's function hereunder. All
reasonable costs and expenses of the Terminating Party or the successor Servicer
or successor Special Servicer incurred in connection with transferring the
Mortgage Files to the successor Servicer or Special Servicer and amending this
Agreement to reflect such succession as successor Servicer or successor Special
Servicer pursuant to this Section 7.01 shall be paid by the predecessor Servicer
or the Special Servicer, as applicable, upon presentation of reasonable
documentation of such costs and expenses. If the predecessor Servicer or Special
Servicer (as the case may be) has not reimbursed the Terminating Party or the
successor Servicer or Special Servicer for such expenses within 90 days after
the presentation of reasonable documentation, such expense shall be reimbursed
by the Trust Fund; provided that the Terminated Party shall not thereby be
relieved of its liability for such expenses. If and to the extent that the
Terminated Party has not reimbursed such costs and expenses, the Terminating
Party shall have an affirmative obligation to take all reasonable actions to
collect such expenses on behalf of the Trust Fund.
SECTION 7.02. Trustee to Act; Appointment of Successor.
On and after the time the Servicer or the Special Servicer receives a
notice of termination pursuant to Section 7.01, the Terminating Party shall be
its successor in all respects in its capacity as Servicer or Special Servicer
under this Agreement and the transactions set forth or provided for herein and,
except as provided herein, shall be subject to all the responsibilities, duties,
limitations on liability and liabilities relating thereto and arising thereafter
placed on the Servicer or Special Servicer by the terms and provisions hereof;
provided, however, that (i) the Terminating Party shall have no
responsibilities, duties, liabilities or obligations with respect to any act or
omission of the Servicer or Special Servicer and (ii) any failure to perform, or
delay in performing, such duties or responsibilities caused by the Terminated
Party's failure to provide, or delay in providing, records, tapes, disks,
information or monies shall not be considered a default by such successor
hereunder. The Trustee, as successor Servicer or successor Special Servicer,
shall be indemnified to the full extent provided the Servicer or Special
Servicer, as applicable, under this Agreement prior to the Servicer's or the
Special Servicer's termination. The appointment of a successor Servicer or
successor Special Servicer shall not affect any liability of the predecessor
Servicer or Special Servicer which may have arisen prior to its termination as
Servicer or Special Servicer. The Terminating Party shall not be liable for any
of the representations and warranties of the Servicer or Special Servicer herein
or in any related document or agreement, for any acts or omissions of the
predecessor Servicer or predecessor Special Servicer or for any losses incurred
in respect of any Permitted Investment by the Servicer pursuant to Section 3.07
hereunder nor shall the Trustee be required to purchase any Mortgage Loan
hereunder. As compensation therefor, the Terminating Party as successor Servicer
or successor Special Servicer shall be entitled to the Servicing Compensation or
Special Servicing Compensation, as applicable, and all funds relating to the
Mortgage Loans that accrue after the date of the Terminating Party's succession
to which the Servicer or Special Servicer would have been entitled if the
Servicer or Special Servicer, as applicable, had continued to act hereunder. In
the event any Advances made by the Servicer and the Trustee or the Fiscal Agent
shall at any time be outstanding, or any amounts of interest thereon shall be
accrued and unpaid, all amounts available to repay Advances and interest
hereunder shall be applied entirely to the Advances made by the Trustee or the
Fiscal Agent (and the accrued and unpaid interest thereon), until such Advances
and interest shall have been repaid in full. Notwithstanding the above, the
Trustee may, if it shall be unwilling to so act, or shall, if it is unable to so
act, or if the Holders of Certificates entitled to at least 25% of the aggregate
Voting Rights so request in writing to the Trustee, or if neither the Trustee
nor the Fiscal Agent is rated by each Rating Agency in one of its two highest
long-term debt rating categories or if the Rating Agencies do not provide
written confirmation that the succession of the Trustee, as Servicer or Special
Servicer, as applicable, will not cause a downgrade, qualification or withdrawal
of the then current ratings assigned to the Certificates, promptly appoint, or
petition a court of competent jurisdiction to appoint, any established mortgage
loan servicing institution the appointment of which will not result in a
downgrade, qualification or withdrawal of the then current rating or ratings
assigned to any Class of Certificates as evidenced in writing by each Rating
Agency, as the successor to the Servicer or Special Servicer, as applicable,
hereunder in the assumption of all or any part of the responsibilities, duties
or liabilities of the Servicer or Special Servicer hereunder. No appointment of
a successor to the Servicer or Special Servicer hereunder shall be effective
until the assumption by such successor of all the Servicer's or Special
Servicer's responsibilities, duties and liabilities hereunder. Pending
appointment of a successor to the Servicer (or the Special Servicer if the
Special Servicer is also the Servicer) hereunder, unless the Trustee shall be
prohibited by law from so acting, the Trustee shall act in such capacity as
herein above provided. Pending the appointment of a successor to the Special
Servicer, unless the Servicer is also the Special Servicer, the Servicer shall
act in such capacity. In connection with such appointment and assumption
described herein, the Trustee may make such arrangements for the compensation of
such successor out of payments on Mortgage Loans as it and such successor shall
agree; provided, however, that no such compensation shall be in excess of that
permitted the Terminated Party hereunder, provided, further, that if no
successor to the Terminated Party can be obtained to perform the obligations of
such Terminated Party hereunder, additional amounts shall be paid to such
successor and such amounts in excess of that permitted the Terminated Party
shall be treated as Realized Losses. The Depositor, the Trustee, the Servicer or
Special Servicer and such successor 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 termination pursuant to Section 7.01 above or appointment of a
successor to the Servicer or the Special Servicer, the Trustee shall give prompt
written notice thereof to Certificateholders at their respective addresses
appearing in the Certificate Register and to each Rating Agency.
(b) Within 30 days after the occurrence of any Event of Default of which a
Responsible Officer of the Trustee has actual knowledge, the Trustee shall
transmit by mail to all Holders of Certificates and to each Rating Agency notice
of such Event of Default, unless such Event of Default shall have been cured or
waived.
SECTION 7.04. Other Remedies of Trustee.
During the continuance of any Servicer Event of Default or a Special
Servicer Event of Default, so long as such Servicer Event of Default or Special
Servicer Event of Default, if applicable, shall not have been remedied, the
Trustee, in addition to the rights specified in Section 7.01, shall have the
right, in its own name as trustee of an express trust, to take all actions now
or hereafter existing at law, in equity or by statute to enforce its rights and
remedies and to protect the interests, and enforce the rights and remedies, of
the Certificateholders (including the institution and prosecution of all
judicial, administrative and other proceedings and the filing of proofs of claim
and debt in connection therewith). In such event, the legal fees, expenses and
costs of such action and any liability resulting therefrom shall be expenses,
costs and liabilities of the Trust Fund, and the Trustee shall be entitled to be
reimbursed therefor from the Collection Account as provided in Section 3.06.
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 Servicer Event of Default or Special
Servicer Event of Default, if applicable.
SECTION 7.05. Waiver of Past Events of Default;Termination.
The Holders of Certificates evidencing not less than 66-2/3% of the
aggregate Voting Rights of the Certificates may, on behalf of all Holders of
Certificates, waive any default by the Servicer or Special Servicer in the
performance of its obligations hereunder and its consequences, except a default
in making any required deposits (including P&I Advances) to or payments from the
Collection Account or the Distribution Account or in remitting payments as
received, in each case in accordance with this Agreement. Upon any such waiver
of a past default, such default shall cease to exist, and any Event of Default
arising therefrom shall be deemed to have been remedied for every purpose of
this Agreement. No such waiver shall extend to any subsequent or other default
or impair any right consequent thereon.
ARTICLE VIII
CONCERNING THE TRUSTEE
SECTION 8.01. Duties of Trustee.
(a) The Trustee, prior to the occurrence of an Event of Default of which a
Responsible Officer of the Trustee has actual knowledge 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
and no permissive right of the Trustee shall be construed as a duty. During the
continuance of an Event of Default of which a Responsible Officer of the Trustee
has actual knowledge, the Trustee, subject to the provisions of Sections 7.02
and 7.05 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 person would exercise or use under the circumstances in the conduct of
such person's own affairs.
(b) The Trustee, upon receipt of any resolutions, certificates, statements,
opinions, reports, documents, orders or other instruments furnished to the
Trustee which are specifically required to be furnished pursuant to any
provision of this Agreement, shall examine them to determine whether they
conform on their face to the requirements of this Agreement; provided, however,
that, the Trustee shall not be responsible for the accuracy or content of any
such resolution, certificate, statement, opinion, report, document, order or
other instrument provided to it hereunder. If any such instrument is found not
to conform on its face to the requirements of this Agreement in a material
manner, the Trustee shall take action as it deems appropriate to have the
instrument corrected, and if the instrument is not corrected to the Trustee's
reasonable satisfaction, the Trustee will provide notice thereof to the
Certificateholders.
(c) Neither the Trustee nor any of its officers, directors, employees,
agents or "control" persons within the meaning of the Act shall have any
liability arising out of or in connection with this Agreement, provided, that,
subject to Section 8.02, no provision of this Agreement shall be construed to
relieve the Trustee, or any such person, from liability for its own negligent
action, its own negligent failure to act or its own willful misconduct or its
own bad faith; and provided, further, that:
(i) Prior to the occurrence of an Event of Default of which a Responsible
Officer of the Trustee has actual knowledge, and after the curing or
waiver of all such Events of Default which may have occurred, the
duties and obligations of the Trustee shall be determined solely by
the express provisions of this Agreement, the Trustee shall not be
liable except for the performance of such duties and obligations as
are specifically set forth in this Agreement, no implied covenants or
obligations shall be read into this Agreement against the Trustee and,
in the absence of bad faith on the part of the Trustee, the Trustee
may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any resolutions,
certificates, statements, reports, opinions, documents, orders or
other instruments furnished to the Trustee that conform on their face
to the requirements of this Agreement without responsibility for
investigating the contents thereof;
(ii) The Trustee shall not be personally liable for an error of judgment
made in good faith by a Responsible Officer or Responsible Officers,
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
greater than 50% of the Percentage Interests (or such other percentage
as is specified herein) of each affected Class, or of the aggregate
Voting Rights of the Certificates, 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) Neither the Trustee nor any of its respective directors, officers,
employees, agents or control persons shall be responsible for any act
or omission of any Custodian, Paying Agent or Certificate Registrar
that is not an Affiliate of the Trustee and that is selected other
than by the Trustee, performed or omitted in compliance with any
custodial or other agreement, or any act or omission of the Servicer,
Special Servicer, the Depositor or any other Person, including,
without limitation, in connection with actions taken pursuant to this
Agreement;
(v) The Trustee shall not be under any obligation to appear in, prosecute
or defend any legal action which is not incidental to its respective
duties as Trustee in accordance with this Agreement (and, if it does,
all legal expenses and costs of such action shall be expenses and
costs of the Trust Fund), and the Trustee shall be entitled to be
reimbursed therefor from the Collection Account, unless such legal
action arises out of the negligence or bad faith of the Trustee or any
breach of an obligation, representation, warranty or covenant of the
Trustee contained herein; and
(vi) The Trustee shall not be charged with knowledge of any act, failure to
act or breach of any Person upon the occurrence of which the Trustee
may be required to act, unless a Responsible Officer of the Trustee
obtains actual knowledge of such failure. The Trustee shall be deemed
to have actual knowledge of the Servicer's or the Special Servicer's
failure to provide scheduled reports, certificates and statements when
and as required to be delivered to the Trustee pursuant to this
Agreement.
None of the provisions contained in this Agreement shall require either the
Trustee, in its capacity as Trustee, or the Fiscal Agent, to expend or risk its
own funds, or otherwise incur financial liability in the performance of any of
its duties hereunder, or in the exercise of any of its rights or powers, if in
the opinion of the Trustee or the Fiscal Agent, respectively, the repayment of
such funds or adequate indemnity against such risk or liability is not
reasonably assured to it, and none of the provisions contained in this Agreement
shall in any event require the Trustee to perform, or be responsible for the
manner of performance of, any of the obligations of the Servicer or the Special
Servicer under this Agreement, except during such time, if any, as the Trustee
shall be the successor to, and be vested with the rights, duties, powers and
privileges of, the Servicer or the Special Servicer in accordance with the terms
of this Agreement. Neither the Trustee nor the Fiscal Agent shall be required to
post any surety or bond of any kind in connection with its performance of its
obligations under this Agreement and neither the Trustee nor the Fiscal Agent
shall be liable for any loss on any investment of funds pursuant to this
Agreement.
SECTION 8.02. Certain Matters Affecting the Trustee.
(a) Except as otherwise provided in Section 8.01:
(i) The Trustee may request and/or rely upon and shall be protected in
acting or refraining from acting upon any resolution, Officers'
Certificate, certificate of auditors or any other certificate,
statement, instrument, opinion, report, notice, request, consent,
order, appraisal, bond or other paper or document reasonably believed
by it to be genuine and to have been signed or presented by the proper
party or parties and the Trustee shall have no responsibility to
ascertain or confirm the genuineness of any such party or parties;
(ii) The Trustee may consult with counsel and any Opinion of Counsel shall
be full and complete authorization and protection in respect of any
action taken or suffered or omitted by it hereunder in good faith and
in accordance with such Opinion of Counsel;
(iii) (A) The Trustee shall be under no obligation to institute, conduct or
defend any litigation hereunder or in relation hereto at the request,
order or direction of any of the Certificateholders, pursuant to the
provisions of this Agreement, unless such Certificateholders shall
have offered to the Trustee reasonable security or indemnity against
the costs, expenses and liabilities which may be incurred therein or
thereby; (B) the right of the Trustee to perform any discretionary act
enumerated in this Agreement shall not be construed as a duty, and the
Trustee shall not be answerable for other than its negligence or
willful misconduct in the performance of any such act; and (C)
provided, that subject to the foregoing clause (A), nothing contained
herein shall relieve the Trustee of the obligations, upon the
occurrence of an Event of Default (which has not been cured or waived)
of which a Responsible Officer of the Trustee has actual knowledge, 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 person would exercise or use under the circumstances in the
conduct of such person's own affairs;
(iv) Neither the Trustee nor any of its directors, officers, employees,
Affiliates, agents or "control" persons within the meaning of the Act
shall be personally liable for any action taken, suffered or omitted
by it in good faith and reasonably believed by the Trustee to be
authorized or within the discretion or rights or powers conferred upon
it by this Agreement;
(v) The Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order,
approval, bond or other paper or document, unless requested in writing
to do so by Holders of Certificates entitled to at least 25% (or such
other percentage as is specified herein) of the Percentage Interests
of any affected Class; 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. The reasonable
expense of every such investigation shall be paid by the Servicer or
the Special Servicer if an Event of Default shall have occurred and be
continuing relating to the Servicer, or the Special Servicer,
respectively, and otherwise by the Certificateholders requesting the
investigation; and
(vi) The Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents
or attorneys but shall not be relieved of the obligations hereunder.
(b) Following the Start-up Day, the Trustee shall not, except as expressly
required by any provision of this Agreement, accept any contribution of assets
to the Trust Fund unless the Trustee shall have received an Opinion of Counsel
(the costs of obtaining such opinion to be borne by the Person requesting such
contribution) to the effect that the inclusion of such assets in the Trust Fund
will not cause either the Upper-Tier REMIC or the Lower-Tier REMIC to fail to
qualify as a REMIC at any time that any Certificates are outstanding or subject
either the Upper-Tier REMIC or the Lower-Tier REMIC to any tax under the REMIC
Provisions or other applicable provisions of federal, state and local law or
ordinances.
(c) All rights of action under this Agreement or under any of the
Certificates, enforceable by the Trustee, may be enforced by it without the
possession of any of the Certificates, or the production thereof at the trial or
other proceeding relating thereto, and any such suit, action or proceeding
instituted by the Trustee shall be brought in its name for the benefit of all
the Holders of such Certificates, subject to the provisions of this Agreement.
The Trustee shall have no duty to conduct any affirmative investigation as
to the occurrence of any condition requiring the repurchase of any Mortgage Loan
by the Depositor pursuant to this Agreement or the eligibility of any Mortgage
Loan for purposes of this Agreement.
SECTION 8.03. Trustee and Fiscal Agent Not Liable
for Certificates or Mortgage Loans.
The recitals contained herein and in the Certificates shall not be taken as
the statements of the Trustee, the Fiscal Agent, the Servicer, or the Special
Servicer and the Trustee, the Fiscal Agent, the Servicer and the Special
Servicer assume no responsibility for their correctness. The Trustee, the Fiscal
Agent, the Servicer and the Special Servicer make no representations or
warranties as to the validity or sufficiency of this Agreement, of the
Certificates or any prospectus used to offer the Certificates for sale or the
validity, enforceability or sufficiency of any Mortgage Loan, or related
document. Neither the Trustee nor the Fiscal Agent shall at any time have any
responsibility or liability for or with respect to the legality, validity and
enforceability of any Mortgage, any Mortgage Loan, or the perfection and
priority of any Mortgage or the maintenance of any such perfection and priority,
or for or with respect to the sufficiency of the Trust Fund or its ability to
generate the payments to be distributed to Certificateholders under this
Agreement. Without limiting the foregoing, neither the Trustee nor the Fiscal
Agent shall be liable or responsible for: the existence, condition and ownership
of any Mortgaged Property; the existence of any hazard or other insurance
thereon (other than if the Trustee shall assume the duties of the Servicer or
the Special Servicer pursuant to Section 7.02) or the enforceability thereof;
the existence of any Mortgage Loan or the contents of the related Mortgage File
on any computer or other record thereof (other than if the Trustee shall assume
the duties of the Servicer or the Special Servicer pursuant to Section 7.02);
the validity of the assignment of any Mortgage Loan to the Trust Fund or of any
intervening assignment; the completeness of any Mortgage File; the performance
or enforcement of any Mortgage Loan (other than if the Trustee shall assume the
duties of the Servicer or the Special Servicer pursuant to Section 7.02); the
compliance by the Depositor, the Servicer or the Special Servicer with any
warranty or representation made under this Agreement or in any related document
or the accuracy of any such warranty or representation prior to the Trustee's
receipt of notice or other discovery of any non-compliance therewith or any
breach thereof; any investment of monies by or at the direction of the Servicer
or any loss resulting therefrom, it being understood that the Trustee shall
remain responsible for any Trust Fund property that it may hold in its
individual capacity; the acts or omissions of any of the Depositor, the Servicer
or the Special Servicer (other than if the Trustee shall assume the duties of
the Servicer or Special Servicer pursuant to Section 7.02) or any subservicer or
any Borrower; any action of the Servicer or Special Servicer (other than if the
Trustee shall assume the duties of the Servicer or Special Servicer pursuant to
Section 7.02) or any subservicer taken in the name of the Trustee, except to the
extent such action is taken at the express written direction of the Trustee; the
failure of the Servicer or the Special Servicer or any subservicer to act or
perform any duties required of it on behalf of the Trust Fund or the Trustee
hereunder; or any action by or omission of the Trustee taken at the instruction
of the Servicer or the Special Servicer (other than if the Trustee shall assume
the duties of the Servicer or the Special Servicer pursuant to Section 7.02)
unless the taking of such action is not permitted by the express terms of this
Agreement; provided, however, that the foregoing shall not relieve the Trustee
of its obligation to perform its duties as specifically set forth in this
Agreement. Neither the Trustee nor the Fiscal Agent shall be accountable for the
use or application by the Depositor, the Servicer or the Special Servicer of any
of the Certificates or of the proceeds of such Certificates, or for the use or
application of any funds paid to the Depositor, the Servicer or the Special
Servicer in respect of the assignment of the Mortgage Loans or deposited in or
withdrawn from the Collection Account, Distribution Account, Upper-Tier
Distribution Account, Lock Box Account, Cash Collateral Account, Reserve
Accounts, Interest Reserve Account, Default Interest Distribution Account or
Excess Interest Distribution Account or any other account maintained by or on
behalf of the Servicer or the Special Servicer, other than any funds held by the
Trustee or the Fiscal Agent, as applicable. Neither the Trustee nor the Fiscal
Agent shall 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 (unless
the Trustee shall have become the successor Servicer) or to record this
Agreement. In making any calculation hereunder which includes as a component
thereof the payment or distribution of interest for a stated period at a stated
rate "to the extent permitted by applicable law," the Trustee shall assume that
such payment is so permitted unless a Responsible Officer of the Trustee has
actual knowledge, or receives an Opinion of Counsel (at the expense of the
Person asserting the impermissibility) to the effect, that such payment is not
permitted by applicable law.
SECTION 8.04. Trustee and Fiscal Agent May Own Certificates.
The Trustee, the Fiscal Agent and any agent of the Trustee and Fiscal Agent
in its individual capacity or any other capacity may become the owner or pledgee
of Certificates, and may deal with the Depositor and the Servicer in banking
transactions, with the same rights it would have if it were not Trustee, Fiscal
Agent or such agent.
SECTION 8.05. Payment of Trustee's Fees and Expenses; Indemnification.
(a) The Trustee or any successor Trustee shall be entitled, on each
Distribution Date, to the Trustee Fee (which shall not be limited by any
provision of law in regard to the compensation of a trustee of an express trust)
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
hereunder of the Trustee, which Trustee Fee shall be paid to the Trustee prior
to the distribution on such Distribution Date of amounts to the
Certificateholders. In the event that the Trustee assumes the servicing
responsibilities of the Servicer or the Special Servicer hereunder pursuant to
or otherwise arising from the resignation or removal of the Servicer or the
Special Servicer, the Trustee shall be entitled to the compensation to which the
Servicer or the Special Servicer, as the case may be, would have been entitled.
(b) The Trustee and the Fiscal Agent shall each be paid or reimbursed by
the Trust Fund upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee or the Fiscal Agent pursuant to and in
accordance with any of the provisions of this Agreement (including the
reasonable compensation and the expenses and disbursements of its counsel and of
all persons not regularly in its employ) to the extent such payments are
"unanticipated expenses incurred by the REMIC" within the meaning of Treasury
Regulations Section 1.860G-1(b)(iii) except any such expense, disbursement or
advance as may arise from its negligence or bad faith; provided, however, that,
subject to the last paragraph of Section 8.01, neither the Trustee nor the
Fiscal Agent shall refuse to perform any of its duties hereunder solely as a
result of the failure to be paid the Trustee Fee and the Trustee's expenses or
any sums due to the Fiscal Agent.
The Servicer and the Special Servicer covenant and agree to pay or
reimburse the Trustee for the reasonable expenses, disbursements and advances
incurred or made by the Trustee in connection with any transfer of the servicing
responsibilities of the Servicer or the Special Servicer, respectively,
hereunder, pursuant to or otherwise arising from the resignation or removal of
the Servicer, in accordance with any of the provisions of this Agreement (and
including the reasonable fees and expenses and disbursements of its counsel and
all other persons not regularly in its employ), except any such expense,
disbursement or advance as may arise from the negligence or bad faith of the
Trustee; provided, that in the event that the Servicer is terminated pursuant to
Section 6.04(c), expenses incurred in connection with such transfer shall be
paid by the Certificateholders effecting such termination.
(c) Each of the Paying Agent, the Certificate Registrar, the Custodian, the
Depositor, the Servicer and the Special Servicer (each, an "Indemnifying Party")
shall indemnify the Trustee and the Fiscal Agent and their respective Affiliates
and each of the directors, officers, employees and agents of the Trustee, the
Fiscal Agent and their respective Affiliates (each, an "Indemnified Party"), and
hold each of them harmless against any and all claims, losses, damages,
penalties, fines, forfeitures, reasonable and necessary legal fees and related
costs, judgments, and any other costs, fees and expenses that the Indemnified
Party may sustain in connection with this Agreement (including, without
limitation, reasonable fees and disbursements of counsel incurred by the
Indemnified Party in any action or proceeding between the Indemnifying Party and
the Indemnified Party or between the Indemnified Party and any third party or
otherwise) related to each such Indemnifying Party's respective willful
misconduct, bad faith, fraud and/or negligence in the performance of each of its
respective duties hereunder or by reason of reckless disregard of its respective
obligations and duties hereunder (including in the case of the Servicer, any
agent of the Servicer or subservicer).
(d) The Trust Fund shall indemnify each Indemnified Party from, and hold it
harmless against, any and all losses, liabilities, damages, claims or
unanticipated expenses (including, without limitation, reasonable fees and
disbursements of counsel incurred by the Indemnified Party in any action or
proceeding between the Indemnifying Party and the Indemnified Party or between
the Indemnified Party and any third party or otherwise) arising in respect of
this Agreement or the Certificates, in each case to the extent and only to the
extent, such payments are expressly reimbursable under this Agreement or are
"unanticipated expenses incurred by the REMIC" within the meaning of Treasury
Regulations Section 1.860G-1(b)(3)(iii), other than (i) those resulting from the
negligence, fraud, bad faith or willful misconduct of the Indemnified Party and
(ii) those as to which such Indemnified Party is entitled to indemnification
pursuant to Section 8.05(c). The term "unanticipated expenses incurred by a
REMIC" shall include any fees, expenses and disbursement of any separate trustee
or co-trustee appointed hereunder, only to the extent such fees, expenses and
disbursements were not reasonably anticipated as of the Closing Date and the
losses, liabilities, damages, claims or expenses (including reasonable
attorneys' fees) incurred or advanced by an Indemnified Party in connection with
any litigation arising out of this Agreement, including, without limitation,
under Section 2.03, Section 3.10, the third paragraph of Section 3.11, Section
4.05 and Section 7.01. The right of reimbursement of the Indemnified Parties
under this Section 8.05(d) shall be senior to the rights of all
Certificateholders.
(e) Notwithstanding anything herein to the contrary, this Section 8.05
shall survive the termination or maturity of this Agreement or the resignation
or removal of the Trustee or the Fiscal Agent, as the case may be, as regards
rights accrued prior to such resignation or removal and (with respect to any
acts or omissions during their respective tenures) the resignation, removal or
termination of the Servicer, the Special Servicer, the Paying Agent, the
Certificate Registrar or the Custodian.
(f) This Section 8.05 shall be expressly construed to include, but not be
limited to, such indemnities, compensation, expenses, disbursements, advances,
losses, liabilities, damages and the like, as may pertain or relate to any
environmental law or environmental matter.
SECTION 8.06. Eligibility Requirements for Trustee.
The Trustee hereunder shall at all times be a corporation or association
organized and doing business under the laws of any state or the United States of
America, authorized under such laws to exercise corporate trust powers and to
accept the trust conferred under this Agreement, having a combined capital and
surplus of at least $50,000,000 and a rating on its unsecured long-term debt of
at least "BBB" by Fitch and DCR, S&P and "Baa2" by Xxxxx'x (or at any time when
there is no Fiscal Agent appointed and acting hereunder or any such Fiscal Agent
so appointed has a rating on its long-term unsecured debt that is lower than
"AA" by Fitch and S&P and "Aa2" by Xxxxx'x (without regard to any plus or minus
or numeric qualifier) the rating on the unsecured long term debt of the Trustee
must be at least "AA" by Fitch and DCR, S&P and "Aa2" by Xxxxx'x, or meet
different standards provided that each Rating Agency shall have confirmed in
writing that such different standards would not, in and of itself, result in a
downgrade, qualification or withdrawal of the then current ratings assigned to
the Certificates) and subject to supervision or examination by federal or state
authority and shall not be an Affiliate of the Servicer (except during any
period when the Trustee has assumed the duties of the Servicer pursuant to
Section 7.02); provided that, notwithstanding that the long-term unsecured debt
of LaSalle National Bank and ABN AMRO Bank N.V. are not rated by DCR and Fitch,
LaSalle National Bank shall not fail to qualify as Trustee solely by virtue of
the lack of such ratings until such time as Fitch or DCR shall notify the
Trustee, the Servicer and the Special Servicer in writing that LaSalle National
Bank is no longer exempt from the foregoing rating requirements imposed by this
sentence. If a corporation 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 purposes of this Section the
combined capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition
so published. In the event that the place of business from which the Trustee
administers the Trust Fund is a state or local jurisdiction that imposes a tax
on the Trust Fund or the net income of a REMIC (other than a tax corresponding
to a tax imposed under the REMIC Provisions) the Trustee shall elect either to
(i) resign immediately in the manner and with the effect specified in Section
8.07, (ii) pay such tax and continue as Trustee or (iii) administer the Trust
Fund from a state and local jurisdiction that does not impose such a tax. 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.
SECTION 8.07. Resignation and Removal of the Trustee.
The Trustee may at any time resign and be discharged from the trusts hereby
created by giving written notice thereof to the Depositor, the Servicer and each
Rating Agency. Upon such notice of resignation, the Fiscal Agent shall also be
deemed to have been removed and, accordingly, the Servicer shall promptly
appoint a successor Trustee, the appointment of which would not, as evidenced in
writing, in and of itself, result in a downgrade, qualification or withdrawal of
the then current ratings assigned to the Certificates, and a successor Fiscal
Agent (if necessary to satisfy the requirements contained in Section 8.06), the
appointment of which, if the successor Trustee is not rated by each Rating
Agency in one of its two highest long-term debt rating categories, would not, as
evidenced in writing, in and of itself, result in a downgrade, qualification or
withdrawal of the then current ratings assigned to the Certificates), by written
instrument, in triplicate, which instrument shall be delivered to the resigning
Trustee, with a copy to the Fiscal Agent deemed removed, and the successor
Trustee and successor Fiscal Agent. If no successor Trustee and successor Fiscal
Agent shall have been so appointed and have accepted appointment within 30 days
after the giving of such notice of resignation, the resigning Trustee and the
Fiscal Agent may petition any court of competent jurisdiction for the
appointment of a successor Trustee and successor Fiscal Agent.
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 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 upon
a confirmation in writing by any Rating Agency that not terminating the Trustee,
or the Fiscal Agent, as applicable, would, in and of itself, cause the
then-current rating assigned to any class of Certificates to be qualified,
withdrawn or downgraded, then the Depositor or the Servicer may remove the
Trustee and the Fiscal Agent and the Servicer shall promptly appoint a successor
Trustee and successor Fiscal Agent by written instrument, which shall be
delivered to the Trustee and the Fiscal Agent so removed and to the successor
Trustee and the successor Fiscal Agent.
The Holders of Certificates entitled to at least 50% of the Voting Rights
may at any time remove the Trustee and the Fiscal Agent (and any removal of the
Trustee shall be deemed to be a removal also of the Fiscal Agent) and appoint a
successor Trustee and successor Fiscal Agent by written instrument or
instruments, in seven originals, signed by such Holders or their
attorneys-in-fact duly authorized, one complete set of which instruments shall
be delivered to the Depositor, one complete set to the Servicer, one complete
set to the Trustee so removed, one complete set to the Fiscal Agent deemed
removed, one complete set to the successor Trustee so appointed and one complete
set to the successor Fiscal Agent so appointed.
In the event of removal of the Trustee the Fiscal Agent shall be deemed to
have been removed.
In the event that the Trustee or Fiscal Agent is terminated or removed
pursuant to this Section 8.07, all of its rights and obligations under this
Agreement and in and to the Mortgage Loans shall be terminated, other than any
rights or obligations that accrued prior to the date of such termination or
removal (including the right to receive all fees, expenses and other amounts
accrued or owing to it under this Agreement, plus interest at the Advance Rate
on all such amounts until received to the extent such amounts bear interest as
provided in this Agreement, with respect to periods prior to the date of such
termination or removal).
Any resignation or removal of the Trustee and Fiscal Agent and appointment
of a successor Trustee and, if such trustee is not rated by each Rating Agency
in one of its two highest long-term debt rating categories, a successor Fiscal
Agent pursuant to any of the provisions of this Section 8.07 shall not become
effective until acceptance of appointment by the successor Trustee and, if
necessary, successor Fiscal Agent as provided in Section 8.08.
SECTION 8.08. Successor Trustee and Fiscal Agent.
(a) Any successor Trustee and any successor Fiscal Agent appointed as
provided in Section 8.07 shall execute, acknowledge and deliver to the
Depositor, the Servicer and to the predecessor Trustee and predecessor Fiscal
Agent, as the case may be, instruments accepting their appointment hereunder,
and thereupon the resignation or removal of the predecessor Trustee and
predecessor Fiscal Agent shall become effective and such successor Trustee and
successor Fiscal Agent, 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 or
Fiscal Agent herein, provided that the appointment of such successor Trustee and
successor Fiscal Agent shall not, as evidenced in writing, result in a
downgrade, qualification or withdrawal of the then current ratings assigned to
the Certificates. The predecessor Trustee shall deliver to the successor Trustee
all Mortgage Files and related documents and statements held by it hereunder,
and the Depositor and the predecessor Trustee shall execute and deliver such
instruments and do such other things as may reasonably be required for more
fully and certainly vesting and confirming in the successor Trustee all such
rights, powers, duties and obligations. 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.
Upon acceptance of appointment by a successor Trustee as provided in this
Section 8.08, the Depositor shall mail notice of the succession of such Trustee
hereunder to all Holders of Certificates at their addresses as shown in the
Certificate Register. If the Depositor fails to mail such notice within 10 days
after acceptance of appointment by the successor Trustee, the successor Trustee
shall cause such notice to be mailed at the expense of the Depositor.
(b) Any successor Trustee or Fiscal Agent appointed pursuant to this
Agreement shall satisfy the eligibility requirements set forth in Section 8.06
hereof.
SECTION 8.09. Merger or Consolidation of Trustee.
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided that such corporation 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.
SECTION 8.10. Appointment of Co-Trustee or Separate Trustee.
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
Depositor 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 (at the expense of the Trustee) 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 Depositor and the Trustee may consider necessary or desirable.
If the Depositor shall not have joined in such appointment within 15 days after
the receipt by it of a request so to do, or in case an Event of Default shall
have occurred and be continuing, the Trustee alone shall have the power to make
such appointment. Except as required by applicable law, the appointment of a
co-trustee or separate trustee shall not relieve the Trustee of its
responsibilities, obligations and liabilities hereunder. 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.
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 (it
being understood that such separate trustee or co-trustee is not authorized to
act separately without the Trustee joining in such act), 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 Servicer
hereunder), the Trustee shall be incompetent or unqualified to perform such act
or acts, in which event such rights, powers, duties and obligations (including
the holding of title to the Trust Fund or any portion thereof in any such
jurisdiction) shall be exercised and performed by such separate trustee or
co-trustee solely at the direction of the Trustee.
No trustee under this Agreement shall be personally liable by reason of any
act or omission of any other trustee under this Agreement. The Depositor and the
Trustee acting jointly may at any time accept the resignation of or remove any
separate trustee or co-trustee, or if the separate trustee or co-trustee is an
employee of the Trustee, the Trustee acting alone may accept the resignation of
or remove any separate trustee or co-trustee.
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. Every such instrument shall be filed with the Trustee.
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. In no
event shall any such separate trustee or co-trustee be entitled to any provision
relating to the conduct of affecting the liability of or affording protection to
such separate trustee or co-trustee that imposes a standard of conduct less
stringent than that imposed by the Trustee hereunder, affording greater
protection than that afforded to the Trustee hereunder or providing a greater
limit on liability than that provided to the Trustee hereunder.
Any separate trustee or co-trustee may, at any time, constitute the Trustee
its agent or attorney-in-fact, with full power and authority, to the extent not
prohibited by law, to do any lawful act under or in respect of this Agreement on
its behalf and in its name. If any separate trustee or co-trustee shall die,
become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Trustee, to the extent permitted by law, without the appointment of a new or
successor trustee.
Section 8.11. Fiscal Agent Appointed; Concerning the Fiscal Agent.
(a) The Trustee hereby appoints ABN AMRO Bank N.V. as the initial Fiscal
Agent hereunder for the purposes of exercising and performing the obligations
and duties imposed upon the Fiscal Agent by Sections 3.24 and 4.06.
(b) The Fiscal Agent undertakes to perform such duties and only such duties
as are specifically set forth in Sections 3.24 and 4.06.
(c) No provision of this Agreement shall be construed to relieve the Fiscal
Agent from liability for its own negligent failure to act or its own willful
misfeasance or for a breach of a representation or warranty contained herein;
provided, however, that (i) the duties and obligations of the Fiscal Agent shall
be determined solely by the express provisions of Sections 3.24 and 4.06, the
Fiscal Agent shall not be liable except for the performance of such duties and
obligations, no implied covenants or obligations shall be read into this
Agreement against the Fiscal Agent and, in the absence of bad faith on the part
of the Fiscal Agent, the Fiscal Agent may conclusively rely, as to the truth and
correctness of the statements or conclusions expressed therein, upon any
resolutions, certificates, statements, opinions, reports, documents, orders or
other instruments furnished to the Fiscal Agent by the Depositor, the Servicer,
the Special Servicer or the Trustee and which on their face do not contradict
the requirements of this Agreement, and (ii) the provisions of clause (ii) of
Section 8.01(c) shall apply to the Fiscal Agent.
(d) Except as otherwise provided in Section 8.11(c), the Fiscal Agent also
shall have the benefit of provisions of clauses (i), (ii), (iii) (other than the
proviso thereto), (iv), (v) (other than the proviso thereto) and (vi) of Section
8.02(a).
ARTICLE IX
TERMINATION
SECTION 9.01. Termination.
(a) The respective obligations and responsibilities of the Servicer, the
Special Servicer, the Depositor, the Trustee and the Fiscal Agent created hereby
with respect to the Certificates (other than the obligation to make certain
payments and to send certain notices to Certificateholders as hereinafter set
forth) shall terminate immediately following the occurrence of the last action
required to be taken by the Trustee pursuant to this Article IX on the
Termination Date; provided, however, that in no event shall the trust created
hereby continue beyond the expiration of twenty-one years from the death of the
last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of
the United States to the United Kingdom, living on the date hereof.
(b) The Trust Fund, the Upper-Tier REMIC and the Lower-Tier REMIC shall be
terminated and the assets of the Trust Fund shall be sold or otherwise disposed
of in connection therewith, only pursuant to a "plan of complete liquidation"
within the meaning of Code Section 860F(a)(4)(A) providing for the actions
contemplated by the provisions hereof pursuant to which the applicable Notice of
Termination is given and requiring that the Trust Fund, the Upper-Tier REMIC and
the Lower-Tier REMIC shall terminate on a Distribution Date occurring not more
than 90 days following the date of adoption of the plan of complete liquidation.
For purposes of this Section 9.01(b), the Notice of Termination given pursuant
to Section 9.01(c) shall constitute the adoption of the plan of complete
liquidation as of the date such notice is given, which date shall be specified
by the Servicer in the final federal income tax returns of the Upper-Tier REMIC
and the Lower-Tier REMIC.
(c) Any holder of a Class LR Certificate representing greater than a 50%
Percentage Interest in such Class may effect an early termination of the Trust
Fund, upon not less than 30 days' prior Notice of Termination given to the
Trustee and Servicer any time on or after the Early Termination Notice Date
specifying the Anticipated Termination Date, by purchasing on such date all, but
not less than all, of the Mortgage Loans then included in the Trust Fund, and
all property acquired in respect of any Mortgage Loan, at a purchase price,
payable in cash, equal to not less than the greater of:
(i) the sum of
(A) 100% of the unpaid principal balance of each Mortgage Loan included in
the Trust Fund as of the last day of the month preceding such
Distribution Date (less any P&I Advances previously made on account of
principal);
(B) the fair market value of all other property included in the Trust Fund
as of the last day of the month preceding such Distribution Date, as
determined by an Independent appraiser acceptable to the Servicer as
of the date not more than 30 days prior to the last day of the month
preceding such Distribution Date;
(C) all unpaid interest accrued on such principal balance of each such
Mortgage Loan (including for this purpose any Mortgage Loan as to
which title to the related Mortgaged Property has been acquired) at
the Mortgage Rate (plus the Excess Rate, to the extent applicable), to
the last day of the month preceding such Distribution Date (less any
P&I Advances previously made on account of interest);
(D) the aggregate amount of unreimbursed Advances, with interest thereon
at the Advance Rate, and unpaid Servicing Compensation, Special
Servicing Compensation, Trustee Fees and Trust Fund expenses; and
(ii) the aggregate fair market value of the Mortgage Loans, and all other
property acquired in respect of any Mortgage Loan in the Trust Fund,
on the last day of the month preceding such Distribution Date, as
determined by an Independent appraiser acceptable to the Servicer as
of a date not more than 30 days prior to the last day of the month
preceding such Distribution Date, together with one month's interest
thereon at the Mortgage Rate.
The Servicer or the Depositor may also effect such termination as provided
above if it first notifies each Holder of a Class LR Certificate through the
Trustee of its intention to do so in writing at least 30 days prior to the Early
Termination Notice Date and no Class XX Xxxxxx terminates the Trust Fund as
described above within such 30-day period. All costs and expenses incurred by
any and all parties to this Agreement or by the Trust Fund in connection with
the purchase of the Mortgage Loans and other assets of the Trust Fund pursuant
to this Section 9.01(c) shall be borne by the party exercising its purchase
rights hereunder. The Trustee shall be entitled to rely conclusively on any
determination made by an Independent appraiser pursuant to this subsection (c).
Anything in this Section 9.01 to the contrary notwithstanding, the holders
of the Class V-1 Certificates shall receive that portion of the proceeds of a
sale of the assets of the Trust Fund allocable to the Net Default Interest, as
their interests may appear, and the holders of the Class V-2 Certificates shall
receive that portion of the proceeds of a sale of the assets of the Trust Fund
allocable to Excess Interest, as their interests may appear.
(d) If the Trust Fund has not been previously terminated pursuant to
subsection (c) of this Section 9.01, the Trustee shall determine as soon as
practicable the Distribution Date on which the Trustee reasonably anticipates,
based on information with respect to the Mortgage Loans previously provided to
it, that the final distribution will be made (i) to the Holders of outstanding
Regular Certificates, and to the Trustee in respect of the Lower-Tier Regular
Interests notwithstanding that such distribution may be insufficient to
distribute in full the Certificate Balance of each Certificate or Lower-Tier
Regular Interest, together with amounts required to be distributed on such
Distribution Date pursuant to Section 4.01(a), (b), (c) or (d) or (ii) if no
such Classes of Certificates are then outstanding, to the Holders of the Class
LR Certificates of any amount remaining in the Collection Account or the
Distribution Account and to the Holders of the Class R Certificates of any
amount remaining in the Upper-Tier Distribution Account, in either case,
following the later to occur of (A) the receipt or collection of the last
payment due on any Mortgage Loan included in the Trust Fund or (B) the
liquidation or disposition pursuant to Section 3.18 of the last asset held by
the Trust Fund.
(e) Notice of any termination of the Trust Fund pursuant to this Section
9.01 shall be mailed by the Trustee to affected Certificateholders with a copy
to the Servicer and each Rating Agency at their addresses shown in the
Certificate Registrar as soon as practicable after the Trustee shall have
received, given or been deemed to have received a Notice of Termination but in
any event not more than thirty days, and not less than ten days, prior to the
Anticipated Termination Date. The notice mailed by the Trustee to affected
Certificateholders shall:
(i) specify the Anticipated Termination Date on which the final
distribution is anticipated to be made to Holders of Certificates of
the Classes specified therein;
(ii) specify the amount of any such final distribution, if known; and
(iii) state that the final distribution to Certificateholders will be made
only upon presentation and surrender of Certificates at the office of
the Paying Agent therein specified.
If the Trust Fund is not terminated on any Anticipated Termination Date for any
reason, the Trustee shall promptly mail notice thereof to each affected
Certificateholder.
(f) Any funds not distributed on the Termination Date because of the
failure of any Certificateholders to tender their Certificates shall be set
aside and held in trust for the account of the appropriate non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice of the Termination Date 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 Certificateholders, at their last addresses shown in the
Certificate Register, to surrender their Certificates for cancellation in order
to receive, from such funds held, the final distribution with respect thereto.
If within one year after the second notice any Certificate shall not have been
surrendered for cancellation, the Trustee may, directly or through an agent,
take appropriate steps to contact the remaining Certificateholders concerning
surrender of their Certificates. The costs and expenses of maintaining such
funds and of contacting Certificateholders shall be paid out of the assets which
remain held. If within two years after the second notice any Certificates shall
not have been surrendered for cancellation, the Paying Agent shall pay to the
Trustee all amounts distributable to the Holders thereof, and the Trustee shall
thereafter hold such amounts for the benefit of such Holders until the earlier
of (i) its termination as Trustee hereunder and the transfer of such amounts to
a successor Trustee and (ii) the termination of the Trust Fund and distribution
of such amounts to the Class LR Certificateholders. No interest shall accrue or
be payable to any Certificateholder on any amount held as a result of such
Certificateholder's failure to surrender its Certificate(s) for final payment
thereof in accordance with this Section 9.01. Any such amounts transferred to
the Trustee may be invested in Permitted Investments and all income and gain
realized from investment of such funds shall be for the benefit of the Trustee.
(g) The Holder of a 100% Percentage Interest in the Class LR Certificates
may purchase any Mortgage Loan on its Anticipated Repayment Date, if any, at a
price equal to the sum of the following:
(i) 100% of the outstanding principal balance of such Mortgage Loan on
such Anticipated Repayment Date (less any P&I Advances previously made
on account of principal);
(ii) all unpaid interest accrued on such principal balance of such Mortgage
Loan at the Mortgage Rate thereof, to the last day of the Interest
Accrual Period preceding such Anticipated Repayment Date (less any P&I
Advances previously made on account of interest);
(iii) the aggregate amount of all unreimbursed Advances with respect to
such Mortgage Loan, with interest thereon at the Advance Rate, and
unpaid Special Servicing Compensation, Servicing Compensation, Trustee
Fees and Trust Fund expenses; and
(iv) the amount of any Liquidation Expenses incurred by the Trust Fund in
connection with such purchase;
provided, that, such Holder, at its expense, has provided the Trustee with
an opinion of counsel to the effect that such purchase would not (x) result in a
gain which would be subject to the tax on net income derived from "prohibited
transactions" imposed by Code Section 860F(a)(1) or otherwise result in the
imposition of any other tax on the Lower-Tier REMIC or the Upper-Tier REMIC
under the REMIC Provisions or (y) cause either the Upper-Tier REMIC or the
Lower-Tier REMIC to fail to qualify as a REMIC; such opinion relying upon
appraisals of the fair market value (for the purposes of Section 860F(c)(1) of
the Code) of such Mortgage Loan by at least three Independent appraisers.
Notwithstanding the foregoing, such Mortgage Loan may not be purchased if
the fair market value of the Mortgage Loan is greater than 100% of the
outstanding principal balance of such Mortgage Loan.
The Holder of 100% of the most subordinate Class of Certificates (provided
that the Class 7H Certificates shall not be considered a Class for such
purposes) may purchase any Mortgage Loan on or after its Anticipated Repayment
Date under the same terms and conditions hereunder as in the case of a purchase
by the Holder of the Class LR Certificates if the Holder of the Class LR
Certificates either (i) notifies the Holder of the most subordinate Class of
Certificates that it will not purchase such Mortgage Loan or (ii) does not, in
fact, purchase such Mortgage Loan on its Anticipated Repayment Date.
The proceeds of any such purchase hereunder shall be deposited in the
Collection Account and disbursed as provided herein.
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.01. Counterparts. 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 10.02. Limitation on Rights of Certificateholders.
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.
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 person by reason of any action taken by the parties
to this Agreement pursuant to any provision hereof.
No Certificateholder shall have any right 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 such Holder previously shall have given to the
Trustee a written notice of default and of the continuance thereof, as
hereinbefore provided, and unless also the Holders of Certificates representing
Percentage Interests of at least 25% of each affected Class of Certificates
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 of any Class shall have any right in any manner whatever 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, or to enforce any right
under this Agreement, except in the manner herein provided and for the equal,
ratable and common benefit of all Holders of Certificates of such Class. For the
protection and enforcement of the provisions of this Section, each and every
Certificateholder and the Trustee shall be entitled to such relief as can be
given either at law or in equity.
SECTION 10.03. Governing Law.
THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF NEW YORK AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER
SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
SECTION 10.04. Notices.
All demands, notices and communications hereunder shall be in writing,
shall be deemed to have been given upon receipt (except that notices to Holders
of Class B-7, Class B-7H, Class V-1, Class V-2, Class R and Class LR
Certificates or Holders of any Class of Certificates no longer held through a
Depository and instead held in registered, definitive form shall be deemed to
have been given upon being sent by first class mail, postage prepaid) as
follows:
If to the Trustee, to:
LaSalle National Bank
000 Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Asset-Backed Securities
Trust Services, Nomura 1997-D4
If to the Fiscal Agent, to:
ABN AMRO Bank, N.V.
c/o LaSalle National Bank
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Asset-Backed Securities
Trust Services, Nomura 1997-D4
If to the Depositor, to:
Asset Securitization Corporation
2 World Financial Xxxxxx
Xxxxxxxx X, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxx Xxxxxxx and
Xxxxxx XxXxxx
With copies to:
Cadwalader, Xxxxxxxxxx & Xxxx
000 Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxx
If to the Servicer or Special Servicer, to:
AMRESCO Management, Inc.
000 Xxxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Legal Counsel
With copies to:
AMRESCO, INC.
000 X. Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: General Counsel
and
Weil, Gotshal & Xxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxx
If to the Mortgage Loan Seller, to:
Nomura Asset Capital Corporation
2 World Financial Xxxxxx
Xxxxxxxx X, 00xx Xxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxxx Xxxxxxx and
Xxxxxx XxXxxx
If to any Certificateholder, to:
the address set forth in the
Certificate Register,
or, in the case of the parties to this Agreement, to such other address as such
party shall specify by written notice to the other parties hereto.
SECTION 10.05. 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, to the
extent permitted by applicable law, such covenants, agreements, provisions or
terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or of the Certificates
or the rights of the Holders thereof.
SECTION 10.06. Notice to the Deposit or and Each Rating Agency.
(a) The Trustee shall use its best efforts to promptly provide notice to
the Depositor and 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 merger, consolidation, resignation or termination of the
Servicer, Special Servicer, the Trustee or Fiscal Agent;
(iv) the repurchase of Mortgage Loans pursuant to Section 2.03(d) or
2.03(e);
(v) the final payment to any Class of Certificateholders;
(vi) any change in the location of the Collection Account or the
Distribution Account;
(vii) any event that would result in the voluntary or involuntary
termination of any insurance of the accounts of the Servicer;
(viii) each report to Certificateholders described in Section 4.02 and
Section 3.22;
(ix) any change in the lien priority of a Mortgage Loan;
(x) any new lease of an anchor or a termination of an anchor lease at a
retail Mortgaged Property;
(xi) any termination of licensing certification at a Mortgaged Property
securing a Senior Housing/Healthcare Loan;
(xii) any material damage to a Mortgaged Property; and
(xiii) any amendment, modification, consent or waiver to or of any
provision of a Mortgage Loan.
(b) The Servicer shall promptly furnish to each Rating Agency copies of the
following:
(i) each of its annual statements as to compliance described in Section
3.14;
(ii) each of its annual independent public accountants' servicing reports
described in Section 3.15; and
(iii) a copy of each rent roll and each operating and other financial
statement and occupancy reports, to the extent such information is
required to be delivered under a Mortgage Loan, in each case to the
extent collected pursuant to Section 3.03. However, with respect to
DCR, the Servicer shall provide only the annual statements or reports.
(c) The Servicer shall furnish each Rating Agency and the Depositor with
such information with respect to the Trust Fund, a Mortgaged Property, a
Borrower and a non-performing or Specially Serviced Mortgage Loan as such Rating
Agency or the Depositor shall reasonably request and which the Servicer can
reasonably obtain. The Rating Agencies shall not be charged any fee or expense
in connection therewith. The Servicer shall send copies to the Depositor of any
information provided to any Rating Agency.
(d) Notices to each Rating Agency shall be addressed as follows:
Duff & Xxxxxx Credit Rating Co.
00 X. Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Structured Finance -
Commercial Real Estate Monitoring
Fitch Investors Service, L.P.
Xxx Xxxxx Xxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Commercial Mortgage Surveillance
Xxxxx'x Investor Services, Inc.
00 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Managing Director
Commercial Mortgage-Backed Securities
Standard & Poor's Rating Services
00 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Commercial Mortgage Surveillance
or in each case to such other address as either Rating Agency shall specify by
written notice to the parties hereto.
SECTION 10.07. Amendment.
This Agreement or any Custodial Agreement may be amended from time to time
by the Depositor, the Servicer, the Special Servicer, the Trustee and the Fiscal
Agent, without the consent of any of the Certificateholders, (i) to cure any
ambiguity, (ii) to correct or supplement any provisions herein or therein that
may be defective or inconsistent with any other provisions herein or therein,
(iii) to amend any provision hereof to the extent necessary or desirable to
maintain the rating or ratings assigned to each of the Classes of Regular
Certificates by each Rating Agency, (iv) to amend or supplement any provisions
herein or therein that shall not adversely affect in any material respect the
interests of any Certificateholder not consenting thereto, as evidenced in
writing by an Opinion of Counsel, at the expense of the party requesting such
amendment or confirmation in writing from each Rating Agency that such amendment
or supplement will not result in a qualification, withdrawal or downgrading of
the then-current ratings assigned to the Certificates, or (v) to make any other
provisions with respect to matters or questions arising under this Agreement,
which shall not be inconsistent with the provisions of this Agreement and will
not result in a downgrade, qualification or withdrawal of the then current
rating or ratings then assigned to any outstanding Class of Certificates, as
confirmed by each Rating Agency in writing.
This Agreement or any Custodial Agreement may also be amended from time to
time by the Depositor, the Servicer, the Special Servicer, the Trustee and the
Fiscal Agent with the consent of the Holders of each of the Classes of Regular
Certificates representing not less than 66-2/3% of the Percentage Interests of
each Class of Certificates affected by the amendment 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
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of, payments
received on Mortgage Loans which are required to be distributed on any
Certificate without the consent of all the holders of all Certificates
representing all Percentage Interests of the Class or Classes affected
thereby;
(ii) change the percentages of Voting Rights of Holders of Certificates
which are required to consent to any action or inaction under this
Agreement, without the consent of the Holders of all Certificates
representing all of the Percentage Interest of the Class or Classes
affected hereby;
(iii) alter the Servicing Standard or the obligations of the Servicer, the
Special Servicer, the Trustee or the Fiscal Agent to make a P&I
Advance or Property Advance without the consent of the Holders of all
Certificates representing all of the Percentage Interests of the Class
or Classes affected thereby; or
(iv) amend any section hereof which relates to the amendment of this
Agreement without the consent of all the holders of all Certificates
representing all Percentage Interests of the Class or Classes affected
thereby.
Further, the Depositor, the Servicer, the Special Servicer, the Trustee and
the Fiscal Agent, at any time and from time to time, without the consent of the
Certificateholders, may amend this Agreement to modify, eliminate or add to any
of its provisions to such extent as shall be necessary to maintain the
qualification of the Trust REMIC as two separate REMICs, or to prevent the
imposition of any additional material state or local taxes, at all times that
any Certificates are outstanding; provided, however, that such action, as
evidenced by an Opinion of Counsel (obtained at the expense of the Trust Fund),
is necessary or helpful to maintain such qualification or to prevent the
imposition of any such taxes, and would not adversely affect in any material
respect the interest of any Certificateholder.
In the event that neither the Depositor nor any successor thereto, if any,
is in existence, any amendment under this Section 10.07 shall be effective with
the consent of the Trustee, the Fiscal Agent, and the Servicer, in writing, and
to the extent required by this Section, the Certificateholders. Promptly after
the execution of any amendment, the Servicer shall forward to the Trustee and
the Trustee shall furnish written notification of the substance of such
amendment to each Certificateholder and each Rating Agency.
It shall not be necessary for the consent of Certificateholders under this
Section 10.07 to approve the particular form of any proposed amendment, but it
shall be sufficient if such consent shall approve the substance thereof. The
method of obtaining such consents and of evidencing the authorization of the
execution thereof by Certificateholders shall be subject to such reasonable
regulations as the Trustee may prescribe; provided, however, that such method
shall always be by affirmation and in writing.
Notwithstanding any contrary provision of this Agreement, no amendment
shall be made to this Agreement or any Custodial Agreement unless, if requested
by the Servicer and/or the Trustee, the Servicer and the Trustee shall have
received an Opinion of Counsel, at the expense of the party requesting such
amendment (or, if such amendment is required by either Rating Agency to maintain
the rating issued by it or requested by the Trustee for any purpose described in
clause (i) or (ii) of the first sentence of this Section, then at the expense of
the Trust Fund), to the effect that such amendment will not cause either the
Upper-Tier REMIC or Lower-Tier REMIC to fail to qualify as a REMIC at any time
that any Certificates are outstanding or cause a tax to be imposed on the Trust
Fund under the REMIC Provisions (other than a tax at the highest marginal
corporate tax rate on net income from foreclosure property).
Prior to the execution of any amendment to this Agreement or any Custodial
Agreement, the Trustee, the Fiscal Agent, the Special Servicer and the Servicer
may request and shall be entitled to rely conclusively upon an Opinion of
Counsel, at the expense of the party requesting such amendment (or, if such
amendment is required by either Rating Agency to maintain the rating issued by
it or requested by the Trustee for any purpose described in clause (i), (ii),
(iii) or (v) (which do not modify or otherwise relate solely to the obligations,
duties or rights of the Trustee) of the first sentence of this Section, then at
the expense of the Trust Fund) stating that the execution of such amendment is
authorized or permitted by this Agreement. The Trustee and the Fiscal Agent may,
but shall not be obligated to, enter into any such amendment which affects the
Trustee's or the Fiscal Agent's own rights, duties or immunities under this
Agreement.
SECTION 10.08. Confirmation of Intent.
It is the express intent of the parties hereto that the conveyance of the
Trust Fund (including the Mortgage Loans) by the Depositor to the Trustee on
behalf of Certificateholders as contemplated by this Agreement and the sale by
the Depositor of the Certificates be, and be treated for all purposes as, a sale
by the Depositor of the undivided portion of the beneficial interest in the
Trust Fund represented by the Certificates. It is, further, not the intention of
the parties that such conveyance be deemed a pledge of the Trust Fund by the
Depositor to the Trustee to secure a debt or other obligation of the Depositor.
However, in the event that, notwithstanding the intent of the parties, the Trust
Fund is held to continue to be property of the Depositor then (a) this Agreement
shall also be deemed to be a security agreement under applicable law; (b) the
transfer of the Trust Fund provided for herein shall be deemed to be a grant by
the Depositor to the Trustee on behalf of Certificateholders of a first priority
security interest in all of the Depositor's right, title and interest in and to
the Trust Fund and all amounts payable to the holders of the Mortgage Loans in
accordance with the terms thereof and all proceeds of the conversion, voluntary
or involuntary, of the foregoing into cash, instruments, securities or other
property, including, without limitation, all amounts from time to time held or
invested in the Collection Account, the Distribution Account, Upper-Tier
Account, Default Interest Distribution Account and Excess Interest Distribution
Account, whether in the form of cash, instruments, securities or other property;
(c) the possession by the Trustee (or the Custodian on its behalf) of Notes and
such other items of property as constitute instruments, money, negotiable
documents or chattel paper shall be deemed to be "possession by the secured
party" for purposes of perfecting the security interest pursuant to Section
9-305 of the Delaware and Illinois Uniform Commercial Code; and (d)
notifications to Persons holding such property, and acknowledgments, receipts or
confirmations from Persons holding such property, shall be deemed 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. Any assignment of the
interest of the Trustee pursuant to any provision hereof shall also be deemed to
be an assignment of any security interest created hereby. The Depositor shall,
and upon the request of the Servicer, the Trustee shall, to the extent
consistent with this Agreement (and at the expense of the Trust Fund), take such
actions as may be necessary to ensure that, if this Agreement were deemed to
create a security interest in the Mortgage Loans, such security interest would
be deemed to be a perfected security interest of first priority under applicable
law and will be maintained as such throughout the term of this Agreement. It is
the intent of the parties that such a security interest would be effective
whether any of the Certificates are sold, pledged or assigned.
SECTION 10.09. Xxxxxx Act.
Any provisions required to be contained in this Agreement by Section 126
and/or Section 130-k or Article 4-A of the New York Real Property Law are hereby
incorporated herein, and such provisions shall be in addition to those conferred
or imposed by this Agreement; provided, however, that to the extent that such
Section 126 and/or Section 130-k shall not have any effect, and if said Section
126 and/or Section 130-k should at any time be repealed or cease to apply to
this Agreement or be construed by judicial decision to be inapplicable, said
Section 126 and/or Section 130-k shall cease to have any further effect upon the
provisions of this Agreement. In case of a conflict between the provisions of
this Agreement and any mandatory provisions of Article 4-A of the New York Real
Property Law, such mandatory provisions of said Article 4-A shall prevail,
provided that if said Article 4-A shall not apply to this Agreement, should at
any time be repealed, or cease to apply to this Agreement or be construed by
judicial decision to be inapplicable, such mandatory provisions of such Article
4-A shall cease to have any further effect upon the provisions of this
Agreement.
SECTION 10.10. No Intended Third-Party Beneficiaries.
No Person other than a party to this Agreement and any Certificateholder
shall have any rights with respect to the enforcement of any of the rights or
obligations hereunder. Without limiting the foregoing, the parties to this
Agreement specifically state that no Borrower, property manager or other party
to a Mortgage Loan is an intended third-party beneficiary of this Agreement.
IN WITNESS WHEREOF, the Depositor, the Servicer, the Special Servicer, the
Trustee and the Fiscal Agent have caused their names to be signed hereto by
their respective officers thereunto duly authorized all as of the day and year
first above written.
Signed and acknowledged ASSET SECURITIZATION
in the presence of: CORPORATION,
as Depositor
-----------------------------
Print Name:
By:----------------------------
Name:
----------------------------- Title:
Print Name:
Signed and acknowledged AMRESCO MANAGEMENT, INC.
in the presence of as Servicer and Special Servicer
By:----------------------------
----------------------------- Name:
Print Name: Title:
-----------------------------
Print Name:
Signed and acknowledged LASALLE NATIONAL BANK,
in the presence of: as Trustee, Custodian, Certificate
Registrar and Paying Agent
-----------------------------
Print Name:
By:----------------------------
----------------------------- Name:
Print Name: Title:
ABN AMRO BANK N.V., ABN AMRO BANK N.V.,
as Fiscal Agent as Fiscal Agent
By:--------------------------- By:----------------------------
Name: Name:
Title: Title:
Acknowledged by
Nomura Securities
International, Inc.,
solely with respect
to Section 3.07 and
Section 5.02(l)
By:----------------------------
Name:
Title:
STATE OF NEW YORK )
) ss:
COUNTY OF NEW YORK )
On this --- day of March, 1997, before me, the undersigned, a Notary
Public in and for the State of New York, duly commissioned and sworn, personally
appeared ------------, to me known who, by me duly sworn, did depose and
acknowledge before me and say that s/he resides at Two World Financial Center,
New York, New York; that s/he is the -------------- of ASSET SECURITIZATION
CORPORATION, a Delaware corporation, the corporation described in and that
executed the foregoing instrument; and that s/he signed her/his name thereto
under authority of the board of directors of said corporation and on behalf of
such corporation.
WITNESS my hand and seal hereto affixed the day and year first above
written.
------------------------------
NOTARY PUBLIC in and for the
State of New York.
My Commission expires:
(stamp)
(seal)
This instrument prepared by:
---------------------------
Name: Xxxxxx Xxxxxx
Address: 000 Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
STATE OF --------- )
) ss:
COUNTY OF -------- )
On this ---- day of March, 1997, before me, the undersigned, a Notary
Public in and for the State of -------, duly commissioned and sworn, personally
appeared ---------------------, to me known who, by me duly sworn, did depose
and acknowledge before me and say that s/he resides at is the ------------- of
AMRESCO Management, Inc., the corporation described in and that executed the
foregoing instrument; and that he/she signed his/her name thereto under
authority of the board of directors of said corporation and on behalf of such
corporation.
WITNESS my hand and seal hereto affixed the day and year first above
written.
------------------------------
NOTARY PUBLIC in and for the
State of ---------------------
My Commission expires:
(stamp)
(seal)
This instrument prepared by:
---------------------------
Name: Xxxxxx Xxxxxx
Address: 000 Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
STATE OF --------- )
) ss:
COUNTY OF -------- )
On this ---- day of March, 1997, before me, the undersigned, a Notary
Public in and for the State of --------, duly commissioned and sworn, personally
appeared ---------------------, to me known who, by me duly sworn, did depose
and acknowledge before me and say that he resides at
---------------------------; that he is a --------- of LASALLE NATIONAL BANK, a
nationally chartered bank, the corporation described in and that executed the
foregoing instrument; and that he signed his name thereto under authority of the
board of directors of said corporation and on behalf of such corporation.
WITNESS my hand and seal hereto affixed the day and year first above
written.
------------------------------
NOTARY PUBLIC in and for
the State of -----------------
My Commission expires:
(stamp)
(seal)
This instrument prepared by:
---------------------------
Name: Xxxxxx Xxxxxx
Address: 000 Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
STATE OF --------- )
) ss:
COUNTY OF -------- )
On this --- day of --------, 1997, before me, the undersigned, a Notary
Public in and for the State of -------, duly commissioned and sworn, personally
appeared -------------, to me known who, by me duly sworn, did depose and
acknowledge before me and say that s/he resides at ----------------------------;
that s/he is a ----------------- of ABN AMRO BANK N.V., a nationally chartered
bank, the corporation described in and that executed the foregoing instrument;
and that s/he signed her/his name thereto under authority of the board of
directors of said corporation and on behalf of such corporation.
WITNESS my hand and seal hereto affixed the day and year first above
written.
------------------------------
NOTARY PUBLIC in and for
the State of ---------------
My Commission expires:
(stamp)
(seal)
This instrument prepared by:
---------------------------
Name: Xxxxxx Xxxxxx
Address: 000 Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
