Contract
Exhibit
4(a)
XXXXX
FARGO COMMERCIAL MORTGAGE SECURITIES, INC.
Depositor
and
[__________]
Master
Servicer
and
[__________]
Special
Servicer
and
[__________]
Trustee
Dated as
of [__________]
______________________________
$[__________]
Commercial
Mortgage Pass-Through Certificates
Series
[__________]
TABLE OF
CONTENTS
|
Page
|
||
|
ARTICLE I DEFINITIONS
|
||
|
Section
1.01
|
Defined
Terms
|
5
|
|
ARTICLE II CONVEYANCE
OF MORTGAGE LOANS; REPRESENTATIONS
AND
WARRANTIES; ORIGINAL ISSUANCE OF CERTIFICATES
|
||
|
Section
2.01
|
Conveyance
of Mortgage Loans
|
77
|
|
Section
2.02
|
Acceptance
of the Trust Fund by Trustee
|
80
|
|
Section
2.03
|
Mortgage
Loan Seller’s Repurchase or Substitution of Mortgage Loans for Document
Defects and Breaches of Representations and
Warranties
|
83
|
|
Section
2.04
|
Representations
and Warranties of Depositor
|
87
|
|
Section
2.05
|
Conveyance
of Mortgage Loans; Acceptance of REMIC I and Additional Interest Grantor
Trust by Trustee
|
89
|
|
Section
2.06
|
Issuance
of the REMIC I Regular Interests; Execution, Authentication and Delivery
of Class R-I Certificates
|
89
|
|
Section
2.07
|
Conveyance
of REMIC I Regular Interests; Acceptance of REMIC II by
Trustee
|
89
|
|
Section
2.08
|
Execution,
Authentication and Delivery of REMIC II
Certificates
|
90
|
|
Section
2.09
|
[Reserved]
|
90
|
|
Section
2.10
|
Execution,
Authentication and Delivery of Class Z Certificates
|
90
|
|
ARTICLE III ADMINISTRATION
AND SERVICING OF THE TRUST FUND
|
||
|
Section
3.01
|
Administration
of the Mortgage Loans
|
90
|
|
Section
3.02
|
Collection
of Mortgage Loan Payments
|
93
|
|
Section
3.03
|
Collection
of Taxes, Assessments and Similar Items; Servicing Accounts; Reserve
Accounts
|
95
|
|
Section
3.04
|
Certificate
Account, Interest Reserve Account, Gain-on-Sale Reserve Account,
Additional Interest Account, Distribution Account and Companion
Distribution Account
|
99
|
-i-
|
Section
3.05
|
Permitted
Withdrawals from the Certificate Account, Distribution Account, Interest
Reserve Account, Additional Interest Account, Gain-on-Sale Reserve Account
and Companion Distribution Account
|
104
|
|
Section
3.06
|
Investment
of Funds in the Servicing Accounts, Reserve Accounts, Certificate Account,
Interest Reserve Account, Distribution Account, Companion Distribution
Account, Additional Interest Account, Gain-on-Sale Reserve Account and REO
Account
|
112
|
|
Section
3.07
|
Maintenance
of Insurance Policies; Errors and Omissions and Fidelity
Coverage
|
114
|
|
Section
3.08
|
Enforcement
of Alienation Clauses
|
117
|
|
Section
3.09
|
Realization
Upon Defaulted Mortgage Loans; Required Appraisals
|
120
|
|
Section
3.10
|
Trustee
and Custodian to Cooperate; Release of Mortgage
Files
|
124
|
|
Section
3.11
|
Servicing
Compensation
|
125
|
|
Section
3.12
|
Property
Inspections; Collection of Financial Statements; Delivery of Certain
Reports
|
129
|
|
Section
3.13
|
Annual
Reports on Assessment of Compliance with Servicing Criteria and Annual
Reports on Assessment of Compliance with Servicing
Criteria
|
133
|
|
Section
3.14
|
Attestation
by Independent Public Accountants
|
135
|
|
Section
3.15
|
Access
to Certain Information
|
136
|
|
Section
3.16
|
Title
to REO Property; REO Account
|
140
|
|
Section
3.17
|
Management
of REO Property
|
141
|
|
Section
3.18
|
Resolution
of Defaulted Mortgage Loans and REO Properties
|
145
|
|
Section
3.19
|
Additional
Obligations of Master Servicer and Special Servicer
|
149
|
|
Section
3.20
|
Modifications,
Waivers, Amendments and Consents
|
150
|
|
Section
3.21
|
Transfer
of Servicing Between Master Servicer and Special Servicer; Record
Keeping
|
157
|
|
Section
3.22
|
Sub-Servicing
Agreements
|
160
|
|
Section
3.23
|
Representations
and Warranties of Master Servicer and Special
Servicer
|
164
|
|
Section
3.24
|
Sub-Servicing
Agreement Representation and Warranty
|
166
|
|
Section
3.25
|
Designation
of Controlling Class Representative
|
167
|
|
Section
3.26
|
Companion
Paying Agent
|
169
|
|
Section
3.27
|
Companion
Register
|
169
|
|
Section
3.28
|
[Reserved]
|
170
|
|
Section
3.29
|
Future
Debt Secured by Interests in Related Borrowers
|
170
|
|
Section
3.30
|
Certain
Matters Relating to the Future Securitization of the [__________]
Companion Loan
|
170
|
|
ARTICLE IV DISTRIBUTIONS
TO CERTIFICATEHOLDERS
|
||
|
Section
4.01
|
Distributions
|
173
|
|
Section
4.02
|
Statements
to Certificateholders; CMSA Loan Periodic Update
File
|
190
|
|
Section
4.03
|
P&I
Advances
|
195
|
-ii-
|
Section
4.04
|
Allocation
of Realized Losses and Additional Trust Fund Expenses; Allocation of
Certificate Deferred Interest; Allocation of Appraisal Reduction
Amounts
|
198
|
|
Section
4.05
|
Calculations
|
201
|
|
Section
4.06
|
Use
of Agents
|
202
|
|
ARTICLE V THE
CERTIFICATES
|
||
|
Section
5.01
|
The
Certificates
|
202
|
|
Section
5.02
|
Registration
of Transfer and Exchange of Certificates
|
203
|
|
Section
5.03
|
Book-Entry
Certificates
|
208
|
|
Section
5.04
|
Mutilated,
Destroyed, Lost or Stolen Certificates
|
209
|
|
Section
5.05
|
Persons
Deemed Owners
|
210
|
|
ARTICLE VI THE
DEPOSITOR, THE MASTER SERVICER, THE SPECIAL
SERVICER
AND THE CONTROLLING CLASS
REPRESENTATIVE
|
||
|
Section
6.01
|
Liability
of Depositor, Master Servicer and Special Servicer
|
210
|
|
Section
6.02
|
Merger,
Consolidation or Conversion of Depositor or Master Servicer or Special
Servicer
|
210
|
|
Section
6.03
|
Limitation
on Liability of Depositor, Master Servicer and Special
Servicer
|
211
|
|
Section
6.04
|
Resignation
of Master Servicer and the Special Servicer
|
212
|
|
Section
6.05
|
Rights
of Depositor and Trustee in Respect of Master Servicer and the Special
Servicer
|
212
|
|
Section
6.06
|
Depositor,
Master Servicer and Special Servicer to Cooperate with
Trustee
|
213
|
|
Section
6.07
|
Depositor,
Special Servicer and Trustee to Cooperate with Master
Servicer
|
213
|
|
Section
6.08
|
Depositor,
Master Servicer and Trustee to Cooperate with Special
Servicer
|
213
|
|
Section
6.09
|
Designation
of Special Servicer by the Controlling Class and Controlling
Holders
|
213
|
|
Section
6.10
|
Master
Servicer or Special Servicer as Owner of a
Certificate
|
214
|
|
Section
6.11
|
The
Controlling Class Representative
|
215
|
-iii-
|
ARTICLE VII DEFAULT
|
||
|
Section
7.01
|
Events
of Default
|
218
|
|
Section
7.02
|
Trustee
to Act; Appointment of Successor
|
223
|
|
Section
7.03
|
Notification
to Certificateholders and Companion Holders
|
224
|
|
Section
7.04
|
Waiver
of Events of Default
|
225
|
|
Section
7.05
|
Additional
Remedies of Trustee Upon Event of Default
|
225
|
|
ARTICLE VIII CONCERNING
THE TRUSTEE
|
||
|
Section
8.01
|
Duties
of Trustee
|
225
|
|
Section
8.02
|
Certain
Matters Affecting Trustee
|
227
|
|
Section
8.03
|
Trustee
Not Liable for Validity or Sufficiency of Certificates or Mortgage
Loans
|
229
|
|
Section
8.04
|
Trustee
May Own Certificates
|
229
|
|
Section
8.05
|
Fees
and Expenses of Trustee; Indemnification of Trustee
|
229
|
|
Section
8.06
|
Eligibility
Requirements for Trustee
|
230
|
|
Section
8.07
|
Resignation
and Removal of Trustee
|
231
|
|
Section
8.08
|
Successor
Trustee
|
232
|
|
Section
8.09
|
Merger
or Consolidation of Trustee
|
232
|
|
Section
8.10
|
Appointment
of Co-Trustee or Separate Trustee
|
232
|
|
Section
8.11
|
Appointment
of Custodians
|
234
|
|
Section
8.12
|
Appointment
of Authenticating Agents
|
234
|
|
Section
8.13
|
Access
to Certain Information
|
236
|
|
Section
8.14
|
Appointment
of REMIC Administrators
|
236
|
|
Section
8.15
|
Representations
and Warranties of Trustee
|
237
|
|
Section
8.16
|
Appointment
of the Paying Agent
|
238
|
|
Section
8.17
|
Reports
to the Securities and Exchange Commission; Available
Information
|
239
|
|
Section
8.18
|
Maintenance
of Mortgage File
|
249
|
|
ARTICLE IX TERMINATION
|
||
|
Section
9.01
|
Termination
Upon Repurchase or Liquidation of All Mortgage
Loans
|
249
|
|
Section
9.02
|
Additional
Termination Requirements
|
253
|
-iv-
|
ARTICLE X ADDITIONAL
TAX PROVISIONS
|
||
|
Section
10.01
|
REMIC
Administration
|
254
|
|
Section
10.02
|
Administration
of the Additional Interest Grantor Trust
|
258
|
|
ARTICLE XI MISCELLANEOUS
PROVISIONS
|
||
|
Section
11.01
|
Amendment
|
260
|
|
Section
11.02
|
Recordation
of Agreement; Counterparts
|
262
|
|
Section
11.03
|
Limitation
on Rights of Certificateholders
|
262
|
|
Section
11.04
|
Governing
Law
|
263
|
|
Section
11.05
|
Notices
|
263
|
|
Section
11.06
|
Severability
of Provisions
|
264
|
|
Section
11.07
|
Grant
of a Security Interest
|
264
|
|
Section
11.08
|
Xxxxxx
Act
|
264
|
|
Section
11.09
|
Successors
and Assigns; Beneficiaries
|
264
|
|
Section
11.10
|
Article
and Section Headings
|
264
|
|
Section
11.11
|
Notices
to Rating Agencies
|
265
|
|
Section
11.12
|
Complete
Agreement
|
266
|
-v-
EXHIBITS
|
Exhibit
Description
|
Exhibit
No.
|
Section Reference
|
|
Form
of Class A-1 Certificate
|
A-1
|
Section 1.01
Definition of “Class A-1 Certificate”
|
|
Form
of Class A-2 Certificate
|
A-2
|
Section 1.01
Definition of “Class A-2 Certificate”
|
|
Form
of Class A-3 Certificate
|
A-3
|
Section
1.01 Definition of “Class A-3 Certificate”
|
|
Form
of Class A-PB Certificate
|
A-4
|
Section 1.01
Definition of “Class A-PB Certificate”
|
|
Form
of Class A-4 Certificate
|
A-5
|
Section 1.01
Definition of “Class A-4 Certificate”
|
|
Form
of Class A-5 Certificate
|
A-6
|
Section 1.01
Definition of “Class A-5 Certificate”
|
|
Form
of Class A-1A Certificate
|
A-7
|
Section
1.01 Definition of “Class A-1A Certificate”
|
|
Form
of Class X-C Certificate
|
A-8
|
Section 1.01
Definition of “Class X-C Certificate”
|
|
Form
of Class X-P Certificate
|
A-9
|
Section 1.01
Definition of “Class X-P Certificate”
|
|
Form
of Class A-M Certificate
|
A-10
|
Section 1.01
Definition of “Class A-M Certificate”
|
|
Form
of Class A-J Certificate
|
A-11
|
Section 1.01
Definition of “Class A-J Certificate”
|
|
Form
of Class B Certificate
|
A-12
|
Section 1.01
Definition of “Class B Certificate”
|
|
Form
of Class C Certificate
|
A-13
|
Section 1.01
Definition of “Class C Certificate”
|
|
Form
of Class D Certificate
|
A-14
|
Section 1.01
Definition of “Class D Certificate”
|
|
Form
of Class E Certificate
|
A-15
|
Section 1.01
Definition of “Class E Certificate”
|
|
Form
of Class F Certificate
|
A-16
|
Section 1.01
Definition of “Class F Certificate”
|
|
Form
of Class G Certificate
|
A-17
|
Section 1.01
Definition of “Class G Certificate”
|
-vi-
|
Exhibit
Description
|
Exhibit
No.
|
Section Reference
|
|
Form
of Class H Certificate
|
A-18
|
Section 1.01
Definition of “Class H Certificate”
|
|
Form
of Class J Certificate
|
A-19
|
Section 1.01
Definition of “Class J Certificate”
|
|
Form
of Class K Certificate
|
A-20
|
Section 1.01
Definition of “Class K Certificate”
|
|
Form
of Class L Certificate
|
A-21
|
Section 1.01
Definition of “Class L Certificate”
|
|
Form
of Class M Certificate
|
A-22
|
Section
1.01 Definition of “Class M Certificate”
|
|
Form
of Class N Certificate
|
A-23
|
Section 1.01
Definition of “Class N Certificate”
|
|
Form
of Class O Certificate
|
A-24
|
Section 1.01
Definition of “Class O Certificate”
|
|
Form
of Class P Certificate
|
A-25
|
Section 1.01
Definition of “Class P Certificate”
|
|
Form
of Class Q Certificate
|
A-26
|
Section
1.01 Definition of “Class Q Certificate”
|
|
Form
of Class S Certificate
|
A-27
|
Section
1.01 Definition of “Class S Certificate”
|
|
Form
of Class R-I Certificate
|
A-28
|
Section 1.01
Definition of “Class R-I Certificate”
|
|
Form
of Class R-II Certificate
|
A-29
|
Section 1.01
Definition of “Class R-II Certificate”
|
|
Form
of Class Z Certificate
|
A-30
|
Section 1.01
Definition of “Class Z Certificate”
|
|
Mortgage
Loan Schedule
|
B
|
Section 1.01
Definition of “Mortgage Loan Schedule”
|
|
Schedule
of Exceptions to Mortgage File Delivery
|
C-1
|
Section 2.02(a)
|
|
Form
of Custodial Certification
|
C-2
|
Section 2.02(b)
|
|
Form
of Master Servicer Request for Release
|
D-1
|
Section 1.01
Definition of “Request for Release”; Section 2.03(b);
Section 3.10(a); and Section 3.10(b)
|
|
Form
of Special Servicer Request for Release
|
D-2
|
Section 1.01
Definition of “Request for Release”;
Section 3.10(b)
|
-vii-
|
Exhibit
Description
|
Exhibit
No.
|
Section Reference
|
|
Calculation
of NOI/Debt Service Coverage Ratios
|
E
|
Section 1.01
Definition of “Net Operating Income”
|
|
Form
of Transferor Certificate
|
F-1
|
Section 5.02(b)
|
|
Form
of Transferee Certificate for QIBs
|
F-2
|
Section 5.02(b)
|
|
Form
of Transferee Certificate for Non-QIBs
|
F-3
|
Section 5.02(b)
|
|
Form
of Transferee Certificate
|
G
|
Section 5.02(c)
|
|
Form
of Transfer Affidavit and Agreement Pursuant to
Section 5.02(d)(i)(B)
|
H-1
|
Section 5.02(d)(i)(B)
|
|
Form
of Transferor Certificate Pursuant to
Section 5.02(d)(i)(D)
|
H-2
|
Section 5.02(d)(i)(D)
|
|
Form
of Notice and Acknowledgment
|
I-1
|
Section 6.09
|
|
Form
of Acknowledgment of Proposed Special Servicer
|
I-2
|
Section 6.09
|
|
[RESERVED]
|
J
|
|
|
Form
of Certificateholder Confirmation Certificate Request by Beneficial
Holder
|
K-1
|
Section 1.01
Definition of “Privileged Person”; Section 3.15(a)
|
|
Form
of Prospective Purchaser Certificate
|
K-2
|
Section
1.01 Definition of “Privileged Person”;
Section 3.15(a)
|
|
Initial
Companion Holders
|
L
|
Section 3.27
|
|
Form
of Purchase Option Notice
|
M
|
Section 3.18(e)
|
|
Form
of Defeasance Certificate
|
N
|
Section 3.20(h)
|
|
Form
of Depositor Certification
|
O
|
Section 8.17(d)
|
|
Form
of Trustee Certification
|
P
|
Section 8.17(e)
|
|
Form
of Master Servicer Certification
|
Q-1
|
Section 8.17(e)
|
|
Form
of Special Servicer Certification
|
Q-2
|
Section 8.17(e)
|
|
Class
A-PB Planned Principal Balance Table
|
R
|
Section
1.01 Definition of “Class A-PB
Planned Principal Amount”
|
-viii-
|
Exhibit
Description
|
Exhibit
No.
|
Section Reference
|
|
Relevant
Servicing Criteria
|
S
|
Section
1.01 Definition of “Relevant Servicing Criteria”
|
|
Class
X-P Reference Rate Schedule
|
T
|
Section
1.01 Definition of “Class X-P Reference Rate”
|
|
Additional
Form 10-D Disclosure
|
U
|
Section
8.17(i)
|
|
Additional
Disclosure Notification
|
V
|
Section
1.01 Definition of “Additional Disclosure Notification”; Section
8.17(i)
|
|
Additional
Form 10-K Disclosure
|
W
|
Section
8.17(k)
|
|
Form
8-K Disclosure Information
|
X
|
Section
8.17(j)
|
|
Sub-Servicer
List
|
Y
|
Section
8.17(f)
|
-ix-
This
Pooling and Servicing Agreement (the “Agreement”) is dated
and effective as of [__________], among XXXXX FARGO COMMERCIAL MORTGAGE
SECURITIES, INC., as Depositor, [__________], as Master Servicer, [__________],
as Special Servicer and [__________], as Trustee.
PRELIMINARY
STATEMENT:
The
Depositor intends to sell mortgage pass-through certificates (collectively, the
“Certificates”), to be
issued hereunder in multiple classes (each, a “Class”), which in the
aggregate will evidence the entire beneficial ownership interest in a trust fund
(the “Trust
Fund”) to be created hereunder, the primary assets of which will be the
Mortgage Loans.
REMIC I
As
provided herein, the Trustee will elect to treat the segregated pool of assets
consisting of all of the Mortgage Loans (exclusive of that portion of the
interest payments thereon that constitutes Additional Interest) and certain
other related assets subject to this Agreement as a REMIC for federal
income tax purposes, and such segregated pool of assets will be designated as
REMIC I. The
Class R-I Certificates will represent the sole class of “residual
interests” in REMIC I for purposes of the REMIC Provisions under federal
income tax law.
REMIC II
As
provided herein, the Trustee will elect to treat the segregated pool of assets
consisting of all of the REMIC I Regular Interests as a REMIC for
federal income tax purposes, and such segregated pool of assets will be
designated as REMIC II. The
Class R-II Certificates will evidence the sole class of “residual interests”
in REMIC II for purposes of the REMIC Provisions under federal income tax
law. For federal income tax purposes, each Class of the Regular
Certificates will be designated as a separate “regular interest” in
REMIC II for purposes of the REMIC Provisions under federal income tax
law.
The
following table sets forth the Class or Component designation, the original
REMIC I Principal Balance for each corresponding REMIC I Regular
Interest (the “Corresponding REMIC I
Regular Interest”), the Corresponding Components of the Class X
Certificates (the “Corresponding
Components”) and the Original Class Principal Balance for each Class of
Sequential Pay Certificates (the “Corresponding
Certificates”).
|
Corresponding
Certificates
|
Original
Class Principal Balance
|
Corresponding
REMIC I Regular Interests (1)
|
Original
REMIC I Principal Balance
|
REMIC I
Pass-Through Rate
|
Corresponding
Components of Class X Certificates (1)
|
|||||||||
|
Class A-1
|
$[_________]
|
LA-1-1
|
$[_________]
|
(2) | X-A-1-1 | |||||||||
|
LA-1-2
|
$[_________]
|
X-A-1-2 | ||||||||||||
|
LA-1-3
|
$[_________]
|
X-A-1-3 | ||||||||||||
|
LA-1-4
|
$[_________]
|
X-A-1-4 | ||||||||||||
|
Class A-2
|
$[_________]
|
LA-2-1
|
$[_________]
|
(2) | X-A-2-1 | |||||||||
|
LA-2-2
|
$[_________]
|
X-A-2-2 | ||||||||||||
|
LA-2-3
|
$[_________]
|
X-A-2-3 | ||||||||||||
|
Class
A-3
|
$[_________]
|
LA-3
|
$[_________]
|
(2) | X-A-3 | |||||||||
|
Class A-PB
|
$[_________]
|
LA-PB-1
|
$[_________]
|
(2) |
X-A-PB-1
|
|||||||||
|
LA-PB-2
|
$[_________]
|
X-A-PB-2
|
||||||||||||
|
LA-PB-3
|
$[_________]
|
X-A-PB-3
|
||||||||||||
|
LA-PB-4
|
$[_________]
|
X-A-PB-4
|
||||||||||||
|
Class A-4
|
$[_________]
|
LA-4-1
|
$[_________]
|
(2) | X-A-4-1 | |||||||||
|
LA-4-2
|
$[_________]
|
X-A-4-2 | ||||||||||||
|
LA-4-3
|
$[_________]
|
X-A-4-3 | ||||||||||||
|
LA-4-4
|
$[_________]
|
X-A-4-4 | ||||||||||||
|
LA-4-5
|
$[_________]
|
X-A-4-5 | ||||||||||||
|
LA-4-6
|
$[_________]
|
X-A-4-6 | ||||||||||||
|
LA-4-7
|
$[_________]
|
X-A-4-7 | ||||||||||||
|
Class
A-5
|
$[_________]
|
LA-5-1
|
$[_________]
|
(2) | X-A-5-1 | |||||||||
|
LA-5-2
|
$[_________]
|
X-A-5-2 | ||||||||||||
|
LA-5-3
|
$[_________]
|
X-A-5-3 | ||||||||||||
|
Class
A-1A
|
$[_________]
|
LA-1A-1
|
$[_________]
|
(2) | X-A-1A-1 | |||||||||
|
LA-1A-2
|
$[_________]
|
X-A-1A-2 | ||||||||||||
|
LA-1A-3
|
$[_________]
|
X-A-1A-3 | ||||||||||||
|
LA-1A-4
|
$[_________]
|
X-A-1A-4 | ||||||||||||
|
LA-1A-5
|
$[_________]
|
X-A-1A-5 | ||||||||||||
|
LA-1A-6
|
$[_________]
|
X-A-1A-6 | ||||||||||||
|
LA-1A-7
|
$[_________]
|
X-A-1A-7 | ||||||||||||
|
LA-1A-8
|
$[_________]
|
X-A-1A-8 | ||||||||||||
|
LA-1A-9
|
$[_________]
|
X-A-1A-9 | ||||||||||||
|
LA-1A-10
|
$[_________]
|
X-A-1A-10 | ||||||||||||
-2-
|
Corresponding
Certificates
|
Original
Class Principal Balance
|
Corresponding
REMIC I Regular Interests (1)
|
Original
REMIC I Principal Balance
|
REMIC I
Pass-Through Rate
|
Corresponding
Components of Class X Certificates (1)
|
|||||||||
|
LA-1A-11
|
$[_________]
|
X-A-1A-11 | ||||||||||
|
LA-1A-12
|
$[_________]
|
X-A-1A-12 | ||||||||||
|
LA-1A-13
|
$[_________]
|
X-A-1A-13 | ||||||||||
|
LA-1A-14
|
$[_________]
|
X-A-1A-14 | ||||||||||
|
LA-1A-15
|
$[_________]
|
X-A-1A-15 | ||||||||||
|
Class
A-M
|
$[_________]
|
LA-M
|
$[_________]
|
(2) | X-A-M | |||||||
|
Class A-J
|
$[_________]
|
LA-J
|
$[_________]
|
(2) | X-A-J | |||||||
|
Class B
|
$[_________]
|
LB
|
$[_________]
|
(2) | X-B | |||||||
|
Class C
|
$[_________]
|
LC
|
$[_________]
|
(2) | X-C | |||||||
|
Class D
|
$[_________]
|
LD
|
$[_________]
|
(2) | X-D | |||||||
|
Class E
|
$[_________]
|
LE-1
|
$[_________]
|
(2) | X-E-1 | |||||||
|
LE-2
|
$[_________]
|
X-E-2 | ||||||||||
|
Class F
|
$[_________]
|
LF-1
|
$[_________]
|
(2) | X-F-1 | |||||||
|
LF-2
|
$[_________]
|
X-F-2 | ||||||||||
|
LF-3
|
$[_________]
|
X-F-3 | ||||||||||
|
Class G
|
$[_________]
|
LG-1
|
$[_________]
|
(2) | X-G-1 | |||||||
|
LG-2
|
$[_________]
|
X-G-2 | ||||||||||
|
Class H
|
$[_________]
|
LH-1
|
$[_________]
|
(2) | X-H-1 | |||||||
|
LH-2
|
$[_________]
|
X-H-2 | ||||||||||
|
LH-3
|
$[_________]
|
X-H-3 | ||||||||||
|
Class J
|
$[_________]
|
LJ-1
|
$[_________]
|
(2) | X-J-1 | |||||||
|
LJ-2
|
$[_________]
|
X-J-2 | ||||||||||
|
Class K
|
$[_________]
|
LK-1
|
$[_________]
|
(2) | X-K-1 | |||||||
|
LK-2
|
$[_________]
|
X-K-2 | ||||||||||
|
LK-3
|
$[_________]
|
X-K-3 | ||||||||||
|
Class L
|
$[_________]
|
LL
|
$[_________]
|
(2) | X-L | |||||||
|
Class M
|
$[_________]
|
LM
|
$[_________]
|
(2) | X-M | |||||||
|
Class N
|
$[_________]
|
LN
|
$[_________]
|
(2) | X-N | |||||||
|
Class O
|
$[_________]
|
LO
|
$[_________]
|
(2) | X-O | |||||||
|
Class P
|
$[_________]
|
LP
|
$[_________]
|
(2) | X-P | |||||||
|
Class
Q
|
$[_________]
|
LQ
|
$[_________]
|
(2) | X-Q | |||||||
|
Class
S
|
$[_________]
|
LS
|
$[_________]
|
(2) | X-S |
-3-
__________________________
|
(1)
|
The
REMIC I Regular Interest or Interests and the Component or Components
of the Class X Certificates that correspond to any particular Class
of Sequential Pay Certificates also correspond to each other and,
accordingly, constitute the Corresponding REMIC I Regular Interests
and the Corresponding Components (if any), respectively, with respect to
each other.
|
|
(2)
|
The
Weighted Average Net Mortgage Rate.
|
The
portion of the Trust Fund consisting of the Additional Interest and amounts held
from time to time in the Additional Interest Account that represent Additional
Interest shall be treated as a grantor trust (the “Additional Interest
Grantor
Trust”) for federal income tax purposes. The Class Z
Certificates represent undivided beneficial interests in such Additional
Interest Grantor Trust. As provided herein, the Trustee shall take
all actions necessary to ensure that the portions of the Trust Fund consisting
of the Additional Interest Grantor Trust maintain their status as a “grantor
trust” under federal income tax law and not be treated as part of either
REMIC I or REMIC II.
The
[_________] ([___]) mortgage loans referred to in this Agreement as the
[__________] Companion Loan and the [__________] Companion Loan (each, a “Companion Loan” and
collectively the “Companion Loans”) are
not part of the Trust Fund but are secured by corresponding Mortgages that
secure certain related Mortgage Loans that are identified on the Mortgage Loan
Schedule as the [__________] Loan (loan number [___]) and the [__________] Loan
(loan number [___]) (each, a “Co-Lender Loan” and
collectively, the “Co-Lender Loans”)
that are part of the Trust Fund.
The
[__________] Loan and the [__________] Pari Passu Companion Loan are pari passu with each
other. As and to the extent provided herein, the Companion Loan will
be serviced and administered in accordance with this Agreement. The
[__________] Loan and the [__________] Companion Loan will be serviced and
administered in accordance with the Pooling and Servicing Agreement (the “[__________] Pooling and
Servicing Agreement”), dated as of [__________], by and among Xxxxx Fargo
Commercial Mortgage Securities, Inc., as depositor (the “[__________]
Depositor”), [__________], as master servicer (the “[__________] Master
Servicer”), [__________], as special servicer (the “[__________] Special
Servicer”), and [__________], as trustee (the “[__________]
Trustee”), pursuant to which the Xxxxx Fargo Commercial Mortgage Trust
Commercial Mortgage Pass-Through Certificates, Series [__________] were
issued. Amounts attributable to the Companion Loans will not be
assets of the Trust Fund and will be owned by the Companion
Holders.
In
consideration of the mutual agreements herein contained, the Depositor, the
Master Servicer, the Special Servicer and the Trustee agree as
follows:
-4-
ARTICLE
I
DEFINITIONS
Section
1.01 Defined
Terms.
Whenever
used in this Agreement, including in the Preliminary Statement, the following
words and phrases, unless the context otherwise requires, shall have the
meanings specified in this Article.
“30/360
Basis”: The accrual of interest calculated on the basis of a
360-day year consisting of twelve 30-day months.
“Accrued Certificate
Interest”: With respect to any Class of Regular Certificates
(other than the Class X Certificates) for any Distribution Date, one
month’s interest at the Pass-Through Rate applicable to such Class of
Certificates for such Distribution Date, accrued for the related Interest
Accrual Period on the related Class Principal Balance outstanding immediately
prior to such Distribution Date; and, with respect to the Class X-C and
Class X-P Certificates for any Distribution Date, the sum of the Accrued
Component Interest for the related Interest Accrual Period for all of their
respective Components for such Distribution Date. Accrued Certificate
Interest shall be calculated on a 30/360 Basis and, with respect to any Class of
Regular Certificates for any Distribution Date, shall be deemed to accrue during
the calendar month preceding the month in which such Distribution Date
occurs.
“Accrued Component
Interest”: With respect to each Component of the
Class X-C and Class X-P Certificates for any Distribution Date, one month’s
interest at the Class X-C Strip Rate or Class X-P Strip Rate applicable to
such Component for such Distribution Date, accrued on the Component Notional
Amount of such Component outstanding immediately prior to such Distribution
Date. Accrued Component Interest shall be calculated on a 30/360
Basis and, with respect to any Component and any Distribution Date, shall be
deemed to accrue during the calendar month preceding the month in which such
Distribution Date occurs.
“Acquisition
Date”: With respect to any REO Property, the first day on
which such REO Property is considered to be acquired by the Trust Fund within
the meaning of Treasury Regulations Section 1.856-6(b)(1), which is the
first day on which the Trust Fund is treated as the owner of such REO Property
for federal income tax purposes.
“Actual/360
Basis”: The accrual of interest calculated on the basis of the
actual number of days elapsed during any calendar month in a year assumed to
consist of 360 days.
“Actual/360 Mortgage
Loan”: Each Mortgage Loan that accrues interest on an
Actual/360 Basis and that is identified as an Actual/360 Mortgage Loan on the
Mortgage Loan Schedule.
“Additional Disclosure
Notification”: The form of notification to be included with
any Additional Form 10-D Disclosure, Additional Form 10-K Disclosure or Form 8-K
Disclosure Information which is attached hereto as Exhibit
V.
-5-
“Additional Form 10-D
Disclosure”: As defined in Section 8.17(i).
“Additional Form 10-K
Disclosure”: As defined in Section 8.17(k).
“Additional
Interest”: With respect to any ARD Loan after its Anticipated
Repayment Date, all interest accrued on the principal balance of such ARD Loan
at the Additional Interest Rate (the payment of which interest shall, under the
terms of such Mortgage Loan, be deferred until the entire outstanding principal
balance of such ARD Loan has been paid), together with all interest, if any,
accrued at the related Mortgage Rate on such deferred interest. For
purposes of this Agreement, Additional Interest on an ARD Loan or any successor
REO Loan shall be deemed not to constitute principal or any portion thereof and
shall not be added to the unpaid principal balance or Stated Principal Balance
of such ARD Loan or successor REO Loan, notwithstanding that the terms of the
related Mortgage Loan documents so permit. To the extent that any
Additional Interest is not paid on a current basis, it shall be deemed to be
deferred interest.
“Additional Interest
Account”: The segregated account, accounts or subaccounts
created and maintained by the Trustee pursuant to
Section 3.04(d) which shall be entitled “[__________], as Trustee, in
trust for the registered holders of Xxxxx Fargo Commercial Mortgage Trust,
Commercial Mortgage Pass-Through Certificates, Series [__________], Additional
Interest Account.” The Additional Interest Account shall not be an
asset of any REMIC created hereunder .
“Additional Interest Grantor
Trust”: That certain “grantor trust” (within the meaning of
the Grantor Trust Provisions), the assets of which are the Additional Interest
Grantor Trust Assets.
“Additional Interest Grantor
Trust Assets”: The segregated pool of assets consisting of (i) any
Additional Interest with respect to the ARD Loans after their respective
Anticipated Repayment Dates and (ii) amounts held from time to time in the
Additional Interest Account.
“Additional Interest
Rate”: With respect to any ARD Loan after its Anticipated
Repayment Date, the incremental increase in the per annum rate at which such
Mortgage Loan accrues interest after the Anticipated Repayment Date (in the
absence of defaults) as calculated and as set forth in the related Mortgage Loan
documents.
“Additional
Servicer”: Each servicer meeting the requirements of Item
1108(a)(2)(i), (ii) or (iii) of Regulation AB that services any of the Mortgage
Loans, excluding the Master Servicer, the Special Servicer and the
Trustee.
“Additional Trust Fund
Expense”: Any Special Servicing Fees, Workout Fees,
Liquidation Fees and, in accordance with Sections 3.03(d) and 4.03(d),
interest payable to the Master Servicer and/or the Trustee on Advances (to the
extent not offset by Penalty Interest and late payment charges), the cost of
contracting with a Determination Party as set forth in Section 2.03 and amounts
payable to the Special Servicer in connection with inspections of Mortgaged
Properties required pursuant to the first sentence of
Section 3.12(a) (and not otherwise paid from Penalty Interest and late
payment charges), as well as (without duplication) any of the expenses
-6-
of the
Trust Fund that may be withdrawn (x) pursuant to any of clauses (viii),
(ix), (xii), (xiii), (xiv) and (xx) of Section 3.05(a) out of general
collections on the Mortgage Loans and any REO Properties on deposit in the
Certificate Account or (y) pursuant to clause (ii) or any of clauses
(iv) through (vi) of Section 3.05(b) out of general
collections on the Mortgage Loans and any REO Properties on deposit in the
Distribution Account; provided that for purposes of
the allocations contemplated by Section 4.04, no such expense shall be
deemed to have been incurred by the Trust Fund until such time as the payment
thereof is actually made from the Certificate Account or the Distribution
Account, as the case may be.
“Additional Yield
Amount”: (a) With respect to any Distribution Date and any
Class of Regular Certificates (other than the Class X Certificates and any
Excluded Class) entitled to distributions of principal with respect to Loan
Group 1 pursuant to Section 4.01(a) on such Distribution Date; provided that a Yield
Maintenance Charge and/or Prepayment Premium was actually collected on a
Mortgage Loan or an REO Loan in such Loan Group during the related Collection
Period, the product of (a) such Yield Maintenance Charge and/or Prepayment
Premium multiplied by (b) a fraction, which in no event will be greater
than one, the numerator of which is equal to the positive excess, if any, of
(i) the Pass-Through Rate for such Class of Regular Certificates then
receiving principal over (ii) the related Discount Rate, and the
denominator of which is equal to the positive excess, if any, of (i) the
Mortgage Rate for such Mortgage Loan or REO Loan, as the case may be, over
(ii) the related Discount Rate, multiplied by (c) a fraction, the
numerator of which is equal to the amount of principal distributable on such
Class of Regular Certificates on such Distribution Date pursuant to
Section 4.01(a) with respect to Loan Group 1, and the denominator of which
is equal to the Loan Group 1 Principal Distribution Amount for such Distribution
Date.
(b) With
respect to any Distribution Date and any Class of Regular Certificates (other
than the Class X Certificates and any Excluded Class) entitled to
distributions of principal with respect to Loan Group 2 pursuant to
Section 4.01(a) on such Distribution Date; provided that a Yield
Maintenance Charge and/or Prepayment Premium was actually collected on a
Mortgage Loan or an REO Loan in such Loan Group during the related Collection
Period, the product of (a) such Yield Maintenance Charge and/or Prepayment
Premium multiplied by (b) a fraction, which in no event will be greater
than one, the numerator of which is equal to the positive excess, if any, of
(i) the Pass-Through Rate for such Class of Regular Certificates then
receiving principal over (ii) the related Discount Rate, and the
denominator of which is equal to the positive excess, if any, of (i) the
Mortgage Rate for such Mortgage Loan or REO Loan, as the case may be, over
(ii) the related Discount Rate, multiplied by (c) a fraction, the
numerator of which is equal to the amount of principal distributable on such
Class of Regular Certificates on such Distribution Date pursuant to
Section 4.01(a) with respect to Loan Group 2, and the denominator of which
is equal to the Loan Group 2 Principal Distribution Amount for such Distribution
Date.
(c) For
purposes of the foregoing, to the extent that payments of principal on any Class
of Regular Certificates (other than the Class X Certificates and any Excluded
Class) could be made from principal amounts allocable to Loan Group 1 or
principal amounts allocable to Loan Group 2, the Trustee shall assume that those
payments of principal on that Class of Regular Certificates are made from
amounts allocable to each
-7-
Loan
Group, on a pro rata
basis in accordance with the respective amounts allocable to each Loan Group
that were available for payment on that Class of Certificates.
“Advance”: Any
P&I Advance or Servicing Advance.
“Adverse Grantor Trust
Event”: As defined in Section 10.02(e).
“Adverse
REMIC Event”: As defined in
Section 10.01(h).
“Affiliate”: With
respect to any specified Person, any other Person controlling or controlled by
or under common control with such specified Person. For the purposes
of this definition, “control” when used
with respect to any specified Person means the power to direct the management
and policies of such Person, directly or indirectly, whether through the
ownership of voting securities, by contract or otherwise and the terms “controlling” and
“controlled”
have meanings correlative to the foregoing.
“Agreement”: This
Pooling and Servicing Agreement and all amendments hereof and supplements
hereto.
“Anticipated Repayment
Date”: For each ARD Loan, the date specified in the related
Mortgage Note after which the Mortgage Rate for such ARD Loan will increase as
specified in the related Mortgage Note (other than as a result of a default
thereunder).
“Applicable Requirements of
Regulation AB”: With respect to the Trustee, Item 1108(b), the
last sentence of Item 1108(c)(4), the first sentence of Item 1108(c)(7), Item
1109(a), Item 1109(b), Item 1117 and Item 1119.
“Appraisal”: With
respect to any Mortgage Loan, an appraisal of the related Mortgaged Property
from an Independent Appraiser selected by the Special Servicer or the Master
Servicer prepared in accordance with 12 CFR §225.62 and conducted in accordance
with the standards of the American Appraisal Institute by an Independent
Appraiser.
“Appraisal Reduction
Amount”: The excess, if any, of (a) the sum of (without
duplication), as calculated by the Special Servicer as of the first
Determination Date immediately succeeding the Special Servicer obtaining
knowledge of the occurrence of the Required Appraisal Date if no new Required
Appraisal is required or the date on which a Required Appraisal (or letter
update or internal valuation, if applicable) is obtained and each Determination
Date thereafter so long as the related Mortgage Loan remains a Required
Appraisal Mortgage Loan (i) the Stated Principal Balance of the subject
Required Appraisal Mortgage Loan, (ii) to the extent not previously
advanced by or on behalf of the Master Servicer or the Trustee, all unpaid
interest on the Required Appraisal Mortgage Loan (including, for such purposes,
the [__________] Companion Loan or any related Subordinate Companion Loan
serviced hereunder) through the most recent Due Date prior to such Determination
Date at a per annum
rate equal to the related Net Mortgage Rate (exclusive of any portion thereof
that constitutes Additional Interest), (iii) all accrued but unpaid
Servicing Fees and all accrued but unpaid Additional Trust Fund Expenses in
respect of such Required Appraisal Mortgage Loan, including, for such purposes,
the [__________] Companion Loan or any related Subordinate Companion Loan
serviced hereunder, (iv) all related unreimbursed Advances and any
Advances
-8-
related
to such Required Appraisal Mortgage Loan that were reimbursed out of general
collections from the pool of Mortgage Loans (plus accrued interest thereon) made
by or on behalf of the Master Servicer or the Trustee with respect to such
Required Appraisal Mortgage Loan and (v) all currently due and unpaid real
estate taxes and unfunded improvement reserves and assessments, insurance
premiums, and, if applicable, ground rents in respect of the related Mortgaged
Property over (b) an amount equal to the sum of (i) the Required
Appraisal Value and (ii) all escrows, reserves and letters of
credit held for the purposes of reserves (provided such letters of
credit may be drawn upon for reserve purposes under the related Mortgage Loan
document) held with respect to such Required Appraisal Mortgage
Loan. If the Special Servicer fails to obtain a Required Appraisal
(or letter update or internal valuation, if applicable) within the time limit
described in Section 3.09(a), the Appraisal Reduction Amount for the
related Required Appraisal Mortgage Loan will equal 25% of the outstanding
principal balance of such Required Appraisal Mortgage Loan to be adjusted upon
receipt of a Required Appraisal or letter update or internal valuation, if
applicable. In the event a Mortgagor fails to make a Balloon Payment
on a scheduled maturity date and no Appraisal has been received within
120 days of such failure, the Appraisal Reduction Amount for the related
Mortgage Loan will equal 25% of the outstanding principal balance of such
Mortgage Loan to be adjusted upon receipt of the new Appraisal. Any
Appraisal Reduction Amount for a Co-Lender Loan shall be allocated as provided
in Section 4.04(d).
“Appraised
Value”: With respect to each Mortgaged Property, the appraised
value thereof based upon the most recent Appraisal (or letter update or internal
valuation, if applicable) that is contained in the related Servicing
File.
“ARD
Loan”: Any Mortgage Loan that provides that if the unamortized
principal balance thereof is not repaid on its Anticipated Repayment Date, such
Mortgage Loan will accrue Additional Interest at the rate specified in the
related Mortgage Note and the Mortgagor is required to apply excess monthly cash
flow generated by the related Mortgaged Property to the repayment of the
outstanding principal balance on such Mortgage Loan.
“Asset Status
Report”: As defined in Section 3.21(d).
“Assignment of
Leases”: With respect to any Mortgaged Property, any
assignment of leases, rents and profits or similar document or instrument
executed by the Mortgagor in connection with the origination of the related
Mortgage Loan.
“Assumed Scheduled
Payment”: With respect to any Balloon Mortgage Loan for its
Stated Maturity Date (provided that such Mortgage
Loan has not been paid in full and no other Liquidation Event has occurred in
respect thereof on or before such Stated Maturity Date) and for any Due Date
thereafter as of which such Mortgage Loan remains outstanding and part of the
Trust Fund, the Periodic Payment of principal and/or interest deemed to be due
in respect thereof on such Due Date that would have been due in respect of such
Mortgage Loan on such Due Date if the related Mortgagor had been required to
continue to pay principal in accordance with the amortization schedule, if any,
and to accrue interest at the Mortgage Rate, in effect on the Closing Date and
without regard to the occurrence of its Stated Maturity Date. With
respect to any REO Loan, for any Due Date therefor as of which the related REO
Property remains part of the Trust Fund, the Periodic Payment of principal
and/or interest deemed to be due in respect
-9-
thereof
on such Due Date that would have been due in respect of the predecessor Mortgage
Loan (or, if applicable, Companion Loans) on such Due Date had it remained
outstanding (or, if the predecessor Mortgage Loan was a Balloon Mortgage Loan
and such Due Date coincides with or follows what had been its Stated Maturity
Date, the Assumed Scheduled Payment that would have been deemed due in respect
of the predecessor Mortgage Loan on such Due Date had it remained
outstanding).
“Authenticating
Agent”: Any authenticating agent appointed pursuant to
Section 8.12 (or, in the absence of any such appointment, the
Trustee).
“Available Distribution
Amount”: With respect to any Distribution Date, an amount
equal to, with respect to each Mortgage Loan, (a) the sum of, without
duplication, (i) the aggregate of the amounts on deposit in the Certificate
Account and the Distribution Account as of the close of business on the last day
of the related Collection Period and the amounts collected by or on behalf of
the Master Servicer as of the close of business on the last day of such
Collection Period and required to be deposited in the Certificate Account;
(ii) the aggregate amount of any P&I Advances made by the Master
Servicer or the Trustee for distribution on the Certificates on such
Distribution Date pursuant to Section 4.03; (iii) the aggregate amount
transferred from the REO Account (if established) to the Certificate Account as
of the last day of the related Collection Period, on or prior to the P&I
Advance Date in such month, pursuant to Section 3.16(c); (iv) the
aggregate amount deposited by the Master Servicer in the Certificate Account for
such Distribution Date pursuant to Section 3.19 in connection with
Prepayment Interest Shortfalls; and (v) for each Distribution Date
occurring in March, and for the final Distribution Date if the final
Distribution Date occurs in February or, if such year is not a leap year, in
January, the aggregate of the Interest Reserve Amounts in respect of each
Interest Reserve Loan deposited into the Distribution Account pursuant to
Section 3.05(d), net of (b) the portion of the amount described in
subclauses (a)(i) and (a)(iii) of this definition that represents one
or more of the following: (i) collected Periodic Payments that
are due on a Due Date following the end of the related Collection Period,
(ii) any amounts payable or reimbursable to any Person from the
(A) Certificate Account pursuant to clauses (ii)-(xv), (xix), (xx) and
(xxii) of Section 3.05(a) or (B) the Distribution Account pursuant to
clauses (ii)-(vii) of Section 3.05(b), (iii) Prepayment Premiums
and Yield Maintenance Charges, (iv) Additional Interest, (v) with
respect to the Distribution Date occurring in February of each year and in
January of each year that is not a leap year, the Interest Reserve Amounts with
respect to the Interest Reserve Loans to be withdrawn from the Certificate
Account and remitted to the Trustee for deposit in the Interest Reserve Account
in respect of such Distribution Date and held for future distribution pursuant
to Section 3.04(c), (vi) for the initial Distribution Date only and
each Mortgage Loan originated in [_________] that has its first Due Date in
[_________], any interest amounts relating to the period prior to the Cut-Off
Date of such Mortgage Loan payable to the related Mortgage Loan Seller; and
(vii) any amounts deposited in the Certificate Account or the Distribution
Account in error. The Available Distribution Amount will not include
any amounts required to be distributed pursuant to the terms of any
Intercreditor Agreement or this Agreement to a Companion Holder.
“Balloon Mortgage
Loan”: Any Mortgage Loan that by its original terms or by
virtue of any modification entered into as of the Closing Date provides for an
amortization schedule extending beyond its Stated Maturity Date.
-10-
“Balloon
Payment”: With respect to any Balloon Mortgage Loan as of any
date of determination, the Scheduled Payment payable on the Stated Maturity Date
of such Mortgage Loan.
“Bankruptcy
Code”: The federal Bankruptcy Code, as amended from time to
time (Title 11 of the United States Code).
“Bid
Allocation”: With respect to the Master Servicer and each
Sub-Servicer and the proceeds of any bid pursuant to Section 7.01(c), the
amount of such proceeds (net of any expenses incurred in connection with such
bid and the transfer of servicing), multiplied by a fraction equal to
(a) the Servicer Fee Amount for the Master Servicer or such Sub-Servicer,
as the case may be, as of such date of determination, over (b) the
aggregate of the Servicer Fee Amounts for the Master Servicer and all of the
Sub-Servicers as of such date of determination.
“Book-Entry
Certificate”: Any Certificate registered in the name of the
Depository or its nominee.
“Breach”: As
defined in Section 2.03(a).
“Business
Day”: Any day other than a Saturday, a Sunday or a day on
which banking institutions in New York, New York, or the cities in which the
Corporate Trust Office of the Trustee (which as of the Closing Date is
[_________]), the offices of the Master Servicer (which as of the Closing Date
is [_________]) or the offices of the Special Servicer (which as of the Closing
Date is [_________]) are located, are authorized or obligated by law or
executive order to remain closed.
“CERCLA”: The
Comprehensive Environmental Response, Compensation and Liability Act of 1980, as
amended.
“Certificate”: Any
one of the Xxxxx Fargo Commercial Mortgage Trust, Commercial Mortgage
Pass-Through Certificates, Series [__________], as executed by the Certificate
Registrar and authenticated and delivered hereunder by the Authenticating
Agent.
“Certificate
Account”: The segregated account or accounts created and
maintained by the Master Servicer pursuant to Section 3.04(a) on
behalf of the Trustee in trust for Certificateholders, which shall be entitled
“[__________], as Master Servicer for [__________], as Trustee, on behalf of and
in trust for the registered holders of Xxxxx Fargo Commercial Mortgage Trust,
Commercial Mortgage Pass-Through Certificates, Series
[__________].” Subject to the related Intercreditor Agreement and
taking into account that (i) each Subordinate Companion Loan is subordinate
to its related Co-Lender Loan to the extent set forth in the related
Intercreditor Agreement, and (ii) each Pari Passu Companion Loan is pari passu with the related
Pari Passu Mortgage Loan, each subaccount described in the next to last
paragraph of Section 3.04(a) that is part of the Certificate Account
shall be for the benefit of the related Companion Holder, to the extent funds on
deposit in such subaccount are attributed to the related Companion
Loan.
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“Certificate Deferred
Interest”: The amount by which interest distributable to any
Class of Sequential Pay Certificates is reduced by the amount of Mortgage
Deferred Interest allocable to such Class of Certificates on any
Distribution Date.
“Certificate
Factor”: With respect to any Class of Regular Certificates as
of any date of determination, a fraction, expressed as a decimal carried to
eight places, the numerator of which is the then current Class Principal
Balance, Class X-C Notional Amount or Class X-P Notional Amount, as
applicable, of such Class of Regular Certificates and the denominator of which
is the Original Class Principal Balance or Original Notional Amount of such
Class of Regular Certificates.
“Certificate Notional
Amount”: With respect to any Class X-C Certificate or
Class X-P Certificate, as of any date of determination, the then notional amount
of such Certificate equal to the product of (a) the Percentage Interest
evidenced by such Certificate, multiplied by (b) the then Class X-C
Notional Amount or Class X-P Notional Amount, as applicable.
“Certificate
Owner”: With respect to a Book-Entry Certificate, the Person
who is the beneficial owner of such Certificate as reflected on the books of the
Depository or on the books of a Depository Participant or on the books of an
indirect participating brokerage firm for which a Depository Participant acts as
agent.
“Certificate Principal
Balance”: With respect to any Sequential Pay Certificate, as
of any date of determination, the then outstanding principal amount of such
Certificate equal to the product of (a) the Percentage Interest evidenced
by such Certificate multiplied by (b) the then Class Principal Balance of
the Class of Certificates to which such Certificate belongs.
“Certificate Register”
and “Certificate
Registrar”: The register maintained and the registrar
appointed pursuant to Section 5.02.
“Certificateholder”: The
Person in whose name a Certificate is registered in the Certificate Register,
except that (i) only a Permitted Transferee shall be the Holder of a
Residual Certificate for any purpose hereof and, (ii) solely for the
purposes of giving any consent, approval or waiver pursuant to this Agreement
that relates to any of the Depositor, any Mortgage Loan Seller, the Master
Servicer, the Special Servicer or the Trustee in its respective capacity as such
(except with respect to amendments or waivers referred to in Sections 7.04 and
11.01 hereof and any consent, approval or waiver required or permitted to be
made by the Majority Subordinate Certificateholder or the Controlling Class
Representative and any election, removal or replacement of the Special Servicer
or the Controlling Class Representative pursuant to Section 6.09), any
Certificate registered in the name of the Depositor, any Mortgage Loan Seller,
the Master Servicer, the Special Servicer or the Trustee, as the case may be, or
any Certificate registered in the name of any of their respective Affiliates,
shall be deemed not to be outstanding, and the Voting Rights to which it is
entitled shall not be taken into account in determining whether the requisite
percentage of Voting Rights necessary to effect any such consent, approval or
waiver that relates to it has been obtained. The Certificate
Registrar shall be entitled to request and rely upon a certificate of the
Depositor, the Master Servicer or the Special Servicer in determining whether a
Certificate is registered in the name of an Affiliate of such
Person. All
-12-
references
herein to “Holders” or “Certificateholders”
shall reflect the rights of Certificate Owners as they may indirectly exercise
such rights through the Depository and the Depository Participants, except as
otherwise specified herein; provided, however, that the parties
hereto shall be required to recognize as a “Holder” or “Certificateholder”
only the Person in whose name a Certificate is registered in the Certificate
Register.
“Certification”: As
defined in Section 8.17(j).
“Class”: Collectively,
all of the Certificates bearing the same alphabetical and, if applicable,
numerical class designation.
“Class A
Certificates”: The Class A-1, Class A-2, Class A-3,
Class A-PB, Class A-4, Class A-5 and Class A-1A Certificates.
“Class A-1
Certificate”: Any one of the Certificates with a “Class A-1”
designation on the face thereof, substantially in the form of Exhibit A-1 attached
hereto, and evidencing a “regular interest” in
REMIC II for purposes of the REMIC Provisions.
“Class A-1A
Certificate”: Any one of the Certificates with a “Class A-1A”
designation on the face thereof, substantially in the form of Exhibit A-7 attached
hereto, and evidencing a “regular interest” in
REMIC II for purposes of the REMIC Provisions.
“Class A-2
Certificate”: Any one of the Certificates with a “Class A-2”
designation on the face thereof, substantially in the form of Exhibit A-2 attached
hereto, and evidencing a “regular interest” in
REMIC II for purposes of the REMIC Provisions.
“Class A-3
Certificate”: Any one of the Certificates with a “Class A-3”
designation on the face thereof, substantially in the form of Exhibit A-3 attached
hereto, and evidencing a regular interest in REMIC II for purposes of the REMIC
provisions.
“Class A-4
Certificate”: Any one of the Certificates with a “Class A-4”
designation on the face thereof, substantially in the form of Exhibit A-5 attached
hereto, and evidencing a “regular interest” in
REMIC II for purposes of the REMIC Provisions.
“Class A-5
Certificate”: Any one of the Certificates with a “Class A-5”
designation on the face thereof, substantially in the form of Exhibit A-6 attached
hereto, and evidencing a “regular interest” in
REMIC II for purposes of the REMIC Provisions.
“Class A-J
Certificate”: Any one of the Certificates with a
“Class A-J” designation on the face thereof, substantially in the form of
Exhibit A-11
attached hereto, and evidencing a “regular interest” in REMIC II for
purposes of the REMIC Provisions.
“Class A-M
Certificate”: Any one of the Certificates with a “Class A-M”
designation on the face thereof, substantially in the form of Exhibit A-10 attached
hereto, and evidencing a “regular interest” in REMIC II for purposes of the
REMIC Provisions.
-13-
“Class A-PB
Certificate”: Any one of the Certificates with a “Class A-PB
designation on the face thereof, substantially in the form of Exhibit A-4 attached
hereto, and evidencing a “regular interest” in REMIC II for purposes of the
REMIC Provisions.
“Class A-PB Planned Principal
Amount”: The planned principal amount set forth on Exhibit R
hereto relating to principal payments for the Class A-PB
Certificates.
“Class B
Certificate”: Any one of the Certificates with a “Class B”
designation on the face thereof, substantially in the form of Exhibit A-12 attached
hereto, and evidencing a “regular interest” in
REMIC II for purposes of the REMIC Provisions.
“Class C
Certificate”: Any one of the Certificates with a “Class C”
designation on the face thereof, substantially in the form of Exhibit A-13 attached
hereto, and evidencing a “regular interest” in
REMIC II for purposes of the REMIC Provisions.
“Class D
Certificate”: Any one of the Certificates with a “Class D”
designation on the face thereof, substantially in the form of Exhibit A-14 attached
hereto, and evidencing a “regular interest” in
REMIC II for purposes of the REMIC Provisions.
“Class E
Certificate”: Any one of the Certificates with a “Class E”
designation on the face thereof, substantially in the form of Exhibit A-15 attached
hereto, and evidencing a “regular interest” in
REMIC II for purposes of the REMIC Provisions.
“Class F
Certificate”: Any one of the Certificates with a “Class F”
designation on the face thereof, substantially in the form of Exhibit A-16 attached
hereto, and evidencing a “regular interest” in
REMIC II for purposes of the REMIC Provisions.
“Class G
Certificate”: Any one of the Certificates with a “Class G”
designation on the face thereof, substantially in the form of Exhibit A-17 attached
hereto, and evidencing a “regular interest” in
REMIC II for purposes of the REMIC Provisions.
“Class H
Certificate”: Any one of the Certificates with a “Class H”
designation on the face thereof, substantially in the form of Exhibit A-18 attached
hereto, and evidencing a “regular interest” in
REMIC II for purposes of the REMIC Provisions.
“Class J
Certificate”: Any one of the Certificates with a “Class J”
designation on the face thereof, substantially in the form of Exhibit A-19 attached
hereto, and evidencing a “regular interest” in
REMIC II for purposes of the REMIC Provisions.
“Class K
Certificate”: Any one of the Certificates with a “Class K”
designation on the face thereof, substantially in the form of Exhibit A-20 attached
hereto, and evidencing a “regular interest” in
REMIC II for purposes of the REMIC Provisions.
“Class L
Certificate”: Any one of the Certificates with a “Class L”
designation on the face thereof, substantially in the form of Exhibit A-21 attached
hereto, and evidencing a “regular interest” in
REMIC II for purposes of the REMIC Provisions.
-14-
“Class M
Certificate”: Any one of the Certificates with a “Class M”
designation on the face thereof, substantially in the form of Exhibit A-22 attached
hereto, and evidencing a “regular interest” in
REMIC II for purposes of the REMIC Provisions.
“Class N
Certificate”: Any one of the Certificates with a “Class N”
designation on the face thereof, substantially in the form of Exhibit A-23 attached
hereto, and evidencing a “regular interest” in
REMIC II for purposes of the REMIC Provisions.
“Class O
Certificate”: Any one of the Certificates with a “Class O”
designation on the face thereof, substantially in the form of Exhibit A-24 attached
hereto, and evidencing a “regular interest” in
REMIC II for purposes of the REMIC Provisions.
“Class P
Certificate”: Any one of the Certificates with a “Class P”
designation on the face thereof, substantially in the form of Exhibit A-25 attached
hereto, and evidencing a “regular interest” in
REMIC II for purposes of the REMIC Provisions.
“Class Principal
Balance”: The aggregate principal balance of any Class of
Sequential Pay Certificates outstanding from time to time. As of the
Closing Date, the Class Principal Balance of each Class of Sequential Pay
Certificates shall equal the Original Class Principal Balance
thereof. On each Distribution Date, the Class Principal Balance of
each such Class of Certificates shall be reduced by the amount of any
distributions of principal made thereon on such Distribution Date pursuant to
Section 4.01 or 9.01, as applicable, and shall be further reduced by the
amount of any Realized Losses and Additional Trust Fund Expenses allocated
thereto on such Distribution Date pursuant to
Section 4.04(a). The Class Principal Balance of any Class of
Sequential Pay Certificates will be increased on any Distribution Date by the
amount of any Certificate Deferred Interest allocated to such Class on such
Distribution Date. Distributions in respect of a reimbursement of
Realized Losses and Additional Trust Fund Expenses previously allocated to a
Class of Sequential Pay Certificates shall not constitute distributions of
principal and shall not result in reduction of the related Class Principal
Balance.
“Class Q
Certificate”: Any one of the Certificates with a “Class Q”
designation on the face thereof, substantially in the form of Exhibit A-26 attached
hereto, and evidencing a “regular interest” in REMIC II for purposes of the
REMIC provisions.
“Class R-I
Certificate”: Any one of the Certificates with a
“Class R-I” designation on the face thereof, substantially in the form of
Exhibit A-28
attached hereto, and evidencing the sole class of residual interests in
REMIC I for purposes of the REMIC Provisions.
“Class R-II
Certificate”: Any one of the Certificates with a
“Class R-II” designation on the face thereof, substantially in the form of
Exhibit A-29
attached hereto, and evidencing the sole class of “residual interests” in
REMIC II for purposes of the REMIC Provisions.
“Class S
Certificate”: Any one of the Certificates with a “Class S”
designation on the face thereof, substantially in the form of Exhibit A-27 attached
hereto, and evidencing a “regular interest” in
REMIC II for purposes of the REMIC Provisions.
“Class X
Certificates”: The Class X-C and Class X-P
Certificates.
-15-
“Class X-C
Certificate”: Any one of the Certificates with a “Class X-C”
designation on the face thereof, substantially in the form of Exhibit A-8 attached
hereto, and evidencing a “regular interest” in REMIC II for purposes of the
REMIC Provisions.
“Class X-C Notional
Amount”: With respect to the Class X-C Certificates and any
date of determination, the sum of the then Component Notional Amounts of all of
the Components.
“Class X-C Strip
Rate”: With respect to any Class of Components (other than
Components that are also Class X-P Components) for any Distribution Date, a rate
per annum equal to
(i) the Weighted Average Net Mortgage Rate for such Distribution Date,
minus (ii) the
Pass-Through Rate for the Corresponding Certificates. In the case of
any Class of Components that are also Class X-P Components, (i) for any
Distribution Date occurring on or before the related Class X-P Component
Crossover Date, (x) the Weighted Average Net Mortgage Rate for such Distribution
Date minus (y) the sum
of the Pass-Through Rate for the Corresponding Certificates for such
Distribution Date and the Class X-P Strip Rate for such Component for such
Distribution Date, and (ii) for any Distribution Date occurring after the
related Class X-P Component Crossover Date, a rate per annum equal to (x) the
Weighted Average Net Mortgage Rate for such Distribution Date, minus (y) the Pass-Through
Rate for the Corresponding Certificates (provided that in no event
shall any Class X-C Strip Rate be less than zero).
“Class X-P
Certificate”: Any one of the Certificates with a “Class X-P”
designation on the face thereof, substantially in the form of Exhibit A-9 attached
hereto, and evidencing the Class X-P Components and a “regular interest” in
REMIC II for purposes of the REMIC Provisions.
“Class X-P Component
Crossover Date”: With respect to each Component set forth in
the table below, the Distribution Date occurring in the month and year set forth
in the table below:
|
Component
|
Cross-Over
Date
|
|
Component
X-A-1-2 and Component X-A-1A-2
|
[_________]
|
|
Component
X-A-1-3 and Component X-A-1A-3
|
[_________]
|
|
Component
X-A-1-4, Component X-A-2-1 and Component X-A-1A-4
|
[_________]
|
|
Component X-A-2-2
and Component X-A-1A-5
|
[_________]
|
|
Component
X-A-2-3, Component X-A-3, Component X-A-PB-1, Component X-A-1A-6 and
Component X-K-1
|
[_________]
|
|
Component
X-X-XX-0, Xxxxxxxxx X-X-0X-0, Xxxxxxxxx X-X-0
|
[_________]
|
|
Component
X-A-PB-3, Component X-A-1A-8, Component X-J-1 and Component
X-K-3
|
[_________]
|
|
Component
X-A-PB-4, Component X-A-4-1, Component X-A-1A-9, Component X-H-1 and
Component X-J-2
|
[_________]
|
-00-
|
Xxxxxxxxx
X-X-0-0, Xxxxxxxxx X-X-0X-00 and Component X-H-2
|
[_________]
|
|
Component
X-A-4-3, Component X-A-1A-11, Component X-G-1 and Component
X-H-3
|
[_________]
|
|
Component
X-A-4-4, Component X-A-1A-12, Component X-F-1 and Component
X-G-2
|
[_________]
|
|
Component
X-A-4-5, Component X-A-1A-13 and Component X-F-2
|
[_________]
|
|
Component
X-X-0-0, Xxxxxxxxx X-X-0X-00, Xxxxxxxxx X-X-0 and Component
X-F-3
|
[_________]
|
|
Component
X-A-4-7, Component X-A-1A-15, and Component X-E-2
|
[_________]
|
“Class X-P
Components”: Each of Component X-A-1-2, Component X-A-1-3,
Component X-A-1-4, Component X-A-1A-2, Component X-A-1A-3, Component X-A-1A-4,
Component X-A-1A-5, Component X-A-1A-6, Component X-A-1A-7, Component X-A-1A-8,
Component X-A-1A-9, Component X-A-1A-10, Component X-A-1A-11, Component
X-A-1A-12, Component X-A-1A-13, Component X-A-1A-14, Component X-A-1A-15,
Component X-A-2-1, Component X-A-2-2, Component X-A-2-3, Component X-A-3,
Component X-A-4-1, Component X-A-4-2, Component X-A-4-3, Component X-A-4-4,
Component X-A-4-5, Component X-A-4-6, Component X-A-4-7, Component X-A-5-1,
Component X-A-5-2, Component X-A-5-3, Component X-A-PB-1, Component X-A-PB-2,
Component X-A-PB-3, Component X-A-PB-4, Component X-A-M, Component X-A-J,
Component X-B, Component X-C, Component X-D, Component X-E-1, Component X-E-2,
Component X-F-1, Component X-F-2, Component X-F-3, Component X-G-1, Component
X-G-2, Component X-H-1, Component X-H-2, Component X-H-3, Component X-J-1,
Component X-J-2, Component X-K-1, Component X-K-2 and Component
X-K-3.
“Class X-P Notional
Amount”: As of any date of determination, the sum of the then
Component Notional Amounts of the Class X-P Components, excluding those Class
X-P Components for which the Class X-P Component Crossover Date has previously
passed.
“Class X-P Reference
Rate”: For any Distribution Date, the rate per annum corresponding to
such Distribution Date on Exhibit T.
“Class X-P Strip
Rate”: With respect to each of the Class X-P Components for
any Distribution Date, a rate per annum equal to
(i) for any Distribution Date occurring on or before the related Class X-P
Component Crossover Date, (x) the lesser of (i) the Weighted Average Net
Mortgage Rate for such Distribution Date and (ii) the Class X-P Reference
Rate for such Distribution Date minus [___]% per annum minus (y) the
Pass-Through Rate for the Corresponding Certificates (provided that in no event
shall any Class X-P Strip Rate be less than zero), and (ii) for any
Distribution Date occurring after the related Class X-P Component Crossover
Date, 0% per
annum.
-17-
“Class Z
Certificate”: Any one of the Certificates with a “Class Z”
designation on the face thereof, substantially in the form of Exhibit A-30 attached
hereto, and evidencing an undivided beneficial interest in the Additional
Interest that is described in Section 4.01(b).
“Closing
Date”: [_________].
“CMSA”: The
Commercial Mortgage Securities Association (formerly the Commercial Real Estate
Secondary Market and Securitization Association) or any successor
organization.
“CMSA Advance Recovery
Report”: The report substantially in the form of, and
containing the information called for in, the downloadable form of the “Advance
Recovery Report” available as of the Closing Date on the CMSA Website, or such
other form for the presentation of such information and containing such
additional information as may from time to time be approved by the CMSA for
commercial mortgage securities transactions generally.
“CMSA Bond
File”: The monthly report substantially in the form of, and
containing the information called for in, the downloadable form of the “CMSA Bond Level File”
available as of the Closing Date on the CMSA Website, or such other form for the
presentation of such information and containing such additional information as
may from time to time be approved by the CMSA for commercial mortgage securities
transactions generally.
“CMSA Collateral Summary
File”: The report substantially in the form of, and containing
the information called for in, the downloadable form of the “Collateral Summary
File” available as of the Closing Date on the CMSA Website, or such other
form for the presentation of such information and containing such additional
information as may from time to time be approved by the CMSA for commercial
mortgage securities transactions generally.
“CMSA Comparative Financial
Status Report”: The report substantially in the form of, and
containing the information called for in, the downloadable form of the “Comparative Financial Status
Report” available as of the Closing Date on the CMSA Website, or such
other form for the presentation of such information as may from time to time be
approved by the CMSA for commercial mortgage securities transactions
generally. In connection with preparing the CMSA Comparative
Financial Status Report, the Master Servicer shall process (a) interim
financial statements beginning with interim financial statements for the fiscal
quarter ending [__________] and (b) annual financial statements beginning
with annual financial statements for the [____] fiscal year.
“CMSA Delinquent Loan Status
Report”: The report substantially in the form of, and
containing the information called for in, the downloadable form of the “Delinquent Loan Status
Report” available as of the Closing Date on the CMSA Website, or such
other form for the presentation of such information and containing such
additional information as may from time to time be approved by the CMSA for
commercial mortgage securities transactions generally.
“CMSA Financial
File”: The report substantially in the form of, and containing
the information called for in, the downloadable form of the “Financial File”
available as of the Closing Date on the CMSA Website, or such other form for the
presentation of such information
-18-
and
containing such additional information as may from time to time be approved by
the CMSA for commercial mortgage securities transactions generally.
“CMSA Historical Liquidation
Report”: The report substantially in the form of, and
containing the information called for in, the downloadable form of the “Historical Liquidation
Report” available as of the Closing Date on the CMSA Website, or such
other form for the presentation of such information and containing such
additional information as may from time to time be approved by the CMSA for
commercial mortgage securities transactions generally.
“CMSA Historical Loan
Modification and Corrected Mortgage Loan Report”: A report
substantially in the form of, and containing the information called for in, the
downloadable form of the “Historical Loan Modification
and Corrected Mortgage Loan Report” available as of the Closing Date on
the CMSA Website, or such other form for the presentation of such information
and containing such additional information as may from time to time be approved
by the CMSA for commercial mortgage securities transactions
generally.
“CMSA Loan Level Reserve/LOC
Report”: The report substantially in the form of, and
containing the information called for in, the downloadable form of the “CMSA Loan Level Reserve/LOC
Report” available as of the Closing Date on the CMSA Website, or such
other form for the presentation of such information as may from time to time be
approved by the CMSA for commercial mortgage securities transactions
generally.
“CMSA Loan Periodic Update
File”: The monthly report substantially in the form of, and
containing the information called for in, the downloadable form of the “Loan Periodic Update
File” available as of the Closing Date on the CMSA Website, or such other
form for the presentation of such information and containing such additional
information as may from time to time be approved by the CMSA for commercial
mortgage securities transactions generally.
“CMSA Loan Setup
File”: The report substantially in the form of, and containing
the information called for in, the downloadable form of the “Loan Setup File”
available as of the Closing Date on the CMSA Website, or such other form for the
presentation of such information and containing such additional information as
may from time to time be approved by the CMSA for commercial mortgage securities
transactions generally.
“CMSA NOI Adjustment
Worksheet”: A report substantially in the form of, and
containing the information called for in, the downloadable form of the “NOI Adjustment
Worksheet” available as of the Closing Date on the CMSA Website, or such
other form for the presentation of such information and containing such
additional information as may from time to time be approved by the CMSA for
commercial mortgage securities transactions and in any event, shall present the
computations made in accordance with the methodology described in such form to
“normalize” the
full year net operating income and debt service coverage numbers used in the
other reports required by this Agreement.
“CMSA Operating Statement
Analysis”: A report substantially in the form of, and
containing the information called for in, the downloadable form of the “Operating Statement
-19-
Analysis Report” available as of the Closing Date
on the CMSA Website or in such other form for the presentation of such
information and containing such additional information as may from time to time
be approved by the CMSA for commercial mortgage-backed securities transactions
generally. In connection with preparing the CMSA Operating Statement
Analysis, the Master Servicer shall process (a) interim financial
statements beginning with interim financial statements for the fiscal quarter
ending [__________] and (b) annual financial statements beginning with
annual financial statements for the [____] fiscal year.
“CMSA Property
File”: A report substantially in the form of, and containing
the information called for in, the downloadable form of the “Property File”
available as of the Closing Date on the CMSA Website, or such other form for the
presentation of such information and containing such additional information as
may from time to time be approved by the CMSA for commercial mortgage securities
transactions generally.
“CMSA Reconciliation of Funds
Report”: The monthly report in the “Reconciliation of Funds”
format substantially in the form of and containing the information called for
therein for the Mortgage Loans, or such other form for the presentation of such
information as may be approved from time to time by the CMSA for commercial
mortgage securities transactions generally.
“CMSA REO Status
Report”: A report substantially in the form of, and containing
the information called for in, the downloadable form of the “REO Status Report”
available as of the Closing Date on the CMSA Website, or in such other form for
the presentation of such information and containing such additional information
as may from time to time be approved by the CMSA for commercial mortgage
securities transactions generally.
“CMSA Servicer
Watchlist”: For any Determination Date, a report substantially
in the form of, and containing the information called for in, the downloadable
form of the “Servicer
Watchlist/Portfolio Review Guidelines” available as of the Closing Date
on the CMSA Website, or in such other final form for the presentation of such
information and containing such additional information as may from time to time
be promulgated as approved by the CMSA for commercial mortgage securities
transactions generally.
“CMSA
Website”: The website maintained by the CMSA with an address,
as of the Closing Date, of “xxx.xxxx.xxx”.
“Code”: The
Internal Revenue Code of 1986, as amended, and applicable temporary or final
regulations of the U.S. Department of the Treasury promulgated
thereunder.
“Co-Lender
Loans”: As defined in the Preliminary Statement.
“Collection
Period”: With respect to any Distribution Date, the period
that begins on the twelfth day in the month immediately preceding the month in
which such Distribution Date occurs (or, in the case of the initial Distribution
Date, commencing on the day after the related Cut-Off Date) and ending on and
including the eleventh day in the month in which such Distribution Date
occurs. Notwithstanding the foregoing, in the event that the last day
of a Collection Period is not a Business Day, any Periodic Payments or Principal
Prepayments with respect to the Mortgage Loans relating to a Due Date occurring
in such Collection Period (but for
-20-
the
application of the next Business Day convention) received on the Business Day
immediately following such day will be deemed to have been received during such
Collection Period and not during any other Collection Period. In
addition, notwithstanding the foregoing, with respect to any Distribution Date,
in the event that the Due Date, including any grace period, with respect to any
Mortgage Loan relating to such Distribution Date occurs after the last day of
the related Collection Period, any payments received with respect to the related
Mortgage Loan on or before such Due Date as extended by any applicable grace
period (including without limitation, any prepayments) will be deemed to have
been received during such Collection Period and not during any other Collection
Period.
“Commission”: The
Securities and Exchange Commission or any successor agency.
“Companion Distribution
Account”: With respect to the Companion Loans, other than the
[__________] Companion Loan, the separate account(s) or subaccount(s) created
and maintained by the Companion Paying Agent pursuant to
Section 3.04(b) and held on behalf of the Companion Holders, which
shall be entitled “[__________], as Companion Paying Agent for the Companion
Holders of the Companion Loans relating to the Xxxxx Fargo Commercial Mortgage
Trust, Commercial Mortgage Pass-Through Certificates, Series
[__________].” The Companion Distribution Accounts shall not be
assets of the Trust Fund, but instead each Companion Distribution Account shall
be held by the Companion Paying Agent on behalf of the applicable Companion
Holder. Any such account shall be an Eligible Account or a subaccount
of an Eligible Account. Notwithstanding the foregoing, if the Master
Servicer and the Companion Paying Agent are the same entity, the Companion
Distribution Account may be the related subaccount or subaccounts of the
Certificate Account referenced in the second to the last paragraph of
Section 3.04(a).
“Companion
Holder”: With respect to any Companion Loan, the owner of the
Mortgage Note representing such Companion Loan.
“Companion
Loan”: As defined in the Preliminary Statement.
“Companion Paying
Agent”: The paying agent appointed pursuant to
Section 3.26.
“Companion
Register”: The register maintained by the Companion Paying
Agent pursuant to Section 3.27.
“Component”: Each
of Component X-A-1-1, Component X-A-1-2, Component X-A-1-3, Component
X-A-1-4, Component X-A-1A-1, Component X-A-1A-2, Component X-A-1A-3, Component
X-A-1A-4, Component X-A-1A-5, Component X-A-1A-6, Component X-A-1A-7, Component
X-A-1A-8, Component X-A-1A-9, Component X-A-1A-10, Component X-A-1A-11,
Component X-A-1A-12, Component X-A-1A-13, Component X-A-1A-14, Component
X-A-1A-15, Component X-A-2-1, Component X-A-2-2, Component X-A-2-3, Component
X-A-3, Component X-A-4-1, Component X-A-4-2, Component X-A-4-3, Component
X-A-4-4, Component X-A-4-5, Component X-A-4-6, Component X-A-4-7, Component
X-A-5-1, Component X-A-5-2, Component X-A-5-3,
-21-
Component
X-A-PB-1, Component X-A-PB-2, Component X-A-PB-3, Component X-A-PB-4, Component
X-A-M, Component X-A-J, Component X-B, Component X-C, Component X-D, Component
X-E-1, Component X-E-2, Component X-F-1, Component X-F-2, Component X-F-3,
Component X-G-1, Component X-G-2, Component X-H-1, Component X-H-2,
Component X-H-3, Component X-J-1, Component X-J-2, Component X-K-1, Component
X-K-2, Component X-K-3, Component X-L, Component X-M, Component X-N, Component
X-O, Component X-P, Component X-Q and Component X-S.
“Component
X-A-1-1”: One of [___] components of the Class X-C
Certificates having a Component Notional Amount equal to the then current
REMIC I Principal Balance of REMIC I Regular Interest LA-1-1 as of any
date of determination.
“Component
X-A-1-2”: One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P Certificates
having a Component Notional Amount equal to the then current REMIC I
Principal Balance of REMIC I Regular Interest LA-1-2 as of any date of
determination.
“Component
X-A-1-3”: One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P Certificates
having a Component Notional Amount equal to the then current REMIC I
Principal Balance of REMIC I Regular Interest LA-1-3 as of any date of
determination.
“Component
X-A-1-4”: One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P Certificates
having a Component Notional Amount equal to the then current REMIC I
Principal Balance of REMIC I Regular Interest LA-1-4 as of any date of
determination.
“Component
X-A-1A-1”: One of [___] components of the Class X-C
Certificates having a Component Notional Amount equal to the then current
REMIC I Principal Balance of REMIC I Regular Interest LA-1A-1 as of
any date of determination.
“Component
X-A-1A-2”: One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P Certificates
having a Component Notional Amount equal to the then current REMIC I
Principal Balance of REMIC I Regular Interest LA-1A-2 as of any date of
determination.
“Component
X-A-1A-3”: One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P Certificates
having a Component Notional Amount equal to the then current REMIC I
Principal Balance of REMIC I Regular Interest LA-1A-3 as of any date of
determination.
“Component
X-A-1A-4”: One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P Certificates
having a Component Notional Amount equal to the then current REMIC I
Principal Balance of REMIC I Regular Interest LA-1A-4 as of any date of
determination.
“Component
X-A-1A-5”: One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P Certificates
having a Component Notional
-22-
Amount
equal to the then current REMIC I Principal Balance of REMIC I Regular
Interest LA-1A-5 as of any date of determination.
“Component
X-A-1A-6”: One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P Certificates
having a Component Notional Amount equal to the then current REMIC I
Principal Balance of REMIC I Regular Interest LA-1A-6 as of any date of
determination.
“Component
X-A-1A-7”: One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P Certificates
having a Component Notional Amount equal to the then current REMIC I
Principal Balance of REMIC I Regular Interest LA-1A-7 as of any date of
determination.
“Component
X-A-1A-8”: One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P Certificates
having a Component Notional Amount equal to the then current REMIC I
Principal Balance of REMIC I Regular Interest LA-1A-8 as of any date of
determination.
“Component
X-A-1A-9”: One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P Certificates
having a Component Notional Amount equal to the then current REMIC I
Principal Balance of REMIC I Regular Interest LA-1A-9 as of any date of
determination.
“Component
X-A-1A-10”: One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P Certificates
having a Component Notional Amount equal to the then current REMIC I
Principal Balance of REMIC I Regular Interest LA-1A-10 as of any date of
determination.
“Component
X-A-1A-11”: One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P Certificates
having a Component Notional Amount equal to the then current REMIC I
Principal Balance of REMIC I Regular Interest LA-1A-11 as of any date of
determination.
“Component
X-A-1A-12”: One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P Certificates
having a Component Notional Amount equal to the then current REMIC I
Principal Balance of REMIC I Regular Interest LA-1A-12 as of any date of
determination.
“Component
X-A-1A-13”: One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P Certificates
having a Component Notional Amount equal to the then current REMIC I
Principal Balance of REMIC I Regular Interest LA-1A-13 as of any date of
determination.
“Component
X-A-1A-14”: One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P Certificates
having a Component Notional Amount equal to the then current REMIC I
Principal Balance of REMIC I Regular Interest LA-1A-14 as of any date of
determination.
-23-
“Component
X-A-1A-15”: One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P Certificates
having a Component Notional Amount equal to the then current REMIC I
Principal Balance of REMIC I Regular Interest LA-1A-15 as of any date of
determination.
“Component
X-A-2-1”: One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P Certificates
having a Component Notional Amount equal to the then current REMIC I
Principal Balance of REMIC I Regular Interest LA-2-1 as of any date of
determination.
“Component
X-A-2-2”: One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P Certificates
having a Component Notional Amount equal to the then current REMIC I
Principal Balance of REMIC I Regular Interest LA-2-2 as of any date of
determination.
“Component
X-A-2-3”: One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P Certificates
having a Component Notional Amount equal to the then current REMIC I
Principal Balance of REMIC I Regular Interest LA-2-3 as of any date of
determination.
“Component
X-A-3”: One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P Certificates
having a Component Notional Amount equal to the then current REMIC I
Principal Balance of REMIC I Regular Interest LA-3 as of any date of
determination.
“Component
X-A-4-1”: One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P Certificates
having a Component Notional Amount equal to the then current REMIC I
Principal Balance of REMIC I Regular Interest LA-4-1 as of any date of
determination.
“Component
X-A-4-2”: One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P Certificates
having a Component Notional Amount equal to the then current REMIC I
Principal Balance of REMIC I Regular Interest LA-4-2 as of any date of
determination.
“Component
X-A-4-3”: One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P Certificates
having a Component Notional Amount equal to the then current REMIC I
Principal Balance of REMIC I Regular Interest LA-4-3 as of any date of
determination.
“Component
X-A-4-4”: One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P Certificates
having a Component Notional Amount equal to the then current REMIC I
Principal Balance of REMIC I Regular Interest LA-4-4 as of any date of
determination.
“Component
X-A-4-5”: One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P Certificates
having a Component Notional
-24-
Amount
equal to the then current REMIC I Principal Balance of REMIC I Regular
Interest LA-4-5 as of any date of determination.
“Component
X-A-4-6”: One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P Certificates
having a Component Notional Amount equal to the then current REMIC I
Principal Balance of REMIC I Regular Interest LA-4-6 as of any date of
determination.
“Component
X-A-4-7”: One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P Certificates
having a Component Notional Amount equal to the then current REMIC I
Principal Balance of REMIC I Regular Interest LA-4-7 as of any date of
determination.
“Component
X-A-5-1”: One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P Certificates
having a Component Notional Amount equal to the then current REMIC I
Principal Balance of REMIC I Regular Interest LA-5-1 as of any date of
determination.
“Component
X-A-5-2”: One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P Certificates
having a Component Notional Amount equal to the then current REMIC I
Principal Balance of REMIC I Regular Interest LA-5-2 as of any date of
determination.
“Component
X-A-5-3”: One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P Certificates
having a Component Notional Amount equal to the then current REMIC I
Principal Balance of REMIC I Regular Interest LA-5-3 as of any date of
determination.
“Component
X-A-J”: One of the [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P Certificates
having a Component Notional Amount equal to the then current REMIC I
Principal Balance of REMIC I Regular Interest LA-J as of any date of
determination.
“Component
X-A-M”: One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P Certificates
having a Component Notional Amount equal to the then current REMIC I
Principal Balance of REMIC I Regular Interest LA-M as of any date of
determination.
“Component
X-A-PB-1”: One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P Certificates
having a Component Notional Amount equal to the then current REMIC I
Principal Balance of REMIC I Regular Interest LA-PB-1 as of any date of
determination.
“Component
X-A-PB-2”: One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P Certificates
having a Component Notional Amount equal to the then current REMIC I
Principal Balance of REMIC I Regular Interest LA-PB-2 as of any date of
determination.
-25-
“Component
X-A-PB-3”: One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P Certificates
having a Component Notional Amount equal to the then current REMIC I
Principal Balance of REMIC I Regular Interest LA-PB-3 as of any date of
determination.
“Component
X-A-PB-4”: One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P Certificates
having a Component Notional Amount equal to the then current REMIC I
Principal Balance of REMIC I Regular Interest LA-PB-4 as of any date of
determination.
“Component
X-B”: One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P Certificates
having a Component Notional Amount equal to the then current REMIC I
Principal Balance of REMIC I Regular Interest LB as of any date of
determination.
“Component
X-C”: One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P Certificates
having a Component Notional Amount equal to the then current REMIC I
Principal Balance of REMIC I Regular Interest LC as of any date of
determination.
“Component
X-D”: One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P Certificates
having a Component Notional Amount equal to the then current REMIC I
Principal Balance of REMIC I Regular Interest LD as of any date of
determination.
“Component
X-E-1”: One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P Certificates
having a Component Notional Amount equal to the then current REMIC I
Principal Balance of REMIC I Regular Interest LE-1 as of any date of
determination.
“Component
X-E-2”: One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P Certificates
having a Component Notional Amount equal to the then current REMIC I
Principal Balance of REMIC I Regular Interest LE-2 as of any date of
determination.
“Component
X-F-1”: One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P Certificates
having a Component Notional Amount equal to the then current REMIC I
Principal Balance of REMIC I Regular Interest LF-1 as of any date of
determination.
“Component
X-F-2”: One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P Certificates
having a Component Notional Amount equal to the then current REMIC I
Principal Balance of REMIC I Regular Interest LF-2 as of any date of
determination.
“Component
X-F-3”: One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P Certificates
having a Component Notional Amount
-26-
equal to
the then current REMIC I Principal Balance of REMIC I Regular Interest
LF-3 as of any date of determination.
“Component
X-G-1”: One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P Certificates
having a Component Notional Amount equal to the then current REMIC I
Principal Balance of REMIC I Regular Interest LG-1 as of any date of
determination.
“Component
X-G-2”: One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P Certificates
having a Component Notional Amount equal to the then current REMIC I
Principal Balance of REMIC I Regular Interest LG-2 as of any date of
determination.
“Component
X-H-1”: One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P Certificates
having a Component Notional Amount equal to the then current REMIC I
Principal Balance of REMIC I Regular Interest LH-1 as of any date of
determination.
“Component
X-H-2”: One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P Certificates
having a Component Notional Amount equal to the then current REMIC I
Principal Balance of REMIC I Regular Interest LH-2 as of any date of
determination.
“Component
X-H-3”: One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P Certificates
having a Component Notional Amount equal to the then current REMIC I
Principal Balance of REMIC I Regular Interest LH-3 as of any date of
determination.
“Component
X-J-1”: One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P Certificates having a
Component Notional Amount equal to the then current REMIC I Principal
Balance of REMIC I Regular Interest LJ-1 as of any date of
determination.
“Component
X-J-2”: One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P Certificates having a
Component Notional Amount equal to the then current REMIC I Principal
Balance of REMIC I Regular Interest LJ-2 as of any date of
determination.
“Component
X-K-1”: One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P
Certificates having a Component Notional Amount equal to the then current
REMIC I Principal Balance of REMIC I Regular Interest LK-1 as of any
date of determination.
“Component
X-K-2”: One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P
Certificates having a Component Notional Amount equal to the then current
REMIC I Principal Balance of REMIC I Regular Interest LK-2 as of any
date of determination.
-27-
“Component
X-K-3”: One of [___] components of the Class X-C
Certificates and one of [___] components of the Class X-P
Certificates having a Component Notional Amount equal to the then current
REMIC I Principal Balance of REMIC I Regular Interest LK-3 as of any
date of determination.
“Component
X-L”: One of [___] components of the Class X-C
Certificates having a Component Notional Amount equal to the then current
REMIC I Principal Balance of REMIC I Regular Interest LL as of any
date of determination.
“Component
X-M”: One of [___] components of the Class X-C
Certificates having a Component Notional Amount equal to the then current
REMIC I Principal Balance of REMIC I Regular Interest LM as of any
date of determination.
“Component
X-N”: One of [___] components of the Class X-C
Certificates having a Component Notional Amount equal to the then current
REMIC I Principal Balance of REMIC I Regular Interest LN as of any
date of determination.
“Component
X-O”: One of [___] components of the Class X-C
Certificates having a Component Notional Amount equal to the then current
REMIC I Principal Balance of REMIC I Regular Interest LO as of any
date of determination.
“Component
X-P”: One of [___] components of the Class X-C
Certificates having a Component Notional Amount equal to the then current
REMIC I Principal Balance of REMIC I Regular Interest LP as of any
date of determination.
“Component
X-Q”: One of [___] components of the Class X-C
Certificates having a Component Notional Amount equal to the then current
REMIC I Principal Balance of REMIC I Regular Interest LQ as of any
date of determination.
“Component
X-S”: One of [___] components of the Class X-C
Certificates having a Component Notional Amount equal to the then current
REMIC I Principal Balance of REMIC I Regular Interest LS as of any
date of determination.
“Controlling
Class”: With respect to each Mortgage Loan as of any date of
determination, the Class of Sequential Pay Certificates, (i) which bears
the latest payment priority and (ii) the Class Principal Balance of which
is greater than 25% of the Original Class Principal Balance thereof; provided, however, that if no Class of
Sequential Pay Certificates satisfies clause (ii) above, the Controlling
Class shall be the outstanding Class of Sequential Pay Certificates bearing
the latest payment priority. With respect to determining the
Controlling Class, the Class A-1, Class A-2, Class A-3, Class
A-PB, Class A-4, Class A-5 and Class A-1A Certificates shall be deemed a single
Class of Certificates.
“Controlling Class
Representative”: As defined in
Section 3.25(a).
“Controlling
Person”: With respect to any Person, any other Person who
“controls” such Person within the meaning of the Securities Act.
-28-
“Corporate Trust
Office”: The corporate trust office of the Trustee at which at
any particular time its corporate trust business with respect to this Agreement
shall be administered, which office at the date of the execution of this
Agreement is located at (i) with respect to maintenance of the Certificate
Registrar and the transfer and exchange of Certificates, the office of the
Trustee located at [_________] and (ii) for all other purposes, the office
of the Trustee located at [_________].
“Corrected Mortgage
Loan”: Any Mortgage Loan and, if applicable, any Companion
Loan that had been a Specially Serviced Mortgage Loan but has ceased to be a
Specially Serviced Mortgage Loan in accordance with the definition of “Specially Serviced Mortgage
Loan.”
“Corresponding
Certificate”: As defined in the Preliminary Statement with
respect to any Corresponding Component or any Corresponding REMIC I Regular
Interest.
“Corresponding
Component”: As defined in the Preliminary Statement with
respect to any Corresponding Certificate or any Corresponding REMIC I
Regular Interest.
“Corresponding REMIC I
Regular Interest”: As defined in the Preliminary Statement
with respect to any Class of Corresponding Certificates or any Corresponding
Component of the Class X-C Certificates or Class X-P
Certificates.
“Crossed
Group”: With respect to any Mortgage Loan, such Mortgage Loan
and all other Mortgage Loans that are cross-collateralized and cross-defaulted
with such Mortgage Loan.
“Crossed
Loan”: A Mortgage Loan that is cross-collateralized and
cross-defaulted with one or more other Mortgage Loans.
“Crossed Loan Repurchase
Criteria”: (i) The Debt Service Coverage Ratio for all
remaining related Crossed Loans for the four calendar quarters immediately
preceding the repurchase or substitution is not less than the Debt Service
Coverage Ratio for all such related Crossed Loans, including the affected
Crossed Loan, for the four calendar quarters immediately preceding the
repurchase or substitution, (ii) the Loan-to-Value Ratio for any remaining
related Crossed Loans determined at the time of repurchase or substitution based
upon an Appraisal obtained by the Special Servicer at the expense of the related
Mortgage Loan Seller is not greater than the Loan-to-Value Ratio for all such
related Crossed Loans, including the affected Crossed Loan, determined at the
time of repurchase or substitution based upon an Appraisal obtained by the
Special Servicer at the expense of the related Mortgage Loan Seller and
(iii) the Mortgage Loan Seller, at its expense, shall have furnished the
Trustee with an Opinion of Counsel that the repurchase of or substitution for a
Crossed Loan, including, without limitation, any modification relating to such
repurchase or substitution, shall not cause an Adverse
REMIC Event.
“Custodian”: A
Person who is at any time appointed by the Trustee pursuant to Section 8.11
as a document custodian for the Mortgage Files, which Person shall not be the
Depositor, a Mortgage Loan Seller or an Affiliate of the Depositor or a Mortgage
Loan Seller. If no such custodian has been appointed or if such
custodian has been so appointed, but the Trustee shall have terminated such
appointment, then the Trustee shall be the Custodian.
-29-
“Cut-Off
Date”: With respect to any Mortgage Loan or Companion Loan,
the Due Date for such Mortgage Loan or Companion Loan in
[__________].
“Cut-Off Date
Balance”: With respect to any Mortgage Loan or Companion Loan,
the outstanding principal balance of such Mortgage Loan or Companion Loan as of
the Cut-Off Date, after application of all unscheduled payments of principal
received on or before such date and the principal component of all Periodic
Payments due on or before such date, whether or not received.
“Debt Service Coverage
Ratio”: With respect to any Mortgage Loan, as of any date of
determination, the ratio of (x) the annualized Net Operating Income (before
payment of any debt service on such Mortgage Loan) generated by the related
Mortgaged Property during the most recently ended period of not less than six
months and not more than twelve months for which financial statements, if
available (whether or not audited) have been received by or on behalf of the
related Mortgage Loan Seller (prior to the Closing Date) or the Master Servicer
or the Special Servicer (following the Closing Date), to (y) twelve times the
amount of the Periodic Payment in effect for such Mortgage Loan as of such date
of determination.
“Defaulted Mortgage
Loan”: A Mortgage Loan (i) that is delinquent sixty days
or more in respect to a Periodic Payment (not including the Balloon Payment) or
(ii) is delinquent in respect of its Balloon Payment unless the Master
Servicer has, on or prior to the Due Date of such Balloon Payment, received
written evidence from an institutional lender of such lender’s binding
commitment to refinance such Mortgage Loan within 60 days after the Due Date of
such Balloon Payment (provided that, if such
refinancing does not occur during such time specified in the commitment, the
related Mortgage Loan will immediately become a Defaulted Mortgage Loan), in
either case such delinquency to be determined without giving effect to any grace
period permitted by the related Mortgage or Mortgage Note and without regard to
any acceleration of payments under the related Mortgage and Mortgage Note, or
(iii) as to which the Master Servicer or Special Servicer has, by written
notice to the related Mortgagor, accelerated the maturity of the indebtedness
evidenced by the related Mortgage Note.
“Defaulting
Party”: As defined in section 7.01(b).
“Defeasance
Collateral”: With respect to any Defeasance Loan, the United
States government securities required or permitted to be pledged in lieu of
prepayment pursuant to the terms thereof.
“Defeasance
Loan”: Any Mortgage Loan identified as a Defeasance Loan on
the Mortgage Loan Schedule which permits or requires the related Mortgagor (or
permits the holder of such Mortgage Loan to require the related Mortgagor) to
pledge Defeasance Collateral to such holder in lieu of prepayment.
“Deficient
Valuation”: With respect to any Mortgage Loan, a valuation by
a court of competent jurisdiction of the Mortgaged Property in an amount less
than the then outstanding principal balance of the Mortgage Loan, which
valuation results from a proceeding initiated under the Bankruptcy
Code.
“Definitive
Certificate”: As defined in Section 5.03(a).
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“Depositor”: Xxxxx
Fargo Commercial Mortgage Securities, Inc. or its successor in
interest .
“Depository”: The
Depository Trust Company, or any successor Depository hereafter named as
contemplated by Section 5.03(c). The nominee of the initial
Depository for purposes of registering those Certificates that are to be
Book-Entry Certificates is Cede & Co. The Depository shall at all
times be a “clearing
corporation” as defined in Section 8-102(3) of the Uniform
Commercial Code of the State of New York and a “clearing agency”
registered pursuant to the provisions of Section 17A of the Securities
Exchange Act of 1934, as amended.
“Depository
Participant”: A broker, dealer, bank or other financial
institution or other Person for whom from time to time the Depository effects
book-entry transfers and pledges of securities deposited with the
Depository.
“Determination
Date”: The eleventh day of each month, or if such eleventh day
is not a Business Day, the Business Day immediately succeeding, commencing in
[__________].
“Determination
Party”: [__________], or a second party that would qualify as
a successor Special Servicer mutually agreeable to the Special Servicer, the
Controlling Class Representative and the applicable Mortgage Loan Seller, or any
successor in interest thereto; provided that (a) [each such
party is on the list of approved special servicers by Moody’s and on S&P’s
Select Servicer List as a U.S. Commercial Mortgage Special Servicer] or (b) each
Rating Agency has confirmed in writing that contracting with such Determination
Party would not result in a downgrade, qualification or withdrawal of the then
current rating assigned to any of the Certificates that are then currently rated
by such Rating Agency.
“Directly
Operate”: With respect to any REO Property, the furnishing or
rendering of services to the tenants thereof, the management of such REO
Property, the holding of such REO Property primarily for sale or lease or the
performance of any construction work thereon, in each case other than through an
Independent Contractor; provided, however, that the Trustee (or
the Special Servicer or any Sub-Servicer on behalf of the Trustee) shall not be
considered to Directly Operate an REO Property solely because the Trustee (or
the Special Servicer or any Sub-Servicer on behalf of the Trustee) establishes
rental terms, chooses tenants, enters into or renews leases, deals with taxes
and insurance, or makes decisions as to repairs or capital expenditures with
respect to such REO Property.
“Discount
Rate”: With respect to any prepaid Mortgage Loan or REO Loan
for purposes of allocating any Yield Maintenance Charge or Prepayment Premium
received thereon or with respect thereto among the respective Classes of the
Sequential Pay Certificates (other than any Excluded Class thereof), an
amount, calculated by the Master Servicer and reported to the Trustee pursuant
to Section 4.02(b), will be equal to the discount rate stated in the related
Mortgage Loan documents used in calculating the Yield Maintenance Charge or
Prepayment Premium with respect to such principal prepayment. To the
extent that a discount rate is not stated therein, the “Discount Rate” will
be equal to the yield (when compounded monthly) on the U.S. Treasury issue with
a maturity date closest to the maturity date for such prepaid Mortgage Loan or
REO Loan. In the event there are two or more such U.S. Treasury
issues (a) with the same coupon, the issue with the lowest yield shall
apply, and (b) with maturity dates equally
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close to
the maturity date for the prepaid Mortgage Loan or REO Loan, the issue with the
earliest maturity date shall apply.
“Disqualified Non-United
States Persons”: With respect to a Class R-I or
Class R-II Certificate, any Non-United States Person or agent thereof other
than (i) a Non-United States Person that holds the Class R-I or
Class R-II 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 W-8ECI (or successor form) or
(ii) a Non-United States 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-I or Class R-II
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-I
or Class R-II Certificate will not be disregarded for federal income tax
purposes.
“Disqualified
Organization”: Any of the following: (i) the
United States or a possession thereof, any State or any political subdivision
thereof, or any agency or instrumentality of any of the foregoing (other than an
instrumentality which is a corporation if all of its activities are subject to
tax and, except for FHLMC, a majority of its board of directors is not selected
by any such governmental unit), (ii) a foreign government, international
organization, or any agency or instrumentality of either of the foregoing,
(iii) any organization (except certain farmers’ cooperatives described in
Section 1 of the Code) which is exempt from the tax imposed by Chapter 1 of
the Code (unless such organization is subject to the tax imposed by
Section 511 of the Code on unrelated business taxable income),
(iv) rural electric and telephone cooperatives described in
Section 1381 of the Code or (v) any other Person so designated by the
Trustee or the Certificate Registrar based upon an Opinion of Counsel (which
shall not be an expense of the Trustee) that the holding of an Ownership
Interest in a Residual Certificate by such Person may cause the Trust Fund or
any Person having an Ownership Interest in any Class of Certificates, other than
such Person, to incur a liability for any federal tax imposed under the Code
that would not otherwise be imposed but for the Transfer of an Ownership
Interest in a Residual Certificate to such Person. The terms “United States,”
“State” and
“international
organization” shall have the meanings set forth in Section 7701 of
the Code or successor provisions.
“Distributable Certificate
Interest”: With respect to: (a) any Class of
Sequential Pay Certificates for any Distribution Date, the Accrued Certificate
Interest in respect of such Class of Certificates for such Distribution Date,
reduced other than with respect to the Class X Certificates (to not less than
zero) by (i) the product of (A) any Net Aggregate Prepayment Interest
Shortfall for such Distribution Date and (B) a fraction, expressed as a decimal,
the numerator of which is the Accrued Certificate Interest in respect of such
Class of Certificates for such Distribution Date, and the denominator of which
is the aggregate Accrued Certificate Interest in respect of all the Classes of
Sequential Pay Certificates for such Distribution Date, and (ii) with
respect to each such Class, such Class’ share of any Certificate Deferred
Interest allocated to such Class of Certificates in accordance with
Section 4.04(c); and (b) any Class of Class X Certificates for any
Distribution Date, the Accrued Certificate Interest in respect of such Class of
Certificates for such Distribution Date.
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“Distribution
Account”: The segregated account, accounts or subaccounts
created and maintained by the Paying Agent on behalf of the Trustee pursuant to
Section 3.04(b) which shall be entitled “[__________], as Trustee, in
trust for the registered holders of Xxxxx Fargo Commercial Mortgage Trust,
Commercial Mortgage Pass-Through Certificates,
Series [__________].”
“Distribution
Date”: With respect to any Determination Date, the fourth
Business Day following such Determination Date.
“Distribution Date
Statement”: As defined in Section 4.02(a).
“Document
Defect”: As defined in Section 2.03(a).
“Due
Date”: With respect to (i) any Mortgage Loan on or prior
to its Stated Maturity Date or any Companion Loan on or prior to its maturity
date, the day of the month set forth in the related Mortgage Note on which each
Periodic Payment on such Mortgage Loan or Companion Loan is scheduled to be
first due; (ii) any Mortgage Loan after its Stated Maturity Date or any
Companion Loan after its maturity date, the day of the month set forth in the
related Mortgage Note on which each Periodic Payment on such Mortgage Loan or
Companion Loan had been scheduled to be first due and (iii) any REO Loan,
the day of the month set forth in the related Mortgage Note on which each
Periodic Payment on the related Mortgage Loan had been scheduled to be first
due.
“XXXXX”: The
Commission’s Electronic Data Gathering, Analysis and Retrieval
system.
“Eligible
Account”: Any of (i) an account maintained with a federal
or state chartered depository institution or trust company, and (a) with respect
to deposits held for 30 days or more in such account, the long-term
deposit or unsecured debt obligations of which are rated at least (A) [“Aa3” by Moody’s (if
then rated by Moody’s)], and (B) [“AA-” by S&P (or “A-”; provided the short-term
unsecured debt obligations are rated at least “A-1” by S&P)] (or, with
respect to any such Rating Agency, such lower rating as will not result in
qualification, downgrading or withdrawal of the ratings then assigned to the
Certificates, as evidenced in writing by the applicable Rating Agency), at any
time such funds are on deposit therein or (b) with respect to deposits held for
less than 30 days in such account, the short-term deposits of which are rated at
least [“P-1” by
Moody’s (if then rated by Moody’s)], and [“A-1” by S&P] (or, with respect to
any such Rating Agency, such lower rating as will not result in qualification,
downgrading or withdrawal of the ratings then assigned to the Certificates) as
evidenced in writing by the applicable Rating Agency at any time such funds are
on deposit therein; or (ii) a segregated trust account or accounts
maintained with a federal or state chartered depository institution or trust
company acting in its fiduciary capacity, which, in the case of a state
chartered depository institution or trust company, is subject to regulations
regarding fiduciary funds on deposit therein substantially similar to 12 CFR §
9.10(b), the long term deposits or unsecured debt of which, or if it is the
wholly-owned subsidiary of an entity the long-term deposits or unsecured
obligations of which, are rated at least “Baa3” by Moody’s and which has a
combined capital and surplus of at least $50,000,000; or (iii) any other
account, the use of which would not,
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in and of
itself, cause a qualification, downgrading or withdrawal of the then-current
rating assigned to any Class of Certificates, as confirmed in writing by each
Rating Agency.
“Environmental
Assessment”: A “Phase I assessment”
as described in, and meeting the criteria of, (i) Chapter 5 of the FNMA
Multifamily Guide or any successor provisions covering the same subject matter
in the case of a Specially Serviced Mortgage Loan as to which the related
Mortgaged Property is multifamily property or (ii) the American Society
for Testing and Materials in the case of Specially Serviced Mortgage Loan as to
which the related Mortgaged Property is not multifamily property.
“ERISA”: The
Employee Retirement Income Security Act of 1974, as amended, and any regulations
and administrative pronouncements thereunder.
“ERISA Restricted
Certificate”: Any Class L, Class M, Class N,
Class O, Class P, Class Q or Class S Certificate; provided that any such
Certificate (a) will cease to be considered an ERISA Restricted Certificate
and (b) will cease to be subject to the transfer restrictions related to
ERISA Restricted Certificates contained in Section 5.02(c) if, as of
the date of a proposed transfer of such Certificate, either (i) it is rated
in one of the four highest generic ratings categories by a Rating Agency or
(ii) relevant provisions of ERISA and the Code would permit transfer of
such Certificate to a Plan without resulting in a non-exempt prohibited
transaction.
“Escrow
Payment”: Any payment received by the Master Servicer or the
Special Servicer for the account of any Mortgagor for application toward the
payment of real estate taxes, assessments, insurance premiums, ground rents (if
applicable) and other similar items in respect of the related Mortgaged
Property.
“Event of
Default”: One or more of the events described in
Section 7.01(a).
“Exchange
Act”: Securities Exchange Act of 1934, as
amended.
“Excluded
Class”: Any Class of Sequential Pay Certificates other than
the Class A-1 Certificates, Class A-2 Certificates, Class A-3
Certificates, Class A-PB Certificates, Class A-4 Certificates, Class
A-5 Certificates, Class A-1A Certificates, Class A-M Certificates,
Class A-J Certificates, Class B Certificates, Class C
Certificates, Class D Certificates, Class E Certificates, Class F
Certificates, Class G Certificates, Class H Certificates, Class J and
Class K Certificates.
“Exemptions”: Department
of Labor Prohibited Transaction Exemption (“PTE”)
[_________] and [_________], each as amended from time to
time, or any successor thereto.
“FDIC”: Federal
Deposit Insurance Corporation or any successor.
“FHLMC”: Federal
Home Loan Mortgage Corporation or any successor.
“Final Recovery
Determination”: A determination by the Special Servicer with
respect to any Defaulted Mortgage Loan (and, if applicable, any defaulted
Companion Loan) or REO Property that there has been a recovery of all Insurance
Proceeds, Liquidation Proceeds and
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other
payments or recoveries that the Special Servicer has determined, in accordance
with the Servicing Standard, will be ultimately recoverable.
“FNMA”: Federal
National Mortgage Association or any successor.
“Gain-on-Sale
Proceeds”: With respect to any Mortgage Loan, the excess of
(i) Liquidation Proceeds of the Mortgage Loan or related REO Property net
of any related Liquidation Expenses, over (ii) the Purchase Price for such
Mortgage Loan on the date on which such Liquidation Proceeds were
received.
“Gain-on-Sale Reserve
Account”: A segregated custodial account or accounts or
subaccount of the Distribution Account created and maintained by the Paying
Agent pursuant to Section 3.04(e) on behalf of the Trustee in trust
for the Certificateholders, which shall be entitled “[__________], as Trustee,
in trust for the registered holders of Xxxxx Fargo Commercial Mortgage Trust,
Commercial Mortgage Pass-Through Certificates, Series
[__________].” Any such account shall be an Eligible Account or a
subaccount of an Eligible Account.
“Grantor Trust
Provisions”: Subpart E of Part I of subchapter J of the Code
and Treasury Regulations Section 301.7701-4(c).
“Ground
Lease”: With respect to any Mortgage Loan for which the
Mortgagor has a leasehold interest in the related Mortgaged Property or space
lease within such Mortgaged Property, the lease agreement creating such
leasehold interest.
“Group 1 Mortgage
Loan”: Any Mortgage Loan identified on the Mortgage Loan
Schedule as belonging to Loan Group 1.
“Group 2 Mortgage
Loan”: Any Mortgage Loan identified on the Mortgage Loan
Schedule as belonging to Loan Group 2.
“Hazardous
Materials”: Any dangerous, toxic or hazardous pollutants,
chemicals, wastes, or substances, including, without limitation, those so
identified pursuant to CERCLA or any other federal, state or local environmental
related laws and regulations now existing or hereafter enacted, and specifically
including, without limitation, asbestos and asbestos-containing materials,
polychlorinated biphenyls (“PCBs”), radon gas,
petroleum and petroleum products and urea formaldehyde.
“Holder”: A
Certificateholder.
“HUD-Approved
Servicer”: A servicer approved by the Secretary of Housing and
Urban Development pursuant to Section 207 of the National Housing
Act.
“Impound
Reserve”: As defined in
Section 3.16(c) hereof.
“Independent”: When
used with respect to any specified Person, any such Person who (i) is in
fact independent of the Depositor, the Mortgage Loan Sellers, the Master
Servicer, the Special Servicer, the Controlling Class Representative, the
Trustee, any Companion Holder and any and all Affiliates thereof, (ii) does
not have any direct financial interest in or any
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material
indirect financial interest in any of the Depositor, the Mortgage Loan Sellers,
the Master Servicer, the Special Servicer, the Controlling Class Representative,
the Trustee, any Companion Holder or any Affiliate thereof, and (iii) is
not connected with the Depositor, the Mortgage Loan Sellers, the Master
Servicer, the Controlling Class Representative, the Special Servicer, the
Trustee, any Companion Holder or any Affiliate thereof as an officer, employee,
promoter, underwriter, trustee, partner, director or Person performing similar
functions; provided,
however, that a Person
shall not fail to be Independent of the Depositor, the Mortgage Loan Sellers,
the Master Servicer, the Controlling Class Representative, the Special Servicer,
the Trustee or any Affiliate thereof merely because such Person is the
beneficial owner of 1% or less of any class of securities issued by the
Depositor, the Mortgage Loan Sellers, the Master Servicer, the Special Servicer,
the Controlling Class Representative, the Trustee or any Affiliate thereof, as
the case may be.
“Independent
Appraiser”: An Independent professional real estate appraiser
who is a member in good standing of the Appraisal Institute, and, if the State
in which the subject Mortgaged Property is located certifies or licenses
appraisers, certified or licensed in such State, and in each such case, who has
a minimum of five years experience in the subject property type and
market.
“Initial
Purchaser”: Each of [__________] and [__________] or, in each
case, its successor in interest.
“Independent
Contractor”: Any Person that would be an “independent
contractor” with respect to REMIC I within the meaning of
Section 856(d)(3) of the Code if REMIC I were a real estate investment
trust (except that the ownership test set forth in that section shall be
considered to be met by any Person that owns, directly or indirectly, 35 percent
or more of any Class of Certificates, or such other interest in any Class of
Certificates as is set forth in an Opinion of Counsel, which shall be delivered,
at no expense to the Master Servicer, the Special Servicer, the Trustee or the
Trust Fund, to the Trustee and the Master Servicer, so long as REMIC I does
not receive or derive any income from such Person and provided that the
relationship between such Person and REMIC I is at arm’s length, all within
the meaning of Treasury Regulations Section 1.856-4(b)(5)), or any other
Person upon receipt by the Trustee of an Opinion of Counsel, which shall be at
no expense to the Master Servicer, the Special Servicer, the Trustee or the
Trust Fund, to the effect that the taking of any action in respect of any REO
Property by such Person, subject to any conditions therein specified, that is
otherwise herein contemplated to be taken by an Independent Contractor will not
cause such REO Property to cease to qualify as “foreclosure property”
within the meaning of Section 860G(a)(8) of the Code, or cause any income
realized in respect of such REO Property to fail to qualify as Rents from Real
Property.
“Institutional Accredited
Investor”: Institutional “accredited investors” as defined in
Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act or any
entity in which all the equity holders fall within any such
subsections.
“Insurance
Policy”: With respect to any Mortgage Loan, any hazard
insurance policy, flood insurance policy, title policy or other insurance policy
that is maintained from time to time in respect of such Mortgage Loan or the
related Mortgaged Property.
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“Insurance
Proceeds”: Proceeds paid under any Insurance Policy, to the
extent such proceeds are not applied to the restoration of the related Mortgaged
Property, released to the Mortgagor, or any tenants or ground lessors, as the
case may be, pursuant to the terms of the related Mortgage or lease, in
accordance with the Servicing Standard.
“Insured Environmental
Event”: As defined in Section 3.08(c).
“Intercreditor
Agreement”: [___________].
“Interest Accrual
Period”: With respect to each Class of Regular Certificates or
the REMIC I Regular Interests and any Distribution Date, the calendar month
immediately preceding the calendar month in which such Distribution Date
occurs. Notwithstanding the foregoing, each Interest Accrual Period
is deemed to consist of 30 days for purposes of calculating interest on the
Regular Certificates or the REMIC I Regular Interests.
“Interest Reserve
Account”: The segregated account created and maintained by the
Trustee pursuant to Section 3.04(c) in trust for Certificateholders,
which shall be entitled “[__________], as Trustee, on behalf of and in trust for
the registered holders of Xxxxx Fargo Commercial Mortgage Trust, Commercial
Mortgage Pass-Through Certificates,
Series [__________]”.
“Interest Reserve
Amount”: With respect to each Interest Reserve Loan and each
Distribution Date that occurs in February of each year and in January of each
year that is not a leap year, an amount equal to one day’s interest at the
related Mortgage Rate (without regard to the second proviso in the definition
thereof) on the related Stated Principal Balance as of the Due Date in the month
in which such Distribution Date occurs (but prior to the application of any
amounts owed on such Due Date), to the extent a Periodic Payment or P&I
Advance is made in respect thereof for such Due Date as of the related P&I
Advance Date.
“Interest Reserve
Loan”: Each Mortgage Loan that is an Actual/360 Mortgage
Loan.
“Interested
Person”: The Depositor, any Mortgage Loan Seller, the Master
Servicer, the Special Servicer, any Independent Contractor hired by the Special
Servicer, any Holder of a Certificate, each Companion Holder (but only with
respect to the related Co-Lender Loan) or any Affiliate of any such
Person.
“Internet
Website”: The Internet Websites maintained by the Trustee and,
if applicable, the Master Servicer initially located at “www.[_________].com”
and “www.[_________].com”, respectively, or such other address as provided to
the parties hereto from time to time.
“Investment
Account”: As defined in Section 3.06(a).
“Issue
Price”: With respect to each Class of Certificates, the “issue
price” as defined in the Code and Treasury regulations promulgated
thereunder.
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“Late
Collections”: With respect to any Mortgage Loan or Companion
Loan, all amounts received thereon during any Collection Period, other than
Penalty Interest, whether as payments, Insurance Proceeds, Liquidation Proceeds
or otherwise, which represent late collections of the principal and/or interest
portions of a Scheduled Payment (other than a Balloon Payment) or an Assumed
Scheduled Payment in respect of such Mortgage Loan or Companion Loan due or
deemed due on a Due Date in a previous Collection Period, and not previously
recovered. With respect to any REO Loan, all amounts received in
connection with the related property during any Collection Period, whether as
Insurance Proceeds, Liquidation Proceeds, REO Revenues or otherwise, which
represent late collections of the principal and/or interest portions of a
Scheduled Payment (other than a Balloon Payment) or an Assumed Scheduled Payment
in respect of the predecessor Mortgage Loan or of an Assumed Scheduled Payment
in respect of such REO Loan deemed due on a Due Date in a previous Collection
Period and not previously recovered.
“Liquidation
Event”: With respect to any Mortgage Loan, any of the
following events: (i) such Mortgage Loan is paid in full;
(ii) a Final Recovery Determination is made with respect to such Mortgage
Loan; (iii) such Mortgage Loan is repurchased by a Mortgage Loan Seller
pursuant to the applicable Mortgage Loan Purchase Agreement; or (iv) such
Mortgage Loan is purchased by the Majority Subordinate Certificateholder, the
Companion Holders, the mezzanine lenders or the Special Servicer pursuant to
Sections 3.18(c), 3.18(d), 3.18(e) or 3.18(m), or by the Master Servicer,
the Special Servicer or the Majority Subordinate Certificateholder pursuant to
Section 9.01. With respect to any REO Property (and the related
REO Loan), any of the following events: (i) a Final Recovery
Determination is made with respect to such REO Property; (ii) such REO
Property is purchased by the Master Servicer, the Special Servicer or the
Majority Subordinate Certificateholder pursuant to Section 9.01; or
(iii) such REO Property is purchased by the Companion Holder as described
in Section 3.18(d).
“Liquidation
Fee”: With respect to each Mortgage Loan and REO Loan, the fee
payable to the Special Servicer out of certain related recoveries pursuant to
the third paragraph of Section 3.11(c).
“Liquidation Fee
Rate”: With respect to all amounts set forth in the third
paragraph of Section 3.11(c), [___]%.
“Liquidation
Proceeds”: All cash amounts (other than Insurance Proceeds and
REO Revenues) received by the Master Servicer or the Special Servicer in
connection with: (i) the taking of all or a part of a Mortgaged
Property or REO Property by exercise of the power of eminent domain or
condemnation, subject, however, to the rights of any tenants and ground lessors,
as the case may be, and the rights of the Mortgagor under the terms of the
related Mortgage; (ii) the liquidation of a Mortgaged Property or other
collateral constituting security for a Defaulted Mortgage Loan, through
trustee’s sale, foreclosure sale, REO Disposition or otherwise, exclusive of any
portion thereof required to be released to the related Mortgagor in accordance
with applicable law and the terms and conditions of the related Mortgage Note
and Mortgage; (iii) the realization upon any deficiency judgment obtained
against a Mortgagor; (iv) the purchase of a Defaulted Mortgage Loan by the
Majority Subordinate Certificateholder, the related Companion Holder, the
mezzanine lenders or the Special Servicer pursuant to Section 3.18(c),
Section 3.18(d), Section 3.18(e) or Section 3.18(m); (v) the
repurchase of a
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Mortgage
Loan by a Mortgage Loan Seller pursuant to the applicable Mortgage Loan Purchase
Agreement; (vi) the purchase of a Mortgage Loan or REO Property by the
Master Servicer, the Special Servicer, or the Majority Subordinate
Certificateholder pursuant to Section 9.01; (vii) the purchase of an
REO Property by the Companion Holder pursuant to Section 3.18(d); or
(viii) the remittance by the applicable Mortgage Loan Seller of amounts
specified in Section 2.03(g).
“Loan
Group”: Either Loan Group 1 or Loan Group 2.
“Loan Group
1”: Collectively, all of the Mortgage Loans that are Group 1
Mortgage Loans and any successor REO Loans with respect thereto.
“Loan Group 1 Available
Distribution Amount”: With respect to any Distribution Date,
that portion, if any, of the Available Distribution Amount attributable to Loan
Group 1.
“Loan Group 1 Principal
Distribution Amount”: With respect to any Distribution Date,
that portion, if any, of the Principal Distribution Amount attributable to Loan
Group 1.
“Loan Group
2”: Collectively, all of the Mortgage Loans that are Group 2
Mortgage Loans and any successor REO Loans with respect thereto.
“Loan Group 2 Available
Distribution Amount”: With respect to any Distribution Date,
that portion, if any, of the Available Distribution Amount attributable to Loan
Group 2.
“Loan Group 2 Principal
Distribution Amount”: With respect to any Distribution Date,
that portion, if any, of the Principal Distribution Amount attributable to Loan
Group 2.
“Loan
Pair”: Collectively, any Co-Lender Loan and its related
Companion Loan(s).
“Loan-to-Value
Ratio”: With respect to any Mortgage Loan, as of any date of
determination, a fraction, expressed as a percentage, the numerator of which is
the then current principal amount of such Mortgage Loan, and the denominator of
which is the Appraised Value of the related Mortgaged Property.
“Lockout
Period”: With respect to any Mortgage Note that prohibits the
Mortgagor from prepaying such Mortgage Loan until a date specified in such
Mortgage Note, the period from the Closing Date until such specified
date.
“Majority Subordinate
Certificateholder”: As of any date of determination, any
single Holder of Certificates (other than any Holder which is an Affiliate of
the Depositor or the Mortgage Loan Seller) entitled to greater than 50% of the
Voting Rights allocated to the Controlling Class; provided, however, that, if there is no
single Holder of Certificates entitled to greater than 50% of the Voting Rights
allocated to such Class, then the Majority Subordinate Certificateholder shall
be the single Holder of Certificates with the largest percentage of Voting
Rights allocated to such Class. With respect to determining the
Majority Subordinate Certificateholder, the Class A-1 Certificates, the
Class A-2 Certificates, the Class A-3 Certificates, the Class A-PB
Certificates, the Class A-4 Certificates, the Class A-5 Certificates and
the Class A-1A Certificates shall be deemed to be a single Class of
Certificates, with such
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Voting
Rights allocated among the Holders of Certificates of such Classes in proportion
to the respective Certificate Principal Balances of such Certificates as of such
date of determination.
“Master
Servicer”: [__________], its successor in interest (including
the Trustee as successor pursuant to Section 7.02), or any successor master
servicer appointed as herein provided.
“Master Servicing
Fee”: With respect to each Mortgage Loan and REO Loan the fee
payable to the Master Servicer pursuant to Section 3.11(a).
“Master Servicing Fee
Rate”: With respect to each Mortgage Loan the percentage set
forth under the column “Master Servicing Fee Rate” on the Mortgage Loan
Schedule.
“Material Core
Documents”: As defined in Section 2.03.
“Memorandum”: As
defined in the Mortgage Loan Purchase Agreement.
“Money
Term”: With respect to any Mortgage Loan, the maturity date,
Mortgage Rate, Stated Principal Balance, amortization term or payment frequency
thereof or any provision thereof requiring the payment of a Prepayment Premium
or Yield Maintenance Charge in connection with a Principal Prepayment (but not
any late fees or default interest provisions).
[“Moody’s”: Xxxxx’x
Investors Service, Inc., or its successor in interest. If Moody’s nor
any successor remains in existence, “Moody’s” shall be deemed to refer to such
other nationally recognized statistical rating agency or other comparable Person
designated by the Depositor, notice of which designation shall be given to the
Trustee, the Master Servicer and the Special Servicer, and specific ratings of
Moody’s herein referenced shall be deemed to refer to the equivalent ratings of
the party so designated.]
“Mortgage”: With
respect to any Mortgage Loan, the mortgage, deed of trust, deed to secure debt
or similar instrument that secures the Mortgage Note and creates a lien on the
fee or leasehold interest in the related Mortgaged Property.
“Mortgage Deferred
Interest”: With respect to any Mortgage Loan as to which the
Mortgage Rate has been reduced through a modification and any Distribution Date,
the amount by which (a) interest accrued at such reduced rate is less than
(b) the amount of interest that would have accrued on such Mortgage Loan at
the Mortgage Rate before such reduction, to the extent such amount has been
added to the outstanding principal balance of such Mortgage Loan.
“Mortgage
File”: With respect to any Mortgage Loan, collectively the
following documents:
(i) the
original executed Mortgage Note including any power of attorney related to the
execution thereof, together with any and all intervening endorsements thereon,
endorsed on its face or by allonge attached thereto (without recourse,
representation or warranty, express or implied) to the order of “[__________],
as trustee for the registered holders of Xxxxx Fargo Commercial
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Mortgage
Trust, Commercial Mortgage Pass-Through Certificates, Series [__________]”, or
in blank (or a lost note affidavit and indemnity with a copy of such Mortgage
Note attached thereto);
(ii) an
original or copy of the Mortgage, together with any and all intervening
assignments thereof, in each case (unless not yet returned by the applicable
recording office) with evidence of recording indicated thereon or certified by
the applicable recording office;
(iii) an
original or copy of any related Assignment of Leases (if such item is a document
separate from the Mortgage), together with any and all intervening assignments
thereof, in each case (unless not yet returned by the applicable recording
office) with evidence of recording indicated thereon or certified by the
applicable recording office;
(iv) an
original executed assignment, in recordable form (except for any missing
recording information), of (a) the Mortgage, (b) any related
Assignment of Leases (if such item is a document separate from the Mortgage and
to the extent not already assigned pursuant to preceding clause (a)) and
(c) any other recorded document relating to the Mortgage Loan otherwise
included in the Mortgage File, in favor of “[__________], as trustee for the
registered holders of Xxxxx Fargo Commercial Mortgage Trust, Commercial Mortgage
Pass-Through Certificates, Series [__________]”, or in
blank;
(v) an
original assignment of all unrecorded documents relating to the Mortgage Loan
(to the extent not already assigned pursuant to clause (iv) above), in
favor of “[__________], as trustee for the registered holders of Xxxxx Fargo
Commercial Mortgage Trust, Commercial Mortgage Pass-Through Certificates, Series
[__________]”, or in blank;
(vi) originals
or copies of any modification, consolidation, assumption and substitution
agreements in those instances where the terms or provisions of the Mortgage or
Mortgage Note have been consolidated or modified or the Mortgage Loan has been
assumed or consolidated;
(vii) the
original or a copy of the policy or certificate of lender’s title insurance or,
if such policy has not been issued or located, an original or copy of an
irrevocable, binding commitment (which may be a marked version of the policy
that has been executed by an authorized representative of the title company, a
“pro forma” title policy, or an agreement to provide the same pursuant to
binding escrow instructions executed by an authorized representative of the
title company) to issue such title insurance policy;
(viii) any filed
copies (bearing evidence of filing) or other evidence of filing satisfactory to
the Trustee of any prior UCC Financing Statements in favor of the originator of
such Mortgage Loan or in favor of any assignee prior to the Trustee (but only to
the extent the Mortgage Loan Seller had possession of such
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UCC
Financing Statements prior to the Closing Date) and, if there is an effective
UCC Financing Statement and continuation statement in favor of the Mortgage Loan
Seller on record with the applicable public office for UCC Financing Statements,
an original UCC Amendment, in form suitable for filing in favor of
“[__________], as trustee for the registered holders of Xxxxx Fargo Commercial
Mortgage Trust, Commercial Mortgage Pass-Through Certificates, Series
[__________], as assignee”, or in blank;
(ix) an
original or copy of (A) any Ground Lease, Memorandum of Ground Lease and ground
lessor estoppel, and (B) any loan guaranty or indemnity and (C) any
environmental insurance policy;
(x) any
intercreditor agreement relating to permitted debt (including, without
limitation, mezzanine debt) of the Mortgagor;
(xi) copies of
any loan agreement, escrow agreement or security agreement relating to such
Mortgage Loan;
(xii) a copy of
any letter of credit and related transfer documents relating to such Mortgage
Loan;
(xiii) copies of
any management agreements and applicable transfer or assignment
documents;
(xiv) copies of
any cash management agreements and applicable transfer or assignment
documents;
(xv) copies of
franchise agreements and franchisor comfort letters, if any, for hospitality
properties and applicable transfer or assignment documents; and
(xvi) with
respect to any Companion Loan, all of the above documents with respect to such
Companion Loan and the related Intercreditor Agreement; provided that a copy of each
Mortgage Note relating to such Companion Loan, rather than the original, shall
be provided, and no assignments shall be provided;
provided that, whenever the
term “Mortgage
File” is used to refer to documents actually received by the Trustee or
by a Custodian on its behalf, such term shall not be deemed to include such
documents required to be included therein unless they are actually so received,
and with respect to any receipt or certification by the Trustee or the Custodian
for documents described in clauses (vi) and (ix) (solely with respect
to any guaranty) of this definition, shall be deemed to include only such
documents to the extent the Trustee or Custodian has actual knowledge of their
existence.
Notwithstanding
the foregoing, with respect to the [__________] Loan, the “Mortgage File” will
consist of the original note (or lost note affidavit, if applicable) specified
in clause (i) above, and a photocopy of each additional document in the
Mortgage File held by the [__________] Trustee.
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“Mortgage
Loan”: Each of the mortgage loans transferred and assigned to
the Trust Fund pursuant to Section 2.01 and listed on the Mortgage Loan
Schedule and from time to time held in the Trust Fund. As used
herein, the term “Mortgage Loan”
includes the related Mortgage Note, Mortgage, and other security documents
contained in the related Mortgage File. Unless otherwise indicated,
as used in this Agreement, the term “Mortgage Loan” does
not include any Companion Loan.
“Mortgage Loan Purchase
Agreement”: Each of the [__________] Mortgage Loan Purchase
Agreement and the [__________] Mortgage Loan Purchase Agreement, individually or
collectively, as the context may require.
“Mortgage Loan
Schedule”: The list of Mortgage Loans transferred on the
Closing Date to the Trustee as part of REMIC I, attached hereto as Exhibit
B and in a computer readable format. Such list shall set forth the
following information with respect to each Mortgage Loan:
(i) the
Mortgage Loan number;
(ii) the
street address (including city, county, state and zip code) and name of the
related Mortgaged Property;
(iii) the
Cut-Off Date Balance;
(iv) the
amount of the Periodic Payment due on the first Due Date following the Closing
Date;
(v) the
original Mortgage Rate;
(vi) the (A)
original term to stated maturity, (B) remaining term to stated maturity and (C)
the Stated Maturity Date and, in the case of an ARD Loan, the Anticipated
Repayment Date;
(vii) in the
case of a Balloon Mortgage Loan, the remaining amortization term;
(viii) the
original and remaining amortization term;
(ix) whether
the Mortgage Loan is secured by a Ground Lease;
(x) the
Master Servicing Fee Rate;
(xi) whether
such Mortgage Loan is an ARD Loan and if so the Anticipated Repayment Date and
Additional Interest Rate for such ARD Loan;
(xii) the
related Mortgage Loan Seller;
(xiii) whether
such Mortgage Loan is insured by an environmental policy;
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(xiv) whether
such Mortgage Loan is cross-defaulted or cross-collateralized with any other
Mortgage Loan;
(xv) whether
such Mortgage Loan is a Defeasance Loan;
(xvi) whether
the Mortgage Loan is secured by a letter of credit;
(xvii) whether
such Mortgage Loan is an Interest Reserve Loan;
(xviii) whether
payments on such Mortgage Loan are made to a lock-box;
(xix) the
amount of any Reserve Funds escrowed in respect of each Mortgage
Loan;
(xx) the
number of units or square feet related to the Mortgaged Property;
(xxi) the
number of grace days after the Due Date until Periodic Payments incur late
payment charges; and
(xxii) the
applicable Loan Group to which such Mortgage Loan belongs.
“Mortgage Loan
Seller”: Each of [_________] and [__________], or their
respective successors in interest, individually or collectively as the context
may require.
“Mortgage
Note”: The original executed note evidencing the indebtedness
of a Mortgagor under a Mortgage Loan or Companion Loan, together with any rider,
addendum or amendment thereto, or any renewal, substitution or replacement of
such note.
“Mortgage
Pool”: Collectively, all of the Mortgage Loans and any
successor REO Loans.
“Mortgage
Rate”: With respect to (i) any Mortgage Loan on or prior
to its Stated Maturity Date, the fixed annualized rate, not including any
Additional Interest Rate, at which interest is scheduled (in the absence of a
default) to accrue on such Mortgage Loan from time to time in accordance with
the related Mortgage Note and applicable law; (ii) any Mortgage Loan after
its Stated Maturity Date, the annualized rate described in clause (i) above
determined without regard to the passage of such Stated Maturity Date, but
giving effect to any modification thereof as contemplated by Section 3.20;
and (iii) any REO Loan, the annualized rate described in clause (i) or
(ii), as applicable, above determined as if the predecessor Mortgage Loan had
remained outstanding; provided, however, that if any Mortgage
Loan does not accrue interest on the basis of a 360-day year consisting of
twelve 30-day months, then, solely for purposes of calculating the Pass-Through
Rates, the Mortgage Rate of such Mortgage Loan for any one-month period
preceding a related Due Date will be the annualized rate at which interest would
have to accrue in respect of such Mortgage Loan on the basis of a 360-day year
consisting of twelve 30-day months in order to produce the aggregate amount of
interest actually accrued (exclusive of Penalty Interest or Additional Interest)
in respect of such Mortgage Loan during such one-month period at the related
Mortgage Rate; provided, however, that, solely for the
purposes of calculating the Pass-Through Rates, with respect to each Interest
Reserve Loan, the
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Mortgage
Rate for the one-month period (A) preceding the Due Dates that occur in January
and February in any year which is not a leap year or preceding the Due Date that
occurs in February in any year which is a leap year will be determined exclusive
of the Interest Reserve Amounts for such months (in each case unless such Due
Date occurs in a January or February in which the final Distribution Date
occurs), and (B) preceding the Due Date in March, and in the event the final
Distribution Date occurs in February or, if such year is not a leap year, in
January, preceding the Due Date in such February or January, will be determined
inclusive of the Interest Reserve Amounts for the immediately preceding February
and, if applicable, January; provided, further, that, if the
Mortgage Rate of the related Mortgage Loan has been modified in connection with
a bankruptcy or similar proceeding involving the related Mortgagor or a
modification, waiver or amendment granted or agreed to by the Special Servicer
pursuant to Section 3.20, solely for purposes of calculating the
Pass-Through Rate, the Mortgage Rate for such Mortgage Loan shall be calculated
without regard to such event.
“Mortgaged
Property”: The property subject to the lien of a
Mortgage.
“Mortgagor”: The
obligor or obligors on a Mortgage Note, including without limitation, any Person
that has acquired the related Mortgaged Property and assumed the obligations of
the original obligor under the Mortgage Note and/or, in the case of an indemnity
deed of trust, the entity which granted the lien on such Mortgaged
Property.
“Net Aggregate Prepayment
Interest Shortfall”: With respect to any Distribution Date,
the amount, if any, by which (a) the aggregate of all Prepayment Interest
Shortfalls incurred in connection with the receipt of Principal Prepayments on
the Mortgage Loans during the related Collection Period, exceeds (b) the
aggregate amount deposited by the Master Servicer in the Certificate Account for
such Distribution Date pursuant to Section 3.19(a) in connection with
such Prepayment Interest Shortfalls on the Mortgage Loans. For
purposes of calculating the Prepayment Interest Shortfall with respect to the
[__________] Loan, Prepayment Interest Shortfalls will be allocated in
accordance with the [__________] Pooling and Servicing Agreement. The
portion of such shortfall allocated to the [__________] Loan, net of amounts
payable by the [__________] Master Servicer, will be included in the Net
Aggregate Prepayment Interest Shortfall. For purposes of calculating
the Prepayment Interest Shortfall with respect to the [__________] Loan, such
Prepayment Interest Shortfall will be calculated with respect to each of, and
allocated pro rata among, the promissory notes related to the [__________] Loan
and the [__________] Companion Loan. The portion of such shortfall
allocated to the [__________] Loan, net of amounts payable by the Master
Servicer, will be included in the Net Aggregate Prepayment Interest
Shortfall. For purposes of calculating the Prepayment Interest
Shortfall with respect to the Co-Lender Loans (other than the [__________] Loan
and the [__________] Loan), Prepayment Interest Shortfalls will be allocated
first to the promissory note evidencing the related Subordinate Companion Loan,
if any, and second to the promissory note evidencing the related Co-Lender
Loan. The portion of such shortfall allocated to the Co-Lender Loans,
net of amounts payable by the Master Servicer, will be included in the Net
Aggregate Prepayment Interest Shortfall.
“Net Investment
Earnings”: With respect to (i) the Certificate Account,
any Servicing Account, any Special Reserve Account, any Reserve Account or the
REO Account (if any) for any Collection Period and (ii) the Distribution
Account, the Interest Reserve Account,
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the
Additional Interest Account and the Companion Distribution Account (if any) for
the related Distribution Date, the amount, if any, by which the aggregate of all
interest and other income realized during such Collection Period with respect to
the accounts described in clause (i) above and as of such related
Distribution Date with respect to the accounts described in clause
(ii) above on funds held in such accounts, exceeds the aggregate of all
losses, if any, incurred during such Collection Period with respect to the
accounts described in clause (i) above and as of such related Distribution
Date with respect to the accounts described in clause (ii) above in
connection with the investment of such funds in accordance with
Section 3.06.
“Net Investment
Loss”: With respect to (i) the Certificate Account, any
Servicing Account, any Special Reserve Account, any Reserve Account or the REO
Account (if any) for any Collection Period and (ii) the Distribution
Account, the Interest Reserve Account, the Additional Interest Account and the
Companion Distribution Account (if any) for the related Distribution Date, the
amount by which the aggregate of all losses, if any, incurred during such
Collection Period with respect to the accounts described in clause
(i) above and as of such related Distribution Date with respect to the
accounts described in clause (ii) above in connection with the investment
of funds held in such accounts in accordance with Section 3.06, exceeds the
aggregate of all interest and other income realized during such Collection
Period with respect to the accounts described in clause (i) above and as of
such related Distribution Date with respect to the accounts described in clause
(ii) above on such funds.
“Net Mortgage
Rate”: With respect to any Mortgage Loan or any REO Loan, as
of any date of determination, a rate per annum equal to the
related Mortgage Rate minus the sum of the Trustee Fee Rate and the applicable
Master Servicing Fee Rate.
“Net Operating Income” or
“NOI”: As defined in and determined in accordance with the
provisions of Exhibit E attached hereto.
“New
Lease”: Any lease of REO Property entered into at the
direction of the Special Servicer on behalf of REMIC I, including any lease
renewed, modified or extended on behalf of such REMIC if such REMIC has the
right to renegotiate the terms of such lease.
“Nonrecoverable
Advance”: Any Nonrecoverable P&I Advance or Nonrecoverable
Servicing Advance; provided that Workout-Delayed
Reimbursement Amounts shall constitute a Nonrecoverable Advance only when the
Person making such determination in accordance with the procedures specified in
the definition of Nonrecoverable P&I Advance or Nonrecoverable Servicing
Advance, as applicable, and taking into account factors such as all other
outstanding Advances, either (a) has determined in accordance with the
Servicing Standard or the standards applicable to the Trustee as set forth in
the definitions of “Nonrecoverable P&I Advance” and “Nonrecoverable
Servicing Advance” that such Workout-Delayed Reimbursement Amounts would not
ultimately be recoverable from Late Collections, Insurance Proceeds or
Liquidation Proceeds, or any other recovery on or in respect of the related
Mortgage Loan or REO Loan or (b) has determined in accordance with the
Servicing Standard or such other applicable standard that such Workout-Delayed
Reimbursement Amounts, along with any other Workout-Delayed Reimbursement
Amounts and Nonrecoverable Advances, would not ultimately be recoverable from
the portion of Late Collections, Insurance Proceeds or Liquidation Proceeds in
respect of the pool of the Mortgage Loans or REO Loans allocable to
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principal,
or any other recovery on or in respect of the pool of Mortgage Loans or REO
Loans allocable to principal.
“Nonrecoverable P&I
Advance”: Any P&I Advance previously made or proposed to
be made in respect of any Mortgage Loan, the [__________] Companion Loan or any
REO Loan by the Master Servicer or the Trustee, as the case may be, or, in the
case of the [__________] Serviced Mortgage Loan, previously made or proposed to
be made by the [__________] Master Servicer, the Master Servicer or the Trustee,
as applicable, that, as determined by the Master Servicer, the Special Servicer,
the Trustee or the [__________] Master Servicer, as applicable, in accordance
with the Servicing Standard (in the case of the Master Servicer or the Special
Servicer), the “Servicing Standard” as defined in the [__________] Pooling and
Servicing Agreement (in the case of the [__________] Master Servicer) or the
standard of care set forth in Section 8.01(a) (with respect to the
Trustee), as applicable, with respect to such P&I Advance will not be
ultimately recoverable from Late Collections, Insurance Proceeds or Liquidation
Proceeds, or any other recovery on or in respect of such Mortgage Loan,
[__________] Companion Loan, REO Loan or [__________] Serviced Mortgage Loan;
provided that the
Master Servicer will be permitted to conclusively rely upon any such
nonrecoverability determination made by the Special Servicer and, with respect
to the [__________] Loan only, the [__________] Master Servicer.
“Nonrecoverable Servicing
Advance”: Any Servicing Advance previously made or proposed to
be made in respect of a Mortgage Loan, REO Loan or Companion Loan by the Master
Servicer, the Special Servicer or the Trustee, as the case may be, or, in the
case of the [__________] Serviced Mortgage Loan, made by the [__________] Master
Servicer, that, as determined by the Master Servicer, the Special Servicer, the
Trustee or the [__________] Master Servicer, as applicable, in accordance with
the Servicing Standard (in the case of the Master Servicer or the Special
Servicer), the “Servicing Standard” as defined in the [__________] Pooling and
Servicing Agreement (in the case of the [__________] Master Servicer) or the
standard of care set forth in Section 8.01(a) (with respect to the
Trustee), as applicable, will not be ultimately recoverable from Late
Collections, Insurance Proceeds, Liquidation Proceeds, or any other recovery on
or in respect of such Mortgage Loan, Companion Loan, REO Property or the
[__________] Serviced Mortgage Loan, as applicable; provided that the Master
Servicer will be permitted to conclusively rely upon any such nonrecoverability
determination made by the Special Servicer.
“Non-Registered
Certificate”: Unless and until registered under the Securities
Act, Class X-C, Class X-P, Class G, Class H, Class J,
Class K, Class L, Class M, Class N, Class O,
Class P, Class Q, Class S, Class Z, Class R-I or Class R-II
Certificate.
“Non-United States
Person”: Any Person other than a United States
Person.
“Officer’s
Certificate”: A certificate signed by a Servicing Officer of
the Master Servicer or the Special Servicer, as the case may be, or by a
Responsible Officer of the Trustee.
“Opinion of
Counsel”: A written opinion of counsel (which counsel may be a
salaried counsel for the Depositor, the Master Servicer or the Special Servicer)
acceptable to and delivered to the Trustee or the Master Servicer, as the case
may be, except that any opinion of
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counsel
relating to (a) the qualification of REMIC I or REMIC II as a
REMIC; (b) the qualification of the Additional Interest Grantor Trust as a
grantor trust; (c) compliance with the REMIC Provisions or the Grantor
Trust Provisions or (d) the resignation of the Master Servicer or the
Special Servicer pursuant to Section 6.04 must be an opinion of counsel who
is in fact Independent of the Master Servicer, the Special Servicer or the
Depositor, as applicable.
“Option
Price”: As defined in Section 3.18(c).
“Original Class Principal
Balance”: With respect to any Class of Sequential Pay
Certificates, the Original Class Principal Balance thereof as of the Closing
Date, in each case as specified in the Preliminary Statement.
“Original Class X-C
Notional Amount”: $[__________].
“Original Class X-P
Notional Amount”: $[_________].
“Original Notional
Amount”: The Original Class X-C Notional Amount or the
Original Class X-P Notional Amount, as the context requires.
“OTS”: The
Office of Thrift Supervision or any successor thereto.
“Ownership
Interest”: As to any Certificate, any ownership or security
interest in such Certificate as the Holder thereof and any other interest
therein, whether direct or indirect, legal or beneficial, as owner or as
pledgee.
“P&I
Advance”: As to any Mortgage Loan or REO Loan, any advance
made by the Master Servicer or the Trustee pursuant to Section 4.03(a) and
(b) as applicable.
“P&I Advance
Date”: The Business Day immediately preceding each
Distribution Date.
“Pari Passu Companion
Loan”: Each of the [__________] Companion Loan and the
[__________] Companion Loan.
“Pari Passu Mortgage
Loan”: Each of the [__________] Loan and the [__________]
Loan.
“Pass-Through
Rate”: With respect to:
(i) the
Class A-1 Certificates for any Distribution Date, [______]% per annum;
(ii) the
Class A-2 Certificates for any Distribution Date, [______]% per annum;
(iii) the Class
A-3 Certificates for any Distribution Date, [______]% per annum;
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(iv) the
Class A-PB Certificates for any Distribution Date, [______]% per annum;
(v) the Class
A-4 Certificates for any Distribution Date, the lesser of (1) [___]% per annum and (2) the
Weighted Average Net Mortgage Rate for such date;
(vi) the Class
A-5 Certificates for any Distribution Date, the lesser of (1) [___]% per annum
and (2) the Weighted Average Net Mortgage Rate for such date;
(vii) the Class
A-1A Certificates for any Distribution Date, the lesser of (1) [___]% per annum and (2) the
Weighted Average Net Mortgage Rate for such date;
(viii) the Class
A-M Certificates for any Distribution Date, the lesser of (1) [___]% per annum and (2) the
Weighted Average Net Mortgage Rate for such date;
(ix) the
Class A-J Certificates for any Distribution Date, the lesser of
(1) [___]% per
annum and (2) the Weighted Average Net Mortgage Rate for such
date;
(x) the
Class B Certificates for any Distribution Date, the Weighted Average Net
Mortgage Rate for such date minus [____]%;
(xi) the
Class C Certificates for any Distribution Date, the Weighted Average Net
Mortgage Rate for such date minus [____]%;
(xii) the
Class D Certificates for any Distribution Date, the Weighted Average Net
Mortgage Rate for such date minus [____]%;
(xiii) the
Class E Certificates for any Distribution Date, the Weighted Average Net
Mortgage Rate for such date
minus [____]%;
(xiv) the
Class F Certificates for any Distribution Date, the Weighted Average Net
Mortgage Rate for such date;
(xv) the
Class G Certificates for any Distribution Date, the Weighted Average Net
Mortgage Rate for such date;
(xvi) the
Class H Certificates for any Distribution Date, the Weighted Average Net
Mortgage Rate for such date;
(xvii) the
Class J Certificates for any Distribution Date, the Weighted Average Net
Mortgage Rate for such date;
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(xviii) the
Class K Certificates for any Distribution Date, the Weighted Average Net
Mortgage Rate for such date;
(xix) the
Class L Certificates for any Distribution Date, the lesser of
(1) [___]% per
annum and (2) the Weighted Average Net Mortgage Rate for such
date;
(xx) the
Class M Certificates for any Distribution Date, the lesser of
(1) [___]% per
annum and (2) the Weighted Average Net Mortgage Rate for such
date;
(xxi) the
Class N Certificates for any Distribution Date, the lesser of
(1) [___]% per
annum and (2) the Weighted Average Net Mortgage Rate for such
date;
(xxii) the
Class O Certificates for any Distribution Date, the lesser of
(1) [___]% per
annum and (2) the Weighted Average Net Mortgage Rate for such
date;
(xxiii) the
Class P Certificates for any Distribution Date, the lesser of
(1) [___]% per
annum and (2) the Weighted Average Net Mortgage Rate for such
date;
(xxiv) the Class
Q Certificates for any Distribution Date, the lesser of (1) [___]% per annum and (2) the Weighted
Average Net Mortgage Rate for such date;
(xxv) the Class
S Certificates for any Distribution Date, the lesser of (1) [____]% per annum and (2) the
Weighted Average Net Mortgage Rate for such date;
(xxvi) the
Class X-C Certificates (1) for the initial Distribution Date, [___]% per annum, and (2) for any
subsequent Distribution Date, the weighted average of the Class X-C Strip
Rates for the respective Class X-C Components for such Distribution Date; provided, however, that the
Pass-Through Rate applicable to the Class X-C Certificates, in no circumstance
shall be less than zero;
(xxvii) the
Class X-P Certificates for the initial Distribution Date, [___]% per annum, and for any
subsequent Distribution Date, the weighted average of the Class X-P Strip
Rates for the respective Class X-P Components for such Distribution Date
(weighted on the basis of the respective Component Notional Amounts of such
Components outstanding immediately prior to such Distribution
Date).
“Paying
Agent”: The paying agent appointed pursuant to
Section 8.16. If no such paying agent has been appointed or if
such paying agent has been so appointed but the Trustee has terminated such
appointment, then the Trustee shall be the Paying Agent.
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“Penalty
Interest”: With respect to any Mortgage Loan or Companion Loan
(or successor REO Loan), any amounts collected thereon, other than late payment
charges, Additional Interest, Prepayment Premiums or Yield Maintenance Charges,
that represent penalty interest (arising out of a default) in excess of interest
on the Stated Principal Balance of such Mortgage Loan or Companion Loan (or
successor REO Loan) accrued at the related Mortgage Rate.
“Percentage
Interest”: With respect to any Regular Certificate, the
portion of the relevant Class evidenced by such Certificate, expressed as a
percentage, the numerator of which is the Certificate Principal Balance or
Certificate Notional Amount, as the case may be, of such Certificate as of the
Closing Date, as specified on the face thereof, and the denominator of which is
the Original Class Principal Balance or Original Notional Amount, as the case
may be, of the relevant Class. With respect to a Residual Certificate
or Class Z Certificate, the percentage interest in distributions to be made
with respect to the relevant Class, as stated on the face of such
Certificate.
“Periodic
Payment”: With respect to any Mortgage Loan or Companion Loan
as of any Due Date, the scheduled payment of principal and/or interest on such
Mortgage Loan or Companion Loan (exclusive of Additional Interest), including
any Balloon Payment, that is actually payable by the related Mortgagor from time
to time under the terms of the related Mortgage Note (as such terms may be
changed or modified in connection with a bankruptcy or similar proceeding
involving the related Mortgagor or by reason of a modification, waiver or
amendment granted or agreed to by the Special Servicer pursuant to
Section 3.20).
“Permitted
Investments”: Any one or more of the following obligations or
securities (including obligations or securities of the Trustee if otherwise
qualifying hereunder):
(i) direct
obligations of, or obligations fully guaranteed as to timely payment of
principal and interest by, the United States or any agency or instrumentality
thereof (having original maturities of not more than 365 days); provided such obligations are
backed by the full faith and credit of the United States. Such
obligations must be limited to those instruments that have a predetermined fixed
dollar amount of principal due at maturity that cannot vary or change or be
liquidated prior to maturity. Interest may either be fixed or
variable. If such interest is variable, interest must be
tied to a single interest rate index plus a single fixed spread
(if any), and move proportionately with that index;
(ii) repurchase
obligations with respect to any security described in clause (i) above
(having original maturities of not more than 365 days); provided that the short-term
deposit or debt obligations, of the party agreeing to repurchase such
obligations are rated in the highest rating categories of each of S&P and
Xxxxx’x or such lower rating as will not result in qualification, downgrading or
withdrawal of the ratings then assigned to the Certificates, as evidenced in
writing by the Rating Agencies. In addition, its terms must have a
predetermined fixed dollar amount of principal due at maturity that cannot vary
or change. Interest may either be fixed or variable. If
such interest is variable, interest must be tied to
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a single
interest rate index plus a single fixed spread
(if any), and move proportionately with that index;
(iii) certificates
of deposit, time deposits, demand deposits and bankers’ acceptances of any bank
or trust company organized under the laws of the United States or any state
thereof (having original maturities of not more than 365 days), the short term
obligations of which are rated in the highest rating categories of each of
S&P and Xxxxx’x or such lower rating as will not result in qualification,
downgrading or withdrawal of the ratings then assigned to the Certificates, as
evidenced in writing by the Rating Agencies. In addition, its terms
should have a predetermined fixed dollar amount of principal due at maturity
that cannot vary or change. In addition, its terms must have a
predetermined fixed dollar amount of principal due at maturity that cannot vary
or change. Interest may either be fixed or variable. If
such interest is variable, interest must be tied to a single interest rate index
plus a single fixed
spread (if any), and move proportionately with that index;
(iv) commercial
paper (having original maturities of not more than 365 days) of any
corporation incorporated under the laws of the United States or any state
thereof (or if not so incorporated, the commercial paper is United States Dollar
denominated and amounts payable thereunder are not subject to any withholding
imposed by any non-United States jurisdiction) which is rated in the highest
rating category of each of S&P and Xxxxx’x or such lower rating as will not
result in qualification, downgrading or withdrawal of the ratings then assigned
to the Certificates, as evidenced in writing by the Rating
Agencies. The commercial paper by its terms must have a predetermined
fixed dollar amount of principal due at maturity that cannot vary or
change. Interest may either be fixed or variable. If such
interest is variable, interest must be tied to a single interest rate index
plus a single fixed
spread (if any), and move proportionately with that index;
(v) units of
money market funds that maintain a constant asset value and which are rated in
the highest applicable rating category by Xxxxx’x and which are rated “AAAm” or
“AAAm G” by S&P (or such lower rating as will not result in qualification,
downgrading or withdrawal of the ratings then assigned to the Certificates, as
evidenced in writing by the Rating Agencies) and which seeks to maintain a
constant net asset value. In addition, its terms must have a
predetermined fixed dollar amount of principal due at maturity that cannot vary
or change; and
(vi) any other
obligation or security that constitutes a “cash flow investment”
within the meaning of Section 860G(a)(6) of the Code and is acceptable to
each Rating Agency, evidence of which acceptability shall be provided in writing
by each Rating Agency to the Master Servicer, the Special Servicer and the
Trustee; provided,
however, in no event
shall such other obligation or security be rated less than “AA/A-1” or “Aa3/P+” by S&P or
Xxxxx’x, respectively;
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provided that (1) no
investment described hereunder shall evidence either the right to receive
(x) only interest with respect to such investment or (y) a yield to
maturity greater than 120% of the yield to maturity at par of the underlying
obligations; and (2) no investment described hereunder may be purchased at a
price greater than par if such investment may be prepaid or called at a price
less than its purchase price prior to stated maturity.
“Permitted
Transferee”: Any Transferee of a Residual Certificate other
than a Disqualified Organization, a Plan, a Disqualified Non-United States
Person, a partnership any partner of which, directly or indirectly, is a
Disqualified Non-United States Person or a United States Person with respect to
whom income on the Residual Certificate is allocable to a foreign permanent
establishment or fixed base, within the meaning of an applicable income tax
treaty, of such Person or any other United States Person.
“Person”: Any
individual, corporation, partnership, joint venture, association, joint-stock
company, limited liability company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
“Plan”: As
defined in Section 5.02(c).
“Plurality Residual
Certificateholder”: As to any taxable year of
(i) REMIC I or (ii) REMIC II, the Holder of Certificates
holding the largest Percentage Interest of the related Class of Residual
Certificates.
“Preliminary
Memorandum”: As defined in the Mortgage Loan Purchase
Agreement.
“Preliminary Prospectus
Supplement”: As defined in the Mortgage Loan Purchase
Agreement.
“Prepayment
Assumption”: For purposes of determining the accrual of
original issue discount, market discount and premium, if any, on the
Certificates for federal income tax purposes, 0% CPR (within the meaning of the
Prospectus), except that it is assumed that each ARD Loan is repaid on its
Anticipated Repayment Date.
“Prepayment Interest
Excess”: With respect to any Mortgage Loan that was subject to
a Principal Prepayment in full or in part during any Collection Period, which
Principal Prepayment was applied to such Mortgage Loan following such Mortgage
Loan’s Due Date in such Collection Period, the amount of interest (net of the
related Master Servicing Fee and, if applicable, the Additional Interest)
accrued on the amount of such Principal Prepayment during the period from and
after such Due Date and ending on the date such Principal Prepayment was applied
to such Mortgage Loan, to the extent collected (exclusive of any related
Prepayment Premium or Yield Maintenance Charge actually collected).
“Prepayment Interest
Shortfall”: With respect to any Mortgage Loan that was subject
to a Principal Prepayment in full or in part during any Collection Period, which
Principal Prepayment was applied to such Mortgage Loan prior to such Mortgage
Loan’s Due Date in such Collection Period, the amount of interest, to the extent
not collected from the related Mortgagor (without regard to any Prepayment
Premium or Yield Maintenance Charge actually collected),
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that
would have accrued at a rate per annum equal to the sum of
(x) the related Net Mortgage Rate for such Mortgage Loan and (y) the
Trustee Fee Rate on the amount of such Principal Prepayment during the period
commencing on the date as of which such Principal Prepayment was applied to such
Mortgage Loan and ending on the day immediately preceding such Due Date,
inclusive.
“Prepayment
Premium”: Any premium, penalty or fee (other than a Yield
Maintenance Charge) paid or payable, as the context requires, by a Mortgagor in
connection with a Principal Prepayment.
“Primary
Collateral”: With respect to any Crossed Loan, that portion of
the Mortgaged Property designated as directly securing such Crossed Loan and
excluding any Mortgaged Property as to which the related lien may only be
foreclosed upon by exercise of the cross-collateralization provisions of such
Crossed Loan.
“Prime
Rate”: The “prime rate” published
in the “Money
Rates” section of The Wall Street Journal, as such “prime rate” may
change from time to time. If The Wall Street Journal
ceases to publish the “prime rate,” then the
Master Servicer shall select an equivalent publication that publishes such
“prime rate”;
and if such “prime
rate” is no longer generally published or is limited, regulated or
administered by a governmental or quasi-governmental body, then the Master
Servicer shall select a comparable interest rate index. In either
case, such selection shall be made by the Master Servicer in its sole discretion
and the Master Servicer shall notify the Trustee and the Special Servicer in
writing of its selection.
“Principal Distribution
Amount”: With respect to any Distribution Date, the aggregate
of the following:
(a) the
aggregate of the principal portions of all Scheduled Payments (other than
Balloon Payments) and any Assumed Scheduled Payments due or deemed due in
respect of the Mortgage Loans for their respective Due Dates occurring during
the related Collection Period, to the extent not previously received or advanced
with respect to a Distribution Date prior to the related Collection
Period;
(b) the
aggregate of all Principal Prepayments received on the Mortgage Loans during the
related Collection Period;
(c) with
respect to any Mortgage Loan as to which the related Stated Maturity Date
occurred during or prior to the related Collection Period, any payment of
principal (other than a Principal Prepayment) made by or on behalf of the
related Mortgagor during the related Collection Period (including any Balloon
Payment), in each case net of any portion of such payment that represents a
recovery of the principal portion of any Scheduled Payment (other than a Balloon
Payment) due, or the principal portion of any Assumed Scheduled Payment deemed
due, in respect of such Mortgage Loan on a Due Date during or prior to the
related Collection Period and not previously recovered;
(d) the
aggregate of the principal portion of all Liquidation Proceeds, Insurance
Proceeds and, to the extent not otherwise included in clause (a), (b) or
(c) above, payments that were received on the related Mortgage Loans during
the related
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Collection
Period and that were identified and applied by the Master Servicer and/or
Special Servicer as recoveries of principal of such Mortgage Loans, in each case
net of any portion of such amounts that represents a recovery of the principal
portion of any Scheduled Payment (other than a Balloon Payment) due, or of the
principal portion of any Assumed Scheduled Payment deemed due, in respect of the
related Mortgage Loan on a Due Date during or prior to the related Collection
Period and not previously recovered;
(e) with
respect to any REO Properties, the aggregate of the principal portions of all
Assumed Scheduled Payments deemed due in respect of the related REO Loans for
their respective Due Dates occurring during the related Collection
Period;
(f) with
respect to any REO Properties, the aggregate of all Liquidation Proceeds,
Insurance Proceeds and REO Revenues that were received during the related
Collection Period on such REO Properties and that were identified and applied by
the Master Servicer and/or Special Servicer as recoveries of principal of the
related REO Loans, in each case net of any portion of such amounts that
represents a recovery of the principal portion of any Scheduled Payment (other
than a Balloon Payment) due, or of the principal portion of any Assumed
Scheduled Payment deemed due, in respect of the related REO Loan or the
predecessor Mortgage Loan on a Due Date during or prior to the related
Collection Period and not previously recovered;
(g) if such
Distribution Date is subsequent to the initial Distribution Date, the excess, if
any, of the Principal Distribution Amount for the immediately preceding
Distribution Date, over the aggregate distributions of principal made on the
Sequential Pay Certificates on such immediately preceding Distribution Date
pursuant to Section 4.01;
(h) any
amounts that were used to reimburse Nonrecoverable Advances (including interest
on such Nonrecoverable Advances) from principal collections on the Mortgage
Loans pursuant to Section 3.05(a) hereof which are subsequently
recovered on the related Mortgage Loan with respect to the Distribution Date
related to the period in which such recovery occurs;
(i) any
amounts that were used to reimburse Workout-Delayed Reimbursement Amounts
(including interest on such Workout-Delayed Reimbursement Amounts) from
principal collections on the Mortgage Loans pursuant to
Section 3.05(a) hereof which are subsequently recovered on the related
Mortgage Loan with respect to the Distribution Date related to the period in
which such recovery occurs, less;
(j) the
amount of any reimbursements of (i) Nonrecoverable Advances (including
interest on such Nonrecoverable Advances) that are paid or reimbursed from
principal collections on the Mortgage Loans pursuant to
Section 3.05(a) hereof with respect to such Distribution Date and
(ii) Workout-Delayed Reimbursement Amounts (including interest on such
Workout-Delayed Reimbursement Amounts) that are paid or reimbursed from
principal collections on the Mortgage Loans pursuant to
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Section 3.05(a) hereof
with respect to such Distribution Date, in each case where such principal
collections would have otherwise been included in the Principal Distribution
Amount for such Distribution Date.
“Principal
Prepayment”: Any payment of principal made by the Mortgagor on
a Mortgage Loan or Companion Loan that is received in advance of its scheduled
Due Date; provided that
it shall not include a payment of principal that is accompanied by an amount of
interest representing scheduled interest due on any date or dates in any month
or months subsequent to the month of prepayment.
“Privileged
Person”: Any Certificateholder, Certificate Owner, any Person
identified to the Trustee or the Master Servicer, as applicable, as a
prospective transferee of a Certificate or interest therein, any Rating Agency,
any Mortgage Loan Seller, any Companion Holders, any party hereto, any
Underwriter or any designee of the Depositor; provided that no Certificate
Owner or prospective transferee of a Certificate or interest therein shall be
considered a “Privileged Person” or
be entitled to a password or restricted access as contemplated by
Section 3.15 or Section 4.02 unless such Person has delivered to the
Trustee or the Master Servicer, as applicable, a certification in the form of
Exhibit K-1 or Exhibit K-2, as applicable which certification is available on
the Trustee’s Internet Website.
“Proposed
Plan”: As defined in Section 3.17(a)(iii).
“Prospectus”: The
prospectus dated [__________], as supplemented by the Prospectus Supplement,
relating to the Registered Certificates.
“Prospectus
Supplement”: The final prospectus supplement dated
[__________] of the Depositor relating to the registration of the Registered
Certificates under the Securities Act.
“PTE
95-60”: As defined in Section 5.02(c).
“Purchase
Option”: As defined in Section 3.18(c).
“Purchase Option
Notice”: As defined in Section 3.18(e).
“Purchase
Price”: With respect to any Mortgage Loan or REO Loan
purchased by the Mortgage Loan Seller pursuant to the applicable Mortgage Loan
Purchase Agreement, by the Majority Subordinate Certificateholder, the Companion
Holder or the Special Servicer as described in Section 3.18(c),
3.18(d) or 3.18(e), or by the Depositor, the Special Servicer, the Majority
Subordinate Certificateholder or the Master Servicer pursuant to
Section 9.01, a cash price equal to the outstanding principal balance of
such Mortgage Loan or REO Loan, as of the date of purchase, together with
(a) all accrued and unpaid interest on such Mortgage Loan or REO Loan at
the related Mortgage Rate to but not including the Due Date in the Collection
Period of purchase plus any accrued
interest on P&I Advances made with respect to such Mortgage Loan,
(b) all related and unreimbursed Servicing Advances plus any accrued and
unpaid interest thereon, (c) any reasonable costs and expenses, including,
but not limited to, the cost of any enforcement action, incurred by the Master
Servicer, the Special Servicer or the Trust Fund in connection with any such
purchase by a Mortgage Loan Seller (to the extent not
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included
in clause (b) above) and (d) any other Additional Trust Fund Expenses
in respect of such Mortgage Loan (including any Additional Trust Fund Expenses
previously reimbursed or paid by the Trust Fund but not so reimbursed by the
related Mortgagor or other party or from Insurance Proceeds or condemnation
proceeds or any other collections in respect of the Mortgage Loan or the related
Mortgaged Property from a source other than the Trust Fund), or in the case of
any Loan Pair, the purchase price specified in the related Intercreditor
Agreement; provided
that the Purchase Price shall not be reduced by any outstanding P&I
Advance.
“Qualified
Bidder”: As defined in Section 7.01(c).
“Qualified Institutional
Buyer”: A qualified institutional buyer within the meaning of
Rule 144A under the Securities Act.
“Qualified
Insurer”: An insurance company or security or bonding company
qualified to write the related Insurance Policy in the relevant jurisdiction
(i) with a minimum insurance financial strength or claims paying ability
rating of at least [“A3” by Xxxxx’x], and
[“A” by
S&P] (or the obligations of which are guaranteed or backed by a company
having such a claims paying ability), and (ii) with respect to the fidelity
bond and errors and omissions Insurance Policy required to be maintained
pursuant to Section 3.07(c), an insurance company that has a claims paying
ability rated no lower than two rating categories (without regard to pluses or
minuses or numerical qualifications) below the rating assigned to the then
highest rated outstanding Certificate, but in no event lower than [“A” by
S&P] and [“A3” by Xxxxx’x (or,
if not rated by Xxxxx’x, then at least “A” by two other
nationally recognized statistical rating organizations (which may include
S&P)]), or, in the case of clauses (i) and (ii), such other rating as
each Rating Agency shall have confirmed in writing will not cause such Rating
Agency to downgrade, qualify or withdraw the then-current rating assigned to any
of the Certificates that are then currently being rated by such Rating
Agency .
“Qualified Substitute
Mortgage Loan”: A mortgage loan which must, on the date of
substitution: (i) have an outstanding Stated Principal Balance,
after application of all scheduled payments of principal and interest due during
or prior to the month of substitution, not in excess of the Stated Principal
Balance of the deleted Mortgage Loan as of the Due Date in the calendar month
during which the substitution occurs; (ii) have a Mortgage Rate not less
than the Mortgage Rate of the deleted Mortgage Loan; (iii) have the same
Due Date as the deleted Mortgage Loan; (iv) accrue interest on the same
basis as the deleted Mortgage Loan (for example, on the basis of a 360-day year
consisting of twelve 30-day months); (v) have a remaining term to stated
maturity not greater than, and not more than two years less than, the remaining
term to stated maturity of the deleted Mortgage Loan; (vi) have an original
Loan-to-Value Ratio not higher than that of the deleted Mortgage Loan and a
current Loan-to-Value Ratio not higher than the then current Loan-to-Value Ratio
of the deleted Mortgage Loan; (vii) comply as of the date of substitution
with all of the representations and warranties set forth in the applicable
Mortgage Loan Purchase Agreement; (viii) have an Environmental Assessment
that indicates no adverse environmental conditions with respect to the related
Mortgaged Property and which will be delivered as a part of the related
Servicing File; (ix) have an original Debt Service Coverage Ratio
(calculated to include the additional debt from any encumbrance) of not less
than the original Debt Service Coverage Ratio (calculated to include the
additional debt from any encumbrance) of the deleted Mortgage Loan and a current
Debt Service Coverage
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Ratio
(calculated to include the additional debt from any encumbrance) of not less
than the current Debt Service Coverage Ratio (calculated to include the
additional debt from any encumbrance) of the deleted Mortgage Loan; (x) be
determined by an Opinion of Counsel (at the applicable Mortgage Loan Seller’s
expense) to be a “qualified replacement
mortgage” within the meaning of Section 860G(a)(4) of the Code;
(xi) not have a maturity date after the date two years prior to the Rated
Final Distribution Date; (xii) not be substituted for a deleted Mortgage
Loan unless the Trustee has received prior confirmation in writing by each
Rating Agency that such substitution will not result in the withdrawal,
downgrade, or qualification of the rating assigned by the Rating Agency to any
Class of Certificates then rated by the Rating Agency (the cost, if any, of
obtaining such confirmation to be paid by the Mortgage Loan Seller); (xiii) have
a date of origination that is not more than 12 months prior to the date of
substitution; (xiv) have been approved by the Controlling Class Representative
(or, if there is no Controlling Class Representative then serving, by the
Holders of Certificates representing a majority of the Voting Rights allocated
to the Controlling Class); (xv) not be substituted for a deleted Mortgage Loan
if it would result in the termination of the REMIC status of REMIC I
or REMIC II or the imposition of tax on either of such REMICs other than a
tax on income expressly permitted or contemplated to be received by the terms of
this Agreement, as determined by an Opinion of Counsel (at the applicable
Mortgage Loan Seller’s expense); and (xvi) become a part of the same Loan Group
as the deleted Mortgage Loan. In the event that one or more mortgage
loans are substituted for one or more deleted Mortgage Loans, then the amounts
described in clause (i) shall be determined on the basis of aggregate
principal balances and the rates described in clause (ii) above and the
remaining term to stated maturity referred to in clause (v) above shall be
determined on a weighted average basis; provided that no individual
Mortgage Loan shall have a Net Mortgage Rate that is less than the highest
Pass-Through Rate of any Class of Sequential Pay Certificates bearing a fixed
rate. When a Qualified Substitute Mortgage Loan is substituted for a
deleted Mortgage Loan, the applicable Mortgage Loan Seller shall certify that
the Mortgage Loan meets all of the requirements of the above definition and
shall send such certification to the Trustee. No substitutions will
be permitted for the [__________] Loan.
“Rated Final Distribution
Date”: The Distribution Date in [_________], the first
Distribution Date after the 24th month following the end of the amortization
term for the Mortgage Loan that, as of the Cut-Off Date, has the longest
remaining amortization term (without regard to the related Stated Maturity
Date).
“Rating
Agency”: Each of [__________][,] [and] [__________][,] [and]
[__________] .
“Realized
Loss”: With respect to: (1) each Defaulted Mortgage
Loan as to which a Final Recovery Determination has been made, or with respect
to any successor REO Loan as to which a Final Recovery Determination has been
made as to the related REO Property, an amount (not less than zero) equal to
(a) the unpaid principal balance of such Mortgage Loan or REO Loan, as the
case may be, as of the commencement of the Collection Period in which the Final
Recovery Determination was made, plus (b) without taking
into account the amount described in subclause (1)(d) of this definition,
all accrued but unpaid interest on such Mortgage Loan or such REO Loan, as the
case may be, at the related Mortgage Rate to but not including the Due Date in
the Collection Period in which the Final Recovery Determination was made
(exclusive of any portion thereof that constitutes default interest in excess of
the Mortgage Rate, Additional
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Interest,
Prepayment Premiums or Yield Maintenance Charges), plus (c) any related
unreimbursed Servicing Advances and any unreimbursed interest on any Advances as
of the commencement of the Collection Period in which the Final Recovery
Determination was made, together with any new related Servicing Advances made
during such Collection Period, minus (d) all payments
and proceeds, if any, received in respect of such Mortgage Loan or the REO
Property that relates to such REO Loan, as the case may be, during the
Collection Period in which such Final Recovery Determination was made; (2) each
defaulted Mortgage Loan as to which any portion of the principal or previously
accrued interest (other than Additional Interest and Penalty Interest) payable
thereunder was canceled in connection with a bankruptcy or similar proceeding
involving the related Mortgagor or a modification, waiver or amendment of such
Mortgage Loan granted or agreed to by the Special Servicer pursuant to
Section 3.20, the amount of such principal and/or interest so canceled; (3)
each Mortgage Loan as to which the Mortgage Rate thereon has been permanently
reduced and not recaptured for any period in connection with a bankruptcy or
similar proceeding involving the related Mortgagor or a modification, waiver or
amendment of such Mortgage Loan granted or agreed to by the Special Servicer
pursuant to Section 3.20, the amount of the consequent reduction in the
interest portion of each successive Periodic Payment due thereon (each such
Realized Loss shall be deemed to have been incurred on the Due Date for each
affected Periodic Payment); and (4) each Mortgage Loan for which a Final
Recovery Determination has been made, to the extent not included in clause (1)
above, Nonrecoverable Advances (including interest on such Nonrecoverable
Advance) to the extent amounts have been paid from the Principal Distribution
Amount pursuant to Section 3.05(a) hereof.
“Record
Date”: With respect to any Distribution Date, the last
Business Day of the month immediately preceding the month in which such
Distribution Date occurs.
“Registered
Certificate”: Any Class A-1, Class A-2, Class A-3,
Class A-PB, Class A-4, Class A-5, Class A-1A, Class A-M,
Class A-J, Class B, Class C, Class D, Class E or
Class F Certificate.
“Regular
Certificate”: Any REMIC II Certificate other than a
Class R-II Certificate.
“Regulation
AB”: Subpart 229.1100 – Asset Backed Securities (Regulation
AB), 17 C.F.R. §§229.1100-229.1123, as such may be amended from time to time,
and subject to such clarification and interpretation as have been provided by
the Commission in the adopting release (Asset-Backed Securities, Securities Act
Release No. 33-8518, 70 Fed. Reg. 1,506 - 1,631 (January 7, 2005)) or by the
staff of the Commission, or as may be provided by the Commission or its staff
from time to time.
“Regulation AB Companion Loan
Securitization”: As defined in Section
3.30(a).
“Reimbursement
Rate”: The rate per annum applicable to the
accrual of interest on Servicing Advances in accordance with Section 3.03(d) and
on P&I Advances in accordance with Section 4.03(d), which rate per annum is equal to the
Prime Rate.
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“Relevant Servicing
Criteria”: The Servicing Criteria applicable to the various
parties, as set forth on Exhibit S attached
hereto. For clarification purposes, multiple parties can have
responsibility for the same Relevant Servicing Criteria. With respect
to a Servicing Participant engaged by the Trustee, the Master Servicer or the
Special Servicer, the term “Relevant Servicing Criteria” may refer to a portion
of the Relevant Servicing Criteria applicable to the Master Servicer, the
Special Servicer or the Trustee.
“REMIC”: A
“real estate mortgage
investment conduit” as defined in Section 860D of the
Code.
“REMIC Administrator”: The
Trustee or any REMIC administrator appointed pursuant to
Section 8.14.
“REMIC I”: The
segregated pool of assets subject hereto, constituting the primary trust created
hereby and to be administered hereunder with respect to which a separate
REMIC election is to be made and, consisting of: (i) all of
the Mortgage Loans as from time to time are subject to this Agreement and all
payments under and proceeds of such Mortgage Loans received after the Closing
Date (excluding all Additional Interest on such Mortgage Loans), together with
all documents included in the related Mortgage Files and any related Escrow
Payments and Reserve Funds; (ii) all amounts held from time to time with
respect to a Mortgage Loan in the Interest Reserve Account, the Certificate
Account, the Distribution Account, the Gain-on-Sale Reserve Account and any REO
Account; (iii) any REO Property acquired in respect of a Mortgage Loan (or
the Trust Fund’s beneficial interest in the Mortgaged Property securing the
[__________] Loan acquired under the [__________] Pooling and Servicing
Agreement); (iv) the rights of the Depositor under Sections 2, 3, 9, 10,
11, 12, 13, 14, 16, 17, 18 and 19 of each of the Mortgage Loan Purchase
Agreements with respect to such Mortgage Loans; and (v) the rights of the
mortgagee under all Insurance Policies with respect to such Mortgage Loans, in
each of the foregoing clauses exclusive of the interest of the holder of a
Companion Loan therein.
“REMIC I Pass-Through
Rate”: As set forth in the Preliminary Statement.
“REMIC I Principal
Balance”: The principal balance of any REMIC I Regular
Interest outstanding as of any date of determination. As of the
Closing Date, the REMIC I Principal Balance of each REMIC I Regular
Interest shall equal the original REMIC I Principal Balance as set forth in
the Preliminary Statement hereto. On each Distribution Date, the
REMIC I Principal Balance of each REMIC I Regular Interest shall be
permanently reduced by all distributions of principal deemed to have been made
in respect of such REMIC I Regular Interest on such Distribution Date
pursuant to Section 4.01(h), and shall be further permanently reduced on
such Distribution Date by all Realized Losses and Additional Trust Fund Expenses
deemed to have been allocated thereto on such Distribution Date pursuant to
Section 4.04(b) and shall be increased on such Distribution Date by
Certificate Deferred Interest deemed to have been allocated thereto on such
Distribution Date pursuant to Section 4.04(c).
“REMIC I Regular
Interest”: Any of the separate uncertificated beneficial
ownership interests in REMIC I issued hereunder, and designated as a “regular interest” in
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REMIC I,
held as an asset of REMIC II and having the original REMIC I Principal
Balance and REMIC I Pass-Through Rate as described in the Preliminary
Statement hereto.
“REMIC II”: The
segregated pool of assets consisting of all of the REMIC I Regular
Interests and all amounts held from time to time, to the extent related to
REMIC II, in the Distribution Account, conveyed in trust to the Trustee for
the benefit of REMIC II, as holder of the REMIC I Regular Interests,
and the Holders of the Class R-II Certificates pursuant to
Section 2.10, with respect to which a separate REMIC election is to be
made.
“REMIC II
Certificate”: Any Class A-1, Class A-2, Class A-3,
Class A-PB, Class A-4, Class A-5, Class A-1A, Class A-M,
Class A-J, Class B, Class C, Class D, Class E,
Class F, Class G, Class H, Class J, Class K,
Class L, Class M, Class N, Class O, Class P, Class Q,
Class S, Class X-C, Class X-P or Class R-II
Certificate.
“REMIC
Provisions”: Provisions of the federal income tax law relating
to real estate mortgage investment conduits, which appear at Sections 860A
through 860G of Subchapter M of Chapter 1 of the Code, and related provisions,
and proposed, temporary and final Treasury regulations and any published
rulings, notices and announcements promulgated thereunder, as the foregoing may
be in effect from time to time.
“Rents from Real
Property”: With respect to any REO Property, gross income of
the character described in Section 856(d) of the Code.
“REO
Account”: A segregated account or accounts created and
maintained by the Special Servicer pursuant to Section 3.16 on behalf of
the Trustee in trust for the Certificateholders, which shall be entitled
“[__________], as Special Servicer, in trust for the registered holders of Xxxxx
Fargo Commercial Mortgage Trust, Commercial Mortgage Pass-Through Certificates,
Series [__________].”
“REO
Acquisition”: The acquisition of any REO Property by the Trust
Fund pursuant to Section 3.09.
“REO
Disposition”: The sale or other disposition of any REO
Property pursuant to Section 3.18(h).
“REO
Extension”: As defined in Section 3.16(a).
“REO
Loan”: The Mortgage Loan deemed for purposes hereof to be
outstanding with respect to each REO Property (or, with respect to the
[__________] Loan, the Trust Fund’s proportionate beneficial interest in the
Mortgaged Property acquired by the [__________] Trustee pursuant to the
[__________] Pooling and Servicing Agreement). Each REO Loan shall be
deemed to be outstanding for so long as the related REO Property remains part of
REMIC I and deemed to provide for Periodic Payments of principal and/or
interest equal to its Assumed Scheduled Payment and otherwise to have the same
terms and conditions as its predecessor Mortgage Loan (such terms and conditions
to be applied without regard to the default on such predecessor Mortgage Loan
and the acquisition of the related REO Property as part of the Trust
Fund). Each REO Loan shall be deemed to have an initial unpaid
principal balance and Stated Principal Balance equal to the unpaid principal
balance and Stated Principal Balance,
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respectively,
of its predecessor Mortgage Loan (or, if applicable, Companion Loan) as of the
date of the related REO Acquisition. All Scheduled Payments (other
than a Balloon Payment), Assumed Scheduled Payments (in the case of a Balloon
Mortgage Loan delinquent in respect of its Balloon Payment) and other amounts
due and owing, or deemed to be due and owing, in respect of the predecessor
Mortgage Loan as of the date of the related REO Acquisition, shall be deemed to
continue to be due and owing in respect of an REO Loan. In addition,
Nonrecoverable Advances and Unliquidated Advances (including interest on such
Nonrecoverable Advances and Unliquidated Advances) with respect to such REO Loan
that were paid from collections on the Mortgage Loans and resulted in principal
distributed to the Certificateholders being reduced pursuant to
Section 3.05(a) hereof, shall be deemed outstanding until recovered or
until a Final Recovery Determination is made. Collections in respect
of each REO Loan (after provision for amounts to be applied to the payment of,
or to be reimbursed to the Master Servicer, the Special Servicer or the Trustee
for the payment of, the costs of operating, managing, selling, leasing and
maintaining the related REO Property or for the reimbursement of the Master
Servicer, the Special Servicer or the Trustee for Advances as provided in this
Agreement) shall be treated: first, as a recovery of
Nonrecoverable Advances and Unliquidated Advances (including interest on such
Nonrecoverable Advances or Unliquidated Advances) with respect to such REO Loan,
in each case that relate to Advances that were paid from collections on the
Mortgage Loans and resulted in principal distributed to the Certificateholders
being reduced pursuant to Section 3.05(a) hereof; second, as a recovery of
accrued and unpaid interest on such REO Loan at the related Mortgage Rate to but
not including the Due Date in the Collection Period of receipt (exclusive of any
portion thereof that constitutes Additional Interest); third, as a recovery of
principal of such REO Loan to the extent of its entire unpaid principal balance;
and fourth, in
accordance with the normal servicing practices of the Master Servicer, as a
recovery of any other amounts due and owing in respect of such REO Loan,
including, without limitation, (i) Yield Maintenance Charges, Prepayment
Premiums and Penalty Interest and (ii) Additional Interest and other
amounts, in that order. Notwithstanding the foregoing, all amounts
payable or reimbursable to the Master Servicer, the Special Servicer or the
Trustee in respect of the predecessor Mortgage Loan as of the date of the
related REO Acquisition, including, without limitation, any unpaid Servicing
Fees and any unreimbursed Servicing Advances and P&I Advances, together with
any interest accrued and payable to the Master Servicer, the Special Servicer or
the Trustee in respect of such Servicing Advances and P&I Advances in
accordance with Sections 3.03(d) and 4.03(d), shall continue to be payable
or reimbursable to the Master Servicer, the Special Servicer or the Trustee, as
the case may be, in respect of an REO Loan pursuant to
Section 3.05(a).
“REO
Property”: A Mortgaged Property acquired on behalf and in the
name of the Trustee (or, in the case of the [__________] Loan, the Trust Fund’s
proportionate beneficial interest in the Mortgaged Property acquired by the
[__________] Trustee pursuant to the [__________] Pooling and Servicing
Agreement) for the benefit of the Certificateholders (subject to the related
Intercreditor Agreement with respect to a Mortgaged Property securing a Loan
Pair) through foreclosure, acceptance of a deed-in-lieu of foreclosure or
otherwise in accordance with applicable law in connection with the default or
imminent default of a Mortgage Loan.
“REO
Revenues”: All income, rents, profits and proceeds derived
from the ownership, operation or leasing of any REO Property.
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“REO
Tax”: As defined in Section 3.17(a)(i).
“Reportable
Event”: As defined in Section 8.17(j).
“Reporting
Party”: The Master Servicer, the Special Servicer, the
Trustee, an Additional Servicer or a Servicing Participant.
“Request for
Release”: A request signed by a Servicing Officer, as
applicable, of the Master Servicer in the form of Exhibit D-1 attached hereto or
of the Special Servicer in the form of Exhibit D-2 attached hereto.
“Required
Appraisal”: With respect to each Required Appraisal Mortgage
Loan, an appraisal of the related Mortgaged Property from an Independent
Appraiser selected by the Special Servicer.
“Required Appraisal
Date”: With respect to any Required Appraisal Mortgage Loan,
the earliest date on which any of the items specified in clauses
(i) through (vi) of the first paragraph of the definition of Required
Appraisal Mortgage Loan occurs.
“Required Appraisal Mortgage
Loan”: Each Mortgage Loan (i) that is sixty (60) days or
more delinquent in respect of any Periodic Payments, (ii) that becomes an
REO Loan), (iii) that has been modified by the Special Servicer to reduce
the amount of any Periodic Payment (other than a Balloon Payment),
(iv) with respect to which a receiver is appointed and continues in such
capacity in respect of the related Mortgaged Property, (v) with respect to
which a Mortgagor declares bankruptcy or with respect to which the related
Mortgagor is subject to a bankruptcy proceeding, (vi) with respect to which
any Balloon Payment on such Mortgage Loan has not been paid by its scheduled
maturity date, unless the Master Servicer has, on or prior to 60 days following
the Stated Maturity Date, received written evidence from an institutional lender
of such lender’s binding commitment to refinance such Mortgage Loan within 120
days after the Due Date of such Balloon Payment (provided that if such
refinancing does not occur during such time specified in the commitment, the
related Mortgage Loan will immediately become a Required Appraisal Mortgage
Loan) or (vii) that is outstanding 60 days after the third anniversary of
an extension of its Stated Maturity Date; provided, however, that a Required
Appraisal Mortgage Loan will cease to be a Required Appraisal Mortgage
Loan:
(a) with
respect to the circumstances described in clauses (i) and (iii) above,
when the related Mortgagor has made three consecutive full and timely Periodic
Payments under the terms of such Mortgage Loan (as such terms may be changed or
modified in connection with a bankruptcy or similar proceeding involving the
related Mortgagor or by reason of a modification, waiver or amendment granted or
agreed to by the Special Servicer pursuant to Section 3.20);
and
(b) with
respect to the circumstances described in clauses (iv), (v) and
(vi) above, when such circumstances cease to exist in the good faith
reasonable judgment of the Special Servicer and in accordance with the Servicing
Standard, but, with respect to any bankruptcy or insolvency proceedings
described in clauses (iv) and (v), no later than the entry of an order or
decree dismissing such proceeding, and with respect to the
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circumstances
described in clause (vi) above, no later than the date that the Special
Servicer agrees to an extension pursuant to Section 3.20
hereof;
so long
as at that time no circumstance identified in clauses (i) through
(vi) above exists that would cause the Mortgage Loan to continue to be
characterized as a Required Appraisal Mortgage Loan.
“Required Appraisal
Value”: An amount equal to 90% of the Appraised Value (net of
any prior liens and estimated liquidation expenses and any other downward
adjustments the Special Servicer may deem appropriate (without implying any
obligation to do so) based upon its review of the Appraisal and such other
information as the Special Servicer may deem appropriate) of the Mortgaged
Property related to the subject Required Appraisal Mortgage Loan as determined
by a Required Appraisal or letter update or internal valuation, if applicable;
provided that for
purposes of determining any Appraisal Reduction Amount in respect of such
Required Appraisal Mortgage Loan, such Appraisal Reduction Amount shall be
amended annually to reflect the Required Appraisal Value determined pursuant to
any Required Appraisal or letter update or internal valuation, if applicable, of
a Required Appraisal conducted subsequent to the original Required Appraisal
performed pursuant to Section 3.09(a).
“Reserve
Account”: The account or accounts created and maintained
pursuant to Section 3.03(f).
“Reserve
Funds”: With respect to any Mortgage Loan, any amounts
delivered by the related Mortgagor to be held in escrow by or on behalf of the
mortgagee representing reserves for environmental remediation, repairs, capital
improvements, tenant improvements and/or leasing commissions with respect to the
related Mortgaged Property.
“Residual
Certificate”: A Class R-I Certificate or Class R-II
Certificate.
“Responsible
Officer”: When used with respect to (i) the initial
Trustee, any officer or assistant officer in the Corporate Trust Office of the
initial Trustee, and (ii) any successor trustee, any officer or assistant
officer in the corporate trust department of the successor trustee, or any other
officer or assistant officer of the successor trustee customarily performing
functions similar to those performed by any of the above designated officers to
whom a particular matter is referred by the successor trustee because of such
officer’s knowledge of and familiarity with the particular subject.
“Restricted Servicer
Reports”: Each of the CMSA Servicer Watchlist, CMSA Operating
Statement Analysis, CMSA NOI Adjustment Worksheet and CMSA Comparative Financial
Status Report. If a Restricted Servicer Report is filed with the
Commission, it shall thereafter be an Unrestricted Servicer Report.
[“S&P”: Standard
& Poor’s Ratings Services, a division of The XxXxxx-Xxxx Companies, Inc., or
its successor in interest. If neither such Rating Agency nor any
successor remains in existence, “S&P” shall be
deemed to refer to such other nationally recognized statistical rating agency or
other comparable Person designated by the Depositor, notice of which designation
shall be given to the Trustee, the Master Servicer and the Special Servicer, and
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specific
ratings of S&P herein referenced shall be deemed to refer to the equivalent
ratings of the party so designated.]
“Xxxxxxxx-Xxxxx
Act”: The Xxxxxxxx-Xxxxx Act of 2002.
“Xxxxxxxx-Xxxxx
Certification”: A written certification signed by an officer
of the Master Servicer that complies with (i) the Xxxxxxxx-Xxxxx Act of 2002, as
amended from time to time, and (ii) Exchange Act Rules 13a-14(d) and 15d-14(d),
as in effect from time to time.
“Scheduled
Payment”: With respect to any Mortgage Loan, for any Due Date
following the Cut-Off Date as of which it is outstanding, the scheduled Periodic
Payment of principal and interest (other than Additional Interest) on such
Mortgage Loan that is or would be, as the case may be, payable by the related
Mortgagor on such Due Date under the terms of the related Mortgage Note as in
effect on the Closing Date, without regard to any subsequent change in or
modification of such terms in connection with a bankruptcy or similar proceeding
involving the related Mortgagor or a modification, waiver or amendment of such
Mortgage Loan granted or agreed to by the Special Servicer pursuant to
Section 3.20 or acceleration of principal by reason of default, and
assuming that each prior Scheduled Payment has been made in a timely
manner.
“Section 302
Requirements”: As defined in Section 8.17(b).
“Securities
Act”: The Securities Act of 1933, as amended.
“Senior
Certificate”: Any Class A-1, Class A-2, Class A-3,
Class A-PB, Class A-4, Class A-5, Class A-1A or Class X
Certificate.
“Sequential Pay
Certificates”: Any Class A-1, Class A-2, Class A-3,
Class A-PB, Class A-4, Class A-5, Class A-1A, Class A-M,
Class A-J, Class B, Class C, Class D, Class E,
Class F, Class G, Class H, Class J, Class K,
Class L, Class M, Class N, Class O, Class P, Class Q or
Class S Certificate.
“Servicer Fee
Amount”: With respect to each Sub-Servicer and any date of
determination, the aggregate of the products obtained by multiplying, for each
Mortgage Loan serviced by such Sub-Servicer, (a) the Stated Principal
Balance of such Mortgage Loan as of the end of the immediately preceding
Collection Period and (b) the servicing fee rate specified in the related
Sub-Servicing Agreement for such Mortgage Loan. With respect to the
Master Servicer and any date of determination, the aggregate of the products
obtained by multiplying, for each Mortgage Loan (a) the Stated Principal
Balance of such Mortgage Loan as of the end of the immediately preceding
Collection Period and (b) the difference between the Master Servicing Fee
Rate for such Mortgage Loan over the servicing fee rate (if any) applicable to
such Mortgage Loan as specified in any Sub-Servicing Agreement related to such
Mortgage Loan.
“Servicer
Reports”: Any of the Restricted Servicer Reports, the
Unrestricted Servicer Reports, the CMSA Loan Setup File, the CMSA Loan Periodic
Update File, the CMSA Financial File, CMSA Property File, the CMSA Advance
Recovery Report and a report
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reconciling
Penalty Interest and late payment charges collected with interest on Advances
and Additional Trust Fund Expenses.
“Servicing
Account”: The account or accounts created and maintained
pursuant to Section 3.03(a).
“Servicing
Advances”: All customary, reasonable and necessary “out of pocket” costs
and expenses incurred by or on behalf of the Master Servicer, the Special
Servicer or the Trustee in connection with the servicing of a Mortgage Loan or a
Companion Loan (other than the [__________] Serviced Mortgage Loan and its
related Companion Loan), or in connection with the administration of any related
REO Property, including, but not limited to, the cost of (a) compliance
with the obligations of the Master Servicer and the Special Servicer, if any,
set forth in Section 3.02 and Section 3.03(c), (b) the
preservation, insurance, restoration, protection and management of a Mortgaged
Property, including the cost of any “forced placed”
insurance policy purchased by the Master Servicer to the extent such cost is
allocable to a particular Mortgaged Property that the Master Servicer or the
Special Servicer is required to cause to be insured pursuant to
Section 3.07(a), (c) obtaining any Insurance Proceeds or any
Liquidation Proceeds of the nature described in clauses (i) through
(v) of the definition of “Liquidation
Proceeds,” (d) any enforcement or judicial proceedings with respect
to a Mortgaged Property, including, without limitation, foreclosures,
(e) any Required Appraisal or other appraisal expressly required or
permitted to be obtained hereunder, (f) the operation, management,
maintenance and liquidation of any such REO Property, including, without
limitation, appraisals and compliance with Section 3.16(a) (to the
extent not covered by available funds in the REO Account) and
Section 3.20(h) (to the extent not paid by the related Mortgagor) and
(g) compliance with the obligations of the Master Servicer or the Trustee
set forth in Section 2.03(a) or (b). Notwithstanding
anything to the contrary, “Servicing Advances”
shall not include allocable overhead of the Master Servicer or the Special
Servicer, such as costs for office space, office equipment, supplies and related
expenses, employee salaries and related expenses and similar internal costs and
expenses or costs and expenses incurred by any such party in connection with its
purchase of a Mortgage Loan or REO Property, or costs or expenses expressly
required to be borne by the Master Servicer or Special Servicer without
reimbursement pursuant to the terms of this Agreement.
“Servicing
Criteria”: The “servicing criteria” set forth in Item 1122(d)
of Regulation AB.
“Servicing
Fees”: With respect to each Mortgage Loan, Companion Loan and
REO Loan, the Master Servicing Fee and the Special Servicing Fee.
“Servicing
File”: Any documents, certificates, opinions and reports
(other than documents required to be part of the related Mortgage File)
delivered by the related Mortgagor in connection with, or relating to the
origination and servicing of any Mortgage Loan or Companion Loan which are
reasonably required for the ongoing administration of the Mortgage Loan and the
Companion Loan, including management agreements, cash management agreements,
lockbox agreements, franchise agreements, franchise comfort letters (and
evidence of required notification of transfer), appraisals, surveys, engineering
reports, environmental
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reports,
operation and maintenance (O&M) plans, financial statements, leases, rent
rolls and tenant estoppels.
“Servicing
Officer”: Any officer or employee of the Master Servicer or
the Special Servicer involved in, or responsible for, the administration and
servicing of the Mortgage Loans, whose name and specimen signature appear on a
list of servicing officers furnished by such party to the Trustee and the
Depositor on the Closing Date, as such list may be amended from time to
time.
“Servicing
Participant”: Any Additional Servicer, Sub-Servicer,
Subcontractor or any other Person, other than the Master Servicer, the Special
Servicer and the Trustee, that is performing activities addressed by the
Servicing Criteria, unless such Person’s activities relate only to 5% or less of
the Mortgage Loans.
“Servicing-Released
Bid”: As defined in Section 7.01(c).
“Servicing-Retained
Bid”: As defined in Section 7.01(c).
“Servicing
Standard”: With respect to the Master Servicer or the Special
Servicer, as applicable, the servicing and administration of the Mortgage Loans
and the Companion Loans for which it is responsible hereunder (a) in the
same manner in which, and with the same care, skill, prudence and diligence with
which the Master Servicer or the Special Servicer, as the case may be, generally
services and administers similar mortgage loans with similar borrowers
(i) for other third-parties, giving due consideration to customary and
usual standards of practice of prudent institutional commercial mortgage lenders
servicing their own loans or (ii) held in its own portfolio, whichever
standard is higher, (b) with a view to the maximization of the recovery on
such Mortgage Loan on a net present value basis and the best interests of the
Certificateholders and the Trust Fund or, if a Loan Pair is involved, with a
view towards the maximization of recovery on such Co-Lender Loan Pair to the
Certificateholders, the related Companion Holders and the Trust Fund (as a
collective whole, taking into account that the Subordinate Companion Loans are
subordinate to the related Co-Lender Loans and the Passu Companion Loans are
pari passu in right of
payment with the related Pari Passu Loan, in each case to the extent set forth
in the related Intercreditor Agreement), and (c) without regard to
(i) any relationship that the Master Servicer or the Special Servicer, as
the case may be, or any Affiliate thereof may have with the related Mortgagor,
the Depositor, any Mortgage Loan Seller or any other party to the transaction or
any Affiliate thereof; (ii) the ownership of any Certificate or Companion
Loan (or other interest in any Mortgage Loan or Companion Loan) by the Master
Servicer or the Special Servicer, as the case may be, or by any Affiliate
thereof; (iii) the right of the Master Servicer or the Special Servicer, as
the case may be, to receive compensation or other fees for its services rendered
pursuant to this Agreement; (iv) the obligations of the Master Servicer to
make Advances; (v) the ownership, servicing or management by the Master
Servicer or the Special Servicer, as the case may be, or any Affiliate thereof
for others of any other mortgage loans or mortgaged property; (vi) any
obligation of the Master Servicer or any Affiliate of the Master Servicer to
repurchase or substitute a Mortgage Loan as a Mortgage Loan Seller;
(vii) any obligation of the Master Servicer or any Affiliate of the Master
Servicer to cure a breach of a representation and warranty with respect to a
Mortgage Loan; and (viii) any debt the
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Master
Servicer or Special Servicer or any Affiliate of either has extended to any
Mortgagor or any Affiliate of such Mortgagor.
“Servicing Transfer
Event”: With respect to any Mortgage Loan, the occurrence of
any of the events described in clauses (a) through (h) of the
definition of “Specially Serviced Mortgage
Loan”.
“Similar
Law”: As defined in Section 5.02(c).
“Single
Certificate”: For purposes of Section 4.02, a
hypothetical Certificate of any Class of Regular Certificates evidencing a
$1,000 denomination.
“Special Reserve
Account”: As used herein, the Trustee may create a segregated
custodial account or accounts pursuant to Section 2.02(d) in trust for
the Certificateholders, which shall be entitled “[__________], as Trustee, in
trust for the registered holders of Xxxxx Fargo Commercial Mortgage Trust,
Commercial Mortgage Pass-Through Certificates, Series [__________] and [name of
party providing the funds]”. Any such account will be an Eligible
Account.
“Special
Servicer”: With respect to each Mortgage Loan, [__________],
or, any successor special servicer appointed as herein provided.
“Special Servicing
Fee”: With respect to each Specially Serviced Mortgage Loan
and each REO Loan, the fee designated as such and payable to the Special
Servicer pursuant to the first paragraph of Section 3.11(c).
“Special Servicing Fee
Rate”: With respect to each Specially Serviced Mortgage Loan
and each REO Loan, [___]% per
annum.
“Specially Serviced Mortgage
Loan”: Any Mortgage Loan or Companion Loan as to which any of
the following events have occurred:
(a) the
related Mortgagor shall have (i) failed to make within 60 days of the date
when due any Balloon Payment; provided, however, that if
the Mortgagor continues to make its Assumed Scheduled Payment and diligently
pursues refinancing, a Servicing Transfer Event shall not occur until 60 days
following such default (or, if the Mortgagor has produced a written refinancing
commitment that is reasonably acceptable to the Special Servicer and the
Controlling Class Representative has given its consent (which consent shall be
deemed denied if not granted within 10 Business Days), 120 days following such
default; provided that
if such refinancing does not occur during the time period specified in such
written refinancing commitment, a Servicing Transfer Event will be deemed to
occur); or (ii) failed to make when due any Periodic Payment (other than a
Balloon Payment), and such failure has continued unremedied for 60 days;
or
(b) the
Master Servicer or Special Servicer (in the case of the Special Servicer, with
the consent of the Controlling Class Representative) shall have determined (with
written notice of any such determination by the Special Servicer to be promptly
given by the Special Servicer to the Master Servicer), in its good faith
reasonable judgment, and in accordance with the Servicing Standard, based on
communications with the related Mortgagor, that a default in making a Periodic
Payment (including a Balloon Payment) or any other default under the applicable
Mortgage Loan documents that would (with respect to such other default)
materially impair the value of the Mortgaged Property as security for the
Mortgage Loan and, if applicable, Companion Loan or otherwise would materially
adversely affect the interests of Certificateholders and would continue
unremedied beyond the applicable grace period under the terms of the Mortgage
Loan (or, if no grace period is specified, for 60 days; provided that a default that
would give rise to an acceleration right without any grace period shall be
deemed to have a grace period equal to zero) is likely to occur and is likely to
remain unremedied for at least 60 days; or
(c) there
shall have occurred a default (other than as described in clause (a) above)
that the Master Servicer or the Special Servicer (in the case of the Special
Servicer, with the consent of the Controlling Class Representative) shall have
determined (with written notice of any such determination by the Special
Servicer to be promptly given by the Special Servicer to the Master Servicer),
in its good faith and reasonable judgment, and in
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accordance
with the Servicing Standard, materially impairs the value of the Mortgaged
Property as security for the Mortgage Loan and, if applicable, Companion Loan,
or otherwise materially adversely affects the interests of Certificateholders
and that continues unremedied beyond the applicable grace period under the terms
of the Mortgage Loan (or, if no grace period is specified, for 60 days;
provided that a default
that gives rise to an acceleration right without any grace period shall be
deemed to have a grace period equal to zero); provided, however, that, in the event
the Special Servicer with the consent of the Controlling Class Representative
determines that the related Mortgagor does not need to maintain terrorism
insurance as provided in Section 3.07(a), no default related to the failure
to obtain such insurance shall be deemed to be outstanding for purposes of this
clause(c); or
(d) a decree
or order of a court or agency or supervisory authority having jurisdiction in
the premises in an involuntary case under any present or future federal or state
bankruptcy, insolvency or similar law or the appointment of a conservator or
receiver or liquidator in any insolvency, readjustment of debt, marshaling of
assets and liabilities or similar proceedings, or for the winding-up or
liquidation of its affairs, shall have been entered against the related
Mortgagor; provided
that, if such decree or order is discharged, dismissed or stayed within 60 days
it shall not be a Specially Serviced Mortgage Loan (and no Special Servicing
Fees shall be payable); or
(e) the
related Mortgagor shall consent to the appointment of a conservator or receiver
or liquidator in any insolvency, readjustment of debt, marshaling of assets and
liabilities or similar proceedings of or relating to such Mortgagor or of or
relating to all or substantially all of its property; or
(f) the
related Mortgagor shall admit in writing its inability to pay its debts
generally as they become due, file a petition to take advantage of any
applicable insolvency, bankruptcy or reorganization statute, make an assignment
for the benefit of its creditors, or voluntarily suspend payment of its
obligations; or
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(g) the
Master Servicer shall have force placed insurance against damages or losses
arising from acts of terrorism due to the failure of the related borrower to
maintain or cause such insurance to be maintained and (1) subsequent to such
force placement such borrower fails to maintain or cause to be maintained
insurance coverage against damages for losses arising from acts of terrorism for
a period of 60 days (or such shorter time period as the Controlling Class
Representative may consent to) or (2) the Master Servicer fails to have been
reimbursed from any Servicing Advances made in connection with the force
placement of such insurance coverage (unless the circumstances giving rise to
such forced placement of such insurance coverage have otherwise been cured and
the Master Servicer has been reimbursed for any Servicing Advances made in
connection with the forced placement of such insurance coverage);
or
(h) the
Master Servicer shall have received notice of the commencement of foreclosure or
similar proceedings with respect to the related Mortgaged Property;
provided, however, that a Companion
Loan shall be deemed to be a Specially Serviced Mortgage Loan if the related
Co-Lender Loan becomes a Specially Serviced Mortgage Loan and a Co-Lender Loan
shall be deemed to be a Specially Serviced Mortgage Loan if the related
Companion Loan becomes a Specially Serviced Mortgage Loan; provided, further, however that a Mortgage Loan
or Companion Loan will cease to be a Specially Serviced Mortgage
Loan:
(i) with
respect to the circumstances described in clause (a) above, when the
related Mortgagor has made three consecutive full and timely Periodic Payments
under the terms of such Mortgage Loan or Companion Loan (as such terms may be
changed or modified in connection with a bankruptcy or similar proceeding
involving the related Mortgagor or by reason of a modification, waiver or
amendment granted or agreed to by the Special Servicer pursuant to
Section 3.20);
(ii) with
respect to the circumstances described in clauses (b), (d), (e) and
(f) above, when such circumstances cease to exist in the good faith
reasonable judgment of the Special Servicer and in accordance with the Servicing
Standard, but, with respect to any bankruptcy or insolvency proceedings
described in clauses (d), (e) and (f), no later than the entry of an order
or decree dismissing such proceeding;
(iii) with
respect to the circumstances described in clause (c) and (g) above, when
such default is cured; and
(iv) with
respect to the circumstances described in clause (h) above, when such
proceedings are terminated;
so long
as at that time no circumstance identified in clauses (a) through
(h) above exists that would cause the Mortgage Loan (or, with respect to a
Co-Lender Loan, the related Companion Loan, or, with respect to a Companion
Loan, the related Co-Lender Loan) to continue to be characterized as a Specially
Serviced Mortgage Loan; provided no additional
default is foreseeable in the reasonable good faith judgment of the Special
Servicer.
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“Startup
Day”: With respect to each of REMIC I and REMIC II,
the day designated as such in Section 10.01(c).
“State and Local
Taxes”: Taxes imposed by the States of New York, [_________]
and [_________] and by any other state or local taxing authorities; provided that such states and
such other state and local taxing authorities, by notice to the Trustee, assert
jurisdiction over the trust fund or any portion thereof, or which, according to
an Opinion of Counsel addressed to the Trustee, have such
jurisdiction.
“Stated Maturity
Date”: With respect to any Mortgage Loan, the Due Date
specified in the Mortgage Note (as in effect on the Closing Date) on which the
last payment of principal is due and payable under the terms of the Mortgage
Note (as in effect on the Closing Date), without regard to any change in or
modification of such terms in connection with a bankruptcy or similar proceeding
involving the related Mortgagor or a modification, waiver or amendment of such
Mortgage Loan granted or agreed to by the Special Servicer pursuant to
Section 3.20 and, in the case of an ARD Loan, without regard to its
Anticipated Repayment Date.
“Stated Principal
Balance”: With respect to any Mortgage Loan, as of any date of
determination, an amount (which amount shall not be less than zero) equal to
(x) the Cut-Off Date Balance of such Mortgage Loan (or, in the case of a
Qualified Substitute Mortgage Loan, the unpaid principal balance after
application of all principal payments due on or before the related date of
substitution, whether or not received), plus (y) any Mortgage
Deferred Interest added to the principal balance of such Mortgage Loan on or
before the end of the immediately preceding Collection Period minus (z) the sum
of:
(i) the
principal portion of each Periodic Payment due on such Mortgage Loan after the
Cut-Off Date or the related date of substitution, as the case may be, to the
extent received from the Mortgagor or advanced by the [__________] Master
Servicer, the Master Servicer or the Trustee and distributed to
Certificateholders on or before such date of determination;
(ii) all
Principal Prepayments received with respect to such Mortgage Loan after the
Cut-Off Date or the related date of substitution, as the case may be, to the
extent distributed to Certificateholders on or before such date of
determination;
(iii) the
principal portion of all Insurance Proceeds and Liquidation Proceeds received
with respect to such Mortgage Loan after the Cut-Off Date or the related date of
substitution, as the case may be, to the extent distributed to
Certificateholders on or before such date of determination;
(iv) the
principal portion of any Realized Loss incurred in respect of such Mortgage Loan
during the related Collection Period; and
(v) any
amount of reduction in the outstanding principal balance of such Mortgage Loan
resulting from a Deficient Valuation that occurred prior to the end of the
Collection Period for the most recent Distribution Date.
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With
respect to any REO Loan, as of any date of determination, an amount equal to
(x) the Stated Principal Balance of the predecessor Mortgage Loan as of the
date of the related REO Acquisition, minus (y) the sum
of:
(A) the
principal portion of any P&I Advance made with respect to the predecessor
Mortgage Loan on or after the date of the related REO Acquisition, to the extent
distributed to Certificateholders on or before such date of determination;
and
(B) the
principal portion of all Insurance Proceeds, Liquidation Proceeds and REO
Revenues received with respect to such REO Loan, to the extent distributed to
Certificateholders on or before such date of determination.
A
Mortgage Loan, an REO Loan shall be deemed to be part of the Trust Fund and to
have an outstanding Stated Principal Balance until the Distribution Date on
which the payments or other proceeds, if any, received in connection with a
Liquidation Event in respect thereof are to be (or, if no such payments or other
proceeds are received in connection with such Liquidation Event, would have
been) distributed to Certificateholders. In addition, to the extent
that principal from general collections is used to reimburse Nonrecoverable
Advances pursuant to Section 3.05(a)(vii) or Workout Delayed Reimbursement
Amounts pursuant to Section 3.05(a)(vii) (which are only reimbursable from
principal collections on the Mortgage Pool as set forth in this Agreement) and
such amount has not been included as part of the Principal Distribution Amount,
such amount shall nevertheless be deemed to be part of the Principal
Distribution Amount for purposes of clauses (i), (ii) and
(iii) above. Notwithstanding the foregoing, if any Mortgage Loan
is paid in full, liquidated or otherwise removed from the Trust Fund, commencing
as of the first Distribution Date following the Collection Period during which
such event occurred, the Stated Principal Balance of such Mortgage Loan will be
zero.
With
respect to any Companion Loan on any date of determination, the Stated Principal
Balance shall equal the unpaid principal balance of such Companion
Loan.
“Subcontractor”: Any
third-party or affiliated vendor, subcontractor or other Person utilized by a
Servicer, a Sub-Servicer, the Trustee or the Custodian, as applicable, that is
not responsible for the overall servicing (as “servicing” is commonly understood
by participants in the commercial mortgage-backed securities market) of Mortgage
Loans but performs one or more discrete functions identified in Item 1122(d) of
Regulation AB with respect to Mortgage Loans.
“Subordinate Companion
Holder”: The holders of any of the Subordinate Companion
Loans.
“Subordinate Companion
Loan”: Each of the [__________] Companion Loan, the
[__________] Companion Loan, the [__________] Companion Loan and the
[__________] Companion Loan, individually or collectively, as the context may
require.
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“Subordinated
Certificate”: Any Class A-M, Class A-J, Class B,
Class C, Class D, Class E, Class F, Class G,
Class H, Class J, Class K, Class L, Class M,
Class N, Class O, Class P, Class Q, Class S, Class Z,
Class R-I or Class R-II Certificate.
“Sub-Servicer”: Any
Person with which the Master Servicer, the Special Servicer or an
Additional Servicer has entered into a Sub-Servicing Agreement for the performance
(whether directly or through Sub-Servicers or Subcontractors) of a substantial
portion of the material servicing functions required to be performed by the
Master Servicer or the Special Servicer under this Agreement or an Additional
Servicer under a servicing agreement, with respect to some or all of the
Mortgage Loans, that are identified in Item 1122(d) of Regulation
AB.
“Sub-Servicing
Agreement”: The written contract between the Master Servicer
or the Special Servicer, on the one hand, and any Sub-Servicer, on the other
hand, relating to servicing and administration of Mortgage Loans as provided in
Section 3.22.
“Substitution Shortfall
Amount”: With respect to a substitution pursuant to
Section 2.03(a) hereof, an amount equal to the excess, if any, of the
Purchase Price of the Mortgage Loan being replaced calculated as of the date of
substitution over the Stated Principal Balance of the related Qualified
Substitute Mortgage Loan as of the date of substitution. In the event
that one or more Qualified Substitute Mortgage Loans are substituted (at the
same time) for one or more deleted Mortgage Loans, the Substitution Shortfall
Amount shall be determined as provided in the preceding sentence on the basis of
the aggregate Purchase Prices of the Mortgage Loan or Mortgage Loans being
replaced and the aggregate Stated Principal Balances of the related Qualified
Substitute Mortgage Loan or Mortgage Loans.
“Successful
Bidder”: As defined in Section 7.01(c).
“Tax Matters
Person”: With respect to each of REMIC I and
REMIC II, the Person designated as the “tax matters person”
of such REMIC in the manner provided under Treasury Regulations
Section 1.860F-4(d) and Temporary Treasury Regulations
Section 301.6231(a)(7)-1T, which Person shall be the applicable Plurality
Residual Certificateholder.
“Tax
Returns”: The federal income tax returns on Internal Revenue
Service Form 1066, U.S. Real Estate Mortgage Investment Conduit (REMIC) 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 REMIC I and REMIC II due to its
classification as a REMIC under the REMIC Provisions, and the federal income tax
return to be filed on behalf of the Additional Interest Grantor Trust due to its
classification as a grantor trust under the Grantor Trust Provisions, together
with any and all other information, reports or returns that may be required to
be furnished to the Certificateholders or filed with the Internal Revenue
Service under any applicable provisions of federal tax law or any other
governmental taxing authority under applicable State and Local Tax
laws.
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“Time of
Sale”: As defined in that certain Underwriting Agreement,
dated as of [__________], among Xxxxx Fargo Commercial Mortgage Securities,
Inc., [__________], [__________], [__________], [__________],
[__________], [__________] and [__________]
“Transfer”: Any
direct or indirect transfer, sale, pledge, hypothecation, or other form of
assignment of any Ownership Interest in a Certificate.
“Transferee”: Any
Person who is acquiring by Transfer any Ownership Interest in a
Certificate.
“Transferor”: Any
Person who is disposing by Transfer any Ownership Interest in a
Certificate.
“Trust
Fund”: Collectively, (i) all of the assets of each of
REMIC I and REMIC II, and (ii) the Additional Interest Grantor Trust
Assets.
“Trustee”: [__________],
its successor in interest, or any successor trustee appointed as herein
provided.
“Trustee
Fee”: With respect to each Mortgage Loan and REO Loan for any
Distribution Date, an amount equal to one month’s interest for the most recently
ended calendar month (calculated on a 30/360 Basis), accrued at the Trustee Fee
Rate on the Stated Principal Balance of such Mortgage Loan or REO Loan, as the
case may be, outstanding immediately following the prior Distribution Date (or,
in the case of the initial Distribution Date, as of the Closing
Date).
“Trustee Fee
Rate”: [___]% per annum.
“UCC”: The
Uniform Commercial Code in effect in the applicable jurisdiction.
“UCC Financing
Statement”: A financing statement executed and filed pursuant
to the Uniform Commercial Code, as in effect in any relevant
jurisdiction.
“Underwriter”: Each
of [__________], [__________], [__________], [__________], [__________] and
[__________] or, in each case, its successor in interest.
“United States
Person”: A citizen or resident of the United States, a
corporation or partnership (including an entity treated as a corporation or
partnership for federal income tax purposes) created or organized in, or under
the laws of, the United States, any State thereof or the District of Columbia
unless in the case of a partnership, Treasury Regulations are adopted that
provide otherwise, an estate whose income is includable in gross income for
United States federal income tax purposes regardless of its source or a trust if
a court within the United States is able to exercise primary supervision over
the administration of the trust, and one or more United States Persons have the
authority to control all substantial decisions of the trust, all within the
meaning of Section 7701(a)(30) of the Code (or, to the extent provided in
applicable Treasury regulations, certain trusts in existence on August 20, 1996,
that are eligible to elect to be treated as United States Persons).
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“Unliquidated
Advance”: Any Advance previously made by a party hereto that
has been previously reimbursed, as between the Person that made the Advance
hereunder, on the one hand, and the Trust Fund, on the other, as part of a
Workout-Delayed Reimbursement Amount pursuant to subsections (ii) and
(vi) of Section 3.05(a) but that has not been recovered from the
Mortgagor or otherwise from collections on or the proceeds of the Mortgage Loan
or REO Property in which the Trust Fund holds a beneficial interest in respect
of which the Advance was made.
“Unrestricted Servicer
Reports”: Each of the CMSA Delinquent Loan Status Report, CMSA
Historical Loan Modification and Corrected Mortgage Loan Report, CMSA Loan Level
Reserve/LOC Report, CMSA Historical Liquidation Report, CMSA REO Status Report
and the CMSA Advance Recovery Report.
“USAP”: The
Uniform Single Attestation Program for Mortgage Bankers.
“Voting
Rights”: The portion of the voting rights of all of the
Certificates which is allocated to any Certificate. At all times
during the term of this Agreement, 100% of the Voting Rights shall be allocated
among the Holders of the Regular Certificates. Ninety-six percent
(96%) of the Voting Rights shall be allocated among the Class A-1,
Class A-2, Class A-3, Class A-PB, Class A-4, Class A-5,
Class A-1A, Class A-M, Class A-J, Class B, Class C, Class D,
Class E, Class F, Class G, Class H, Class J,
Class K, Class L, Class M, Class N, Class O,
Class P, Class Q and Class S Certificates in proportion to the
respective Class Principal Balances of their Certificates (which proportion
shall be calculated as equal to the product of 96% and a fraction, the numerator
of which is equal to the aggregate Certificate Balance of the related Class of
Certificates (adjusted as provided in the immediately succeeding provisos) and
the denominator of which is equal to the aggregate Certificate Balances of all
Classes of Certificates referenced above, determined as of the Distribution Date
immediately preceding such time); provided that, solely for the
purpose of determining the Voting Rights of the Classes of Sequential Pay
Certificates, the aggregate Appraisal Reduction Amount (determined as set forth
herein) shall be treated as Realized Losses with respect to the calculation of
the Certificate Principal Balances thereof; provided, further, however, that the aggregate
Appraisal Reduction Amount shall not reduce the Class Principal Balance of any
Class for purposes of determining the Controlling Class, the Controlling
Class Representative or the Majority Subordinate
Certificateholder. Four percent (4%) in the aggregate of the Voting
Rights shall be allocated to the Class X Certificates (allocated, pro rata, between the
Class X-C and Class X-P Certificates based upon their Notional
Amounts). The Class Z Certificates and the Residual Certificates
shall have no voting rights. Voting Rights allocated to a Class of
Certificateholders shall be allocated among such Certificateholders in standard
proportion to the Percentage Interests evidenced by their respective
Certificates. In addition, if either the Master Servicer or the
Special Servicer is the holder of any Certificate, neither of the Master
Servicer or Special Servicer, in its capacity as a Certificateholder, shall have
Voting Rights with respect to matters concerning compensation affecting the
Master Servicer or the Special Servicer.
“[_________]”: [__________]
or its successor in interest.
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“[__________] Mortgage Loan
Purchase Agreement”: That certain mortgage loan purchase
agreement, dated as of [__________] between the Depositor and [_________] and
relating to the transfer of the [_________] Mortgage Loans to the
Depositor.
“[_________] Mortgage
Loans”: Each of the Mortgage Loans transferred and assigned to
the Depositor pursuant to the [__________] Mortgage Loan Purchase
Agreement.
“Weighted Average Net
Mortgage Rate”: With respect to any Distribution Date, the
rate per annum equal to
the weighted average, expressed as a percentage and rounded to six decimal
places, of the respective Net Mortgage Rates applicable to the Mortgage Loans as
of the first day of the related Collection Period, weighted on the basis of
their respective Stated Principal Balances immediately following the preceding
Distribution Date.
“Workout-Delayed
Reimbursement Amounts”: With respect to any Mortgage Loan, the
amount of any Advance made with respect to such Mortgage Loan on or before the
date such Mortgage Loan becomes (or, but for the making of three Monthly
Payments under its modified terms, would then constitute) a Corrected Mortgage
Loan, together with (to the extent accrued and unpaid) interest on such
Advances, to the extent that (i) such Advance (and any interest thereon) is
not reimbursed to the Person who made such Advance on or before the date, if
any, on which such Mortgage Loan becomes a Corrected Mortgage Loan and
(ii) the amount of such Advance (and any interest thereon) becomes an
obligation of the Mortgagor to pay such amount over a period of time rather than
immediately or on the next Due Date under the terms of the modified loan
documents.
“Workout
Fee”: With respect to each Corrected Mortgage Loan, the fee
designated as such and payable to the Special Servicer pursuant to the second
paragraph of Section 3.11(c).
“Workout Fee
Rate”: With respect to each Corrected Mortgage Loan,
1.0%.
“Yield Maintenance
Charge”: Payments paid or payable, as the context requires, on
a Mortgage Loan as the result of a Principal Prepayment thereon, not otherwise
due thereon in respect of principal or interest, which have been calculated
(based on Scheduled Payments on such Mortgage Loan) to compensate the holder for
reinvestment losses based on the value of an interest rate index at or near the
time of prepayment. Any other prepayment premiums, penalties and fees
not so calculated will not be considered “Yield Maintenance
Charges.” In the event that a Yield Maintenance Charge shall
become due for any particular Mortgage Loan, the Master Servicer shall be
required to follow the terms and provisions contained in the applicable Mortgage
Note; provided, however, in the event the
particular Mortgage Note shall not specify the U.S. Treasuries which shall be
used in determining the discount rate or the reinvestment yield to be applied in
such calculation, the Master Servicer shall be required to use those U.S.
Treasuries having maturity dates most closely approximating the maturity of such
Mortgage Loan. Accordingly if either no U.S. Treasury issue, or more
than one U.S. Treasury issue, shall coincide with the term over which the Yield
Maintenance Charge shall be calculated (which depending on the applicable
Mortgage Note is based on the remaining average life of the Mortgage Loan or the
actual term remaining through the Maturity Date), the Master Servicer shall use
the U.S. Treasury whose reinvestment yield is the lowest, with such yield being
based
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on the
bid price for such issue as published in The Wall Street Journal on
the date that is fourteen (14) days prior to the date that the Yield Maintenance
Charge shall become due and payable (or, if such bid price is not published on
that date, the next preceding date on which such bid price is so published) and
converted to a monthly compounded nominal yield. The monthly
compounded nominal yield (“MEY”) is derived from
the reinvestment yield or discount rate and shall be defined as MEY = (12X
{(1+“BEY”/2)^1/6}-1) where
BEY is defined as the U.S. Treasury Reinvestment Yield which is in decimal form
and not in percentage, and 1/6 is the exponential power to which a portion of
the equation is raised. For example, using a BEY of 5.50%, the MEY =
(12 X {(1+ .055/2)^0.16667}-1) where 0.055 is the decimal version of the
percentage 5.5% and 0.16667 is the decimal version of the exponential
power. The MEY in the above calculation is 5.44%.
ARTICLE
II
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS
AND WARRANTIES; ORIGINAL ISSUANCE OF CERTIFICATES
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS
AND WARRANTIES; ORIGINAL ISSUANCE OF CERTIFICATES
Section
2.01 Conveyance of Mortgage
Loans.
(a) The
Depositor, concurrently with the execution and delivery hereof, does hereby
assign, sell, transfer, set over and otherwise convey to the Trustee, in trust,
without recourse, for the benefit of the Certificateholders (and for the benefit
of the other parties to this Agreement as their respective interests may appear)
all the right, title and interest of the Depositor, in, to and under
(i) the Mortgage Loans and all documents included in the related Mortgage
Files and Servicing Files, (ii) the rights of the Depositor under Sections
[2, 3, 9, 10, 11, 12, 13, 14, 16, 17, 18 and 19] of each of the Mortgage Loan
Purchase Agreements, and (iii) all other assets included or to be included
in the Trust Fund. Such assignment includes all interest and
principal received or receivable on or with respect to the Mortgage Loans and
due after the Cut-Off Date. The transfer of the Mortgage Loans and
the related rights and property accomplished hereby is absolute and,
notwithstanding Section 11.07, is intended by the parties to constitute a
sale.
(b) In
connection with the Depositor’s assignment pursuant to
Section 2.01(a) above the Depositor shall direct, and hereby
represents and warrants that it has directed, each Mortgage Loan Seller pursuant
to the applicable Mortgage Loan Purchase Agreement, to deliver to and deposit
with, or cause to be delivered to and deposited with, the Trustee or a Custodian
appointed thereby (with a copy to the Master Servicer and Special Servicer), on
or before the Closing Date, the Mortgage File for each Mortgage Loan so assigned
and the Servicing File to the Master Servicer. The Special Servicer
may request the Master Servicer to deliver a copy of the Servicing File for any
Mortgage Loan (other than a Specially Serviced Mortgage Loan, which will not be
at the expense of the Special Servicer) at the expense of the Special
Servicer. None of the Trustee, any Custodian, the Master Servicer or
the Special Servicer shall be liable for any failure by any Mortgage Loan Seller
or the Depositor to comply with the document delivery requirements of the
applicable Mortgage Loan Purchase Agreement and this
Section 2.01(b).
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(c) If any
Mortgage Loan Seller cannot deliver, or cause to be delivered, on the Closing
Date, as to any Mortgage Loan, any of the documents and/or instruments referred
to in clauses (ii), (iii), (vi) (if recorded) and (viii) of the
definition of “Mortgage File,” with
evidence of recording thereon, solely because of a delay caused by the public
recording office where such document or instrument has been delivered for
recordation, the delivery requirements of the related Mortgage Loan Purchase
Agreement and Section 2.01(b) shall be deemed to have been satisfied
as to such non-delivered document or instrument, and such non-delivered document
or instrument shall be deemed to have been included in the Mortgage File; provided that a photocopy of
such non-delivered document or instrument (certified by the applicable Mortgage
Loan Seller to be a true and complete copy of the original thereof submitted for
recording) is delivered to the Trustee or a Custodian appointed thereby on or
before the Closing Date, and either the original of such non-delivered document
or instrument, or a photocopy thereof, with evidence of recording thereon, is
delivered to the Trustee or such Custodian within 120 days of the Closing Date
(or within such longer period after the Closing Date as the Trustee may consent
to, which consent shall not be unreasonably withheld so long as the applicable
Mortgage Loan Seller is, in good faith, attempting to obtain from the
appropriate county recorder’s office such original or photocopy). If
the applicable Mortgage Loan Seller cannot deliver, or cause to be delivered, as
to any Mortgage Loan, any of the documents and/or instruments referred to in
clauses (ii), (iii), (vi) (if recorded) and (viii) of the definition
of “Mortgage
File” (or, with respect to the [__________] Serviced Mortgage Loan, a
photocopy thereof) with evidence of recording thereon, for any other reason,
including, without limitation, that such non-delivered document or instrument
has been lost, the delivery requirements of the applicable Mortgage Loan
Purchase Agreement and Section 2.01(b) shall be deemed to have been
satisfied as to such non-delivered document or instrument and such non-delivered
document or instrument shall be deemed to have been included in the Mortgage
File; provided that a
photocopy of such non-delivered document or instrument (with evidence of
recording thereon) is delivered to the Trustee or a Custodian appointed thereby
on or before the Closing Date.
If, on
the Closing Date as to any Mortgage Loan, the applicable Mortgage Loan Seller
does not deliver in complete and recordable form any one of the assignments in
favor of the Trustee referred to in clause (iv) or (v) of the
definition of “Mortgage File” (or,
with respect to the [__________] Serviced Mortgage Loan, a photocopy thereof),
the applicable Mortgage Loan Seller may provisionally satisfy the delivery
requirements of the related Mortgage Loan Purchase Agreement and
Section 2.01(b) by delivering with respect to such Mortgage Loan on
the Closing Date an omnibus assignment of such Mortgage Loan; provided that all required
original assignments with respect to such Mortgage Loan in fully complete and
recordable form shall be delivered to the Trustee or its Custodian within 120
days of the Closing Date (or within such longer period as the Trustee in its
discretion may permit).
(d) The
Trustee shall, for a fee paid to the Trustee by the Depositor on the Closing
Date as to each Mortgage Loan, promptly (and in any event within 90 days
following the latest of (i) the Closing Date, (ii) the delivery of all
assignments and UCC Financing Statements to the Trustee and (iii) the date
on which the Trustee receives, with respect to the original recorded or filed
documents relating to such assignments and UCC Financing Statements, all
necessary recording and filing information required for the recording or filing
of such assignments and UCC Financing Statements) cause to be submitted for
recording or filing, as the
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case may
be, in the appropriate public office for real property records or UCC Financing
Statements, as appropriate and to the extent timely delivered to the Trustee in
final, recordable form, each assignment of Mortgage, assignment of Assignment of
Leases and any other recordable documents (to the extent the Trustee has actual
knowledge that such documents are to be recorded) relating to each such Mortgage
Loan, in favor of the Trustee referred to in clause (iv)(a), (b) and (c),
respectively, of the definition of “Mortgage File” and
each UCC-2 and UCC-3 assignment in favor of the Trustee and so delivered to the
Trustee and referred to in clause (viii) of the definition of “Mortgage
File.” The applicable Mortgage Loan Seller shall reimburse the
Trustee for all reasonable costs and expenses incurred for recording any
documents described in clause (iv)(c) of the definition of “Mortgage
File.” Each such assignment, UCC-2 and UCC-3 shall reflect
that the recorded original should be returned by the public recording office to
the Trustee or its designee following recording, and each such UCC-2 and UCC-3
assignment shall reflect that the file copy thereof should be returned to the
Trustee or its designee following filing; provided that in those
instances where the public recording office retains the original assignment of
Mortgage or assignment of Assignment of Leases, the Trustee shall obtain
therefrom a certified copy of the recorded original, at the expense of the
Depositor. If any such document or instrument is lost or returned
unrecorded or unfiled, as the case may be, because of a defect therein, the
Trustee shall direct the related Mortgage Loan Seller pursuant to the applicable
Mortgage Loan Purchase Agreement to promptly prepare or cause to be prepared a
substitute therefor or cure such defect, as the case may be, and thereafter the
Trustee shall upon receipt thereof cause the same to be duly recorded or filed,
as appropriate. Upon request, the Trustee shall forward to the Master
Servicer a copy of each of the aforementioned recorded assignments following the
Trustee’s receipt thereof, to the extent not previously provided.
(e) All
documents and records in the Servicing File in possession of the Depositor or
the Mortgage Loan Sellers (except attorney client privileged communications,
draft documents and any documents or materials prepared by the Mortgage Loan
Sellers or their Affiliates for internal uses, including, without limitation,
internal correspondence and credit analysis of the Mortgage Loan Sellers) that
relate to the Mortgage Loans and that are not required to be a part of a
Mortgage File in accordance with the definition thereof (including any original
letters of credit), together with all Escrow Payments and Reserve Accounts in
the possession thereof, shall be delivered to the Master Servicer or such other
Person as may be directed by the Master Servicer (at the expense of the
applicable Mortgage Loan Seller) on or before the Closing Date and shall be held
by the Master Servicer on behalf of the Trustee in trust for the benefit of the
Certificateholders; provided, however, the Master Servicer
shall have no responsibility for holding documents created or maintained by the
Special Servicer hereunder and not delivered to the Master
Servicer.
(f) In
connection with the Depositor’s assignment pursuant to
Section 2.01(a) above, the Depositor shall deliver to the Custodian
and the Master Servicer on or before the Closing Date and hereby represents and
warrants that it has delivered a copy of a fully executed counterpart of each
Mortgage Loan Purchase Agreement, as in full force and effect on the Closing
Date.
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Section
2.02 Acceptance of the Trust Fund
by Trustee.
(a) The
Trustee, by its execution and delivery of this Agreement, acknowledges receipt
of the Depositor’s assignment to it of the Depositor’s right, title and interest
in the assets that constitute the Trust Fund, and further acknowledges receipt
by it or a Custodian on its behalf, subject to the provisos in the definition of
“Mortgage File”
and the provisions of Section 2.01 and subject to the further limitations
on review provided for in Section 2.02(b) and the exceptions noted on
the schedule of exceptions of (i) the Mortgage File delivered to it for
each Mortgage Loan and (ii) a copy of a fully executed counterpart of each
Mortgage Loan Purchase Agreement, all in good faith and without notice of any
adverse claim, and declares that it or a Custodian on its behalf holds and will
hold such documents and the other documents received by it that constitute
portions of the Mortgage Files, and that it holds and will hold the Mortgage
Loans and other assets included in the Trust Fund, in trust for the exclusive
use and benefit of all present and future Certificateholders and, with respect
to any original document in the Mortgage File for a Loan Pair, any present or
future Companion Holders. The Trustee hereby certifies to each of the
Depositor, the Master Servicer, the Special Servicer and each Mortgage Loan
Seller that except as identified in the schedule of exceptions, which is
attached hereto as Exhibit C-1 without
regard to the proviso in the definition of “Mortgage File,” each
of the original executed Mortgage Notes (or lost note affidavit), the Mortgage
(or an executed copy thereof), the lender’s title policy (original or copy or
marked-up title commitment marked as binding and countersigned by the title
company or its authorized agent or an agreement to provide the same pursuant to
binding escrow instructions executed by an authorized representative of the
title company), a copy of any related Ground Leases, the original (or copy if
the original has been delivered to the Master Servicer) of any related letters
of credit (and the related transfer or assignment documents, if applicable), as
described in clauses (i), (ii), (vii), (ix)(a) and (xii), respectively, of
the definition of Mortgage File are in its possession.
With
respect to the schedule of exceptions described in the preceding paragraph,
within fifteen (15) Business Days (or, in the Controlling Class Representative’s
reasonable discretion, thirty (30) Business Days) of the Closing Date, with
respect to the documents specified in clauses (i), (ii), (vii),
(ix) (solely with respect to Ground Leases) and (xii) of the
definition of Mortgage File, the related Mortgage Loan Seller shall cure any
material exception listed therein (for the avoidance of doubt, any deficiencies
with respect to the documents specified in clause (ii) resulting solely
from a delay in the return of the related documents from the applicable
recording office, shall be cured in the time and manner described in
Section 2.01(c)). If such exception is not so cured, the related
Mortgage Loan Seller shall either (1) repurchase the related Mortgage Loan, (2)
with respect to exceptions relating to clause (xii) of the definition of
“Mortgage
File”, deposit with the Paying Agent (who shall promptly notify the
Master Servicer thereof) an amount, to be held in a Special Reserve Account,
equal to the amount of the undelivered letter of credit (in the alternative, the
related Mortgage Loan Seller may deliver to the Paying Agent, with a certified
copy to the Master Servicer and Trustee, a letter of credit for the benefit of
the Master Servicer on behalf of the Trustee and upon the same terms and
conditions as the undelivered letter of credit) which the Master Servicer on
behalf of the Trustee may use (or draw upon, as the case may be) under the same
circumstances and conditions as the Master Servicer would have been entitled to
draw on the undelivered letter of credit, or (3) with respect to any exceptions
relating to clauses (i), (ii) and (vii), deposit with the Paying Agent on
behalf of the Trustee an amount, to be held in trust in a Special Reserve
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Account,
equal to 25% of the Stated Principal Balance of the related Mortgage
Loan. Any letter of credit or funds deposited pursuant to clauses (2)
and (3) shall be held pursuant to the related Mortgage Loan Purchase Agreement
by the Paying Agent until the earlier of (x) the date on which the Master
Servicer certifies to the Trustee and the Controlling Class Representative that
such exception has been cured (or the Trustee certifies the same to the
Controlling Class Representative), at which time such funds or letter of credit,
as applicable, shall be returned to the related Mortgage Loan Seller and (y)
thirty (30) Business Days or, if the Controlling Class Representative extends
the cure period, forty-five (45) Business Days after the Closing Date; provided, however, that if such
exception is not cured within such thirty (30) Business Days or forty-five (45)
Business Days, as the case may be, (A) in the case of clause (2), the Paying
Agent shall retain such funds on deposit in the related Special Reserve Account,
or (B) in the case of clause (3), the related Mortgage Loan Seller shall
repurchase the related Mortgage Loan in accordance with the terms and conditions
of Section 2.03(b) or the related Mortgage Loan Purchase Agreement, at
which time such funds shall be applied to the Purchase Price of the related
Mortgage Loan.
(b) In
addition, within ninety (90) days after the Closing Date (and if any exceptions
are noted, a schedule of exceptions again every 90 days thereafter until the
second anniversary of the Closing Date, and a schedule of exceptions every 180
days thereafter until the fifth anniversary of the Closing Date, and thereafter
upon request by any party hereto, any Mortgage Loan Seller or the Majority
Subordinate Certificateholder), the Trustee or the Custodian on its behalf will
review the Mortgage Files and certify (in a certificate substantially in the
form of Exhibit
C-2) to each of the Depositor, the Master Servicer, the Special Servicer
and each Mortgage Loan Seller (with copies to the Majority Subordinate
Certificateholder) that, with respect to each Mortgage Loan (and with respect to
a Companion Loan and the [__________] Serviced Mortgage Loan, only those items
required pursuant to the definition of “Mortgage File”)
listed in the Mortgage Loan Schedule, except as specifically identified in the
schedule of exceptions annexed thereto, (i) without regard to the proviso
in the definition of “Mortgage File,” all
documents specified in clauses (i), (ii), (iv)(a), (v) and (vii), and to
the extent provided in the related Mortgage File and actually known by a
Responsible Officer of the Trustee to be required, clauses (iii), (iv)(b),
(iv)(c), (vi), (viii), (ix)(a) and (xii) of the definition of “Mortgage File” are in
its possession, (ii) all documents delivered or caused to be delivered by
the applicable Mortgage Loan Seller constituting the related Mortgage File have
been reviewed by it and appear regular on their face and appear to relate to
such Mortgage Loan, (iii) based on such examination and only as to the
foregoing documents, the information set forth in the Mortgage Loan Schedule for
such Mortgage Loan with respect to the items specified in clauses (v) and
(vi)(c) of the definition of “Mortgage Loan
Schedule” is correct and (iv) solely with respect to the Companion
Loans, all documents specified in clause (xiii) of the definition of Mortgage
File are in its possession. Further, with respect to the documents
described in clause (viii) of the definition of Mortgage File, the Trustee
may assume, for purposes of the certification delivered in this
Section 2.02(b) and for purposes of determining (subject to the
proviso at the end of this sentence) where to file UCC Financing Statements,
that the related Mortgage File should include one state level UCC Financing
Statement filing in the state of incorporation of the Mortgagor for each
Mortgaged Property (or with respect to any Mortgage Loan that has two or more
Mortgagors, for each Mortgagor); provided, however, that to the extent
the Trustee has actual knowledge or is notified of any fixture or real property
UCC Financing Statements filed in the county of the state where the related
Mortgaged Property is located, the Trustee shall file an
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assignment
to the Trust Fund with respect to such UCC Financing Statements in the
appropriate jurisdiction under the UCC at the expense of the related Mortgage
Loan Seller. The UCC Financing Statements to be assigned to the Trust
Fund pursuant to Section 2.01(d) will be delivered by the related
Mortgage Loan Seller to the Trustee on the new national forms, in recordable
form and completed pursuant to Revised Article IX of the UCC. The
Trustee will submit such UCC Financing Statements for filing in the state of
incorporation of the related Mortgagor as so indicated on the documents
provided.
(c) None of
the Trustee, the Master Servicer, the Special Servicer or any Custodian is under
any duty or obligation to inspect, review or examine any of the documents,
instruments, certificates or other papers relating to the Mortgage Loans
delivered to it to determine that the same are valid, legal, effective, genuine,
enforceable, in recordable form, sufficient or appropriate for the represented
purpose or that they are other than what they purport to be on their
face.
(d) The
Trustee may establish a Special Reserve Account which shall be an Eligible
Account, and the Trustee or its designee shall deposit any amount required to be
deposited in a Special Reserve Account within one Business Day of
receipt. The related Mortgage Loan Seller may direct the Trustee to
invest or cause the investment of the funds deposited in the Special Reserve
Account in Permitted Investments that bear interest or are sold at a discount
and that mature, unless payable on demand, no later than the Business Day prior
to the next P&I Advance Date. The Trustee shall act upon the
written instructions of the Mortgage Loan Seller with respect to the investment
of the funds in the Special Reserve Account in such Permitted Investments; provided that in the absence
of appropriate and timely written instructions from the related Mortgage Loan
Seller, the Trustee shall not have any obligation to invest or direct the
investment funds in such Special Reserve Account. All income and gain
realized from the investment of funds deposited in such Special Reserve Account
shall be for the benefit of the related Mortgage Loan Seller and shall be
withdrawn by the Trustee or its designees and remitted to the related Mortgage
Loan Seller on each P&I Advance Date (net of any losses incurred), and the
related Mortgage Loan Seller shall remit to the Trustee from the related
Mortgage Loan Seller’s own funds for deposit into such Special Reserve Account
the amount of any Net Investment Loss (net of Net Investment Earnings) in
respect of such Permitted Investments immediately upon realization of such Net
Investment Losses and receipt of written notice thereof from the Trustee; provided that the Mortgage
Loan Seller shall not be required to deposit any loss on an investment of funds
in the Special Reserve Account if such loss is incurred solely as a result of
the insolvency of the federal or state chartered depository institution or trust
company that holds such Special Reserve Account; provided that such depository
institution is not the same entity as such Mortgage Loan Seller. The
Special Reserve Account shall be considered an “outside reserve fund” within the
meaning of the REMIC Provisions, and such Special Reserve Account (or any
reimbursement from REMIC I or REMIC II with respect thereto) will be
beneficially owned by the Mortgage Loan Seller, who shall be taxable on all
income, if any, with respect thereto.
(e) With
respect to exceptions related to clause (xii) of the definition of
“Mortgage File” and any cash or substitute letters of credit held by the Trustee
in the Special Reserve Account from time to time, if circumstances arise in
servicing the related Mortgage Loan such that the Master Servicer or Special
Servicer, as the case may be, is entitled to draw
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upon the
undelivered letter of credit, the Master Servicer or Special Servicer, as the
case may be, shall present an Officer’s Certificate to the Trustee requesting
that the cash or substitute letter of credit held in the Special Reserve
Account, be remitted or released, as the case may be, and the Trustee shall
remit such cash or release such substitute letter of credit within one (1)
Business Day of receipt of such Officer’s Certificate. Upon release
of any substitute letter of credit to the Master Servicer or Special Servicer,
the Trustee shall no longer be responsible for such letter of
credit.
Section
2.03 Mortgage Loan Seller’s
Repurchase or Substitution of Mortgage Loans for Document Defects and Breaches
of Representations and Warranties.
(a) If any
party hereto discovers or receives notice that any document or documents
constituting a part of a Mortgage File (including that part relating to the
[__________] Loan being held by the [__________] Trustee) has not been properly
executed, is missing (beyond the time period required for its delivery
hereunder), contains information that does not conform in any material respect
with the corresponding information set forth in the Mortgage Loan Schedule, or
does not appear to be regular on its face (each a “Document Defect”), or
discovers or receives notice of a breach of any representation or warranty
relating to any Mortgage Loan set forth in the applicable Mortgage Loan Purchase
Agreement (a “Breach”), the party
discovering such Document Defect or Breach shall give written notice (which
notice, in respect of any obligation of the Trustee to provide notice of a
Document Defect, shall be deemed given by the delivery of the certificate as
required by Section 2.02(a)) to the other parties hereto, to the Majority
Subordinate Certificateholder and to the Rating Agencies of such Document Defect
or Breach. Promptly upon becoming aware of any Document Defect or
Breach (including through such written notice provided by any party hereto or
the Majority Subordinate Certificateholder as provided above), if any party
hereto determines that such Document Defect or Breach materially and adversely
affects the value of the affected Mortgage Loan, the interest of the Trust
therein or the interests of any Certificateholder, such party shall notify the
Master Servicer of such determination and promptly after receipt of such notice,
the Master Servicer, or with respect to a Specially Serviced Mortgage Loan, the
Special Servicer, shall request in writing (with a copy to the other parties
hereto, the Majority Subordinate Certificateholder, the Rating Agencies and the
Controlling Class Representative (if different from the Majority Subordinate
Certificateholder)) that the applicable Mortgage Loan Seller, not later than
ninety (90) days from receipt of such written request (or, in the case of a
Document Defect or Breach relating to a Mortgage Loan not being a “qualified mortgage” within the meaning of the
REMIC Provisions, not later than ninety (90) days after any party to this
Agreement discovers such Document Defect or Breach) (i) cure such Document
Defect or Breach, as the case may be, in accordance with
Section 3(c) of the applicable Mortgage Loan Purchase Agreement,
(ii) repurchase the affected Mortgage Loan in accordance with
Section 3(c) of the related Mortgage Loan Purchase Agreement, or
(iii) within two years of the Closing Date, substitute a Qualified
Substitute Mortgage Loan for such affected Mortgage Loan and pay the Master
Servicer for deposit into the Certificate Account any Substitution Shortfall
Amount in connection therewith in accordance with Sections 3(c) and
3(d) of the applicable Mortgage Loan Purchase Agreement; provided, however, that if such
Document Defect or Breach is capable of being cured, but not within such ninety
(90) day period, such Document Defect or Breach does not relate to the Mortgage
Loan not being treated as a “qualified
mortgage” within the meaning of the REMIC Provisions, and the applicable
Mortgage Loan Seller has commenced and is diligently proceeding with the cure
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of such
Document Defect or Breach within such ninety (90) day period, the applicable
Mortgage Loan Seller shall have an additional ninety (90) days to complete such
cure (or, failing such cure, to repurchase the related Mortgage Loan); provided, further, with respect to such
additional ninety (90) day period the applicable Mortgage Loan Seller shall have
delivered an Officer’s Certificate to the Trustee setting forth what actions the
applicable Mortgage Loan Seller is pursuing in connection with the cure thereof
and stating that the applicable Mortgage Loan Seller anticipates such Document
Defect or Breach will be cured within the additional ninety (90) day period;
provided, further, that no Document
Defect (other than with respect to a Mortgage Note, Mortgage, title insurance
policy, Ground Lease, any letter of credit, franchise agreement or any comfort
letter and comfort letter transfer documents (collectively, the “Material Core
Documents”)) shall be considered to materially and adversely affect the
interests of any Certificateholder, the interest of the Trust Fund therein or
the value of the related Mortgage Loan unless the document with respect to which
the Document Defect exists is required in connection with an imminent
enforcement of the mortgagee’s rights or remedies under the related Mortgage
Loan, defending any claim asserted by any borrower or third party with respect
to the Mortgage Loan, establishing the validity or priority of any lien on any
collateral securing the Mortgage Loan or for any immediate significant servicing
obligations; provided,
further, with respect to Document Defects which materially and adversely
affect the interest of any Certificateholder, the interests of the Trust therein
or the value of the related Mortgage Loan, other than with respect to Document
Defects relating to the Material Core Documents, any applicable cure period
following the initial ninety (90) day cure period may be extended by the Master
Servicer or the Special Servicer if the document involved is not needed
imminently. Such extension will end upon 30 days notice of such need
as reasonably determined by the Master Servicer or Special Servicer (with a
possible 30 day extension if the Master Servicer or Special Servicer agrees that
the applicable Mortgage Loan Seller is diligently pursuing a
cure). Pursuant to the related Mortgage Loan Purchase Agreement, the
related Mortgage Loan Seller shall cure all Document Defects which materially
and adversely affect the interests of any Certificateholder, the interests of
the Trust Fund therein or the value of the related Mortgage Loan, regardless of
the document involved, no later than two years following the Closing Date; provided, however, that the
initial ninety (90) day cure period referenced above shall not be
reduced. For a period of two years from the Closing Date, so long as
there remains any Mortgage File as to which there is any uncured Document Defect
and so long as the applicable Mortgage Loan Seller shall provide the Officer’s
Certificate pursuant to Section 3(c) of the applicable Mortgage Loan
Purchase Agreement, the Trustee shall on a quarterly basis prepare and deliver
to the other parties a written report as to the status of such uncured Document
Defects as provided in this Section 2.03. If the affected
Mortgage Loan is to be repurchased or substituted, the Master Servicer shall
designate the Certificate Account as the account to which funds in the amount of
the Purchase Price or the Substitution Shortfall Amount, as applicable, are to
be wired. Any such repurchase or substitution of a Mortgage Loan
shall be on a whole loan, servicing released basis.
If
(i) any Mortgage Loan is required to be repurchased or substituted for in
the manner described in the immediately preceding paragraph, (ii) such
Mortgage Loan is a Crossed Loan, and (iii) the applicable Document Defect
or Breach does not constitute a Document Defect or Breach, as the case may be,
as to any other
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Crossed
Loan in such Crossed Group (without regard to this paragraph), then the
applicable Document Defect or Breach, as the case may be, will be deemed to
constitute a Document Defect or Breach, as the case may be, as to any other
Crossed Loan in the Crossed Group for purposes of this paragraph, and the
related Mortgage Loan Seller will be required to repurchase or substitute for
such other Crossed Loan(s) in the related Crossed Group as provided in the
immediately preceding paragraph unless such other Crossed Loans satisfy the
Crossed Loan Repurchase Criteria and satisfy all other criteria for substitution
and repurchase of Mortgage Loans set forth herein. In the event that
the remaining Crossed Loans in such Crossed Group satisfy the aforementioned
criteria, the Mortgage Loan Seller may elect either to repurchase or substitute
for only the affected Crossed Loan as to which the related Breach or Document
Defect exists or to repurchase or substitute for all of the Crossed Loans in the
related Crossed Group. Any reserve or other cash collateral or
letters of credit securing the Crossed Loans shall be allocated between such
Mortgage Loans in accordance with the Mortgage Loan documents. All
other terms of the Mortgage Loans shall remain in full force and effect without
any modification thereof.
With
respect to any Crossed Loan, to the extent that the applicable Mortgage Loan
Seller is required to repurchase or substitute for such Mortgage Loan in the
manner prescribed in this Section 2.03(a) while the Trustee continues
to hold any other Crossed Loans in the related Crossed Group, the applicable
Mortgage Loan Seller and the Depositor will, as set forth in the related
Mortgage Loan Purchase Agreement (any expenses incurred by the Trustee or the
Master Servicer in connection with any modification or accommodation referred to
in such Mortgage Loan Purchase Agreement (including but not limited to
reasonable attorney fees) shall be paid by the related Mortgage Loan Seller),
forbear from enforcing any remedies against the other’s Primary Collateral but
each will be permitted to exercise remedies against the Primary Collateral
securing its respective Mortgage Loans, including with respect to the Trustee,
the Primary Collateral securing Mortgage Loans still held by the
Trustee.
(b) In
connection with any repurchase or substitution of one or more Mortgage Loans
contemplated by this Section 2.03, upon receipt of a Request for Release
(in the form of Exhibit D-1 attached
hereto) of a Servicing Officer of the Master Servicer certifying as to the
receipt of the applicable Purchase Price(s) in the Certificate Account (in the
case of any such repurchase) or the receipt of the applicable Substitution
Shortfall Amount(s) in the Certificate Account and upon the delivery of the
Mortgage File(s) and the Servicing File(s) for the related Qualified Substitute
Mortgage Loan(s) to the Custodian and the Master Servicer, respectively (in the
case of any such substitution), (i) the Trustee shall execute and deliver
such endorsements and assignments as are provided to it, in each case without
recourse, representation or warranty, as shall be necessary to vest in the
applicable Mortgage Loan Seller the legal and beneficial ownership of each
repurchased Mortgage Loan or deleted Mortgage Loan, as applicable, being
released pursuant to this Section 2.03, and (ii) the Trustee, the
Custodian, the Master Servicer, and the Special Servicer shall each tender to
the applicable Mortgage Loan Seller, upon delivery to each of them of a receipt
executed by the applicable Mortgage Loan Seller, all portions of the Mortgage
File and other documents pertaining to each such Mortgage Loan possessed by it
and the Master Servicer and the Special Servicer shall release to the applicable
Mortgage Loan Seller any Escrow Payments and Reserve Funds held by it in respect
of such repurchased or deleted Mortgage Loan; provided that such tender by
the Trustee or the Custodian shall be conditioned upon its receipt from the
Master Servicer or the Special Servicer of a Request for
Release. Thereafter, the Trustee, the Custodian, the Master Servicer
and the Special Servicer shall have no further responsibility with regard to the
related repurchased Mortgage Loan(s) or deleted Mortgage Loan(s), as applicable,
and the related Mortgage File(s)
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and
Servicing File(s). The Master Servicer shall, and is hereby
authorized and empowered by the Trustee to, prepare, execute and deliver in its
own name, on behalf of the Certificateholders and the Trustee or any of them,
the endorsements and assignments contemplated by this Section 2.03, and the
Trustee shall execute any powers of attorney that are prepared and delivered to
the Trustee by the Master Servicer and are necessary to permit the Master
Servicer to do so. The Master Servicer shall indemnify the Trustee
for any reasonable costs, fees, liabilities and expenses incurred by the Trustee
in connection with the negligent or willful misuse by the Master Servicer of
such powers of attorney. At the time a substitution is made, the
related Mortgage Loan Purchase Agreement will provide that the Mortgage Loan
Seller shall deliver the related Mortgage File to the Trustee and certify that
the substitute Mortgage Loan is a Qualified Substitute Mortgage
Loan.
(c) No
substitution of a Qualified Substitute Mortgage Loan or Loans may be made in any
calendar month after the Determination Date for such month. Periodic
Payments due with respect to any Qualified Substitute Mortgage Loan after the
related date of substitution shall be part of REMIC I. Periodic
Payments due with respect to any Qualified Substitute Mortgage Loan on or prior
to the related date of substitution shall not be part of the Trust Fund or
REMIC I and will (to the extent received by the Master Servicer) be
remitted by the Master Servicer to the applicable Mortgage Loan Seller promptly
following receipt.
(d) Each
Mortgage Loan Purchase Agreement provides the sole remedies available to the
Certificateholders, or the Trustee on behalf of the Certificateholders,
respecting any Document Defect or Breach with respect to the Mortgage Loans
purchased by the Depositor thereunder.
(e) The
Trustee with the cooperation of the Special Servicer (in the case of Specially
Serviced Mortgage Loans) shall, for the benefit of the Certificateholders,
enforce the obligations of the Mortgage Loan Sellers under Section 3 of the
applicable Mortgage Loan Purchase Agreement.
(f) Notwithstanding
the foregoing, if there exists a Breach relating to whether or not the Mortgage
Loan documents or any particular Mortgage Loan document requires the related
Mortgagor to bear the costs and expenses associated with any particular action
or matter under such Mortgage Loan document(s) with respect to matters described
in Representations 23 and 43 of the applicable Mortgage Loan Purchase Agreement,
then the Master Servicer shall (and the Special Servicer may) direct the related
Mortgage Loan Seller in writing to wire transfer to the Certificate Account,
within 90 days of such Mortgage Loan Seller’s receipt of such direction, the
amount of any such costs and expenses borne by the Trust Fund that are the basis
of such Breach. Upon its making such deposit, the related Mortgage
Loan Seller shall be deemed to have cured such Breach in all
respects. Provided such payment is made in full, this paragraph
describes the sole remedy available to the Certificateholders, the Master
Servicer, the Special Servicer, and the Trustee on their behalf regarding any
such Breach and the related Mortgage Loan Seller shall not be obligated to
repurchase the affected Mortgage Loan on account of such Breach or otherwise
cure such Breach. Amounts deposited in the Certificate Account
pursuant to this paragraph shall be used for the reimbursement or payment of
costs related to such Breach.
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(g) With
respect to any Mortgage Loan which has become a Defaulted Mortgage Loan under
this Agreement or with respect to which the related Mortgaged Property has been
foreclosed and which is the subject of a repurchase claim under the related
Mortgage Loan Purchase Agreement, the Special Servicer with the consent of the
Controlling Class Representative shall notify the related Mortgage Loan Seller
in writing of its intention to sell such Defaulted Mortgage Loan or REO Property
at least 45 days prior to any such action. The related Mortgage Loan
Seller shall have 10 Business Days to determine whether or not to consent to
such sale. If the related Mortgage Loan Seller consents to such sale
or a court of competent jurisdiction determines that the related Mortgage Loan
Seller was liable under the related Mortgage Loan Purchase Agreement to
repurchase such Defaulted Mortgage Loan or REO Property then such Mortgage Loan
Seller shall be liable for the difference (if any) between the price of the
Mortgage Loan or REO Property as sold and the price which the related Mortgage
Loan Seller would have to pay if it repurchased such Defaulted Mortgage Loan or
REO Property. If the related Mortgage Loan Seller does not consent to
such sale, the Special Servicer shall contract with a Determination Party as to
the merits of such sale. If the related Determination Party
determines that such sale is in accordance with the Servicing Standard and the
provisions of this Agreement with respect to the sale of Defaulted Mortgage
Loans or REO Properties and subsequent to such a sale, a court of competent
jurisdiction determines that related Mortgage Loan Seller was liable under the
related Mortgage Loan Purchase Agreement and required to repurchase such
Defaulted Mortgage Loan or REO Property in accordance with the terms thereof,
then pursuant to the related Mortgage Loan Purchase Agreement, the related
Mortgage Loan Seller shall remit to the Special Servicer an amount equal to the
difference (if any) between the proceeds of the related action and the price at
which the related Mortgage Loan Seller would have been obligated to pay had the
related Mortgage Loan Seller repurchased such Defaulted Mortgage Loan or REO
Property in accordance with the terms of the related Mortgage Loan Purchase
Agreement including the costs related to contracting with the related
Determination Party. If the related Determination Party determines
that the sale of the related Defaulted Mortgage Loan or REO Property is not in
accordance with the Servicing Standard and the provision of this Agreement with
respect to the sale of Defaulted Mortgage Loans or REO Properties and the
Special Servicer subsequently sells such Mortgage Loan or REO Property, then the
related Mortgage Loan Seller shall not be liable for any such difference (nor
any cost of contracting with the Determination Party). In the event
that (a) the Special Servicer ignores the determination of the Determination
Party and sells the related Defaulted Mortgage Loan or REO Property and/or (b) a
court of competent jurisdiction determines that the related Mortgage Loan Seller
is not obligated to repurchase the related Defaulted Mortgage or REO Property,
the costs of contracting with the Determination Party will constitute an
Additional Trust Fund Expense. If the related Mortgage Loan Seller is
required pursuant to the related Mortgage Loan Purchase Agreement to remit the
amounts set forth in this Section 2.03(g), the Special Servicer shall designate
the Certificate Account as the account to which such funds shall be
wired.
Section
2.04 Representations and
Warranties of Depositor.
(a) The
Depositor hereby represents and warrants to the Trustee, for its own benefit and
the benefit of the Certificateholders, and to the Master Servicer, the Paying
Agent and the Special Servicer, as of the Closing Date, that:
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(i) The
Depositor is a corporation duly organized, validly existing and in good standing
under the laws of the State of North Carolina;
(ii) The
execution and delivery of this Agreement by the Depositor, and the performance
and compliance with the terms of this Agreement by the Depositor, will not
violate the Depositor’s certificate of incorporation or bylaws or constitute a
default (or an event which, with notice or lapse of time, or both, would
constitute a default) under, or result in the breach of, any material agreement
or other instrument to which it is a party or which is applicable to it or any
of its assets;
(iii) The
Depositor has the full power and authority to enter into and consummate all
transactions contemplated by this Agreement, has duly authorized the execution,
delivery and performance of this Agreement, and has duly executed and delivered
this Agreement;
(iv) This
Agreement, assuming due authorization, execution and delivery by each of the
other parties hereto, constitutes a valid, legal and binding obligation of the
Depositor, enforceable against the Depositor in accordance with the terms
hereof, subject to (A) applicable bankruptcy, insolvency, reorganization,
moratorium and other laws affecting the enforcement of creditors’ rights
generally, and (B) general principles of equity, regardless of whether such
enforcement is considered in a proceeding in equity or at law;
(v) The
Depositor is not in violation of, and its execution and delivery of this
Agreement and its performance and compliance with the terms of this Agreement
will not constitute a violation of, any law, any order or decree of any court or
arbiter, or any order, regulation or demand of any federal, state or local
governmental or regulatory authority, which violation, in the Depositor’s good
faith and reasonable judgment, is likely to affect materially and adversely
either the ability of the Depositor to perform its obligations under this
Agreement or the financial condition of the Depositor;
(vi) The
transfer of the Mortgage Loans to the Trustee as contemplated herein requires no
regulatory approval, other than any such approvals as have been obtained, and is
not subject to any bulk transfer or similar law in effect in any applicable
jurisdiction;
(vii) No
litigation is pending or, to the best of the Depositor’s knowledge, threatened
against the Depositor that, if determined adversely to the Depositor, would
prohibit the Depositor from entering into this Agreement or that, in the
Depositor’s good faith and reasonable judgment, is likely to materially and
adversely affect either the ability of the Depositor to perform its obligations
under this Agreement or the financial condition of the Depositor;
(viii) Immediately
prior to the transfer of the Mortgage Loans to the Trust Fund pursuant to this
Agreement, (A) the Depositor had good and marketable title to, and was the sole
owner and holder of, each Mortgage Loan; and (B) the Depositor has full right
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and
authority to sell, assign and transfer the Mortgage Loans and all servicing
rights pertaining thereto; and
(ix) The
Depositor is transferring the Mortgage Loans to the Trust Fund free and clear of
any liens, pledges, charges and security interests.
(b) The
representations and warranties of the Depositor set forth in
Section 2.04(a) shall survive the execution and delivery of this
Agreement and shall inure to the benefit of the Persons for whose benefit they
were made for so long as the Trust Fund remains in existence. Upon
discovery by any party hereto of any breach of any of the foregoing
representations and warranties, the party discovering such breach shall give
prompt written notice thereof to the other parties.
Section
2.05 Conveyance of Mortgage
Loans; Acceptance of REMIC I and Additional Interest Grantor Trust by
Trustee.
The
Depositor, as of the Closing Date, and concurrently with the execution and
delivery of this Agreement, does hereby assign without recourse all the right,
title and interest of the Depositor in and to (a) the Mortgage Loans (other than
any Additional Interest related thereto) and the other property comprising
REMIC I to the Trustee for the benefit of the Holders of the Class R-I
Certificates (in respect of the residual interest in REMIC I) and
REMIC II as the holder of the REMIC I Regular Interests and
(b) the Additional Interest and the other property comprising the
Additional Interest Grantor Trust to the Trustee for the benefit of the Holders
of the Class Z Certificates. The Trustee acknowledges the
assignment to it of the Mortgage Loans and the other property comprising
REMIC I and the Additional Interest Grantor Trust, and declares that it
holds and will hold the same in trust for the exclusive use and benefit of
REMIC II as the holder of the REMIC I Regular Interests and present
and future holders of the Certificates (other than the Class Z
Certificates) and, as to the Additional Interest Grantor Trust, for the benefit
of the Holders of the Class Z Certificates.
Section
2.06 Issuance of the REMIC I
Regular Interests; Execution, Authentication and Delivery of Class R-I
Certificates.
Concurrently
with the assignment to the Trustee of the Mortgage Loans (other than any
Additional Interest related thereto) and in exchange therefor, the Trustee
acknowledges the issuance of the REMIC I Regular Interests, to or upon the order
of the Depositor and, pursuant to the written request of the Depositor executed
by an officer of the Depositor, has executed, as the Certificate Registrar and
the Authenticating Agent has authenticated and delivered to or upon the order of
the Depositor, the Class R-I Certificates.
Section
2.07 Conveyance of REMIC I
Regular Interests; Acceptance of REMIC II by Trustee.
The
Depositor, as of the Closing Date, and concurrently with the execution and
delivery of this Agreement, does hereby assign without recourse all the right,
title and interest of the Depositor in and to the REMIC I Regular Interests
to the Trustee for the benefit of the respective Holders of the REMIC II
Certificates. The Trustee acknowledges the assignment to it
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of the
REMIC I Regular Interests and declares that it holds and will hold the same
in trust for the exclusive use and benefit of all present and future Holders of
the REMIC II Certificates.
Section
2.08 Execution, Authentication
and Delivery of REMIC II Certificates.
Concurrently
with the assignment to the Trustee of the REMIC I Regular Interests and in
exchange therefor, and pursuant to the written request of the Depositor,
executed by an affiliate of the Depositor, the Trustee, as Certificate
Registrar, has executed, and the Trustee, as Authenticating Agent, has
authenticated and delivered to or upon the order of the Depositor, the
REMIC II Certificates in authorized denominations evidencing the entire
beneficial ownership of REMIC II. The rights of the holders of
the respective Classes of REMIC II Certificates to receive distributions
from the proceeds of REMIC II in respect of their REMIC II
Certificates, and all ownership interests evidenced or constituted by the
respective Classes of REMIC II Certificates in such distributions, shall be
as set forth in this Agreement.
Section
2.09 [Reserved].
Section
2.10 Execution, Authentication
and Delivery of Class Z Certificates.
Concurrently
with the assignment to the Trustee of the Additional Interest, and in exchange
therefor, the Trustee, pursuant to the written request of the Depositor executed
by an officer of the Depositor, has executed, as Certificate Registrar,
authenticated, as Authenticating Agent, delivered to or upon the order of the
Depositor, the Class Z Certificates.
ARTICLE
III
ADMINISTRATION
AND SERVICING OF THE TRUST FUND
Section
3.01 Administration of the
Mortgage Loans.
(a) Each of
the Master Servicer and the Special Servicer shall service and administer the
Mortgage Loans and Companion Loans that each is obligated to service and
administer pursuant to this Agreement on behalf of the Trustee, for the benefit
of the Certificateholders and in the case of the Companion Loans, the related
Companion Holder, in accordance with any and all applicable laws, the terms of
this Agreement (and, with respect to a Loan Pair, the related Intercreditor
Agreement), the terms of the respective Mortgage Loans, and, if applicable, the
Companion Loans and, to the extent consistent with the foregoing, in accordance
with the Servicing Standard. With respect to any Loan Pair, in the
event of a conflict between this Agreement and the related Intercreditor
Agreement, the Intercreditor Agreement will control; provided that in no event
shall the Master Servicer or Special Servicer take any action or omit to take
any action in accordance with the terms of any Intercreditor Agreement that
would cause such servicer to violate the Servicing Standard or the REMIC
Provisions. Without limiting the foregoing, and subject to
Section 3.21, (i) the Master Servicer shall service and administer all
Mortgage Loans and the Companion Loans that are not Specially Serviced Mortgage
Loans, and (ii) the Special Servicer shall service and administer each
Specially Serviced Mortgage Loan and REO Property and shall render such services
with respect to all Mortgage Loans, Companion Loans and REO Properties as are
specifically provided for herein;
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provided that the Master
Servicer shall continue to receive payments, make all calculations, and prepare,
or cause to be prepared, all reports required hereunder with respect to the
Specially Serviced Mortgage Loans, except for the reports specified herein as
prepared by the Special Servicer, as if no Servicing Transfer Event had occurred
and with respect to the REO Properties (and the related REO Loans) as if no REO
Acquisition had occurred, and to render such incidental services with respect to
such Specially Serviced Mortgage Loans and REO Properties as are specifically
provided for herein; provided, further, however, that the Master
Servicer shall not be liable for its failure to comply with such duties insofar
as such failure results from a failure by the Special Servicer to provide
sufficient information to the Master Servicer to comply with such duties or
failure by the Special Servicer to otherwise comply with its obligations
hereunder; provided,
further, that the
Special Servicer shall not be liable for its failure to comply with such duties
insofar as such failure results from a failure by the Master Servicer to provide
sufficient information to the extent required herein to the Special Servicer to
comply with such duties or failure by the Master Servicer to otherwise comply
with its obligations hereunder. All references herein to the
respective duties of the Master Servicer and the Special Servicer, and to the
areas in which they may exercise discretion, shall be subject to
Section 3.21.
With
respect to the [__________] Loan, in the event that it or any successor REO Loan
is no longer part of the Mortgage Pool, then (upon request) the Master Servicer
and the Special Servicer will continue to service and administer the related
Loan Pair or any related REO Property, as and to the extent contemplated by the
related Intercreditor Agreement.
The
parties hereto acknowledge that the [__________] Serviced Mortgage Loan and its
related Companion Loan is being serviced and administered under the [__________]
Pooling and Servicing Agreement. The Master Servicer, the Special
Servicer, the Trustee and the Paying Agent shall have no obligation or authority
(i) to service and administer the [__________] Serviced Mortgage Loan or
its related Companion Loan (except for the limited duties with respect to the
[__________] Serviced Mortgage Loan expressly provided herein), (ii) to
supervise the [__________] Master Servicer, the [__________] Special Servicer or
the [__________] Trustee or (iii) to make Servicing Advances or P&I
Advances (except to the limited extent described in Section 4.03 with respect to
P&I Advances to be made by the Master Servicer or the Trustee on the
[__________] Serviced Mortgage Loan). In addition to any other
obligations expressly set forth herein by specific reference to the [__________]
Serviced Mortgage Loan, the Master Servicer, the Special Servicer, the Trustee
and the Paying Agent shall have the following obligations with respect to the
[__________] Serviced Mortgage Loan, as the case may be:
(i) The
Trustee and the Paying Agent shall have the obligation described under Section
2.02 with respect to the Mortgage File for the [__________] Serviced Mortgage
Loan;
(ii) Each
of the Master Servicer, the Special Servicer and the Trustee shall have the
obligations applicable to such party under Section 2.03 with respect to the
[__________] Serviced Mortgage Loan;
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(iii) The
Master Servicer shall have the obligations described under Sections 3.04
and 3.05 with respect to all amounts received from the [__________] Master
Servicer with respect to the [__________] Serviced Mortgage Loan;
(iv) The
Trustee shall have the obligations described under Section 3.10 with respect to
the Mortgage File for the [__________] Serviced Mortgage Loan;
(v) Upon
receipt of information and reports on the [__________] Serviced Mortgage Loan
from the [__________] Master Servicer, the Master Servicer shall include such
information in the reports and notices required under Section 3.12;
(vi) The
Master Servicer and the Paying Agent shall each have the obligations applicable
to such party under Section 3.15 with respect to information and reports it has
received regarding the [__________] Serviced Mortgage Loan;
(vii) Each
of the Master Servicer, the Special Servicer, the Trustee and the Paying Agent
shall have the obligations applicable to such party under Section 3.18 with
respect to the [__________] Serviced Mortgage Loan; and
(viii) The
Master Servicer shall have the obligations described under Section 3.19(a)
with respect to any Prepayment Interest Shortfall on the [__________] Serviced
Mortgage Loan.
The
obligation of the Master Servicer to provide information and collections to the
Paying Agent and the Certificateholders with respect to the [__________]
Serviced Mortgage Loan shall be dependent on its receipt of the corresponding
information and collections from the [__________] Master Servicer or the
[__________] Special Servicer.
(b) Subject
to Section 3.01(a) and Section 6.11, the Master Servicer and the
Special Servicer each shall have full power and authority, acting alone, to do
or cause to be done any and all things in connection with such servicing and
administration which it may deem necessary or desirable. Without
limiting the generality of the foregoing, each of the Master Servicer and the
Special Servicer, in its own name, with respect to each of the Mortgage Loans
and Companion Loans it is obligated to service hereunder, is hereby authorized
and empowered by the Trustee and, pursuant to each Intercreditor Agreement, the
Companion Holders to execute and deliver, on behalf of the Certificateholders,
the Companion Holders and the Trustee or any of them, (i) any and all
financing statements, continuation statements and other documents or instruments
necessary to maintain the lien created by any Mortgage or other security
document in the related Mortgage File on the related Mortgaged Property and
related collateral; (ii) in accordance with the Servicing Standard and
subject to Section 3.20 and Section 6.11, any and all modifications,
waivers, amendments or consents to or with respect to any documents contained in
the related Mortgage File; (iii) any and all instruments of satisfaction or
cancellation, or of partial or full release, discharge, or assignment, and all
other comparable instruments; and (iv) pledge agreements and other
defeasance documents in connection with a defeasance contemplated pursuant to
Section 3.20(h). Subject to Section 3.10, the Trustee
shall, at the written request of the Master Servicer or the Special Servicer,
promptly execute any limited powers of attorney and other documents furnished by
the Master Servicer or the Special Servicer
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that are
necessary or appropriate to enable them to carry out their servicing and
administrative duties hereunder; provided, however, that the Trustee
shall not be held liable for any misuse of any such power of attorney by the
Master Servicer or the Special Servicer; provided, further, that, the Master
Servicer and the Special Servicer shall not, without the Trustee’s written
consent, (A) initiate any action in the Trustee’s name without indicating the
Master Servicer’s or Special Servicer’s representative capacity or (B) cause the
Trustee to be registered to do business in any state.
(c) The
relationship of each of the Master Servicer and the Special Servicer to the
Trustee under this Agreement is intended by the parties to be that of an
independent contractor and not that of a joint venture, partner or
agent. Unless the same Person acts as both Master Servicer and
Special Servicer, the Master Servicer shall not be responsible for the actions
of or failure to act by the Special Servicer and the Special Servicer shall not
be responsible for the actions of or the failure to act by the Master
Servicer.
(d) Notwithstanding
anything herein to the contrary, in no event shall the Master Servicer make a
Servicing Advance with respect to any Companion Loan to the extent the related
Co-Lender Loan has been paid in full or is no longer included in the Trust
Fund.
(e) Servicing
and administration of each Companion Loan shall continue hereunder for so long
as the corresponding Co-Lender Loan or any related REO Property is part of the
Trust Fund or for such longer period as any amounts payable by the related
Companion Holder to or for the benefit of the Trust Fund or any party hereto in
accordance with the related Intercreditor Agreement remain due and owing; provided, however, if any Companion
Loan is securitized, the Master Servicer’s servicing obligations and duties with
respect to the related Companion Loan shall be limited to those obligations and
duties described in the related Intercreditor Agreement and this
Agreement.
Section
3.02 Collection of Mortgage Loan
Payments.
(a) Each of
the Master Servicer or the Special Servicer shall undertake reasonable efforts
consistent with the Servicing Standard to collect all payments required under
the terms and provisions of the Mortgage Loans and Companion Loans it is
obligated to service hereunder and shall, to the extent such procedures shall be
consistent with this Agreement, follow such collection procedures in accordance
with the Servicing Standard; provided, however, that nothing herein
shall be construed as an express or implied guarantee by the Master Servicer or
the Special Servicer of collectibility; provided, further that with respect to
the Mortgage Loans that have Anticipated Repayment Dates, so long as the related
Mortgagor is in compliance with each provision of the related Mortgage Loan
documents, the Master Servicer and Special Servicer (including the Special
Servicer in its capacity as a Certificateholder), shall not take any enforcement
action with respect to the failure of the related Mortgagor to make any payment
of Additional Interest or principal in excess of the principal component of the
constant Periodic Payment, other than requests for collection, until the
maturity date of the related Mortgage Loan; provided that the Master
Servicer or Special Servicer, as the case may be, may take action to enforce the
Trust Fund’s right to apply excess cash flow to principal in accordance with the
terms of the Mortgage Loan documents. Consistent with the foregoing
and subject to Section 3.20, the Special Servicer, with regard to a
Specially Serviced Mortgage Loan, or the
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Master
Servicer, with regard to a Mortgage Loan or Companion Loan that is not a
Specially Serviced Mortgage Loan, may waive any Penalty Interest or late payment
charge in connection with any payment on a Mortgage Loan or Companion
Loan.
(b) All
amounts collected in respect of any Mortgage Loan or Companion Loan in the form
of payments from Mortgagors, Liquidation Proceeds (insofar as such Liquidation
Proceeds are of the nature described in clauses (i) through (iii) of
the definition thereof) or Insurance Proceeds shall be applied to either amounts
due and owing under the related Mortgage Note and Mortgage (including, without
limitation, for principal and accrued and unpaid interest) in accordance with
the express provisions of the related Mortgage Note and Mortgage (and, with
respect to a Loan Pair, the related Intercreditor Agreement) or, if required
pursuant to the express provisions of the related Mortgage, or as determined by
the Master Servicer or Special Servicer in accordance with the Servicing
Standard, to the repair or restoration of the related Mortgaged Property, and,
in the absence of such express provisions, shall be applied for purposes of this
Agreement: first, as a recovery
of any related and unreimbursed Advances plus unreimbursed
interest accrued thereon; second, as a recovery
of Nonrecoverable Advances, Unliquidated Advances and Workout Delayed
Reimbursement Amounts (including interest on such Nonrecoverable Advances), that
were paid from collections on the Mortgage Loans (allocable to principal) and
resulted in principal from the Mortgage Pool distributed to the
Certificateholders being reduced pursuant to Section 3.05(a) hereof;
third, as a
recovery of accrued and unpaid interest at the related Mortgage Rate on such
Mortgage Loan, to the extent such amounts have not been previously advanced, and
exclusive of any portion thereof that constitutes Additional Interest; fourth, as a recovery
of principal of such Mortgage Loan then due and owing, to the extent such
amounts have not been previously advanced, including, without limitation, by
reason of acceleration of the Mortgage Loan following a default thereunder;
fifth, in
accordance with the normal servicing practices of the Master Servicer or the
Special Servicer, as a recovery of any other amounts then due and owing under
such Mortgage Loan (other than Additional Interest), including, without
limitation, Prepayment Premiums, Yield Maintenance Charges and Penalty Interest;
sixth, as a
recovery of any remaining principal of such Mortgage Loan to the extent of its
entire remaining unpaid principal balance; and seventh, with respect
to any ARD Loan after its Anticipated Repayment Date, as a recovery of any
unpaid Additional Interest. All amounts collected on any Mortgage
Loan in the form of Liquidation Proceeds of the nature described in clauses
(iv) through (vi) of the definition thereof shall be deemed to be
applied: first, as a recovery
of any related and unreimbursed Advances plus interest accrued
thereon; second, as a recovery
of accrued and unpaid interest at the related Mortgage Rate on such Mortgage
Loan to but not including the Due Date in the Collection Period of receipt, to
the extent such amounts have not been previously advanced, and exclusive of any
portion thereof that constitutes Additional Interest; third, as a recovery
of principal, to the extent such amounts have not been previously advanced, of
such Mortgage Loan to the extent of its entire unpaid principal balance; and
fourth, with
respect to any ARD Loan after its Anticipated Repayment Date, as a recovery of
any unpaid Additional Interest. No such amounts shall be applied to
the items constituting additional servicing compensation as described in the
first sentence of either Section 3.11(b) or 3.11(d) unless and
until all principal and interest then due and payable on such Mortgage Loan has
been collected. Amounts collected on any REO Loan shall be deemed to
be applied in accordance with the definition thereof. The provisions
of this paragraph with respect to the application of amounts collected on any
Mortgage Loan shall not alter in any way the right of the Master Servicer, the
Special Servicer or any other Person to
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receive
payments from the Certificate Account as set forth in clauses (ii) through
(xv) of Section 3.05(a) from amounts so applied.
(c) Within 60
days after the later of (i) the Closing Date and (ii) the Master
Servicer’s receipt of the applicable letter of credit, the Master Servicer shall
notify each provider of a letter of credit for each Mortgage Loan identified as
having a letter of credit on the Mortgage Loan Schedule, that the Master
Servicer or the Special Servicer on behalf of the Trustee for the benefit of the
Certificateholders shall be the beneficiary under each such letter of
credit. If a draw upon a letter of credit is needed before its
transfer to the Trust Fund can be completed, the applicable Mortgage Loan Seller
shall draw upon such letter of credit for the benefit of the Trust pursuant to
written instructions from the Master Servicer.
(d) In the
event that the Master Servicer or Special Servicer receives Additional Interest
in any Collection Period, or receives notice from the related Mortgagor that the
Master Servicer or Special Servicer will be receiving Additional Interest in any
Collection Period, the Master Servicer or Special Servicer, as applicable, will
promptly notify the Trustee. Subject to the provisions of
Section 3.02(a) hereof, none of the Master Servicer, the Trustee or
the Special Servicer shall be responsible for any such Additional Interest not
collected after notice from the related Mortgagor.
(e) With
respect to any Mortgage Loan in connection with which the Mortgagor was required
to escrow funds or to post a letter of credit related to obtaining certain
performance objectives described in the applicable Mortgage Loan documents, the
Master Servicer shall, to the extent consistent with the Servicing Standard,
hold such escrows, letters of credit and proceeds thereof as additional
collateral and not apply such items to reduce the principal balance of such
Mortgage Loan unless otherwise required to do so pursuant to the applicable
Mortgage Loan documents.
Section
3.03 Collection of Taxes,
Assessments and Similar Items; Servicing Accounts; Reserve
Accounts.
(a) The
Master Servicer shall, as to all Mortgage Loans and Companion Loans, establish
and maintain one or more accounts (the “Servicing Accounts”),
into which all Escrow Payments shall be deposited and retained, and shall
administer such accounts in accordance with the terms of the Mortgage Loan
documents. Each Servicing Account shall be an Eligible
Account. Withdrawals of amounts so collected from a Servicing Account
may be made (to the extent amounts have been escrowed for such purpose) only
to: (i) effect payment of items for which Escrow Payments were
collected and comparable items; (ii) reimburse the Master Servicer or the
Trustee for any unreimbursed Servicing Advances; (iii) refund to Mortgagors
any sums as may be determined to be overages; (iv) pay interest, if
required and as described below, to Mortgagors on balances in the Servicing
Account; (v) pay itself interest and investment income on balances in the
Servicing Account as described in Section 3.06(b), if and to the extent not
required by law or the terms of the applicable Mortgage Loan to be paid to the
Mortgagor; (vi) withdraw amounts deposited in error or (vii) clear and
terminate the Servicing Account at the termination of this Agreement in
accordance with Section 9.01. To the extent permitted by law or
the applicable Mortgage Loan, funds in the Servicing Accounts may be invested
only in Permitted Investments in accordance with the provisions of
Section 3.06 and in
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accordance
with the terms of the related Mortgage Loan documents. The Master
Servicer shall pay or cause to be paid to the Mortgagors interest, if any,
earned on the investment of funds in Servicing Accounts maintained thereby, if
required by law or the terms of the related Mortgage Loan. If the
Master Servicer shall deposit in a Servicing Account any amount not required to
be deposited therein, it may at any time withdraw such amount from such
Servicing Account, any provision herein to the contrary
notwithstanding. The Servicing Accounts shall not be considered part
of the segregated pool of assets constituting REMIC I, REMIC II or the
Additional Interest Grantor Trust.
(b) The
Master Servicer (for the Mortgage Loans other than Specially Serviced Mortgage
Loans, the [__________] Serviced Mortgage Loan and REO Loans) or the Special
Servicer (for Specially Serviced Mortgage Loans and REO Loans) shall
(i) maintain accurate records with respect to the related Mortgaged
Property reflecting the status of real estate taxes, assessments and other
similar items that are or may become a lien thereon and the status of insurance
premiums and any ground rents payable in respect thereof and (ii) use
reasonable efforts to obtain, from time to time, all bills for the payment of
such items (including renewal premiums) and shall effect payment thereof prior
to the applicable penalty or termination date and, in any event, prior to the
institution of foreclosure or similar proceedings with respect to the related
Mortgaged Property for nonpayment of such items. For purposes of
effecting any such payment for which it is responsible, the Master Servicer
shall apply Escrow Payments (at the direction of the Special Servicer for
Specially Serviced Mortgage Loans and REO Loans) as allowed under the terms of
the related Mortgage Loan or Companion Loan or, if such Mortgage Loan or
Companion Loan does not require the related Mortgagor to escrow for the payment
of real estate taxes, assessments, insurance premiums, ground rents (if
applicable) and similar items, the Master Servicer shall, as to all Mortgage
Loans or Companion Loans, use reasonable efforts consistent with the Servicing
Standard to enforce the requirement of the related Mortgage that the Mortgagor
make payments in respect of such items at the time they first become due, and,
in any event, prior to the institution of foreclosure or similar proceedings
with respect to the related Mortgaged Property for nonpayment of such
items.
(c) The
Master Servicer shall, as to all Mortgage Loans and Companion Loans, subject to
Section 3.01(d), make a Servicing Advance with respect to the related
Mortgaged Property in an amount equal to all such funds as are necessary for the
purpose of effecting the payment of (i) real estate taxes, assessments,
penalties and other similar items, (ii) ground rents (if applicable), and
(iii) premiums on Insurance Policies in each instance if and to the extent
Escrow Payments (if any) collected from the related Mortgagor are insufficient
to pay such item when due and the related Mortgagor has failed to pay such item
on a timely basis; provided that the Master
Servicer shall not make any Servicing Advance prior to the penalty date or
cancellation date, as applicable, if the Master Servicer reasonably anticipates
in accordance with the Servicing Standard that the Mortgagor will pay such
amount on or before the penalty date or cancellation date; provided, further, that the Master
Servicer shall not be obligated to make any Servicing Advance that would, if
made, constitute a Nonrecoverable Servicing Advance but may, but is not required
to, pay such amounts out of funds in the Certificate Account if it determines
that such payment would be in the best interests of the Certificateholders and
such payment may be withdrawn from amounts in the Certificate Account; provided that the Master
Servicer may conclusively rely upon any such determination by the Special
Servicer. All such Servicing Advances or amounts withdrawn from the
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Certificate
Account shall be reimbursable in the first instance from related collections
from the Mortgagors, and further as provided in
Section 3.05(a). No costs incurred by the Master Servicer or the
Trustee in effecting the payment of real estate taxes, assessments and, if
applicable, ground rents on or in respect of such Mortgaged Properties shall,
for purposes of this Agreement, including, without limitation, the Paying
Agent’s calculation of monthly distributions to Certificateholders, be added to
the unpaid Stated Principal Balances of the related Mortgage Loans or Companion
Loans, notwithstanding that the terms of such Mortgage Loans or Companion Loans
so permit. The foregoing shall in no way limit the Master Servicer’s
ability to charge and collect from the Mortgagor such costs together with
interest thereon. In addition to any other rights to recovery set
forth herein with respect to any Servicing Advance made on the [__________]
Whole Loan, the Master Servicer or the Trustee, as applicable, shall be entitled
to recovery of a portion of such amounts without duplication from the holder of
the [__________] Companion Loan pursuant to the terms of the [__________]
Intercreditor Agreement.
The
Special Servicer shall give the Master Servicer and the Trustee not less than
five Business Days’ notice with respect to Servicing Advances to be made on any
Specially Serviced Mortgage Loan or REO Property, before the date on which the
Master Servicer is required to make any Servicing Advance with respect to a
given Mortgage Loan, Companion Loan or REO Property; provided, however, that only two
Business Days’ notice shall be required in respect of Servicing Advances
required to be made on an urgent or emergency basis (which may include, without
limitation, Servicing Advances required to make tax or insurance
payments). In addition, the Special Servicer shall provide the Master
Servicer and the Trustee with such information in its possession as
the Master Servicer or the Trustee, as applicable, may reasonably request to
enable the Master Servicer or the Trustee, as applicable, to determine whether a
requested Servicing Advance would constitute a Nonrecoverable Servicing
Advance. Any request by the Special Servicer that the Master Servicer
make a Servicing Advance shall be deemed to be a determination by the Special
Servicer that such requested Servicing Advance is not a Nonrecoverable Servicing
Advance, and the Master Servicer shall be entitled to conclusively rely on such
determination. On the fourth Business Day before each Distribution
Date, the Special Servicer shall report to the Master Servicer the Special
Servicer’s determination as to whether any Servicing Advance previously made
with respect to a Specially Serviced Mortgage Loan or REO Loan is a
Nonrecoverable Servicing Advance. The Master Servicer shall be
entitled to conclusively rely on such a determination.
If the
Master Servicer is required under any provision of this Agreement (including,
but not limited to, this Section 3.03(c)) to make a Servicing Advance, but
does not do so within 15 days after such Advance is required to be made (or such
shorter period as may be required to avoid foreclosure of liens for delinquent
real estate taxes or a lapse in insurance coverage), the Trustee shall, if a
Responsible Officer of the Trustee has actual knowledge of such failure on the
part of the Master Servicer, give written notice of such failure to the Master
Servicer. If such Servicing Advance is not made by the Master
Servicer within three Business Days after such notice then (subject to a
determination that such Servicing Advance would not be a Nonrecoverable
Servicing Advance) the Trustee shall make such Servicing Advance. Any
failure by the Master Servicer to make a Servicing Advance hereunder shall
constitute an Event of Default by the Master Servicer subject to and as provided
in Section 7.01.
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(d) In
connection with its recovery of any Servicing Advance from the Certificate
Account pursuant to Section 3.05(a), each of the Master Servicer and the
Trustee shall be entitled to receive, out of any amounts then on deposit in the
Certificate Account, any unpaid interest at the Reimbursement Rate in effect
from time to time, compounded annually, accrued on the amount of such Servicing
Advance (to the extent made with its own funds) from the date made to but not
including the date of reimbursement such interest to be payable, subject to the
terms of the related Intercreditor Agreement with respect to a Loan Pair, first
out of late payment charges and Penalty Interest received on the related
Mortgage Loan or REO Property during the Collection Period in which such
reimbursement is made, and to the extent that such late payment charges and
Penalty Interest are insufficient, but only after or at the same time the
related Advance has been or is reimbursed pursuant to this Agreement, then from
general collections on the Mortgage Loans then on deposit in the Certificate
Account. The Master Servicer shall reimburse itself or the Trustee,
as applicable, for any outstanding Servicing Advance made thereby as soon as
practicable after funds available for such purpose have been received by the
Master Servicer, and in no event shall interest accrue in accordance with this
Section 3.03(d) on any Servicing Advance as to which the corresponding
Escrow Payment or other similar payment by the Mortgagor was received by the
Master Servicer on or prior to the date the related Servicing Advance was
made. Notwithstanding anything herein to the contrary, in no event
shall the Master Servicer or the Trustee make any Servicing Advances with
respect to any Companion Loan after the related Co-Lender Loan has been paid in
full.
(e) The
determination by the Master Servicer or the Special Servicer that the Master
Servicer has made a Nonrecoverable Servicing Advance or that any proposed
Servicing Advance, if made, would constitute a Nonrecoverable Servicing Advance,
shall be made in accordance with the Servicing Standard and shall be evidenced
by an Officer’s Certificate delivered promptly to the Trustee and the Depositor,
setting forth the basis for such determination, together with a copy of any
Appraisal (the cost of which may be paid out of the Certificate Account pursuant
to Section 3.05(a)) of the related Mortgaged Property or REO Property, as
the case may be; which Appraisal shall be conducted pursuant to
Section 3.09(a) by the Master Servicer, or by or on behalf of the
Special Servicer if the Mortgage Loan is a Specially Serviced Mortgage Loan or,
if no such Appraisal has been performed, a copy of an Appraisal of the related
Mortgaged Property or REO Property, performed within the twelve months preceding
such determination and the party delivering such appraisal has no actual
knowledge of a material adverse change in the condition of the related Mortgaged
Property that would draw into question the applicability of such Appraisal, by
an Independent Appraiser or other expert in real estate matters, and further
accompanied by related Mortgagor operating statements and financial statements,
budgets and rent rolls of the related Mortgaged Property and any engineers’
reports, environmental surveys or similar reports that the Master Servicer or
the Special Servicer may have obtained and that support such
determination. The Master Servicer shall be entitled to rely,
conclusively, on any determination by the Special Servicer that a Servicing
Advance, if made, would be a Nonrecoverable Advance. The Trustee
shall be entitled to rely, conclusively, on any determination by the Master
Servicer or the Special Servicer that a Servicing Advance, if made, would be a
Nonrecoverable Advance; provided, however, that, if the Master
Servicer has failed to make a Servicing Advance for reasons other than a
determination by the Master Servicer or the Special Servicer that such Servicing
Advance would be a Nonrecoverable Advance, the Trustee shall make such Servicing
Advance within the time
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periods
required by Section 3.03(c) unless the Trustee in good faith, makes a
determination that such Servicing Advance would be a Nonrecoverable
Advance.
(f) The
Master Servicer shall, as to all Mortgage Loans and Companion Loans, establish
and maintain, as applicable, one or more accounts (the “Reserve Accounts”),
into which all Reserve Funds, if any, shall be deposited and
retained. Withdrawals of amounts so deposited may be made (i) to
pay for, or to reimburse the related Mortgagor in connection with, the related
environmental remediation, repairs and/or capital improvements at the related
Mortgaged Property if the repairs and/or capital improvements have been
completed, and such withdrawals are made in accordance with the Servicing
Standard and the terms of the related Mortgage Note, Mortgage and any agreement
with the related Mortgagor governing such Reserve Funds and any other items for
which such Reserve Funds were intended pursuant to the loan documents and
(ii) to pay the Master Servicer interest and investment income earned on
amounts in the Reserve Accounts as described below if permitted under the
related Mortgage Loan documents. To the extent permitted in the
applicable Mortgage, funds in the Reserve Accounts to the extent invested may be
only invested in Permitted Investments in accordance with the provisions of
Section 3.06. All Reserve Accounts shall be Eligible
Accounts. The Reserve Accounts shall not be considered part of the
segregated pool of assets comprising REMIC I, REMIC II or the
Additional Interest Grantor Trust. Consistent with the Servicing
Standard, the Master Servicer may waive or extend the date set forth in any
agreement governing such Reserve Funds by which the required repairs and/or
capital improvements at the related Mortgaged Property must be
completed.
Section
3.04 Certificate Account,
Interest Reserve Account, Gain-on-Sale Reserve Account, Additional Interest
Account, Distribution Account and Companion Distribution
Account.
(a) The
Master Servicer shall establish and maintain one or more accounts (collectively,
the “Certificate
Account”), held on behalf of the Trustee in trust for the benefit of the
Certificateholders and, to the extent funds on deposit in the Certificate
Account are allocable to the related Companion Loans, the related Companion
Holders, but solely to the extent set forth in the related Intercreditor
Agreement and subject to any provisions relating to subordination of rights with
respect to the Co-Lender Loans. The Certificate Account shall be an
Eligible Account. The Master Servicer shall deposit or cause to be
deposited in the Certificate Account, within one Business Day of receipt of
available funds (in the case of payments by Mortgagors or other collections on
the Mortgage Loans or the Companion Loans) or as otherwise required hereunder,
the following payments and collections received or made by the Master Servicer
or on its behalf subsequent to the Cut-Off Date (other than in respect of
principal and interest on the Mortgage Loans or the Companion Loans due and
payable on or before the Cut-Off Date, which payments shall be delivered
promptly to the applicable Mortgage Loan Seller or its designee, with negotiable
instruments endorsed as necessary and appropriate without recourse), other than
amounts received from Mortgagors which are to be used to purchase defeasance
collateral, or payments (other than Principal Prepayments) received by it on or
prior to the Cut-Off Date but allocable to a period subsequent
thereto:
(i) all
payments on account of principal of the Mortgage Loans or Companion Loans,
including Principal Prepayments;
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(ii) all
payments on account of interest on the Mortgage Loans or Companion Loans,
including Additional Interest;
(iii) all
Prepayment Premiums and Yield Maintenance Charges;
(iv) all
Insurance Proceeds and Liquidation Proceeds (other than Liquidation Proceeds
described in clause (vi) of the definition thereof that are required to be
deposited in the Distribution Account pursuant to Section 9.01) received in
respect of any Mortgage Loan or Companion Loan (including, without limitation,
any amounts representing recoveries of Nonrecoverable Advances or Unliquidated
Advances, including interest on such Nonrecoverable Advances or Unliquidated
Advances in respect of the related Mortgage Loans);
(v) any
amounts required to be deposited by the Master Servicer pursuant to
Section 3.06(b) in connection with losses incurred with respect to
Permitted Investments of funds held in the Certificate Account;
(vi) any
amounts required to be deposited by the Master Servicer or the Special Servicer
pursuant to Section 3.07(b) in connection with losses resulting from a
deductible clause in a blanket hazard policy;
(vii) any
amounts required to be transferred from an REO Account pursuant to
Section 3.16(c) and any amounts received from a Mortgage Loan Seller
with respect to a Special Reserve Account pursuant to
Section 2.02(d);
(viii) any
amount in respect of Purchase Prices and Substitution Shortfall Amounts pursuant
to Section 2.03(b);
(ix) any
amount required to be deposited by the Master Servicer pursuant to
Section 3.19(a) in connection with Prepayment Interest
Shortfalls;
(x) any
amount required to be deposited by the Master Servicer pursuant to
Section 3.03(d) and 4.03(d) in connection with reimbursing the
Trust Fund for interest paid on a P&I Advance or Servicing Advance, as
applicable;
(xi) any
amount paid by a Mortgagor to cover items for which a Servicing Advance has been
previously made and for which the Master Servicer, the Special Servicer or the
Trustee, as applicable, has been previously reimbursed out of the Certificate
Account;
(xii) any
amount required to be deposited by the Master Servicer or the Special Servicer
pursuant to Section 3.11(b) and 3.11(d), respectively, in connection
with reimbursing the Trust Fund for Additional Trust Fund Expenses;
and
(xiii) all
amounts remitted or advanced by the [__________] Master Servicer in respect of
the [__________] Serviced Mortgage Loan, pursuant to the [__________] Pooling
and Servicing Agreement and the [__________] Intercreditor
Agreement.
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The
foregoing requirements for deposit in the Certificate Account shall be
exclusive. Notwithstanding the foregoing, actual payments from
Mortgagors in the nature of Escrow Payments, amounts to be deposited in Reserve
Accounts, and amounts that the Master Servicer and the Special Servicer are
entitled to retain as additional servicing compensation pursuant to Sections
3.11(b) and 3.11(d), need not be deposited by the Master Servicer in the
Certificate Account. If the Master Servicer shall deposit in the
Certificate Account any amount not required to be deposited therein, it may at
any time withdraw such amount from the Certificate Account, any provision herein
to the contrary notwithstanding. The Master Servicer shall promptly
deliver to the Special Servicer as additional servicing compensation in
accordance with Section 3.11(d), assumption fees, late payment charges (to
the extent not applied to pay interest on Advances as provided in Sections
3.03(d) or 4.03(d) or Additional Trust Fund Expenses as provided in
Section 3.11(d)) and other transaction fees or other expenses received by
the Master Servicer to which the Special Servicer is entitled pursuant to either
of such Sections upon receipt of a certificate of a Servicing Officer of the
Special Servicer describing the item and amount. The Certificate
Account shall be maintained as a segregated account, separate and apart from
trust funds created for mortgage pass-through certificates of other series and
the other accounts of the Master Servicer.
The
Master Servicer may maintain, as part of the Certificate Account, a subaccount
for each Companion Loan on behalf of and in trust for the benefit of the related
Companion Holder, into which subaccount the Master Servicer shall deposit or
cause to be deposited all amounts described in the first paragraph of this
Section 3.04(a) to the extent allocable to the related Companion Loan
in accordance with this Agreement and the related Intercreditor Agreement, and
out of which subaccount the Master Servicer may make withdrawals to the extent
withdrawals of such funds are provided for in Section 3.05(a) of this
Agreement or in the related Intercreditor Agreement. Each such
subaccount shall be an Eligible Account or a subaccount of an Eligible Account
and shall be entitled “[__________], as Master Servicer, on behalf of and in
trust for the related Companion Holder.”
Upon
receipt of any of the amounts described in clauses (i) through (iv), (xi),
(xii) and (xiii) above with respect to any Mortgage Loan or Companion Loan, the
Special Servicer shall promptly, but in no event later than one Business Day
after receipt of available funds, remit such amounts (net of any reimbursable
expenses incurred by the Special Servicer) to or at the direction of the Master
Servicer for deposit into the Certificate Account in accordance with the second
preceding paragraph, unless the Special Servicer determines, consistent with the
Servicing Standard, that a particular item should not be deposited because of a
restrictive endorsement. Any such amounts received by the Special
Servicer with respect to an REO Property shall be deposited by the Special
Servicer into the REO Account and remitted to the Master Servicer for deposit
into the Certificate Account pursuant to Section 3.16(c). With
respect to any such amounts paid by check to the order of the Special Servicer,
the Special Servicer shall endorse such check to the order of the Master
Servicer and shall deliver promptly, but in no event later than three Business
Days after receipt, any such check to the Master Servicer by overnight courier,
unless the Special Servicer determines, consistent with the Servicing Standard,
that a particular item cannot be so endorsed and delivered because of a
restrictive endorsement or other appropriate reason.
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(b) The
Trustee shall establish and maintain one or more trust accounts (collectively,
the “Distribution
Account”) at the office of the Paying Agent to be held in trust for the
benefit of the Certificateholders (other than the Class Z
Certificateholders). The Distribution Account shall be an Eligible
Account. The Trustee hereby authorizes the Paying Agent to make
deposits in and withdrawals from the Distribution Account in accordance with the
terms of this Agreement. The Master Servicer shall deliver to the
Paying Agent each month on or before 1:30 p.m. New York City time on the P&I
Advance Date therein, for deposit in the Distribution Account, an aggregate
amount of immediately available funds equal to that portion of the Available
Distribution Amount (calculated without regard to clauses (a)(ii),
(a)(v) and (b)(ii)(B) of the definition thereof) for the related
Distribution Date then on deposit in the Certificate Account, together with
(i) any Prepayment Premiums and/or Yield Maintenance Charges received on
the Mortgage Loans during the related Collection Period, and (ii) in the
case of the final Distribution Date, any additional amounts contemplated by the
third paragraph of Section 9.01.
The
Companion Paying Agent shall establish and maintain one or more trust accounts
for distributions to the Companion Loans (collectively, the “Companion Distribution
Account”) to be held on behalf of the related Companion
Holder(s). The Companion Distribution Account shall be an Eligible
Account and may be a subaccount of the Certificate Account. The
Master Servicer hereby authorizes the Companion Paying Agent to make deposits in
and withdrawals from the Companion Distribution Account in accordance with the
terms of this Agreement. Unless the Companion Distribution Account is
the related subaccount or subaccounts of the Certificate Account as allowed by
the last sentence of the definition of Companion Distribution Account, the
Master Servicer shall deliver to the Companion Paying Agent each month on or
before 2:00 p.m. New York City time on the P&I Advance Date therein for
deposit in the Companion Distribution Account, an aggregate amount of
immediately available funds equal to the amount available to be distributed to
the related Companion Holder(s) pursuant to the related Intercreditor
Agreement.
In
addition, the Master Servicer shall, as and when required hereunder, deliver to
the Paying Agent for deposit in the Distribution Account:
(i) any
P&I Advances required to be made by the Master Servicer in accordance with
Section 4.03(a); and
(ii) the
Purchase Price paid in connection with the purchase by the Master Servicer of
all of the Mortgage Loans and any REO Properties, pursuant to Section 9.01,
exclusive of the portion of such amounts required to be deposited in the
Certificate Account pursuant to Section 9.01.
The
Paying Agent shall, upon receipt, deposit in the Distribution Account any and
all amounts received by the Paying Agent that are required by the terms of this
Agreement to be deposited therein.
(c) The
Trustee shall establish and maintain one or more accounts (collectively, the
“Interest Reserve
Account”), held in trust for the benefit of the
Certificateholders. The Interest Reserve Account shall be an Eligible
Account. On or before
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each
Distribution Date in February and, during each year that is not a leap year,
January, the Master Servicer shall withdraw from the Certificate Account and
remit to the Trustee for deposit in the Interest Reserve Account, with respect
to each Interest Reserve Loan, an amount equal to the Interest Reserve Amount in
respect of such Interest Reserve Loan, for such Distribution Date (such
withdrawal from the Certificate Account to be made out of general collections on
the Mortgage Pool where any related P&I Advance was deposited in the
Distribution Account).
(d) Prior to
any Collection Period during which Additional Interest is received, and upon
notification from the Master Servicer or Special Servicer pursuant to
Section 3.02(d), the Trustee (on behalf of the Certificateholders) shall
establish and maintain the Additional Interest Account in the name of the
Trustee in trust for the benefit of the Class Z
Certificateholders. The Additional Interest Account shall be
established and maintained as an Eligible Account. Prior to the
applicable Distribution Date, the Master Servicer shall remit to the Trustee for
deposit in the Additional Interest Account an amount equal to the Additional
Interest received during the applicable Collection Period.
Following
the distribution of Additional Interest to the Class Z Certificateholders,
on the first Distribution Date after which there are no longer any Mortgage
Loans outstanding which pursuant to their terms could pay Additional Interest,
the Trustee shall terminate the Additional Interest Account.
(e) The
Paying Agent, on behalf of the Trustee for the benefit of the
Certificateholders, shall establish (upon notice from Special Servicer of an
event occurring that generates Gain-on-Sale Proceeds) and maintain the
Gain-on-Sale Reserve Account in the name of the Paying Agent on behalf of the
Trustee for the benefit of the Certificateholders. The Gain-on-Sale
Reserve Account shall be maintained as a segregated account, separate and apart
from trust funds for mortgage pass-through certificates of other series
administered by the Paying Agent and other accounts of the Paying
Agent. Upon the disposition of any REO Property in accordance with
Section 3.09 or Section 3.18, the Special Servicer will calculate the
Gain-on-Sale Proceeds, if any, realized in connection with such sale and remit
such funds to the Paying Agent for deposit into the Gain-on-Sale Reserve
Account.
(f) Funds in
the Certificate Account, the Interest Reserve Account, the Distribution Account,
the Additional Interest Account and the Gain-on-Sale Reserve Account may be
invested only in Permitted Investments in accordance with the provisions of
Section 3.06. Funds on deposit in the Gain-on-Sale Reserve
Account shall be invested pursuant to Section 3.06. The Master
Servicer shall give written notice to the Trustee, the Special Servicer and the
Rating Agencies of the location of the Certificate Account as of the Closing
Date and of the new location of the Certificate Account prior to any change
thereof. The Paying Agent shall give written notice to the Trustee,
the Master Servicer, the Special Servicer and the Rating Agencies of any new
location of the Distribution Account prior to any change thereof.
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Section
3.05 Permitted Withdrawals from
the Certificate Account, Distribution Account, Interest Reserve Account,
Additional Interest Account, Gain-on-Sale Reserve Account and Companion
Distribution Account.
(a) The
Master Servicer may, from time to time, make withdrawals from the Certificate
Account for any of the following purposes (the order set forth below not
constituting an order of priority for such withdrawals):
(i) (A) to
remit to the Paying Agent for deposit in the Distribution Account the amounts
required to be so deposited pursuant to the first paragraph of
Section 3.04(b) and any amount that may be applied to make P&I
Advances pursuant to Section 4.03(a); and (B) to deposit in and remit to
the Companion Paying Agent for deposit in each Companion Distribution Account
the amounts required to be so deposited pursuant to the second paragraph of
Section 3.04(b) and any amount relating to a Companion Loan that may
be applied to make P&I Advances pursuant to
Section 4.03(a);
(ii) to
reimburse the Trustee and itself, in that order, for xxxxxxxxxxxx X&X
Advances (the Trustee’s and Master Servicer’s right to reimbursement pursuant to
this clause (ii) with respect to any P&I Advance (other than
Nonrecoverable Advances and Workout-Delayed Reimbursement Amounts that are
reimbursed pursuant to clause (vii) below) being limited to amounts that
represent Late Collections of interest (net of the related Servicing Fees) and
principal (net of any related Workout Fee or Liquidation Fee) received in
respect of the particular Mortgage Loan, REO Loan or Companion Loan as to which
such P&I Advance was made);
(iii) to pay to
itself earned and unpaid Master Servicing Fees in respect of each Mortgage Loan
and REO Loan, the Master Servicer’s right to payment pursuant to this clause
(iii) with respect to any Mortgage Loan or REO Loan being limited to
amounts received on or in respect of such Mortgage Loan (whether in the form of
payments, Liquidation Proceeds or Insurance Proceeds) or such REO Loan (whether
in the form of REO Revenues, Liquidation Proceeds or Insurance Proceeds) that
are allocable as a recovery of interest thereon;
(iv) to pay to
the Special Servicer earned and unpaid Special Servicing Fees in respect of each
Specially Serviced Mortgage Loan and REO Loan;
(v) to pay
the Special Servicer (or, if applicable, a predecessor Special Servicer) earned
and unpaid Workout Fees or Liquidation Fees in respect of each Specially
Serviced Mortgage Loan, Corrected Mortgage Loan, and REO Loan, the Special
Servicer’s (or, if applicable, any predecessor Special Servicer’s) right to
payment pursuant to this clause (v) with respect to any such Mortgage Loan
or REO Loan being limited to amounts received on or in respect of such Specially
Serviced Mortgage Loan or Corrected Mortgage Loan (whether in the form of
payments or Liquidation Proceeds) or such REO Loan (whether in the form of REO
Revenues or Liquidation Proceeds) that are allocable as a recovery of principal
or interest thereon (provided that no Liquidation
Fee shall be payable out of (i) Insurance Proceeds and (ii) any
Liquidation Proceeds received in connection with the purchase of any Mortgage
Loan or REO Property by a Mortgage
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Loan
Seller pursuant to the applicable Mortgage Loan Purchase Agreement (if purchased
within the required time period set forth in such Mortgage Loan Purchase
Agreement), by the Special Servicer, the Companion Holder or the Majority
Subordinate Certificateholder, as described in Section 3.18(c),
Section 3.18(d), Section 3.18(e) or Section 3.18(h), or by
any mezzanine lender pursuant to the terms of the related mezzanine
intercreditor agreement, or by the Master Servicer, the Special Servicer or
the Majority Subordinate Certificateholder or the purchasing Certificateholder
pursuant to Section 9.01);
(vi) to
reimburse the Trustee, itself or the Special Servicer, in that order, for any
unreimbursed Servicing Advances, the Trustee’s, the Master Servicer’s and the
Special Servicer’s respective rights to reimbursement pursuant to this clause
(vi) with respect to any Servicing Advance (other than Nonrecoverable
Advances and Workout-Delayed Reimbursement Amounts that are reimbursed pursuant
to clause (vii) below) being limited to payments made by the related
Mortgagor that are allocable to such Servicing Advance, or to Liquidation
Proceeds, Insurance Proceeds and, if applicable, REO Revenues received in
respect of the particular Mortgage Loan, Companion Loan or REO Property as to
which such Servicing Advance was made (provided that, in case of
such reimbursement relating to any Co-Lender Loan, such reimbursements shall be
made first, from amounts collected on the related Subordinate Companion Loan and
then from the related Co-Lender Loan (and Pari Passu Companion Loans, if any) in
accordance with the terms of the related Intercreditor Agreement);
(vii) to
reimburse the Trustee, itself or the Special Servicer, in that order,
(A) for any unreimbursed Advances (including interest at the Reimbursement
Rate) that have been or are determined to be Nonrecoverable Advances and for any
Workout-Delayed Reimbursement Amounts, in that order, and (B) to pay itself,
with respect to any Mortgage Loan (including, if applicable, the [__________]
Serviced Mortgage Loan), Companion Loan or any REO Property, any related earned
Master Servicing Fee that remained unpaid in accordance with clause
(iii) above, in the case of clause (B), following a Final Recovery
Determination made with respect to such Mortgage Loan or REO Property and the
deposit into the Certificate Account of all amounts received in connection
therewith; provided,
however, that any
reimbursement of Nonrecoverable Advances or Workout Delayed Reimbursement
Amounts payable pursuant to this Section 3.05(a)(vii), with respect to
Nonrecoverable Advances shall be deemed to be recovered, first, from
collections or receipts on the Mortgage Loans and REO Properties in respect of
principal and then in respect of interest and other collections, and, with
respect to Workout Delayed Reimbursement Amounts, only out of
collections and receipts on the Mortgage Loans and REO Properties in respect of
principal;
(viii) to
reimburse the [__________] Master Servicer or the [__________] Special Servicer
for unreimbursed advances (including interest on such advances) made by such
party pursuant to the [__________] Pooling and Servicing Agreement in respect of
the [__________] Serviced Mortgage Loan, that have been or are determined to be
nonrecoverable advances and for any workout-delayed reimbursement amounts, in
that order, pursuant to the terms of the [__________] Pooling and Servicing
Agreement (up to, with respect to a servicing advance, the [__________] Loan’s
pro rata share of such
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advance,
or if the amount of such pro
rata share, together with amounts available from collections in the
certificate account created under the [__________] Pooling and Servicing
Agreement is insufficient to reimburse the party that made such advance, then up
to the full amount of such advance made on the [__________] Loan and interest
thereon); provided,
however, that any
reimbursement of Nonrecoverable Advances or Workout Delayed Reimbursement
Amounts payable pursuant to this Section 3.05(a)(viii), with respect to
Nonrecoverable Advances, shall be deemed to be recovered, first, from
collections or receipts on the Mortgage Loans and REO Properties in respect of
principal and then in respect of interest and other collections, and, with
respect to Workout Delayed Reimbursement Amounts, only out of
collections and receipts on the Mortgage Loans and REO Properties in respect of
principal;
(ix) at such
time as it reimburses the Trustee, itself, the Special Servicer, the
[__________] Master Servicer or the [__________] Special Servicer, in that
order, for any unreimbursed Advance (including any Advance that constitutes a
Workout-Delayed Reimbursement Amount) pursuant to clause (ii), (vi),
(vii) or (viii) above, to pay the Trustee, itself, the Special Servicer or
the [__________] Master Servicer, as the case may be, in that order, any
interest accrued and payable thereon in accordance with
Section 3.03(d) or 4.03(d) (or, with respect to the [__________]
Serviced Mortgage Loan, pursuant to the [__________] Pooling and Servicing
Agreement), as applicable; provided that the Trustee’s,
the Master Servicer’s, the Special Servicer’s and the [__________] Master
Servicer’s rights to payment pursuant to this clause (ix) with respect to
interest on any Advance shall be satisfied (A) subject to and in accordance with
the terms of the Intercreditor Agreement with respect to the related Loan Pair,
first out of late payment charges and Penalty Interest collected on or in
respect of the related Mortgage Loan (and if the Advance was made with respect
to a Co-Lender Loan, out of such amounts collected on or in respect of the
related Companion Loan(s)) and REO Loan, during the Collection Period in which
such Advance is reimbursed (the use of such late payment charges and Penalty
Interest to be allocated between the Master Servicer and the Special Servicer on
a pro rata basis based
on the amount of late payment charges and Penalty Interest that the Master
Servicer and the Special Servicer have received as additional servicing
compensation during such period), and (B) to the extent that the late payment
charges and Penalty Interest described in the immediately preceding clause (A)
are insufficient, but only at the same time or after such Advance has been
reimbursed, out of general collections on the Mortgage Loans, Companion Loans
and any REO Properties on deposit in the Certificate Account;
(x) to pay
for costs and expenses incurred by the Trust Fund pursuant to the first sentence
of Section 3.12(a) or, pursuant to Section 3.12, as to any
Mortgage Loan that is a Specially Serviced Mortgage Loan;
(xi) to pay
itself, as additional servicing compensation in accordance with
Section 3.11(b), (A) interest and investment income earned in respect of
amounts held in the Certificate Account as provided in Section 3.06(b), but
only to the extent of the Net Investment Earnings with respect to the
Certificate Account for any Collection Period; (B) any Prepayment Interest
Excesses, and (C) Penalty Interest and late payment charges on Mortgage Loans
that are not Specially Serviced Mortgage Loans (to the extent such
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Penalty
Interest and/or late payment charges were not applied to offset interest on
Advances pursuant to clause (ix)(A) or Additional Trust Fund Expenses pursuant
to Section 3.11(b) or inspection expenses pursuant to
Section 3.12(a));
(xii) to pay to
the Special Servicer, as additional servicing compensation in accordance with
Section 3.11(d) (to the extent such Penalty Interest and/or late
payment charges were not applied to offset interest on Advances pursuant to
clause (ix)(A) of this Section or Additional Trust Fund Expenses pursuant
to Section 3.11(d) or inspection expenses pursuant to
Section 3.12(a));
(xiii) to pay
for the cost of an independent appraiser or other expert in real estate matters
retained pursuant to Section 3.03(e), 3.09(a), 3.18(b), 4.03(c) or
9.01;
(xiv) to pay
itself, the Special Servicer, the Depositor, or any of their respective
directors, officers, members, managers, employees and agents, as the case may
be, any amounts payable to any such Person pursuant to
Section 6.03;
(xv) to pay
for (A) the advice of counsel and tax accountants contemplated by
Section 3.17(a)(iii), (B) the cost of the Opinions of Counsel contemplated
by Sections 3.09(b)(ii), 3.20(d) and 11.02(a), (C) the cost of an Opinion
of Counsel contemplated by Section 11.01(a) or 11.01(c) in
connection with any amendment to this Agreement requested by the Master Servicer
or the Special Servicer that protects or is in furtherance of the rights and
interests of Certificateholders, and (D) the cost of recording this Agreement in
accordance with Section 11.02(a);
(xvi) to pay
itself, the Special Servicer, any of the Mortgage Loan Sellers, the Majority
Subordinate Certificateholder, a Companion Holder, a mezzanine lender or any
other Person, as the case may be, with respect to each Mortgage Loan, if any,
previously purchased by such Person pursuant to this Agreement, all amounts
received thereon subsequent to the date of purchase;
(xvii) to
withdraw any Interest Reserve Amount and remit such Interest Reserve Amount to
the Trustee for deposit into the Interest Reserve Account pursuant to
Section 3.04(c);
(xviii) to remit
to the Trustee for deposit into the Additional Interest Account the amounts
required to be deposited pursuant to Section 3.04(d);
(xix) to remit
to the Paying Agent for deposit into the Distribution Account the amounts
required to be deposited pursuant to Section 3.04(b);
(xx) to remit
to the Companion Paying Agent for deposit into the Companion Distribution
Account the amounts required to be deposited pursuant to
Section 3.04(b);
(xxi) to pay
the cost of any Environmental Assessment or any remedial, corrective or other
action pursuant to Section 3.09(c);
(xxii) to
withdraw any amounts deposited in error;
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(xxiii) to
withdraw any other amounts that this Agreement expressly provides may be
withdrawn from the Certificate Account; and
(xxiv) to clear
and terminate the Certificate Account at the termination of this Agreement
pursuant to Section 9.01.
The
Master Servicer shall keep and maintain separate accounting records, on a
loan-by-loan basis when appropriate, in connection with any withdrawal from the
Certificate Account pursuant to clauses (ii)-(xxiii) above. Upon
request, the Master Servicer shall provide to the Trustee such records and any
other information in the possession of the Master Servicer to enable the Trustee
to determine the amounts attributable to REMIC I (with respect to the
Mortgage Loans) and the Companion Loans. The Master Servicer shall,
to the extent permitted by the terms of the related Intercreditor Agreement,
make claims for reimbursement from the related Companion Holder in connection
with related Servicing Advances and interest thereon and other related expenses
so as to minimize the total amount of withdrawals on the Certificate Account for
such items. Nothing in the foregoing sentence shall limit the Master
Servicer’s rights to be reimbursed for claims relating to the Companion Loans
that are reimbursable claims pursuant to the terms of this
Agreement. Notwithstanding anything in this
Section 3.05(a) to the contrary, in no event shall the Master Servicer
withdraw from funds on deposit in the Certificate Account any amount to be
applied to, or to provide reimbursement for, any amounts referenced in this
Section 3.05(a) (other than amounts referenced in clause (xix)) which
relate to any Companion Loan to the extent the related Co-Lender Loan has been
paid in full in a prior Collection Period. For the avoidance of
doubt, in no event shall the Master Servicer withdraw from funds on deposit in
the Certificate Account any amounts allocable to the [__________] Companion Loan
(other than Penalty Interest and late payment charges) to be applied to, or to
provide reimbursement for, any costs, expenses, indemnities, losses or
liabilities relating or allocable to any Mortgage Loan or Companion Loan other
than the [__________] Companion Loan or the [__________] Loan.
The
Master Servicer shall pay to the Special Servicer (or to third party contractors
at the direction of the Special Servicer) or the Trustee from the Certificate
Account amounts permitted to be paid to the Special Servicer (or to such third
party contractors) or the Trustee therefrom promptly upon receipt of a
certificate of a Servicing Officer of the Special Servicer or of a Responsible
Officer of the Trustee, describing the item and amount to which the Special
Servicer (or such third party contractors) or the Trustee is
entitled. The Master Servicer may rely conclusively on any such
certificate and shall have no duty to re-calculate the amounts stated
therein. With respect to any reimbursement to be made hereunder to
the [__________] Master Servicer or the [__________] Special Servicer in respect
of any Advance (as defined in the [__________] Pooling and Servicing Agreement)
made by such parties subsequently determined to be a nonrecoverable advance
pursuant to the terms of the [__________] Pooling and Servicing Agreement, the
Master Servicer may conclusively rely on a written statement from such party
delivered to the Master Servicer that such Advance (as defined in the
[__________] Pooling and Servicing Agreement) is a nonrecoverable advance under
the terms of the [__________] Pooling and Servicing Agreement. The
Special Servicer shall keep and maintain separate accounting for each Specially
Serviced Mortgage Loan and REO Property, on a loan-by-loan and
property-by-property basis, for the purpose of justifying any request for
withdrawal from the Certificate Account. With respect to each
Mortgage Loan or Companion Loan for which it makes an
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Advance,
the Trustee shall similarly keep and maintain separate accounting for each
Mortgage Loan or Companion Loan, on a loan-by-loan and property-by-property
basis, for the purpose of justifying any request for withdrawal from the
Certificate Account for reimbursements of Advances or interest
thereon.
Upon the
determination that a previously made Advance is a Nonrecoverable Advance,
instead of obtaining reimbursement out of general collections immediately, the
Master Servicer or the Trustee, as applicable, may, in its sole discretion,
elect to obtain reimbursement for such Nonrecoverable Advance over time (not to
exceed twelve (12) months or such longer period of time as agreed to by the
Master Servicer or the Trustee, as applicable, and the Controlling Class
Representative, each in its sole discretion, and the unreimbursed portion of
such Advance will accrue interest at the Prime Rate. At any time
after such a determination to obtain reimbursement over time, the Master
Servicer, the Special Servicer or the Trustee, as applicable, may, in its sole
discretion and subject to the immediately following paragraph, decide to obtain
reimbursement immediately. The fact that a decision to recover such
Nonrecoverable Advances over time, or not to do so, benefits some Classes of
Certificateholders to the detriment of other Classes shall not, with respect to
the Master Servicer, constitute a violation of the Servicing Standard and/or
with respect to the Trustee, constitute a violation of any fiduciary duty to
Certificateholders or contractual duty hereunder.
The
Master Servicer or the Trustee, as applicable, shall give [Xxxxx’x and S&P]
at least 15 days notice prior to any reimbursement to it of Nonrecoverable
Advances from amounts in the Certificate Account allocable to interest on the
Mortgage Loans unless (1) the Master Servicer or the Trustee, as applicable,
determines in its sole discretion that waiting 15 days after such a notice could
jeopardize the Master Servicer’s or the Trustee’s ability, as applicable, to
recover such Nonrecoverable Advances, (2) changed circumstances or new or
different information becomes known to the Master Servicer or the Trustee, as
applicable, that could affect or cause a determination of whether any Advance is
a Nonrecoverable Advance, whether to defer reimbursement of a Nonrecoverable
Advance or the determination in clause (1) above, or (3) the Master Servicer has
not timely received from the Trustee information requested by the Master
Servicer to consider in determining whether to defer reimbursement of a
Nonrecoverable Advance; provided that, if clause (1),
(2) or (3) apply, the Master Servicer or the Trustee, as applicable, shall give
[Xxxxx’x and S&P] notice of an anticipated reimbursement to it of
Nonrecoverable Advances from amounts in the Certificate Account or Distribution
Account, as applicable, allocable to interest on the Mortgage Loans as soon as
reasonably practicable in such circumstances. The Master Servicer and
the Trustee, as applicable, shall have no liability for any loss, liability or
expense resulting from any notice provided to [Xxxxx’x and S&P] contemplated
by the immediately preceding sentence.
If the
Master Servicer or the Trustee, as applicable, is reimbursed out of general
collections for any unreimbursed Advances that are determined to be
Nonrecoverable Advances (together with any interest accrued and payable
thereon), then (for purposes of calculating distributions on the Certificates)
such reimbursement and payment of interest shall be deemed to have been
made: first, out of the Principal Distribution Amount, which, but for
its application to reimburse a Nonrecoverable Advance and/or to pay interest
thereon, would be included in the Available Distribution Amount, for any
subsequent Distribution Date, and second, out of other amounts which, but for
their application to reimburse a Nonrecoverable Advance and/or to pay
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interest
thereon, would be included in the Available Distribution Amount for any
subsequent Distribution Date. If and to the extent that any payment
is deemed to be applied in accordance with clause first above to reimburse a
Nonrecoverable Advance or to pay interest thereon, then the Principal
Distribution Amount for such Distribution Date shall be reduced, to not less
than zero, by the amount of such reimbursement. If and to the extent
(i) any Advance is determined to be a Nonrecoverable Advance,
(ii) such Advance and/or interest thereon is reimbursed out of the
Principal Distribution Amount as contemplated by clause first above and
(iii) the particular item for which such Advance was originally made is
subsequently collected out of payments or other collections in respect of the
related Mortgage Loan, then the Principal Distribution Amount for the
Distribution Date that corresponds to the Collection Period in which such item
was recovered shall be increased by an amount equal to the lesser of (A) the
amount of such item and (B) any previous reduction in the Principal Distribution
Amount for a prior Distribution Date pursuant to clause first above resulting
from the reimbursement of the subject Advance and/or the payment of interest
thereon.
(b) The
Paying Agent may, from time to time, make withdrawals from the Distribution
Account for any of the following purposes (in no particular order of
priority):
(i) to make
deemed distributions to itself as holder of the REMIC I Regular Interests
and to make distributions to Certificateholders on each Distribution Date,
pursuant to Sections 4.01 and 9.01, as applicable;
(ii) to pay
the Trustee or any of its directors, officers, employees and agents, as the case
may be, any amounts payable or reimbursable to any such Person pursuant to
Section 8.05;
(iii) to pay
the Trustee the Trustee Fee as contemplated by Section 8.05(a) hereof
with respect to each Mortgage Loan and REO Loan and to pay the Trustee, as
additional compensation, interest and investment income, if any, earned in
respect of amounts held in the Distribution Account as provided in
Section 3.06, but only to the extent of the Net Investment Earnings with
respect to such account for the related Distribution Date;
(iv) to pay
for the cost of the Opinions of Counsel sought by the Trustee (A) as
provided in clause (v) of the definition of “Disqualified
Organization”, (B) as contemplated by Section 3.20(d),
9.02(a) and 10.01(h), or (C) as contemplated by
Section 11.01(a) or 11.01(c) in connection with any amendment to
this Agreement requested by the Trustee which amendment is in furtherance of the
rights and interests of Certificateholders; provided that a portion of
such costs shall be allocated pursuant to the [__________] Pooling and Servicing
Agreement and the [__________] Intercreditor Agreement if such costs relate to
the [__________] Whole Loan;
(v) to pay
any and all federal, state and local taxes imposed on REMIC I or
REMIC II or on the assets or transactions of either such REMIC, together
with all incidental costs and expenses, to the extent none of the Trustee, the
REMIC Administrator, the Master Servicer or the Special Servicer is liable
therefor pursuant to Section 10.01(i); provided that a portion of
such amounts shall be allocated
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pursuant
to the [__________] Pooling and Servicing Agreement and the [__________]
Intercreditor Agreement if such costs relate to the [__________] Whole
Loan;
(vi) to pay
the REMIC Administrator any amounts reimbursable to it pursuant to
Section 10.01(e); provided that a portion of
such amounts shall be allocated pursuant to the [__________] Pooling and
Servicing Agreement and the [__________] Intercreditor Agreement if such costs
relate to the [__________] Whole Loan;
(vii) to pay to
the Master Servicer any amounts deposited by the Master Servicer in the
Distribution Account not required to be deposited therein; and
(viii) to clear
and terminate the Distribution Account at the termination of this Agreement
pursuant to Section 9.01.
Taxes
imposed on REMIC I or REMIC II shall be allocated to the related
REMIC.
(c) The
Companion Paying Agent may, from time to time, make withdrawals from the
Companion Distribution Account as contemplated by Section 4.01(l).
(d) The
Trustee shall on each P&I Advance Date to occur in March of each year, and
in the event the final Distribution Date occurs in February or, if such year is
not a leap year, in January, on the P&I Advance Date to occur in such
February or January, withdraw from the Interest Reserve Account and deposit into
the Distribution Account in respect of each Interest Reserve Loan, an amount
equal to the aggregate of the Interest Reserve Amounts deposited into the
Interest Reserve Account pursuant to Section 3.04(c) during the
immediately preceding Collection Period and, if applicable, the second preceding
Collection Period and, if applicable, the related Collection
Period.
(e) The
Paying Agent shall, on any Distribution Date, make withdrawals from the
Additional Interest Account to the extent required to make the distributions of
Additional Interest required by Section 4.01(b).
(f) In the
event that servicing advances have been made with respect to the [__________]
Serviced Mortgage Loan under the [__________] Pooling and Servicing
Agreement by the [__________] Master Servicer, and in accordance with the
[__________] Pooling and Servicing Agreement, if a subsequent determination has
been made that such advance constitutes a nonrecoverable advance, the party that
made such advance shall be entitled to a reimbursement of such advance with
interest thereon as set forth in the [__________] Pooling and Servicing
Agreement, from general collections on all Mortgage Loans in the Certificate
Account (up to, with respect to a servicing advance, the [__________] Loan’s
pro rata share of such
advance, or if the amount of such pro rata share, together with
amounts available from collections in the certificate account created under the
[__________] Pooling and Servicing Agreement, is insufficient to reimburse the
party that made such advance, then up to the full amount of such advance made on
the [__________] Loan and interest thereon).
(g) The
Paying Agent shall, on any Distribution Date, make withdrawals from the
Gain-On-Sale Reserve Account as contemplated by
Section 4.01(m).
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Section
3.06 Investment of Funds in the
Servicing Accounts, Reserve Accounts, Certificate Account, Interest Reserve
Account, Distribution Account, Companion Distribution Account, Additional
Interest Account, Gain-on-Sale Reserve Account and REO
Account.
(a) The
Master Servicer may direct in writing any depository institution maintaining a
Servicing Account, a Reserve Account or the Certificate Account (each, for
purposes of this Section 3.06, an “Investment Account”);
the Companion Paying Agent may direct in writing any depository institution
maintaining the Companion Distribution Account (also, for purposes of this
Section 3.06, an “Investment Account”);
the Special Servicer may direct in writing any depository institution
maintaining the REO Account (also, for purposes of this Section 3.06, an
“Investment
Account”); and the Trustee may direct in writing any depository
institution maintaining the Distribution Account, the Gain-on-Sale Reserve
Account, the Interest Reserve Account or the Additional Interest Account (also,
for purposes of this Section 3.06, an “Investment Account”)
to invest, or if it is such depository institution, may itself invest, the funds
held therein only in one or more Permitted Investments bearing interest or sold
at a discount, and maturing, unless payable on demand, no later than the
Business Day immediately preceding the next succeeding date on which such funds
are required to be withdrawn from such account pursuant to this
Agreement. Funds held in the Distribution Account, the Companion
Distribution Account, the Additional Interest Account, the Interest Reserve
Account and the Gain-on-Sale Reserve Account may remain
uninvested. In the event that the Master Servicer shall have failed
to give investment directions for any Servicing Account, any Reserve Account or
the Certificate Account (exclusive of any accounts as are held by the Master
Servicer) or the Special Servicer shall have failed to give investment
directions for the REO Account by 11:00 A.M. New York time on any Business Day
on which there may be uninvested cash, such funds held in the REO Account shall
be invested in securities described in clause (i) of the definition of the
term “Permitted
Investments”; and such funds held in such other accounts shall be
invested in securities described in clause (v) of such
definition. All such Permitted Investments shall be held to maturity,
unless payable on demand. Any investment of funds in an Investment
Account shall be made in the name of the Trustee (in its capacity as
such). The Master Servicer on behalf of the Trustee for the benefit
of Certificateholders (with respect to Permitted Investments of amounts in the
Servicing Accounts, the Reserve Accounts or the Certificate Account), the
Special Servicer on behalf of the Trustee for the benefit of Certificateholders
(with respect to Permitted Investments of amounts in the REO Account) and the
Trustee (with respect to Permitted Investments of amounts in the Distribution
Account, the Gain-on-Sale Reserve Account, the Interest Reserve Account or the
Additional Interest Account) for the benefit of the Certificateholders, and the
Companion Paying Agent with respect to the Companion Distribution Account, shall
(and the Trustee hereby designates the Master Servicer and the Special Servicer,
with respect to any Investment Account maintained by them, and itself, with
respect to the Distribution Account, the Additional Interest Account, the
Interest Reserve Account and the Gain-on-Sale Reserve Account, as applicable, as
the Person that shall) maintain continuous possession of any Permitted
Investment that is either (i) a “certificated
security”, as such term is defined in the UCC, or (ii) other
property in which a secured party may perfect its security interest by
possession under the UCC or any other applicable law. Possession of
any such Permitted Investment by the Master Servicer, the Special Servicer or
the Trustee shall constitute possession by the Trustee, as secured party, for
purposes of Section 9-313 of the UCC and any other applicable
law. If amounts on deposit in an Investment Account are at any time
invested in a Permitted Investment payable on demand, the Master Servicer (in
the case of the
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Certificate
Account, Servicing Accounts and Reserve Accounts), the Special Servicer (in the
case of the REO Account), the Trustee (with respect to Permitted Investments of
amounts in the Distribution Account, the Gain-on-Sale Reserve Account, the
Interest Reserve Account and the Additional Interest Account) or the Companion
Paying Agent with respect to the Companion Distribution Account,
shall:
(x) consistent
with any notice required to be given thereunder, demand that payment thereon be
made on the last day such Permitted Investment may otherwise mature hereunder in
an amount equal to the lesser of (1) all amounts then payable thereunder and (2)
the amount required to be withdrawn on such date; and
(y) demand
payment of all amounts due thereunder promptly upon determination by the Master
Servicer, the Special Servicer or the Trustee, as the case may be, that such
Permitted Investment would not constitute a Permitted Investment in respect of
funds thereafter on deposit in the Investment Account.
(b) Whether
or not the Master Servicer directs the investment of funds in any of the
Servicing Accounts, the Reserve Accounts or the Certificate Account, interest
and investment income realized on funds deposited therein, to the extent of the
related Net Investment Earnings, if any, for each Collection Period and, in the
case of a Reserve Account or a Servicing Account, to the extent not otherwise
payable to the related Mortgagor in accordance with applicable law or the
related Mortgage Loan documents, shall be for the sole and exclusive benefit of
the Master Servicer and shall be subject to its withdrawal in accordance with
Section 3.03(a), 3.03(f) or 3.05(a), as applicable. Whether
or not the Special Servicer directs the investment of funds in the REO Account,
interest and investment income realized on funds deposited therein, to the
extent of the Net Investment Earnings, if any, for each Collection Period, shall
be for the sole and exclusive benefit of the Special Servicer and shall be
subject to its withdrawal in accordance with
Section 3.16(b). Whether or not the Trustee directs the
investment of funds in the Distribution Account, the Interest Reserve Account,
the Additional Interest Account or the Gain-on-Sale Reserve Account, interest
and investment income realized on funds deposited therein, to the extent of the
Net Investment Earnings, if any, for each related Distribution Date, shall be
for the sole and exclusive benefit of the Trustee and shall be subject to its
(or the Paying Agent’s on its behalf) withdrawal in accordance with
Section 3.05(b). If any loss shall be incurred in respect of any
Permitted Investment on deposit in any Investment Account, the Master Servicer
(in the case of the Servicing Accounts, the Reserve Accounts and the Certificate
Account, excluding any accounts containing amounts invested solely for the
benefit of, and at the direction of, the Mortgagor under the terms of the
Mortgage Loan or applicable law), the Companion Paying Agent (in the case of the
Companion Distribution Account), the Special Servicer (in the case of the REO
Account) and the Trustee (with respect to Permitted Investments of amounts in
the Distribution Account, the Additional Interest Account, the Interest Reserve
Account and the Gain-on-Sale Reserve Account) shall promptly deposit therein
from its own funds, without right of reimbursement, no later than, in the case
of the Master Servicer and Special Servicer, the end of the Collection Period
during which such loss was incurred and in the case of the Trustee, no later
than 12:00 noon, New York City time, on the Distribution Date, the amount of the
Net Investment Loss, if any, for such Collection Period or on such Distribution
Date; provided that
none of the Master Servicer, the Special Servicer or the Trustee shall be
required to deposit any loss on an investment of funds in an Investment
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Account
if such loss is incurred solely as a result of the insolvency of the federal or
state chartered depository institution or trust company that holds such
Investment Account, so long as such depository institution or trust company
satisfied the qualifications set forth in the definition of Eligible Account at
the time such investment was made.
(c) Except as
otherwise expressly provided in this Agreement, if any default occurs in the
making of a payment due under any Permitted Investment, or if a default occurs
in any other performance required under any Permitted Investment and the
Trustee, the Special Servicer or the Master Servicer fails to deposit any losses
with respect to such Permitted Investment pursuant to Section 3.06(b), the
Trustee may (or, in the event of a default by the Trustee, the Master Servicer
or Special Servicer shall) and, subject to Section 8.02, upon the request
of Holders of Certificates entitled to not less than 25% of the Voting Rights
allocated to any Class, shall take such action as may be appropriate to enforce
such payment or performance, including the institution and prosecution of
appropriate proceedings.
(d) Notwithstanding
the investment of funds held in any Investment Account, for purposes of the
calculations hereunder, including, without limitation, the calculation of the
Available Distribution Amount, the amounts so invested shall be deemed to remain
on deposit in such Investment Account.
Section
3.07 Maintenance of Insurance
Policies; Errors and Omissions and Fidelity Coverage.
(a) The
Master Servicer (with respect to Mortgage Loans and Companion Loans to the
extent that the Trust Fund has an insurable interest, but other than with
respect to the [__________] Serviced Mortgage Loan and its related Companion
Loan) and the Special Servicer (with respect to REO Properties to the extent
that the Trust Fund has an insurable interest) shall, consistent with the
Servicing Standard, cause to be maintained for each Mortgaged Property all
insurance coverage as is required under the related Mortgage; provided that, if and to the
extent that any such Mortgage permits the holder thereof any discretion (by way
of consent, approval or otherwise) as to the insurance coverage that the related
Mortgagor is required to maintain, the Master Servicer shall exercise such
discretion in a manner consistent with the Servicing Standard; provided, further, if and to the extent
that a Mortgage so permits, the related Mortgagor shall be required to exercise
its reasonable best efforts to obtain the required insurance coverage from
Qualified Insurers and required insurance coverage obtained by the Master
Servicer shall be from Qualified Insurers. REO Property with respect
to the [__________] Loan is excluded for all purposes from this
Section 3.07. The cost of any such insurance coverage obtained
by either the Master Servicer or the Special Servicer shall be a Servicing
Advance to be paid by the Master Servicer pursuant to
Section 3.03. Whether or not the applicable Mortgage Loan
documents require such insurance, the Majority Subordinate Certificateholder may
request that earthquake insurance be secured for one or more Mortgaged
Properties at the expense of the Majority Subordinate
Certificateholder. Subject to Section 3.17(a), the Special
Servicer shall also cause to be maintained for each REO Property no less
insurance coverage than was previously required of the Mortgagor under the
related Mortgage; provided that all such
insurance shall be obtained from Qualified Insurers. All such
insurance policies maintained by the Master Servicer or the Special Servicer
(i) shall contain (if they insure against loss to property and do not
relate to an REO Property) a “standard”
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mortgagee
clause, with loss payable to the Trustee or the Master Servicer on behalf of the
Trustee (in the case of insurance maintained in respect of Mortgage Loans);
(ii) shall be in the name of the Special Servicer (in the case of insurance
maintained in respect of REO Properties), on behalf of the Trustee;
(iii) shall be non-cancelable without 30 days’ prior written notice to the
insured party; (iv) shall include coverage in an amount not less than the
lesser of (x) the full replacement cost of the improvements securing a
Mortgaged Property or REO Property, as applicable, or (y) the outstanding
principal balance owing on the related Mortgage Loan or REO Loan, as applicable,
and in any event, the amount necessary to avoid the operation of any
co-insurance provisions; (v) shall include a replacement cost endorsement
providing no deduction for depreciation (unless such endorsement is not
permitted under the related Mortgage Loan documents); (vi) shall include
such other insurance, including, to the extent available at commercially
reasonable rates, earthquake insurance, where applicable, as required under the
applicable Mortgage or other Mortgage Loan document; and (vii) in each case
such insurance shall be issued by an insurer authorized under applicable law to
issue such insurance. Any amounts collected by the Master Servicer or
the Special Servicer under any such policies (other than amounts to be applied
to the restoration or repair of the related Mortgaged Property or REO Property
or amounts to be released to the related Mortgagor, in each case subject to the
rights of any tenants and ground lessors, as the case may be, and in each case
in accordance with the terms of the related Mortgage and the Servicing Standard)
shall be deposited in the Certificate Account, subject to withdrawal pursuant to
Section 3.05(a), in the case of amounts received in respect of a Mortgage
Loan or Companion Loan, or in the REO Account, subject to withdrawal pursuant to
Section 3.16(c), in the case of amounts received in respect of an REO
Property. Any cost incurred by the Master Servicer or the Special
Servicer in maintaining any such insurance shall not, for purposes hereof,
including, without limitation, calculating monthly distributions to
Certificateholders, be added to unpaid principal balance of the related Mortgage
Loan, notwithstanding that the terms of such Mortgage Loan or Companion Loans so
permit.
Notwithstanding
the foregoing, the Master Servicer or Special Servicer, as applicable, will not
be required to maintain (and in the case of the Special Servicer, with respect
to any Specially Serviced Mortgage Loan), and shall not cause a Mortgagor to be
in default with respect to the failure of the related Mortgagor to obtain,
all-risk casualty insurance which does not contain any carve-out for terrorist
or similar acts, if and only if the Master Servicer with respect to
non-Specially Serviced Mortgage Loans or the Special Servicer with respect to
Specially Serviced Mortgage Loans, in consultation with the Controlling Class
Representative, and, with respect to each Co-Lender Loan, in consultation with
the related Companion Holder if required under the applicable Intercreditor
Agreement, has determined in accordance with the Servicing Standard that either
(a) such insurance is not available at any rate or (b) such insurance
is not available at commercially reasonably rates and that such hazards are not
at the time commonly insured against for properties similar to the Mortgaged
Property and located in or around the region in which such Mortgaged Property is
located and the Controlling Class Representative has approved the decision not
to require the borrower to maintain terrorism insurance (provided that the decision of
the Controlling Class Representative to grant or withhold such consent shall be
disregarded by the Special Servicer if such consent or lack of consent would
cause the Master Servicer or the Special Servicer, as applicable, to violate the
Servicing Standard); provided,
however, the Controlling Class Representative’s approval shall be deemed
to have been given if it has not responded within five Business Days of receipt
of the Master Servicer’s or the Special Servicer’s written recommendation and
the information upon
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which
such recommendation is based; provided, further, that upon
the Master Servicer’s or the Special Servicer’s determination, as applicable,
consistent with the Servicing Standard, that exigent circumstances do not allow
the Master Servicer or the Special Servicer to consult with the Controlling
Class Representative or Companion Holder, if applicable, the Master Servicer or
the Special Servicer, as applicable, shall not be required to do
so.
(b) If the
Master Servicer or the Special Servicer shall obtain and maintain, or cause to
be obtained and maintained, a blanket policy insuring against hazard losses on
all of the Mortgage Loans, Companion Loans and/or REO Properties that it is
required to service and administer, then, to the extent such policy (i) is
obtained from a Qualified Insurer and (ii) provides protection equivalent
to the individual policies otherwise required, the Master Servicer or the
Special Servicer, as the case may be, shall conclusively be deemed to have
satisfied its obligation to cause hazard insurance to be maintained on the
related Mortgaged Properties and/or REO Properties. Such blanket
policy may contain a deductible clause (not in excess of a customary amount), in
which case the Master Servicer or the Special Servicer, as appropriate, shall,
if there shall not have been maintained on the related Mortgaged Property or REO
Property a hazard insurance policy complying with the requirements of
Section 3.07(a), and there shall have been one or more losses that would
have been covered by such policy, promptly deposit into the Certificate Account
from its own funds the amount not otherwise payable under the blanket policy
because of such deductible clause. The Master Servicer or the Special
Servicer, as appropriate, shall prepare and present, on behalf of itself, the
Trustee and Certificateholders, claims under any such blanket policy in a timely
fashion in accordance with the terms of such policy.
(c) Each of
the Master Servicer and the Special Servicer shall at all times during the term
of this Agreement (or, in the case of the Special Servicer, at all times during
the term of this Agreement in which Specially Serviced Mortgage Loans or REO
Properties are part of the Trust Fund) keep in force a fidelity bond with
Qualified Insurers, such fidelity bond to be in such form and amount as would
permit it to be a qualified FNMA or FHLMC, whichever is greater, seller-servicer
of multifamily mortgage loans, or in such other form and amount as would not
cause the qualification, downgrading or withdrawal of any rating assigned by any
Rating Agency to the Certificates (as evidenced in writing from each Rating
Agency). Each of the Master Servicer and the Special Servicer shall
be deemed to have complied with the foregoing provision if an Affiliate thereof
has such fidelity bond coverage and, by the terms of such fidelity bond, the
coverage afforded thereunder extends to the Master Servicer or the Special
Servicer, as the case may be. Such fidelity bond shall provide for
ten days’ written notice to the Trustee prior to any cancellation.
Each of
the Master Servicer and the Special Servicer shall at all times during the term
of this Agreement (or, in the case of the Special Servicer, at all times during
the term of this Agreement in which Specially Serviced Mortgage Loans and/or REO
Properties exist as part of the Trust Fund) also keep in force with Qualified
Insurers, a policy or policies of insurance covering loss occasioned by the
errors and omissions of its officers, employees and agents in connection with
its servicing obligations hereunder, which policy or policies shall be in such
form and amount as would permit it to be a qualified FNMA seller-servicer of
multifamily mortgage loans, or in such other form and amount as would not cause
the qualification, downgrade or withdrawal of any rating assigned by any Rating
Agency to the Certificates (as
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evidenced
in writing from each Rating Agency). Each of the Master Servicer and
the Special Servicer shall be deemed to have complied with the foregoing
provisions if an Affiliate thereof has such insurance and, by the terms of such
policy or policies, the coverage afforded thereunder extends to the Master
Servicer or the Special Servicer, as the case may be. Any such errors
and omissions policy shall provide for ten days’ written notice to the Trustee
prior to cancellation. The Master Servicer and the Special Servicer
shall each cause the Trustee to be an additional loss payee on any policy
currently in place or procured pursuant to the requirements of this
Section 3.07(c).
For so
long as the long-term debt obligations of the Master Servicer or Special
Servicer, as the case may be (or in the case of the initial Master Servicer and
Special Servicer, their respective direct or indirect parent), are rated at
least “A” or
the equivalent by all of the Rating Agencies (or such lower rating as will not
result in qualification, downgrading or withdrawal of the ratings then assigned
to the Certificates, as evidenced in writing by the Rating Agencies), such
Person may self-insure with respect to the risks described in this
subsection.
Section
3.08 Enforcement of Alienation
Clauses.
(a) Upon
receipt of any request of a waiver in respect of a due-on-sale or
due-on-encumbrance provision, the Master Servicer, with respect to Mortgage
Loans that are not Specially Serviced Mortgage Loans, and the Special Servicer,
with respect to Specially Serviced Mortgage Loans, shall promptly analyze such
waiver, including the preparation of written materials in connection with such
analysis, and will close the related transaction, subject to the consent rights
(if any) of each Companion Holder pursuant to the related Intercreditor
Agreement as provided in this Section 3.08. With respect to all
Mortgage Loans other than Specially Serviced Mortgage Loans and the [__________]
Serviced Mortgage Loan, the Master Servicer or, in the case of Specially
Serviced Mortgage Loans, the Special Servicer, on behalf of the Trustee as the
mortgagee of record, shall, to the extent permitted by applicable law, enforce
the restrictions contained in the related Mortgage on transfers or further
encumbrances of the related Mortgaged Property and on transfers of interests in
the related Mortgagor, unless following its receipt of a request of a waiver in
respect of a due-on-sale or due-on-encumbrance provision the Master Servicer
(with the written consent of the Special Servicer, which consent shall be deemed
given if not denied within the later of (a) 15 Business Days after the
Special Servicer’s receipt of the written recommendation of the Master Servicer
for such action and any additional information the Special Servicer may
reasonably request for the analysis of such request (such recommendation and
information may be delivered in an electronic format reasonably acceptable to
the Master Servicer and the Special Servicer) and (b) five (5) Business
Days after the Controlling Class Representative’s receipt of the written
recommendation of the Special Servicer for such action and any additional
information the Controlling Class Representative may reasonably request for the
analysis of such request, which notice shall be given by the Special Servicer no
later than 10 Business Days after the commencement of the 15 Business Day period
described in the preceding clause (a)) or the Special Servicer (with the written
consent of the Controlling Class Representative, which consent shall be deemed
given if not denied within five Business Days after the Controlling Class
Representative’s receipt of the written recommendation of the Special Servicer
for such action and any additional information the Controlling Class
Representative may reasonably request for the analysis of such request), as
applicable, has determined, consistent with the Servicing Standard, that the
waiver of such
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restrictions would be in accordance with the Servicing
Standard. Promptly after the Master Servicer (with the written
consent of the Special Servicer to the extent required in the preceding
sentence) or the Special Servicer (with the written consent of the Controlling
Class Representative to the extent required in the preceding sentence), as
applicable, has made any such determination, the Master Servicer or the Special
Servicer shall deliver to the Trustee, the Rating Agencies and each other party
hereto an Officer’s Certificate setting forth the basis for such
determination. Neither the Master Servicer nor the Special Servicer
shall exercise (and the Special Servicer shall not consent to) any such waiver
in respect of a due-on-encumbrance provision of any Mortgage Loan (i) with
respect to which the aggregate of the Stated Principal Balance of such Mortgage
Loan and the Stated Principal Balance of all other Mortgage Loans that are
cross-collateralized, cross-defaulted or have been made to Mortgagors affiliated
with the Mortgagor on such Mortgage Loan, are one of the ten largest Mortgage
Loans or concentrations of Mortgage Loans, as of the date of such waiver
request, without receiving prior written confirmation from [S&P and Xxxxx’x]
that such action would not result in a downgrading, qualification or withdrawal
of the ratings then assigned to the Certificates or (ii) with respect to
which (a) the aggregate of the Stated Principal Balance of such Mortgage
Loan and the Stated Principal Balance of all other Mortgage Loans that are
cross-collateralized, cross-defaulted or have been made to Mortgagors affiliated
with the Mortgagor on such Mortgage Loan, is equal to or in excess of
$[20,000,000], (b) the aggregate of the Stated Principal Balance of such
Mortgage Loan and the Stated Principal Balance of all other Mortgage Loans that
are cross-collateralized, cross-defaulted or have been made to Mortgagors
affiliated with the Mortgagor on such Mortgage Loan, are greater than 2% of the
aggregate Stated Principal Balance of all Mortgage Loans, (c) such Mortgage
Loan is one of the ten largest Mortgage Loans as of the date of the waiver (by
Stated Principal Balance), or (d) such Mortgage Loan has a Loan-to-Value
Ratio (calculated to include the additional indebtedness secured by any
encumbrance) that is equal to or greater than 85% and a Debt Service Coverage
Ratio (calculated to include the additional debt from any encumbrance) of 1.2x
or less, without receiving a prior written confirmation from [S&P] that such
action would not result in a downgrading, qualification or withdrawal of the
ratings then assigned to the Certificates. With respect to a waiver
of a due-on-sale provision, neither the Master Servicer nor the Special Servicer
shall waive any such restriction without receiving prior written confirmation
from [Xxxxx’x and S&P] that such action would not result in a downgrading,
qualification or withdrawal of the ratings then assigned to the Certificates;
provided that, if the
Mortgage Loan (a) does not have an aggregate Stated Principal Balance
(including the Stated Principal Balance of all other Mortgage Loans that are
cross-collateralized, cross-defaulted or have been made to Mortgagors affiliated
with the Mortgagor on such Mortgage Loan) equal to or in excess of $35,000,000
(or $25,000,000 with respect to Xxxxx’x), (b) does not have an aggregate
Stated Principal Balance (including the Stated Principal Balance of all other
Mortgage Loans that are cross-collateralized, cross-defaulted or have been made
to Mortgagors affiliated with the Mortgagor on such Mortgage Loan) greater than
5% of the aggregate Stated Principal Balance of all Mortgage Loans or
(c) is not one of the ten largest Mortgage Loans as of the date of the
waiver (by Stated Principal Balance), the Master Servicer or the Special
Servicer, as applicable, may waive such requirement without confirmation by
[S&P] in accordance with the Servicing Standard; and provided, further, that, if the
Mortgage Loan does not meet the criteria set forth in clause (ii) of the
immediately preceding sentence, the Master Servicer or Special Servicer, as
applicable, may waive such requirement without approval by [S&P or Xxxxx’x]
in accordance with the Servicing Standard; and provided, further, that,
if
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the
Mortgage Loan is not one of the ten largest Mortgage Loans (by Stated Principal
Balance, including all other Mortgage Loans that are cross-collateralized and
cross-defaulted with such Mortgage Loan) as of the date of the waiver, the
Master Servicer or Special Servicer, as applicable, may waive such requirement
without approval by Fitch in accordance with the Servicing
Standard. With respect to each Co-Lender Loan, no waiver of a
due-on-sale or due-on-encumbrance provision will be effective unless the Master
Servicer or Special Servicer, as applicable, first consults with the related
Subordinate Companion Holder if required under the applicable Intercreditor
Agreement. Notwithstanding anything contrary in this Section 3.08(a)
and solely with respect to the [__________] Loan, although consent of the Master
Servicer is required, neither the consent of the Special Servicer nor the
applicable Rating Agencies shall be required with respect to an initial
syndication of up to a total of $[11,500,000] of the various Mortgagor’s equity
interests. The Special Servicer and the Rating Agencies shall be
notified upon the completion of any such syndication.
(b) Notwithstanding
any other provisions of this Section 3.08, the Master Servicer (with
respect to Mortgage Loans other than Specially Serviced Mortgage Loans and the
[__________] Serviced Mortgage Loan) (without the Special Servicer’s consent) or
the Special Servicer (with respect to Specially Serviced Mortgage Loans) may
grant, without any Rating Agency confirmation as provided in paragraph
(a) above, a Mortgagor’s request for consent to subject the related
Mortgaged Property to an easement or right-of-way for utilities, access,
parking, public improvements or another purpose, and may consent to
subordination of the related Mortgage Loan to such easement or right-of-way
provided the Master Servicer or the Special Servicer, as applicable, shall have
determined in accordance with the Servicing Standard that such easement or
right-of-way shall not materially interfere with the then-current use of the
related Mortgaged Property, or the security intended to be provided by such
Mortgage, the related Mortgagor’s ability to repay the Mortgage Loan, or
materially or adversely affect the value of such Mortgaged Property or cause the
Mortgage Loan to cease to be a “qualified mortgage” for
REMIC purposes.
(c) Within
ninety (90) days of the Closing Date, with respect to each of the Mortgage Loans
covered by an environmental insurance policy, if any, the Master Servicer shall
notify the insurer under such environmental insurance policy and take all other
action necessary for the Trustee, on behalf of the Certificateholders, to be an
insured (and for the Master Servicer, on behalf of the Trust Fund, to make
claims) under such environmental insurance policy. In the event that
the Master Servicer has actual knowledge of any event (an “Insured Environmental
Event”) giving rise to a claim under any environmental insurance policy
in respect of any Mortgage Loan covered thereby, the Master Servicer shall, in
accordance with the terms of such environmental insurance policy and the
Servicing Standard, timely make a claim thereunder with the appropriate insurer
and shall take such other actions in accordance with the Servicing Standard
which are necessary under such environmental insurance policy in order to
realize the full value thereof for the benefit of the
Certificateholders. Any legal fees, premiums or other out-of-pocket
costs incurred in accordance with the Servicing Standard in connection with any
such claim under an environmental insurance policy shall be paid by the Master
Servicer and shall be reimbursable to it as a Servicing Advance. With
respect to each environmental insurance policy that relates to one or more
Mortgage Loans, the Master Servicer shall review and familiarize itself with the
terms and conditions relating to enforcement of claims and shall monitor the
dates by which any claim must be made or any action must be taken under such
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policy to
realize the full value thereof for the benefit of the Certificateholders in the
event the Master Servicer has actual knowledge of an Insured Environmental Event
giving rise to a claim under such policy.
In the
event that the Master Servicer receives notice of any termination of any
environmental insurance policy that relates to one or more Mortgage Loans, the
Master Servicer shall, within five Business Days after receipt of such notice,
notify the Special Servicer, the Controlling Class Representative, the related
Companion Holder (in the case of a Co-Lender Loan), the Rating Agencies and the
Trustee of such termination in writing. Upon receipt of such notice,
the Master Servicer with respect to non-Specially Serviced Mortgage Loans, and
the Special Servicer with respect to Specially Serviced Mortgage Loans, shall
address such termination in accordance with Section 3.07(a) in the
same manner as it would the termination of any other Insurance Policy required
under the related Mortgage Loan documents. Any legal fees, premiums
or other out-of-pocket costs incurred in accordance with the Servicing Standard
in connection with a resolution of such termination of an environmental
insurance policy shall be paid by the Master Servicer and shall be reimbursable
to it as a Servicing Advance.
(d) For the
avoidance of doubt, any servicing obligation set forth under this Section 3.08
of the Master Servicer or Special Servicer, as applicable, for any Co-Lender
Loan shall also apply to the related Companion Loan.
Section
3.09 Realization Upon Defaulted
Mortgage Loans; Required Appraisals.
(a) The
Special Servicer shall, subject to Sections 3.09(b) through
3.09(d) and Section 6.11, exercise reasonable efforts, consistent with
the Servicing Standard, to foreclose upon or otherwise comparably convert the
ownership of properties securing such of the Mortgage Loans or Companion Loans
as come into and continue in default and as to which no satisfactory
arrangements can be made for collection of delinquent payments, including,
without limitation, pursuant to Section 3.20. Subject to the
second paragraph of Section 3.03(c), the Master Servicer shall advance all
costs and expenses (other than costs or expenses that would, if incurred,
constitute a Nonrecoverable Servicing Advance) incurred by the Special Servicer
in any such proceedings, and shall be entitled to reimbursement therefor as
provided in Section 3.05(a). Nothing contained in this
Section 3.09 shall be construed so as to require the Special Servicer, on
behalf of the Trust Fund, to make a bid on any Mortgaged Property at a
foreclosure sale or similar proceeding that is in excess of the fair market
value of such property, as determined by the Special Servicer in accordance with
the Servicing Standard and in its reasonable and good faith judgment taking into
account, as applicable, among other factors, the period and amount of any
delinquency on the affected Mortgage Loan or Companion Loan, the occupancy level
and physical condition of the Mortgaged Property or REO Property, the state of
the local economy, the obligation to dispose of any REO Property within the time
period specified in Section 3.16(a) and the results of any appraisal
obtained pursuant to the following sentence, all such bids to be made in a
manner consistent with the Servicing Standard. If and when the Master
Servicer or the Special Servicer deems it necessary and prudent for purposes of
establishing the fair market value of any Mortgaged Property securing a
Defaulted Mortgage Loan or defaulted Companion Loan, whether for purposes of
bidding at foreclosure or otherwise, it may, at the expense of the Trust Fund,
have an appraisal performed with respect to such
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property
by an Independent Appraiser or other expert in real estate matters; which
appraisal shall take into account, as applicable, among other factors, the
period and amount of any delinquency on the affected Mortgage Loan, the
occupancy level and physical condition of the Mortgaged Property or REO
Property, the state of the local economy and the obligation to dispose of any
REO Property within the time period specified in Section 3.16(a), including
without limitation, any environmental, engineering or other third party reports
available, and other factors that a prudent real estate appraiser would
consider.
With
respect to each Required Appraisal Mortgage Loan, the Special Servicer will be
required to obtain a Required Appraisal (or with respect to any Mortgage Loan
with an outstanding principal balance less than $2,000,000, an internal
valuation performed by the Special Servicer) within 60 days of a Mortgage Loan
becoming a Required Appraisal Mortgage Loan (unless an appraisal meeting the
requirements of a Required Appraisal was obtained for such Required Appraisal
Mortgage Loan within the prior 12 months and the Special Servicer has no actual
knowledge of a material adverse change in the condition of the related Mortgaged
Property in which case such appraisal may be a letter update of the Required
Appraisal) and thereafter shall obtain a Required Appraisal (or with respect to
any Mortgage Loan with an outstanding principal balance less than $2,000,000,
and in lieu of an Appraisal, an internal valuation performed by the Special
Servicer) once every 12 months (or sooner if the Special Servicer has actual
knowledge of a material adverse change in the condition of the related Mortgaged
Property) if such Mortgage Loan remains a Required Appraisal Mortgage
Loan. The Special Servicer will deliver a copy of each Required
Appraisal (or letter update or internal valuation) to the Master Servicer, the
Controlling Class Representative and the Trustee (and, if such Required
Appraisal Mortgage Loan is a Co-Lender Loan, to the related Companion Holder)
within 10 Business Days of obtaining such Required Appraisal (or letter update
or internal valuation). Subject to the second paragraph of
Section 3.03(c), the Master Servicer shall advance the cost of such
Required Appraisal; provided, however, that such expense
will be subject to reimbursement to the Master Servicer as a Servicing Advance
out of the Certificate Account pursuant to Section 3.05(a)(vi) and
3.05(a)(vii).
Notwithstanding
the foregoing, in no event shall the Master Servicer or the Special Servicer
obtain an appraisal of a Companion Loan pursuant to this
Section 3.09(a) to the extent the related Co-Lender Loan has been paid
in full.
(b) The
Special Servicer shall not acquire any personal property pursuant to this
Section 3.09 unless either:
(i) such
personal property is incident to real property (within the meaning of
Section 856(e)(1) of the Code) so acquired by the Special Servicer;
or
(ii) the
Special Servicer shall have obtained an Opinion of Counsel (the cost of which
may be withdrawn from the Certificate Account pursuant to Section 3.05(a))
to the effect that the holding of such personal property as part of the Trust
Fund (to the extent not allocable to a Companion Loan) will not cause the
imposition of a tax on either of REMIC I or REMIC II under the REMIC
Provisions or cause either of REMIC I or REMIC II to fail to qualify
as a REMIC at any time that any Certificate is outstanding.
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(c) Notwithstanding
the foregoing provisions of this Section 3.09, neither the Master Servicer
nor the Special Servicer shall, on behalf of the Trustee (which may include
through a single member limited liability company owned by the Trust), initiate
foreclosure proceedings, obtain title to a Mortgaged Property by deed in lieu of
foreclosure or otherwise, or take any other action with respect to any Mortgaged
Property, if, as a result of any such action, the Trustee, on behalf of the
Certificateholders, could, in the reasonable judgment of the Master Servicer or
the Special Servicer, as the case may be, made in accordance with the Servicing
Standard, be considered to hold title to, to be a “mortgagee-in-possession”
of, or to be an “owner” or “operator” of such
Mortgaged Property within the meaning of CERCLA or any comparable law (a “potentially responsible
party”), unless (as evidenced by an Officer’s Certificate to such effect
delivered to the Trustee that shall specify all of the bases for such
determination) the Special Servicer has previously determined in accordance with
the Servicing Standard, and based on an Environmental Assessment of such
Mortgaged Property performed by an Independent Person who regularly conducts
Environmental Assessments and performed within six months prior to any such
acquisition of title or other action (a copy of which Environmental Assessment
shall be delivered to the Trustee, the Controlling Class Representative and the
Master Servicer), that:
(i) the
Mortgaged Property is in compliance with applicable environmental laws and
regulations or, if not, that it would maximize the recovery to the
Certificateholders on a present value basis (the relevant discounting of
anticipated collections that will be distributable to Certificateholders to be
performed at the related Net Mortgage Rate to acquire title to or possession of
the Mortgaged Property and to take such actions as are necessary to bring the
Mortgaged Property into compliance therewith in all material respects;
and
(ii) there are
no circumstances or conditions present at the Mortgaged Property relating to the
use, management or disposal of Hazardous Materials for which investigation,
testing, monitoring, containment, clean-up or remediation could be required
under any applicable environmental laws and regulations or, if such
circumstances or conditions are present for which any such action could
reasonably be expected to be required, that it would maximize the recovery to
the Certificateholders on a present value basis (the relevant discounting of
anticipated collections that will be distributable to Certificateholders to be
performed at the related Net Mortgage Rate to acquire title to or possession of
the Mortgaged Property and to take such actions with respect to the affected
Mortgaged Property.
The
Special Servicer shall undertake, in good faith, reasonable efforts to make the
determination referred to in the preceding paragraph and may conclusively rely
on the Environmental Assessment referred to above in making such
determination. The cost of any such Environmental Assessment, as well
as the cost of any remedial, corrective or other further action contemplated by
clause (i) and/or clause (ii) of the preceding paragraph shall be at
the expense of the Trust Fund (except to the extent that such Additional Trust
Fund Expense is payable out of the proceeds of any Companion Loan pursuant to
the related Intercreditor Agreement and this Agreement); and if any such
Environmental Assessment so warrants, the Special Servicer shall perform such
additional environmental testing as it deems necessary and
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prudent
to determine whether the conditions described in clauses (i) and
(ii) of the preceding paragraph have been satisfied, the cost of which
shall be at the expense of the Trust Fund.
(d) If the
environmental testing contemplated by Section 3.09(c) above
establishes that any of the conditions set forth in clauses (i) and
(ii) thereof has not been satisfied with respect to any Mortgaged Property
securing a Defaulted Mortgage Loan and there is no breach of a representation or
warranty requiring repurchase under the applicable Mortgage Loan Purchase
Agreement, the Special Servicer shall take such action as is in accordance with
the Servicing Standard (other than proceeding against the Mortgaged Property)
and, at such time as it deems appropriate, may, on behalf of the Trustee,
release all or a portion of such Mortgaged Property from the lien of the related
Mortgage; provided
that, if such Mortgage Loan has a then outstanding principal balance of greater
than $1,000,000, then prior to the release of all or a portion of the related
Mortgaged Property from the lien of the related Mortgage, (i) the Special
Servicer shall have notified the Rating Agencies, the Trustee, the Controlling
Class Representative and the Master Servicer in writing of its intention to so
release all or a portion of such Mortgaged Property and the bases for such
intention, (ii) the Trustee shall have notified the Certificateholders in
writing of the Special Servicer’s intention to so release all or a portion of
such Mortgaged Property and (iii) the Holders of Certificates entitled to a
majority of the Voting Rights shall have consented to such release within 30
days of the Trustee’s distributing such notice (failure to respond by the end of
such 30-day period being deemed consent).
(e) The
Special Servicer shall report to the Master Servicer, the Controlling Class
Representative and the Trustee monthly in writing as to any actions taken by the
Special Servicer with respect to any Mortgaged Property that represents security
for a Defaulted Mortgage Loan as to which the environmental testing contemplated
in Section 3.09(c) above has revealed that any of the conditions set
forth in clauses (i) and (ii) thereof has not been satisfied, in each
case until the earlier to occur of satisfaction of all such conditions and
release of the lien of the related Mortgage on such Mortgaged
Property.
(f) The
Special Servicer shall have the right to determine, in accordance with the
Servicing Standard, the advisability of seeking to obtain a deficiency judgment
if the state in which the Mortgaged Property is located and the terms of the
Mortgage Loan or Companion Loan permit such an action and shall, in accordance
with the Servicing Standard, seek such deficiency judgment if it deems
advisable.
(g) The
Master Servicer shall, with the reasonable cooperation of the Special Servicer,
prepare and file information returns with respect to reports of foreclosures and
abandonments of any Mortgaged Property and the information returns relating to
any Mortgaged Property securing a Mortgage Loan and, if applicable, Companion
Loan required by Sections 6050J and 6050P of the Code and each year deliver to
the Trustee an Officer’s Certificate stating that such reports have been
filed. Such reports shall be in form and substance sufficient to meet
the reporting requirements imposed by Sections 6050J and 6050P of the
Code.
(h) The
Special Servicer shall maintain accurate records, prepared by a Servicing
Officer, of each Final Recovery Determination in respect of any Mortgage Loan,
Companion Loan or REO Property and the basis thereof. Each Final
Recovery Determination shall be evidenced by an Officer’s Certificate (together
with the basis and back-up
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documentation
for the determination) delivered to the Trustee, the Controlling Class
Representative and the Master Servicer no later than the third Business Day
following such Final Recovery Determination.
(i) Upon
reasonable request of the Master Servicer, the Special Servicer shall deliver to
it and the related Sub-Servicer any other information and copies of any other
documents in its possession with respect to a Specially Serviced Mortgage Loan
or the related Mortgaged Property.
Section
3.10 Trustee and Custodian to
Cooperate; Release of Mortgage Files.
(a) Upon the
payment in full of any Mortgage Loan, or the receipt by the Master Servicer of a
notification that payment in full shall be escrowed in a manner customary for
such purposes, the Master Servicer shall promptly notify the Trustee in writing,
who shall release or cause the related Custodian to release, by a certification
(which certification shall be in the form of a Request for Release in the form
of Exhibit D-1
attached hereto and shall be accompanied by the form of a release or discharge
and shall include a statement to the effect that all amounts received or to be
received in connection with such payment which are required to be deposited in
the Certificate Account pursuant to Section 3.04(a) have been or will
be so deposited) of a Servicing Officer (a copy of which certification shall be
delivered to the Special Servicer) and shall request delivery to it of the
related Mortgage File. Upon receipt of such certification and
request, the Trustee shall release, or cause any related Custodian to release,
the related Mortgage File to the Master Servicer and shall deliver to the Master
Servicer such release or discharge, duly executed. No expenses
incurred in connection with any instrument of satisfaction or deed of
reconveyance shall be chargeable to the Certificate Account or the Distribution
Account.
(b) If from
time to time, and as appropriate for servicing or foreclosure of any Mortgage
Loan (including any related Companion Loan), the Master Servicer or the Special
Servicer shall otherwise require any Mortgage File (or any portion thereof), the
Trustee, upon request of the Master Servicer and receipt from the Master
Servicer of a Request for Release in the form of Exhibit D-1 attached hereto
signed by a Servicing Officer thereof, or upon request of the Special Servicer
and receipt from the Special Servicer of a Request for Release in the form of
Exhibit D-2 attached hereto, shall release, or cause any related Custodian to
release, such Mortgage File (or portion thereof) to the Master Servicer or the
Special Servicer, as the case may be. Upon return of such Mortgage
File (or portion thereof) to the Trustee or related Custodian, or the delivery
to the Trustee of a certificate of a Servicing Officer of the Special Servicer
stating that such Mortgage Loan was liquidated and that all amounts received or
to be received in connection with such liquidation that are required to be
deposited into the Certificate Account pursuant to
Section 3.04(a) have been or will be so deposited, or that such
Mortgage Loan has become an REO Property, a copy of the Request for Release
shall be released by the Trustee or related Custodian to the Master Servicer or
the Special Servicer, as applicable.
(c) Within
seven Business Days (or within such shorter period (but no less than three
Business Days) as execution and delivery can reasonably be accomplished if the
Special Servicer notifies the Trustee of an exigency) of the Special Servicer’s
request therefor, the Trustee shall execute and deliver to the Special Servicer
(or the Special Servicer may, subject
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to
Section 3.01(b), execute and deliver in the name of the Trustee based on a
limited power of attorney issued in favor of the Special Servicer pursuant to
Section 3.01(b)), in the form supplied to the Trustee, any court pleadings,
requests for trustee’s sale or other documents stated by the Special Servicer to
be reasonably necessary to the foreclosure or trustee’s sale in respect of a
Mortgaged Property or REO Property or to any legal action brought to obtain
judgment against any Mortgagor on the Mortgage Note (including any note
evidencing a related Companion Loan) or Mortgage or to obtain a deficiency
judgment, or to enforce any other remedies or rights provided by the Mortgage
Note or Mortgage or otherwise available at law or in equity or to defend any
legal action or counterclaim filed against the Trust Fund, the Master Servicer
or the Special Servicer. Together with such documents or pleadings,
the Special Servicer shall deliver to the Trustee a certificate of a Servicing
Officer requesting that such pleadings or documents be executed by the Trustee
and certifying as to the reason such documents or pleadings are required and
that the execution and delivery thereof by the Trustee will not invalidate or
otherwise affect the lien of the Mortgage, except for the termination of such a
lien upon completion of the foreclosure or trustee’s sale.
Section
3.11 Servicing
Compensation.
(a) As
compensation for its activities hereunder, the Master Servicer shall be entitled
to receive the Master Servicing Fee with respect to each Mortgage Loan
(including each Specially Serviced Mortgage Loan) and REO Loan. No
Master Servicing Fee shall be payable with respect to any Companion Loan unless
such fee is expressly set forth in the related Intercreditor
Agreement. As to each such Mortgage Loan and REO Loan, the Master
Servicing Fee shall accrue at the related Master Servicing Fee Rate and on the
same principal amount respecting which the related interest payment due on such
Mortgage Loan or deemed to be due on such REO Loan is computed and calculated on
the basis of a 360-day year consisting of twelve 30-day months (or, in the event
of a Principal Prepayment in full or other Liquidation Event with respect to a
Mortgage Loan or REO Loan, on the basis of the actual number of days to elapse
from and including the related Due Date to but excluding the date of such
Principal Prepayment or Liquidation Event in a month consisting of 30
days). The Master Servicing Fee with respect to the [__________] Loan
will be set forth on the Mortgage Loan Schedule. The Master Servicing
Fee with respect to any Mortgage Loan or REO Loan shall cease to accrue if a
Liquidation Event occurs in respect thereof. Earned but unpaid Master
Servicing Fees shall be payable monthly, on a loan-by-loan basis, from payments
of interest on each Mortgage Loan and REO Revenues allocable as interest on each
REO Loan. The Master Servicer shall be entitled to recover unpaid
Master Servicing Fees in respect of any Mortgage Loan or REO Loan out of that
portion of related Insurance Proceeds or Liquidation Proceeds allocable as
recoveries of interest, to the extent permitted by
Section 3.05(a)(iii) and otherwise as provided in
Section 3.05(a)(vii). The right to receive the Master Servicing
Fee may not be transferred in whole or in part except in connection with the
transfer of all of the Master Servicer’s responsibilities and obligations under
this Agreement.
(b) Additional
servicing compensation in the form of: (i) all late payment
charges, Penalty Interest, assumption application fees if the related assumption
is completed, modification fees for modifications to Mortgage Loans or Companion
Loans that are not Specially Serviced Mortgage Loans made by the Master Servicer
pursuant to Section 3.20(i), defeasance fees, charges for beneficiary
statements or demands, amounts collected for checks
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returned
for insufficient funds and any similar fees (excluding Prepayment Premiums or
Yield Maintenance Charges), in each case to the extent actually paid by a
Mortgagor with respect to a Mortgage Loan or Companion Loan and, with respect to
late payment charges and penalty charges, accrued during the time that such
Mortgage Loan or Companion Loan was not a Specially Serviced Mortgage Loan, and
(ii) fifty percent (50%) of (A) any assumption fees and (B) any assumption
application fees if the related assumption fails to be completed, in each case
to the extent actually paid by a Mortgagor with respect to any Mortgage Loan or
Companion Loan if such Mortgage Loan or Companion Loan is not a Specially
Serviced Mortgage Loan, may be retained by the Master Servicer and are not
required to be deposited in the Certificate Account; provided that the Master
Servicer’s right to receive late payment charges and Penalty Interest pursuant
to clause (i) above shall be limited to the portion of such items that have
not been applied to pay interest on Advances as provided in Sections
3.03(d) and 4.03(d) or Additional Trust Fund Expenses (other than
Special Servicing Fees, Workout Fees and/or Liquidation Fees) or interest on
Advances pursuant to this Section 3.11(b). To the extent the
Master Servicer or the Special Servicer receives late payment charges or Penalty
Interest on a Mortgage Loan for which interest on Advances or Additional Trust
Fund Expenses (other than Special Servicing Fees, Workout Fees and/or
Liquidation Fees) related to such Mortgage Loan and not previously reimbursed to
the Trust Fund, the Master Servicer shall deposit in the Certificate Account, on
or prior to the P&I Advance Date following the collection of such late
payment charges or Penalty Interest, an amount equal to the lesser of
(i) the amount of late payment charges or Penalty Interest received on such
Mortgage Loan or (ii) the sum of the amount of interest paid to the Master
Servicer on Advances related to such Mortgage Loan since the Closing Date for
which the Trust Fund has not been previously reimbursed and the amount of
Additional Trust Fund Expenses (other than Special Servicing Fees, Workout Fees
and/or Liquidation Fees) related to such Mortgage Loan incurred since the
Closing Date and not previously reimbursed to the Trust Fund. To the
extent that the Master Servicer is not entitled to late payment charges or
Penalty Interest pursuant to the immediately preceding sentence, the Master
Servicer shall deposit such late payment charges and Penalty Interest in the
Certificate Account. Penalty Interest or late payment charges in
respect of any Mortgage Loan or Companion Loan which has accrued during the
period when the related Mortgage Loan or Companion Loan is not a Specially
Serviced Mortgage Loan shall be additional compensation to the Master Servicer
even if collected during the period when the related Mortgage Loan or Companion
Loan is a Specially Serviced Mortgage Loan. The Master Servicer shall
also be entitled to additional servicing compensation in the form of (i)
Prepayment Interest Excesses; (ii) interest or other income earned on
deposits in the Certificate Account and the Interest Reserve Account, in
accordance with Section 3.06(b) (but only to the extent of the Net
Investment Earnings, if any, with respect to such account for each Collection
Period), and (iii) to the extent not required to be paid to any Mortgagor
under applicable law or the terms of the related Mortgage Loan or Companion
Loan, any interest or other income earned on deposits in the Reserve Accounts
and Servicing Accounts maintained thereby.
The
Master Servicer shall be required to pay out of its own funds all expenses
incurred by it in connection with its servicing activities hereunder (including,
without limitation, payment of any amounts due and owing to any of its
Sub-Servicers and the premiums for any blanket policy insuring against hazard
losses pursuant to Section 3.07(b)), if and to the extent such expenses are
not payable directly out of the Certificate Account, and the Master Servicer
shall not be entitled to reimbursement therefor except as expressly provided in
this Agreement.
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The
Master Servicer shall not waive or agree to any discount of any portion of
assumption fees to which the Special Servicer is entitled.
(c) As
compensation for its activities hereunder, the Special Servicer shall be
entitled to receive the Special Servicing Fee with respect to each Specially
Serviced Mortgage Loan and each REO Loan. As to each Specially
Serviced Mortgage Loan and REO Loan, the Special Servicing Fee shall accrue at
the Special Servicing Fee Rate and on the same principal amount respecting which
the related interest payment due on such Specially Serviced Mortgage Loan or
deemed to be due on such REO Loan is computed and calculated on the basis of a
360-day year consisting of twelve 30-day months (or, in the event of a Principal
Prepayment in full or other Liquidation Event with respect to a Mortgage Loan or
REO Loan, on the basis of the actual number of days to elapse from and including
the related Due Date to but excluding the date of such Principal Prepayment or
Liquidation Event in a month consisting of 30 days). The Special
Servicing Fee with respect to any Specially Serviced Mortgage Loan or REO Loan
shall cease to accrue as of the date a Liquidation Event occurs in respect
thereof or it becomes a Corrected Mortgage Loan. Earned but unpaid
Special Servicing Fees shall be payable monthly out of general collections on
the Mortgage Loans, Companion Loans and any REO Properties on deposit in the
Certificate Account pursuant to Section 3.05(a).
As
further compensation for its activities hereunder, the Special Servicer shall be
entitled to receive the Workout Fee with respect to each Corrected Mortgage
Loan, so long as such loan remains a Corrected Mortgage Loan. As to
each Corrected Mortgage Loan, the Workout Fee shall be payable out of, and shall
be calculated by application of the Workout Fee Rate to, each collection of
interest (other than Additional Interest and Penalty Interest) and principal
received on such Mortgage Loan or Companion Loan for so long as it remains a
Corrected Mortgage Loan (net of any portion of such collection payable or
reimbursable to the Master Servicer, the Special Servicer, or the Trustee for
any related unpaid or unreimbursed Master Servicing Fees and/or Advances)
received on such Mortgage Loan or Companion Loan for so long as it remains a
Corrected Mortgage Loan. The Workout Fee with respect to any
Corrected Mortgage Loan will cease to be payable if a Servicing Transfer Event
occurs with respect thereto or if the related Mortgaged Property becomes an REO
Property; provided that
a new Workout Fee would become payable if and when such Mortgage Loan and, if
applicable, Companion Loan again became a Corrected Mortgage Loan. If
the Special Servicer is terminated or resigns, it will retain the right to
receive any and all Workout Fees payable with respect to any Specially Serviced
Mortgage Loan that became a Corrected Mortgage Loan during the period that it
acted as Special Servicer and remained a Corrected Mortgage Loan at the time of
its termination or resignation or if the Special Servicer resolved the
circumstances and/or conditions (including by way of a modification of the
related Mortgage Loan documents) causing the Mortgage Loan to be a Specially
Serviced Mortgage Loan, but the Mortgage Loan had not as of the time the Special
Servicer is terminated or resigns become a Corrected Mortgage Loan because the
related borrower had not made three consecutive monthly debt service payments
(but made the most recent monthly debt service payment prior to the termination
of the Special Servicer) and subsequently becomes a Corrected Mortgage Loan as a
result of making three such consecutive payments. The successor
Special Servicer will not be entitled to any portion of those Workout
Fees.
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In
addition, with respect to each Specially Serviced Mortgage Loan and REO Loan or
Mortgage Loan subject to repurchase by the applicable Mortgage Loan Seller (to
the extent such Mortgage Loan was not repurchased within the cure period
specified in the related Mortgage Loan Purchase Agreement) (or Qualified
Substitute Mortgage Loan substituted in lieu thereof), the Special Servicer
shall be entitled to the Liquidation Fee payable out of, and calculated by
application of the Liquidation Fee Rate to, all amounts (whether in the form of
payments of Liquidation Proceeds or REO Revenues or a full or discounted payoff
by the Mortgagor) received in respect of such Mortgage Loan or Companion Loan
(or, in the case of an REO Loan, in respect of the related REO Property) and
allocable as a full or partial recovery of principal, interest and expenses in
accordance with Section 3.02(b) or the definition of “REO Loan,” as
applicable; provided
that no Liquidation Fee shall be payable in connection with, or out of
(i) Insurance Proceeds and (ii) Liquidation Proceeds resulting from
the purchase of any Mortgage Loan or REO Property by a Mortgage Loan Seller
pursuant to the applicable Mortgage Loan Purchase Agreement if purchased within
the cure period set forth in Section 3(c) of such Mortgage Loan
Purchase Agreement, by the Majority Subordinate Certificateholder, the Companion
Holder, or the Special Servicer pursuant to Section 3.18(c),
Section 3.18(d), Section 3.18(e), Section 3.18(h) or by the
Master Servicer, the Special Servicer or the Majority Subordinate
Certificateholder or the purchasing Certificateholder pursuant to
Section 9.01, or any mezzanine lender pursuant to the related mezzanine
intercreditor agreement if purchased by the mezzanine lender within 90 days of
the related Mortgage Loan becoming a Specially Serviced Mortgage Loan; and
(iii) Liquidation Proceeds resulting from the remittance by the related
Mortgage Loan Seller pursuant to Section 2.03 (if remitted within the cure
period set forth for repurchase in the related Mortgage Loan Purchase
Agreement); and provided, further, that no Liquidation
Fee shall be payable (i) in connection with a Periodic Payment received in
connection with such Mortgage Loan or (ii) to the extent a Workout Fee is
payable concerning the Liquidation Proceeds.
The
Special Servicer’s right to receive the Special Servicing Fee, the Workout Fee
and the Liquidation Fee may not be transferred in whole or in part except in
connection with the transfer of all of the Special Servicer’s responsibilities
and obligations under Sections 6.02, 6.04 and 6.09.
(d) Additional
servicing compensation in the form of: (i) all late payment
charges, Penalty Interest received on or with respect to Specially Serviced
Mortgage Loans actually collected that, with respect to late payment charges and
penalty charges, accrued during the time that the related Mortgage Loan was a
Specially Serviced Mortgage Loan, (ii) one hundred percent (100%) of any
assumption application fees and assumption fees with respect to any Specially
Serviced Mortgage Loan and fifty percent (50%) of (A) any assumption fees and
(B) any assumption application fees if the related assumption fails to be
completed with respect to any Mortgage Loan or Companion Loan if such Mortgage
Loan or Companion Loan is not a Specially Serviced Mortgage Loan, in each case
to the extent actually paid by a Mortgagor, and (iii) modification fees
collected on all Mortgage Loans or Companion Loans (other than modifications
made by the Master Servicer pursuant to Section 3.20(i)), in each case to
the extent actually paid by the related Mortgagor, shall be retained by the
Special Servicer or promptly paid to the Special Servicer by the Master Servicer
and shall not be required to be deposited in the Certificate Account; provided that the Special
Servicer’s right to receive late payment charges and Penalty Interest pursuant
to clause (i) above shall be limited to the portion
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of such
items that have not been applied to pay interest on Advances and property
inspection costs in respect of the related Mortgage Loan as provided in Sections
3.03(d), 3.12(a) and 4.03(d) or Additional Trust Fund Expenses (other
than Special Servicing Fees, Workout Fees and/or Liquidation Fees) pursuant to
this Section 3.11(d). To the extent the Master Servicer or the
Special Servicer receives late payment charges or Penalty Interest on a Mortgage
Loan for which interest on Advances or Additional Trust Fund Expenses (other
than Special Servicing Fees, Workout Fees and/or Liquidation Fees) related to
such Mortgage Loan and not previously reimbursed to the Trust Fund, the Special
Servicer shall transfer to the Master Servicer for deposit in the Certificate
Account, on or prior to the P&I Advance Date following the collection of
such late payment charges or Penalty Interest, an amount equal to the lesser of
(i) the amount of late payment charges or Penalty Interest received on such
Mortgage Loan or (ii) the sum of the amount of interest paid to the Master
Servicer on Advances related to such Mortgage Loan incurred since the Closing
Date for which the Trust Fund has not been previously reimbursed and the amount
of Additional Trust Fund Expenses (other than Special Servicing Fees, Workout
Fees and/or Liquidation Fees) related to such Mortgage Loan since the Closing
Date and not previously reimbursed to the Trust Fund. To the extent
that the Special Servicer is not entitled to late payment charges or Penalty
Interest pursuant to the immediately preceding sentence, the Special Servicer
shall promptly transfer such late payment charges and Penalty Interest to the
Master Servicer who shall deposit such late payment charges and Penalty Interest
in the Certificate Account. The Special Servicer shall also be
entitled to additional servicing compensation in the form
of: (i) interest or other income earned on deposits in the REO
Account, if established, in accordance with Section 3.06(b) (but only
to the extent of the Net Investment Earnings, if any, with respect to the REO
Account for each Collection Period); and (ii) to the extent not required to
be paid to any Mortgagor under applicable law, any interest or other income
earned on deposits in the Servicing Accounts maintained by the Special
Servicer. The Special Servicer shall be required to pay out of its
own funds all general and administrative expenses incurred by it in connection
with its servicing activities hereunder, and the Special Servicer shall not be
entitled to reimbursement therefor except as expressly provided in
Section 3.05(a) if and to the extent such expenses are not payable
directly out of the Certificate Account or the REO Account.
Section
3.12 Property Inspections;
Collection of Financial Statements; Delivery of Certain
Reports.
(a) (i)
The Special Servicer shall perform or cause to be performed a physical
inspection of a Mortgaged Property as soon as practicable after a related
Mortgage Loan becomes a Specially Serviced Mortgage Loan and (ii) the
Master Servicer (in the case of non-Specially Serviced Mortgage Loans other than
the [__________] Serviced Mortgage Loan) or the Special Servicer (in the case of
Specially Serviced Mortgage Loans) shall perform or cause to be performed a
physical inspection of a Mortgaged Property as soon as the related Debt Service
Coverage Ratio set forth in the CMSA Comparative Financial Status Report of a
Mortgage Loan is below 1.0x; provided that, with respect
to inspections prepared by the Special Servicer, such expense shall be
reimbursable first out of Penalty Interest and late payment charges otherwise
payable to the Special Servicer and received in the Collection Period during
which such inspection related expenses were incurred, then as an Additional
Trust Fund Expense (except to the extent that such Additional Trust Fund Expense
is payable out of the proceeds of any Companion Loan pursuant to the related
Intercreditor Agreement and this Agreement). Each
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of the
Master Servicer for each Mortgage Loan (other than a Specially Serviced Mortgage
Loan or REO Loan) and the Special Servicer for each Specially Serviced Mortgage
Loan and REO Loan shall (and, in the case of the Master Servicer, at its
expense) perform or cause to be performed an inspection of all the Mortgaged
Properties at least once per calendar year (or, in the case of each Mortgaged
Property securing a Mortgage Loan (other than a Specially Serviced Mortgage
Loan) with a then current principal balance (or allocated loan amount) of less
than $2,000,000 at the time of such inspection, every other calendar year)
beginning in [___]; provided, however, the Master Servicer
shall not be required to inspect any Mortgaged Property that has been inspected
by the Special Servicer during the immediately preceding six
months. The Special Servicer and the Master Servicer shall each
prepare (and, in the case of the Special Servicer, shall deliver to the Master
Servicer) a written report of each such inspection performed by it that sets
forth in detail the condition of the Mortgaged Property and that specifies the
existence of: (i) any sale, transfer or abandonment of the
Mortgaged Property of which it is aware, (ii) any change in the condition
or value of the Mortgaged Property that it, in its reasonable judgment,
considers material, or (iii) any visible waste committed on the Mortgaged
Property. The Master Servicer shall deliver such reports to the
Trustee within 45 days of the related inspection and the Trustee shall, subject
to Section 3.15, make copies of all such inspection reports available for
review by Certificateholders and Certificate Owners during normal business hours
at the offices of the Trustee at all times after the Trustee’s receipt
thereof. Upon written request and at the expense of the requesting
party, the Trustee shall deliver copies of any such inspection reports to
Certificateholders and Certificate Owners. The Special Servicer shall
have the right to inspect or cause to be inspected (at its own expense) every
calendar year any Mortgaged Property related to a loan that is not a Specially
Serviced Mortgage Loan; provided that the Special
Servicer obtains the approval of the Master Servicer prior to such inspection,
and provides a copy of such inspection to the Master Servicer; provided, further, that the Master
Servicer and the Special Servicer shall not both inspect a Mortgaged Property
that is not securing a Specially Serviced Mortgage Loan in the same calendar
year. If the Special Servicer performs such inspection, such
inspection shall satisfy the Master Servicer’s inspection obligations pursuant
to this paragraph (a).
With
respect to site inspection information, the Master Servicer shall make such
inquiry of any Mortgagor under any related Mortgage Loan as the Special Servicer
may reasonably request.
If the
Special Servicer initiates a servicing transfer under clause (b) or
(c) of the definition of “Specially Serviced Mortgage
Loan,” the Special Servicer shall give written notice thereof to the
Master Servicer, the Controlling Class Representative and the Trustee in order
to effectuate such transfer.
(b) Not later
than 2:00 p.m. (New York City time) on the second Business Day prior to each
Determination Date, the Special Servicer shall deliver or cause to be delivered
to the Master Servicer the following reports with respect to the Specially
Serviced Mortgage Loans and any REO Properties providing the required
information as of the end of the preceding calendar month: (i) a
CMSA Property File; (ii) a CMSA Comparative Financial Status Report and
(iii) CMSA Financial File. Not later than 5:00 p.m. (New York
City time) on the first Business Day following each Determination Date, the
Special Servicer shall deliver or cause to be delivered to the Master Servicer
the following reports with respect to the Mortgage Loans
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(and, if
applicable, the related REO Properties) (or, as to clause (v) below, only
with respect to Specially Serviced Mortgage Loans) providing the required
information as of such Determination Date: (i) a CMSA Historical
Liquidation Report; (ii) a CMSA Historical Loan Modification and Corrected
Mortgage Loan Report; (iii) a CMSA REO Status Report, (iv) a CMSA
Advance Recovery Report and (v) a CMSA Delinquent Loan Status
Report.
(c) Not later
than 4:00 p.m. (New York City time) on the third Business Day after each
Determination Date, the Master Servicer shall deliver or cause to be delivered
to the Trustee (in electronic format acceptable to the Master Servicer and the
Trustee) (A) the most recent CMSA Historical Loan Modification and Corrected
Mortgage Loan Report, CMSA Historical Liquidation Report and CMSA REO Status
Report received from the Special Servicer pursuant to Section 3.12(b); (B)
a CMSA Property File, a CMSA Comparative Financial Status Report and a CMSA
Financial File, each with the required information as of the end of the
preceding calendar month (in each case combining the reports prepared by the
Special Servicer and the Master Servicer); (C) a CMSA Loan Level Reserve/LOC
Report and CMSA Delinquent Loan Status Report, each with the required
information as of such Determination Date (in each case combining the reports
prepared by the Special Servicer and the Master Servicer); (D) a CMSA Servicer
Watchlist with the required information as of such Determination Date; and (E) a
CMSA Advance Recovery Report, with the required information as of such
Determination Date.
(d) The
Special Servicer will deliver to the Master Servicer the reports set forth in
Section 3.12(b) and this Section 3.12(d) and the Master
Servicer shall deliver to the Trustee the reports set forth in this
Section 3.12 in an electronic format reasonably acceptable to the Special
Servicer and the Master Servicer with respect to the reports set forth in
Section 3.12(b) and this Section 3.12(d) and the Master Servicer
and the Trustee with respect to the reports set forth in
Section 3.12(c). The Master Servicer may, absent manifest error,
conclusively rely on the reports to be provided by the Special Servicer pursuant
to Section 3.12(b) and this Section 3.12(d) and the [__________]
Master Servicer to the extent required to be provided pursuant to the
[__________] Pooling and Servicing Agreement. The Trustee may, absent
manifest error, conclusively rely on the CMSA Loan Periodic Update File to be
provided by the Master Servicer pursuant to Section 4.02(b). In
the case of information or reports to be furnished by the Master Servicer to the
Trustee pursuant to this Section 3.12, to the extent that such information
is based on reports to be provided by the Special Servicer pursuant to
Section 3.12(b) and this Section 3.12(d) and, to the extent
that such reports are to be prepared and delivered by the Special Servicer
pursuant to Section 3.12(b) and this Section 3.12(d), the Master
Servicer shall have no obligation to provide such information or reports until
it has received such information or reports from the Special Servicer and the
Master Servicer shall not be in default hereunder due to a delay in providing
the reports required by this Section 3.12 to the extent caused by the
Special Servicer’s failure to timely provide any report required under
Section 3.12(b) and this Section 3.12(d) of this
Agreement.
The
Special Servicer, in the case of any Specially Serviced Mortgage Loan and REO
Loan, and the Master Servicer, in the case of all other Mortgage Loans, shall
endeavor, consistent with the Servicing Standard, to obtain quarterly and annual
operating statements and rent rolls with respect to the related Mortgage Loans
and REO Properties, which efforts shall include (i) in the case of the
Mortgage Loans other than the [__________] Serviced Mortgage
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Loan, a
letter sent to the related Mortgagor each quarter (followed up with telephone
calls) requesting such quarterly and annual operating statements and rent rolls
until they are received to the extent such action is consistent with applicable
law and the related Mortgage Loan documents, and (ii) with respect to the
[__________] Serviced Mortgage Loan, a letter sent to the [__________] Master
Servicer to provide such information to the extent required to be delivered
pursuant to the [__________] Intercreditor Agreement.
The
Special Servicer shall promptly, following receipt, deliver copies of the
operating statements and rent rolls received or obtained by it to the Master
Servicer, and the Master Servicer shall deliver copies of the operating
statements and rent rolls received or obtained by it to the Rating Agencies, the
Trustee, the Special Servicer or the Controlling Class Representative in each
case (other than the Rating Agencies and the Controlling Class Representative
which shall be sent copies within 30 days following the Master Servicer’s
receipt) upon request.
Within 30
days after receipt by the Master Servicer or the Special Servicer of any annual
operating statements with respect to any Mortgaged Property or REO Property, as
applicable (other than, in each case, the Mortgaged Property or REO Property
related to the [__________] Serviced Mortgage Loan), each of the Master Servicer
and the Special Servicer shall prepare or update and, with respect to any CMSA
NOI Adjustment Worksheet prepared or updated by the Special Servicer, forward to
the Master Servicer, a CMSA NOI Adjustment Worksheet for such Mortgaged Property
or REO Property (with the annual operating statements attached thereto as an
exhibit).
The
Special Servicer with respect to each Specially Serviced Mortgage Loan and REO
Loan, and the Master Servicer with respect to each other Mortgage Loan, shall
each prepare and maintain and forward to each other one CMSA Operating Statement
Analysis for each Mortgaged Property and REO Property, as applicable; provided, however, that with respect to
the [__________] Loan, the Master Servicer shall forward to each recipient of a
CMSA Operating Statement Analysis hereunder a copy of the CMSA Operating
Statement Analysis received from the [__________] Master Servicer related to the
[__________] Loan. The CMSA Operating Statement Analysis for each
Mortgaged Property and REO Property is to be updated by each of the Master
Servicer and the Special Servicer, as applicable, within thirty days after its
respective receipt of updated operating statements for such Mortgaged Property
and REO Property, as the case may be, but in no event less frequently than
annually by June 30th of
each year. The Master Servicer and the Special Servicer shall each
use the “Normalized” column
from the CMSA NOI Adjustment Worksheet for any Mortgaged Property or REO
Property, as the case may be, to update the corresponding CMSA Operating
Statement Analysis and shall use any operating statements received with respect
to any Mortgaged Property or REO Property, as the case may be, to prepare the
CMSA NOI Adjustment Worksheet for such property. Copies of CMSA
Operating Statement Analyses and CMSA NOI Adjustment Worksheets are to be made
available by the Master Servicer to the Trustee, the Special Servicer or the
Controlling Class Representative in each case upon request.
(e) With
respect to the [__________] Loan, the Master Servicer and the Special Servicer,
as applicable, will provide the related Companion Holders with copies of any and
all documents, certificates, instruments, notices, reports, operating
statements, rent rolls,
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correspondences
and other information required to be delivered pursuant to the terms of the
[__________] Intercreditor Agreement.
Section
3.13 Annual Reports on Assessment of
Compliance with Servicing Criteria and Annual Reports on Assessment of
Compliance with Servicing Criteria.
(a) On or
before noon (Eastern Time) on March 1st of
each year, commencing in March 20___, the Master Servicer, the Special Servicer
and the Trustee, each at its own expense, shall furnish, and the Master Servicer
and Special Servicer shall cause each Servicing Participant with which it has
entered into a servicing relationship with respect to the Mortgage Loans to
furnish and the Master Servicer shall cause each Additional Servicer to furnish,
to the Trustee and the Depositor, with a copy to the Rating Agencies and the
Controlling Class Representative, a report on an assessment of compliance with
the Servicing Criteria that contains (i) a statement by such Reporting Party of
its responsibility for assessing compliance with the Servicing Criteria
applicable to it, (ii) a statement that such Reporting Party used the Servicing
Criteria to assess compliance with the Relevant Servicing Criteria, (iii) such
Reporting Party’s assessment of compliance with the Relevant Servicing Criteria
as of and for the period ending the end of the fiscal year covered by the Form
10-K required to be filed pursuant to Section 8.17, including, if there has been
any material instance of noncompliance with the Relevant Servicing Criteria, a
discussion of each such failure and the nature and status thereof, and (iv) a
statement that a registered public accounting firm has issued an attestation
report on such Reporting Party’s assessment of compliance with the Relevant
Servicing Criteria as of and for such period. Promptly after receipt
of each such report, the Depositor may review each such report and, if
applicable, consult with the Master Servicer and the Special Servicer as to the
nature of any material instance of noncompliance with the Relevant Servicing
Criteria by the Master Servicer, the Special Servicer or any Servicing
Participant with which it has entered into a servicing relationship with respect
to the Mortgage Loans. Neither the Master Servicer nor the Special
Servicer shall be required to cause the delivery of any such statements until
April 15 in any given year so long as it has received written confirmation from
the Depositor that a Report on Form 10-K is not required to be filed in respect
of the Trust Fund for the preceding calendar year.
Each such
report shall be addressed to the Depositor and signed by an authorized officer
of the applicable company, and shall address each of the Servicing Criteria
specified on a certification substantially in the form of Exhibit S hereto
delivered to the Depositor on the Closing Date. Promptly after
receipt of each such report, (i) the Depositor shall review each such
report and, if applicable, consult with the Master Servicer, the Special
Servicer and the Trustee as to the nature of any material instance of
noncompliance with the Servicing Criteria applicable to it (and each
Sub-Servicer or Servicing Participant engaged or utilized by the Master
Servicer, the Special Servicer or the Trustee, as applicable), and (ii) the
Trustee shall confirm that the assessments, taken as a whole address all of the
Servicing Criteria, and taken individually address the Servicing Criteria
applicable to each party as set forth on Exhibit S and notify the Depositor of
any exceptions. None of the Master Servicer, the Special Servicer,
the Trustee or any Servicing Participant shall be required to cause the delivery
of any such assessments until March 10 in any given year so long as it has
received written confirmation from the Depositor that a Report on Form 10-K is
not required to be filed in respect of the Trust for the preceding calendar
year.
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On the
Closing Date, the Master Servicer, the Special Servicer and the Trustee shall
furnish to the Depositor the Servicing Criteria applicable to it, in the form of
Exhibit S hereto appropriately completed (and any Servicing Participant that the
Master Servicer, Special Servicer or Trustee has entered into a servicing
relationship).
No later
than the end of each fiscal year for the Trust, the Master Servicer and the
Special Servicer shall notify the Trustee and the Depositor as to the name of
each Subservicer engaged by it and each Servicing Participant utilized by it,
and the Trustee shall notify the Depositor as to the name of each Servicing
Participant utilized by it, and each such notice will specify what specific
Servicing Criteria will be addressed in the report on assessment of compliance
prepared by such Servicing Participant. When the Master Servicer, the
Special Servicer and the Trustee submit their assessments pursuant to Section
3.13(a), the Master Servicer, the Special Servicer and the Trustee, as
applicable, will also at such time include the assessment (and related
attestation pursuant to Section 3.14) of each Servicing Participant engaged by
it.
In the
event the Master Servicer, the Special Servicer or the Trustee is terminated or
resigns pursuant to the terms of this Agreement, such party shall provide, and
each such party shall cause any Servicing Participant engaged by it to provide,
and the Master Servicer shall use its reasonable efforts to cause any Additional
Servicer that resigns or is terminated under any applicable servicing agreement
to provide, an annual assessment of compliance pursuant to this Section 3.13,
coupled with an attestation as required in Section 8.17 with respect to the
period of time that the Master Servicer, the Special Servicer or the Trustee was
subject to this Agreement or the period of time that the Additional Servicer was
subject to such other servicing agreement.
(b) The
Trustee, the Master Servicer and the Special Servicer shall, and the Master
Servicer (or, in the case of the Master Servicer with respect to the
Sub-Servicers identified on Exhibit Y hereto, shall use reasonable efforts to
cause) and Special Servicer shall cause any Additional Servicer with which it
has entered into a servicing relationship with respect to the Mortgage Loans to,
deliver to the Depositor and the Trustee on or before March 1st of
each year, commencing in March 20___, an Officer’s Certificate stating, as to
the signer thereof, that (i) a review of such signer’s activities during the
preceding calendar year or portion thereof and of such signer’s performance
under this Agreement, or the applicable servicing agreement in the case of a any
Additional Servicer, has been made under such officer’s supervision and (ii) to
the best of such officer’s knowledge, based on such review, such signer has
fulfilled all its obligations under this Agreement, or the applicable
sub-servicing agreement or primary servicing agreement in the case of any
Additional Servicer, in all material respects throughout such year or portion
thereof, or, if there has been a failure to fulfill any such obligation in any
material respect, specifying each such failure known to such officer and the
nature and status thereof. The Trustee, the Master Servicer and the
Special Servicer shall, and the Master Servicer (or, in the case of the Master
Servicer with respect to the Sub-Servicers identified on Exhibit Y hereto, shall
use reasonable efforts to cause) and the Special Servicer shall cause each
Additional Servicer with which it has entered into a servicing relationship with
respect to the Mortgage Loans to, forward, or make available a copy of each such
statement to the Rating Agencies and the Controlling Class Representative.
Promptly after receipt of each such Officer’s Certificate, the Depositor may
review such Officer’s Certificate and, if applicable, consult with the Trustee,
the Master Servicer or the Special Servicer, as applicable, as to the nature of
any failures by the
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Trustee,
the Master Servicer or the Special Servicer, respectively, or any related any
Additional Servicer with which the Master Servicer or the Special Servicer, as
applicable, has entered into a servicing relationship with respect to the
Mortgage Loans in the fulfillment of any of the Master Servicer’s or Special
Servicer’s obligations hereunder or under the applicable servicing
agreement.
The
obligations of the Master Servicer, the Special Servicer and each Additional
Servicer under this Section apply to the Master Servicer, the Special Servicer
and each Additional Servicer that serviced a Mortgage Loan during the applicable
period, whether or not the Master Servicer, the Special Servicer or Additional
Servicer is acting as the Master Servicer, the Special Servicer or Additional
Servicer at the time such Officer’s Certificate is required to be
delivered.
In the
event the Master Servicer, the Special Servicer or the Trustee is terminated or
resigns pursuant to the terms of this Agreement, such party shall provide, and
the Master Servicer shall use its reasonable efforts to cause any Additional
Servicer that resigns or is terminated under any applicable servicing agreement
to provide, an annual statement of compliance pursuant to this Section 3.13 with
respect to the period of time that the Master Servicer, the Special Servicer or
the Trustee was subject to this Agreement or the period of time that the
Additional Servicer was subject to such other servicing agreement.
Section
3.14 Attestation by Independent
Public Accountants.
On or before noon (Eastern Time) on March 1st of each year,
commencing in March 20___, the Master Servicer, the Special Servicer and the
Trustee, each at its own expense, shall cause, and the Master Servicer (or, in
the case of the Master Servicer with respect to the Sub-Servicers identified on
Exhibit Y hereto, shall use reasonable efforts to cause), the Special Servicer
and the Trustee shall cause each Servicing Participant with which it has entered
into a servicing relationship with respect to the Mortgage Loans to cause, and
the Master Servicer shall cause each Additional Servicer to cause, a registered
public accounting firm (which may also render other services to the Master
Servicer, the Special Servicer, the Trustee or the applicable Servicing
Participant, as the case may be) and that is a member of the American Institute
of Certified Public Accountants to furnish a report to the Trustee and the
Depositor, with a copy to the Rating Agencies and the Controlling Class
Representative, to the effect that (i) it has obtained a representation
regarding certain matters from the management of such Reporting Party, which
includes an assertion that such Reporting Party has complied with the Servicing
Criteria and (ii) on the basis of an examination conducted by such firm in
accordance with standards for attestation engagements issued or adopted by the
Public Company Accounting Oversight Board, attests to and reports on such
Reporting Party’s assessment of compliance with the Relevant Servicing
Criteria. In the event that an overall opinion cannot be expressed,
such registered public accounting firm shall state in such report why it was
unable to express such an opinion. Each such related accountant’s
attestation report shall be made in accordance with Rules 1-02(a)(3) and 2-02(g)
of Regulation S-X under the Securities Act and the Exchange Act. Such
report must be available for general use and not contain restricted use
language. Promptly after receipt of such report from the Trustee, the
Master Servicer, the Special Servicer or any Servicing Participant, the
Depositor may review the report and, if applicable, consult with the Trustee,
the Master Servicer or the Special Servicer as to the nature of any defaults by
the
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Trustee, the Master Servicer, the Special Servicer or any
Servicing Participant with which it has entered into a servicing relationship
with respect to the Mortgage Loans, as the case may be, in the fulfillment of
any of the Trustee’s, the Master Servicer’s, the Special Servicer’s or the
applicable Servicing Participants’ obligations hereunder or under the applicable
servicing agreement. The Trustee, the Master Servicer and the Special
Servicer shall not be required to cause the delivery of such reports until April
15 in any given year so long as it has received written confirmation from the
Depositor that a Report on Form 10-K is not required to be filed in respect of
the Trust Fund for the preceding calendar year. The Trustee shall
confirm that each accountants’ attestation report submitted pursuant to this
Section relates to an assessment of compliance meeting the requirements of
Section 3.13(a) and notify the Depositor of any exceptions .
Section
3.15 Access to Certain
Information.
(a) Upon
reasonable prior written notice, not required to be greater than ten days, the
Master Servicer (with respect to the items in clauses (a), (b) (other than
Distribution Date Statements), (c), (d), (e), (f), (h) and (i) below,
unless such item was not delivered to the Master Servicer), the Special Servicer
(with respect to the items in clauses (c), (d), (g), (h) and (i) below) to
the extent such items are in its possession and the Trustee (with respect to the
items in clauses (b) and (i) below and any other items, to the extent in
its possession) shall make available at their respective offices primarily
responsible for administration of the Mortgage Loans (or in the case of the
Trustee, at its Corporate Trust Office, except with respect to documents which
constitute part of the Mortgage Files, which will be maintained at its offices
in Minnesota), during normal business hours, or send to the requesting party,
such party having been certified to the Trustee, the Master Servicer or the
Special Servicer, as applicable, in accordance with (a) and (b) in the following
paragraph, as appropriate, at the expense of such requesting party (unless
otherwise provided in this Agreement), for review by any Certificate Owner or
Certificateholder or any Person identified by a Certificate Owner or
Certificateholder or its designated agent to the Trustee, the Master Servicer or
the Special Servicer, as the case may be, as a prospective transferee of any
Certificate or interest therein or a Companion Loan or any interest therein (to
the extent such information is related to such Companion Loan or the related
Mortgage Loan), the Trustee, the Rating Agencies, the Underwriters and any
applicable regulator or potential purchaser specified thereby and the Depositor,
originals or copies of the following items: (a) this Agreement
and any amendments thereto, (b) all Distribution Date Statements delivered
to holders of the relevant Class of Certificates since the Closing Date and all
reports, statements and analyses delivered by the Master Servicer since the
Closing Date pursuant to Section 3.12(c), (c) all Officer’s
Certificates delivered by the Master Servicer or the Special Servicer since the
Closing Date pursuant to Section 3.13, (d) all accountants’ reports
delivered to the Master Servicer in respect of itself or the Special Servicer
since the Closing Date as described in Section 3.14, (e) the most
recent property inspection report prepared by or on behalf of the Master
Servicer in respect of each Mortgaged Property and any Environmental Assessments
prepared pursuant to Section 3.09, (f) the most recent Mortgaged
Property annual operating statements and rent roll, if any, collected by or on
behalf of the Master Servicer, (g) any and all modifications, waivers and
amendments of the terms of a Mortgage Loan entered into by the Special Servicer
and the Asset Status Report prepared pursuant to Section 3.21(d),
(h) the Servicing File relating to each Mortgage Loan and (i) any and
all Officer’s Certificates and other evidence delivered by the Master Servicer
or the Special Servicer, as the case may be,
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to
support its determination that any Advance was, or if made, would be, a
Nonrecoverable Advance pursuant to Sections 3.03(e) or 4.03(c), including
appraisals affixed thereto and any Required Appraisal prepared pursuant to
Section 3.09(a). Copies of any and all of the foregoing items
will be available from the Master Servicer, the Special Servicer or the Trustee,
as the case may be, upon request and shall be provided to any of the Rating
Agencies at no cost pursuant to their reasonable requests.
In
connection with providing access to or copies of the items described in the
preceding paragraph pursuant to this Section 3.15, or with respect to the
Controlling Class Representative, in connection with providing access to or
copies of any items in accordance with this Agreement, the Trustee, the Master
Servicer or the Special Servicer, as applicable, shall
require: (a) in the case of Certificate Owners and the
Controlling Class Representative, a confirmation (which in the case of the
Controlling Class Representative may be a standing confirmation) executed by the
requesting Person substantially in the form of Exhibit K-1 hereto
(or such other form as may be reasonably acceptable to the Trustee, the Master
Servicer or the Special Servicer, as applicable) generally to the effect that
such Person is a beneficial holder of Book-Entry Certificates, or a
representative of a beneficial holder of Book-Entry Certificates, and, subject
to the last sentence of this paragraph, will keep such information confidential
(except that such Certificate Owner and the Controlling Class Representative may
provide such information to any other Person that holds or is contemplating the
purchase of any Certificate or interest therein; provided that such other
Person confirms in writing such ownership interest or prospective ownership
interest and agrees to keep such information confidential); and (b) in the
case of a prospective purchaser of a Certificate or an interest therein,
confirmation executed by the requesting Person substantially in the form of
Exhibit K-2
hereto (or such other form as may be reasonably acceptable to the Trustee, the
Master Servicer or the Special Servicer, as applicable) generally to the effect
that such Person is a prospective purchaser of a Certificate or an interest
therein, is requesting the information for use in evaluating a possible
investment in Certificates and, subject to the last sentence of this paragraph,
will otherwise keep such information confidential. The Holders of the
Certificates, by their acceptance thereof, and the Controlling Class
Representative, by its acceptance of its appointment, will be deemed to have
agreed, subject to the last sentence of this paragraph, to keep such information
confidential (except that any Holder may provide such information obtained by it
to any other Person that holds or is contemplating the purchase of any
Certificate or interest therein; provided that such other
Person confirms in writing such ownership interest or prospective ownership
interest and agrees to keep such information confidential) and agrees not to use
such information in any manner that would violate federal, state or local
securities laws. Notwithstanding the foregoing, no Certificateholder,
Certificate Owner or prospective Certificateholder or Certificate Owner shall be
obligated to keep confidential any information received from the Trustee, the
Master Servicer or the Special Servicer, as applicable, pursuant to this
Section 3.15 that has previously been made available via the Trustee’s, the
Master Servicer’s or Special Servicer’s Internet Website without restriction as
to access as permitted pursuant to the terms of this Agreement, as applicable,
or has previously been filed with the Commission, and the Trustee, the Master
Servicer or the Special Servicer, as applicable, shall not require either of the
certifications contemplated by the second preceding sentence in connection with
providing any information pursuant to this Section 3.15 that has previously
been made available via the Trustee’s, the Master Servicer’s or Special
Servicer’s Internet Website without restriction as to access in
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compliance
with the terms of this Agreement, as applicable, or has previously been filed
with the Commission.
Each of
the Master Servicer and the Special Servicer shall afford to the Trustee, the
Rating Agencies and the Depositor, and to the OTS, the FDIC, the Federal Reserve
Board and any other banking or insurance regulatory authority that may exercise
authority over any Certificateholder or a Companion Loan or any interest therein
(to the extent such information is related to such Companion Loan or the related
Mortgage Loan), access to any records regarding the Mortgage Loans and the
servicing thereof within its control, except to the extent it is prohibited from
doing so by applicable law or contract or to the extent such information is
subject to a privilege under applicable law to be asserted on behalf of the
Certificateholders or the Companion Holders. Such access shall be
afforded only upon reasonable prior written request and during normal business
hours at the offices of the Master Servicer or the Special Servicer, as the case
may be, designated by it.
The
Trustee, the Master Servicer, the Special Servicer and the Underwriters may
require payment from the Certificateholder or Certificate Owner or holder of a
Companion Loan, as applicable, of a sum sufficient to cover the reasonable costs
and expenses of providing any such information or access pursuant to this
Section 3.15 to, or at the request of, the Certificateholders or
Certificate Owners or prospective transferees or holder of a Companion Loan, as
applicable, including, without limitation, copy charges and, in the case of
Certificateholders or Certificate Owners or holder of a Companion Loan, if
applicable, requiring on site review in excess of three Business Days,
reasonable fees for employee time and for space.
(b) The
Trustee shall, and the Master Servicer may, but is not required to, make
available on or prior to the Distribution Date in each month to the general
public (i) the Distribution Date Statement via their respective Internet
Websites, (ii) as a convenience for the general public, the Prospectus
Supplement, the Prospectus and this Agreement on their respective Internet
Websites and (iii) any other items at the request of the Depositor via
their respective Internet Websites. In addition, the Trustee shall
make available each month, on each Distribution Date, the Unrestricted Servicer
Reports, the CMSA Loan Periodic Update File, the CMSA Loan Setup File, the CMSA
Bond File and the CMSA Collateral Summary File to the general public on its
Internet Website (on a password protected basis). The Trustee shall,
upon written request, make available each month, on each Distribution Date,
(i) the Restricted Servicer Reports, and (ii) the CMSA Property File
and the CMSA Financial File to any Privileged Person and to any other Person
upon the direction of the Depositor.
The
Master Servicer may, but is not required to, make available each month via its
Internet Website (i) to any interested party, the Unrestricted Servicer
Reports, the CMSA Loan Setup File and the CMSA Loan Periodic Update File, and
(ii) to any Privileged Person, with the use of a password provided by the
Master Servicer, the Restricted Servicer Reports, the CMSA Financial File and
the CMSA Property File. Any Restricted Servicer Report or
Unrestricted Servicer Report that is not available on the Master Servicer’s
Internet Website as described in the immediately preceding sentence by 5:00 p.m.
(New York City time) on the related Distribution Date shall be provided (in
electronic format, or if electronic mail is unavailable, by facsimile) by the
Master Servicer, upon request, to any Person otherwise entitled to access such
report on the Master Servicer’s Internet Website.
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In
connection with providing access to the Trustee’s Internet Website or the Master
Servicer’s Internet Website, the Trustee or the Master Servicer, as applicable,
may require registration and the acceptance of a disclaimer.
If three
or more Holders or the Controlling Class Representative (hereinafter referred to
as “Applicants”
with a single Person which (together with its Affiliates) is the Holder of more
than one Class of Certificates being viewed as a single Applicant for these
purposes) apply in writing to Trustee, and such application states that the
Applicants’ desire to communicate with other Holders with respect to their
rights under this Agreement or under the Certificates and is accompanied by a
copy of the communication which such Applicants propose to transmit, then the
Trustee shall, within five Business Days after the receipt of such application,
send, at the Applicants’ expense, the written communication proffered by the
Applicants to all Certificateholders at their addresses as they appear in the
Certificate Register.
(c) The
Master Servicer and the Special Servicer shall not be required to confirm,
represent or warrant the accuracy or completeness of any other Person’s
information or report included in any communication from the Master Servicer or
the Special Servicer under this Agreement. Neither the Master
Servicer nor the Trustee shall be liable for the dissemination of information in
accordance with this Section 3.15(c). The Trustee makes no
representations or warranties as to the accuracy or completeness of any report,
document or other information made available on the Trustee’s Website and
assumes no responsibility therefor. In addition, the Trustee, the
Master Servicer and the Special Servicer may disclaim responsibility for any
information distributed by the Trustee, the Master Servicer or the Special
Servicer, respectively, for which it is not the original source.
(d) Upon the
request of the Controlling Class Representative made not more frequently than
once a month (which request may be a standing, continuing request), or at such
mutually acceptable time each month as the Controlling Class Representative
shall reasonably designate, each of the Master Servicer and Special Servicer
shall, without charge, make a knowledgeable Servicing Officer available, at the
option of the Controlling Class Representative either by telephone or at the
office of such Servicing Officer, to answer questions from the Controlling Class
Representative regarding the performance and servicing of the Mortgage Loans
and/or REO Properties for which such Master Servicer or Special Servicer, as the
case may be, is responsible. The Master Servicer and the Special
Servicer each shall condition such disclosure upon the Controlling Class
Representative entering into a reasonable and customary confidentiality
agreement reasonably acceptable to such servicer and the Controlling Class
Representative regarding such disclosure to it. Neither the Master
Servicer nor the Special Servicer shall be required to provide any information
or disclosures in violation of any applicable law, rule or
regulation.
(e) With
respect to any Companion Loan, the Companion Holders shall receive and have
access to any information described in this Section 3.15 which such Companion
Holder is entitled to pursuant to the related Intercreditor
Agreement.
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Section
3.16 Title to REO Property; REO
Account.
(a) If title
to any REO Property is acquired, the deed or certificate of sale shall be issued
to the Trustee or its nominee on behalf of the Certificateholders and, if
applicable, the Companion Holder, as their interests shall
appear. The Special Servicer, on behalf of the Trust Fund, shall sell
any REO Property as soon as practicable in accordance with the Servicing
Standard, but prior to the end of the third year following the calendar year in
which REMIC I acquires ownership of such REO Property (or applicable
portion thereof) for purposes of Section 860G(a)(8) of the Code, unless the
Special Servicer either (i) applies for, more than sixty days prior to the
end of such third succeeding year, and is granted an extension of time (an
“REO
Extension”) by the Internal Revenue Service to sell such REO Property or
(ii) obtains for the Trustee an Opinion of Counsel, addressed to the
Trustee, the Special Servicer and the Master Servicer, to the effect that the
holding by REMIC I of such REO Property subsequent to the end of such third
succeeding year will not result in the imposition of taxes on “prohibited
transactions” (as defined in Section 860F of the Code) of either of
REMIC I or REMIC II or cause either of REMIC I or REMIC II
to fail to qualify as a REMIC at any time that any Certificates are
outstanding. If the Special Servicer is granted the REO Extension
contemplated by clause (i) of the immediately preceding sentence or obtains
the Opinion of Counsel contemplated by clause (ii) of the immediately
preceding sentence, the Special Servicer shall sell such REO Property within
such extended period as is permitted by such REO Extension or such Opinion of
Counsel, as the case may be. Any expense incurred by the Special
Servicer in connection with its obtaining the REO Extension contemplated by
clause (i) of the second preceding sentence or its obtaining the Opinion of
Counsel contemplated by clause (ii) of the second preceding sentence, shall
first be payable from the related REO Account to the extent of available funds
and then be a Servicing Advance by the Master Servicer. In the case
of the Trust Fund’s beneficial interest in the Mortgaged Property acquired by
the [__________] Trustee pursuant to the [__________] Pooling and Servicing
Agreement, the Special Servicer shall coordinate with the [__________] Special
Servicer with respect to any REO Extension on behalf of REMIC
I. Except for the preceding sentence, for purposes of this Section
3.16, “REO Property” does not include the Trust Fund’s beneficial interest in
the Mortgaged Property securing the [__________] Loan.
(b) The
Special Servicer shall segregate and hold all funds collected and received in
connection with any REO Property separate and apart from its own funds and
general assets. If an REO Acquisition shall occur, the Special
Servicer shall establish and maintain one or more accounts (collectively, the
“REO Account”),
held on behalf of the Trustee in trust for the benefit of the Certificateholders
and, if applicable, the Companion Holder, as their interests shall appear, for
the retention of revenues and other proceeds derived from each REO
Property. The REO Account shall be an Eligible
Account. The Special Servicer shall deposit, or cause to be
deposited, in the REO Account, upon receipt, all REO Revenues, Insurance
Proceeds and Liquidation Proceeds (net of Liquidation Expenses) received in
respect of an REO Property within 2 Business Days of receipt. Funds
in the REO Account may be invested in Permitted Investments in accordance with
Section 3.06. The Special Servicer shall be entitled to make
withdrawals from the REO Account to pay itself, as additional servicing
compensation in accordance with Section 3.11(d), interest and investment
income earned in respect of amounts held in the REO Account as provided in
Section 3.06(b) (but only to the extent of the Net Investment Earnings
with respect to the REO Account for any Collection Period). The
Special
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Servicer
shall give written notice to the Trustee, and the Master Servicer of the
location of the REO Account when first established and of the new location of
the REO Account prior to any change thereof.
(c) The
Special Servicer shall withdraw from the REO Account funds necessary for the
proper operation, management, maintenance and disposition of any REO Property,
but only to the extent of amounts on deposit in the REO Account relating to such
REO Property (including any monthly reserve or escrow amounts necessary to
accumulate sufficient funds for taxes, insurance and anticipated capital
expenditures (the “Impound
Reserve”)). On the last day of the related Collection Period,
the Special Servicer shall withdraw from the REO Account and deposit into the
Certificate Account or deliver to the Master Servicer or such other Person as
may be directed by the Master Servicer (which shall deposit such amounts into
the Certificate Account) the aggregate of all amounts received in respect of
each REO Property during the most recently ended Collection Period, net of any
withdrawals made out of such amounts pursuant to the preceding sentence; provided that, in addition to
the Impound Reserve, the Special Servicer may retain in the REO Account such
portion of proceeds and collections as may be necessary to maintain a reserve of
sufficient funds for the proper operation, management and maintenance of the
related REO Property (including, without limitation, the creation of a
reasonable reserve for repairs, replacements and other related
expenses).
(d) The
Special Servicer shall keep and maintain separate records, on a
property-by-property basis, for the purpose of accounting for all deposits to,
and withdrawals from, the REO Account pursuant to Section 3.16(b) or
(c). The Special Servicer shall provide the Master Servicer any
information with respect to the REO Account as is reasonably requested by the
Master Servicer.
Section
3.17 Management of REO
Property.
(a) Prior to
the acquisition of title to a Mortgaged Property, the Special Servicer shall
review the operation of such Mortgaged Property and determine the nature of the
income that would be derived from such property if it were acquired by the Trust
Fund. If the Special Servicer determines from such review in
compliance with the Servicing Standard that in its good faith and reasonable
judgment:
(i) None of
the income from Directly Operating such REO Property would be subject to tax as
“net income from
foreclosure property” within the meaning of the REMIC Provisions (such
tax referred to herein as an “REO Tax”), and the
Special Servicer does not engage in any of the activities described in the
definition of “Directly Operate”
that would cause the REO Property to cease to qualify as “foreclosure property”
within the meaning of Section 860G(a)(8) of the Code, then such Mortgaged
Property may be Directly Operated by the Special Servicer as REO
Property;
(ii) Directly
Operating such Mortgaged Property as an REO Property could result in income from
such property that would be subject to an REO Tax, but that a lease of such
property to another party to operate such property, or the performance of some
services by an Independent Contractor with respect to such property, or another
method of operating such property would not result in income subject to an REO
Tax, then the
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Special
Servicer may (provided
that in the good faith and reasonable judgment of the Special Servicer, such
alternative is commercially feasible and would result in a greater net recovery
on a present value basis than earning income subject to an REO Tax) acquire such
Mortgaged Property as REO Property and so lease or manage such REO Property;
or
(iii) It is
reasonable to believe that Directly Operating such property as REO Property
could result in income subject to an REO Tax and that such method of operation
is commercially feasible and would result in a greater net recovery on a present
value basis than leasing or other method of operating the REO Property that
would not incur an REO Tax, the Special Servicer shall deliver to the
REMIC Administrator, in writing, a proposed plan (the “Proposed Plan”) to
manage such property as REO Property. Such plan shall include
potential sources of income, and to the extent commercially feasible, estimates
of the amount of income from each such source. Within a reasonable
period of time after receipt of such plan, the REMIC Administrator shall
consult with the Special Servicer and shall advise the Special Servicer of the
REMIC Administrator’s federal income tax reporting position with respect to
the various sources of income that the Trust Fund would derive under the
Proposed Plan. In addition, the REMIC Administrator shall (to
the extent reasonably possible) advise the Special Servicer of the estimated
amount of taxes that the Trust Fund would be required to pay with respect to
each such source of income. After receiving the information described
in the two preceding sentences from the REMIC Administrator, the Special
Servicer shall either (A) implement the Proposed Plan (after acquiring the
respective Mortgaged Property as REO Property) or (B) manage such property in a
manner that would not result in the imposition of an REO Tax on the income
derived from such property. All of the REMIC Administrator’s
expenses (including any fees and expenses of counsel or other experts reasonably
retained by it) incurred pursuant to this Section shall be reimbursed to it
from the Trust Fund in accordance with Section 10.01(e).
The
Special Servicer’s decision as to how each REO Property shall be managed shall
be based on the Servicing Standard and in any case on the good faith and
reasonable judgment of the Special Servicer as to which means would be in the
best interest of the Certificateholders (or, if the REO Property was formerly a
Mortgaged Property securing a Co-Lender Loan, the Certificateholders and the
related Companion Holder (as a collective whole in accordance with the Servicing
Standard, taking into account the subordinate nature of the Companion Loan, if
applicable)) by maximizing (to the extent commercially feasible and consistent
with Section 3.17(b)) the net after-tax REO Revenues received by the Trust
Fund with respect to such property and, to the extent consistent with the
foregoing, in the same manner as would prudent mortgage loan servicers operating
acquired mortgaged property comparable to the respective Mortgaged
Property. Both the Special Servicer and the REMIC Administrator
may, at the expense of the Trust Fund payable pursuant to
Section 3.05(a)(xiv), consult with counsel.
(b) If title
to any REO Property is acquired, the Special Servicer shall manage, conserve and
protect such REO Property for the benefit of the Certificateholders (or, if the
REO Property was formerly a Mortgaged Property securing a Co-Lender Loan, the
Certificateholders and the related Companion Holder (as a collective whole in
accordance with the Servicing Standard, taking into account the subordinate
nature of the Companion Loan, if applicable))
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solely
for the purpose of its prompt disposition and sale in a manner that does not and
will not cause such REO Property to fail to qualify as “foreclosure property”
within the meaning of Section 860G(a)(8) of the Code or either result in
the receipt by REMIC I of any “income from non-permitted
assets” within the meaning of Section 860F(a)(2)(B) of the Code or
result in an Adverse REMIC Event. Subject to the foregoing,
however, the Special Servicer shall have full power and authority to do any and
all things in connection therewith as are consistent with the Servicing Standard
and, consistent therewith, shall withdraw from the REO Account, to the extent of
amounts on deposit therein with respect to any such REO Property, funds
necessary for the proper management, maintenance and disposition of such REO
Property, including without limitation:
(i) all
insurance premiums due and payable in respect of such REO Property;
(ii) all real
estate taxes and assessments in respect of such REO Property that may result in
the imposition of a lien thereon;
(iii) any
ground rents in respect of such REO Property; and
(iv) all costs
and expenses necessary to maintain, lease, sell, protect, manage and restore
such REO Property.
To the
extent that amounts on deposit in the REO Account in respect of any REO Property
are insufficient for the purposes set forth in the preceding sentence with
respect to such REO Property, the Master Servicer, subject to the second
paragraph of Section 3.03(c), shall make Servicing Advances in such amounts
as are necessary for such purposes unless (as evidenced by an Officer’s
Certificate delivered to the Trustee) the Master Servicer would not make such
advances if the Master Servicer owned such REO Property or the Master Servicer
determines, in accordance with the Servicing Standard, that such payment would
be a Nonrecoverable Advance; provided, however, that the Master
Servicer may make any such Servicing Advance without regard to recoverability if
it is a necessary fee or expense incurred in connection with the defense or
prosecution of legal proceedings.
(c) Unless
Section 3.17(a)(i) applies, the Special Servicer shall contract with
any Independent Contractor (if required by the REMIC Provisions for the REO
Property to remain classified as “foreclosure property”
within the meaning of Section 860G(a)(8) of the Code) for the operation and
management of any REO Property; provided that:
(i) the terms
and conditions of any such contract may not be inconsistent herewith and shall
reflect an agreement reached at arm’s length;
(ii) the fees
of such Independent Contractor (which shall be expenses of the Trust Fund) shall
be reasonable and customary in consideration of the nature and locality of the
REO Property;
(iii) except as
permitted under Section 3.17(a), any such contract shall require, or shall
be administered to require, that the Independent Contractor, in a timely manner,
pay all costs and expenses incurred in connection with the operation and
management of such REO Property, including, without limitation, those listed in
Section 3.17(b) above,
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and remit
all related revenues collected (net of its fees and such costs and expenses) to
the Special Servicer upon receipt;
(iv) none of
the provisions of this Section 3.17(d) relating to any such contract
or to actions taken through any such Independent Contractor shall be deemed to
relieve the Special Servicer of any of its duties and obligations hereunder with
respect to the operation and management of any such REO Property;
and
(v) the
Special Servicer shall be obligated with respect thereto to the same extent as
if it alone were performing all duties and obligations in connection with the
operation and management of such REO Property.
The
Special Servicer shall be entitled to enter into any agreement with any
Independent Contractor performing services for it related to its duties and
obligations hereunder for indemnification of the Special Servicer by such
Independent Contractor, and nothing in this Agreement shall be deemed to limit
or modify such indemnification. No agreement entered into pursuant to
this Section 3.17(d) shall be deemed a Sub-Servicing Agreement for
purposes of Section 3.22.
(d) Without
limiting the generality of the foregoing, the Special Servicer shall
not:
(i) permit
the Trust Fund to enter into, renew or extend any New Lease with respect to any
REO Property, 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, but only to the extent provided in Section 856(e)(4)(B) of the Code;
or
(iv) except as
otherwise provided for in Section 3.17(a)(i) and (a)(ii) above,
Directly Operate, or allow any other Person, other than an Independent
Contractor, to Directly Operate, any REO Property on any date more than 90 days
after its Acquisition Date;
unless,
in any such case, the Special Servicer has obtained an Opinion of Counsel (the
cost of which shall be paid by the Master Servicer as a Servicing Advance unless
nonrecoverable, in which case it shall be paid by the Master Servicer as an
Additional Trust Fund Expense from amounts on deposit in the Certificate
Account) 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 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. Except as limited above in this Section 3.17 and by this
Section 3.17(d), the Special Servicer shall be permitted to cause the Trust Fund
to earn “net income from foreclosure property”, subject to the Servicing
Standard.
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Section
3.18 Resolution of Defaulted
Mortgage Loans and REO Properties.
(a) The
Master Servicer, the Special Servicer or the Trustee may sell or purchase, or
permit the sale or purchase of, a Mortgage Loan or an REO Property only on the
terms and subject to the conditions set forth in this Section 3.18 or as
otherwise expressly provided in or contemplated by Sections 2.03 and
9.01.
(b) Within 60
days after a Mortgage Loan becomes a Defaulted Mortgage Loan, the Special
Servicer shall determine the fair value of such Mortgage Loan in accordance with
the Servicing Standard; provided, however, that such
determination shall be made without taking into account any effect the
restrictions on the sale of such Mortgage Loan contained herein may have on the
value of such Defaulted Mortgage Loan; provided, further, that, the Special
Servicer shall use reasonable efforts promptly to obtain an Appraisal with
respect to the related Mortgaged Property unless it has an Appraisal that is
less than 12 months old and has no actual knowledge of, or notice of, any event
which in the Special Servicer’s judgment would materially affect the validity of
such Appraisal. The Special Servicer shall make its fair value
determination as soon as reasonably practicable (but in any event within thirty
(30) days) after its receipt of such new Appraisal, if
applicable. The Special Servicer is permitted to change, from time to
time, its determination of the fair value of a Defaulted Mortgage Loan based
upon changed circumstances, new information or otherwise, in accordance with the
Servicing Standard; provided, however, the Special Servicer
shall update its determination of the fair value at least once every 90
days. The Special Servicer shall notify the Trustee, the Master
Servicer, each Rating Agency and the Majority Subordinate Certificateholder
promptly upon its fair value determination and any adjustment
thereto. In determining the fair value of any Defaulted Mortgage
Loan, the Special Servicer shall take into account, among other factors, the
period and amount of the delinquency on such Mortgage Loan, the occupancy level
and physical condition of the related Mortgaged Property, the state of the local
economy in the area where the Mortgaged Property is located, and the time and
expense associated with a purchaser’s foreclosing on the related Mortgaged
Property. In addition, the Special Servicer shall refer to all other
relevant information obtained by it or otherwise contained in the Mortgage Loan
File; provided that the
Special Servicer shall take account of any change in circumstances regarding the
related Mortgaged Property known to the Special Servicer that has occurred
subsequent to, and that would, in the Special Servicer’s reasonable judgment,
materially affect the value of the related Mortgaged Property reflected in the
most recent related Appraisal. Furthermore, the Special Servicer
shall consider all available objective third-party information obtained from
generally available sources, as well as information obtained from vendors
providing real estate services to the Special Servicer, concerning the market
for distressed real estate loans and the real estate market for the subject
property type in the area where the related Mortgaged Property is
located. The Special Servicer may conclusively rely on the opinion
and reports of Independent third parties in making such
determination.
(c) Subject
to the terms set forth in Section 2.03, in the event a Mortgage Loan
becomes a Defaulted Mortgage Loan, each of the Majority Subordinate
Certificateholder and the Special Servicer shall have an assignable option (a
“Purchase
Option”) to purchase such Defaulted Mortgage Loan from the Trust Fund at
a price (the “Option
Price”) equal to (i) the Purchase Price, if the Special Servicer has
not yet determined the fair value of the Defaulted Mortgage Loan, or
(ii) the fair value of the Defaulted Mortgage Loan as determined by the
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Special
Servicer in the manner described in Section 3.18(b) and in accordance
with the Servicing Standard, if the Special Servicer has made such fair value
determination. Any holder of a Purchase Option may sell, transfer,
assign or otherwise convey its Purchase Option with respect to any Defaulted
Mortgage Loan to any party other than the related Mortgagor or an Affiliate of
the related Mortgagor under the Mortgage Loan at any time after the related
Mortgage Loan becomes a Defaulted Mortgage Loan. The transferor of
any Purchase Option shall notify the Trustee and the Master Servicer of such
transfer and such notice shall include the transferee’s name, address, telephone
number, facsimile number and appropriate contact person(s) and shall be
acknowledged in writing by the transferee at least five (5) Business Days in
advance of such intended transfer. Notwithstanding the foregoing, and
subject to Section 3.18(d) of this Agreement, the Majority Subordinate
Certificateholder shall have the right to exercise its Purchase Option prior to
any exercise of the Purchase Option by any other holder of a Purchase Option;
provided, however, if the Purchase
Option is not exercised by the Majority Subordinate Certificateholder or any
assignee thereof within 60 days of a Mortgage Loan becoming a Defaulted Mortgage
Loan, then the Special Servicer shall have the right to exercise its Purchase
Option prior to any exercise by the Majority Subordinate Certificateholder and
the Special Servicer or its assignee may exercise such Purchase Option at any
time during the fifteen day period immediately following the expiration of such
60-day period. Following the expiration of such fifteen day period,
the Majority Subordinate Certificateholder shall again have the right to
exercise its Purchase Option prior to any exercise of the Purchase Option by the
Special Servicer. If not exercised earlier, the Purchase Option with
respect to any Defaulted Mortgage Loan will automatically terminate
(i) once the related Defaulted Mortgage Loan is no longer a Defaulted
Mortgage Loan; provided, however, that, if such
Mortgage Loan subsequently becomes a Defaulted Mortgage Loan, the related
Purchase Option shall again be exercisable, (ii) upon the acquisition, by
or on behalf of the Trust Fund, of title to the related Mortgaged Property
through foreclosure or deed in lieu of foreclosure or (iii) the
modification or pay-off, in full or at a discount, of such Defaulted Mortgage
Loan in connection with a workout.
(d) Notwithstanding
the provisions of Section 3.18(c), Section 3.18(g) or
Section 3.18(h), pursuant to the terms of the Intercreditor Agreements, a
Companion Holder will have the right to purchase the related Co-Lender Loan or
related REO Property in certain circumstances. Such right of the
related Companion Holder shall have priority over any provision described in
Section 3.18(c), Section 3.18(g) or
Section 3.18(h). If the Co-Lender Loan or REO Property is
purchased by the related Companion Holder, repurchased by the applicable
Mortgage Loan Seller or otherwise ceases to be subject to this Agreement, the
related Companion Loan will no longer be subject to this
Agreement. Neither the Trustee nor the Trust Fund shall acquire a
Companion Loan; provided, however, the Master Servicer
or an affiliate may own or acquire the Companion Loans. With respect
to each Loan Pair, the related Companion Holder shall be entitled to exercise
any cure rights given to it under the related Intercreditor Agreement, in each
case subject to any conditions or restrictions described in or incorporated by
reference into such sections.
(e) Upon
receipt of notice from the Special Servicer indicating that a Mortgage Loan has
become a Defaulted Mortgage Loan, the holder (whether the original grantee of
such option or any subsequent transferee) of the Purchase Option may exercise
the Purchase Option by providing the Master Servicer and the Trustee written
notice thereof (the “Purchase Option
Notice”), in the form of Exhibit M, which
notice shall identify the Person that, on its own
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or
through an Affiliate, will acquire the related Mortgage Loan upon closing and
shall specify a cash exercise price at least equal to the Option
Price. The Purchase Option Notice shall be delivered in the manner
specified in Section 11.05. The exercise of any Purchase Option
pursuant to this clause (e) shall be irrevocable.
(f) If the
Special Servicer or the Majority Subordinate Certificateholder, or any of their
respective Affiliates, is identified in the Purchase Option Notice as the Person
expected to acquire the related Mortgage Loan, the Trustee shall determine as
soon as reasonably practicable (and, in any event, within thirty (30) days)
after the Trustee has received the written notice, whether the Option Price
represents fair value for the Defaulted Mortgage Loan; provided that, if the Special
Servicer is then in the process of obtaining a new Appraisal with respect to the
related Mortgaged Property, then the Trustee shall, in accordance with its good
faith and reasonable judgment, make its fair value determination with respect to
such Mortgage Loan as soon as reasonably practicable (but in any event within
thirty (30) days) after the Trustee’s receipt of such new
Appraisal. The Trustee may rely on the opinion and reports of
independent third parties in making such determination; provided that the Trustee may
rely on the most current Appraisal obtained for the related Mortgaged Property
pursuant to this Agreement. In determining the fair value of any
Defaulted Mortgage Loan, the Trustee shall take into account, and any
Independent third party shall be instructed to take into account, among other
factors, the period and amount of the delinquency on such Mortgage Loan, the
occupancy level and physical condition of the related Mortgaged Property, the
state of the local economy in the area where the Mortgaged Property is located,
and the time and expense associated with a purchaser’s foreclosing on the
related Mortgaged Property. In addition, the Trustee shall refer, and
any Independent third party shall be instructed to refer, to all relevant
information delivered to it by the Special Servicer or otherwise contained in
the Mortgage Loan File. Furthermore, the Trustee shall consider, and
any Independent third party shall be instructed to consider, all available
objective third-party information obtained from generally available sources,
concerning the market for distressed real estate loans and the real estate
market for the subject property type in the area where the related Mortgaged
Property is located. The reasonable costs of all appraisals,
inspection reports and broker opinions of value, reasonably incurred by the
Trustee or any such third party pursuant to this subsection shall be advanced by
the Master Servicer and shall constitute, and be reimbursable as, Servicing
Advances (or if such Advance is deemed to be a Nonrecoverable Advance such costs
shall be reimbursable as Additional Trust Fund Expenses from the Certificate
Account pursuant to Section 3.05(a)). The other parties to this
Agreement shall cooperate with all reasonable requests for
information.
(g) Unless
and until the Purchase Option with respect to a Defaulted Mortgage Loan is
exercised, the Special Servicer shall pursue such other resolution strategies
available hereunder with respect to such Defaulted Mortgage Loan, including,
without limitation, workout and foreclosure, as the Special Servicer may deem
appropriate consistent with the Servicing Standard; provided, however, the Special Servicer
will not be permitted to sell the Defaulted Mortgage Loan other than in
connection with the exercise of the related Purchase Option.
(h) In the
event that title to any REO Property is acquired by the Trust Fund in respect of
any Defaulted Mortgage Loan, the deed or certificate of sale shall be issued to
the Trust, the Trustee or to its nominees. The Special Servicer,
after notice to the Controlling Class
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Representative,
shall use its reasonable best efforts to sell any such REO Property as soon as
practicable in accordance with Section 3.16(a). If the Special
Servicer on behalf of the Trustee has not received an REO Extension or an
Opinion of Counsel described in Section 3.16(a) and the Special
Servicer is not able to sell such REO Property within the period specified
above, or if an REO Extension has been granted and the Special Servicer is
unable to sell such REO Property within the extended time period, the Special
Servicer shall, after consultation with the Controlling Class Representative,
before the end of such period or extended period, as the case may be, auction
the REO Property to the highest bidder (which may be the Special Servicer) in
accordance with the Servicing Standard. The Special Servicer shall
give the Controlling Class Representative, the Master Servicer and the Trustee
not less than five days’ prior written notice of its intention to sell any REO
Property, and in respect of such sale, the Special Servicer shall offer such REO
Property in a commercially reasonable manner. Where any Interested
Person is among those bidding with respect to an REO Property, the Special
Servicer shall require that all bids be submitted in writing and be accompanied
by a refundable deposit of cash in an amount equal to 5% of the bid
amount. No Interested Person shall be permitted to purchase the REO
Property at a price less than the Purchase Price; and provided, further, that, if the Special
Servicer intends to bid on any REO Property, (i) the Special Servicer shall
notify the Trustee of such intent, (ii) the Trustee shall promptly obtain,
at the expense of the Trust, an Appraisal of such REO Property and
(iii) the Special Servicer shall not bid less than the greater of
(a) the fair market value set forth in such Appraisal or (b) the
Purchase Price.
(i) Subject
to the REMIC Provisions, 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 REO Property (other than the REO Property
relating to the [__________] Loan) or the exercise of a Purchase Option,
including the collection of all amounts payable in connection
therewith. Notwithstanding anything to the contrary herein, neither
the Trustee, in its individual capacity, nor any of its Affiliates may bid for
or purchase any REO Property (other than the REO Property relating to the
[__________] Loan) or purchase any Defaulted Mortgage Loan. Any sale
of a Defaulted Mortgage Loan (pursuant to a Purchase Option) or an REO Property
shall be without recourse to, or representation or warranty by, the Trustee, the
Depositor, the Special Servicer, the Master Servicer, any Mortgage Loan Seller
or the Trust Fund. Notwithstanding the foregoing, nothing herein
shall limit the liability of the Master Servicer, the Special Servicer or the
Trustee to the Trust Fund and the Certificateholders for failure to perform its
duties in accordance herewith. None of the Special Servicer, the
Master Servicer, the Depositor or the Trustee shall have any liability to the
Trust Fund or any Certificateholder with respect to the price at which a
Defaulted Mortgage Loan is sold if the sale is consummated in accordance with
the terms of this Agreement.
(j) Upon
exercise of a Purchase Option, the holder of such Purchase Option shall be
required to pay the purchase price specified in its Purchase Option Notice to
the Special Servicer within 10 Business Days of exercising its Purchase
Option. The proceeds of any sale of a Defaulted Mortgage Loan, after
deduction of the expenses of such sale incurred in connection therewith, shall
be remitted by the Special Servicer to the Master Servicer within one Business
Day of receipt for deposit into the Certificate Account. The Special
Servicer shall immediately notify the Trustee upon the holder of the effective
Purchase Option’s failure to remit the purchase price specified in its Purchase
Option Notice pursuant to this Section 3.18(j). Thereafter, the
Special Servicer shall notify each holder of a Purchase Option of such failure
and
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such
holder of a Purchase Option may then exercise its Purchase Option in accordance
with this Section 3.18.
(k) Notwithstanding
anything herein to the contrary, the Special Servicer shall not take or refrain
from taking any action pursuant to instructions from the Controlling Class
Representative that would cause it to violate applicable law or any term or
provision of this Agreement, including the REMIC Provisions and the Servicing
Standard.
(l) The
amount paid for a Defaulted Mortgage Loan or REO Property purchased under this
Agreement shall be deposited into the Certificate Account, or if applicable,
applied in accordance with the related Intercreditor Agreement (except that
portion of any purchase price constituting Gain-on-Sale Proceeds which shall be
deposited in the Gain-on-Sale Reserve Account). Upon receipt of an
Officer’s Certificate from the Master Servicer to the effect that such deposit
has been made, the Trustee shall execute and deliver such instruments of
transfer or assignment, in each case without recourse, as shall be provided to
it and are reasonably necessary to vest in the purchaser of such Defaulted
Mortgage Loan or REO Property ownership of the Defaulted Mortgage Loan or REO
Property. The Custodian, upon receipt of a Request for Release, shall
release or cause to be released to the Master Servicer or Special Servicer the
related Mortgage File. In connection with any such purchase, the
Special Servicer shall deliver the related Servicing File to the purchaser of a
Defaulted Mortgage Loan or related REO Property.
(m) Notwithstanding
the foregoing, each mezzanine lender will have the right to purchase the related
Mortgage Loan and cure defaults relating thereto as set forth in the related
mezzanine intercreditor agreement.
Section
3.19 Additional Obligations of
Master Servicer and Special Servicer.
(a) The
Master Servicer shall deposit in the Certificate Account on each P&I Advance
Date, without any right of reimbursement therefor with respect to each Mortgage
Loan (other than a Specially Serviced Mortgage Loan and other than any Mortgage
Loan for which the Special Servicer has waived a prepayment restriction) that
was subject to a voluntary Principal Prepayment during the most recently ended
Collection Period creating a Prepayment Interest Shortfall, an amount equal to
the lesser of (i) the amount of the related Prepayment Interest Shortfall
and (ii) the sum of (A) the Master Servicing Fee (calculated for this
purpose only at a rate of [____]% per annum) received by the
Master Servicer during such Collection Period on such Mortgage Loan and (B)
investment income earned by the Master Servicer on the related Principal
Prepayment during the most recently ended Collection Period; provided, however, to the extent any
such Prepayment Interest Shortfall is the result of the Master Servicer’s
failure to enforce the applicable Mortgage Loan documents the amount in clause
(A) shall include the entire Master Servicing Fee on the applicable Mortgage
Loan for such Collection Period.
(b) The
Master Servicer shall, as to each Mortgage Loan which is secured by the interest
of the related Mortgagor under a Ground Lease, promptly (and in any event within
60 days of the Closing Date) notify the related ground lessor in writing of
the transfer of such Mortgage Loan to the Trust Fund pursuant to this Agreement
and inform such ground lessor that
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any
notices of default under the related Ground Lease should thereafter be forwarded
to the Master Servicer.
(c) The
Master Servicer shall provide to each Companion Holder any reports or notices
required to be delivered to such Companion Holder pursuant to the related
Intercreditor Agreement.
Section
3.20 Modifications, Waivers,
Amendments and Consents.
(a) Subject
to Sections 3.20(b) through 3.20(m) below and further subject to Sections
3.08(b) and 6.11 and further subject to any applicable intercreditor
agreement or similar agreement, the Master Servicer (to the extent provided in
Section 3.02(a) and Section 3.20(i) below) and the Special
Servicer may, on behalf of the Trustee, agree to any modification, waiver or
amendment of any term of any Mortgage Loan (including, subject to
Section 3.20(i), the lease reviews and lease consents related thereto)
without the consent of the Trustee or any Certificateholder.
(b) All
modifications, waivers or amendments of any Mortgage Loan (including, subject to
Section 3.20(i), the lease reviews and lease consents related thereto)
shall be in writing and shall be considered and effected in accordance with the
Servicing Standard; provided, however, that neither the
Master Servicer nor the Special Servicer, as applicable, shall make or permit or
consent to, as applicable, any modification, waiver or amendment of any term of
any Mortgage Loan not otherwise permitted by this Section 3.20 that would
constitute a “significant
modification” of such Mortgage Loan within the meaning of Treasury
Regulations Section 1.860G-2(b).
(c) Except as
provided in 3.20(d) and the last sentence of Section 3.02(a), the
Special Servicer, on behalf of the Trustee, shall not agree or consent to any
modification, waiver or amendment of any term of any Mortgage Loan that
would:
(i) affect
the amount or timing of any related payment of principal, interest or other
amount (including Prepayment Premiums or Yield Maintenance Charges, but
excluding Penalty Interest and amounts payable as additional servicing
compensation) payable thereunder;
(ii) affect
the obligation of the related Mortgagor to pay a Prepayment Premium or Yield
Maintenance Charge or permit a Principal Prepayment during any period in which
the related Mortgage Note prohibits Principal Prepayments;
(iii) except as
expressly contemplated by the related Mortgage or pursuant to
Section 3.09(d), result in a release of the lien of the Mortgage on any
material portion of the related Mortgaged Property without a corresponding
Principal Prepayment in an amount not less than the fair market value (as
determined by an appraisal by an Independent Appraiser delivered to the Special
Servicer at the expense of the related Mortgagor and upon which the Special
Servicer may conclusively rely) of the property to be released other than in
connection with a taking of all or part of the related Mortgaged Property or REO
Property for not less than fair market value by exercise of the power of
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eminent
domain or condemnation or casualty or hazard losses with respect to such
Mortgaged Property or REO Property;
(iv) if such
Mortgage Loan is equal to or in excess of 5% of the then aggregate current
principal balances of all Mortgage Loans or $35,000,000 (or, with respect to
Xxxxx’x, $25,000,000), or is one of the ten largest Mortgage Loans by Stated
Principal Balance as of such date, permit the transfer or transfers of (A) the
related Mortgaged Property or any interest therein or (B) equity interests in
the borrower or any equity owner of the borrower that would result, in the
aggregate during the term of the related Mortgage Loan, in a transfer greater
than 49% of the total interest in the borrower and/or any equity owner of the
borrower or a transfer of voting control in the borrower or an equity owner of
the borrower without the prior written confirmation from each Rating Agency that
such changes will not result in the qualification, downgrade or withdrawal to
the ratings then assigned to the Certificates;
(v) allow any
additional lien on the related Mortgaged Property if such Mortgage Loan is equal
to or in excess of 2% of the then aggregate current principal balances of the
Mortgage Loans or $[20,000,000], is one of the ten largest Mortgage Loans by
Stated Principal Balance as of such date, or with respect to [S&P] only, has
an aggregate Loan-to-Value Ratio that is equal to or greater than 85% or has an
aggregate Debt Service Coverage Ratio that is less than 1.20x, without the prior
written confirmation from each Rating Agency (as applicable) that such change
will not result in the qualification, downgrade or withdrawal or the ratings
then assigned to the Certificates; or
(vi) in the
reasonable, good faith judgment of the Special Servicer, otherwise materially
impair the security for such Mortgage Loan or reduce the likelihood of timely
payment of amounts due thereon.
(d) Notwithstanding
Section 3.20(c), but subject to the third paragraph of this
Section 3.20(d), and the rights of the Controlling Class Representative and
the rights (if any) of a Companion Holder (other than the holder of the
[__________] Companion Loan) pursuant to the related Intercreditor Agreement,
the Special Servicer may (i) reduce the amounts owing under any Specially
Serviced Mortgage Loan by forgiving principal, accrued interest or any
Prepayment Premium or Yield Maintenance Charge, (ii) reduce the amount of
the Periodic Payment on any Specially Serviced Mortgage Loan, including by way
of a reduction in the related Mortgage Rate, (iii) forbear in the
enforcement of any right granted under any Mortgage Note or Mortgage relating to
a Specially Serviced Mortgage Loan, (iv) extend the maturity date of any
Specially Serviced Mortgage Loan (and the Master Servicer may extend the
maturity date of Mortgage Loans with an original maturity of five years or less
with the approval of the Controlling Class for up to two (2) six-month
extensions), or (v) accept a Principal Prepayment on any Specially Serviced
Mortgage Loan during any Lockout Period; provided that (A) the
related Mortgagor is in default with respect to the Specially Serviced Mortgage
Loan or, in the reasonable, good faith judgment of the Special Servicer, such
default is reasonably foreseeable, and (B) in the reasonable, good faith
judgment of the Special Servicer, such modification would increase the recovery
on the Mortgage Loan to Certificateholders on a net present value basis (the
relevant discounting of amounts that will be distributable to Certificateholders
to be
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performed
at the related Net Mortgage Rate. In the case of every other
modification, waiver or consent, the Special Servicer shall determine and may
rely on an Opinion of Counsel (which Opinion of Counsel shall be an expense of
the Trust Fund to the extent not paid by the related Mortgagor) to the effect
that such modification, waiver or amendment would not both (1) effect an
exchange or reissuance of the Mortgage Loan under Treasury Regulations
Section 1.860G-2(b) of the Code and (2) cause either of REMIC I
or REMIC II to fail to qualify as a REMIC under the Code or result in the
imposition of any tax on “prohibited
transactions” or “contributions” after
the Startup Day under the REMIC Provisions.
In
addition, notwithstanding Section 3.20(c), but subject to the third
paragraph of this Section 3.20(d), the Special Servicer may extend the date
on which any Balloon Payment is scheduled to be due in respect of a Specially
Serviced Mortgage Loan if the conditions set forth in the proviso to the prior
paragraph are satisfied and the Special Servicer has obtained an Appraisal of
the related Mortgaged Property, in connection with such extension, which
Appraisal supports the determination of the Special Servicer contemplated by
clause (B) of the proviso to the immediately preceding
paragraph.
In no
event will the Special Servicer (i) extend the maturity date of a Mortgage
Loan beyond a date that is two years prior to the Rated Final Distribution Date,
(ii) reduce the Mortgage Rate of a Mortgage Loan to less than the lesser of
(A) the original Mortgage Rate of such Mortgage Loan, (B) the highest
Pass-Through Rate of any Class of Certificates (other than the Class X
Certificates) then outstanding and (C) a rate below the then prevailing
interest rate for comparable loans, as determined by the Special Servicer,
(iii) if the Mortgage Loan is secured by a Ground Lease (and not by the
corresponding fee simple interest), extend the maturity date of such Mortgage
Loan beyond a date which is less than 20 years prior to the expiration of the
term of such Ground Lease; (iv) defer interest due on any Mortgage Loan in
excess of 10% of the Stated Principal Balance of such Mortgage Loan or defer the
collection of interest on any Mortgage Loan without accruing interest on such
deferred interest at a rate at least equal to the Mortgage Rate of such Mortgage
Loan.
The
determination of the Special Servicer contemplated by clause (B) of the
provision to the first paragraph of this Section 3.20(d) shall be
evidenced by an Officer’s Certificate to such effect delivered to the Trustee
and the Master Servicer and describing in reasonable detail the basis for the
Special Servicer’s determination. The Special Servicer shall append
to such Officer’s Certificate any information including but not limited to
income and expense statements, rent rolls, property inspection reports and
appraisals that support such determination.
(e) Any
payment of interest that is deferred pursuant to any modification, waiver or
amendment permitted hereunder, shall not, for purposes hereof, including,
without limitation, calculating monthly distributions to Certificateholders, be
added to the unpaid principal balance or Stated Principal Balance of the related
Mortgage Loan, notwithstanding that the terms of such modification, waiver or
amendment so permit. The foregoing shall in no way limit the Special
Servicer’s ability to charge and collect from the Mortgagor costs otherwise
collectible under the terms of the related Mortgage Note and this Agreement
together with interest thereon.
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(f) The
Special Servicer or, with respect to clause (i) below, the Master
Servicer may, as a condition to granting any request by a Mortgagor for consent,
modification, waiver or indulgence or any other matter or thing, the granting of
which is within its discretion pursuant to the terms of the instruments
evidencing or securing the related Mortgage Loan and is permitted by the terms
of this Agreement, require that such Mortgagor pay to it (i) as additional
servicing compensation, a reasonable or customary fee for the additional
services performed in connection with such request; provided such fee would not
itself be a “significant
modification” pursuant to Treasury Regulations
Section 1.1001-3(e)(2) and (ii) any related costs and expenses
incurred by it. In no event shall the Master Servicer or the Special
Servicer be entitled to payment for such fees or expenses unless such payment is
collected from the related Mortgagor.
(g) The
Special Servicer shall notify the Master Servicer, any related Sub-Servicers,
the Trustee, the Controlling Class Representative, the Rating Agencies and with
respect to any Co-Lender Loan, the related Companion Holder, in writing, of any
material modification, waiver or amendment of any term of any Mortgage Loan
(including fees charged the Mortgagor) and the date thereof, and shall deliver
to the Custodian for deposit in the related Mortgage File, an original
counterpart of the agreement relating to such modification, waiver or amendment,
promptly (and in any event within ten Business Days) following the execution
thereof. Copies of each agreement whereby any such modification,
waiver or amendment of any term of any Mortgage Loan is effected shall be made
available for review upon prior request during normal business hours at the
offices of the Special Servicer pursuant to Section 3.15
hereof.
(h) The Master Servicer shall not permit defeasance of any Mortgage
Loan to the extent inconsistent with the terms of such Mortgage
Loan. Unless and to the extent the Master Servicer is precluded from
preventing such defeasance by the related Mortgage Loan documents or otherwise
(provided that the
Master Servicer shall not allow such defeasance to cause either of REMIC I
or REMIC II created hereunder to fail to qualify as a REMIC; provided, further, the Master Servicer
may rely on an Opinion of Counsel as provided for in (ii) below), the
Master Servicer will not permit defeasance of any Mortgage Loan,
unless: (i) the defeasance collateral consists of non-callable
“Government
Securities” within the meaning of the Investment Company Act of 1940,
(ii) the Master Servicer has determined that the defeasance will not result
in an Adverse REMIC Event (provided that the Master
Servicer shall be entitled to rely conclusively on an Opinion of Counsel to that
effect), (iii) the Master Servicer has notified the Rating Agencies,
(iv) to the extent the defeasance of the Mortgage Loan is required by the
then current applicable Rating Agency criteria to be reviewed by a Rating
Agency, such Rating Agency has confirmed that such defeasance will not result in
the qualification, downgrade or withdrawal of the rating then assigned to any
Class of Certificates to which a rating has been assigned by such Rating Agency,
(provided that no
confirmation from [S&P] shall be required if the Mortgage Loan being
defeased, together with all Mortgage Loans cross-collateralized with such
Mortgage Loan, (i) is not one of the ten (10) largest Mortgage Loans (or
cross-collateralized groups of Mortgage Loans) by Stated Principal Balance in
the Trust Fund, and (ii) has a Stated Principal Balance at the time of the
defeasance that is less than $20,000,000 and less than 5% of the aggregate
Stated Principal Balance at the time of the defeasance of the Mortgage Loans and
the Master Servicer shall have delivered a Defeasance Certificate substantially
in the form of Exhibit N hereto), (v) the Master Servicer has requested and
received from the related Mortgagor (A) an Opinion of Counsel generally to the
effect that the Trustee will have a perfected, first
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priority
security interest in such defeasance collateral and (B) written confirmation
from a firm of Independent accountants stating that payments made on such
defeasance collateral in accordance with the terms thereof will be sufficient to
pay the subject Mortgage Loan in full on or before its Stated Maturity Date and
in accordance with the Periodic Payment (or, in the case of an ARD Loan, on or
before its Anticipated Repayment Date) and to timely pay each Periodic Payment
scheduled to be due on or prior thereto but after the defeasance and (vi) a
single purpose entity (as defined below) is designated to assume the Mortgage
Loan and own the defeasance collateral; provided that, if under the
terms of the related Mortgage Loan documents, the related Mortgagor delivers
cash to purchase the defeasance collateral rather than the defeasance collateral
itself, the Master Servicer shall purchase the U.S. government obligations
contemplated by the related Mortgage Loan documents on behalf of the related
Mortgagor. Any customary and reasonable out-of-pocket expense
incurred by the Master Servicer pursuant to this Section 3.20(h) shall
be paid by the Mortgagor of the defeased Mortgage Loan pursuant to the related
Mortgage, Mortgage Note or other pertinent document. Notwithstanding
the foregoing, if at any time, a court with jurisdiction in the matter shall
hold that the related Mortgagor may obtain a release of the subject Mortgaged
Property but is not obligated to deliver the full amount of the defeasance
collateral contemplated by the related Mortgage Loan documents (or cash
sufficient to purchase such defeasance collateral), then the Master Servicer
shall (i) if consistent with the related Mortgage Loan documents, refuse to
allow the defeasance of the Mortgage Loan or (ii) if the Master Servicer
cannot so refuse and if the related Mortgagor has delivered cash to purchase the
defeasance collateral, the Master Servicer shall either (A) buy such defeasance
collateral or (B) prepay the Mortgage Loan, in either case, in accordance with
the Servicing Standard. For purposes of this paragraph, a “single purpose
entity” shall mean a Person, other than an individual, whose
organizational documents provide as follows: it is formed solely for
the purpose of owning and pledging Defeasance Collateral related to one or more
of the Mortgage Loans; it may not engage in any business unrelated to such
Defeasance Collateral and the financing thereof; it does not have and may not
own any assets other than those related to its interest in the Defeasance
Collateral or the financing thereof and may not incur any indebtedness other
than as permitted by the related Mortgage or Mortgages; it shall maintain its
own books, records and accounts, in each case which are separate and apart from
the books, records and accounts of any other person; it shall hold regular
meetings, as appropriate, to conduct its business, and shall observe all
entity-level formalities and record keeping; it shall conduct business in its
own name and use separate stationery, invoices and checks; it may not guarantee
or assume the debts or obligations of any other person other than in connection
with the defeasance of a Mortgage Loan; it shall not commingle its assets or
funds with those of any other person; it shall pay its obligations and expenses
from its own funds and allocate and charge reasonably and fairly any common
employees or overhead shared with affiliates; it shall prepare separate tax
returns and financial statements or, if part of a consolidated group, shall be
shown as a separate member of such group; it shall transact business with
affiliates on an arm’s length basis pursuant to written agreements; and it shall
hold itself out as being a legal entity, separate and apart from any other
person. The single purpose entity organizational documents shall
provide that any dissolution and winding up or insolvency filing for such entity
requires the unanimous consent of all partners or members, as applicable, and
that such documents may not be amended with respect to the single purpose entity
requirements during the term of the Mortgage Loan.
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(i) For any
Mortgage Loan (other than a Specially Serviced Mortgage Loan) and subject to the
rights of the Special Servicer set forth in this Section 3.20, the Master
Servicer, without the consent of the Special Servicer or the Controlling Class
Representative, shall be responsible for any request by a Mortgagor for the
consent of the mortgagee for a modification, waiver or amendment of any term
with respect to:
(i) approving
routine leasing activity (including any subordination, standstill and attornment
agreements) with respect to any lease for less than the lesser of
(a) 20,000 square feet and (b) 20% of the related Mortgaged
Property;
(ii) approving
a change of the property manager at the request of the related Mortgagor; provided that (A) the
successor property manager is not affiliated with the Mortgagor and is a
nationally or regionally recognized manager of similar properties, (B) the
related Mortgage Loan does not have an outstanding principal balance in excess
of $5,000,000 and (C) the subject Mortgaged Property does not secure a Companion
Loan;
(iii) approving
any waiver affecting the timing of receipt of financial statements from any
Mortgagor; provided
that such financial statements are delivered no less than quarterly and within
60 days of the end of the calendar quarter;
(iv) approving
annual budgets for the related Mortgaged Property; provided that no such budget
(1) provides for the payment of operating expenses in an amount equal to more
than 110% of the amounts budgeted therefor for the prior year or
(2) provides for the payment of any material expenses to any affiliate of
the Mortgagor (other than the payment of a management fee to any property
manager if such management fee is no more than the management fee in effect on
the Cut-Off Date);
(v) subject
to other restrictions herein regarding Principal Prepayments, waiving any
provision of a Mortgage Loan requiring a specified number of days notice prior
to a Principal Prepayment;
(vi) approving
modifications, consents or waivers (other than those set forth in
Section 3.20(c)) in connection with a defeasance permitted by the terms of
the related Mortgage Loan if the Master Servicer receives an Opinion of Counsel
(which Opinion of Counsel shall be an expense of the Mortgagor) to the effect
that such modification, waiver or consent would not cause any REMIC to fail
to qualify as a REMIC under the Code or result in a “prohibited
transaction” under the REMIC Provisions; and
(vii) consent
to subject the related Mortgaged Property to an easement or right-of-way for
utilities, access, parking, public improvements or another purpose, and may
consent to subordination of the related Mortgage Loan to such easement or
right-of-way provided the Master Servicer shall have determined in accordance
with the Servicing Standard that such easement or right-of-way shall not
materially interfere with the then current use of the related Mortgaged
Property, or the security intended to be provided by such Mortgage, the related
Mortgagor’s ability to repay the Mortgage Loan, or materially
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or
adversely affect the value of such Mortgaged Property or cause the Mortgage Loan
to cease to be a “qualified mortgage” for REMIC purposes;
provided, however, if the Mortgage Loan
is a Co-Lender Loan, the Master Servicer shall provide written notice of such
modification, waiver and amendment to the related Companion Holder to the extent
required under the related Intercreditor Agreement; provided, further, that the Master
Servicer shall promptly notify the Special Servicer of any requests not subject
to this Section 3.20(i) for which the Special Servicer is responsible
pursuant to this Section 3.20 and shall deliver to the Special Servicer
(which delivery may be by electronic transmission in a format acceptable to the
Master Servicer and Special Servicer) a copy of the request, and all information
in the possession of the Master Servicer that the Special Servicer may
reasonably request related thereto.
(j) To the
extent that either the Master Servicer or Special Servicer waives any Penalty
Interest or late charge in respect of any Mortgage Loan, whether pursuant to
Section 3.02(a) or this Section 3.20, the respective amounts of
additional servicing compensation payable to the Master Servicer and the Special
Servicer under Section 3.11 out of such Penalty Interest or late payment
charges shall be reduced proportionately, based upon the respective amounts that
had been payable thereto out of such Penalty Interest or late payment charges
immediately prior to such waiver.
(k) Notwithstanding
anything to the contrary in this Agreement, neither the Master Servicer nor the
Special Servicer, as applicable, shall take the following action unless it has
received prior written confirmation (the cost of which shall be paid by the
related Mortgagor, if so allowed by the terms of the related loan documents)
from the Rating Agencies that such action will not result in a qualification,
downgrade or withdrawal of any of the ratings assigned by such Rating Agency to
the Certificates:
(i) With
respect to any Mortgaged Property that secures a Mortgage Loan with an unpaid
principal balance that is at least equal to five percent (5%) of the then
aggregate principal balance of all Mortgage Loans or $20,000,000, the giving of
any consent, approval or direction regarding the termination of the related
property manager or the designation of any replacement property manager;
and
(ii) With
respect to each Mortgage Loan with an unpaid principal balance that is equal to
or greater than (A) two percent (2%) of the then aggregate principal balance of
all the Mortgage Loans or (B) $10,000,000 and which is secured by a Mortgaged
Property which is a hospitality property, the giving of any consent to any
change in the franchise affiliation of such Mortgaged Property.
(l) In the
event the Special Servicer, in connection with a modification, waiver or
amendment in respect of any Co-Lender Loan, modifies, waives or amends the terms
thereof such that (i) the Stated Principal Balance is decreased,
(ii) the Mortgage Rate is reduced, (iii) payments of interest or
principal are waived, reduced or deferred or (iv) any other adjustment is
made to any of the terms of such Co-Lender Loan, all payments made in respect of
the related Mortgage Loan shall be made as though such modification, waiver or
amendment did not occur, with the payment terms of such Co-Lender Loan remaining
the same as they are on
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the
related Cut Off Date, and the related Subordinate Companion Loan(s) shall bear
the full economic effect of all waivers, reductions or deferrals of amounts due
on such Co-Lender Loan attributable to such modification, waiver or
amendment.
(m) Subject
to the terms of the related Intercreditor Agreement, the Master Servicer may
extend the maturity date of Mortgage Loans with an original maturity of five
years or less with the approval of the Controlling Class Representative for up
to two six-month extensions.
Section
3.21 Transfer of Servicing
Between Master Servicer and Special Servicer; Record
Keeping.
(a) Upon
determining that a Servicing Transfer Event has occurred with respect to any
Mortgage Loan, the Master Servicer or Special Servicer, as applicable, shall
promptly notify the Trustee and Master Servicer or Special Servicer, as
applicable, and, if the Master Servicer is not also the Special Servicer, the
Master Servicer shall immediately deliver or cause to be delivered a copy of the
related Mortgage File and Servicing File, to the Special Servicer and shall use
reasonable efforts to provide the Special Servicer with all information,
documents (or copies thereof) and records (including records stored
electronically on computer tapes, magnetic discs and the like) relating to the
Mortgage Loan and, if applicable the related Companion Loan, either in the
Master Servicer’s or any of its directors’, officers’, employees’, affiliates’
or agents’ possession or control or otherwise available to the Master Servicer
without undue burden or expense, and reasonably requested by the Special
Servicer to enable it to assume its functions hereunder with respect thereto
without acting through a Sub-Servicer. The Master Servicer shall use
reasonable efforts to comply with the preceding sentence within five Business
Days of the occurrence of each related Servicing Transfer Event; provided, however, if the information,
documents and records requested by the Special Servicer are not contained in the
Servicing File, the Master Servicer shall have such period of time as reasonably
necessary to make such delivery. Notwithstanding the occurrence of a
Servicing Transfer Event, the Master Servicer shall continue to receive payments
on such Mortgage Loan (including amounts collected by the Special
Servicer).
Upon
determining that a Specially Serviced Mortgage Loan has become a Corrected
Mortgage Loan and if the Master Servicer is not also the Special Servicer, the
Special Servicer shall immediately give notice thereof to the Master Servicer,
and shall return the related Mortgage File and Servicing File and all other
information, documents and records that were not part of the Servicing File when
it was delivered to the Special Servicer within five Business Days of the
occurrence, to the Master Servicer (or such other Person as may be directed by
the Master Servicer) and upon giving such notice, and returning such Servicing
File, to the Master Servicer (or such other Person as may be directed by the
Master Servicer), the Special Servicer’s obligation to service such Mortgage
Loan, and, if applicable, the Companion Loan, and the Special Servicer’s right
to receive the Special Servicing Fee with respect to such Mortgage Loan shall
terminate, and the obligations of the Master Servicer to service and administer
such Mortgage Loan and, if applicable, the related Companion Loan shall
resume.
(b) In
servicing any Specially Serviced Mortgage Loans, the Special Servicer shall
provide to the Custodian originals of documents included within the definition
of
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“Mortgage File” for inclusion in the related
Mortgage File (with a copy of each such original to the Master Servicer), and
copies of any additional related Mortgage Loan information, including
correspondence with the related Mortgagor.
(c) On or
before each Determination Date, the Special Servicer shall deliver to the Master
Servicer and each Rating Agency (or such other Person as may be directed by the
Master Servicer) a statement in writing and in computer readable format (the
form of such statement to be agreed upon by the Master Servicer) describing, on
a loan-by-loan and property-by-property basis, (1) insofar as it relates to
Specially Serviced Mortgage Loans and REO Properties, the information described
in clauses (x) through (xiii) of Section 4.02(a) and, insofar as
it relates to the Special Servicer, the information described in clauses
(xxiii), (xxiv) and (xxv) of Section 4.02(a), (2) the amount of all
payments, Insurance Proceeds and Liquidation Proceeds received, and the amount
of any Realized Loss incurred, with respect to each Specially Serviced Mortgage
Loan during the related Collection Period, and the amount of all REO Revenues,
Insurance Proceeds and Liquidation Proceeds received, and the amount of any
Realized Loss incurred, with respect to each REO Property during the related
Collection Period, (3) the amount, purpose and date of all Servicing Advances
requested by the Special Servicer with respect to each Specially Serviced
Mortgage Loan and REO Property during the related Collection Period and (4) such
additional information relating to the Specially Serviced Mortgage Loans and REO
Properties as the Master Servicer reasonably requests to enable it to perform
its responsibilities under this Agreement. Notwithstanding the
foregoing provisions of this subsection (c), the Master Servicer shall
maintain ongoing payment records with respect to each of the Specially Serviced
Mortgage Loans and REO Properties and shall provide the Special Servicer with
any information reasonably available to the Master Servicer required by the
Special Servicer to perform its duties under this Agreement.
(d) No later
than 60 days after a Mortgage Loan and, if applicable, Companion Loan becomes a
Specially Serviced Mortgage Loan, the Special Servicer shall deliver to each
Rating Agency, the Trustee, the Master Servicer and the Controlling Class
Representative (and, in the case of a Co-Lender Loan, the related Companion
Holder), a report (the “Asset Status Report”)
with respect to such Mortgage Loan and the related Mortgaged
Property. Such Asset Status Report shall set forth the following
information to the extent reasonably determinable:
(i) summary
of the status of such Specially Serviced Mortgage Loan and negotiations with the
related Mortgagor;
(ii) a
discussion of the legal and environmental considerations reasonably known to the
Special Servicer, consistent with the Servicing Standard, that are applicable to
the exercise of remedies as aforesaid and to the enforcement of any related
guaranties or other collateral for the related Specially Serviced Mortgage Loan
and whether outside legal counsel has been retained;
(iii) the most
current rent roll and income or operating statement available for the related
Mortgaged Property;
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(iv) the
Appraised Value of the Mortgaged Property together with the assumptions used in
the calculation thereof;
(v) summary
of the Special Servicer’s recommended action with respect to such Specially
Serviced Mortgage Loan; and
(vi) such
other information as the Special Servicer deems relevant in light of the
Servicing Standard.
Any Asset
Status Report with respect to a Co-Lender Loan shall also include any additional
information required by the related Intercreditor Agreement. In
addition, with respect to a Co-Lender Loan, the Controlling Class
Representative’s approval or disapproval of any actions recommended by such
Asset Status Report relating to such Co-Lender Loan will be subject to the
rights of the related Companion Holder pursuant to the terms of the related
Intercreditor Agreement.
If within
ten (10) Business Days of receiving an Asset Status Report which relates to a
recommended action for which the Controlling Class Representative is entitled to
object under Section 6.11, the Controlling Class Representative does not
disapprove such Asset Status Report in writing, the Special Servicer shall
implement the recommended action as outlined in such Asset Status Report; provided, however, that the Special
Servicer may not take any action that is contrary to applicable law, the
Servicing Standard, or the terms of the applicable Mortgage Loan
documents. If the Controlling Class Representative disapproves such
Asset Status Report, the Special Servicer will revise such Asset Status Report
and deliver to the Controlling Class Representative, the Rating Agencies and the
Master Servicer a new Asset Status Report as soon as practicable, but in no
event later than 30 days after such disapproval.
The
Special Servicer shall revise such Asset Status Report as described above in
this Section 3.21(d) until the Controlling Class Representative shall
fail to disapprove such revised Asset Status Report in writing within ten (10)
Business Days of receiving such revised Asset Status Report or until the Special
Servicer makes one of the determinations described below. The Special Servicer
may, from time to time, modify any Asset Status Report it has previously
delivered and implement such report; provided such report shall
have been prepared, reviewed and not rejected pursuant to the terms of this
Section. Notwithstanding the foregoing, the Special Servicer
(i) may, following the occurrence of an extraordinary event with respect to
the related Mortgaged Property, take any action set forth in such Asset Status
Report (and consistent with the terms hereof) before the expiration of a ten
(10) Business Day period if the Special Servicer has reasonably determined that
failure to take such action would materially and adversely affect the interests
of the Certificateholders or, if a Loan Pair is involved, the Certificateholders
and the related Companion Holders, (as a collective whole) and it has made a
reasonable effort to contact the Controlling Class Representative and
(ii) in any case, shall determine whether such affirmative disapproval is
not in the best interest of all the Certificateholders pursuant to the Servicing
Standard.
Upon
making such determination in clause (ii) of the immediately preceding
paragraph, the Special Servicer shall notify the Trustee of such rejection and
deliver to the Trustee a proposed notice to Certificateholders which shall
include a copy of the Asset Status
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Report,
and the Trustee shall send such notice to all Certificateholders. If
the majority of such Certificateholders, as determined by Voting Rights, fail,
within 5 days of the Trustee’s sending such notice, to reject such Asset Status
Report, the Special Servicer shall implement the same. If the Asset
Status Report is rejected by a majority of the Certificateholders, (other than
for a reason which violates the Servicing Standard, which shall control), the
Special Servicer shall revise such Asset Status Report as described above in
this Section 3.21(d) and provide a copy of such revised report to the
Master Servicer. The Trustee shall be entitled to reimbursement from
the Trust Fund for the reasonable expenses of providing such
notices. Notwithstanding the foregoing, the Controlling Class
Representative’s approval of or failure to respond to an Asset Status Report
shall not be deemed to be a substitute for any specific consent required
pursuant to Section 6.11(a).
The
Special Servicer shall have the authority to meet with the Mortgagor for any
Specially Serviced Mortgage Loan and take such actions consistent with the
Servicing Standard, the terms hereof and the related Asset Status
Report. The Special Servicer shall not take any action inconsistent
with the related Asset Status Report, unless such action would be required in
order to act in accordance with the Servicing Standard.
No
direction of the Controlling Class Representative or the majority of the
Certificateholders shall (a) require or cause the Special Servicer to
violate the terms of a Specially Serviced Mortgage Loan, applicable law or any
provision of this Agreement, including the Special Servicer’s obligation to act
in accordance with the Servicing Standard and to maintain the REMIC status
of REMIC I and REMIC II, (b) result in the imposition of a “prohibited
transaction” or “prohibited
contribution” tax under the REMIC Provisions or (c) expose the
Master Servicer, the Special Servicer, the Depositor, any of the Mortgage Loan
Sellers, the Trust Fund or the Trustee or the officers and the directors of each
party to claim, suit or liability or (d) expand the scope of the Master
Servicer’s, Trustee’s or Special Servicer’s responsibilities under this
Agreement. Notwithstanding the foregoing, it is agreed and
acknowledged that, with respect to the Co-Lender Loans, the holders of the
Companion Loans have certain consent and direction rights in the related
Intercreditor Agreements, but nothing herein shall be construed to prevent the
Controlling Class Representative from consulting on a non-binding basis with the
Special Servicer about any applicable Mortgage Loan.
Section
3.22 Sub-Servicing
Agreements.
(a) The
Master Servicer and the Special Servicer (and, with respect to the Special
Servicer, only with the consent of the Controlling Class Representative) may
enter into Sub-Servicing Agreements to provide for the performance by third
parties of any or all of their respective obligations hereunder; provided that, in each case,
the Sub-Servicing Agreement: (i) is consistent with this
Agreement in all material respects, requires the Sub-Servicer to comply with all
of the applicable conditions of this Agreement and includes events of default
with respect to the Sub-Servicer substantially similar to the Events of Default
set forth in Section 7.01(a) hereof (other than Section 7.01(a)(ix),
(x) and (xi) to the extent applicable (modified to apply to the
Sub-Servicer instead of the Master Servicer); (ii) provides that if the
Master Servicer or the Special Servicer, as the case may be, shall for any
reason no longer act in such capacity hereunder (including, without limitation,
by reason of an Event of Default), the Trustee or its designee may thereupon
assume all of the rights and, except to the extent such
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obligations
arose prior to the date of assumption, obligations of the Master Servicer or the
Special Servicer, as the case may be, under such agreement or (except with
respect only to the Sub-Servicing Agreements in effect as of the date of this
Agreement) may terminate such subservicing agreement without cause and without
payment of any penalty or termination fee (other than the right of reimbursement
and indemnification); (iii) provides that the Trustee, for the benefit of
the Certificateholders, shall be a third party beneficiary under such agreement,
but that (except to the extent the Trustee or its designee assumes the
obligations of the Master Servicer or the Special Servicer, as the case may be,
thereunder as contemplated by the immediately preceding clause (ii) none of
the Trustee, the Trust Fund, any successor Master Servicer or Special Servicer,
as the case may be, or any Certificateholder shall have any duties under such
agreement or any liabilities arising therefrom; (iv) permits any purchaser
of a Mortgage Loan pursuant to this Agreement to terminate such agreement with
respect to such purchased Mortgage Loan at its option and without penalty;
(v) with respect to any Sub-Servicing Agreement entered into by the Special
Servicer, does not permit the Sub-Servicer to enter into or consent to any
modification, waiver or amendment or otherwise take any action on behalf of the
Special Servicer contemplated by Section 3.20 hereof without the consent of
such Special Servicer or conduct any foreclosure action contemplated by
Section 3.09 hereof or sale of a Mortgage Loan or REO Property contemplated
by Section 3.18 hereof, and (vi) does not permit the Sub-Servicer any
direct rights of indemnification that may be satisfied out of assets of the
Trust Fund. In addition, each Sub-Servicing Agreement entered into by
the Master Servicer shall provide that such agreement shall be subject to
Section 3.21 hereof with respect to any Mortgage Loan that becomes a
Specially Serviced Mortgage Loan. The Master Servicer and the Special
Servicer shall each deliver to the Trustee and to each other copies of all
Sub-Servicing Agreements, and any amendments thereto and modifications thereof,
entered into by it promptly upon its execution and delivery of such
documents. References in this Agreement to actions taken or to be
taken by the Master Servicer or the Special Servicer include actions taken or to
be taken by a Sub-Servicer on behalf of the Master Servicer or the Special
Servicer, as the case may be; and, in connection therewith, all amounts advanced
by any Sub-Servicer to satisfy the obligations of the Master Servicer or the
Special Servicer hereunder to make P&I Advances or Servicing Advances shall
be deemed to have been advanced by the Master Servicer or the Special Servicer,
as the case may be, out of its own funds and, accordingly, such P&I Advances
or Servicing Advances shall be recoverable by such Sub-Servicer in the same
manner and out of the same funds as if such Sub-Servicer were the Master
Servicer or the Special Servicer, as the case may be. For so long as
they are outstanding, Advances shall accrue interest in accordance with Sections
3.03(d) and 4.03(d), such interest to be allocable between the Master
Servicer or the Special Servicer, as the case may be, and such Sub-Servicer as
they may agree. For purposes of this Agreement, the Master Servicer
and the Special Servicer each shall be deemed to have received any payment when
a Sub-Servicer retained by it receives such payment. The Master
Servicer and the Special Servicer each shall notify the other, the Trustee and
the Depositor in writing promptly of the appointment by it of any
Sub-Servicer.
(b) Each
Sub-Servicer shall be authorized to transact business in the state or states in
which the related Mortgaged Properties it is to service are situated, if and to
the extent required by applicable law.
(c) The
Master Servicer and the Special Servicer, for the benefit of the Trustee and the
Certificateholders, shall (at no expense to the Trustee, the Certificateholders
or
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the Trust
Fund) monitor the performance and enforce the obligations of their respective
Sub-Servicers under the related Sub-Servicing Agreements. Such
enforcement, including, without limitation, the legal prosecution of claims,
termination of Sub-Servicing Agreements in accordance with their respective
terms and the pursuit of other appropriate remedies, shall be in such form and
carried out to such an extent and at such time as the Master Servicer or the
Special Servicer, as applicable, in its good faith business judgment, would
require were it the owner of the Mortgage Loans. Subject to the terms
of the related Sub-Servicing Agreement, the Master Servicer and the Special
Servicer may each have the right to remove a Sub-Servicer at any time it
considers such removal to be in the best interests of
Certificateholders.
(d) In the
event of the resignation, removal or other termination of
[_______________________], or any successor Master Servicer hereunder for any
reason, the Trustee or other Person succeeding such resigning, removed or
terminated party as Master Servicer, shall elect, with respect to any
Sub-Servicing Agreement in effect as of the date of this
Agreement: (i) to assume the rights and obligations of the
Master Servicer under such Sub-Servicing Agreement and continue the
sub-servicing arrangements thereunder on the same terms (including without
limitation the obligation to pay the same sub-servicing fee); (ii) to enter
into a new Sub-Servicing Agreement with such Sub-Servicer on such terms as the
Trustee or other successor Master Servicer and such Sub-Servicer shall mutually
agree (it being understood that such Sub-Servicer is under no obligation to
accept any such new Sub-Servicing Agreement or to enter into or continue
negotiations with the Trustee or other successor Master Servicer in which case
the existing Sub-Servicing Agreement shall remain in effect); or (iii) to
terminate the Sub-Servicing Agreement if an Event of Default (as defined in such
Sub-Servicing Agreement) has occurred and is continuing or otherwise in
accordance with the Sub-Servicing Agreement, in each case without paying any
Sub-Servicer termination fee.
Each
Sub-Servicing Agreement will provide, among other things, that the Master
Servicer and its successors may at its sole option, terminate any rights the
Sub-Servicer may have thereunder with respect to any or all Mortgage Loans if
[S&P or Xxxxx’x] (i) reduces the rating assigned to one or more Classes
of the respective Certificates as a result of the sub-servicing of the Mortgage
Loans by the Sub-Servicer, or (ii) advises the Master Servicer or the
Trustee in writing that it will cause a qualification, downgrade or withdrawal
of such rating due to the continued servicing by the
Sub-Servicer.
(e) Notwithstanding
any Sub-Servicing Agreement, the Master Servicer and the Special Servicer shall
remain obligated and liable to the Trustee and the Certificateholders for the
performance of their respective obligations and duties under this Agreement in
accordance with the provisions hereof to the same extent and under the same
terms and conditions as if each alone were servicing and administering the
Mortgage Loans or REO Properties for which it is responsible.
(f) The
Special Servicer shall not enter into a Sub-Servicing Agreement unless it
receives the consent of the Controlling Class Representative and each Rating
Agency has confirmed in writing that the execution of such agreement will not
result in a qualification, downgrade, or withdrawal of the then-current ratings
on the outstanding Certificates or such Sub-Servicing Agreement relates to a
Mortgage Loan or Mortgage Loans (along with any Mortgage Loans previously
sub-serviced pursuant to this section) that represent less than 25% of
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the
outstanding principal balance of all Specially Serviced Mortgage
Loans. The Special Servicer shall comply with the terms of each such
Sub-Servicing Agreement to the extent the terms thereof are not inconsistent
with the terms of this Agreement and the Special Servicer’s obligations
hereunder.
(g) The
Master Servicer shall cause any Sub-Servicer engaged by the Master Servicer (or
by any Sub-Servicer) for the benefit of the Depositor and the Trustee to comply
with the provisions of this Section 3.22 and with Section 8.17 of this Agreement
to the same extent as if such Sub-Servicer were the Master Servicer, and to
provide the information required with respect to such Sub-Servicer under this
Section 3.22. The Master Servicer shall be responsible for obtaining
from each such Sub-Servicer and delivering to the Trustee and any applicable
Persons any servicer compliance statement required to be delivered by such
Sub-Servicer under Section 3.13 and any assessment of compliance report and
related accountant’s attestation required to be delivered by such Sub-Servicer
under Section 3.14, in each case, as and when required to be
delivered.
(h) Subject
to the conditions set forth in this Section 3.22(h), the Master Servicer and any
Sub-Servicer engaged by the Master Servicer is permitted to utilize one or more
Subcontractors to perform certain of its obligations hereunder. The Master
Servicer shall promptly, upon request, provide to the Depositor and the Trustee
a written description (in form and substance satisfactory to the Depositor) of
the role and function of each Subcontractor utilized by the Master Servicer or
any such Sub-Servicer, specifying (i) the identity of each such Subcontractor,
(ii) which (if any) of such Subcontractors are “participating in the servicing
function” within the meaning of Item 1122 of Regulation AB, and (iii) which
elements of the Servicing Criteria will be addressed in assessments of
compliance provided by each Subcontractor identified pursuant to clause (ii) of
this paragraph. As a condition to the utilization by the Master Servicer or any
such Sub-Servicer of any Subcontractor determined to be “participating in the
servicing function” within the meaning of Item 1122 of Regulation AB, the Master
Servicer shall cause any such Subcontractor used by the Master Servicer (or by
any such Sub-Servicer) for the benefit of the Depositor and the Trustee to
comply with the provisions of Sections 3.13, 3.14 and 8.17 of this Agreement to
the same extent as if such Subcontractor were the Master
Servicer. The Master Servicer shall be responsible for obtaining from
each such Subcontractor and delivering to the applicable Persons any assessment
of compliance report and related accountant’s attestation required to be
delivered by such Subcontractor under Sections 3.13 or 3.14, in each case, as
and when required to be delivered.
(i) Notwithstanding
the foregoing, if the Master Servicer engages a Subcontractor in connection with
the performance of any of its duties under this Agreement, the Master Servicer
shall be responsible for determining whether such Subcontractor is a “servicer”
within the meaning of Item 1101 of Regulation AB and whether any such affiliate
or third-party vendor meets the criteria in Item 1108(a)(2)(i), (ii) or (iii) of
Regulation AB. If the Master Servicer determines, pursuant to the
preceding sentence, that such Subcontractor is a “servicer” within the meaning
of Item 1101 of Regulation AB and meets the criteria in Item 1108(a)(2)(i), (ii)
or (iii) of Regulation AB, then such Subcontractor shall be deemed to be a
Sub-Servicer for purposes of this Agreement, the engagement of such Sub-Servicer
shall not be effective unless and until notice is given pursuant to this Section
3.22 and such Sub-Servicer shall comply with this Section 3.22 with respect
thereto.
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Section
3.23 Representations and
Warranties of Master Servicer and Special Servicer.
(a) [_________________________],
in its capacity as Master Servicer, hereby represents and warrants to the
Trustee, for its own benefit and the benefit of the Certificateholders and the
Companion Holders, and to the Depositor and the Special Servicer, as of the
Closing Date, that:
(i) The
Master Servicer is a national banking association, duly organized under the laws
of the United States of America, and the Master Servicer is in compliance with
the laws of each State in which any Mortgaged Property is located to the extent
necessary to perform its obligations under this Agreement.
(ii) The
execution and delivery of this Agreement by the Master Servicer, and the
performance and compliance with the terms of this Agreement by the Master
Servicer, will not violate the Master Servicer’s articles of association or
by-laws or constitute a default (or an event which, with notice or lapse of
time, or both, would constitute a default) under, or result in the breach of,
any material agreement or other material instrument to which it is a party or by
which it is bound.
(iii) The
Master Servicer has the full power and authority to enter into and consummate
all transactions contemplated by this Agreement, has duly authorized the
execution, delivery and performance of this Agreement, and has duly executed and
delivered this Agreement.
(iv) This
Agreement, assuming due authorization, execution and delivery by each of the
other parties hereto, constitutes a valid, legal and binding obligation of the
Master Servicer, enforceable against the Master Servicer in accordance with the
terms hereof, subject to (A) applicable receivership, insolvency,
reorganization, moratorium and other laws affecting the enforcement of
creditors’ rights generally and the rights of creditors of banks, and (B)
general principles of equity, regardless of whether such enforcement is
considered in a proceeding in equity or at law.
(v) The
Master Servicer is not in violation of, and its execution and delivery of this
Agreement and its performance and compliance with the terms of this Agreement
will not constitute a violation of, any law, any order or decree of any court or
arbiter, or any order, regulation or demand of any federal, state or local
governmental or regulatory authority, which violation, in the Master Servicer’s
good faith and reasonable judgment, is likely to affect materially and adversely
either the ability of the Master Servicer to perform its obligations under this
Agreement or the financial condition of the Master Servicer.
(vi) No
litigation is pending or, to the best of the Master Servicer’s knowledge,
threatened, against the Master Servicer that would prohibit the Master Servicer
from entering into this Agreement or, in the Master Servicer’s good faith and
reasonable judgment, is likely to materially and adversely affect either the
ability of the Master
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Servicer
to perform its obligations under this Agreement or the financial condition of
the Master Servicer, calculated on a consolidated basis.
(vii) Each
officer, director, employee, consultant or advisor of the Master Servicer with
responsibilities concerning the servicing and administration of Mortgage Loans
is covered by errors and omissions insurance in the amounts and with the
coverage as, and to the extent, required by Section 3.07(c).
(viii) The net
worth of the Master Servicer (or, in the case of the initial Master Servicer,
the consolidated net worth thereof and of its direct or indirect parent),
determined in accordance with generally accepted accounting principles, is not
less than $15,000,000.
(ix) Any
consent, approval, authorization or order of any court or governmental agency or
body required for the execution, delivery and performance by the Master Servicer
of or compliance by the Master Servicer with this Agreement or the consummation
of the transactions contemplated by this Agreement has been obtained and is
effective.
(x) The
Master Servicer possesses the fidelity bond required pursuant to
Section 3.07(c) of this Agreement.
(b) [_____________]
in its capacity as Special Servicer, hereby represents and warrants to the
Trustee, for its own benefit and the benefit of the Certificateholders and the
Companion Holders, and to the Depositor and the Master Servicer, as of the
Closing Date, that:
(i) [____________]
is a corporation duly organized under the laws of the State of [_____], validly
existing and [__________] is in compliance with the laws of each State in which
any Mortgaged Property is located to the extent necessary to perform its
obligations under this Agreement.
(ii) The
execution and delivery of this Agreement by [_____________], and the performance
and compliance with the terms of this Agreement by [___________], will not
violate [_____________]’s organizational documents or constitute a default (or
an event which, with notice or lapse of time, or both, would constitute a
default) under, or result in the breach of, any material agreement or other
material instrument by which it is bound.
(iii) [______________]
has the full power and authority to enter into and consummate all transactions
contemplated by this Agreement, has duly authorized the execution, delivery and
performance of this Agreement, and has duly executed and delivered this
Agreement.
(iv) This
Agreement, assuming due authorization, execution and delivery by each of the
other parties hereto, constitutes a valid, legal and binding obligation of
[_____________], enforceable against [____________] in accordance with the terms
hereof, subject to (A) applicable bankruptcy, insolvency, reorganization,
moratorium and other laws affecting the enforcement of creditors’ rights
generally, and (B) general
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principles
of equity, regardless of whether such enforcement is considered in a proceeding
in equity or at law.
(v) [______________]
is not in violation of, and its execution and delivery of this Agreement and its
performance and compliance with the terms of this Agreement will not constitute
a violation of, any law, any order or decree of any court or arbiter, or any
order, regulation or demand of any federal, state or local governmental or
regulatory authority, which violation, in [__________]’s good faith and
reasonable judgment, is likely to affect materially and adversely either the
ability of [_______________] or to perform its obligations under this Agreement
or the financial condition of [__________].
(vi) No
litigation is pending or, to the best of [__________]’s knowledge, threatened,
against [______________] the outcome of which in [_______________]’s good faith
and reasonable judgment could reasonably be expected to prohibit the Special
Servicer from entering into this Agreement or, in [__________]’s good faith and
reasonable judgment, is likely to materially and adversely affect either the
ability of [__________] to perform its obligations under this Agreement or the
financial condition of [_________________].
(vii) Each
officer, director and employee of [_________________] and each consultant or
advisor of [_____________] with responsibilities concerning the servicing and
administration of Mortgage Loans is covered by errors and omissions insurance in
the amounts and with the coverage required by Section 3.07(c).
(viii) Any
consent, approval, authorization or order of any court or governmental agency or
body required for the execution, delivery and performance by [____________] of
or compliance by [____________] with this Agreement or the consummation of the
transactions contemplated by this Agreement has been obtained and is
effective.
(ix) [__________________]
possesses all insurance required pursuant to Section 3.07(c) of this
Agreement.
(c) The
representations and warranties of [__________________________] as Master
Servicer, set forth in Section 3.23(a), and the representations and
warranties of [_________________________] as Special Servicer, set forth in
Section 3.23(b) shall, respectively, survive the execution and
delivery of this Agreement and shall inure to the benefit of the Persons for
whose benefit they were made for so long as the Trust Fund remains in
existence. Upon discovery by any party hereto of any breach of any of
the foregoing representations and warranties, the party discovering such breach
shall give prompt written notice to the other parties hereto.
Section
3.24 Sub-Servicing Agreement
Representation and Warranty.
The
Master Servicer, in such capacity, hereby represents and warrants to the
Trustee, for its own benefit and the benefit of the Certificateholders, and to
the Depositor and the Special Servicer, as of the Closing Date, that each
Sub-Servicing Agreement satisfies the
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requirements
for such Sub-Servicing Agreements set forth in Sections 3.22(a) and the
second paragraph of 3.22(d) in all material respects.
Section
3.25 Designation of Controlling
Class Representative.
(a) The
Holders (or, in the case of Book-Entry Certificates, the Certificate Owners) of
Certificates representing more than 50% of the Class Principal Balance of the
Controlling Class shall be entitled in accordance with this
Section 3.25 to select a representative having the rights and powers
specified in this Agreement (including those specified in Section 6.11) or
to replace an existing Controlling Class Representative. The advisor
referred to above is referred to herein as the “Controlling Class
Representative”. Upon (i) the receipt by the Trustee of
written requests for the selection of a Controlling Class Representative from
the Holders (or, in the case of Book-Entry Certificates, the Certificate Owners)
of Certificates representing more than 50% of the Class Principal Balance of the
Controlling Class, (ii) the resignation or removal of the Person acting as
Controlling Class Representative or (iii) a determination by the Trustee
that the Controlling Class has changed, the Trustee shall promptly notify
the Depositor and the Holders (and, in the case of Book-Entry Certificates, to
the extent actually known to a Responsible Officer of the Trustee or identified
thereto by the Depository or the Depository Participants, the Certificate
Owners) of the Controlling Class that they may select a Controlling Class
Representative. Such notice shall set forth the process for selecting
a Controlling Class Representative, which shall be the designation of the
Controlling Class Representative by the Holders (or Certificate Owners) of
Certificates representing more than 50% of the Class Principal Balance of the
Controlling Class by a writing delivered to the Trustee. No
appointment of any Person as a Controlling Class Representative shall be
effective until such Person provides the Trustee and the Master Servicer with
written confirmation of its acceptance of such appointment, an address and
telecopy number for the delivery of notices and other correspondence and a list
of officers or employees of such Person with whom the parties to this Agreement
may deal (including their names, titles, work addresses and telecopy
numbers). [_______________________________], or an affiliate, shall
be the initial Controlling Class Representative without need for further
designation or notice.
Notwithstanding
anything in this Section 3.25(a), the holders of the Companion Loans have
certain consent and direction rights pursuant to the terms of the related
Intercreditor Agreements as incorporated in this Agreement, and this
Section shall not supersede any such rights, but nothing herein shall be
construed to limit the right of the Controlling Class Representative to consult
on a non-binding basis with the Special Servicer about any applicable Mortgage
Loan.
(b) Within
ten (10) Business Days (or as soon thereafter as practicable if the Controlling
Class consists of Book-Entry Certificates) of receiving a request therefor
from the Master Servicer or Special Servicer, the Trustee shall, to the extent
in its possession, deliver to the requesting party the identity of the
Controlling Class Representative and a list of each Holder (or, in the case of
Book-Entry Certificates, to the extent actually known to a Responsible Officer
of the Trustee or identified thereto by the Depository or the Depository
Participants, each Certificate Owner) of the Controlling Class, including, in
each case, names and addresses. With respect to such information, the
Trustee shall be entitled to conclusively rely on information provided to it by
the Depository, and the Master Servicer and the Special Servicer shall be
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entitled
to rely on such information provided by the Trustee with respect to any
obligation or right hereunder that the Master Servicer and the Special Servicer
may have to deliver information or otherwise communicate with the Controlling
Class Representative or any of the Holders (or, if applicable, Certificate
Owners) of the Controlling Class. In addition to the foregoing,
within two (2) Business Days of the selection, resignation or removal of a
Controlling Class Representative, the Trustee shall notify the other parties to
this Agreement of such event. The expenses incurred by the Trustee in
connection with obtaining information from the Depository or Depository
Participants with respect to any Book-Entry Certificate shall be expenses of the
Trust Fund payable out of the Certificate Account pursuant to
Section 3.05(a).
(c) A
Controlling Class Representative may at any time resign as such by giving
written notice to the Trustee and to each Holder (or, in the case of Book-Entry
Certificates, Certificate Owner) of the Controlling Class. The
Holders (or, in the case of Book-Entry Certificates, the Certificate Owners) of
Certificates representing more than 50% of the Class Principal Balance of the
Controlling Class shall be entitled to remove any existing Controlling
Class Representative by giving written notice to the Trustee and to such
existing Controlling Class Representative.
(d) Once a
Controlling Class Representative has been selected pursuant to this
Section 3.25, each of the parties to this Agreement and each
Certificateholder (or Certificate Owner, if applicable) shall be entitled to
rely on such selection unless a majority of the Holders (or, in the case of
Book-Entry Certificates, the Certificate Owners) of the Controlling Class, by
aggregate Certificate Principal Balance, or such Controlling Class
Representative, as applicable, shall have notified the Trustee and each other
Holder (or, in the case of Book-Entry Certificates, Certificate Owner) of the
Controlling Class, in writing, of the resignation or removal of such Controlling
Class Representative.
(e) Any and
all expenses of the Controlling Class Representative shall be borne by the
Holders (or, if applicable, the Certificate Owners) of Certificates of the
Controlling Class, pro
rata according to their respective Percentage Interests in such Class,
and not by the Trust Fund. Notwithstanding the foregoing, if a claim
is made against the Controlling Class Representative by a Mortgagor with respect
to this Agreement or any particular Mortgage Loan, the Controlling Class
Representative shall immediately notify the Trustee, the Master Servicer and the
Special Servicer, whereupon (if the Special Servicer or the Trust Fund are also
named parties to the same action and, in the reasonable judgment of the Special
Servicer, (i) the Controlling Class Representative had acted in good faith,
without negligence or willful misfeasance with regard to the particular matter,
and (ii) there is no potential for the Special Servicer or the Trust Fund
to be an adverse party in such action as regards the Controlling Class
Representative) the Special Servicer on behalf of the Trust Fund shall, subject
to Section 6.03, assume the defense of any such claim against the
Controlling Class Representative. This provision shall survive the
termination of this Agreement and the termination or resignation of the
Controlling Class Representative.
(f) All
rights to, and requirements for, information or notice (including, but not
limited to the delivery of information, notice or access to information)
provided to the Controlling Class Representative or Certificateholders, in
general contained in this Agreement shall also apply to each Companion Holder
(provided such
Companion Holder is not a
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Mortgagor
or an affiliate of a Mortgagor) with respect to information relating to the
related Co-Lender Loan (but, in the case of information relating to a Co-Lender
Loan, excluding the fair value determination thereof).
Section
3.26 Companion Paying
Agent.
(a) The
Master Servicer shall be the initial Companion Paying Agent
hereunder. The Companion Paying Agent undertakes to perform such
duties and only such duties as are specifically set forth herein. The
Companion Paying Agent shall promptly make available to the Companion Holders
(other than the holder of the Companion Loan relating to the [_________]
Serviced Mortgage Loan) all reports available to the Companion Paying Agent that
the Trustee has made available to Certificateholders under this
Agreement.
(b) No
provision of this Agreement shall be construed to relieve the Companion Paying
Agent from liability for its own negligent failure to act, bad faith or its own
willful misfeasance; provided, however, that the duties and
obligations of the Companion Paying Agent shall be determined solely by the
express provisions of this Agreement, the Companion Paying 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 Companion
Paying Agent and, in the absence of bad faith on the part of the Companion
Paying Agent, the Companion Paying 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 instrument furnished to the Companion Paying Agent by any Person and which
on their face do not contradict the requirements of this Agreement.
(c) If the
Companion Paying Agent is also the Master Servicer, upon the resignation or
removal of the Master Servicer pursuant to this Agreement, the Companion Paying
Agent shall be deemed simultaneously to resign or be removed.
(d) This
Section shall survive the termination of this Agreement or the resignation
or removal of the Companion Paying Agent, as regards rights accrued prior to
such resignation or removal.
Section
3.27 Companion
Register.
The
Companion Paying Agent shall maintain a register (the “Companion Register”)
on which it will record the names and addresses of, and wire transfer
instructions for, the Companion Holders (other than the holder of the Companion
Loan relating to the [________] Serviced Mortgage Loan) from time to time, to
the extent such information is provided in writing to it by the Companion
Holder. Each initial Companion Holder, along with its name, address,
wiring instructions and tax identification number, is listed on Exhibit L
hereto. The Companion Holders shall inform the Companion Paying Agent
and the Master Servicer of the name, address, wiring instructions and taxpayer
identification number of any subsequent Companion Holders upon any transfer of a
Companion Loan. Upon the sale of a Companion Loan or portion thereof,
the transferring Companion Holder shall inform the Companion Paying Agent and
the Master Servicer in writing that such transfer has taken place and provide
the Companion Paying Agent and the Master Servicer with the name, address,
wiring instructions and tax identification
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number of
the transferee. In the event the Companion Holder transfers a
Companion Loan without notice to the Companion Paying Agent, the Companion
Paying Agent shall have no liability for any misdirected payment in the related
Companion Loan and shall have no obligation to recover and redirect such
payment.
The
Companion Paying Agent shall promptly provide the name and address of the
Companion Holders to any party hereto or any successor Companion Holders upon
written request and any such Person may, without further investigation,
conclusively rely upon such information. The Companion Paying Agent
shall have no liability to any Person for the provision of any such names and
addresses.
Section
3.28 [Reserved]
Section
3.29 Future Debt Secured by
Interests in Related Borrowers
In the
event the Mortgage Loan Documents permit ownership interests in the related
borrower to be pledged as security for mezzanine debt in the future, in addition
to any consents required hereunder, the Master Servicer shall require, to the
extent not inconsistent with the Mortgage Loan Documents, the execution in favor
of the Trust Fund of a subordination and standstill agreement or an
intercreditor agreement, as applicable, in form and substance that would be
satisfactory to a commercially reasonable and prudent mortgage
lender.
Section
3.30 Certain Matters Relating to
the Future Securitization of the [__________] Companion
Loan.
(a) Each of
the Trustee, the Master Servicer and the Special Servicer shall, and the Master
Servicer and the Special Servicer shall use reasonable efforts to cause any
Sub-Servicer appointed by such party with respect to the [______________]
Companion Loan to, upon request or notice from such Mortgage Loan Seller,
cooperate with any Mortgage Loan Seller that is selling the
[______________________] Companion Loan into a securitization that is required
to comply with Regulation AB (a “Regulation AB Companion Loan
Securitization”) and, to the extent necessary in order to comply with
Regulation AB, provide to the Mortgage Loan Seller information about itself that
such Mortgage Loan Seller reasonably requires to meet the requirements of Items
1117 and 1119 and paragraphs (b), (c)(3), (c)(4) and (c)(5) of Item 1108 of
Regulation AB and shall cooperate with such Mortgage Loan Seller to provide such
other information as may be necessary to comply with the requirements of
Regulation AB. Each of the Trustee, the Master Servicer and the
Special Servicer understands that such information provided by the Trustee
(where such information pertains to [______________________] individually and
not to any specific aspect of the Trustee’s duties or obligations under this
Agreement), the Master Servicer (where such information pertains to [__________]
individually and not to any specific aspect of the Master Servicer’s duties or
obligations under this Agreement) and the Special Servicer (where such
information pertains to [__________] individually and not to any specific aspect
of the Special Servicer’s duties or obligations under this Agreement), as
applicable, to such Mortgage Loan Seller as required by this clause (a) may be
included in the offering material related to a Regulation AB Companion Loan
Securitization and agrees to indemnify and hold the related Mortgage Loan Seller
harmless for any costs, liabilities, fees and expenses incurred by the Mortgage
Loan Seller as a result of any material
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misstatements
or omissions in any such offering material to the extent that such material
misstatement or omission was made in reliance upon any such information provided
by such person.
(b) Each of
the Trustee, the Master Servicer and the Special Servicer shall, and the Master
Servicer and the Special Servicer shall use reasonable efforts to cause the any
Sub-Servicer appointed with respect to the [_________________________] Companion
Loan to, upon request or notice from such parties (which request or notice may
be given once at the closing of such Regulation AB Companion Loan Securitization
instead of each time a filing is required), cooperate with the trustee, master
servicer or special servicer for any Regulation AB Companion Loan Securitization
in preparing each Form 10-D required to be filed by such Regulation AB Companion
Loan Securitization (until January 30 of the first year in which the
trustee for such Regulation AB Companion Loan Securitization files a
Form 15 Suspension Notice with respect to the related trust fund) and shall
provide to such trustee or master servicer within the time period set forth in
the pooling and servicing agreement for such Regulation AB Companion Loan
Securitization such information relating to the [__________] Companion Loan as
may be necessary for the servicer and trustee of the Regulation AB Companion
Loan Securitization to comply with the reporting requirements of Regulation AB;
provided, however that any parties to
any Regulation AB Companion Loan Securitization shall consult with the Trustee,
the Master Servicer and the Special Servicer (and the Master Servicer shall
consult with any Sub-Servicer appointed with respect to the [__________]
Companion Loan), and the Trustee, the Master Servicer and the Special Servicer
shall cooperate with such parties in respect of establishing the time periods
for preparation of the Form 10-D reports in the documentation for such
Regulation AB Companion Loan Securitization.
(c) Each of
the Trustee, the Master Servicer and the Special Servicer shall, and the Master
Servicer and the Special Servicer shall use reasonable efforts to cause any
Sub-Servicer appointed with respect to the [______________________] Companion
Loan to, upon request from such trustee (which request or notice may be given
once at the closing of such Regulation AB Companion Loan Securitization instead
of each time a filing is required), provide the trustee under a Regulation AB
Companion Loan Securitization (until January 30 of the first year in which
the trustee for such Regulation AB Companion Loan Securitization files a
Form 15 Suspension Notice with respect to the related trust fund)
information with respect to any event that is required to be disclosed under
Form 8-K with respect to the [__________] Companion Loan within two Business
Days after the occurrence of such event of which it has knowledge.
(d) On or
before March 15 of each year (or March 14 if a leap year) during which a
Regulation AB Companion Loan Securitization is required to file an annual report
on Form 10-K (and not in respect of any year in which such Regulation AB
Companion Loan Securitization is not required to file an annual report on Form
10-K because a Form 15 Suspension Notice with respect to the related trust
fund was filed), each of the Trustee, the Master Servicer and the Special
Servicer shall, and the Master Servicer and the Special Servicer shall use
reasonable efforts to cause any Sub-Servicer appointed with respect to the
[__________] Companion Loan to, upon request from such trustee (which request or
notice may be given once at the closing of such Regulation AB Companion Loan
Securitization instead of each time a filing is required), provide, with respect
to itself, the trustee under such Regulation AB Companion Loan Securitization,
to the extent required pursuant to Item 1122 of Regulation
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AB, (i) a
report on an assessment of compliance with the servicing criteria to the extent
required pursuant to Item 1122(a) of Regulation AB, (ii) a registered accounting
firm’s attestation report on such Person’s assessment of compliance with the
applicable servicing criteria to the extent required pursuant to
Item 1122(b) of Regulation AB and (iii) such other information as may be
required pursuant to Item 1122(c) of Regulation AB.
(e) On or
before March 15 of each year (or March 14 if a leap year) during which a
Regulation AB Companion Loan Securitization is required to file an annual report
on Form 10-K (and not in respect of any year in which such Regulation AB
Companion Loan Securitization is not required to file an annual report on Form
10-K because a Form 15 Suspension Notice with respect to the related trust
fund was filed), each of the Trustee, the Master Servicer and the Special
Servicer shall, and the Master Servicer shall use reasonable efforts to cause
the Primary Servicer, if applicable, and any Sub-Servicer appointed with respect
to the [_________________] Companion Loan to, to the extent required pursuant to
Item 1123 of Regulation AB, deliver, with respect to itself, to the trustee,
upon request from such trustee (which request or notice may be given once at the
closing of such Regulation AB Companion Loan Securitization instead of each time
a filing is required), under such Regulation AB Companion Loan Securitization a
servicer compliance statement signed by an authorized officer of such Person
that satisfies the requirements of Item 1123 of Regulation AB.
(f) Each of
the Trustee, the Master Servicer and the Special Servicer shall use reasonable
efforts to cause a Sub-Servicer to agree, (severally but not jointly) to
indemnify (such indemnity limited to each such parties respective failure
described below) and hold the related Mortgage Loan Seller, depositor, trustee
or master servicer under a Regulation AB Companion Loan Securitization harmless
for any costs, liabilities, fees and expenses incurred by such Mortgage Loan
Seller, depositor, trustee or master servicer as a result of any failure by the
Trustee, the Fiscal Agent, the Master Servicer and the Special Servicer, as
applicable, to comply with the reporting requirements to the extent applicable
set forth under Sections 3.30(b),
(c), (d) or (e)
above.
Each
Subservicing Agreement related to the [__________] Companion Loan shall use
commercially reasonable efforts to contain a provision requiring the related
Sub-Servicer to provide to the Master Servicer or Special Servicer, as
applicable, information, reports and certificates with respect to itself
comparable to any information, reports or certificates required to be provided
by the Master Servicer or Special Servicer pursuant to this Section 3.30,
even if such Sub-Servicer is not otherwise required to provide such information,
reports or certificates to any Person in order to comply with Regulation
AB. Such information, reports or certificates shall be provided to
the Master Servicer or Special Servicer, as applicable, no later than two
Business Days prior to the date on which the Master Servicer or Special
Servicer, as applicable, is required to deliver its comparable information,
reports or certificates pursuant to this Section
3.30.
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ARTICLE
IV
DISTRIBUTIONS
TO CERTIFICATEHOLDERS
Section
4.01 Distributions.
(a) On each
Distribution Date the Paying Agent shall (except as otherwise provided in
Section 9.01), based on information provided by the Master Servicer and the
Special Servicer, apply amounts on deposit in the Distribution Account, after
payment of amounts payable from the Distribution Account in accordance with
Section 3.05(b)(ii) through (vii), deemed distributions from
REMIC I to REMIC II pursuant to Section 4.01(h), for the
following purposes and in the following order of priority, in each case to the
extent of the remaining portion of the Available Distribution
Amount:
(i) concurrently,
(i) from the Loan Group 1 Available Distribution Amount, to distributions
of interest to the Holders of the Class A-1, Class A-2, Class A-3,
Class A-PB, Class A-4 and Class A-5 Certificates, up to an amount equal to,
and pro rata as among
such Classes in accordance with, all Distributable Certificate Interest in
respect of each such Class of Certificates for such Distribution Date and, to
the extent not previously paid, for all prior Distribution Dates, if any,
(ii) from the Loan Group 2 Available Distribution Amount, to distributions
of interest to the Holders of the Class A-1A Certificates, up to an amount equal
to all Distributable Certificate Interest in respect of such Class of
Certificates for such Distribution Date and, to the extent not previously paid,
for all prior Distribution Dates, if any, and (iii) from the Loan Group 1
Available Distribution Amount and/or the Loan Group 2 Available Distribution
Amount, to distributions of interest to the Holders of the Class X-C and Class
X-P Certificates, up to an amount equal to, and pro rata as between such
Classes of Certificates, all Distributable Certificate Interest in respect of
each such Class of Certificates for such Distribution Date and, to the extent
not previously paid, for all prior Distribution Dates, if any; provided, however, that if the Loan
Group 1 Available Distribution Amount and/or the Loan Group 2 Available
Distribution Amount is insufficient to pay in full the total amount of
Distributable Certificate Interest, as provided above, payable in respect of any
Class of Senior Certificates on such Distribution Date, then the entire
Available Distribution Amount shall be applied to make distributions of interest
to the Holders of the respective Classes of the Senior Certificates, up to an
amount equal to, and pro
rata as among such Classes in accordance with, all Distributable
Certificate Interest in respect of each such Class of Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates, if any;
(ii) to
distributions of principal to the Holders of the Class A-PB Certificates, in an
amount equal to the Loan Group 1 Principal Distribution Amount for such
Distribution Date and, after the Class A-1A Certificates have been retired,
the Loan Group 2 Principal Distribution Amount remaining after payments to the
Class A-1A Certificates have been made on such Distribution Date, until the
Certificate Balance of the Class A-PB Certificates is reduced to the Class A-PB
Planned Principal Balance;
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(iii) after the
Class Principal Balance of the Class A-PB Certificates has been reduced to the
Class A-PB Planned Principal Balance, to distributions of principal to the
Holders of the Class A-1 Certificates, in an amount (not to exceed the Class
Principal Balance of the Class A-1 Certificates outstanding immediately prior to
such Distribution Date) equal to the entire Loan Group 1 Principal Distribution
Amount and, after the Class Principal Balance of the Class A-1A Certificates has
been reduced to zero, the entire Loan Group 2 Principal Distribution Amount for
such Distribution Date remaining after making any distributions required
pursuant to clause (vi) below on such Distribution Date, less any portion
thereof distributed in respect of the Class A-PB Certificates on such
Distribution Date;
(iv) after the
Class Principal Balance of the Class A-PB Certificates has been reduced to the
Class A-PB Planned Principal Balance and after the Class Principal Balance of
the Class A-1 Certificates has been reduced to zero, to distributions of
principal to the Holders of the Class A-2 Certificates, in an amount (not to
exceed the Class Principal Balance of the Class A-2 Certificates outstanding
immediately prior to such Distribution Date) equal to the entire Loan Group 1
Principal Distribution Amount and, after the Class Principal Balance of the
Class A-1A Certificates has been reduced to zero, the entire Loan Group 2
Principal Distribution Amount for such Distribution Date remaining after making
any distributions required pursuant to clause (xii) below on such Distribution
Date (in each case, net of any portion thereof distributed on such Distribution
Date to the Holders of the Class A-PB Certificates and the Class A-1
Certificates pursuant to clauses (ii) and (iii) above);
(v) after the
Class Principal Balance of the Class A-PB Certificates has been reduced to the
Class A-PB Planned Principal Balance and after the Class Principal Balances of
each of the Class A-1 and Class A-2 Certificates have been reduced to zero, to
distributions of principal to the Holders of the Class A-3 Certificates, in an
amount (not to exceed the Class Principal Balance of the Class A-3 Certificates
outstanding immediately prior to such Distribution Date) equal to the entire
Loan Group 1 Principal Distribution Amount and, after the Class Principal
Balance of the Class A-1A Certificates has been reduced to zero, the entire Loan
Group 2 Principal Distribution Amount for such Distribution Date remaining after
making any distributions required pursuant to clause (vi) below on such
Distribution Date (in each case, net of any portion thereof distributed on such
Distribution Date to the Holders of the Class A-PB, Class A-1 and Class A-2
Certificates pursuant to clauses (ii), (iii) and
(iv) above);
(vi) after the
Class Principal Balances of the Class A-1, Class A-2 and Class A-3 Certificates
have been reduced to zero, to distributions of principal to the Holders of the
Class A-PB Certificates, in an amount (not to exceed the Class Principal Balance
of the Class A-PB Certificates outstanding immediately prior to such
Distribution Date) equal to the entire Loan Group 1 Principal Distribution
Amount for such Distribution Date remaining after making any distributions
required pursuant to clause (vi) below on such Distribution Date (in each
case, net of any portion thereof distributed on such Distribution Date to the
Holders of the Class A-PB, Class A-1, Class A-2 and Class A-3 Certificates
pursuant to clauses (ii), (iii), (iv) and (v) above);
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(vii) after the
Class Principal Balances of the Class A-1, Class A-2, Class A-3 and Class A-PB
Certificates have been reduced to zero, to distributions of principal to the
Holders of the Class A-4 Certificates in an amount (not to exceed the Class
Principal Balance of the Class A-4 Certificates outstanding immediately prior to
such Distribution Date) equal to the entire Loan Group 1 Principal Distribution
Amount and, after the Class Principal Balance of the Class A-1A Certificates has
been reduced to zero, the entire Loan Group 2 Principal Distribution Amount for
such Distribution Date remaining after making any distributions required
pursuant to clause (vi) below on such Distribution Date (in each case, net
of any portion thereof distributed on such Distribution Date to the Holders of
the Class A-PB, Class A-1, Class A-2 and Class A-3 Certificates pursuant to
clauses (ii), (iii), (iv), (v) and (vi) above);
(viii) after the
Class Principal Balances of the Class A-1, Class A-2, Class A-3, Class A-PB and
Class A-4 Certificates have been reduced to zero, to distributions of principal
to the Holders of the Class A-5 Certificates in an amount (not to exceed the
Class Principal Balance of the Class A-5 Certificates outstanding immediately
prior to such Distribution Date) equal to the entire Loan Group 1 Principal
Distribution Amount and, after the Class Principal Balance of the Class A-1A
Certificates has been reduced to zero, the entire Loan Group 2 Principal
Distribution Amount for such Distribution Date remaining after making any
distributions required pursuant to clause (vi) below on such Distribution Date
(in each case, net of any portion thereof distributed on such Distribution Date
to the Holders of the Class A-PB, Class A-1, Class A-2, Class A-3 and Class A-4
Certificates pursuant to clauses (ii), (iii), (iv), (v), (vi) and (vii)
above);
(ix) to
distributions of principal to the Holders of the Class A-1A Certificates, in an
amount (not to exceed the Class Principal Balance of the Class A-1A Certificates
outstanding immediately prior to such Distribution Date) equal to the entire
Loan Group 2 Principal Distribution Amount and, after the Class Principal
Balances of the Class A-PB, Class A-1, Class A-2, Class A-3, Class A-4 and
Class A-5 Certificates have been reduced to zero, the entire Loan Group 1
Principal Distribution Amount for such Distribution Date remaining after making
any distributions required pursuant to clauses (ii), (iii), (iv), (v), (vi), and
(vii) above on such Distribution Date;
(x) to
distributions to the Holders of the Class A-PB Certificates, the Class A-1
Certificates, the Class A-2 Certificates, the Class A-3 Certificates, the Class
A-4 Certificates, Class A-5 Certificates and the Class A-1A Certificates,
pro rata as among such
Classes of Certificates, in accordance with, in an amount equal to, and in
reimbursement of, all Realized Losses and Additional Trust Fund Expenses, if
any, previously allocated to each such Class of Certificates and not previously
reimbursed;
(xi) to
distributions of interest to the Holders of the Class A-M Certificates, in an
amount equal to all Distributable Certificate Interest in respect of such Class
of Certificates for such Distribution Date (net of any portion thereof
distributed on such Distribution Date to the Holders of any other Class of
Certificates pursuant to any prior clause of this Section 4.01(a));
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(xii) after the
Class Principal Balances of the Class A Certificates have been reduced to zero,
to distributions of principal to the Holders of the Class A-M Certificates,
in an amount (not to exceed the Class Principal Balance of the Class A-M
Certificates outstanding immediately prior to such Distribution Date) equal to
the Principal Distribution Amount for such Distribution Date (net of any portion
thereof distributed on such Distribution Date to the Holders of any other Class
of Certificates pursuant to any prior clause of this Section
4.01(a));
(xiii) to
distributions to the Holders of the Class A–M Certificates, in accordance
with, in an amount equal to, and in reimbursement of, all Realized Losses and
Additional Trust Expenses, if any, previously allocated to the Class A-M
Certificates and not previously reimbursed;
(xiv) to
distributions of interest to the Holders of the Class A-J Certificates in an
amount equal to all Distributable Certificate Interest in respect of such Class
of Certificates for such Distribution Date and, to the extent not previously
paid, for all prior Distribution Dates;
(xv) after the
Class Principal Balances of the Class A Certificates, the Class A-M
Certificates have been reduced to zero, to distributions of principal to the
Holders of the Class A-J Certificates, in an amount (not to exceed the Class
Principal Balance of the Class A-J Certificates outstanding immediately prior to
such Distribution Date) equal to the entire Principal Distribution Amount for
such Distribution Date (net of any portion thereof distributed on such
Distribution Date to the Holders of any other Class of Certificates pursuant to
any prior clause of this Section 4.01(a));
(xvi) to
distributions to the Holders of the Class A-J Certificates, in an amount equal
to, and in reimbursement of, all Realized Losses and Additional Trust Fund
Expenses, if any, previously allocated to the Class A-J Certificates and not
previously reimbursed;
(xvii) to
distributions of interest to the Holders of the Class B Certificates, in an
amount equal to all Distributable Certificate Interest in respect of such Class
of Certificates for such Distribution Date and, to the extent not previously
paid, for all prior Distribution Dates;
(xviii) after the
Class Principal Balance of the Class A-J Certificates has been reduced to
zero, to distributions of principal to the Holders of the Class B
Certificates, in an amount (not to exceed the Class Principal Balance of the
Class B Certificates outstanding immediately prior to such Distribution
Date) equal to the entire Principal Distribution Amount for such Distribution
Date (net of any portion thereof distributed on such Distribution Date to the
Holders of any other Class of Certificates pursuant to any prior clause of this
Section 4.01(a));
(xix) to
distributions to the Holders of the Class B Certificates, in an amount
equal to, and in reimbursement of, all Realized Losses and Additional Trust Fund
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Expenses,
if any, previously allocated to the Class B Certificates and not previously
reimbursed;
(xx) to
distributions of interest to the Holders of the Class C Certificates in an
amount equal to all Distributable Certificate Interest in respect of such Class
of Certificates for such Distribution Date and, to the extent not previously
paid, for all prior Distribution Dates;
(xxi) after the
Class Principal Balance of the Class B Certificates has been reduced to
zero, to distributions of principal to the Holders of the Class C
Certificates, in an amount (not to exceed the Class Principal Balance of the
Class C Certificates outstanding immediately prior to such Distribution
Date) equal to the entire Principal Distribution Amount for such Distribution
Date (net of any portion thereof distributed on such Distribution Date to the
Holders of any other Class of Certificates pursuant to any prior clause of this
Section 4.01(a));
(xxii) to
distributions to the Holders of the Class C Certificates, in an amount
equal to, and in reimbursement of, all Realized Losses and Additional Trust Fund
Expenses, if any, previously allocated to the Class C Certificates and not
previously reimbursed;
(xxiii) to
distributions of interest to the Holders of the Class D Certificates, in an
amount equal to all Distributable Certificate Interest in respect of the
Class D Certificates for such Distribution Date and, to the extent not
previously paid, for all prior Distribution Dates;
(xxiv) after the
Class Principal Balance of the Class C Certificates has been reduced to
zero, to distributions of principal to the Holders of the Class D
Certificates, in an amount (not to exceed the Class Principal Balance of the
Class D Certificates outstanding immediately prior to such Distribution
Date) equal to the entire Principal Distribution Amount for such Distribution
Date (net of any portion thereof distributed on such Distribution Date to the
Holders of any other Class of Certificates pursuant to any prior clause of this
Section 4.01(a));
(xxv) to
distributions to the Holders of the Class D Certificates, in an amount
equal to, and in reimbursement of, all Realized Losses and Additional Trust Fund
Expenses, if any, previously allocated to the Class D Certificates and not
previously reimbursed;
(xxvi) to
distributions of interest to the Holders of the Class E Certificates, in an
amount equal to all Distributable Certificate Interest in respect of the
Class E Certificates for such Distribution Date and, to the extent not
previously paid, for all prior Distribution Dates;
(xxvii) after the
Class Principal Balance of the Class D Certificates has been reduced to
zero, to distributions of principal to the Holders of the Class E
Certificates, in an amount (not to exceed the Class Principal Balance of the
Class E Certificates outstanding immediately prior to such Distribution
Date) equal to the entire Principal
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Distribution
Amount for such Distribution Date (net of any portion thereof distributed on
such Distribution Date to the Holders of any other Class of Certificates
pursuant to any prior clause of this Section 4.01(a));
(xxviii) to
distributions to the Holders of the Class E Certificates, in an amount
equal to, and in reimbursement of, all Realized Losses and Additional Trust Fund
Expenses, if any, previously allocated to the Class E Certificates and not
previously reimbursed;
(xxix) to
distributions of interest to the Holders of the Class F Certificates, in an
amount equal to all Distributable Certificate Interest in respect of the
Class F Certificates for such Distribution Date and, to the extent not
previously paid, for all prior Distribution Dates;
(xxx) after the
Class Principal Balance of the Class E Certificates has been reduced to
zero, to distributions of principal to the Holders of the Class F
Certificates, in an amount (not to exceed the Class Principal Balance of the
Class F Certificates outstanding immediately prior to such Distribution
Date) equal to the entire Principal Distribution Amount for such Distribution
Date (net of any portion thereof distributed on such Distribution Date to the
Holders of any other Class of Certificates pursuant to any prior clause of this
Section 4.01(a));
(xxxi) to
distributions to the Holders of the Class F Certificates, in an amount
equal to, and in reimbursement of, all Realized Losses and Additional Trust Fund
Expenses, if any, previously allocated to the Class F Certificates and not
previously reimbursed;
(xxxii) to
distributions of interest to the Holders of the Class G Certificates, in an
amount equal to all Distributable Certificate Interest in respect of the
Class G Certificates for such Distribution Date and, to the extent not
previously paid, for all prior Distribution Dates;
(xxxiii) after the
Class Principal Balance of the Class F Certificates has been reduced to
zero, to distributions of principal to the Holders of the Class G
Certificates, in an amount (not to exceed the Class Principal Balance of the
Class G Certificates outstanding immediately prior to such Distribution
Date) equal to the entire Principal Distribution Amount for such Distribution
Date (net of any portion thereof distributed on such Distribution Date to the
Holders of any other Class of Certificates pursuant to any prior clause of this
Section 4.01(a));
(xxxiv) to
distributions to the Holders of the Class G Certificates, in an amount
equal to, and in reimbursement of, all Realized Losses and Additional Trust Fund
Expenses, if any, previously allocated to the Class G Certificates and not
previously reimbursed;
(xxxv) to
distributions of interest to the Holders of Class H Certificates, in an
amount equal to all Distributable Certificate Interest in respect of the
Class H Certificates
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for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates;
(xxxvi) after the
Class Principal Balance of the Class G Certificates has been reduced to
zero, to distributions of principal to the Holders of the Class H
Certificates, in an amount (not to exceed the Class Principal Balance of the
Class H Certificates outstanding immediately prior to such Distribution
Date) equal to the entire Principal Distribution Amount for such Distribution
Date (net of any portion thereof distributed on such Distribution Date to the
Holders of any other Class of Certificates pursuant to any prior clause of this
Section 4.01(a));
(xxxvii) to
distributions to the Holders of the Class H Certificates in an amount equal
to, and in reimbursement of, all Realized Losses and Additional Trust Fund
Expenses, if any, previously allocated to the Class H Certificates and not
previously reimbursed;
(xxxviii) to
distributions of interest to the Holders of the Class J Certificates, in an
amount equal to all Distributable Certificate Interest in respect of the
Class J Certificates for such Distribution Date and, to the extent not
previously paid, for all prior Distribution Dates;
(xxxix) after the
Class Principal Balance of the Class H Certificates has been reduced to
zero, to distributions of principal to the Holders of the Class J
Certificates, in an amount (not to exceed the Class Principal Balance of the
Class J Certificates outstanding immediately prior to such Distribution
Date) equal to the entire Principal Distribution Amount for such Distribution
Date (net of any portion thereof distributed on such Distribution Date to the
Holders of any other Class of Certificates pursuant to any prior clause of this
Section 4.01(a));
(xl) to
distributions to the Holders of the Class J Certificates, in an amount
equal to, and in reimbursement of, all Realized Losses and Additional Trust Fund
Expenses, if any, previously allocated to the Class J Certificates and not
previously reimbursed;
(xli) to
distributions of interest to the Holders of the Class K Certificates, in an
amount equal to all Distributable Certificate Interest in respect of the
Class K Certificates for such Distribution Date and, to the extent not
previously paid, for all prior Distribution Dates;
(xlii) after the
Class Principal Balance of the Class J Certificates has been reduced to
zero, to distributions of principal to the Holders of the Class K
Certificates, in an amount (not to exceed the Class Principal Balance of the
Class K Certificates outstanding immediately prior to such Distribution
Date) equal to the entire Principal Distribution Amount for such Distribution
Date (net of any portion thereof distributed on such Distribution Date to the
Holders of any other Class of Certificates pursuant to any prior clause of this
Section 4.01(a));
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(xliii) to
distributions to the Holders of the Class K Certificates, in an amount
equal to, and in reimbursement of, all Realized Losses and Additional Trust Fund
Expenses, if any, previously allocated to the Class K Certificates and not
previously reimbursed;
(xliv) to
distributions of interest to the Holders of the Class L Certificates, in an
amount equal to all Distributable Certificate Interest in respect of the
Class L Certificates for such Distribution Date and, to the extent not
previously paid, for all prior Distribution Dates;
(xlv) after the
Class Principal Balance of the Class K Certificates has been reduced to
zero, to distributions of principal to the Holders of the Class L
Certificates, in an amount (not to exceed the Class Principal Balance of the
Class L Certificates outstanding immediately prior to such Distribution
Date) equal to the entire Principal Distribution Amount for such Distribution
Date (net of any portion thereof distributed on such Distribution Date to the
Holders of any other Class of Certificates pursuant to any prior clause of this
Section 4.01(a));
(xlvi) to
distributions to the Holders of the Class L Certificates, in an amount
equal to, and in reimbursement of, all Realized Losses and Additional Trust Fund
Expenses, if any, previously allocated to the Class L Certificates and not
previously reimbursed;
(xlvii) to
distributions of interest to the Holders of the Class M Certificates, in an
amount equal to all Distributable Certificate Interest in respect of the
Class M Certificates for such Distribution Date and, to the extent not
previously paid, for all prior Distribution Dates;
(xlviii) after the
Class Principal Balance of the Class L Certificates has been reduced to
zero, to distributions of principal to the Holders of the Class M
Certificates, in an amount (not to exceed the Class Principal Balance of the
Class M Certificates outstanding immediately prior to such Distribution
Date) equal to the entire Principal Distribution Amount for such Distribution
Date (net of any portion thereof distributed on such Distribution Date to the
Holders of any other Class of Certificates pursuant to any prior clause of this
Section 4.01(a));
(xlix) to
distributions to the Holders of the Class M Certificates, in an amount
equal to, and in reimbursement of, all Realized Losses and Additional Trust Fund
Expenses, if any, previously allocated to the Class M Certificates and not
previously reimbursed;
(l) to
distributions of interest to the Holders of the Class N Certificates, in an
amount equal to all Distributable Certificate Interest in respect of the
Class N Certificates for such Distribution Date and, to the extent not
previously paid, for all prior Distribution Dates;
(li) after the
Class Principal Balance of the Class M Certificates has been reduced to
zero, to distributions of principal to the Holders of the Class N
Certificates, in
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an amount
(not to exceed the Class Principal Balance of the Class N Certificates
outstanding immediately prior to such Distribution Date) equal to the entire
Principal Distribution Amount for such Distribution Date (net of any portion
thereof distributed on such Distribution Date to the Holders of any other Class
of Certificates pursuant to any prior clause of this
Section 4.01(a));
(lii) to
distributions to the Holders of the Class N Certificates, in an amount
equal to, and in reimbursement of, all Realized Losses and Additional Trust Fund
Expenses, if any, previously allocated to the Class N Certificates and not
previously reimbursed;
(liii) to
distributions of interest to the Holders of the Class O Certificates, in an
amount equal to all Distributable Certificate Interest in respect of the
Class O Certificates for such Distribution Date and, to the extent not
previously paid, for all prior Distribution Dates;
(liv) after the
Class Principal Balance of the Class N Certificates has been reduced to
zero, to distributions of principal to the Holders of the Class O
Certificates, in an amount (not to exceed the Class Principal Balance of the
Class O Certificates outstanding immediately prior to such Distribution
Date) equal to the entire Principal Distribution Amount for such Distribution
Date (net of any portion thereof distributed on such Distribution Date to the
Holders of any other Class of Certificates pursuant to any prior clause of this
Section 4.01(a));
(lv) to
distributions to the Holders of the Class O Certificates, in an amount
equal to, and in reimbursement of, all Realized Losses and Additional Trust Fund
Expenses, if any, previously allocated to the Class O Certificates and not
previously reimbursed;
(lvi) to
distributions of interest to the Holders of the Class P Certificates, in an
amount equal to all Distributable Certificate Interest in respect of the
Class P Certificates for such Distribution Date and, to the extent not
previously paid, for all prior Distribution Dates;
(lvii) after the
Class Principal Balance of the Class O Certificates has been reduced to
zero, to distributions of principal to the Holders of the Class P
Certificates, in an amount (not to exceed the Class Principal Balance of the
Class P Certificates outstanding immediately prior to such Distribution
Date) equal to the entire Principal Distribution Amount for such Distribution
Date (net of any portion thereof distributed on such Distribution Date to the
Holders of any other Class of Certificates pursuant to any prior clause of this
Section 4.01(a));
(lviii) to
distributions to the Holders of the Class P Certificates, in an amount
equal to, and in reimbursement of, all Realized Losses and Additional Trust Fund
Expenses, if any, previously allocated to the Class P Certificates and not
previously reimbursed;
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(lix) to
distributions of interest to the Holders of the Class Q Certificates, in an
amount equal to all Distributable Certificate Interest in respect of the
Class Q Certificates for such Distribution Date and, to the extent not
previously paid, for all prior Distribution Dates;
(lx) after the
Class Principal Balance of the Class P Certificates has been reduced to
zero, to distributions of principal to the Holders of the Class Q
Certificates, in an amount (not to exceed the Class Principal Balance of the
Class Q Certificates outstanding immediately prior to such Distribution
Date) equal to the entire Principal Distribution Amount for such Distribution
Date (net of any portion thereof distributed on such Distribution Date to the
Holders of any other Class of Certificates pursuant to any prior clause of this
Section 4.01(a));
(lxi) to
distributions to the Holders of the Class Q Certificates, in an amount
equal to, and in reimbursement of, all Realized Losses and Additional Trust Fund
Expenses, if any, previously allocated to the Class Q Certificates and not
previously reimbursed;
(lxii) to
distributions of interest to the Holders of the Class S Certificates, in an
amount equal to all Distributable Certificate Interest in respect of the
Class S Certificates for such Distribution Date and, to the extent not
previously paid, for all prior Distribution Dates;
(lxiii) after the
Class Principal Balance of the Class Q Certificates has been reduced to
zero, to distributions of principal to the Holders of the Class S
Certificates, in an amount (not to exceed the Class Principal Balance of the
Class S Certificates outstanding immediately prior to such Distribution
Date) equal to the entire Principal Distribution Amount for such Distribution
Date (net of any portion thereof distributed on such Distribution Date to the
Holders of any other Class of Certificates pursuant to any prior clause of this
Section 4.01(a));
(lxiv) to
distributions to the Holders of the Class S Certificates, in an amount
equal to, and in reimbursement of, all Realized Losses and Additional Trust Fund
Expenses, if any, previously allocated to the Class S Certificates and not
previously reimbursed; and
(lxv) to make
distributions to the Holders of the Class R-II Certificates, in an amount
equal to the excess, if any, of (A) the aggregate distributions deemed made in
respect of the REMIC I Regular Interests on such Distribution Date pursuant
to Section 4.01(h), over (B) the aggregate distributions made in respect of
the Regular Certificates on such Distribution Date pursuant to clauses
(i) through (lxiii) above;
provided that on each
Distribution Date after the aggregate of Class Principal Balances of each Class
of Subordinated Certificates have been reduced to zero, but any two or more of
the Class A-1 Certificates, the Class A-2 Certificates, the
Class A-3 Certificates, the Class A-PB Certificates, the Class A-4
Certificates, the Class A-5 Certificates and the Class A-1A Certificates remain
outstanding, the payments of principal to be made as contemplated by clauses
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(iii) through
(x) above with respect to the Class A Certificates will be made to the
Holders of the respective Classes of such Class A Certificates up to an amount
equal to, and pro rata
as among such Classes in accordance with, the respective then outstanding Class
Principal Balances of such Classes of Certificates and without regard to the
Principal Distribution Amount for such Distribution Date and without regard to
Loan Group. Distributions in reimbursement of Realized Losses and
Additional Trust Fund Expenses previously allocated to a Class of Certificates
shall not constitute distributions of principal and shall not result in
reduction of the related Class Principal Balance.
All
distributions of interest made in respect of the Class X-C and
Class X-P Certificates on any Distribution Date pursuant to clause
(i) above, shall be deemed to have been made in respect of all the
Components of such Class, pro
rata in accordance with the respective amounts of interest that would be
payable on such Components on such Distribution Date based on the Class X-C
Strip Rate and Class X-P Strip Rate, as applicable, of such Component
multiplied by its Component Notional Amount, together with any amounts thereof
remaining unpaid from previous Distribution Dates.
(b) On each
Distribution Date, the Paying Agent shall withdraw from the Distribution Account
any amounts that represent Prepayment Premiums and/or Yield Maintenance Charges
actually collected on the Mortgage Loans and any REO Loans during the related
Collection Period and shall be deemed to distribute such Prepayment Premiums
and/or Yield Maintenance Charges from REMIC I to REMIC II in respect
of REMIC I Regular Interest LA-1-1 (whether or not such Class has
received all distributions of interest and principal to which it is entitled),
and then shall distribute each such Prepayment Premium and/or Yield Maintenance
Charge, as additional yield, as follows:
(i) First, to
the Holders of the respective Classes of Regular Certificates (other than any
Excluded Class thereof) entitled to distributions of principal pursuant to
Section 4.01(a) on such Distribution Date, up to an amount equal to,
and pro rata based on,
the Additional Yield Amounts for each such Class of Certificates for such
Distribution Date; and
(ii) Second,
(A) on or before the Distribution Date in [________], 11% of such Yield
Maintenance Charges and/or Prepayment Premiums to the Holders of the
Class X-P Certificates and 89% of such Yield Maintenance Charges and/or
Prepayment Premiums to the Holders of the Class X-C Certificates and (B) after
the Distribution Date in [________], 100% to the Holders of the Class X-C
Certificates, in each case, to the extent of any remaining portion of such Yield
Maintenance Charges and/or Prepayment Premiums.
On each
Distribution Date, the Paying Agent shall withdraw from the Additional Interest
Account any amounts that represent (A) Additional Interest actually collected
during the related Collection Period on the ARD Loans and any related REO Loans
and shall distribute such amounts among the Holders of the Class Z
Certificates pro rata
in accordance with the respective Percentage Interests of such Class, and (B)
interest and investment income, if any, earned in respect of amounts held in the
Additional Interest Account as provided in Section 3.06,
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but only
to the extent of the Net Investment Earnings with respect to such account for
the related Distribution Date, and shall distribute such amount to the Trustee
as additional compensation.
(c) All
distributions made with respect to each Class on each Distribution Date
shall be allocated pro
rata among the outstanding Certificates in such Class based on their
respective Percentage Interests. Except as otherwise provided below,
all such distributions with respect to each Class on each Distribution Date
shall be made to the Certificateholders of the respective Class of record at the
close of business on the related Record Date and shall be made by wire transfer
of immediately available funds to the account of any such Certificateholder at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Paying Agent with wiring instructions
no less than five Business Days prior to the related Record Date (which wiring
instructions may be in the form of a standing order applicable to all subsequent
Distribution Dates), or otherwise by check mailed to the address of such
Certificateholder as it appears in the Certificate Register. The
final distribution on each Certificate (determined, in the case of a Sequential
Pay Certificate, without regard to any possible future reimbursement of any
Realized Loss or Additional Trust Fund Expense previously allocated to such
Certificate, but taking into account possible future distributions of Additional
Interest) will be made in a like manner, but only upon presentation and
surrender of such Certificate at the offices of the Certificate Registrar or
such other location specified in the notice to Certificateholders of such final
distribution. Prior to any termination of the Trust Fund pursuant to
Section 9.01, any distribution that is to be made with respect to a
Certificate in reimbursement of a Realized Loss or Additional Trust Fund Expense
previously allocated thereto, which reimbursement is to occur after the date on
which such Certificate is surrendered as contemplated by the preceding sentence,
will be made by check mailed to the address of the Certificateholder that
surrendered such Certificate as such address last appeared in the Certificate
Register or to any other address of which the Paying Agent was subsequently
notified in writing. If such check is returned to the Paying Agent,
the Paying Agent, directly or through an agent, shall take such reasonable steps
to contact the related Holder and deliver such check as it shall deem
appropriate. Any funds in respect of a check returned to the Paying
Agent shall be set aside by the Paying Agent and held uninvested in trust and
credited to the account of the appropriate Holder. The costs and
expenses of locating the appropriate Holder and holding such funds shall be paid
out of such funds. No interest shall accrue or be payable to any
former Holder on any amount held in trust hereunder. If the Paying
Agent has not, after having taken such reasonable steps, located the related
Holder by the second anniversary of the initial sending of a check, the Paying
Agent shall, subject to applicable law, distribute the unclaimed funds to the
Holders of the Class R-II Certificates.
(d) Each
distribution with respect to a Book-Entry Certificate shall be paid to the
Depository, as Holder thereof, and the Depository shall be responsible for
crediting the amount of such distribution to the accounts of its Depository
Participants in accordance with its normal procedures. Each
Depository Participant shall be responsible for disbursing such distribution to
the related Certificate Owners that it represents and to each indirect
participating brokerage firm (a “brokerage firm” or
“indirect
participating firm”) for which it acts as agent. Each
brokerage firm shall be responsible for disbursing funds to the related
Certificate Owners that it represents. None of the Trustee, the
Paying Agent, the Certificate Registrar, the Depositor or the Master Servicer
shall have any responsibility therefor except as otherwise provided by this
Agreement or applicable law. The Trustee and the Depositor shall
perform their respective
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obligations
under a Letter of Representations among the Depositor, the Trustee and the
Initial Depository dated as of the Closing Date.
(e) The
rights of the Certificateholders to receive distributions from the proceeds of
the Trust Fund in respect of the Certificates, and all rights and interests of
the Certificateholders in and to such distributions, shall be as set forth in
this Agreement. Neither the Holders of any Class of Certificates nor
any party hereto shall in any way be responsible or liable to the Holders of any
other Class of Certificates in respect of amounts properly previously
distributed on the Certificates.
(f) Except as
otherwise provided in Section 9.01, whenever the Paying Agent receives
written notification of or expects that the final distribution with respect to
any Class of Certificates (determined without regard to any possible future
reimbursement of any Realized Loss or Additional Trust Fund Expense previously
allocated to such Class of Certificates) will be made on the next Distribution
Date, the Paying Agent shall, no later than five days after the related
Determination Date, mail to each Holder of record on such date of such Class of
Certificates a notice to the effect that:
(i) the
Paying Agent expects that the final distribution with respect to such Class of
Certificates will be made on such Distribution Date but only upon presentation
and surrender of such Certificates at the office of the Certificate Registrar or
at such other location therein specified, and
(ii) no
interest shall accrue on such Certificates from and after such Distribution
Date.
Any funds
not distributed to any Holder or Holders of Certificates of such Class on
such Distribution Date because of the failure of such Holder or Holders to
tender their Certificates shall, on such date, be set aside and held uninvested
in trust and credited to the account or accounts of the appropriate
non-tendering Holder or Holders. If any Certificates as to which
notice has been given pursuant to this Section 4.01(f) shall not have
been surrendered for cancellation within six months after the time specified in
such notice, the Paying Agent shall mail a second notice to the remaining
non-tendering Certificateholders to surrender their Certificates for
cancellation in order to receive the final distribution with respect
thereto. If within one year after the second notice all such
Certificates shall not have been surrendered for cancellation, the Paying Agent,
directly or through an agent, shall take such steps to contact the remaining
non-tendering Certificateholders concerning the surrender of their Certificates
as it shall deem appropriate. The costs and expenses of holding such
funds in trust and of contacting such Certificateholders following the first
anniversary of the delivery of such second notice to the non-tendering
Certificateholders shall be paid out of such funds. No interest shall
accrue or be payable to any former Holder on any amount held in trust pursuant
to this paragraph. If all of the Certificates shall not have been
surrendered for cancellation by the second anniversary of the delivery of the
second notice, the Paying Agent shall, subject to applicable law, distribute to
the Holders of the Class R-II Certificates all unclaimed funds and other
assets which remain subject thereto.
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(g) Notwithstanding
any other provision of this Agreement, the Paying Agent shall comply with all
federal withholding requirements respecting payments to Certificateholders of
interest or original issue discount that the Paying Agent reasonably believes
are applicable under the Code. The Certificate Registrar shall
promptly provide the Paying Agent with any IRS Forms W-9, W-8BEN, W-8IMY (and
all appropriate attachments) or W-8ECI upon its receipt thereof. The
consent of Certificateholders shall not be required for such
withholding. If the Paying Agent does withhold any amount from
interest or original issue discount payments or advances thereof to any
Certificateholder pursuant to federal withholding requirements, the Paying Agent
shall indicate the amount withheld to such Certificateholders. Such
amounts shall be deemed to have been distributed to such Certificateholders for
all purposes of this Agreement.
(h) All
distributions made in respect of any Class of Sequential Pay Certificates on
each Distribution Date pursuant to Section 4.01(a) or
Section 9.01 shall be deemed to have first been distributed, with respect
to the Sequential Pay Certificates from REMIC I to REMIC II in respect
of its Corresponding REMIC I Regular Interest set forth in the Preliminary
Statement hereto; provided that interest shall
be deemed to have been distributed pro rata among two or more
Corresponding REMIC I Regular Interests that correspond to a Class of
Sequential Pay Certificates and all distributions made in respect of the Class
X-C and Class X-P Certificates on each Distribution Date pursuant to Section
4.01(a) or Section 9.01, and allocable to any particular Component of such Class
of Certificates in accordance with the last paragraph of Section 4.01(a), shall
be deemed to have been first distributed from REMIC I to REMIC II in respect of
such Component’s Corresponding REMIC I Regular Interest; provided, further, that
distributions of principal:
(1) with
respect to the Class A-1 Certificates, shall be deemed to have first been
distributed from REMIC I to REMIC II in respect of REMIC I Regular Interest
LA-1-1; second, to REMIC I Regular Interest LA-1-2; third, to REMIC I Regular
Interest LA-1-3; and fourth, to REMIC I Regular Interest LA-1-4; in each case
until their respective REMIC I Principal Balances are reduced to
zero;
(2) with
respect to the Class A-2 Certificates, shall be deemed to have first been
distributed from REMIC I to REMIC II in respect of REMIC I Regular Interest
LA-2-1; second, to REMIC I Regular Interest LA-2-2; and third, to REMIC I
Regular Interest LA-2-3; in each case, until their respective REMIC I Principal
Balances are reduced to zero;
(3) with
respect to the Class A-PB Certificates, shall be deemed to have first been
distributed from REMIC I to REMIC II in respect of REMIC I Regular Interest
LA-PB-1; second, to REMIC I Regular Interest LA-PB-2; third, to REMIC I Regular
Interest LA-PB-3; and fourth, to REMIC I Regular Interest LA-PB-4; in each case,
until their respective REMIC I Principal Balances are reduced to
zero;
(4) with
respect to the Class A-4 Certificates, shall be deemed to have first been
distributed from REMIC I to REMIC II in respect of REMIC I Regular Interest
LA-4-1; second, to REMIC I Regular Interest
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LA-4-2;
third, to REMIC I Regular Interest LA-4-3; fourth, to REMIC I Regular Interest
LA-4-4; fifth, to REMIC I Regular Interest LA-4-5; sixth, to REMIC I Regular
Interest LA-4-6; and seventh, to REMIC I Regular Interest LA-4-7; in each case,
until their respective REMIC Principal Balances are reduced to
zero;
(5) with
respect to the Class A-5 Certificates, shall be deemed to have first been
distributed from REMIC I to REMIC II in respect of REMIC I Regular Interest
LA-5-1; second, to REMIC I Regular Interest LA-5-2; and third, to REMIC I
Regular Interest LA-5-3; in each case, until their respective REMIC Principal
Balances are reduced to zero;
(6) with
respect to the Class A-1A Certificates, shall be deemed to have first been
distributed from REMIC I to REMIC II in respect of the REMIC I Regular Interest
LA-1A-1; second, to REMIC I Regular Interest LA-1A-2; third, to REMIC I Regular
Interest LA-1A-3; fourth, to REMIC I Regular Interest LA-1A-4; fifth, to REMIC I
Regular Interest LA-1A-5; sixth, to REMIC I Regular Interest LA-1A-6; seventh,
to REMIC I Regular Interest LA-1A-7; eighth, to REMIC I Regular Interest
LA-1A-8; ninth, to REMIC I Regular Interest LA-1A-9; tenth, to REMIC I Regular
Interest LA-1A-10; eleventh, to REMIC I Regular Interest LA-1A-11; twelfth, to
REMIC I Regular Interest LA-1A-12; thirteenth, to REMIC I Regular Interest
LA-1A-13; fourteenth, to REMIC I Regular Interest LA-1A-14; and fifteenth, to
REMIC I Regular Interest LA-1A-15; in each case, until their respective REMIC I
Principal Balances are reduced to zero;
(7) with
respect to the Class E Certificates, shall be deemed to have first been
distributed from REMIC I to REMIC II in respect of REMIC I Regular Interest
LE-1; and second, to REMIC I Regular Interest LE-2; in each case, until their
respective REMIC I Principal Balances are reduced to zero;
(8) with
respect to the Class F Certificates, shall be deemed to have first been
distributed from REMIC I to REMIC II in respect of REMIC I Regular Interest
LF-1; second, to REMIC I Regular Interest LF-2; and third, to REMIC I Regular
Interest LF-3; in each case, until their respective REMIC I Principal Balances
are reduced to zero;
(9) with
respect to the Class G Certificates, shall be deemed to have first been
distributed from REMIC I to REMIC II in respect of REMIC I Regular Interest
LG-1; and second, to REMIC I Regular Interest LG-2; each case, until their
respective REMIC I Principal Balances are reduced to zero;
(10) with
respect to the Class H Certificates, shall be deemed to have first been
distributed from REMIC I to REMIC II in respect of
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REMIC I
Regular Interest LH-1; second, to REMIC I Regular Interest LH-2; and third, to
REMIC I Regular Interest LH-3; in each case, until their respective REMIC I
Principal Balances are reduced to zero;
(11) with
respect to the Class J Certificates, shall be deemed to have first been
distributed from REMIC I to REMIC II in respect of REMIC I Regular Interest
LJ-1; and second, to REMIC I Regular Interest LJ-2; in each case, until their
respective REMIC I Principal Balances are reduced to zero; and
(12) with
respect to the Class K Certificates, shall be deemed to have first been
distributed from REMIC I to REMIC II in respect of REMIC I Regular Interest
LK-1; second, to REMIC I Regular Interest LK-2; and third, to REMIC I Regular
Interest LK-3; in each case, until their respective REMIC I Principal Balances
are reduced to zero;
provided, however, all distributions
made in respect of the Class X-C and Class X-P Certificates on each Distribution
Date pursuant to Section 4.01(a) or Section 9.01, and allocable to any
particular Component of a Class of Sequential Pay Certificates in accordance
with the last paragraph of Section 4.01(a) shall be deemed to have first been
distributed from REMIC I to REMIC II in respect of such Component’s
Corresponding REMIC I Regular Interest.
(i) All
distributions of reimbursements of Realized Losses and Additional Trust Fund
Expenses made in respect of any Class of Sequential Pay Certificates on each
Distribution Date pursuant to Section 4.01(a) shall be deemed to have first been
distributed from REMIC I to REMIC II in respect of its Corresponding REMIC I
Regular Interest set forth in the Preliminary Statement hereto; provided,
however, that distributions of reimbursements of Realized Losses and Additional
Trust Fund Expenses shall be made in sequential order of the priority set forth
in Section 4.01(h) for principal distributions, up to the amount of Realized
Losses and Additional Trust Fund Expenses previously allocated to a particular
Component of such Class of Certificates. Any amounts remaining in
REMIC I on any Distribution Date after the foregoing distributions shall be
distributed to the Holders of the Class R-I Certificates.
(i) [Reserved]
(j) On each
Distribution Date, or with respect to a Companion Loan then included in a
securitization, on each P&I Advance Date, the Companion Paying Agent (based
upon a statement of the Master Servicer to be delivered to the Companion Paying
Agent that specifies the amount required to be deposited in the Companion
Distribution Account and any amounts payable to the Master Servicer from the
Companion Distribution Account pursuant to this Section 4.01(l)) shall make
withdrawals and payments from the Companion Distribution Account for the related
Companion Loans in the following order of priority:
(i) to pay
the Trustee or any of its directors, officers, employees or agents, as the case
may be, any amounts payable or reimbursable to any such Person pursuant to
Section 8.05, to the extent any such amounts relate solely to a Loan
Pair;
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(ii) to pay
for the cost of the Opinions of Counsel sought by the Trustee as contemplated by
Sections 9.02(a) and 10.01(h), to the extent any such costs relate to
a Loan Pair;
(iii) to pay to
the Master Servicer any amounts deposited by the Master Servicer in the
Companion Distribution Account not required to be deposited
therein;
(iv) on each
Distribution Date, to pay all amounts remaining in the Companion Distribution
Account to the Companion Holder; and
(v) to clear
and terminate the Companion Distribution Account at the termination of this
Agreement pursuant to Section 9.01.
All
distributions from a Companion Distribution Account required hereunder shall be
made by the Companion Paying Agent to the Companion Holder by wire transfer in
immediately available funds to the account of such Companion Holder or an agent
therefor appearing on the Companion Register on the related Record Date (or, if
no such account so appears or information relating thereto is not provided at
least five Business Days prior to the related Record Date, by check sent by
first-class mail to the address of such Companion Holder or its agent appearing
on the Companion Register). Any such account shall be located at a
commercial bank in the United States. For the avoidance of doubt, in no event
shall the Companion Paying Agent withdraw from funds on deposit in the Companion
Distribution Account any amounts allocable to the [_________________________]
Companion Loan (other than Penalty Interest and late payment charges) to be
applied to, or to provide reimbursement for, any costs, expenses, indemnities,
losses or liabilities relating or allocable to any Mortgage Loan.
To the
extent amounts are payable to or in respect of the Trust Fund pursuant to this
Section 4.01(j)(i) or (ii), the Companion Distribution Account shall
be considered an “outside reserve fund”
within the meaning of the REMIC Provisions, beneficially owned by the Companion
Holder for federal income tax purposes, who shall be taxable on all reinvestment
income thereon, and who shall be deemed to have received any amounts reimbursed
from the Trust Fund to the Companion Distribution Account.
(k) On each
Distribution Date, the Paying Agent shall withdraw amounts from the Gain-on-Sale
Reserve Account and shall distribute such amounts to reimburse the Holders of
each Class of Sequential Pay Certificates (in order of priority) up to an amount
equal to all Realized Losses and Additional Trust Fund Expenses, if any,
previously deemed allocated to such Classes and unreimbursed after application
of the Available Distribution Amount for such Distribution
Date. Amounts paid from the Gain-on-Sale Reserve Account pursuant to
the preceding sentence shall first be deemed to have been distributed to the
Corresponding REMIC I Regular Interest(s) in reimbursement of Realized
Losses and Additional Trust Fund Expenses previously allocated thereto as
provided in Section 4.01(i). Amounts paid from the Gain-on-Sale
Reserve Account will not reduce the Certificate Principal Balances of the
Classes of Sequential Pay Certificates receiving such
distributions. Any amounts remaining in the Gain-on-Sale Reserve
Account after such distributions shall be applied to offset future Realized
Losses and Additional Trust Fund Expenses and upon termination of the Trust
Fund, any amounts remaining in the Gain-on-Sale Reserve Account shall be
distributed to the Class R-I Certificateholders.
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Section
4.02 Statements to
Certificateholders; CMSA Loan Periodic Update File.
(a) On each
Distribution Date, the Trustee shall make available on the Trustee’s Internet
Website or, upon written request, forward by mail (or by electronic transmission
acceptable to the recipient) to each Certificateholder, each initial Certificate
Owner and (upon written request made to the Trustee) each subsequent Certificate
Owner (as identified to the reasonable satisfaction of the Trustee), the
Depositor, the Master Servicer, the Special Servicer, the Companion Holders, the
Underwriters and each Rating Agency, a statement (a “Distribution Date
Statement”), as to the distributions made on such Distribution Date,
based on information provided to it by the Master Servicer and the Special
Servicer, setting forth:
(i) the
amount of the distribution on such Distribution Date to the Holders of each
Class of Regular Certificates in reduction of the Class Principal Balance
thereof;
(ii) the
amount of the distribution on such Distribution Date to the Holders of each
Class of Regular Certificates allocable to Distributable Certificate Interest
and the applicable Interest Distribution Amount;
(iii) the
amount of the distribution on such Distribution Date to the Holders of each
Class of Regular Certificates allocable to Prepayment Premiums and/or Yield
Maintenance Charges;
(iv) the
amount of the distribution on such Distribution Date to the Holders of each
Class of Regular Certificates in reimbursement of previously allocated Realized
Losses and Additional Trust Fund Expenses;
(v) the
Available Distribution Amount for such Distribution Date;
(vi) (a) the
aggregate amount of P&I Advances made in respect of such Distribution Date
with respect to the Mortgage Pool and each Loan Group pursuant to
Section 4.03(a), including, without limitation, any amounts applied
pursuant to Section 4.03(a)(ii), and the aggregate amount of xxxxxxxxxxxx
X&X Advances with respect to the Mortgage Pool and each Loan Group that had
been outstanding at the close of business on the related Determination Date and
the aggregate amount of interest accrued and payable to the Master Servicer or
the Trustee in respect of such xxxxxxxxxxxx X&X Advances in accordance with
Section 4.03(d) as of the close of business on the related
Determination Date, (b) the aggregate amount of Servicing Advances with
respect to the Mortgage Pool and each Loan Group as of the close of business on
the related Determination Date and (c) the aggregate amount of all
Nonrecoverable Advances as of the close of business on the related Determination
Date and (d) to the extent available, the foregoing information listed in this
clause (vi) with respect to P&I Advances by the [__________] Master
Servicer on the [__________] Serviced Mortgage Loan;
(vii) the
aggregate unpaid principal balance of the Mortgage Pool and each Loan Group
outstanding as of the close of business on the related Determination
Date;
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(viii) the
aggregate Stated Principal Balance of the Mortgage Pool and each Loan Group
outstanding immediately before and immediately after such Distribution
Date;
(ix) the
number, aggregate unpaid principal balance, weighted average remaining term to
maturity or Anticipated Repayment Date and weighted average Mortgage Rate of the
Mortgage Loans in the Mortgage Pool and each Loan Group as of the close of
business on the related Determination Date;
(x) the
number of Mortgage Loans, the percent of the aggregate Stated Principal Balance
and the aggregated Stated Principal Balance (immediately after such Distribution
Date) (and with respect to each delinquent Mortgage Loan, a brief description of
the reason for delinquency, if known by the Master Servicer or Special Servicer,
as applicable, and provided to the Trustee) of Mortgage Loans in each Mortgaged
Property type (A) delinquent 30-59 days, (B) delinquent 60-89 days, (C)
delinquent more than 89 days, (D) as to which foreclosure proceedings have been
commenced, and (E) to the actual knowledge of the Master Servicer or Special
Servicer in bankruptcy proceedings;
(xi) as to
each Mortgage Loan referred to in the preceding clause (x) above, (A) the
loan number thereof, (B) the Stated Principal Balance thereof immediately
following such Distribution Date, and (C) a brief description of any loan
modification;
(xii) with
respect to any Mortgage Loan as to which a Liquidation Event occurred during the
related Collection Period (other than a payment in full), (A) the loan number
thereof, (B) the aggregate of all Liquidation Proceeds and other amounts
received in connection with such Liquidation Event (separately identifying the
portion thereof allocable to distributions on the Certificates), and (C) the
amount of any Realized Loss in connection with such Liquidation
Event;
(xiii) with
respect to any REO Property included in the Trust Fund as to which a Final
Recovery Determination was made during the related Collection Period, (A) the
loan number of the related Mortgage Loan, (B) the aggregate of all Liquidation
Proceeds and other amounts received in connection with such Final Recovery
Determination (separately identifying the portion thereof allocable to
distributions on the Certificates), and (C) the amount of any Realized Loss in
respect of the related REO Property, in connection with such Final Recovery
Determination;
(xiv) the
Accrued Certificate Interest and Distributable Certificate Interest in respect
of each Class of Regular Certificates for such Distribution Date;
(xv) any
unpaid Distributable Certificate Interest in respect of each Class of Regular
Certificates after giving effect to the distributions made on such Distribution
Date;
(xvi) the
Pass-Through Rate for each Class of Regular Certificates for such Distribution
Date;
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(xvii) the
Principal Distribution Amount;
(xviii) the
Principal Distribution Amount, the Loan Group 1 Principal Distribution Amount
and the Loan Group 2 Principal Distribution Amount for such Distribution Date,
separately identifying the respective components thereof (and, in the case of
any Principal Prepayment or other unscheduled collection of principal received
during the related Collection Period, the loan number for the related Mortgage
Loan and the amount of such prepayment or other collection of
principal);
(xix) the
aggregate of all Realized Losses incurred during the related Collection Period
and all Additional Trust Fund Expenses incurred during the related Collection
Period;
(xx) the
aggregate of all Realized Losses and Additional Trust Fund Expenses that were
allocated to each Class of Certificates on such Distribution Date;
(xxi) the Class
Principal Balance of each Class of Regular Certificates (other than the
Class X Certificates) and the Component Notional Amount of each Component
outstanding immediately before and immediately after such Distribution Date,
separately identifying any reduction therein due to the allocation of Realized
Losses and Additional Trust Fund Expenses on such Distribution
Date;
(xxii) the
Certificate Factor for each Class of Regular Certificates immediately following
such Distribution Date;
(xxiii) the
aggregate amount of interest on P&I Advances paid to the Master Servicer and
the Trustee, with respect to the Mortgage Pool and each Loan Group during the
related Collection Period in accordance with Section 4.03(d);
(xxiv) the
aggregate amount of interest on Servicing Advances paid to the Master Servicer,
the Trustee and the Special Servicer, during the related Collection Period in
accordance with Section 3.03(d) with respect to the Mortgage Pool and
each Loan Group;
(xxv) the
aggregate amount of (i) Servicing Fees paid to the Master Servicer and the
Special Servicer and (ii) Trustee Fees paid to the Trustee during the
related Collection Period;
(xxvi) the loan
number for each Required Appraisal Mortgage Loan and any related Appraisal
Reduction Amount as of the related Determination Date;
(xxvii) the loan
number for each Mortgage Loan which has experienced a material modification,
extension or waiver;
(xxviii) the loan
number for each Mortgage Loan which has experienced a breach of the
representations and warranties given with respect to a Mortgage Loan by the
applicable Mortgage Loan Seller, as provided by the Master Servicer or the
Depositor;
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(xxix) the
original and thereafter, the current credit support levels for each Class of
Regular Certificates;
(xxx) the
original and thereafter, the current ratings for each Class of Regular
Certificates;
(xxxi) the
aggregate amount of Prepayment Premiums and Yield Maintenance Charges with
respect to the Mortgage Pool and each Loan Group collected during the related
Collection Period;
(xxxii) the
amounts, if any, actually distributed with respect to the Class Z
Certificates, Class R-I Certificates or Class R-II Certificates on
such Distribution Date; and
(xxxiii) the value
of any REO Property included in the Trust Fund as of the end of the related
Collection Period, based on the most recent Appraisal or valuation.
In the
case of information to be furnished pursuant to clauses (i) through
(iv) above, the amounts shall be expressed as a dollar amount in the
aggregate for all Certificates of each applicable Class and per Single
Certificate. In the case of information provided to the Trustee as a
basis for information to be furnished pursuant to clauses (x) through
(xiii), and (xxiv) and (xxx) above, insofar as the underlying information is
solely within the control of the Special Servicer, the Trustee and the Master
Servicer may, absent manifest error, conclusively rely on the reports to be
provided by the Special Servicer.
The
Trustee may rely on and shall not be responsible absent manifest error for the
content or accuracy of any information provided by third parties for purposes of
preparing the Distribution Date Statement and may affix thereto any disclaimer
it deems appropriate in its reasonable discretion (without suggesting liability
on the part of any other party hereto).
The
Trustee shall, and the Master Servicer may, but is not required to, make
available on or prior to the Distribution Date in each month to the general
public (i) the Distribution Date Statement via their respective Internet
Websites, (ii) as a convenience for interested parties, the Prospectus
Supplement, the Prospectus and this Agreement on the Trustee’s and/or the Master
Servicer’s respective Internet Websites and (iii) any other items at the
request of the Depositor via the Trustee’s and/or the Master Servicer’s
respective Internet Websites. In addition, the Trustee shall make
available each month, on each Distribution Date, the Unrestricted Servicer
Reports, the CMSA Loan Periodic Update File, the CMSA Loan Setup File, the CMSA
Bond File, and the CMSA Collateral Summary File to the general public on its
Internet Website. The Trustee shall make available each month, on
each Distribution Date, (i) the Restricted Servicer Reports, (ii) the
CMSA Property File and the CMSA Financial File and (iii) the CMSA
Reconciliation of Funds Report to any Privileged Person and to any other Person
upon the direction of the Depositor.
Absent
manifest error, none of the Master Servicer or the Special Servicer 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 Master Servicer or the
Special Servicer, as applicable. The Trustee shall not be
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responsible
absent manifest error for the accuracy or completeness of any information
supplied to it for delivery pursuant to this
Section 4.02(a). Neither the Trustee, the Master Servicer nor
the Special Servicer shall have any obligation to verify the accuracy or
completeness of any information provided by a Mortgagor or third
party.
Within a
reasonable period of time after the end of each calendar year, the Trustee
shall, upon request, 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 clauses
(i), (ii), (iii) and (iv) of the description of “Distribution Date
Statement” 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 and information regarding the
expenses of the Trust Fund. 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.
If any
Certificate Owner does not receive through the Depository or any of its
Depository Participants any of the statements, reports and/or other written
information described above in this Section 4.02(a) that it would
otherwise be entitled to receive if it were the Holder of a Definitive
Certificate evidencing its ownership interest in the related Class of Book Entry
Certificates, then the Trustee shall mail or cause the mailing of or, provide
electronically or cause the provision electronically of, such statements,
reports and/or other written information to such Certificate Owner upon the
request of such Certificate Owner made in writing to the Corporate Trust Office
(accompanied by current verification of such Certificate Owner’s ownership
interest). Such portion of such information as may be agreed upon by
the Depositor and the Trustee shall be furnished to any such Person via
overnight courier delivery or telecopy from the Trustee; provided that the cost of
such overnight courier delivery or telecopy shall be an expense of the party
requesting such information.
The
Trustee shall only be obligated to deliver the statements, reports and
information contemplated by this Section 4.02(a) to the extent it
receives the necessary underlying information from the Special Servicer or
Master Servicer, as applicable, and shall not be liable for any failure to
deliver any thereof on the prescribed due dates, to the extent caused by failure
to receive timely such underlying information. Nothing herein shall
obligate the Trustee or the Master Servicer to violate any applicable law
prohibiting disclosure of information with respect to any Mortgagor and the
failure of the Trustee, Master Servicer or the Special Servicer to disseminate
information for such reason shall not be a breach hereof.
(b) Not later
than 1:00 p.m. New York City time on the second Business Day preceding each
Distribution Date the Master Servicer shall furnish to the Trustee, the
Depositor, the Special Servicer and the Underwriters, by electronic transmission
(or in such other form to which the Trustee or the Depositor, as the case may
be, and the Master Servicer may agree), with a hard copy (other than in the case
of the Trustee) of such transmitted information to follow promptly, an accurate
and complete CMSA Loan Periodic Update File providing the required information
for the Mortgage Loans as of such Determination Date. The Depositor
shall provide the information necessary for the CMSA Loan Setup File on the
Closing Date. Not later than 2:00 p.m. New York City time on the
second Business Day preceding each Distribution Date, the
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Master
Servicer shall deliver to the Trustee notice of the Discount Rate applicable to
each Principal Prepayment received in the related Collection
Period.
In the
performance of its obligations set forth in Section 4.05, and its other
duties hereunder, the Trustee (including in its capacity as Paying Agent) may
conclusively rely on reports provided to it by the Master Servicer, and the
Trustee shall not be responsible to recompute, recalculate or verify the
information provided to it by the Master Servicer. In the case of
information to be furnished by the Master Servicer to the Trustee pursuant to
this Section 4.02(b), insofar as such information is solely within the
control of the Special Servicer, the Master Servicer shall have no obligation to
provide such information until it has received such information from such party,
shall not be in default hereunder due to a delay in providing the CMSA Loan
Periodic Update File caused by the such party’s failure to timely provide any
report required under this Agreement and may, absent manifest error,
conclusively rely on the reports to be provided by the such party.
Section
4.03 P&I
Advances.
(a) On or
before 1:30 p.m., New York City time, on each P&I Advance Date, the Master
Servicer shall (i) apply amounts in the Certificate Account received after
the end of the related Collection Period or otherwise held for future
distribution to Certificateholders in subsequent months in discharge of its
obligation to make P&I Advances or (ii) subject to
Section 4.03(c) below, remit from its own funds to the Paying Agent
for deposit into the Distribution Account, an amount equal to the aggregate
amount of P&I Advances, if any, to be made in respect of the related
Distribution Date. The Master Servicer may also make P&I Advances
in the form of any combination of clauses (i) and (ii) above
aggregating the total amount of P&I Advances to be made. Any
amounts held in the Certificate Account for future distribution and so used to
make P&I Advances shall be appropriately reflected in the Master Servicer’s
records and replaced by the Master Servicer by deposit in the Certificate
Account on or before the next succeeding Determination Date (to the extent not
previously replaced through the deposit of Late Collections of the delinquent
principal and interest in respect of which such P&I Advances were
made). If, as of 3:00 p.m., New York City time, on any P&I
Advance Date, the Master Servicer shall not have made any P&I Advance
required to be made on such date pursuant to this Section 4.03(a) (and
shall not have delivered to the Trustee the requisite Officer’s Certificate and
documentation related to a determination of nonrecoverability of a P&I
Advance), then the Trustee shall provide notice of such failure to a Servicing
Officer of the Master Servicer by facsimile transmission sent to telecopy
[_________] (or such alternative number provided by the Master Servicer to the
Trustee in writing) and by telephone at [_________]
or [_________] (or such alternative number provided by the Master
Servicer to the Trustee in writing) as soon as possible, but in any event before
4:00 p.m., New York City time, on such P&I Advance Date. If
the Trustee does not receive the full amount of such P&I Advances by 10:00
a.m., New York City time, on the related Distribution Date, then, subject to
Section 4.03(c), (i) the Trustee shall, no later than 11:00 a.m., New
York City time, on such related Distribution Date make the portion of such
P&I Advances that was required to be, but was not, made by the Master
Servicer on such P&I Advance Date, and (ii) the provisions of Sections
7.01 and 7.02 shall apply.
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(b) The
aggregate amount of P&I Advances to be made by the Master Servicer or the
Trustee in respect of any Distribution Date shall, subject to
Section 4.03(c) and Section 4.03(e) below, equal the
aggregate of all Periodic Payments (other than Balloon Payments) and any Assumed
Scheduled Payments, net of related Servicing Fees due or deemed due, as the case
may be, in respect of the Mortgage Loans (including, without limitation, Balloon
Mortgage Loans delinquent as to their respective Balloon Payments) and any REO
Loans on their respective Due Dates during (or deemed to be during) the related
Collection Period, to the extent such amount was not paid by or on behalf of the
related Mortgagor or otherwise collected (including as net income from REO
Properties) as of the close of business on the last day of related Collection
Period; provided that,
(x) if the Periodic Payment on any Mortgage Loan has been reduced in
connection with a bankruptcy or similar proceeding involving the related
Mortgagor or a modification, waiver or amendment granted or agreed to by the
Special Servicer pursuant to Section 3.20, or if the final maturity on any
Mortgage Loan shall be extended in connection with a bankruptcy or similar
proceeding involving the related Mortgagor or a modification, waiver or
amendment granted or agreed to by the Special Servicer pursuant to
Section 3.20, and the Periodic Payment due and owing during the extension
period is less than the related Assumed Scheduled Payment, then the Master
Servicer or the Trustee shall, as to such Mortgage Loan only, advance only the
amount of the Periodic Payment due and owing after taking into account such
reduction (net of related Servicing Fees) in the event of subsequent
delinquencies thereon; and (y) if it is determined that an Appraisal Reduction
Amount exists with respect to any Required Appraisal Mortgage Loan, then, with
respect to the Distribution Date immediately following the date of such
determination and with respect to each subsequent Distribution Date for so long
as such Appraisal Reduction Amount exists with respect to such Required
Appraisal Mortgage Loan, the Master Servicer or the Trustee will be required in
the event of subsequent delinquencies to advance in respect of such Mortgage
Loan only an amount equal to the sum of (A) the amount of the interest portion
of the P&I Advance that would otherwise be required without regard to this
clause (y), minus the product of (1) such Appraisal Reduction Amount and (2) the
per annum Pass-Through
Rate (i.e., for any month, one-twelfth of the Pass-Through Rate) applicable to
the Class of Certificates to which such Appraisal Reduction Amount is allocated
pursuant to Section 4.04(d) and (B) the amount of the principal portion of the
P&I Advance that would otherwise be required without regard to this clause
(y).
(c) Notwithstanding
anything herein to the contrary, no P&I Advance shall be required to be made
hereunder if such P&I Advance would, if made, constitute a Nonrecoverable
P&I Advance. The determination by the Master Servicer or the
Special Servicer that the Master Servicer has made a Nonrecoverable P&I
Advance or that any proposed P&I Advance, if made, would constitute a
Nonrecoverable P&I Advance, shall be evidenced by an Officer’s Certificate
delivered to the Trustee and the Depositor on or before the related P&I
Advance Date, setting forth the basis for such determination, together with any
other information, including Appraisals (the cost of which may be paid out of
the Certificate Account pursuant to Section 3.05(a)) (or, if no such
Appraisal has been performed pursuant to this Section 4.03(c), a copy of an
Appraisal of the related Mortgaged Property performed within the twelve months
preceding such determination), related Mortgagor operating statements and
financial statements, budgets and rent rolls of the related Mortgaged
Properties, engineers’ reports, environmental surveys and any similar reports
that the Master Servicer may have obtained consistent with the Servicing
Standard and at the expense of the Trust Fund, that support such determination
by the Master Servicer or the Special Servicer. As soon as reasonably
practical after making such
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determination,
the Special Servicer shall report to the Master Servicer the Special Servicer’s
determination as to whether each P&I Advance made with respect to any
previous Distribution Date or required to be made with respect to such
Distribution Date with respect to any Specially Serviced Mortgage Loan or REO
Loan is a Nonrecoverable P&I Advance. The Master Servicer shall
be entitled to conclusively rely on such determination by the Special
Servicer. The Trustee shall be entitled to rely, conclusively, on any
determination by the Master Servicer or the Special Servicer that a P&I
Advance, if made, would be a Nonrecoverable Advance (and with respect to a
P&I Advance, the Trustee shall rely on the Master Servicer’s determination
that the P&I Advance would be a Nonrecoverable Advance if the Trustee
determines that it does not have sufficient time to make such determination);
provided, however, that, if the Master
Servicer has failed to make a P&I Advance for reasons other than a
determination by the Master Servicer or the Special Servicer that such P&I
Advance would be Nonrecoverable Advance, the Trustee shall make such Advance
within the time periods required by Section 4.03(a) unless the
Trustee, in accordance with the standard of care set forth in Section 8.01(a),
makes a determination prior to the times specified in
Section 4.03(a) that such P&I Advance would be a Nonrecoverable
Advance. The Trustee, in determining whether or not a P&I Advance
previously made is, or a proposed P&I Advance, if made, would be, a
Nonrecoverable Advance shall be subject to the standards set forth in
Section 8.01(a) hereunder, including utilizing its good faith business
judgment to make such determination.
(d) In
connection with the recovery by the Master Servicer or the Trustee of any
P&I Advance out of the Certificate Account pursuant to Section 3.05(a),
subject to the next sentence, the Master Servicer shall be entitled to pay
itself or the Trustee, as the case may be, out of any amounts then on deposit in
the Certificate Account, interest at the Reimbursement Rate in effect from time
to time, compounded annually, accrued on the amount of such P&I Advance (to
the extent made with its own funds) from the date made (provided, however, no such interest
shall accrue during any grace period under a Mortgage Loan) to but not including
the date of reimbursement, such interest to be payable, subject to the terms of
the Intercreditor Agreement with respect to the related Loan Pair, first out of
late payment charges and Penalty Interest received on the related Mortgage Loan
or REO Property during the Collection Period in which such reimbursement is made
and then from general collections on the Mortgage Loans then on deposit in the
Certificate Account. The Master Servicer shall reimburse itself or
the Trustee, as applicable, for any outstanding P&I Advance made thereby as
soon as practicable after funds available for such purpose have been received by
the Master Servicer, and in no event shall interest accrue in accordance with
this Section 4.03(d) on any P&I Advance as to which the
corresponding payment of principal and interest or Late Collection was received
by the Master Servicer on or prior to the related P&I Advance
Date.
(e) In no
event shall the Trustee make a P&I Advance with respect to any Companion
Loan.
(f) Subject
to Section 4.03(b) and Section 4.03(c), the Master Servicer shall make P&I
Advances in respect of the [_______________________] Companion Loan only during
such time the [____________________________] Companion Loan is included in a
securitization or a collateralized debt obligation in which interests therein
are issued or created pursuant to the terms of the [________________]
Intercreditor Agreement. With respect to any P&I Advance made on
the [______________________] Companion Loan, the Master Servicer
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shall be
entitled to recovery of such amounts from the holder thereof. For the
avoidance of doubt, the Trust Fund shall not be liable for any recoveries of
P&I Advances made by the Master Servicer on the [_______________________]
Companion Loan. Notwithstanding anything to the contrary contained
herein, the Trustee shall have no obligation hereunder to, and shall not make
P&I Advances in respect of, the [______________________] Companion
Loan.
Section
4.04 Allocation of Realized
Losses and Additional Trust Fund Expenses; Allocation of Certificate Deferred
Interest; Allocation of Appraisal Reduction Amounts.
(a) On each
Distribution Date, following all distributions to be made on such date pursuant
to Section 4.01, the Paying Agent shall allocate to the respective Classes
of Sequential Pay Certificates the aggregate of all Realized Losses and
Additional Trust Fund Expenses that were incurred at any time following the
Cut-Off Date through the end of the related Collection Period and in any event
that were not previously allocated pursuant to this Section 4.04(a) on
any prior Distribution Date, but only to the extent that (i) the aggregate
Certificate Principal Balance of the Sequential Pay Certificates as of such
Distribution Date (after taking into account all of the distributions made on
such Distribution Date pursuant to Section 4.01), exceeds (ii) the
aggregate Stated Principal Balance of the Mortgage Pool that will be outstanding
immediately following such Distribution Date (for purposes of this calculation
only, not giving effect to any reductions of the Stated Principal Balance for
payments of principal collected on the Mortgage Loans that were used to
reimburse any Nonrecoverable Advances, to the extent a Final Recovery
Determination has not been made with respect thereto, and Workout-Delayed
Reimbursement Amounts pursuant to
Section 3.05(a)(vii) hereof): first, to the Class S
Certificates, until the remaining Class Principal Balance thereof has been
reduced to zero; second, to the Class Q Certificates, until the remaining
Class Principal Balance thereof has been reduced to zero; third, to the
Class P Certificates, until the remaining Class Principal Balance thereof
has been reduced to zero; fourth, to the Class O Certificates, until the
remaining Class Principal Balance thereof has been reduced to zero; fifth, to
the Class N Certificates, until the remaining Class Principal Balance
thereof has been reduced to zero; sixth, to the Class M Certificates, until
the remaining Class Principal Balance thereof has been reduced to zero; seventh,
to the Class L Certificates, until the remaining Class Principal Balance
thereof has been reduced to zero; eighth, to the Class K Certificates,
until the remaining Class Principal Balance thereof has been reduced to zero;
ninth, to the Class J Certificates, until the remaining Class Principal
Balance thereof has been reduced to zero; tenth, to the Class H
Certificates, until the remaining Class Principal Balance thereof has been
reduced to zero; eleventh, to the Class G Certificates, until the remaining
Class Principal Balance thereof has been reduced to zero; twelfth, to the
Class F Certificates, until the remaining Class Principal Balance thereof
has been reduced to zero; thirteenth, to the Class E Certificates, until
the remaining Class Principal Balance thereof has been reduced to zero;
fourteenth, to the Class D Certificates, until the remaining Class
Principal Balance thereof has been reduced to zero; fifteenth to the
Class C Certificates, until the remaining Class Principal Balance thereof
has been reduced to zero; sixteenth to the Class B Certificates, until the
remaining Class Principal Balance thereof has been reduced to zero; seventeenth,
to the Class A-J Certificates, until the remaining Class Principal Balance
thereof has been reduced to zero; eighteenth to the Class A-M Certificates,
until the remaining Class Principal Balance thereof has been reduced to zero;
and nineteenth, pro
rata (based on remaining Class Principal Balances) to the Class A-1
Certificates, the Class A-2
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Certificates,
the Class A-3 Certificates, the Class A-PB Certificates, the Class A-4
Certificates, the Class A-5 Certificates and the Class A-1A Certificates, until
the Class Principal Balances thereof are reduced to zero. Any
allocation of Realized Losses and Additional Trust Fund Expenses to a Class of
Regular Certificates shall be made by reducing the Class Principal Balances
thereof by the amount so allocated. All Realized Losses and
Additional Trust Fund Expenses, if any, allocated to a Class of Regular
Certificates shall be allocated among the respective Certificates of such
Class in proportion to the Percentage Interests evidenced
thereby. All Realized Losses and Additional Trust Fund Expenses, if
any, that have not been allocated to the Regular Certificates as of the
Distribution Date on which the aggregate Certificate Principal Balance of such
Regular Certificates has been reduced to zero, shall be deemed allocated to the
Residual Certificates.
(b) On each
Distribution Date, following the deemed distributions of principal or
reimbursement of previously allocated Realized Losses and Additional Trust Fund
Expenses made in respect of the REMIC I Regular Interests pursuant to
Section 4.01(h), the REMIC I Principal Balance (or aggregate
REMIC I Principal Balance with respect to the REMIC I Regular
Interests corresponding to the Class A-1, Class A-2, Class A-3,
Class A-PB, Class A-4, Class A-5, Class A-1A, Class B, Class C,
Class D, Class E, Class F, Class G, Class H, Class J
and Class K Certificates) of the Corresponding REMIC I Regular Interests
(after taking account of such deemed distributions) shall be reduced as a result
of Realized Losses and Additional Trust Fund Expenses to equal the Class
Principal Balance of the Corresponding Certificates that will be outstanding
immediately following such Distribution Date; provided that Realized Losses
and Additional Trust Fund Expenses shall be allocated:
(i) with
respect to the Class A-1 Certificates, first, in respect of REMIC I
Regular Interest LA-1-1; second, to REMIC I Regular Interest LA-1-2; third,
to REMIC I Regular Interest LA-1-3; and fourth, to REMIC I Regular
Interest LA-1-4; in each case, until their respective REMIC I Principal
Balances are reduced to zero;
(ii) with
respect to the Class A-2 Certificates, first, in respect of REMIC I
Regular Interest LA-2-1; second, to REMIC I Regular Interest LA-2-2; and
third, to REMIC I Regular Interest LA-2-3; in each case, until their
respective REMIC I Principal Balances are reduced to zero;
(iii) with
respect to the Class A-PB Certificates, first, in respect of REMIC I
Regular Interest LA-PB-1; second, to REMIC I Regular Interest LA-PB-2;
third, to REMIC I Regular Interest LA-PB-3; and fourth, to REMIC I Regular
Interest LA-PB-4; in each case, until their respective REMIC I Principal
Balances are reduced to zero;
(iv) with
respect to the Class A-4 Certificates, first, in respect of REMIC I
Regular Interest LA-4-1; second, to REMIC I Regular Interest LA-4-2; third,
to REMIC I Regular Interest LA-4-3; fourth, to REMIC I Regular Interest LA-4-4;
fifth, to REMIC I Regular Interest LA-4-5; sixth, to REMIC I Regular Interest
LA-4-6; and seventh, to REMIC I Regular Interest LA-4-7; in each case, until
their respective REMIC I Principal Balances are reduced to
zero;
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(v) with
respect to the Class A-5 Certificates, first, in respect of REMIC I
Regular Interest LA-5-1; second, to REMIC I Regular Interest LA-5-2; and
third, to REMIC I Regular Interest LA-5-3; in each case, until their respective
REMIC I Principal Balances are reduced to zero;
(vi) with
respect to the Class A-1A Certificates, first, in respect of the REMIC I Regular
Interest LA-1A-1; second, to REMIC I Regular Interest LA-1A-2; third, to REMIC I
Regular Interest LA-1A-3; fourth, to REMIC I Regular Interest LA-1A-4; fifth, to
REMIC I Regular Interest LA-1A-5; sixth, to REMIC I Regular Interest LA-1A-6;
seventh, to REMIC I Regular Interest LA-1A-7; eighth, to REMIC I Regular
Interest LA-1A-8; ninth, to REMIC I Regular Interest LA-1A-9; tenth, to REMIC I
Regular Interest LA-1A-10; eleventh, to REMIC I Regular Interest LA-1A-11;
twelfth, to REMIC I Regular Interest LA-1A-12; thirteenth, to REMIC I Regular
Interest LA-1A-13; fourteenth, to REMIC I Regular Interest LA-1A-14; and
fifteenth, to REMIC I Regular Interest LA-1A-15; in each case, until their
respective REMIC I Principal Balances are reduced to zero;
(vii) with
respect to the Class E Certificates, first, in respect of REMIC I
Regular Interest LE-1; and second, to REMIC I Regular Interest LE-2; in
each case, until their respective REMIC I Principal Balances are reduced to
zero;
(viii) with
respect to the Class F Certificates, first, in respect of REMIC I
Regular Interest LF-1; second, to REMIC I Regular Interest LF-2; and third,
to REMIC I Regular Interest LF-3; in each case, until their respective
REMIC I Principal Balances are reduced to zero;
(ix) with
respect to the Class G Certificates, first, in respect of REMIC I
Regular Interest LG-1; and second, to REMIC I Regular Interest LG-2; in
each case, until their respective REMIC I Principal Balances are reduced to
zero;
(x) with
respect to the Class H Certificates, first, in respect of REMIC I
Regular Interest LH-1; second, to REMIC I Regular Interest LH-2; and third,
to REMIC I Regular Interest LH-3; in each case, until their respective
REMIC I Principal Balances are reduced to zero;
(xi) with
respect to the Class J Certificates, first, in respect of REMIC I Regular
Interest LJ-1; and second, to REMIC I Regular Interest LJ-2; in each case, until
their respective REMIC I Principal Balances are reduced to zero;
and
(xii) with
respect to the Class K Certificates, first, in respect of REMIC I Regular
Interest LK-1; second, to REMIC I Regular Interest LK-2; and third, to REMIC I
Regular Interest LK-3; in each case, until their respective REMIC I Principal
Balances are reduced to zero.
(c) On any
Distribution Date, the amount of any Mortgage Deferred Interest will be
allocated as Certificate Deferred Interest to each outstanding Class of
Sequential Pay Certificates in reverse order of priorities (except with respect
to the Class A-1, Class A-2, Class A-3, Class A-PB, Class A-4,
Class A-5 and Class A-1A Certificates, which amounts shall be
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applied
pro rata (based on
remaining Class Principal Balances) to such Certificates), in each case up to
the respective Accrued Certificate Interest for each such Class of Certificates
for such Distribution Date. On each such Distribution Date, the
Certificate Principal Balance of each Class of Certificates to which Certificate
Deferred Interest has been allocated shall be increased by the amount of
Certificate Deferred Interest allocated to such Class of
Certificates. The amount of Certificate Deferred Interest allocated
to any Class of Sequential Pay Certificates shall be allocated to, and will
increase the REMIC I Principal Balances of the Corresponding REMIC I
Regular Interest(s) in reverse order of priority specified for deemed
distributions of principal in Section 4.01(h); provided, however, that with respect to
the Class A-1, Class A-2, Class A-3, Class A-PB, Class A-4, Class
A-5 and Class A-1A Certificates, allocations to the Corresponding REMIC I
Regular Interests shall be made on a pro rata basis.
(d) Any
Appraisal Reduction Amounts shall be allocated only for purposes of determining
the amount of P&I Advances with respect to the related Mortgage Loan, as
follows: to the Class Principal Balance of the Class S, Class Q,
Class P, Class O, Class N, Class M, Class L,
Class K, Class J, Class H, Class G, Class F,
Class E, Class D, Class C, Class B, Class A-J and
Class A-M Certificates, in that order, up to the amount of their respective
Class Principal Balances, and then to the Class A Certificates on a pro rata basis; provided, however, that with respect to
any Appraisal Reduction Amount relating to a Co-Lender Loan, such Appraisal
Reduction Amount will be applied, first to the Subordinate Companion Loans from
the most junior to the most senior, and with respect to the [__________] Whole
Loan, will be applied pro rata to the [__________] Loan
and the [__________] Companion Loan. On any Distribution Date, an
Appraisal Reduction Amount that otherwise would be allocated to a Class of
Certificates shall be allocated to the next most subordinate Class to the extent
that the Class Principal Balance on such Distribution Date for such Class of
Certificates (prior to taking the Appraisal Reduction Amount into account) is
less than the Appraisal Reduction Amount for the Distribution
Date. The Master Servicer shall report to the Trustee on or before
each Determination Date all Appraisal Reduction Amounts and the Trustee shall
report to the Master Servicer no later than 10:00 a.m. on the related P&I
Advance Date the Pass-Through Rates necessary to calculate the allocation
required by this Section 4.04(d).
Section
4.05 Calculations.
The
Paying Agent shall, provided it receives the necessary information from the
Master Servicer and the Special Servicer, be responsible for performing all
calculations necessary in connection with the actual and deemed distributions
and allocations to be made pursuant to Section 4.01,
Section 5.02(d) and Article IX and the actual and deemed allocations
of Realized Losses and Additional Trust Fund Expenses to be made pursuant to
Section 4.04. The Paying Agent shall calculate the Available
Distribution Amount for each Distribution Date and shall allocate such amount
among Certificateholders in accordance with this Agreement, and the Paying Agent
shall have no obligation to recompute, recalculate or verify any information
provided to it by the Special Servicer or Master Servicer. The
calculations by the Paying Agent of such amounts shall, in the absence of
manifest error, be presumptively deemed to be correct for all purposes
hereunder.
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Section
4.06 Use of
Agents.
The
Master Servicer or the Trustee may at its own expense utilize agents or
attorneys-in-fact in performing any of its obligations under this Article IV
(except the obligation to make P&I Advances), but no such utilization shall
relieve the Master Servicer or the Trustee from any of such obligations or
liabilities, and the Master Servicer or the Trustee, as applicable, shall remain
responsible for all acts and omissions of any such agent or attorney-in-fact
(other than with respect to limited powers-of-attorney delivered by the Trustee
to the Master Servicer or Special Servicer pursuant to
Section 2.03(b) and 3.01(b), as applicable, in which case the Trustee
shall have no such responsibility).
ARTICLE
V
THE CERTIFICATES
THE CERTIFICATES
Section
5.01 The
Certificates.
(a) The
Certificates will be substantially in the respective forms attached hereto as
Exhibit A; provided
that any of the Certificates may be issued with appropriate insertions,
omissions, substitutions and variations, and may have imprinted or otherwise
reproduced thereon such legend or legends, not inconsistent with the provisions
of this Agreement, as may be required to comply with any law or with rules or
regulations pursuant thereto, or with the rules of any securities market in
which the Certificates are admitted to trading, or to conform to general
usage. The Certificates will be issuable in registered form only;
provided, however, that in accordance
with Section 5.03 beneficial ownership interests in the Regular
Certificates shall initially be held and transferred through the book-entry
facilities of the Depository. The Regular Certificates will be
issuable only in denominations corresponding to initial Certificate Principal
Balances or initial Certificate Notional Amounts, as the case may be, as of the
Closing Date of not less than $10,000 in the case of the Registered
Certificates, $1,000,000 in the case of the Class X Certificates, and
$250,000 in the case of Non-Registered Certificates (other than the Residual
Certificates and the Class X Certificates), and in each such case in
integral multiples of $1 in excess thereof. The Class Z
Certificates, Class R-I Certificates and the Class R-II Certificates
shall have no minimum denomination and shall each be represented by a single
definitive certificate.
(b) The
Certificates shall be executed by manual or facsimile signature on behalf of the
Trustee by the Certificate Registrar hereunder by an authorized
signatory. Certificates bearing the manual or facsimile signatures of
individuals who were at any time the authorized signatories of the Certificate
Registrar shall be entitled to all benefits under this Agreement, subject to the
following sentence, notwithstanding that such individuals or any of them have
ceased to hold such offices prior to the authentication and delivery of such
Certificates or did not hold such offices at the date of such
Certificates. No Certificate shall be entitled to any benefit under
this Agreement, or be valid for any purpose, however, unless there appears on
such Certificate a certificate of authentication substantially in the form
provided for herein executed by the Authenticating Agent by manual signature,
and such certificate of authentication upon any Certificate shall be conclusive
evidence, and the only evidence, that
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such
Certificate has been duly authenticated and delivered hereunder. All
Certificates shall be dated the date of their authentication.
Section
5.02 Registration of Transfer and
Exchange of Certificates.
(a) At all
times during the term of this Agreement, there shall be maintained at the office
of the Certificate Registrar a Certificate Register in which, subject to such
reasonable regulations as the Certificate Registrar may prescribe, the
Certificate Registrar (located as of the Closing Date at the Corporate Trust
Office), shall provide for the registration of Certificates and of transfers and
exchanges of Certificates as herein provided. The Trustee is hereby
initially appointed (and hereby agrees to act in accordance with the terms
hereof) as Certificate Registrar for the purpose of registering Certificates and
transfers and exchanges of Certificates as herein provided. The
Certificate Registrar may appoint, by a written instrument delivered to the
Depositor, the Trustee, the Special Servicer and the Master Servicer, any other
bank or trust company to act as Certificate Registrar under such conditions as
the predecessor Certificate Registrar may prescribe; provided that the predecessor
Certificate Registrar shall not be relieved of any of its duties or
responsibilities hereunder by reason of such appointment. If the
Trustee resigns or is removed in accordance with the terms hereof, the successor
trustee shall immediately succeed to its duties as Certificate
Registrar. The Depositor, the Trustee (if it is no longer the
Certificate Registrar), the Master Servicer and the Special Servicer shall have
the right to inspect the Certificate Register or to obtain a copy thereof at all
reasonable times, and to rely conclusively upon a certificate of the Certificate
Registrar as to the information set forth in the Certificate
Register. Upon written request of any Certificateholder made for
purposes of communicating with other Certificateholders with respect to their
rights under this Agreement, the Certificate Registrar shall promptly furnish
such Certificateholder with a list of the other Certificateholders of record
identified in the Certificate Register at the time of the request.
(b) No
transfer of any Non-Registered Certificate shall be made unless that transfer is
made pursuant to an effective registration statement under the Securities Act,
and effective registration or qualification under applicable state securities
laws, or is made in a transaction that does not require such registration or
qualification. If such a transfer is to be made without registration
under the Securities Act (other than in connection with the initial issuance
thereof or the initial transfer thereof by the Depositor, the Underwriters or
their respective Affiliates), then the Certificate Registrar shall refuse to
register such transfer unless it receives (and upon receipt, may conclusively
rely upon) either: (i) a certificate from the Certificateholder
desiring to effect such transfer substantially in the form attached as
Exhibit F-1 hereto, and a certificate from such Certificateholder’s
prospective transferee substantially in the form attached as either Exhibit F-2
hereto or as Exhibit F-3
hereto; or (ii) an Opinion of Counsel reasonably satisfactory to the
Certificate Registrar to the effect that such transfer may be made without
registration under the Securities Act (which Opinion of Counsel shall not be an
expense of the Trust Fund or of the Depositor, the Master Servicer, the Special
Servicer, the Trustee or the Certificate Registrar in their respective
capacities as such), together with the written certification(s) as to the facts
surrounding such transfer from the Certificateholder desiring to effect such
transfer and/or such Certificateholder’s prospective transferee on which such
Opinion of Counsel is based. None of the Depositor, the Trustee or
the Certificate Registrar is obligated to register or qualify any Class of
Non-Registered Certificates under the Securities Act or any other securities law
or to take any action not otherwise required under this Agreement to permit
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the
transfer of any Non-Registered Certificate without registration or
qualification. Any Holder of a Non-Registered Certificate desiring to
effect such a transfer shall, and upon acquisition of such a Certificate shall
be deemed to have agreed to, indemnify the Trustee, the Certificate Registrar
and the Depositor against any liability that may result if the transfer is not
so exempt or is not made in accordance with such federal and state
laws.
Notwithstanding
the foregoing, for so long as any Non-Registered Certificate is a Book-Entry
Certificate, (a) each prospective transferor of such Certificate shall be
deemed to have represented to the Trustee, the Depositor and the transferee of
such Certificate the information set forth on Exhibit F-1 upon or prior to
such transfer and (b) each prospective transferee of such Certificate shall
be deemed to have represented to the Trustee, the Depositor and the transferor
of such Certificate the information set forth on Exhibit F-2 or
Exhibit F-3 upon or prior to such transfer. In addition, if such
prospective transferee is an Institutional Accredited Investor (but not also a
Qualified Institutional Buyer), such prospective transferee shall be deemed to
have acknowledged that any beneficial interest in a Book-Entry Certificate that
is transferred to it is required to be delivered in the form of a Definitive
Certificate and shall cease to be an interest in such Book-Entry Certificate
and, thereafter, shall be subject to all transfer restrictions and other
procedures applicable to Certificates in definitive form.
(c) No
transfer of a Certificate or any interest therein shall be made to any “employee
benefit plan” subject to Title I of ERISA, any “plan” subject to
Section 4975 of the Code or any other retirement plan or other employee
benefit plan or arrangement subject to applicable federal, state or local law
(“Similar Law”)
materially similar to the foregoing provisions of ERISA or the Code, or any
entity deemed to hold plan assets of the foregoing by reason of such a plan’s
investment in such entity (each, a “Plan”) unless (A) in
the case of a Certificate other than a Residual Certificate or a Class Z
Certificate, the transferee is an insurance company general account which is
eligible for, and satisfies all the requirements of, exemptive relief under
Sections I and III of Department of Labor Prohibited Transaction
Class Exemption 95-60 (“PTE 95-60”) or (B) in
the case of a Certificate other than an ERISA Restricted Certificate, a Residual
Certificate or a Class Z Certificate, the transferee (1) qualifies as an
accredited investor as defined in Rule 501(a)(1) of Regulation D under the
Securities Act and (2) satisfies all the requirements of the Exemptions as in
effect at the time of such transfer. Each Person who acquires a
Certificate in Definitive Certificate form shall be required to certify in
writing in the form attached as Exhibit G hereto that it meets the foregoing
conditions and that it will not transfer such Certificate in violation of the
foregoing, and each Person who acquires a Certificate in Book-Entry Certificate
form shall be deemed to have represented that the foregoing conditions are
satisfied and that it will not transfer such Certificate in violation of the
foregoing.
(d) (i) Each
Person who has or who acquires any Ownership Interest in a Residual Certificate
shall be deemed by the acceptance or acquisition of such Ownership Interest to
have agreed to be bound by the following provisions and to have irrevocably
authorized the
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Paying
Agent under clause (ii)(A) below to deliver payments to a Person other than such
Person and to have irrevocably authorized the Certificate Registrar under clause
(ii)(B) below to negotiate the terms of any mandatory disposition and to execute
all instruments of Transfer and to do all other things necessary in connection
with any such sale. The rights of each Person acquiring any Ownership
Interest in a Residual Certificate are expressly subject to the following
provisions:
(A) Each
Person holding or acquiring any Ownership Interest in a Residual Certificate
shall be a Permitted Transferee and shall promptly notify the Master Servicer,
the Paying Agent and the Certificate Registrar of any change or impending change
in its status as a Permitted Transferee.
(B) In
connection with any proposed Transfer of any Ownership Interest in a Residual
Certificate, the Certificate Registrar shall require delivery to it, and shall
not register the Transfer of any Residual Certificate until its receipt of an
affidavit and agreement substantially in the form attached hereto as Exhibit H-1
(a “Transfer Affidavit
and Agreement”), from the proposed Transferee, in form and substance
satisfactory to the Certificate Registrar, and upon which the Certificate
Registrar may, in the absence of actual knowledge by a Responsible Officer of
either the Trustee or the Certificate Registrar to the contrary, conclusively
rely, representing and warranting, among other things, that such Transferee is a
Permitted Transferee; that it is not acquiring its Ownership Interest in the
Residual Certificate that is the subject of the proposed Transfer as a nominee,
trustee or agent for any Person that is not a Permitted Transferee; that for so
long as it retains its Ownership Interest in a Residual Certificate, it will
endeavor to remain a Permitted Transferee; that it has historically paid its
debts as they have come due, intends to pay its debts as they come due in the
future and intends to pay all taxes associated with the Residual Certificate as
they come due; and that it has reviewed the provisions of this
Section 5.02(d) and agrees to be bound by them.
(C) Notwithstanding
the delivery of a Transfer Affidavit and Agreement by a proposed Transferee
under clause (B) above, if a Responsible Officer of the Certificate Registrar
has actual knowledge that the proposed Transferee is not a Permitted Transferee,
no Transfer of an Ownership Interest in a Residual Certificate to such proposed
Transferee shall be effected.
(D) Each
Person holding or acquiring any Ownership Interest in a Residual Certificate
shall agree (a) to require a Transfer Affidavit and Agreement from any
prospective Transferee to whom such Person attempts to transfer its Ownership
Interest in such Residual Certificate and (b) not to transfer its Ownership
Interest in such Residual Certificate unless it provides to the Certificate
Registrar a certificate substantially in the form attached hereto as Exhibit H-2
stating that, among other things, it has no actual knowledge that such
prospective Transferee is not a Permitted Transferee.
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(E) Each
Person holding or acquiring an Ownership Interest in a Residual Certificate, by
purchasing an Ownership Interest in such Certificate, agrees to give the Master
Servicer and the Trustee written notice that it is a “pass-through interest
holder” within the meaning of temporary Treasury regulation
Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership
Interest in a Residual Certificate, if it is, or is holding an Ownership
Interest in a Residual Certificate on behalf of, a “pass-through interest
holder.”
(F) [Each
investor in the Certificates will be deemed, by its investment in such
Certificates, to represent that neither (a) the investor nor (b) any owner of a
five percent or greater interest in the investor is an employer with employees
covered by the [____________] Pension Trust. Any transfer in
violation of this deemed representation will be void ab
initio.]
(ii) (1) If
any purported Transferee shall become a Holder of a Residual Certificate in
violation of the provisions of this Section 5.02(d), then the last
preceding Holder of such Residual Certificate that was in compliance with the
provisions of this Section 5.02(d) shall be restored, to the extent
permitted by law, to all rights as Holder thereof retroactive to the date of
registration of such Transfer of such Residual Certificate. None of
the Trustee, the Master Servicer or the Certificate Registrar shall be under any
liability to any Person for any registration of Transfer of a Residual
Certificate that is in fact not permitted by this Section 5.02(d) or
for making any payments due on such Certificate to the Holder thereof or for
taking any other action with respect to such Holder under the provisions of this
Agreement.
(2) If any
purported Transferee shall become a Holder of a Residual Certificate in
violation of the restrictions in this Section 5.02(d), then, to the extent
that the retroactive restoration of the rights of the preceding Holder of such
Residual Certificate as described in clause (ii)(A) above shall be invalid,
illegal or unenforceable, the Certificate Registrar shall have the right,
without notice to the Holder or any prior Holder of such Residual Certificate,
to cause the transfer of such Residual Certificate to a Permitted Transferee on
such terms as the Certificate Registrar may choose. Such purported
Transferee shall promptly endorse and deliver such Residual Certificate in
accordance with the instructions of the Certificate Registrar. Such
Permitted Transferee may be the Certificate Registrar itself or any Affiliate of
the Certificate Registrar. Any proceeds of such sale, net of the
commissions (which may include commissions payable to the Certificate Registrar
or its Affiliates), expenses and taxes due, if any, will be remitted by the
Paying Agent to such purported Transferee. The terms and conditions
of any sale under this clause (ii)(B) shall be determined in the sole discretion
of the Certificate Registrar, and the Certificate Registrar shall not be liable
to any Person having an Ownership Interest in a Residual Certificate as a result
of its exercise of such discretion.
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(iii) The
Certificate Registrar shall make available to the Internal Revenue Service and
to those Persons specified by the REMIC Provisions any information available to
it which is necessary to compute any tax imposed as a result of the Transfer of
an Ownership Interest in a Residual Certificate to any Person who is a
Disqualified Organization or agent thereof, including the information described
in Treasury Regulations Sections 1.860D-1(b)(5) and 1.860E-2(a)(5) with respect
to the “excess
inclusions” of such Residual Certificate, and the Master Servicer and the
Special Servicer shall furnish to the Certificate Registrar all information in
its possession necessary for the Certificate Registrar to discharge such
obligation. The transferor of such Ownership Interest shall be
responsible for the reasonable compensation of the Certificate Registrar, the
Master Servicer and the Special Servicer for providing such
information.
(iv) The
provisions of this Section 5.02(d) set forth prior to this clause
(iv) may be modified, added to or eliminated; provided that there shall
have been delivered to the Certificate Registrar and the Master Servicer the
following:
(A) written
confirmation from each Rating Agency to the effect that the modification of,
addition to or elimination of such provisions will not cause such Rating Agency
to qualify, downgrade or withdraw its then-current rating of any Class of
Certificates; and
(B) an
Opinion of Counsel, in form and substance satisfactory to the Certificate
Registrar and the Master Servicer, obtained at the expense of the party seeking
such modification of, addition to or elimination of such provisions (but in no
event at the expense of the Trust Fund), to the effect that doing so will not
cause either of REMIC I or REMIC II to (x) cease to qualify as a
REMIC or (y) be subject to an entity-level tax caused by the Transfer of
any Residual Certificate to a Person which is not a Permitted Transferee, or
cause a Person other than the prospective Transferee to be subject to a
REMIC-related tax caused by the Transfer of a Residual Certificate to a Person
that is not a Permitted Transferee.
(e) Subject
to the preceding provisions of this Section 5.02, upon surrender for
registration of transfer of any Certificate at the offices of the Certificate
Registrar maintained for such purpose, the Certificate Registrar shall execute
and the Authenticating Agent shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Certificates of the same
Class of a like aggregate Percentage Interest.
(f) At the
option of any Holder, its Certificates may be exchanged for other Certificates
of authorized denominations of the same Class of a like aggregate Percentage
Interest, upon surrender of the Certificates to be exchanged at the offices of
the Certificate Registrar maintained for such purpose. Whenever any
Certificates are so surrendered for exchange, the Certificate Registrar shall
execute and the Authenticating Agent shall authenticate and deliver the
Certificates which the Certificateholder making the exchange is entitled to
receive.
(g) Every
Certificate presented or surrendered for transfer or exchange shall (if so
required by the Certificate Registrar) be duly endorsed by, or be accompanied by
a written
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instrument
of transfer in the form satisfactory to the Certificate Registrar duly executed
by, the Holder thereof or his attorney duly authorized in writing.
(h) No
service charge shall be imposed for any transfer or exchange of Certificates,
but the Certificate Registrar may require payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in connection with any
transfer or exchange of Certificates.
(i) All
Certificates surrendered for transfer and exchange shall be physically canceled
by the Certificate Registrar, and the Certificate Registrar shall dispose of
such canceled Certificates in accordance with its standard
procedures.
(j) Upon
request, the Certificate Registrar shall provide to the Master Servicer, the
Special Servicer and the Depositor notice of each transfer of a Certificate and
shall provide to each such Person with an updated copy of the Certificate
Register.
(k) Each
Person who has or who acquires any Ownership Interest in a Certificate shall be
deemed by the acceptance or acquisition of such Ownership Interest to have
agreed to be bound by the provisions of any Intercreditor Agreement affecting
such Certificate.
Section
5.03 Book-Entry
Certificates.
(a) Each
Class of Regular Certificates shall initially be issued as one or more
Certificates registered in the name of the Depository or its nominee and, except
as provided in Section 5.03(c) below, transfer of such Certificates
may not be registered by the Certificate Registrar unless such transfer is to a
successor Depository that agrees to hold such Certificates for the respective
Certificate Owners with Ownership Interests therein. Such Certificate
Owners shall hold and transfer their respective Ownership Interests in and to
such Certificates through the book-entry facilities of the Depository and,
except as provided in Section 5.03(c) below, shall not be entitled to
definitive, fully registered Certificates (“Definitive
Certificates”) in respect of such Ownership Interests. All
transfers by Certificate Owners of their respective Ownership Interests in the
Book-Entry Certificates shall be made in accordance with the procedures
established by the Depository Participant or brokerage firm representing each
such Certificate Owner. Each Depository Participant shall only
transfer the Ownership Interests in the Book-Entry Certificates of Certificate
Owners it represents or of brokerage firms for which it acts as agent in
accordance with the Depository’s normal procedures.
(b) The
Trustee, the Master Servicer, the Special Servicer, the Depositor and the
Certificate Registrar may for all purposes, including the making of payments due
on the Book-Entry Certificates, deal with the Depository as the authorized
representative of the Certificate Owners with respect to such Certificates for
the purposes of exercising the rights of Certificateholders
hereunder. The rights of Certificate Owners with respect to the
Book-Entry Certificates shall be limited to those established by law and
agreements between such Certificate Owners and the Depository Participants and
brokerage firms representing such Certificate Owners. Multiple
requests and directions from, and votes of, the Depository as Holder of the
Book-Entry Certificates with respect to any particular matter shall not be
deemed inconsistent if they are made with respect to different Certificate
Owners. The Trustee may establish a
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reasonable
record date in connection with solicitations of consents from or voting by
Certificateholders and shall give notice to the Depository of such record
date.
(c) If (i)(A)
the Depositor advises the Trustee and the Certificate Registrar in writing that
the Depository is no longer willing or able to properly discharge its
responsibilities with respect to a Class of the Book-Entry Certificates, and (B)
the Depositor is unable to locate a qualified successor, or (ii) the
Depositor at its option advises the Trustee and the Certificate Registrar in
writing that it elects to terminate the book-entry system through the Depository
with respect to a Class of Book-Entry Certificates, the Certificate Registrar
shall notify all affected Certificate Owners, through the Depository, of the
occurrence of any such event and of the availability of Definitive Certificates
to such Certificate Owners requesting the same. Upon surrender to the
Certificate Registrar of the Book-Entry Certificates of any Class thereof
by the Depository, accompanied by registration instructions from the Depository
for registration of transfer, the Certificate Registrar shall execute, at the
Depositor’s expense, and the Authenticating Agent shall authenticate and
deliver, the Definitive Certificates in respect of such Class to the Certificate
Owners identified in such instructions. The Depositor shall provide
the Certificate Registrar with an adequate inventory of Definitive
Certificates. None of the Depositor, the Master Servicer, the Special
Servicer, the Trustee or the Certificate Registrar shall be liable for any delay
in delivery of such instructions and may conclusively rely on, and shall be
protected in relying on, such instructions. Upon the issuance of
Definitive Certificates for purposes of evidencing ownership of any Class of
Registered Certificates, the registered holders of such Definitive Certificates
shall be recognized as Certificateholders hereunder and, accordingly, shall be
entitled directly to receive payments on, to exercise Voting Rights with respect
to, and to transfer and exchange such Definitive Certificates.
(d) Notwithstanding
any other provisions contained herein, neither the Trustee nor the Certificate
Registrar shall have any responsibility whatsoever to monitor or restrict the
transfer of ownership interests in any Certificate (including, but not limited
to, any Non-Registered Certificate, any Subordinated Certificate and any
Class Z Certificate) which interests are transferable through the
book-entry facilities of the Depository.
Section
5.04 Mutilated, Destroyed, Lost
or Stolen Certificates.
If
(i) any mutilated Certificate is surrendered to the Certificate Registrar,
or the Certificate Registrar receives evidence to its satisfaction of the
destruction, loss or theft of any Certificate, and (ii) there is delivered
to the Trustee and the Certificate Registrar such security or indemnity as may
be required by them to save each of them harmless, then, in the absence of
actual notice to the Trustee and the Certificate Registrar that such Certificate
has been acquired by a bona fide purchaser, the Certificate Registrar shall
execute and the Authenticating Agent shall authenticate and deliver, in exchange
for or in lieu of any such mutilated, destroyed, lost or stolen Certificate, a
new Certificate of the same Class and like Percentage
Interest. Upon the issuance of any new Certificate under this
Section, the Trustee and the Certificate Registrar may require the payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in relation thereto and any other expenses (including the fees and expenses of
the Trustee and the Certificate Registrar) connected therewith. Any
replacement Certificate issued pursuant to this Section shall constitute
complete and indefeasible evidence of ownership in the
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applicable
REMIC created hereunder, as if originally issued, whether or not the lost,
stolen or destroyed Certificate shall be found at any time.
Section
5.05 Persons Deemed
Owners.
Prior to
due presentment for registration of transfer, the Depositor, the Master
Servicer, the Special Servicer, the Trustee, the Certificate Registrar and any
agent of any of them may treat the Person in whose name any Certificate is
registered as of the related Record Date as the owner of such Certificate for
the purpose of receiving distributions pursuant to Section 4.01 and may
treat the person whose name each Certificate is registered as of the date of
determination as the owner of such Certificate for all other purposes whatsoever
and none of the Depositor, the Master Servicer, the Special Servicer, the
Trustee, the Certificate Registrar or any agent of any of them shall be affected
by notice to the contrary.
ARTICLE
VI
THE DEPOSITOR, THE MASTER SERVICER, THE SPECIAL
SERVICER AND THE CONTROLLING CLASS REPRESENTATIVE
THE DEPOSITOR, THE MASTER SERVICER, THE SPECIAL
SERVICER AND THE CONTROLLING CLASS REPRESENTATIVE
Section
6.01 Liability of Depositor,
Master Servicer and Special Servicer.
The
Depositor, the Master Servicer and the Special Servicer shall be liable in
accordance herewith only to the extent of the respective obligations
specifically imposed upon and undertaken by the Depositor, the Master Servicer
and the Special Servicer herein.
Section
6.02 Merger, Consolidation or
Conversion of Depositor or Master Servicer or Special
Servicer.
Subject
to the following paragraph, the Depositor, the Master Servicer and the Special
Servicer shall each keep in full effect its existence, rights and franchises as
a corporation, or national banking association, as the case may be, under the
laws of the jurisdiction of its incorporation or organization, and each will
obtain and preserve its qualification to do business as a national banking
association or foreign corporation, as the case may be, in each jurisdiction in
which such qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, the Certificates or any of the Mortgage Loans
and to perform its respective duties under this Agreement, and the Master
Servicer shall keep in full effect its existence and rights as a national
banking association under the laws of the United States.
The
Depositor, the Master Servicer or the Special Servicer may be merged or
consolidated with or into any Person (other than the Trustee), or transfer all
or substantially all of its assets (which may be limited to all or substantially
all of its assets related to commercial mortgage loan servicing) to any Person,
in which case any Person resulting from any merger or consolidation to which the
Depositor, the Master Servicer or the Special Servicer shall be a party, or any
Person succeeding to the business (which may be limited to the commercial
mortgage loan servicing business) of the Depositor, the Master Servicer or the
Special Servicer, shall be the successor of the Depositor, the Master Servicer
or the Special Servicer, as the case may be, hereunder, without the execution or
filing of any paper or any further act on the part of
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any of
the parties hereto, anything herein to the contrary notwithstanding; provided, however, that no successor or
surviving Person shall succeed to the rights of the Master Servicer or the
Special Servicer unless (i) as evidenced in writing by the Rating Agencies,
such succession will not result in qualification, downgrading or withdrawal of
the ratings then assigned by the Rating Agencies to any Class of Certificates
and (ii) such successor or surviving Person makes the applicable
representations and warranties set forth in Section 3.23.
Section
6.03 Limitation on Liability of
Depositor, Master Servicer and Special Servicer.
None of
the Depositor, the Master Servicer or the Special Servicer, or any director,
officer, employee or agent of any of them, shall be under any liability to the
Trust Fund, the Trustee or the Certificateholders or the Companion Holders for
any action taken, or not taken, in good faith pursuant to this Agreement, or for
errors in judgment; provided, however, that this provision
shall not protect the Depositor, the Master Servicer or the Special Servicer
against any liability to the Trust Fund, the Trustee, the Certificateholders or
the Companion Holders for the breach of a representation, warranty or covenant
made herein by such party, or against any expense or liability specifically
required to be borne by such party without right of reimbursement pursuant to
the terms hereof, or against any liability which would otherwise be imposed by
reason of misfeasance, bad faith or negligence in the performance of obligations
or duties hereunder or negligent disregard of such obligations and
duties. The Depositor, the Master Servicer, the Special Servicer and
any director, officer, employee or agent of the Depositor, the Master Servicer
or the Special Servicer may rely in good faith on any document of any kind
which, prima facie, is properly executed and submitted by any Person respecting
any matters arising hereunder. The Depositor, the Master Servicer,
the Special Servicer and any director, member, manager, officer, employee or
agent of the Depositor, the Master Servicer or the Special Servicer shall be
indemnified and held harmless by the Trust Fund against any loss, liability or
reasonable expense incurred in connection with this Agreement or the
Certificates (including, without limitation, the distribution or posting of
reports or other information as contemplated by this Agreement), other than any
loss, liability or expense: (i) specifically required to be
borne by such party without right of reimbursement pursuant to the terms hereof
(including without limitation, those expenses set forth in
Section 3.11(b) or Section 3.11(d) and the last sentence of
the definition of Servicing Advances); (ii) incurred in connection with any
breach of a representation, warranty or covenant made herein; or
(iii) incurred by reason of willful misfeasance, bad faith or negligence in
the performance of obligations or duties hereunder. None of the
Depositor, the Master Servicer or the Special Servicer shall be under any
obligation to appear in, prosecute or defend any legal action unless such action
is related to its respective duties under this Agreement and unless it is
specifically required hereunder to bear the costs of such legal action, in its
opinion does not involve it in any ultimate expense or liability; provided, however, that the Depositor,
the Master Servicer or the Special Servicer may in its discretion undertake any
such action which it may deem necessary or desirable with respect to the
enforcement and/or protection of the rights and duties of the parties hereto and
the interests of the Certificateholders hereunder. In such event, the
legal expenses and costs of such action, and any liability resulting therefrom,
shall be expenses, costs and liabilities of the Trust Fund, and the Depositor,
the Master Servicer and the Special Servicer shall be entitled to be reimbursed
therefor from the Certificate Account as provided in
Section 3.05. In no event shall the Master Servicer or the
Special Servicer be liable or responsible for any action taken or omitted to be
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taken by
the other of them or by the Depositor, the Trustee, or any Certificateholder,
subject to the provisions of Section 8.05(b).
Section
6.04 Resignation of Master
Servicer and the Special Servicer.
The
Master Servicer and, subject to Section 6.09, the Special Servicer may
resign from the obligations and duties hereby imposed on it, upon a
determination that its duties hereunder are no longer permissible under
applicable law or are in material conflict by reason of applicable law with any
other activities carried on by it (the other activities of the Master Servicer
or the Special Servicer, as the case may be, so causing such a conflict being of
a type and nature carried on by the Master Servicer or the Special Servicer, as
the case may be, at the date of this Agreement). Any such
determination requiring the resignation of the Master Servicer or the Special
Servicer, as applicable, shall be evidenced by an Opinion of Counsel to such
effect which shall be delivered to the Trustee. Unless applicable law
requires the Master Servicer’s or Special Servicer’s resignation to be effective
immediately, and the Opinion of Counsel delivered pursuant to the prior sentence
so states, no such resignation shall become effective until the Trustee or other
successor shall have assumed the responsibilities and obligations of the
resigning party in accordance with Section 7.02 hereof. The
Master Servicer and the Special Servicer shall have the right to resign at any
other time; provided
that (i) a willing successor thereto has been found by the Master Servicer
or Special Servicer, as applicable, (ii) each of the Rating Agencies
confirms in writing that the successor’s appointment will not result in a
withdrawal, qualification or downgrade of any rating or ratings assigned to any
Class of Certificates, (iii) the resigning party pays all costs and
expenses in connection with such transfer, and (iv) the successor accepts
appointment prior to the effectiveness of such resignation. Neither
the Master Servicer nor the Special Servicer shall be permitted to resign except
as contemplated above in this Section 6.04.
Consistent
with the foregoing, neither the Master Servicer nor the Special Servicer shall,
except as expressly provided herein, assign or transfer any of its rights,
benefits or privileges hereunder to any other Person, or, except as provided in
Sections 3.22 and 4.06, delegate to or subcontract with, or authorize or appoint
any other Person to perform any of the duties, covenants or obligations to be
performed by it hereunder. If, pursuant to any provision hereof, the
duties of the Master Servicer or the Special Servicer are transferred to a
successor thereto, the Master Servicing Fee or the Special Servicing Fee, as the
case may be, that accrues pursuant hereto from and after the date of such
transfer shall be payable to such successor.
Section
6.05 Rights of Depositor and
Trustee in Respect of Master Servicer and the Special
Servicer.
The
Master Servicer and the Special Servicer shall each afford the Depositor, the
Underwriters and the Trustee, upon reasonable notice, during normal business
hours access to all records maintained thereby in respect of its rights and
obligations hereunder and access to officers thereof responsible for such
obligations. Upon reasonable request, the Master Servicer and the
Special Servicer shall each furnish the Depositor, the Underwriters and the
Trustee with its most recent publicly available financial statements and such
other information as it possesses, and which it is not prohibited by applicable
law or contract from disclosing, regarding its business, affairs, property and
condition, financial or otherwise, except to the extent such
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information
constitutes proprietary information or is subject to a privilege under
applicable law. The Depositor may, but is not obligated to, enforce
the obligations of the Master Servicer and the Special Servicer hereunder and
may, but is not obligated to, perform, or cause a designee to perform, any
defaulted obligation of the Master Servicer or Special Servicer hereunder or
exercise the rights of the Master Servicer and the Special Servicer hereunder;
provided, however, that neither the
Master Servicer nor the Special Servicer shall be relieved of any of its
obligations hereunder by virtue of such performance by the Depositor or its
designee; provided,
further, that the Depositor may
not exercise any right pursuant to Section 7.01 to terminate the Master
Servicer or the Special Servicer as a party to this Agreement. The
Depositor shall not have any responsibility or liability for any action or
failure to act by the Master Servicer or the Special Servicer and is not
obligated to supervise the performance of the Master Servicer or the Special
Servicer under this Agreement or otherwise.
Section
6.06 Depositor, Master Servicer
and Special Servicer to Cooperate with Trustee.
The
Depositor, the Master Servicer and the Special Servicer shall each furnish such
reports, certifications and information as are reasonably requested by the
Trustee in order to enable it to perform its duties hereunder.
Section
6.07 Depositor, Special Servicer
and Trustee to Cooperate with Master Servicer.
The
Depositor, the Special Servicer and the Trustee shall each furnish such reports,
certifications and information as are reasonably requested by the Master
Servicer in order to enable it to perform its duties hereunder.
Section
6.08 Depositor, Master Servicer
and Trustee to Cooperate with Special Servicer.
The
Depositor, the Master Servicer and the Trustee shall each furnish such reports,
certifications and information as are reasonably requested by the Special
Servicer in order to enable it to perform its duties hereunder.
Section
6.09 Designation of Special
Servicer by the Controlling Class and Controlling
Holders.
The
Holder or Holders of the Certificates evidencing a majority of the Voting Rights
allocated to the Controlling Class may at any time and from time to time
designate a Person meeting the requirements set forth in Section 6.04
(including, without limitation, Rating Agency confirmation) to serve as Special
Servicer hereunder and to replace any existing Special Servicer or any Special
Servicer that has resigned or otherwise ceased to serve as Special Servicer;
provided that such
Holder or Holders shall pay all costs related to the transfer of servicing if
the Special Servicer is replaced other than due to an Event of
Default. Such Holder or Holders may also select a Controlling Class
Representative that may advise and direct the Special Servicer and whose
approval is required for certain actions, as described herein. Such
Holder or Holders shall so designate a Person to serve as replacement Special
Servicer by the delivery to the Trustee, the Master Servicer and the existing
Special Servicer of a written notice
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stating
such designation. The Trustee shall, promptly after receiving any
such notice, deliver to the Rating Agencies an executed Notice and
Acknowledgment in the form attached hereto as Exhibit I-1. If such
Holders have not replaced the Special Servicer within 30 days of such Special
Servicer’s resignation or the date such Special Servicer has ceased to serve in
such capacity, the Trustee shall designate a successor Special Servicer meeting
the requirements set forth in Section 6.04. Any designated
Person shall become the Special Servicer, subject to satisfaction of the other
conditions set forth below, on the date that the Trustee shall have received
written confirmation from all of the Rating Agencies that the appointment of
such Person will not result in the qualification, downgrading or withdrawal of
the rating or ratings assigned to one or more Classes of the
Certificates. The appointment of such designated Person as Special
Servicer shall also be subject to receipt by the Trustee of (1) an
Acknowledgment of Proposed Special Servicer in the form attached hereto as Exhibit I-2, executed
by the designated Person, and (2) an Opinion of Counsel (at the expense of the
Person designated to become the Special Servicer) to the effect that the
designation of such Person to serve as Special Servicer is in compliance with
this Section 6.09 and all other applicable provisions of this Agreement,
that upon the execution and delivery of the Acknowledgment of Proposed Special
Servicer the designated Person shall be bound by the terms of this Agreement and
that this Agreement shall be enforceable against the designated Person in
accordance with its terms. Any existing Special Servicer shall be
deemed to have resigned simultaneously with such designated Person’s becoming
the Special Servicer hereunder; provided, however, that the resigning
Special Servicer shall continue to be entitled to receive all amounts accrued or
owing to it under this Agreement on or prior to the effective date of such
resignation (including Workout Fees as set forth in Section 3.11(c) of this
Agreement), and it shall continue to be entitled to the benefits of
Section 6.03 notwithstanding any such resignation. Such
resigning Special Servicer shall cooperate with the Trustee and the replacement
Special Servicer in effecting the termination of the resigning Special
Servicer’s responsibilities and rights hereunder, including, without limitation,
the transfer within two Business Days to the replacement Special Servicer for
administration by it of all cash amounts that shall at the time be or should
have been credited by the Special Servicer to the Certificate Account or the REO
Account or delivered to the Master Servicer or that are thereafter received with
respect to Specially Serviced Mortgage Loans and REO Properties.
Section
6.10 Master Servicer or Special
Servicer as Owner of a Certificate.
The
Master Servicer or an Affiliate of the Master Servicer or the Special Servicer
or an Affiliate of the Special Servicer may become the Holder of (or, in the
case of a Book-Entry Certificate, Certificate Owner with respect to) any
Certificate with (except as set forth in the definition of “Certificateholder”)
the same rights it would have if it were not the Master Servicer or the Special
Servicer or an Affiliate thereof. If, at any time during which the
Master Servicer or the Special Servicer or an Affiliate of the Master Servicer
or the Special Servicer is the Holder of (or, in the case of a Book-Entry
Certificate, Certificate Owner with respect to) any Certificate, the Master
Servicer or the Special Servicer proposes to take action (including for this
purpose, omitting to take action) that (i) is not expressly prohibited by
the terms hereof and would not, in the Master Servicer’s or the Special
Servicer’s good faith judgment, violate the Servicing Standard, and (ii) if
taken, might nonetheless, in the Master Servicer’s or the Special Servicer’s
reasonable, good faith judgment, be considered by other Persons to violate the
Servicing Standard, then the Master Servicer or the Special Servicer may (but
need not) seek the approval
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of the
Certificateholders to such action by delivering to the Trustee a written notice
that (a) states that it is delivered pursuant to this Section 6.10,
(b) identifies the Percentage Interest in each Class of Certificates
beneficially owned by the Master Servicer or the Special Servicer or an
Affiliate of the Master Servicer or the Special Servicer, and (c) describes
in reasonable detail the action that the Master Servicer or the Special Servicer
proposes to take. The Trustee, upon receipt of such notice, shall
forward it to the Certificateholders (other than the Master Servicer and its
Affiliates or the Special Servicer and its Affiliates, as appropriate), together
with such instructions for response as the Trustee shall reasonably
determine. If at any time Certificateholders holding greater than 50%
of the Voting Rights of all Certificateholders (calculated without regard to the
Certificates beneficially owned by the Master Servicer or its Affiliates or the
Special Servicer or its Affiliates) shall have failed to object in writing to
the proposal described in the written notice, and if the Master Servicer or the
Special Servicer shall act as proposed in the written notice within thirty (30)
days, such action shall be deemed to comply with, but not modify, the Servicing
Standard. The Trustee shall be entitled to reimbursement from the
Master Servicer or the Special Servicer, as applicable, for the reasonable
expenses of the Trustee incurred pursuant to this paragraph. It is
not the intent of the foregoing provision that the Master Servicer or the
Special Servicer be permitted to invoke the procedure set forth herein with
respect to routine servicing matters arising hereunder, but rather in the case
of unusual circumstances.
Section
6.11 The Controlling Class
Representative.
(a) Subject
to Sections 6.11(c) in the case of the [__________] Loan and Section 6.11(d),
the Controlling Class Representative will be entitled to advise the Special
Servicer with respect to the following actions of the Special Servicer, and
notwithstanding anything herein to the contrary except as necessary or advisable
to avoid an Adverse REMIC Event or the violation of the Servicing Standard
and except as set forth in, and in any event subject to, the second paragraph of
this Section 6.11(a), the Special Servicer will not be permitted to take
any of the following actions as to which the Controlling Class Representative
has objected in writing within ten Business Days of being notified thereof,
which notification with respect to the action described in clause
(vi) below shall be copied by the Special Servicer to the Master Servicer
(provided that, if such
written objection has not been received by the Special Servicer within such ten
Business Day period, then the Controlling Class Representative’s approval will
be deemed to have been given):
(i) any
actual or proposed foreclosure upon or comparable conversion (which may include
acquisitions of an REO Property) of the ownership of properties securing such of
the Specially Serviced Mortgage Loans as come into and continue in
default;
(ii) any
modification of a Money Term of a Mortgage Loan (other than a modification
consisting of the extension of the maturity date of a Mortgage Loan for one year
or less) or a material non-monetary term;
(iii) any
actual or proposed sale of an REO Property (other than in connection with the
termination of the Trust Fund or pursuant to Section 3.18);
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(iv) any
determination to bring an REO Property into compliance with applicable
environmental laws or to otherwise address Hazardous Materials located at an REO
Property;
(v) any
acceptance of substitute or additional collateral or release of material
collateral for a Mortgage Loan unless required by the underlying loan
documents;
(vi) any
waiver of a “due-on-sale” clause or “due-on-encumbrance” clause;
(vii) any
release of any performance or “earn-out” reserves, escrows or letters of
credit;
(viii) any
acceptance of an assumption agreement releasing a borrower from liability under
a Mortgage Loan (other than in connection with a defeasance permitted under the
terms of the applicable Mortgage Loan documents);
(ix) any
termination of the related property manager for Mortgage Loans having an
outstanding principal balance of greater than $5,000,000;
(x) any
termination of, or modification of, any applicable franchise agreement related
to any Mortgage Loan secured by a hotel;
(xi) any
determination to allow a borrower not to maintain terrorism insurance;
and
(xii) any
determination to decrease the time period referenced in clause (g) of the
definition of Specially Serviced Mortgage Loan.
In
addition, the Controlling Class Representative may direct the Special Servicer
to take, or to refrain from taking, such other actions as the Controlling Class
Representative may deem advisable or as to which provision is otherwise made in
this Agreement; provided that,
notwithstanding anything herein to the contrary or anything in this Agreement
which permits the Controlling Class Representative or a Companion Holder the
right to consent to or object to actions taken by the Special Servicer, no such
advice or direction, and no objection contemplated by the preceding paragraph
may require or cause the Special Servicer to violate any applicable law, any
provision of this Agreement or the REMIC Provisions (and the Special Servicer
shall disregard any such direction or objection), including without limitation
the Special Servicer’s obligation to act in accordance with the Servicing
Standard, or expose the Master Servicer, the Special Servicer, the Trust Fund or
the Trustee or their respective Affiliates, officers, directors, employees or
agents to any claim, suit or liability, or materially expand the scope of the
Special Servicer or the Special Servicer’s responsibilities hereunder or cause
the Special Servicer to act, or fail to act, in a manner which in the reasonable
judgment of the Special Servicer is not in the best interests of the
Certificateholders. For the avoidance of doubt, the Master Servicer
and/or the Special Servicer will disregard any direction or objection of any
party (including without limitation of the Controlling Class Representative or a
Companion Holder) if such direction and or objection causes the Master Servicer
or the Special Servicer to violate the Servicing Standard, any applicable law,
any provision of this Agreement or the REMIC Provisions or expose the Master
Servicer, the Special Servicer, the Trust Fund, the Paying Agent or the Trustee
or their
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respective
Affiliates, officers, directors employees or agents to any claim, suit or
liability, or materially expand the scope of the Master Servicer’s or Special
Servicer’s responsibility hereunder or cause the Master Servicer or the Special
Servicer to act, or fail to act, in a manner which in the reasonable judgment of
the Master Servicer or the Special Servicer is not in the best interest of the
Certificateholders, or the holders of the Companion Loan and consistent with the
Servicing Standard.
(b) The
Controlling Class Representative, the Controlling Class and the Holder of
any Companion Loan will have no liability to the Certificateholders for any
action taken, or for refraining from the taking of any action, or for errors in
judgment; provided,
however, that the
Controlling Class Representative, the Controlling Class and the Holder of any
Companion Loan will not be protected against any liability to a Controlling
Class Certificateholder which would otherwise be imposed by reason of
willful misfeasance, bad faith or negligence in the performance of duties or by
reason of reckless disregard of obligations or duties. By its
acceptance of a Certificate, each Certificateholder confirms its understanding
that the Controlling Class, the Controlling Class Representatives or any Holder
of a Companion Loan may take actions that favor the interests of one or more
Classes of the Certificates over other Classes of the Certificates, and that the
Controlling Class, the Controlling Class Representative and the Holder of any
Companion Loan may have special relationships and interests that conflict with
those of Holders of some Classes of the Certificates, that the Controlling
Class, the Controlling Class Representatives or any Holder of a Companion Loan
may act solely in the interests of the Holders of the Controlling Class or any
Companion Holder, as the case may be, and that the Controlling Class
Representatives do not have any duties or liability to the Holders of any Class
of Certificates other than the Controlling Class or any Companion Holder and
shall have no liability whatsoever for having so acted, and no Certificateholder
may take any action whatsoever against the Controlling Class Representatives or
any Holder of any Companion Loan or any director, officer, employee, agent or
principal thereof for having so acted.
(c) Notwithstanding
anything to the contrary in this Section 6.11 or anything contained in this
Agreement, with respect to the [__________] Loan, the Controlling Class
Representative and the [__________] Controlling Class Representative shall be
entitled to take all actions under this Agreement with respect to the
[__________] Loan that would otherwise be exercisable by the Controlling Class,
Controlling Class Representative or the Majority Subordinate Certificateholder,
pursuant to the procedures set forth in the [__________] Intercreditor Agreement
and the [__________] Pooling and Servicing Agreement.
(d) Notwithstanding
anything in this Section 6.11, nothing herein is intended to limit the
right of the Controlling Class Representative to consult on a non-binding basis
with the Special Servicer with respect to any Mortgage Loan.
(e) [Reserved].
(f) Notwithstanding
anything to the contrary in this Section 6.11 or anything contained in this
Agreement, with respect to the [__________] Loan Pair and the [__________] Loan
Pair, where the holder of the related Companion Loan is acting as the
“Controlling Holder” as defined under the related Intercreditor Agreement, the
related Controlling Holder shall be entitled to exercise the rights set forth in
the related Intercreditor Agreement, subject to any
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conditions,
restrictions or other provisions described in or incorporated by reference into
such sections and the Master Servicer or Special Servicer, as applicable, will
comply with the provisions therein contained in connection with taking or
refraining from taking the actions described therein.
(g) Notwithstanding
any provision in this Agreement to the contrary, with respect to the
[__________] Loan Pair and the [__________] Loan Pair, where the holder of the
related Companion Loan is acting as the “Note B Holder” as defined under the
related Intercreditor Agreement, the related Note B Holder shall be entitled to
exercise the rights set forth in the related Intercreditor
Agreement.
(h) Notwithstanding
anything to the contrary in this Section 6.11 or anything contained in this
Agreement, with respect to the [________________] Loan, the holder of the
related Companion Loan will have the right to replace the Special Servicer with
respect to the [_______________] Whole Loan in accordance with the terms of the
[_______________] Intercreditor Agreement. In addition, the holders
of the [___________________________] Companion Loan have the right to consent to
any replacement of the Special Servicer with respect to the [__________] Whole
Loan, in accordance with the terms of the [__________] Intercreditor
Agreement.
(i) Notwithstanding
anything to the contrary in this Section 6.11, with respect to the [__________]
Loan, the related holders of the [__________] Loan and the [__________]
Companion Loan shall share in the rights and responsibilities of the Controlling
Class Representative as set forth in Section 2(i) of the [__________]
Intercreditor Agreement.
ARTICLE
VII
DEFAULT
DEFAULT
Section
7.01 Events of
Default.
(a) “Event of Default,”
wherever used herein, means any one of the following events:
(i) any
failure by the Master Servicer to deposit into the Certificate Account, which
failure, in the case of deposits and remittance to the Certificate Account,
continues unremedied one Business Day after the date upon which such deposit was
required to have been made hereunder, or to deposit into, or remit to the Paying
Agent for deposit into the Distribution Account, any amount (other than a
P&I Advance) required to be so deposited or remitted by it under this
Agreement, which failure, in the case of deposits and remittances to the
Distribution Account, continues unremedied until 10:00 a.m., New York City time
on the related Distribution Date; provided, however, that to the extent
the Master Servicer does not timely make such remittances, the Master Servicer
shall pay the Trustee for the account of the Trustee interest on any amount not
timely remitted at the Prime Rate from and including the applicable required
remittance date to but not including the date such remittance is actually made;
or
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(ii) any
failure by the Special Servicer to timely deposit into the REO Account or to
timely deposit into, or to timely remit to the Master Servicer for deposit into,
the Certificate Account, any amount required to be so deposited or remitted
under this Agreement; or
(iii) any
failure by the Master Servicer to timely make any Servicing Advance required to
be made by it hereunder, which Servicing Advance remains unmade for a period of
five Business Days following the date on which notice shall have been given to
the Master Servicer, as the case may be, by the Trustee as provided in
Section 3.03(c); or
(iv) any
failure on the part of the Master Servicer or the Special Servicer duly to
observe or perform in any material respect any other of the covenants or
agreements on the part of the Master Servicer or the Special Servicer, as the
case may be, contained in this Agreement which continues unremedied for a period
of 30 days (5 days in the case of the Master Servicer’s or Special Servicer’s,
as applicable, obligations contemplated by Sections 3.13, 3.14 and 4.02(e)
hereof (with respect to any year that a report on Form 10 K is required to be
filed) after the date on which written notice of such failure, requiring the
same to be remedied, shall have been given to the Master Servicer or the Special
Servicer, as the case may be, by any other party hereto or the Master Servicer
or the Special Servicer, as the case may be (with a copy to each other party
hereto), by the Holders of Certificates entitled to at least 25% of the Voting
Rights; provided, however, that with respect to
any such failure which is not curable within such 30-day period, the Master
Servicer or the Special Servicer, as the case may be, shall have an additional
cure period of thirty (30) days to effect such cure so long as the Master
Servicer or the Special Servicer, as the case may be, has commenced to cure such
failure within the initial 30-day period and has provided the Trustee with an
Officer’s Certificate certifying that it has diligently pursued, and is
continuing to pursue, a full cure; or
(v) any
breach on the part of the Master Servicer or the Special Servicer of any
representation or warranty contained in this Agreement that materially and
adversely affects the interests of any Class of Certificateholders and which
continues unremedied for a period of 30 days after the date on which notice of
such breach, requiring the same to be remedied, shall have been given to the
Master Servicer or the Special Servicer, as the case may be, by any other party
hereto or the Master Servicer or the Special Servicer, as the case may be (with
a copy to each other party hereto), by the Holders of Certificates entitled to
at least 25% of the Voting Rights; provided, however, with respect to any
failure which is not curable within such 30-day period, the Master Servicer or
the Special Servicer, as the case may be, shall have an additional cure period
of thirty (30) days so long as the Master Servicer or the Special Servicer, as
the case may be, has commenced to cure within the initial 30-day period and
provided the Trustee with an Officer’s Certificate certifying that it has
diligently pursued, and is continuing to pursue, a full cure; or
(vi) a decree
or order of a court or agency or supervisory authority having jurisdiction in
the premises in an involuntary case under any present or future federal or state
bankruptcy, insolvency or similar law for the appointment of a conservator,
receiver, liquidator, trustee or similar official in any bankruptcy, insolvency,
readjustment
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of debt,
marshaling of assets and liabilities or similar proceedings, or for the
winding-up or liquidation of its affairs, shall have been entered against the
Master Servicer or the Special Servicer and such decree or order shall have
remained in force undischarged or unstayed for a period of sixty (60) days;
or
(vii) the
Master Servicer or the Special Servicer shall consent to the appointment of a
conservator, receiver, liquidator, trustee or similar official in any
bankruptcy, insolvency, readjustment of debt, marshaling of assets and
liabilities or similar proceedings of or relating to it or of or relating to all
or substantially all of its property; or
(viii) the
Master Servicer or the Special Servicer shall admit in writing its inability to
pay its debts generally as they become due, file a petition to take advantage of
any applicable bankruptcy, insolvency or reorganization statute, make an
assignment for the benefit of its creditors, voluntarily suspend payment of its
obligations, or take any corporate action in furtherance of the foregoing;
or
(ix) the
consolidated net worth of the Master Servicer and of its direct or indirect
parent, determined in accordance with generally accepted accounting principles,
shall decline to less than $15,000,000; or
(x) the
Master Servicer or the Special Servicer receives actual knowledge that Xxxxx’x
has (i) qualified, downgraded or withdrawn its rating or ratings of, one or
more Classes of Certificates, or (ii) placed one or more Classes of
Certificates on “watch status” in contemplation of rating downgrade or
withdrawal (and such “watch status” placement shall not have been withdrawn by
Xxxxx’x within 60 days of the date that the Master Servicer or the Special
Servicer obtained such actual knowledge) and, in the case of either of clauses
(i) or (ii), citing servicing concerns with the Master Servicer or the
Special Servicer, as applicable, as the sole or material factor in such rating
action; or
(xi) [Reserved];
or
(xii) the
Master Servicer or the Special Servicer, as the case may be, is no longer listed
on S&P’s Select Servicer List as a U.S. Commercial Mortgage Master Servicer
or a U.S. Commercial Mortgage Special Servicer, as the case may be, and such
removal continues for a period of 60 days; or
(xiii) the
Master Servicer shall fail to remit to the Paying Agent for deposit into the
Distribution Account, on any P&I Advance Date, the full amount of P&I
Advances required to be made on such date, which failure continues unremedied
until 10:00 a.m. New York City time on the next Business Day succeeding such
P&I Advance Date; provided, however, that to the extent
the Master Servicer does not timely make such remittances, the Master Servicer
shall pay the Trustee for the account of the Trustee, interest on any amount not
timely remitted at the Prime Rate from and including the applicable required
remittance date to but not including the date such remittance is actually
made.
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(b) If any
Event of Default shall occur with respect to the Master Servicer or the Special
Servicer (in either case, for purposes of this Section 7.01(b), the “Defaulting Party”)
and shall be continuing, then, and in each and every such case, so long as such
Event of Default shall not have been remedied, the Depositor and/or the Trustee
may, and at the written direction of the Holders of Certificates entitled to at
least 25% of the Voting Rights, the Trustee shall, by notice in writing to the
Defaulting Party (with a copy of such notice to each other party hereto and the
Rating Agencies), terminate all of the rights and obligations (but not the
liabilities for actions and omissions occurring prior thereto) of the Defaulting
Party under this Agreement and in and to the Trust Fund, other than its rights
as a Certificateholder hereunder. Notwithstanding the foregoing, it
is acknowledged and agreed that the Depositor shall have no obligation to
exercise any of the preceding rights and/or powers. From and after
the receipt by the Defaulting Party of such written notice of termination, all
authority and power of the Defaulting Party under this Agreement, whether with
respect to the Certificates (other than as a holder of any Certificate) or the
Mortgage Loans or otherwise, shall pass to and be vested in the Trustee pursuant
to and under this Section, and, without limitation, the Trustee is hereby
authorized and empowered to execute and deliver, on behalf of and at the expense
of the Defaulting Party, as attorney-in-fact or otherwise, any and all documents
and other instruments, and to do or accomplish all other acts or things
necessary or appropriate to effect the purposes of such notice of termination,
whether to complete the transfer and endorsement or assignment of the Mortgage
Loans and related documents, or otherwise. The Master Servicer and
the Special Servicer each agree that, if it is terminated pursuant to this
Section 7.01(b), it shall promptly (and in any event no later than ten
Business Days subsequent to its receipt of the notice of termination) provide
the Trustee with all documents and records, including those in electronic form,
requested thereby to enable the Trustee or a successor Master Servicer or
Special Servicer to assume the Master Servicer’s or Special Servicer’s, as the
case may be, functions hereunder, and shall cooperate with the Trustee in
effecting the termination of the Master Servicer’s or Special Servicer’s, as the
case may be, responsibilities and rights hereunder, including, without
limitation, (i) the immediate transfer to the Trustee or a successor Master
or Special Servicer for administration by it of all cash amounts that shall at
the time be or should have been credited by the Master Servicer to the
Certificate Account, the Distribution Account, a Servicing Account or a Reserve
Account (if the Master Servicer is the Defaulting Party) or that are thereafter
received by or on behalf of it with respect to any Mortgage Loan or
(ii) the transfer within two Business Days to the Trustee or a successor
Special Servicer for administration by it of all cash amounts that shall at the
time be or should have been credited by the Special Servicer to the REO Account,
the Certificate Account, a Servicing Account or a Reserve Account or delivered
to the Master Servicer (if the Special Servicer is the Defaulting Party) or that
are thereafter received by or on behalf of it with respect to any Mortgage Loan
or REO Property (provided, however, that the Master
Servicer and the Special Servicer each shall, if terminated pursuant to this
Section 7.01(b), continue to be entitled to receive all amounts accrued or
owing to it under this Agreement on or prior to the date of such termination,
whether in respect of Advances or otherwise, and it shall continue to be
entitled to the benefits of Section 6.03 notwithstanding any such
termination). Any cost or expenses in connection with any actions to
be taken by the Master Servicer, the Special Servicer or the Trustee pursuant to
this paragraph shall be borne by the Defaulting Party and if not paid by the
Defaulting Party within 90 days after the presentation of reasonable
documentation of such costs and expenses, such expense shall be reimbursed by
the Trust Fund; provided, however, that the Defaulting
Party shall not thereby be relieved of its
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liability
for such expenses. If and to the extent that the Defaulting Party has
not reimbursed such costs and expenses, the Trustee shall have an affirmative
obligation to take all reasonable actions to collect such expenses on behalf of
and at the expense of the Trust Fund. For purposes of this
Section 7.01 and of Section 7.03(b), the Trustee shall not be deemed
to have knowledge of an event which constitutes, or which with the passage of
time or notice, or both, would constitute an Event of Default described in
clauses (i)-(viii) of subsection (a) above unless a Responsible
Officer of the Trustee has actual knowledge thereof or unless notice of any
event which is in fact such an Event of Default is received by the Trustee and
such notice references the Certificates, the Trust Fund or this
Agreement.
(c) If the
Master Servicer receives a notice of termination under
Section 7.01(b) solely due to an Event of Default under
Section 7.01(a)(x) and/or (xi) and/or (xii) and if the terminated
Master Servicer provides the Trustee with the appropriate “request for proposal”
materials within the five Business Days after receipt of such termination
notice, the Master Servicer shall continue to serve as Master Servicer hereunder
until a successor Master Servicer is selected in accordance with this
Section 7.01(c); provided the Trustee has
requested the Master Servicer to continue to serve as the Master Servicer during
such period. Upon receipt of the “request for proposal” materials,
the Trustee shall promptly thereafter (using such “request for proposal”
materials provided by the terminated Master Servicer) solicit good faith bids
for the rights to master service the Mortgage Loans under this Agreement from at
least three (3) Persons qualified to act as Master Servicer hereunder in
accordance with Sections 6.02 and 7.02 (any such Person so qualified, a “Qualified Bidder”)
or, if three (3) Qualified Bidders cannot be located, then from as many Persons
as the Trustee can determine are Qualified Bidders; provided that, at the
Trustee’s request, the Master Servicer to be terminated pursuant to
Section 7.01(b) shall supply the Trustee with the names of Persons
from whom to solicit such bids; provided, further, that the Trustee
shall not be responsible if less than three (3) or no Qualified Bidders submit
bids for the right to master service the Mortgage Loans under this
Agreement. The bid proposal shall require any Successful Bidder (as
defined below), as a condition of such bid, to enter into this Agreement as
successor Master Servicer, and to agree to be bound by the terms hereof, within
45 days after the notice of termination to the Master Servicer. The
materials provided to the Trustee shall provide for soliciting bids (i) on
the basis of such successor Master Servicer retaining all Sub-Servicers to
continue the primary servicing of the Mortgage Loans pursuant to the terms of
the respective Sub-Servicing Agreements and to enter into a Sub-Servicing
Agreement with the terminated Master Servicer to service each of the Mortgage
Loans not subject to a Sub-Servicing Agreement at a servicing fee rate per annum equal to the Master
Servicing Fee Rate minus 2.0 basis points per
Mortgage Loan serviced (each, a “Servicing-Retained
Bid”) and (ii) on the basis of terminating each Sub-Servicing
Agreement and Sub-Servicer that it is permitted to terminate in accordance with
Section 3.22 (each, a “Servicing-Released
Bid”). The Trustee shall select the Qualified Bidder with the
highest cash Servicing-Retained Bid (or, if none, the highest cash Servicing
Released Bid) (the “Successful Bidder”)
to act as successor Master Servicer hereunder. The Trustee shall
direct the Successful Bidder to enter into this Agreement as successor Master
Servicer pursuant to the terms hereof (and, if the successful bid was a
Servicing-Retained Bid, to enter into a Sub-Servicing Agreement with the
terminated Master Servicer as contemplated above), no later than 45 days after
termination of the Master Servicer.
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Upon the
assignment and acceptance of the master servicing rights hereunder to and by the
Successful Bidder, the Trustee shall remit or cause to be remitted (i) if
the successful bid was a Servicing-Retained Bid, to the Master Servicer to be
terminated pursuant to Section 7.01(b) the amount of such cash bid
received from the Successful Bidder (net of “out-of-pocket” expenses incurred in
connection with obtaining such bid and transferring servicing) and (ii) if
the successful bid was a Servicing-Released Bid, to the Master Servicer and each
terminated Sub-Servicer its respective Bid Allocation. In connection
with such remittance, the Trustee is entitled to be reimbursed by the Master
Servicer for the Trustee’s “out-of-pocket” expenses incurred in connection with
obtaining such bid and transferring servicing as contemplated by clause
(i) of this paragraph and by the definition of “Bid
Allocation”.
If the
Successful Bidder has not entered into this Agreement as successor Master
Servicer within such 45-day period or no Successful Bidder was identified within
such 45-day period, the Master Servicer to be terminated pursuant to
Section 7.01(b) shall reimburse the Trustee for all reasonable
“out-of-pocket” expenses incurred by the Trustee in connection with such bid
process and the Trustee shall have no further obligations under this
Section 7.01(c). The Trustee thereafter may act or may select a
successor to act as Master Servicer hereunder in accordance with
Section 7.02.
(d) Notwithstanding
the foregoing, if the Trustee or the Master Servicer has received notice from
Moody’s or S&P that the Master Servicer is no longer approved by Moody’s or
is no longer listed on S&P’s Select Servicer List as a U.S. Commercial
Mortgage Master Servicer, then the Trustee or Master Servicer shall promptly
notify the other of the same.
Section
7.02 Trustee to Act; Appointment
of Successor.
On and
after the time the Master Servicer or the Special Servicer resigns pursuant to
Section 6.04 or receives a notice of termination pursuant to
Section 7.01, the Trustee shall, unless a successor is appointed pursuant
to Section 6.04, be the successor in all respects to the Master Servicer or
the Special Servicer, as the case may be, in its capacity as such under this
Agreement and the transactions set forth or provided for herein and shall have
all (and the former Master Servicer or the Special Servicer, as the case may be,
shall cease to have any) of the responsibilities, duties and liabilities (except
as provided in the next sentence) of the Master Servicer or the Special
Servicer, as the case may be, arising thereafter, including, without limitation,
if the Master Servicer is the resigning or terminated party, the Master
Servicer’s obligation to make P&I Advances, the unmade P&I Advances that
gave rise to such Event of Default; provided that, if the Master
Servicer is the resigning or terminated party, and if after the Closing Date the
Trustee is prohibited by law or regulation from obligating itself to make
P&I Advances (as evidenced by an Opinion of Counsel delivered to the
Depositor and the Rating Agencies) the Trustee shall not be obligated to make
such P&I Advances; provided, further, that any failure to
perform such duties or responsibilities caused by the Master Servicer’s or the
Special Servicer’s, as the case may be, failure to provide information or monies
required by Section 7.01 shall not be considered a default by the Trustee
hereunder. Notwithstanding anything contrary in this Agreement, the
Trustee shall in no event be held responsible or liable with respect to any of
the acts, omissions, representations and warranties of the resigning or
terminated party (other than the Trustee) or for any losses incurred by such
resigning or terminated party pursuant to Section 3.06 hereunder nor shall
the Trustee be required to purchase
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any
Mortgage Loan hereunder. As compensation therefor, the Trustee shall
be entitled to all fees and other compensation which the resigning or terminated
party would have been entitled to if the resigning or terminated party had
continued to act hereunder (other than fees already earned, including, without
limitation, Workout Fees). Notwithstanding the above and subject to
its obligations under Section 3.22(d) and 7.01(b), the Trustee may, if
it shall be unwilling in its sole discretion to so act as either Master Servicer
or Special Servicer, as the case may be, or shall, if it is unable to so act as
either Master Servicer or Special Servicer, as the case may be, or shall, if the
Trustee is not approved as a master servicer or a special servicer, as the case
may be, by any of the Rating Agencies or if the Holders of Certificates entitled
to at least 51% of the Voting Rights so request in writing to the Trustee,
promptly appoint, subject to the approval of each of the Rating Agencies (as
evidenced by written confirmation therefrom to the effect that the appointment
of such institution would not cause the qualification, downgrading or withdrawal
of the then current rating on any Class of Certificates) or petition a court of
competent jurisdiction to appoint, any established mortgage loan servicing
institution that meets the requirements of Section 6.02 (including, without
limitation, rating agency confirmation); provided, however, that in the case of
a resigning or terminated Special Servicer, such appointment shall be subject to
the rights of the Holders of Certificates evidencing a majority of the Voting
Rights allocated to the Controlling Class to designate a successor pursuant to
Section 6.09. Except with respect to an appointment provided
below, no appointment of a successor to the Master Servicer or the Special
Servicer hereunder shall be effective until the assumption of the successor to
such party of all its responsibilities, duties and liabilities under this
Agreement. Pending appointment of a successor to the Master Servicer
or the Special Servicer hereunder, the Trustee shall act in such capacity as
hereinabove provided. Notwithstanding the above, the Trustee shall,
if the Master Servicer is the resigning or terminated party and the Trustee is
prohibited by law or regulation from making P&I Advances, promptly appoint
any established mortgage loan servicing institution that has a net worth of not
less than $15,000,000 and is otherwise acceptable to each Rating Agency (as
evidenced by written confirmation therefrom to the effect that the appointment
of such institution would not cause the qualification, downgrading or withdrawal
of the then current rating on any Class of Certificates), as the successor to
the Master Servicer hereunder in the assumption of all or any part of the
responsibilities, duties or liabilities of the Master Servicer hereunder
(including, without limitation, the obligation to make P&I Advances), which
appointment will become effective immediately. In connection with any
such appointment and assumption described herein, the Trustee may make such
arrangements for the compensation of such successor out of payments on the
Mortgage Loans as it and such successor shall agree; provided, however, that no such
compensation shall be in excess of that permitted the resigning or terminated
party hereunder. Such successor and the other parties hereto shall
take such action, consistent with this Agreement, as shall be necessary to
effectuate any such succession.
Section
7.03 Notification to
Certificateholders and Companion Holders.
(a) Upon any
resignation of the Master Servicer or the Special Servicer pursuant to
Section 6.04, any termination of the Master Servicer or the Special
Servicer pursuant to Section 7.01, any appointment of a successor to the
Master Servicer or the Special Servicer pursuant to Section 7.02 or the
effectiveness of any designation of a new Special Servicer pursuant to
Section 6.09, the Trustee shall give prompt written notice thereof to
Certificateholders at their respective addresses appearing in the Certificate
Register, and to the Companion Holders.
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(b) Not later
than the later of (i) 60 days after the occurrence of any event which
constitutes or, with notice or lapse of time or both, would constitute an Event
of Default and (ii) five days after a Responsible Officer of the Trustee
has notice of the occurrence of such an event, the Trustee shall transmit by
mail to the Depositor, all Certificateholders, the Rating Agencies and the
Companion Holders notice of such occurrence, unless such default shall have been
cured.
Section
7.04 Waiver of Events of
Default.
The
Holders representing at least 66-2/3% of the Voting Rights allocated to the
Classes of Certificates affected by any Event of Default hereunder may waive
such Event of Default; provided, however, that an Event of
Default under clause (i), (ii), (x), (xi) or (xii) of
Section 7.01(a) may be waived only by all of the Certificateholders of
the affected Classes. Upon any such waiver of an Event of Default,
such Event of Default shall cease to exist and shall be deemed to have been
remedied for every purpose hereunder. No such waiver shall extend to
any subsequent or other Event of Default or impair any right consequent thereon
except to the extent expressly so waived. Notwithstanding any other
provisions of this Agreement, for purposes of waiving any Event of Default
pursuant to this Section 7.04, Certificates registered in the name of the
Depositor or any Affiliate of the Depositor shall be entitled to Voting Rights
with respect to the matters described above.
Section
7.05 Additional Remedies of
Trustee Upon Event of Default.
During
the continuance of any Event of Default, so long as such Event of Default shall
not have been remedied, the Trustee, in addition to the rights specified in
Section 7.01, shall have the right, in its own name and as trustee of an
express trust, to take all actions now or hereafter existing at law, in equity
or by statute to enforce its rights and remedies and to protect the interests,
and enforce the rights and remedies, of the Certificateholders (including the
institution and prosecution of all judicial, administrative and other
proceedings and the filings of proofs of claim and debt in connection
therewith). No remedy provided for by this Agreement shall be
exclusive of any other remedy, and each and every remedy shall be cumulative and
in addition to any other remedy, and no delay or omission to exercise any right
or remedy shall impair any such right or remedy or shall be deemed to be a
waiver of any Event of Default. Under no circumstances shall the
rights provided to the Trustee under this Section 7.05 be construed as a
duty or obligation of the Trustee.
ARTICLE
VIII
CONCERNING THE TRUSTEE
CONCERNING THE TRUSTEE
Section
8.01 Duties of
Trustee.
(a) The
Trustee, prior to the occurrence of an Event of Default and after the curing or
waiver of all Events of Default which may have occurred, undertakes to perform
such duties and only such duties as are specifically set forth in this
Agreement. If an Event of Default occurs and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Agreement, and use the same degree of care and skill in their exercise as a
prudent man
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would
exercise or use under the circumstances in the conduct of his own
affairs. Any permissive right of the Trustee contained in this
Agreement shall not be construed as a duty.
(b) The
Trustee, upon receipt of all resolutions, certificates, statements, opinions,
reports, documents, orders or other instruments furnished to the Trustee that
are specifically required to be furnished pursuant to any provision of this
Agreement (other than the Mortgage Files, the review of which is specifically
governed by the terms of Article II), shall examine them to determine whether
they conform to the requirements of this Agreement to the extent specifically
set forth herein. If any such instrument is found not to conform to
the requirements of this Agreement in a material manner, the Trustee shall take
such action as it deems appropriate to have the instrument
corrected. The Trustee shall not be responsible for the accuracy or
content of any resolution, certificate, statement, opinion, report, document,
order or other instrument furnished by the Depositor or the Master Servicer or
the Special Servicer, and accepted by the Trustee in good faith, pursuant to
this Agreement.
(c) No
provision of this Agreement shall be construed to relieve the Trustee from
liability for its own negligent action, its own negligent failure to act or its
own misconduct; provided, however, that:
(i) Prior to
the occurrence of an Event of Default, and after the curing of all such Events
of Default which may have occurred, the duties and obligations of the Trustee
shall be determined solely by the express provisions of this Agreement, the
Trustee shall not be liable except for the performance of such duties and
obligations as are specifically set forth in this Agreement, no implied
covenants or obligations shall be read into this Agreement against the Trustee
and, in the absence of bad faith on the part of the Trustee, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon any certificates or opinions furnished to the
Trustee and conforming to the requirements of this Agreement;
(ii) The
Trustee shall not be personally liable for an error of judgment made in good
faith by a Responsible Officer or Responsible Officers of the Trustee unless it
shall be proved that the Trustee was negligent in ascertaining the pertinent
facts if it was required to do so;
(iii) The
Trustee shall not be personally liable with respect to any action taken,
suffered or omitted to be taken by it in good faith in accordance with the
direction of Holders of Certificates entitled to at least 25% of the Voting
Rights relating to the time, method and place of conducting any proceeding for
any remedy available to the Trustee or exercising any trust or power conferred
upon the Trustee under this Agreement; and
(iv) The
protections, immunities and indemnities afforded to the Trustee hereunder shall
also be available to the Paying Agent, Authenticating Agent, Certificate
Registrar, REMIC Administrator and Custodian.
For so
long as reports are required to be filed with the Commission under the Exchange
Act with respect to the Trust Fund, the Trustee shall not utilize any
Subcontractor for the performance of its duties hereunder if such Subcontractor
would be “participating in the
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servicing
function” within the meaning of Item 1122 of Regulation AB. The Trustee shall
indemnify the Depositor, the Sponsors and any director, officer, employee or
agent of the Depositor or the Sponsors and hold 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 any of them may sustain in any way related to the breach by the
Trustee of its obligation set forth in the preceding sentence or the failure of
the Trustee to perform any of its obligations under Section
3.13. This indemnity shall survive the termination of this Agreement
or the earlier resignation or removal of the Trustee.
[For so
long as reports are required to be filed with the Commission under the Exchange
Act with respect to the Trust Fund, the Trustee shall not utilize any
Subcontractor for the performance of its duties hereunder if such Subcontractor
would be “participating in the servicing function” within the meaning of Item
1122 of Regulation AB.] The Trustee shall indemnify the Depositor, the Sponsors
and any director, officer, employee or agent of the Depositor or the Sponsors
and hold 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 any of them may sustain
in any way related to the breach by the Trustee of its obligation set forth in
the preceding sentence or the failure of the Trustee to perform any of its
obligations under Section 3.13. This indemnity shall survive the
termination of this Agreement or the earlier resignation or removal of the
Trustee.
Section
8.02 Certain Matters Affecting
Trustee.
Except as
otherwise provided in Section 8.01 and Article X:
(a) the
Trustee may rely upon and shall be protected in acting or refraining from acting
upon any resolution, Officer’s Certificate, certificate of auditors or any other
certificate, statement, instrument, opinion, report, notice, request, consent,
order, appraisal, bond or other paper or document reasonably believed by it to
be genuine and to have been signed or presented by the proper party or
parties;
(b) the
Trustee may consult with counsel and the written advice of such counsel or any
Opinion of Counsel shall be full and complete authorization and protection in
respect of any action taken or suffered or omitted by it hereunder in good faith
and in accordance therewith;
(c) the
Trustee shall be under no obligation to exercise any of the trusts or powers
vested in it by this Agreement or to make any investigation of matters arising
hereunder or, except as provided in Section 10.01 or 10.02, to institute,
conduct or defend any litigation hereunder or in relation hereto at the request,
order or direction of any of the Certificateholders, pursuant to the provisions
of this Agreement, unless such Certificateholders shall have offered to the
Trustee reasonable security or indemnity against the costs, expenses and
liabilities which may be incurred therein or thereby; the Trustee shall not be
required to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the exercise
of any of its rights or powers, if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against such risk
or liability is not reasonably assured to it; provided, however, that nothing
contained herein shall, relieve the
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Trustee
of the obligation, upon the occurrence of an Event of Default which has not been
cured, to exercise such of the rights and powers vested in it by this Agreement,
and to use the same degree of care and skill in their exercise as a prudent man
would exercise or use under the circumstances in the conduct of his own
affairs;
(d) the
Trustee shall not be personally liable for any action reasonably taken, suffered
or omitted by it in good faith and believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Agreement;
(e) prior to
the occurrence of an Event of Default hereunder and after the curing of all
Events of Default which may have occurred, the Trustee shall not be bound to
make any investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request, consent,
order, approval, bond or other paper or document, unless requested in writing to
do so by Holders of Certificates entitled to at least 25% of the Voting Rights;
provided, however, that if the payment
within a reasonable time to the Trustee of the costs, expenses or liabilities
likely to be incurred by it in the making of such investigation is, in the
opinion of the Trustee, not reasonably assured to the Trustee by the security
afforded to it by the terms of this Agreement, the Trustee may require
reasonable indemnity against such expense or liability as a condition to taking
any such action;
(f) the
Trustee may execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents or attorneys; provided, however, that the Trustee
shall remain responsible for all acts and omissions of such agents or attorneys
within the scope of their employment to the same extent as it is responsible for
its own actions and omissions hereunder;
(g) the
Trustee shall not be responsible for any act or omission of the Master Servicer
or the Special Servicer (unless the Trustee is acting as Master Servicer or the
Special Servicer) or the Depositor; and
(h) neither
the Trustee nor the Certificate Registrar shall have any obligation or duty to
monitor, determine or inquire as to compliance with any restriction on transfer
imposed under Article V under this Agreement or under applicable law with
respect to any transfer of any Certificate or any interest therein, other than
to require delivery of the certification(s) and/or Opinions of Counsel described
in said Article applicable with respect to changes in registration of record
ownership of Certificates in the Certificate Register and to examine the same to
determine substantial compliance with the express requirements of this
Agreement. The Trustee and Certificate Registrar shall have no
liability for transfers, including transfers made through the book entry
facilities of the Depository or between or among Depository Participants or
beneficial owners of the Certificates, made in violation of applicable
restrictions except for its failure to perform its express duties in connection
with changes in registration of record ownership in the Certificate
Register.
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Section
8.03 Trustee Not Liable for
Validity or Sufficiency of Certificates or Mortgage Loans.
The
recitals contained herein and in the Certificates, other than the statements
attributed to the Trustee in Article II, Section 8.15 and the signature of
the Certificate Registrar and the Authenticating Agent set forth on each
outstanding Certificate, shall be taken as the statements of the Depositor, the
Master Servicer or the Special Servicer, as the case may be, and the Trustee
does not assume any responsibility for their correctness. Except as
set forth in Section 8.15, the Trustee makes no representations as to the
validity or sufficiency of this Agreement or of any Certificate (other than as
to the signature of the Trustee set forth thereon) or of any Mortgage Loan or
related document. The Trustee shall not be accountable for the use or
application by the Depositor of any of the Certificates issued to it or of the
proceeds of such Certificates, or for the use or application of any funds paid
to the Depositor in respect of the assignment of the Mortgage Loans to the Trust
Fund, or any funds deposited in or withdrawn from the Certificate Account or any
other account by or on behalf of the Depositor, the Master Servicer or the
Special Servicer unless the Trustee is acting as Paying Agent. The
Trustee shall not be responsible for the accuracy or content of any resolution,
certificate, statement, opinion, report, document, order or other instrument
furnished by the Depositor, the Master Servicer or the Special Servicer, and
accepted by the Trustee in good faith, pursuant to this Agreement.
Section
8.04 Trustee May Own
Certificates.
The
Trustee or any agent of the Trustee in its individual or any other capacity, may
become the owner or pledgee of Certificates with the same rights (except as
otherwise provided in the definition of “Certificateholder”)
as it would have if it were not the Trustee or such agent.
Section
8.05 Fees and Expenses of
Trustee; Indemnification of Trustee.
(a) On each
Distribution Date, the Trustee shall withdraw from the general funds on deposit
in the Distribution Account as provided in Section 3.05(b), prior to any
distributions to be made therefrom on such date, and pay to itself all earned
but unpaid Trustee Fees, as compensation for all services rendered by the
Trustee, in the execution of the trusts hereby created and in the exercise and
performance of any of the powers and duties of the Trustee hereunder at the
Trustee Fee Rate. No Trustee Fee shall be payable with respect to the
Companion Loans. 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)
shall constitute the Trustee’s sole compensation for such services to be
rendered by it.
(b) The
Trustee and any director, officer, employee, affiliate, agent or “control”
person within the meaning of the Securities Act of 1933 of the Trustee shall be
entitled to be indemnified for and held harmless by the Trust Fund against any
loss, liability or reasonable “out-of-pocket” expense (including, without
limitation, costs and expenses of litigation, and of investigation, counsel
fees, damages, judgments and amounts paid in settlement) arising out of, or
incurred in connection with this Agreement, the Mortgage Loans or the
Certificates or any act of the Master Servicer or the Special Servicer taken on
behalf of the Trustee as provided for herein; provided that such expense is
an “unanticipated expense incurred
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by the
REMIC” within the meaning of Treasury Regulations
Section 1.860G-1(b)(3)(ii); provided, further, that neither the
Trustee, nor any of the other above specified Persons shall be entitled to
indemnification pursuant to this Section 8.05(b) for (1) any liability
specifically required to be borne thereby pursuant to the terms hereof, or (2)
any loss, liability or expense incurred by reason of willful misfeasance, bad
faith or negligence in the performance of the Trustee’s obligations and duties
hereunder, or by reason of its negligent disregard of such obligations and
duties, or as may arise from a breach of any representation, warranty or
covenant of the Trustee, as applicable, made herein. The provisions
of this Section 8.05(b) shall survive any resignation or removal of
the Trustee and appointment of a successor Trustee.
Section
8.06 Eligibility Requirements for
Trustee.
The Trustee hereunder shall at all times be an association or a
corporation organized and doing business under the laws of the United States of
America or any State thereof or the District of Columbia, authorized under such
laws to exercise trust powers, having a combined capital and surplus of at least
$100,000,000 and subject to supervision or examination by a federal or state
banking authority. If such association or corporation publishes
reports of condition at least annually, pursuant to law or to the requirements
of the aforesaid supervising or examining authority, then for the purposes of
this Section the combined capital and surplus of such association or
corporation shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. The Trustee
shall also be an entity with a long term unsecured debt rating of at least [“A+”
by S&P] and [“Aa3” by Xxxxx’x] and a short term unsecured debt rating of at
least [“A-1” by S&P] or (b) such other rating that shall not result in the
qualification, downgrading or withdrawal of the rating or ratings assigned to
one or more Classes of the Certificates by any Rating Agency as confirmed in
writing. In addition, the Trustee shall at all times satisfy the
requirements of Section 26(a)(1) of the Investment Company Act of 1940, as
amended. In case at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, the Trustee, shall resign
immediately in the manner and with the effect specified in Section 8.07;
provided that if the
Trustee shall cease to be so eligible because its combined capital and surplus
is no longer at least $100,000,000 or its long-term unsecured debt rating no
longer conforms to the requirements of the immediately preceding sentence, and
if the Trustee proposes to the other parties hereto to enter into an agreement
with (and reasonably acceptable to) each of them, and if in light of such
agreement the Trustee’s continuing to act in such capacity would not (as
evidenced in writing by each Rating Agency) cause any Rating Agency to qualify,
downgrade or withdraw any rating assigned thereby to any Class of Certificates,
then upon the execution and delivery of such agreement the Trustee shall not be
required to resign, and may continue in such capacity, for so long as none of
the ratings assigned by the Rating Agencies to the Certificates is qualified,
downgraded or withdrawn thereby. The bank, trust company, corporation
or association serving as Trustee may have normal banking and trust
relationships with the Depositor, the Master Servicer, the Special Servicer and
their respective Affiliates but, except to the extent permitted or required by
Section 7.02, shall not be an “Affiliate” (as such term is defined in
Section III of PTE 2000-58) of the Master Servicer, the Special Servicer,
any Sub-Servicer, the Underwriters, the Depositor, or any obligor with respect
to Mortgage Loans constituting more than 5.0% of the aggregate authorized
principal balance of the Mortgage Loans as of the date of the initial issuances
of the Certificates or any “Affiliate” (as such term is defined in
Section III of PTE 2000-58) of any such Person .
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Section
8.07 Resignation and Removal of
Trustee.
(a) The
Trustee may at any time resign and be discharged from the trusts hereby created
by giving written notice thereof to the Depositor, the Master Servicer, the
Special Servicer and to all Certificateholders at their respective addresses set
forth in the Certificate Register. Upon receiving such notice of
resignation, the Master Servicer shall promptly appoint a successor trustee
meeting the requirements in Section 8.06 and acceptable to the Depositor
and the Rating Agencies by written instrument, in duplicate, which instrument
shall be delivered to the resigning Trustee and to the successor
trustee. A copy of such instrument shall be delivered to the
Depositor, the Special Servicer and the Certificateholders by the Master
Servicer. If no successor trustee shall have been so appointed and
have accepted appointment within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee.
(b) If at any
time the Trustee shall cease to be eligible in accordance with the provisions of
Section 8.06 and shall fail to resign after written request therefor by the
Depositor or the Master Servicer, or if at any time the Trustee shall become
incapable of acting, or shall be adjudged bankrupt or insolvent, or a receiver
of the Trustee or of its property shall be appointed, or any public officer
shall take charge or control of the Trustee or of its property or affairs for
the purpose of rehabilitation, conservation or liquidation, or if the Trustee or
Paying Agent (if different from the Trustee) shall fail (other than by reason of
the failure of either the Master Servicer or the Special Servicer to timely
perform its obligations hereunder or as a result of other circumstances beyond
the Trustee’s reasonable control), to timely deliver any report to be delivered
by the Trustee pursuant to Section 4.02 and such failure shall continue
unremedied for a period of five days, or if the Trustee or Paying Agent (if
different from the Trustee) fails to make distributions required pursuant to
Section 3.05(b), 4.01 or 9.01, then the Depositor may remove the Trustee
and appoint a successor trustee if necessary, acceptable to the Master Servicer
and the Rating Agencies (as evidenced by written confirmation therefrom to the
effect that the appointment of such institution would not cause the
qualification, downgrading or withdrawal of the then-current rating on any Class
of Certificates) by written instrument, in duplicate, which instrument shall be
delivered to the Trustee so removed and to the successor trustee. A
copy of such instrument shall be delivered to the Master Servicer, the Special
Servicer and the Certificateholders by the Depositor.
(c) The
Holders of Certificates entitled to at least 51% of the Voting Rights may at any
time remove the Trustee and appoint a successor trustee, if necessary, by
written instrument or instruments, in triplicate, signed by such Holders or
their attorneys-in-fact duly authorized, one complete set of which instruments
shall be delivered to the Master Servicer, one complete set to the Trustee so
removed and one complete set to the successor trustee so appointed. A
copy of such instrument shall be delivered to the Depositor, the Special
Servicer and the remaining Certificateholders by the successor so
appointed. In the event that the Trustee 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
(including, without limitation, P&I Advances and accrued interest thereon)
accrued or owing to it under this Agreement, with respect to periods
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prior to
the date of such termination or removal and no termination without cause shall
be effective until the payment of such amounts to the Trustee).
(d) Any
resignation or removal of the Trustee and appointment of a successor trustee
pursuant to any of the provisions of this Section 8.07 shall not become
effective until acceptance of appointment by the successor trustee as provided
in Section 8.08.
Section
8.08 Successor
Trustee.
(a) Any
successor trustee appointed as provided in Section 8.07 shall execute,
acknowledge and deliver to the Depositor, the Master Servicer, the Special
Servicer and to its predecessor trustee an instrument accepting such appointment
hereunder, and thereupon the resignation or removal of the predecessor trustee
shall become effective and such successor trustee without any further act, deed
or conveyance, shall become fully vested with all the rights, powers, duties and
obligations of its predecessor hereunder, with the like effect as if originally
named as trustee herein. The predecessor trustee shall deliver to the
successor trustee all Mortgage Files and related documents and statements held
by it hereunder (other than any Mortgage Files at the time held on its behalf by
a third-party Custodian, which Custodian shall become the agent of the successor
trustee), and the Depositor, the Master Servicer, the Special Servicer and the
predecessor trustee shall execute and deliver such instruments and do such other
things as may reasonably be required to more fully and certainly vest and
confirm in the successor trustee all such rights, powers, duties and
obligations, and to enable the successor trustee to perform its obligations
hereunder.
(b) No
successor trustee shall accept appointment as provided in this
Section 8.08, unless at the time of such acceptance such successor trustee
shall be eligible under the provisions of Section 8.06 and the Rating
Agencies have provided confirmation pursuant to such Section.
(c) Upon
acceptance of appointment by a successor trustee as provided in this
Section 8.08, such successor trustee shall mail notice of the succession of
such trustee hereunder to the Depositor and the Certificateholders.
Section
8.09 Merger or Consolidation of
Trustee.
Any
entity into which the Trustee may be merged or converted or with which the
Trustee may be consolidated or any entity resulting from any merger, conversion
or consolidation to which the Trustee shall be a party, or any entity succeeding
to the corporate trust business of the Trustee, shall be the successor of the
Trustee hereunder; provided such entity shall be
eligible under the provisions of Section 8.06 and the Rating Agencies have
provided confirmation pursuant to such Section, 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.
(a) Notwithstanding
any other provisions hereof, at any time, for the purpose of meeting any legal
requirements of any jurisdiction in which any part of the Trust Fund or property
securing the same may at the time be located, the Master Servicer and the
Trustee
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acting
jointly shall have the power and shall execute and deliver all instruments to
appoint one or more Persons approved by the Trustee to act as co-trustee or
co-trustees, jointly with the Trustee, or separate trustee or separate trustees,
of all or any part of the Trust Fund, and to vest in such Person or Persons, in
such capacity, such title to the Trust Fund, or any part thereof, and, subject
to the other provisions of this Section 8.10, such powers, duties,
obligations, rights and trusts as the Master Servicer and the Trustee may
consider necessary or desirable. If the Master Servicer shall not
have joined in such appointment within 15 days after the receipt by it of a
request to do so, or in case an Event of Default in respect of the Master
Servicer shall have occurred and be continuing, the Trustee alone shall have the
power to make such appointment. No co-trustee or separate trustee
hereunder shall be required to meet the terms of eligibility as a successor
trustee under Section 8.06 hereunder and no notice to Holders of
Certificates of the appointment of co-trustee(s) or separate trustee(s) shall be
required under Section 8.08 hereof.
(b) In the
case of any appointment of a co-trustee or separate trustee pursuant to this
Section 8.10, all rights, powers, duties and obligations conferred or
imposed upon the Trustee shall be conferred or imposed upon and exercised or
performed by the Trustee and such separate trustee or co-trustee jointly, except
to the extent that under any law of any jurisdiction in which any particular act
or acts are to be performed (whether as Trustee hereunder or as successor to the
Master Servicer or the Special Servicer hereunder), the Trustee shall be
incompetent or unqualified to perform such act or acts, in which event such
rights, powers, duties and obligations (including the holding of title to the
Trust Fund or any portion thereof in any such jurisdiction) shall be exercised
and performed by such separate trustee or co-trustee at the direction of the
Trustee.
(c) Any
notice, request or other writing given to the Trustee shall be deemed to have
been given to each of the then separate trustees and co-trustees, as effectively
as if given to each of them. Every instrument appointing any separate
trustee or co-trustee shall refer to this Agreement and the conditions of this
Article VIII. Each separate trustee and co-trustee, upon its
acceptance of the trusts conferred, shall be vested with the estates or property
specified in its instrument of appointment, either jointly with the Trustee or
separately, as may be provided therein, subject to all the provisions of this
Agreement, specifically including every provision of this Agreement relating to
the conduct of, affecting the liability of, or affording protection to, the
Trustee. Every such instrument shall be filed with the
Trustee.
(d) Any
separate trustee or co-trustee may, at any time, constitute the Trustee, its
agent or attorney-in-fact, with full power and authority, to the extent not
prohibited by law, to do any lawful act under or in respect of this Agreement on
its behalf and in its name. If any separate trustee or co-trustee
shall cease to exist, become incapable of acting, resign or be removed, all of
its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
(e) The
appointment of a co-trustee or separate trustee under this Section 8.10
shall not relieve the Trustee of its duties and responsibilities
hereunder.
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Section
8.11 Appointment of
Custodians.
(a) The
Trustee may appoint at the Trustee’s expense one or more Custodians to hold all
or a portion of the Mortgage Files as agent for the Trustee. Each
Custodian shall be a depository institution supervised and regulated by a
federal or state banking authority, shall have combined capital and surplus of
at least $10,000,000, shall be qualified to do business in the jurisdiction in
which it holds any Mortgage File and shall not be the Depositor, any Mortgage
Loan Seller or any Affiliate of the Depositor or any Mortgage Loan
Seller. Neither the Master Servicer nor the Special Servicer shall
have any duty to verify that any such Custodian is qualified to act as such in
accordance with the preceding sentence. Any such appointment of a
third party Custodian and the acceptance thereof shall be pursuant to a written
agreement, which written agreement shall (i) be consistent with this Agreement
in all material respects and requires the Custodian to comply with this
Agreement in all material respects and requires the Custodian to comply with all
of the applicable conditions of this Agreement; (ii) provide that if the Trustee
shall for any reason no longer act in the capacity of Trustee hereunder
(including, without limitation, by reason of an Event of Default), the successor
trustee or its designee may thereupon assume all of the rights and, except to
the extent such obligations arose prior to the date of assumption, obligations
of the Custodian under such agreement or alternatively, may terminate such
agreement without cause and without payment of any penalty or termination fee;
and (iii) not permit the Custodian any rights of indemnification that may be
satisfied out of assets of the Trust Fund. The appointment of one or
more Custodians shall not relieve the Trustee from any of its obligations
hereunder, and the Trustee shall remain responsible and liable for all acts and
omissions of any Custodian. The initial Custodian shall be the
Trustee. Notwithstanding anything herein to the contrary, if the
Trustee is no longer the Custodian, any provision or requirement herein
requiring notice or any information or documentation to be provided to the
Custodian shall be construed to require that such notice, information or
documents also be provided to the Trustee. Any Custodian hereunder
(other than the Trustee) shall at all times maintain a fidelity bond and errors
and omissions policy in amounts customary for custodians performing duties
similar to those set forth in this Agreement.
(b) [For so
long as reports are required to be filed with the Commission under the Exchange
Act with respect to the Trust Fund, the Custodian shall not utilize any
Subcontractor for the performance of its duties hereunder if such Subcontractor
would be “participating in the servicing function” within the meaning of Item
1122 of Regulation AB.] The Custodian shall indemnify the Depositor, the
Sponsors and any director, officer, employee or agent of the Depositor or the
Sponsors and hold 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 any of them may
sustain in any way related to the breach by the Custodian of its obligation set
forth in the preceding sentence or the failure of the Custodian to perform any
of its obligations under Section 3.13. This indemnity shall survive
the termination of this Agreement or the earlier resignation or removal of the
Custodian.
Section
8.12 Appointment of
Authenticating Agents.
(a) The
Trustee may at the Trustee’s expense appoint one or more Authenticating Agents,
which shall be authorized to act on behalf of the Trustee in authenticating
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Certificates. The
Trustee shall cause any such Authenticating Agent to execute and deliver to the
Trustee an instrument in which such Authenticating Agent shall agree to act in
such capacity, in accordance with the obligations and responsibilities
herein. Each Authenticating Agent must be organized and doing
business under the laws of the United States of America or of any State,
authorized under such laws to do a trust business, have a combined capital and
surplus of at least $15,000,000, and be subject to supervision or examination by
federal or state authorities. Each Authenticating Agent shall be
subject to the same obligations, standard of care, protection and indemnities as
would be imposed on, or would protect, the Trustee hereunder. The
appointment of an Authenticating Agent shall not relieve the Trustee from any of
its obligations hereunder, and the Trustee shall remain responsible and liable
for all acts and omissions of the Authenticating Agent. [__________]
shall be the initial Authenticating Agent. If [__________] is removed
as Trustee, then [__________] shall be terminated as Authenticating
Agent. If the Authenticating Agent (other than [__________]) resigns
or is terminated, the Trustee shall appoint a successor Authenticating Agent
which may be the Trustee or an Affiliate thereof. In the absence of
any other Person appointed in accordance herewith acting as Authenticating
Agent, the Trustee hereby agrees to act in such capacity in accordance with the
terms hereof. Notwithstanding anything herein to the contrary, if the
Trustee is no longer the Authenticating Agent, any provision or requirement
herein requiring notice or any information or documentation to be provided to
the Authenticating Agent shall be construed to require that such notice,
information or documentation also be provided to the Trustee.
(b) Any
Person into which any Authenticating Agent may be merged or converted or with
which it may be consolidated, or any Person resulting from any merger,
conversion, or consolidation to which any Authenticating Agent shall be a party,
or any Person succeeding to the corporate agency business of any Authenticating
Agent, shall continue to be the Authenticating Agent without the execution or
filing of any paper or any further act on the part of the Trustee or the
Authenticating Agent.
(c) Any
Authenticating Agent may at any time resign by giving at least 30 days’
advance written notice of resignation to the Trustee, the Certificate Registrar,
the Master Servicer, the Special Servicer and the Depositor. The
Trustee may at any time terminate the agency of any Authenticating Agent by
giving written notice of termination to such Authenticating Agent, the Master
Servicer, the Certificate Registrar and the Depositor. Upon receiving
a notice of resignation or upon such a termination, or in case at any time any
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section 8.12, the Trustee may appoint a successor
Authenticating Agent, in which case the Trustee shall given written notice of
such appointment to the Master Servicer, the Certificate Registrar and the
Depositor and shall mail notice of such appointment to all Holders of
Certificates; provided,
however, that no
successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section 8.12. Any successor Authenticating
Agent upon acceptance of its appointment hereunder shall become vested with all
the rights, powers, duties and responsibilities of its predecessor hereunder,
with like effect as if originally named as Authenticating Agent. No
Authenticating Agent shall have responsibility or liability for any action taken
by it as such at the direction of the Trustee.
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Section
8.13 Access to Certain
Information.
The
Trustee shall afford to the Master Servicer, the Special Servicer, each Rating
Agency and the Depositor, any Certificateholder and to the OTS, the FDIC and any
other banking or insurance regulatory authority that may exercise authority over
any Certificateholder, access to any documentation regarding the Mortgage Loans
within its control that may be required to be provided by this Agreement or by
applicable law. Such access shall be afforded without charge but only
upon reasonable prior written request and during normal business hours at the
offices of the Trustee designated by it. Upon request and with the
consent of the Depositor and at the cost of the requesting Party, the Trustee
shall provide copies of such documentation to the Depositor, any
Certificateholder and to the OTS, the FDIC and any other bank or insurance
regulatory authority that may exercise authority over any
Certificateholder.
Section
8.14 Appointment of
REMIC Administrators.
(a) The
Trustee may appoint at the Trustee’s expense, one or more
REMIC Administrators, which shall be authorized to act on behalf of the
Trustee in performing the functions set forth in Sections 3.17, 10.01 and 10.02
herein. The Trustee shall cause any such REMIC Administrator to
execute and deliver to the Trustee an instrument in which such
REMIC Administrator shall agree to act in such capacity, with the
obligations and responsibilities herein. The appointment of a
REMIC Administrator shall not relieve the Trustee from any of its
obligations hereunder, and the Trustee shall remain responsible and liable for
all acts and omissions of the REMIC Administrator. Each
REMIC Administrator must be acceptable to the Trustee and must be organized
and doing business under the laws of the United States of America or of any
State and be subject to supervision or examination by federal or state
authorities. In the absence of any other Person appointed in
accordance herewith acting as REMIC Administrator, the Trustee hereby
agrees to act in such capacity in accordance with the terms
hereof. If [__________] is removed as Trustee, then [__________]
shall be terminated as REMIC Administrator.
(b) Any
Person into which any REMIC Administrator may be merged or converted or
with which it may be consolidated, or any Person resulting from any merger,
conversion, or consolidation to which any REMIC Administrator shall be a
party, or any Person succeeding to the corporate agency business of any
REMIC Administrator, shall continue to be the REMIC Administrator
without the execution or filing of any paper or any further act on the part of
the Trustee or the REMIC Administrator.
(c) Any
REMIC Administrator may at any time resign by giving at least 30 days’
advance written notice of resignation to the Trustee the Certificate Registrar,
the Trustee, the Master Servicer, the Special Servicer and the
Depositor. The Trustee may at any time terminate the agency of any
REMIC Administrator by giving written notice of termination to such
REMIC Administrator, the Master Servicer, the Certificate Registrar and the
Depositor. Upon receiving a notice of resignation or upon such a
termination, or in case at any time any REMIC Administrator shall cease to
be eligible in accordance with the provisions of this Section 8.14, the
Trustee may appoint a successor REMIC Administrator, in which case the
Trustee shall given written notice of such appointment to the Master Servicer
and the Depositor and shall mail notice of such appointment to all Holders of
Certificates; provided,
however, that
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no
successor REMIC Administrator shall be appointed unless eligible under the
provisions of this Section 8.14. Any successor
REMIC Administrator upon acceptance of its appointment hereunder shall
become vested with all the rights, powers, duties and responsibilities of its
predecessor hereunder, with like effect as if originally named as
REMIC Administrator. No REMIC Administrator shall have
responsibility or liability for any action taken by it as such at the direction
of the Trustee.
Section
8.15 Representations and
Warranties of Trustee.
The
Trustee hereby represents and warrants to the Master Servicer, the Special
Servicer and the Depositor and for the benefit of the Certificateholders, as of
the Closing Date, that:
(i) The
Trustee is a national banking association duly organized, validly existing and
in good standing under the laws of the United States.
(ii) The
execution and delivery of this Agreement by the Trustee, and the performance and
compliance with the terms of this Agreement by the Trustee, will not violate the
Trustee’s organizational documents or constitute a default (or an event which,
with notice or lapse of time, or both, would constitute a default) under, or
result in a material breach of, any material agreement or other material
instrument to which it is a party or by which it is bound.
(iii) Except to
the extent that the laws of certain jurisdictions in which any part of the Trust
Fund may be located require that a co-trustee or separate trustee be appointed
to act with respect to such property as contemplated by Section 8.10, the
Trustee has the full power and authority to carry on its business as now being
conducted and to enter into and consummate all transactions contemplated by this
Agreement, has duly authorized the execution, delivery and performance of this
Agreement, and has duly executed and delivered this Agreement.
(iv) This
Agreement, assuming due authorization, execution and delivery by the other
parties hereto, constitutes a valid, legal and binding obligation of the
Trustee, enforceable against the Trustee in accordance with the terms hereof
(including with respect to any advancing obligations hereunder), subject to (A)
applicable bankruptcy, insolvency, reorganization, moratorium and other laws
affecting the enforcement of creditors’ rights generally and the rights of
creditors of banks, and (B) general principles of equity, regardless of whether
such enforcement is considered in a proceeding in equity or at law.
(v) The
Trustee is not in violation of, and its execution and delivery of this Agreement
and its performance and compliance with the terms of this Agreement will not
constitute a violation of, any law, any order or decree of any court or arbiter,
or any order, regulation or demand of any federal, state or local governmental
or regulatory authority, which violation, in the Trustee’s good faith and
reasonable judgment, is likely to affect materially and adversely the ability of
the Trustee to perform its obligations under this Agreement.
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(vi) No
litigation is pending or, to the best of the Trustee’s knowledge, threatened
against the Trustee that, if determined adversely to the Trustee, would prohibit
the Trustee from entering into this Agreement or, in the Trustee’s good faith
and reasonable judgment, is likely to materially and adversely affect the
ability of the Trustee to perform its obligations under this
Agreement.
(vii) Any
consent, approval, authorization or order of any court or governmental agency or
body required for the execution, delivery and performance by the Trustee of or
compliance by the Trustee with this Agreement or the consummation of the
transactions contemplated by this Agreement has been obtained and is
effective.
Section
8.16 Appointment of the Paying
Agent.
The Trustee may appoint a Paying Agent for the purpose of making
distributions to Certificateholders hereunder. The Trustee shall
cause such Paying Agent to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee that such Paying Agent will
hold all sums held by it for the payment to Certificateholders in an Eligible
Account in trust for the benefit of the Certificateholders entitled thereto
until such sums shall be paid to the Certificateholders. All funds
remitted by the Trustee or the Master Servicer to any such Paying Agent for the
purpose of making distributions shall be paid to Certificateholders on each
Distribution Date and any amounts not so paid shall be returned on such
Distribution Date to the Trustee or the Master Servicer, as
applicable. Any Paying Agent shall be either a bank or a trust
company or otherwise authorized under law to exercise corporate trust powers and
shall have a short-term debt rating of at least [“A-1” and a long-term debt
rating of at least “A-” by S&P] or a rating of at least [“A2” (or its
equivalent) by Xxxxx’x] or such lower rating as will not result in
qualification, downgrading or withdrawal of the ratings then assigned to the
Certificates, as evidenced in writing by the Rating Agencies. Any
such appointment of a third party Paying Agent and the acceptance thereof shall
be pursuant to a written agreement, which written agreement shall (i) be
consistent with this Agreement in all material respects and requires the Paying
Agent to comply with this Agreement in all material respects and requires the
Paying Agent to comply with all of the applicable conditions of this Agreement;
(ii) provide that if the Trustee shall for any reason no longer act in the
capacity of Trustee hereunder (including, without limitation, by reason of an
Event of Default), the successor trustee or its designee may (A) thereupon
assume all of the rights and, except to the extent they arose prior to the date
of assumption, obligations of the Paying Agent under such agreement or (B)
terminate such agreement without cause and without payment of any penalty or
termination fee; and (iii) not permit the Paying Agent any rights or
indemnification that may be satisfied out of assets of the Trust
Fund. The appointment of any Paying Agent shall not relieve the
Trustee from any of its obligations hereunder, and the Trustee shall remain
responsible and liable for all acts and omissions of any Paying Agent to the
extent such Paying Agent would have been responsible pursuant to the terms
hereof. The initial Paying Agent shall be the
Trustee. Notwithstanding anything herein to the contrary, if the
Trustee is no longer the Paying Agent, any provision or requirement herein
requiring notice or any information to be provided to the Paying Agent shall be
construed to require that such notice, information or documentation also be
provided to the Trustee. If the Trustee appoints a Paying Agent other
than the Trustee, the Trustee shall promptly notify the Master Servicer of such
appointment and give to the Master Servicer the Paying Agent’s wiring
instructions and notice address .
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Section
8.17 Reports to the Securities
and Exchange Commission; Available Information.
(a) Intent of
Parties. The parties hereto acknowledge and agree that the
purpose of this Section 8.17 is to facilitate compliance by the Depositor with
the provisions of Regulation AB and related rules and regulations of the
Commission. The Depositor or the Master Servicer shall not exercise
its rights to request delivery of information or other performance under these
provisions other than in good faith or for purposes other than compliance with
the Securities Act, the Exchange Act, the Xxxxxxxx-Xxxxx Act and the rules and
regulations of the Commission thereunder. The parties hereto
acknowledge that interpretations of the requirements of Regulation AB may change
over time, whether due to interpretive guidance provided by the Commission or
its staff, consensus among participants in the asset-backed securities markets,
advice of counsel, or otherwise, and agree to comply with requests made by the
Depositor or the Master Servicer in good faith for delivery of information under
these provisions on the basis of evolving interpretations of Regulation
AB. The Master Servicer, the Special Servicer, any Sub-Servicer and
the Trustee shall cooperate fully with the Depositor and the Master Servicer, as
applicable, to deliver to the Depositor or the Master Servicer, as applicable
(including any of their assignees or designees), any and all statements,
reports, certifications, records and any other information necessary in the good
faith determination of the Depositor or the Master Servicer, as applicable, to
permit the Depositor to comply with the provisions of Regulation AB, together
with such disclosures relating to the Master Servicer, the Special Servicer, any
Additional Servicer, any Sub-Servicer and the Trustee, as applicable, or the
servicing of the Mortgage Loans, reasonably believed by the Depositor or the
Master Servicer, as applicable, to be necessary in order to effect such
compliance.
(b) Filing
Requirements. (i) The Master Servicer, the Special Servicer
and the Trustee shall reasonably cooperate with the Depositor in connection with
the satisfaction of the Trust’s reporting requirements under the Exchange
Act. The Trustee shall prepare for execution by the Depositor any
Forms 8-K, 10-D and 10-K required by the Exchange Act and the rules and
regulations of the Commission thereunder, in order to permit the timely filing
thereof, and the Paying Agent shall file (via the Commission’s Electronic Data
Gathering and Retrieval System) such Forms executed by the
Depositor.
(ii) In the
event that the Trustee is unable to timely file with the Commission all or any
required portion of any Form 8-K, 10-D or 10-K required to be filed by this
Agreement because required disclosure information was either not delivered to it
or delivered to it after the delivery deadlines set forth in this Agreement, the
Trustee will immediately notify the Depositor and Master Servicer of such
inability to make a timely filing with the Commission. In the case of
Form 10-D and 10-K, the Depositor, Master Servicer, Special Servicer and Trustee
will cooperate to prepare and file a Form 12b-25 and a 10-D/A and 10-K/A, as
applicable, pursuant to Rule 12b-25 of the Exchange Act. In the case
of Form 8-K, the Trustee will, upon receipt of all required Form 8-K Disclosure
Information, include such disclosure information on the next succeeding Form
10-D to be filed for the Trust Fund. In the event that any previously
filed Form 8-K, 10-D or 10-K needs to be amended, the Trustee will notify the
Depositor, the Master Servicer and the Special Servicer and such parties agree
to cooperate to prepare any necessary 8-K/A, 10-D/A or 10-K/A; provided however
that the Trustee will not be
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required
to notify the Depositor or any other party hereto in advance of amending Form
10-D where such amendment is solely for the purpose of re-stating the
Distribution Date Statement. Any Form 15, Form 12b-25 or any
amendment to Form 8-K, 10-D or 10-K shall be signed by the
Depositor. The parties to this Agreement acknowledge that the timely
preparation, arrangement for execution and filing of Form 15, a Form 12b-25 or
any amendment to Form 8-K, 10-D or 10-K is dependent on such parties performing
their duties under this Section. The Trustee shall have no liability
for any loss, expense, damage, claim arising out of or with respect to any
failure to properly prepare, arrange for execution and/or timely file any such
Form 15, Form 12b-25 or any amendments to Forms 8-K, 10-D or 10-K, where such
failure results from the Trustee’s inability or failure to receive, on a timely
basis, any information from any other party hereto needed to prepare, arrange
for execution or file such Form 15, Form 12b-25 or any amendments to Forms 8-K,
10-D or 10-K, not resulting from its own negligence, bad faith or willful
misconduct.
(c) The
Master Servicer, the Special Servicer, any Servicing Participant and the
Trustee, as applicable, shall be deemed to represent to the Depositor, as of the
date on which information is first provided by it to the Depositor under Section
8.17(e) below that, except as disclosed in writing to the Depositor prior to
such date: (i) the Master Servicer, the Special Servicer or the
Trustee, as applicable, is not aware and has not received notice that any
default, early amortization or other performance triggering event has occurred
as to any other securitization due to any act or failure to act of the Master
Servicer, the Special Servicer or the Trustee, as applicable, other than as
disclosed in the Prospectus Supplement; (ii) the Master Servicer, the
Special Servicer or the Trustee, as applicable, has not been terminated as
servicer or trustee in a commercial mortgage loan securitization, either due to
a servicing default or to application of a servicing performance test or
trigger, other than as disclosed in the Prospectus Supplement; (iii) no
material noncompliance with the applicable Servicing Criteria with respect to
other securitizations of commercial mortgage loans involving the Master
Servicer, the Special Servicer or the Trustee, as applicable, as servicer or
trustee has been disclosed or reported by the Master Servicer, the Special
Servicer or the Trustee, as applicable, other than as disclosed in the
Prospectus Supplement; (iv) no material changes to the Master Servicer’s,
the Special Servicer’s or the Trustee’s, as applicable, policies or procedures
with respect to the servicing function or trustee function it will perform under
this Agreement for commercial mortgage loans of a type similar to the Mortgage
Loans have occurred during the three-year period immediately preceding the
Closing Date, other than as disclosed in the Prospectus Supplement;
(v) there is no material risk that any aspects of the Master Servicer’s,
the Special Servicer’s or the Trustee’s, as applicable, financial condition
could have a material impact on the performance of the Mortgage Loans or the
Certificates, other than as disclosed in the Prospectus Supplement;
(vi) there are no legal or governmental proceedings pending (or known to be
contemplated) against the Master Servicer, the Special Servicer, the Trustee, or
any Sub-Servicer, as applicable, that would be material to Certificateholders
other than as disclosed in the Prospectus Supplement; (vii) the information
contained in the Prospectus Supplement provided by the Master Servicer, Special
Servicer or Trustee meets all “Applicable Requirements of Regulation AB” as of
the date thereof and as of the Closing Date, and (viii) there are no
affiliations, relationships or transactions relating to the Master Servicer, the
Special Servicer, the Trustee or any Sub-Servicer, as applicable, with respect
to the issuance of the Certificates and any party thereto identified by the
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Depositor
of a type described in Item 1119 of Regulation AB other than as disclosed in the
Prospectus Supplement.
(d) If so
requested by the Depositor on any date following the date on which information
is first provided to the Depositor or the Master Servicer, as applicable, under
clause 8.17(e) below, the Master Servicer, the Special Servicer and the Trustee,
as the case may be, shall, within five Business Days following such request,
confirm in writing the accuracy of the representations and warranties set forth
in paragraph (c) above or, if any such representation and warranty is not
accurate as of the date of such request, provide reasonably adequate disclosure
of the pertinent facts, in writing, to the requesting party.
(e) In
connection with the issuance of the Offered Certificates, the Master Servicer
and the Special Servicer shall (i) within five Business Days following
request by the Depositor, provide to the Depositor (or, as applicable, cause
each Sub-Servicer to provide), in writing and in form and substance reasonably
satisfactory to the Depositor, the information and materials specified in
Section 8.17(c), and (ii) as promptly as practicable following notice to or
discovery by the Master Servicer or the Special Servicer, as the case may be,
provide to the Depositor (in writing and in form and substance reasonably
satisfactory to the Depositor) the information specified in paragraph (d) of
this Section 8.17.
(f) If so
requested by the Depositor for the purpose of satisfying its reporting
obligation under the Exchange Act with respect to the Offered Certificates, the
Master Servicer, the Special Servicer, any Servicing Participant and the Trustee
shall (or the Master Servicer and Special Servicer shall cause each Sub-Servicer
to, or, in the case of the Master Servicer with respect to a Sub-Servicer
identified on Exhibit
Y, shall use its reasonable best efforts to cause such Sub-Servicer to)
(i) notify the Depositor in writing of (A) any litigation or governmental
proceedings pending against the Master Servicer, the Special Servicer, any
Servicing Participant, any Sub-Servicer or the Trustee, as the case may be, that
would be material to certificateholders and (B) any affiliations that develop
following the Closing Date between the Master Servicer, the Special Servicer, or
the Trustee with respect to Xxxxx Fargo Commercial Mortgage Trust, Commercial
Mortgage Pass-Through Certificates, Series [_____], and (ii) provide to the
Depositor a description of such proceedings, affiliations or
relationships.
(g) As a
condition to the succession to the Master Servicer and Special Servicer or any
Servicing Participant as servicer or sub-servicer under this Agreement by any
Person (i) into which the Master Servicer and Special Servicer or such
Servicing Participant may be merged or consolidated, or (ii) which may be
appointed as a successor to the Master Servicer and Special Servicer or any
Servicing Participant, the Master Servicer and Special Servicer shall provide to
the Depositor, at least 30 calendar days prior to the effective date of such
succession or appointment, (x) written notice to the Depositor of such
succession or appointment and (y) in writing and in form and substance
reasonably satisfactory to the Depositor, all information reasonably necessary
for the Trustee to accurately and timely report, pursuant to this Section 8.17
in order to comply with the event under Item 6.02 of Form 8-K pursuant to the
Exchange Act (if such reports under the Exchange Act are required to be filed
under the Exchange Act).
(h) In
connection with the issuance of the Offered Certificates, the Trustee shall
(i) within five Business Days following request by the Depositor, provide
to the Depositor,
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in
writing and in form and substance reasonably satisfactory to the Depositor, the
information and materials specified in paragraph (c) of this Section
8.17.
(i) Within 15
days after each Distribution Date (subject to permitted extensions under the
Exchange Act), the Trustee shall prepare and file on behalf of the Trust Fund
any Form 10-D required by the Exchange Act, in form and substance as required by
the Exchange Act. The Trustee shall file each Form 10-D with a copy
of the related Distribution Date Statement attached thereto. Any
necessary disclosure in addition to the Monthly Statement that is required to be
included on Form 10-D (“Additional Form 10-D
Disclosure”) shall, pursuant to the paragraph immediately below, be
reported by the parties set forth on Exhibit U to the Depositor and the Trustee
and approved by the Depositor, and the Trustee will have no duty or liability
for any failure hereunder to determine or prepare any Additional Form 10-D
Disclosure, except as set forth in the next paragraph.
For so
long as the Trust Fund is subject to the reporting requirements of the Exchange
Act, within 5 calendar days after the related Distribution Date, (i) the parties
listed on Exhibit U hereto shall be required to provide to the Trustee and the
Depositor, to the extent known by a responsible officer thereof, in
XXXXX-compatible format, or in such other format as otherwise agreed upon by the
Trustee and the Depositor and such party, the form and substance of the
Additional Form 10-D Disclosure described on Exhibit U applicable
to such party, (ii) the parties listed on Exhibit U hereto shall include with
such Additional Form 10-D Disclosure, an Additional Disclosure Notification in
the form attached hereto as Exhibit V and (iii)
the Depositor shall approve, as to form and substance, or disapprove, as the
case may be, the inclusion of the Additional Form 10-D Disclosure on Form
10-D. The Trustee has no duty under this Agreement to monitor or
enforce the performance by the parties listed on Exhibit U of their duties under
this paragraph or proactively solicit or procure from such parties any
Additional Form 10-D Disclosure information.
After preparing the Form 10-D, the Trustee shall forward
electronically a draft copy of the Form 10-D to the Depositor for review and
execution. No later than 2 Business Days prior to the 15th
calendar day after the related Distribution Date, a duly authorized
representative of the Depositor shall sign the Form 10-D and return an
electronic or fax copy of such signed Form 10-D (with an original executed hard
copy to follow by overnight mail) to the Trustee. Alternatively, the
Depositor may deliver to the Paying Agent manually signed copies of a power of
attorney meeting the requirements of Item 601(b)(24) of Regulation S-K under the
Securities Act, and certified copies of a resolution of the Depositor’s board of
directors authorizing such power of attorney, each to be filed with each Form
10-D, in which case the Paying Agent shall sign such Forms 10-D as attorney in
fact for the Depositor. In the event that the Paying Agent signs the
Forms 10-D as attorney in fact for the Depositor pursuant to such powers of
attorney, the Paying Agent shall deliver a draft of each such Form 10-D to
the Depositor no later than 2 Business Days prior to the filing deadline
applicable to such report. If a Form 10-D cannot be filed on time or
if a previously filed Form 10-D needs to be amended, the Trustee will follow the
procedures set forth in Section 8.17(b)(ii). Promptly (but no later
than 1 Business Day) after filing with the Commission, the Trustee will make
available on its internet website a final executed copy of each Form 10-D
prepared and filed by the Trustee. The signing party at the Depositor
can be contacted at Xxxxx Fargo Commercial Mortgage Securities, Inc., 000 Xxxxx
Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Attention: Xxxxx
Xxxx, Director. The parties to
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this
Agreement acknowledge that the timely preparation, arrangement for execution and
filing of Form 10-D is dependent on such parties strictly observing all
applicable deadlines in the performance of their duties under this Section
8.17(i). The Trustee shall have no liability for any loss, expense,
damage, claim arising out of or with respect to any failure to properly prepare,
arrange for execution and/or timely file such Form 10-D, where such failure
results from the Trustee’s inability or failure to receive, on a timely basis,
any information from any other party hereto needed to prepare, arrange for
execution or file such Form 10-D, not resulting from its own negligence, bad
faith or willful misconduct.
(j) Within
four (4) Business Days after the occurrence of an event requiring disclosure on
Form 8-K (each such event, a “Reportable Event”),
and if requested by the Depositor, the Trustee shall prepare and file on behalf
of the Trust Fund any Form 8-K, as required by the Exchange Act, provided that the
Depositor shall file the initial Form 8-K in connection with the issuance of the
Certificates. Any disclosure or information related to a Reportable
Event or that is otherwise required to be included on Form 8-K (other than the
initial Form 8-K) (“Form 8-K Disclosure
Information”) shall be determined and prepared by or at the direction of
the Depositor pursuant to the paragraph immediately below, be reported by the
parties set forth on Exhibit X to the
Depositor and the Trustee and approved by the Depositor, and the Trustee will
have no duty or liability for any failure hereunder to determine or prepare any
Form 8-K Disclosure Information absent such reporting, direction and
approval.
For so
long as the Trust Fund is subject to the reporting requirements of the Exchange
Act, no later than Noon (Eastern Time) on the 2nd Business Day after the
occurrence of a Reportable Event (i) the parties listed on Exhibit X hereto
shall be required to provide to the Trustee and the Depositor, to the extent
known, by a responsible officer thereof, in XXXXX-compatible format, or in such
other format as otherwise agreed upon by the Trustee and the Depositor and such
party, the form and substance of the Form 8-K Disclosure Information described
on Exhibit X
applicable to such party, (ii) the parties listed on Exhibit X hereto
shall include with such Additional Form 8-K Disclosure, an Additional
Disclosure Notification in the form attached hereto as Exhibit V, and (iii)
the Depositor will approve, as to form and substance, or disapprove, as the case
may be, the inclusion of the Form 8-K Disclosure Information on Form
8-K.
After preparing the Form 8-K, the Trustee shall forward, no later
than Noon (Eastern Time) on the second Business Day after the Reportable Event,
electronically a draft copy of the Form 8-K to the Depositor for
review. No later than the close of business on the 3rd Business Day
after the Reportable Event, the Depositor shall notify the Trustee of any
changes to or approval of such Form 8-K. No later than Noon (Eastern
Time) on the 4th Business Day after the Reportable Event, a duly authorized
representative of the Depositor shall sign the Form 8-K and return an electronic
or fax copy of such signed Form 8-K (with an original executed hard copy to
follow by overnight mail) to the Trustee. If a Form 8-K cannot be
filed on time or if a previously filed Form 8-K needs to be amended, the Trustee
will follow the procedures set forth in Section 8.17(b)(ii). Promptly
(but no later than 1 Business Day) after filing with the Commission, the Trustee
will make available on its internet website a final executed copy of each Form
8-K prepared and filed by the Trustee. The signing party at the
Depositor can be contacted at Xxxxx Fargo Commercial Mortgage Securities, Inc.,
000 Xxxxx Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000,
Attention: Xxxxx Xxxx, Director. The parties to
this
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Agreement acknowledge that the timely preparation, arrangement
for execution and filing of Form 8-K is dependent on such parties strictly
observing all applicable deadlines in the performance of their duties under this
Section 8.17(j). The Trustee shall have no liability for any loss,
expense, damage, claim arising out of or with respect to any failure to properly
prepare, arrange for execution and/or timely file such Form 8-K, where such
failure results from the Trustee’s inability or failure to receive, on a timely
basis, any information from any other party hereto needed to prepare, arrange
for execution or file such Form 8-K, not resulting from its own negligence, bad
faith or willful misconduct .
The
Master Servicer, the Special Servicer and the Trustee shall promptly notify (and
the Master Servicer and the Special Servicer shall use reasonable best efforts
to cause each Sub-Servicer and each Servicing Participant with which, in each
case, it has entered into a servicing relationship with respect to the Mortgage
Loans (other than a party to this Agreement) to promptly notify the Depositor
and the Trustee, but in no event later than one (1) Business Day after its
occurrence, of any Reportable Event of which it has knowledge.
(k) Form 10-K
Filings. (i) Within 90 days after the end of each fiscal year
of the Trust Fund or such earlier date as may be required by the Exchange Act
(the “10-K Filing
Deadline”) (it being understood that the fiscal year for the Trust Fund
ends on December 31st of each year), commencing in March 20___, the Trustee
shall prepare and file on behalf of the Trust Fund a Form 10-K, in form and
substance as required by the Exchange Act. Each such Form 10-K shall
include the following items, in each case to the extent they have been delivered
to the Trustee within the applicable time frames set forth in this
Agreement:
(ii) an
annual compliance statement for the Master Servicer, the Special
Servicer, each Sub-Servicer engaged by the Master Servicer and
Special Servicer and the Trustee, as described under Section
3.13(b);
(iii) (A)
the annual reports on assessment of compliance with Servicing Criteria for the
Master Servicer, the Special Servicer, each Additional Servicer, each
Sub-Servicer and the Trustee, and any Servicing Participant engaged by such
parties, as described under Section 3.13(a), and (B) if any such report on
assessment of compliance with servicing criteria described under Section 3.13(a)
identifies any material instance of noncompliance, disclosure identifying such
instance of noncompliance, or if such report on assessment of compliance with
servicing criteria described under Section 3.13(a) is not included as an exhibit
to such Form 10-K, disclosure that such report is not included and an
explanation why such report is not included;
(iv) (A)
the registered public accounting firm attestation report for the Master
Servicer, the Special Servicer, each Additional Servicer, the Trustee, each
Sub-Servicer engaged by the Master Servicer or Special Servicer and any
Servicing Participant engaged by such parties, as described under Section 3.14,
and (B) if any registered public accounting firm attestation report described
under Section 3.14 identifies any material instance of noncompliance, disclosure
identifying such instance of noncompliance, or if any such registered public
accounting firm attestation report is not included as an exhibit to such Form
10-K, disclosure that such report is not included and an explanation why such
report is not included; and
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(v) a
certification in the form attached hereto as Exhibit P, with such
changes as may be necessary or appropriate as a result of changes promulgated by
the Commission (the “Xxxxxxxx-Xxxxx
Certification”), which shall, except as described below, be signed by the
senior officer of the Depositor in charge of securitization.
Any
disclosure or information in addition to (ii) through (v) above that is required
to be included on Form 10-K (“Additional Form 10-K
Disclosure”) shall, pursuant to the paragraph immediately below, be
reported by the parties set forth on Exhibit W to the
Depositor and the Trustee and approved by the Depositor, and the Trustee will
have no duty or liability for any failure hereunder to determine or prepare any
Additional Form 10-K Disclosure absent such reporting, direction and
approval.
For so
long as the Trust Fund is subject to the reporting requirements of the Exchange
Act, no later than March 15 (with no cure period), commencing in March 20__ (i)
the parties listed on Exhibit W hereto shall be required to provide to the
Trustee and the Depositor, to the extent known by a responsible officer thereof,
in XXXXX-compatible format, or in such other format as otherwise agreed upon by
the Trustee and the Depositor and such party, the form and substance of the
Additional Form 10-K Disclosure described on Exhibit W applicable
to such party, (ii) the parties listed on Exhibit W hereto shall include with
such Additional Form 10-K Disclosure, an Additional Disclosure Notification in
the form attached hereto as Exhibit V, and (iii) the Depositor will approve, as
to form and substance, or disapprove, as the case may be, the inclusion of the
Additional Form 10-K Disclosure on Form 10-K.
After
preparing the Form 10-K, the Trustee shall forward electronically a draft copy
of the Form 10-K to the Depositor for review no later than 5 Business Days prior
to the 10-K Filing Deadline. No later than the Business Day prior to
the 10-K Filing Deadline, the Depositor shall notify the Trustee of any changes
to or approval of such Form 10-K. No later than end of business
Eastern Time on the 2nd
Business Day prior to the 10-K Filing Deadline, a senior officer of the
Depositor in charge of securitization shall sign the Form 10-K and return an
electronic or fax copy of such signed Form 10-K (with an original executed hard
copy to follow by overnight mail) to the Trustee. If a Form 10-K
cannot be filed on time or if a previously filed Form 10-K needs to be amended,
the Trustee will follow the procedures set forth in Section
8.17(b)(ii). Promptly (but no later than 1 Business Day) after filing
with the Commission, the Trustee will make available on its internet website a
final executed copy of each Form 10-K prepared and filed by the
Trustee. The signing party at the Depositor can be contacted at Xxxxx
Fargo Commercial Mortgage Securities, Inc., 000 Xxxxx Xxxxxxx Xxxxxx, Xxxxxxxxx,
Xxxxx Xxxxxxxx 00000, Attention: Xxxxx Xxxx, Director. The
parties to this Agreement acknowledge that the timely preparation, arrangement
for execution and filing of Form 10-K is dependent on such parties (and any
Additional Servicer or Servicing Participant) observing all applicable deadlines
in the performance of their duties under this Section 8.17(k), Section 3.13 and
Section 3.14. The Trustee shall have no liability for any loss,
expense, damage, claim arising out of or with respect to any failure to properly
prepare, arrange for execution and/or timely file such Form 10-K, where such
failure results from the Trustee’s inability or failure to receive, on a timely
basis, any information from any other party hereto needed to prepare, arrange
for execution or file such Form 10-K, not resulting from its own negligence, bad
faith or willful misconduct.
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Each of
the parties acknowledges and agrees that one of the purposes of this Agreement
is to facilitate compliance by the Depositor with the provisions of Regulation
AB. Therefore, each of the parties agrees that (a) the obligations of
the parties hereunder shall be interpreted in such a manner as to accomplish
that purpose, (b) the parties’ obligations hereunder will be supplemented and
modified as necessary to be consistent with any such amendments, interpretive
advice or guidance, convention or consensus among active participants in the
asset-backed securities markets, advice of counsel, or otherwise in respect of
the requirements of Regulation AB, (c) the parties shall comply with requests
made by the Depositor for delivery of additional or different information as the
Trustee or the Depositor may determine in good faith is necessary to comply with
the provisions of Regulation AB, and (d) no amendment of this Agreement shall be
required to effect any such changes in the parties’ obligations as are necessary
to accommodate evolving interpretations of the provisions of Regulation
AB.
(l) Each of
the Master Servicer, the Special Servicer and the Trustee shall indemnify and
hold harmless each Certification Party from and against any claims, losses,
damages, penalties, fines, forfeitures, legal fees and expenses and related
costs, judgments and other costs and expenses incurred by such Certification
Party arising out of (i) an actual breach by the Master Servicer, the
Special Servicer or the Trustee, as the case may be, of its obligations under
Sections 3.13, 3.14 and 8.17 or (ii) negligence, bad faith or willful
misconduct on the part of the Master Servicer, the Special Servicer or the
Trustee in the performance of such obligations.
The
Master Servicer and the Special Servicer shall cause each Additional Servicer,
the Trustee and each Servicing Participant with which, in each case, it has
entered into a servicing relationship with respect to the Mortgage Loans to
indemnify and hold harmless each Certification Party from and against any and
all claims, losses, damages, penalties, fines, forfeitures, legal fees and
expenses and related costs, judgments and any other costs, fees and expenses
incurred by such Certification Party arising out of (i) a breach of its
obligations to provide any of the annual compliance statements or annual
servicing criteria compliance reports or attestation reports pursuant to the
applicable sub-servicing or primary servicing agreement or (ii) negligence,
bad faith or willful misconduct its part in the performance of such obligations
or (iii) any failure by a Servicer (as defined in Section [__]) to identify a
Servicing Participant pursuant to Section [__].
If the
indemnification provided for herein is unavailable or insufficient to hold
harmless any Certification Party, then the Master Servicer, the Special
Servicer, the Trustee, the Additional Servicer or other Servicing Participant
(the “Performing
Party”) shall contribute to the amount paid or payable to the
Certification Party as a result of the losses, claims, damages or liabilities of
the Certification Party in such proportion as is appropriate to reflect the
relative fault of the Certification Party on the one hand and the Performing
Party on the other in connection with a breach of the Performing Party’s
obligations pursuant to Sections 3.13, 3.14 and 8.17 (or breach of its
obligations under the applicable sub-servicing or primary servicing agreement to
provide any of the annual compliance statements or annual servicing criteria
compliance reports or attestation reports) or the Performing party’s negligence,
bad faith or willful misconduct in connection therewith. The Master
Servicer and Special Servicer shall cause each Additional Servicer or Servicing
Participant, in each case, with which it has entered into a servicing
relationship with respect to the Mortgage Loans to agree to the foregoing
indemnification and
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contribution
obligations. This Section 8.17(l) shall survive the termination of
this Agreement or the earlier resignation or removal of the Master Servicer or
the Special Servicer.
(m) Form 15
Filing. On or prior to January 30 of the first year in which
the Trustee is able to do so under applicable law, the Trustee shall file a Form
15 Suspension Notification relating to the automatic suspension of reporting in
respect of the Trust Fund under the Exchange Act.
At any
time after the filing of a Form 15 Suspension Notification, if the number of
Certificateholders of record exceeds the number set forth in Section 15(d) of
the Exchange Act or the regulations promulgated pursuant thereto which would
cause the Trust to again become subject to the reporting requirements of the
Exchange Act, the Trustee shall recommence preparing and filing reports on Forms
10-K, 10-D and 8-K as required pursuant to this Section 8.17.
(n) Xxxxxxxx-Xxxxx
Certification. Each Form 10-K
shall include a Xxxxxxxx-Xxxxx
Certification in the form attached as Exhibit O
required to be included therewith pursuant to the Xxxxxxxx-Xxxxx Act of 2002 and
the rules and regulations of the Commission promulgated thereunder (including
any interpretations thereof by the Commission’s staff). The Master
Servicer and the Special Servicer shall, and the Master Servicer shall cause
each Servicing Participant with which it has entered into a servicing
relationship with respect to the Mortgage Loans to, provide to the Person who
signs the Xxxxxxxx-Xxxxx Certification (the “Certifying Person”) a
certification in the form attached hereto as Exhibit P-1 and
Exhibit P-2, as
applicable, on which the Certifying Person, the entity for which the Certifying
Person acts as an officer (if the Certifying Person is an individual), and such
entity’s officers, directors and Affiliates (collectively with the Certifying
Person, “Certification
Parties”) can reasonably rely. In addition, in the event that
the [_________] Pari Passu Companion Loan is deposited into a commercial
mortgage securitization, each Reporting Party shall provide to the Person who
signs the Xxxxxxxx-Xxxxx Certification with respect to the other related
securitization a Performance Certification (in the form attached hereto as Exhibit P-3) (which
shall address the matters contained in the Performance Certification, but solely
with respect to the [_________]Loan) on which such Person, the entity for which
the Person acts as an officer (if the Person is an individual), and such
entity’s officers, directors and Affiliates can reasonably rely. With
respect to the [_________] Pari Passu Companion Loan, the Master Servicer will
use its reasonable efforts to procure a Xxxxxxxx-Xxxxx back-up certification
from the related master servicer, special servicer and trustee in form and
substance similar to a Performance Certification. The senior officer
in charge of the Depositor shall serve as the Certifying Person on behalf of the
Trust. In addition, each Reporting Party shall execute a reasonable
reliance certificate to enable the Certification Parties to rely upon each
(i) annual compliance statement provided pursuant to Section 3.13(a),
(ii) annual report on assessment of compliance with servicing criteria
provided pursuant to Section 3.13(b) and (iii) accountant’s report
provided pursuant to Section 3.14, and shall include a certification that
each such annual compliance statement or report discloses any deficiencies or
defaults described to the registered public accountants of such Reporting Party
to enable such accountants to render the certificates provided for in
Section 3.14. In the event any Reporting Party is terminated or
resigns pursuant to the terms of this Agreement, or any applicable sub-servicing
agreement or primary servicing agreement, as the case may be, such Reporting
Party shall provide a certification to the Certifying Person pursuant to this
Section 8.17(n) with respect to the period of time it was subject to this
Agreement or the applicable sub-servicing or primary servicing agreement, as the
case may be.
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(o) If the
[_________] Pari Passu Companion Loan or the
[_________] Pari Passu Companion Loan is then included in a
securitization, the Master Servicer and the Special Servicer shall reasonably
cooperate with the related trustee, depositor, master servicer and special
servicer with respect to such securitization(s) in connection with the reporting
requirements under the Exchange Act and shall provide such certifications
(including without limitation back-up certificates relating to the requirements
of the Xxxxxxxx-Xxxxx Act) as reasonably requested; provided that no such
cooperation shall materially increase the obligations of the Master Servicer
and/or the Special Servicer under this Agreement.
(p) Succession;
Subcontractors. (i) As a condition to the succession to
the Master Servicer and Special Servicer or any Sub-Servicer as servicer or
subservicer under this Agreement by any Person (i) into which the Master
Servicer and Special Servicer or such Sub-Servicer may be merged or
consolidated, or (ii) which may be appointed as a successor to the Master
Servicer and Special Servicer or any Subservicer, the Master Servicer and
Special Servicer shall provide to the Depositor, at least [30]
calendar days prior to the effective date of such succession or
appointment, (x) written notice to the Depositor of such succession or
appointment and (y) in writing and in form and substance reasonably
satisfactory to the Depositor, all information reasonably requested by the
Depositor in order to comply with its reporting obligation under Item 6.02 of
Form 8-K pursuant to the Exchange Act (if such reports under the Exchange Act
are required to be filed under the Exchange Act).
(ii) Each of
the Master Servicer, the Special Servicer, the Sub-Servicer and the Trustee
(each of the Master Servicer, the Special Servicer and the Trustee and each
Sub-Servicer, for purposes of this paragraph, a “Servicer”) is
permitted to utilize one or more Subcontractors to perform certain of its
obligations hereunder. Such Servicer shall promptly upon request
provide to the Depositor a written description (in form and substance
satisfactory to the Depositor) of the role and function of each Subcontractor
utilized by such Servicer, specifying (i) the identity of each Subcontractor,
(ii) which (if any) of such Subcontractors are Servicing Participants, and (iii)
which elements of the Servicing Criteria will be addressed in assessments of
compliance provided by each Subcontractor identified pursuant to clause (ii) of
this paragraph. As a condition to the utilization by such Servicer of
any Subcontractor determined to be a Servicing Participant, such Servicer shall
cause any such Subcontractor used by such Servicer for the benefit of the
Depositor and the Trustee to comply with the provisions of Sections 3.13(a) and
Section 3.14 of this Agreement to the same extent as if such Subcontractor were
such Servicer. Such Servicer shall be responsible for obtaining from
each such Subcontractor and delivering to the applicable Persons any assessment
of compliance report and related accountant’s attestation required to be
delivered by such Subcontractor under Section 3.13(a) and Section 3.14, in each
case, as and when required to be delivered.
(iii) Notwithstanding
the foregoing, if a Servicer engages a Subcontractor in connection with the
performance of any of its duties under this Agreement, such Servicer shall be
responsible for determining whether such Subcontractor is a “servicer” within
the meaning of Item 1101 of Regulation AB and whether any such affiliate or
third-party vendor meets the criteria in Item 1108(a)(2)(i) through (iii) of
Regulation AB. If a Servicer determines, pursuant to the preceding
sentence, that such Subcontractor is a
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“servicer”
within the meaning of Item 1101 of Regulation AB and meets the criteria in Item
1108(a)(2)(i) through (iii) of Regulation AB, then such Subcontractor shall be
deemed to be a Sub-Servicer for purposes of this Agreement, the engagement of
such Sub-Servicer shall not be effective unless and until notice is given to the
Depositor and the Trustee of any such Sub-Servicer and Subservicing
Agreement. No Subservicing Agreement shall be effective until 30 days
after such written notice is received by the Depositor and the
Trustee. Such notice shall contain all information reasonably
necessary to enable the Paying Agent to accurately and timely report the event
under Item 6.02 of Form 8-K pursuant to the Exchange Act (if such reports under
the Exchange Act are required to be filed under the Exchange Act).
(q) Amendments. Sections
3.13, 3.14 and 8.17 may be amended by the parties hereto pursuant to
Section 11.01 for purposes of complying with Regulation AB and/or to
conform to standards developed within the commercial mortgage-backed securities
market and the Xxxxxxxx-Xxxxx Act of 2002 or for purposes of designating the
Certifying Person without any Opinions of Counsel, Officer’s Certificates,
Rating Agency Confirmations or the consent of any Certificateholder,
notwithstanding anything to the contrary contained in this
Agreement.
Section
8.18 Maintenance of Mortgage
File.
Except
for the release of items in the Mortgage File contemplated by this Agreement,
including, without limitation, as necessary for the enforcement of the holder’s
rights and remedies under the related Mortgage Loan, the Trustee covenants and
agrees that it shall maintain each Mortgage File in the State of [______], and
that it shall not move any Mortgage File outside the State of
[ ],
other than as specifically provided for in this Agreement, unless it shall first
obtain and provide, at the expense of the Trustee, an Opinion of Counsel to the
Depositor and the Rating Agencies to the effect that the Trustee’s first
priority interest in the Mortgage Notes has been duly and fully perfected under
the applicable laws and regulations of such other
jurisdiction.
ARTICLE
IX
TERMINATION
TERMINATION
Section
9.01 Termination Upon Repurchase
or Liquidation of All Mortgage Loans.
Subject
to Section 9.02, the Trust Fund and the respective obligations and
responsibilities under this Agreement of the Depositor, the Master Servicer, the
Special Servicer and the Trustee (other than the obligations of the Trustee on
behalf of the Trustee to provide for and make payments to Certificateholders as
hereafter set forth) shall terminate upon payment (or provision for payment)
(i) to the Certificateholders of all amounts held by or on behalf of the
Trustee and required hereunder to be so paid on the Distribution Date following
the earlier to occur of (A) the purchase by the Master Servicer, the Special
Servicer or the Majority Subordinate Certificateholder of all Mortgage Loans,
the REO Loan related to the [__________] Serviced Mortgage Loan, if any, and
each REO Property remaining in REMIC I at a price equal to (1) the
aggregate Purchase Price of all the Mortgage Loans included in REMIC I,
plus (2) the
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appraised
value of the Trust Fund’s interest in each REO Property (other than the Trust
Fund’s beneficial interest in any REO Property related to the
[__________] Loan), if any, included in REMIC I, such appraisal to be
conducted by an Independent Appraiser selected by the Master Servicer and
approved by the Trustee, plus (3) with respect to any
REO Property related to the [__________] Serviced Mortgage Loan, the pro rata portion of the
appraised value of such REO Property (based on an appraisal conducted in
accordance with the [__________] Pooling and Servicing Agreement of the property
owned by the [__________] Trustee on behalf of the owners thereof), based on the
outstanding principal balances of the notes constituting the [__________] Whole
Loan, as the case may be, minus (4) if the purchaser is
the Master Servicer, the aggregate amount of unreimbursed Advances made by the
Master Servicer, together with any interest accrued and payable to the Master
Servicer in respect of unreimbursed Advances in accordance with
Sections 3.03(d) and 4.03(d) and any unpaid Master Servicing Fees
remaining outstanding (which items shall be deemed to have been paid or
reimbursed to the Master Servicer in connection with such purchase), and (B) the
final payment or other liquidation (or any advance with respect thereto) of the
last Mortgage Loan or REO Property remaining in REMIC I, and (ii) to
the Trustee, the Master Servicer, the Special Servicer and the officers,
directors, employees and agents of each of them of all amounts which may have
become due and owing to any of them hereunder; provided, however, that in no event
shall the Trust Fund created hereby continue beyond the expiration of 21 years
from the death of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the
late ambassador of the United States to the Court of St. Xxxxx, living on the
date hereof.
Subject
in each case to the terms of the related Intercreditor Agreement, the
obligations and responsibilities under this Agreement of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, and the Companion Paying
Agent shall terminate with respect to any Companion Loan to the extent
(i) its related Co-Lender Loan has been paid in full or is no longer part
of the Trust Fund and (ii) no amounts payable by the related Companion
Holder to or for the benefit of the Trust Fund or any party hereto in accordance
with the related Intercreditor Agreement remain due and owing.
The
Master Servicer, the Special Servicer or the Majority Subordinate
Certificateholder may at its option elect to purchase all of the Mortgage Loans
and the Trust Fund’s interest in each REO Property remaining in REMIC I as
contemplated by clause (i) of the preceding paragraph by giving written
notice to the other parties hereto no later than 60 days prior to the
anticipated date of purchase; provided, however, that (i) the
aggregate Stated Principal Balance of the Mortgage Pool at the time of such
election is less than 1.0% of the aggregate Cut-Off Date Balances of the
Mortgage Loans, and (ii) the Master Servicer shall not have the right to
effect such a purchase if, within 30 days following the Master Servicer’s
delivery of a notice of election pursuant to this paragraph, the Special
Servicer or the Majority Subordinate Certificateholder shall give notice of its
election to purchase all of the Mortgage Loans and each REO Property remaining
in REMIC I and shall thereafter effect such purchase in accordance with the
terms hereof. The Master Servicer or the Majority Subordinate
Certificateholder shall not have the right to effect such a purchase if, within
30 days following the Special Servicer’s delivery of a notice of election
pursuant to this paragraph, the Special Servicer shall give notice of its
election to purchase all of the Mortgage Loans and the Trust Fund’s interest in
each REO Property remaining in REMIC I and shall thereafter effect such
purchase in accordance with the terms hereof. If the Trust Fund is to
be terminated in connection
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with the
Master Servicer’s, the Special Servicer’s or the Majority Subordinate
Certificateholder’s purchase of all of the Mortgage Loans and the Trust Fund’s
interest in each REO Property remaining in REMIC I, the Master Servicer,
the Special Servicer or the Majority Subordinate Certificateholder, as
applicable, shall deliver to the Paying Agent for deposit in the Distribution
Account not later than the P&I Advance Date relating to the Distribution
Date on which the final distribution on the Certificates is to occur an amount
in immediately available funds equal to the above-described purchase
price. In addition, the Master Servicer shall transfer to the
Distribution Account all amounts required to be transferred thereto on such
P&I Advance Date from the Certificate Account pursuant to the first
paragraph of Section 3.04(b), together with any other amounts on deposit in
the Certificate Account that would otherwise be held for future
distribution. Upon confirmation that such final deposit has been
made, the Trustee shall release or cause to be released to the Master Servicer,
the Special Servicer, the Majority Subordinate Certificateholder, as applicable,
the Mortgage Files for the remaining Mortgage Loans and shall execute all
assignments, endorsements and other instruments furnished to it by the Master
Servicer, the Special Servicer or the Majority Subordinate Certificateholder, as
applicable, as shall be necessary to effectuate the transfer of the Mortgage
Loans and REO Properties to the Master Servicer, the Special Servicer or the
Majority Subordinate Certificateholder (or their respective designees), and, in
the case of a Loan Pair, to the related Companion Holder, as
applicable. Any transfer of Mortgage Loans to the Depositor pursuant
to this paragraph shall be on a servicing-released basis.
Notice of
any termination shall be given promptly by the Trustee by letter to the
Certificateholders mailed (a) if such notice is given in connection with
the Master Servicer’s, the Special Servicer’s or the Majority Subordinate
Certificateholder’s purchase of the Mortgage Loans and the Trust Fund’s interest
in each REO Property remaining in REMIC I, not earlier than the 15th day
and not later than the 25th day of the month next preceding the month of the
final distribution on the Certificates or (b) otherwise during the month of
such final distribution on or before the Determination Date in such month, in
each case specifying (i) the Distribution Date upon which the Trust Fund
will terminate and final payment of the Certificates will be made, (ii) the
amount of any such final payment and (iii) that the Record Date otherwise
applicable to such Distribution Date is not applicable, payments being made only
upon presentation and surrender of the Certificates at the offices of the
Certificate Registrar or such other location therein designated. The
Trustee shall give such notice to the Master Servicer, the Special Servicer and
the Depositor at the time such notice is given to
Certificateholders.
Upon
presentation and surrender of the Certificates by the Certificateholders on the
final Distribution Date, the Paying Agent shall distribute to each
Certificateholder so presenting and surrendering its Certificates such
Certificateholder’s Percentage Interest of that portion of the amounts then on
deposit in the Distribution Account that are allocable to payments on the Class
of Certificates so presented and surrendered. Amounts on deposit in
the Distribution Account as of the final Distribution Date, exclusive of any
portion thereof that would be payable to any Person in accordance with clauses
(ii) through (vii) of Section 3.05(b), including any portion
thereof that represents Prepayment Premiums and Yield Maintenance Charges, shall
be (i) deemed distributed in respect of the REMIC I Regular Interests
and distributed to the Class R-I Certificates in accordance with
Section 4.01(b), Section 4.01(h), Section 4.01(i) and
Section 4.01(l) and (ii) distributed to the REMIC II Certificates
in the order
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of
priority set forth in Section 4.01(a), Section 4.01(b),
Section 4.01(c), Section 4.01(d), Section 4.01(j) and Section
4.01(k), in each case, to the extent of remaining available funds.
On or
after the Final Distribution Date, upon presentation and surrender of the
Class Certificates, the Paying Agent shall distribute to the Class Z
Certificateholders any amount then on deposit in the Additional Interest Account
that was paid on a Mortgage Loan.
Any funds
not distributed to any Holder or Holders of Certificates of such Class on
such Distribution Date because of the failure of such Holder or Holders to
tender their Certificates shall, on such date, be set aside and held uninvested
in trust and credited to the account or accounts of the appropriate
non-tendering Holder or Holders. If any Certificates as to which
notice has been given pursuant to this Section 9.01 shall not have been
surrendered for cancellation within six months after the time specified in such
notice, the Paying Agent shall mail a second notice to the remaining
non-tendering Certificateholders to surrender their Certificates for
cancellation in order to receive the final distribution with respect
thereto. If within one year after the second notice all such
Certificates shall not have been surrendered for cancellation, the Paying Agent,
directly or through an agent, shall take such reasonable steps to contact the
remaining non-tendering Certificateholders concerning the surrender of their
Certificates as it shall deem appropriate, and shall deal with all such
unclaimed amounts in accordance with applicable law. The costs and
expenses of holding such funds in trust and of contacting such
Certificateholders following the first anniversary of the delivery of such
second notice to the non-tendering Certificateholders shall be paid out of such
funds. No interest shall accrue or be payable to any former Holder on
any amount held in trust hereunder.
After the
Registered Certificates and the Class A-1A Certificates have been paid in full
and the remaining outstanding Certificates (other than the Class Z,
Class R-I and Class R-II Certificates) are held by a single
Certificateholder, such Certificateholder shall have the right to exchange all
of the Certificates held thereby for all of the Mortgage Loans and the Trust
Fund’s interest in each REO Property remaining in the Trust Fund by giving
written notice to all parties hereto no later than 30 days prior to the
anticipated date of exchange.
In the
event that such Certificateholder shall elect to exchange all of the
Certificates held thereby for all of the Mortgage Loans and the Trust Fund’s
interest in each REO Property remaining in REMIC I in accordance with the
preceding sentence, such Certificateholder, not later than the date on which the
final distribution on the Certificates is to occur, shall deposit in the
Certificate Account an amount in immediately available funds equal to all
amounts then due and owing to the Master Servicer, the Special Servicer, the
Trustee, the Paying Agent, the Certificate Registrar and/or the
REMIC Administrator hereunder. Upon confirmation that such final
deposits have been made and following the surrender of all the Certificates held
by such Certificateholder on the final Distribution Date, the Custodian, on
behalf of the Trustee, shall release or cause to be released to such
Certificateholder the Mortgage Files for the remaining Mortgage Loans, and the
Trustee shall execute all assignments, endorsements and other instruments
furnished to it by such Certificateholder as shall be necessary to effectuate
transfer of the Mortgage Loans and REO Properties remaining in the Trust
Fund. Thereafter, the Trust Fund and the respective obligations and
responsibilities under this Agreement of the Depositor, the Master Servicer, the
Special Servicer, the Trustee, the REMIC Administrator (other than annual
tax returns and maintenance of books and records and
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the
preparation and filing of final tax returns) and the Paying Agent shall
terminate. Such transfers shall be subject to any rights of any
Sub-Servicers to primary service (or to perform select servicing functions with
respect to) the Mortgage Loans. For federal income tax purposes, the
Certificateholder shall be deemed to have purchased the assets of REMIC I
for an amount equal to the unpaid principal balance, plus accrued unpaid
interest, of the Mortgage Loan(s) (other than the defaulted Mortgage Loan(s) or
the Trust Fund’s interest in any REO Property in such REMIC, and the fair market
value of any defaulted Mortgage Loans or the Trust Fund’s interest in an REO
Property, without duplication of amounts deposited pursuant to the fourth
preceding sentence of this paragraph, and such amounts shall be deemed to have
been paid or distributed in accordance with Section 4.01(a),
Section 4.01(b), Section 4.01(h), Section 4.01(i) and
Section 4.01(j).
In the
case of any Loan Pair, references in this Section 9.01 and Section 9.02 to “REO
Property” shall include only the Trust’s proportionate interest in such REO
Property and not the interest of the Companion Holder(s) therein.
Section
9.02 Additional Termination
Requirements.
(a) If the
Master Servicer, the Special Servicer or the Majority Subordinate
Certificateholders purchase all of the Mortgage Loans and the Trust Fund’s
interest in each REO Property remaining in REMIC I as provided in
Section 9.01, the Trust Fund (and, accordingly, either of REMIC I or
REMIC II) shall be terminated in accordance with the following additional
requirements, unless the Person effecting the purchase obtains at its own
expense and delivers to the Trustee and, in the case of the Depositor, to the
Trustee and the Master Servicer, an Opinion of Counsel, addressed to the Trustee
and the Master Servicer, to the effect that the failure of the Trust Fund to
comply with the requirements of this Section 9.02 will not result in the
imposition of taxes on “prohibited transactions” of either of REMIC I or
REMIC II as defined in Section 860F of the Code or cause either of
REMIC I or REMIC II to fail to qualify as a REMIC at any time
that any Certificates are outstanding:
(i) the
Trustee shall specify the first day in the 90-day liquidation period in a
statement attached to the final Tax Return for REMIC I and REMIC II
pursuant to Treasury Regulations Section 1.860F-1;
(ii) during
such 90-day liquidation period and at or prior to the time of making of the
final payment on the Certificates, the Trustee shall sell all of the assets of
REMIC I to the Master Servicer, the Special Servicer or the Majority
Subordinate Certificateholders, as applicable, for cash; and
(iii) at the
time of the making of the final payment on the Certificates, the Trustee shall
distribute or credit, or cause to be distributed or credited, to the
Certificateholders in accordance with Section 9.01 all cash on hand (other
than cash retained to meet claims), and REMIC I and REMIC II shall
terminate at that time.
(b) By their
acceptance of Certificates, the Holders thereof hereby authorize the Trustee to
specify the 90-day liquidation period for REMIC I and REMIC II, which
authorization shall be binding upon all successor
Certificateholders.
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ARTICLE
X
ADDITIONAL TAX PROVISIONS
ADDITIONAL TAX PROVISIONS
Section
10.01 REMIC Administration.
(a) The
REMIC Administrator shall elect to treat each of REMIC I and
REMIC II as a REMIC under the Code and, if necessary, under applicable
state law. Each such election will be made on Form 1066 or other
appropriate federal or state Tax Returns for the taxable year ending December
31, [____], in the case of each of REMIC I and REMIC II.
(b) The
REMIC I Regular Interests and the Regular Certificates are hereby
designated as “regular interests” (within the meaning of Section 860G(a)(1)
of the Code) in REMIC I and REMIC II, respectively. The
Class R-I Certificates are hereby designated as the single class of “residual interests”
(within the meaning of Section 860G(a)(2) of the Code) in REMIC I, and
the Class R-II Certificates are hereby designated as the single class of
“residual
interests” (within the meaning of Section 860G(a)(2) of the Code) in
REMIC II. None of the Master Servicer, the Special Servicer or
the Trustee shall (to the extent within its control) permit the creation of any
other “interests” in either
of REMIC I or REMIC II (within the meaning of Treasury regulation
Section 1.860D-1(b)(1)).
(c) The
Closing Date is hereby designated as the “startup day” of each of REMIC I
and REMIC II within the meaning of Section 860G(a)(9) of the
Code. The “latest possible maturity date” of the REMIC I Regular
Interests and the Regular Certificates for purposes of the REMIC Provisions
shall be the Rated Final Distribution Date.
(d) The
related Plurality Residual Certificateholder as to the applicable taxable year
is hereby designated as the Tax Matters Person of each of REMIC I and
REMIC II, and shall act on behalf of the related REMIC in relation to
any tax matter or controversy and shall represent the related REMIC in any
administrative or judicial proceeding relating to an examination or audit by any
governmental taxing authority; provided that the
REMIC Administrator is hereby irrevocably appointed to act and shall act as
agent and attorney-in-fact for the Tax Matters Person for REMIC I and
REMIC II in the performance of its duties as such.
(e) Except as
otherwise provided in Section 3.17(a) and subsections (h) and
(i) below, the REMIC Administrator shall pay out of its own funds any
and all routine tax administration expenses of the Trust Fund incurred with
respect to either of REMIC I and REMIC II (but not including any
professional fees or expenses related to audits or any administrative or
judicial proceedings with respect to the Trust Fund that involve the Internal
Revenue Service or state tax authorities, which extraordinary expenses shall be
payable or reimbursable to the Trustee from the Trust Fund unless otherwise
provided in Section 10.01(g) or 10.01(h)).
(f) Within 30
days after the Closing Date, the REMIC Administrator shall obtain taxpayer
identification numbers for REMIC I and REMIC II by preparing and
filing Internal Revenue Service Forms SS-4 and shall prepare and file (if not
previously prepared and
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filed)
with the Internal Revenue Service Form 8811, “Information Return for Real Estate
Mortgage Investment Conduits (REMIC) and Issuers of Collateralized Debt
Obligations” for the Trust Fund. In addition, the
REMIC Administrator shall prepare, cause the Trustee to sign and file all
of the other Tax Returns in respect of each of REMIC I and
REMIC II. The expenses of preparing and filing such returns
shall be borne by the REMIC Administrator without any right of
reimbursement therefor. The other parties hereto shall provide on a
timely basis to the REMIC Administrator or its designee such information
with respect to REMIC I and REMIC II as is in its possession and
reasonably requested by the REMIC Administrator to enable it to perform its
obligations under this Article. Without limiting the generality of
the foregoing, the Depositor, within ten days following the
REMIC Administrator’s request therefor, shall provide in writing to the
REMIC Administrator such information as is reasonably requested by the
REMIC Administrator for tax purposes, as to the valuations and issue prices
of the Certificates, and the REMIC Administrator’s duty to perform its
reporting and other tax compliance obligations under this Article X shall be
subject to the condition that it receives from the Depositor such information
possessed by the Depositor that is necessary to permit the
REMIC Administrator to perform such obligations.
(g) The
REMIC Administrator shall perform on behalf of each of REMIC I and
REMIC II all reporting and other tax compliance duties that are the
responsibility of each such REMIC under the Code, the REMIC Provisions or other
compliance guidance issued by the Internal Revenue Service or, with respect to
State and Local Taxes, any state or local taxing authority. Included
among such duties, the REMIC Administrator shall provide
to: (i) any Transferor of a Residual Certificate or agent of a
Non-Permitted Transferee, such information as is necessary for the application
of any tax relating to the transfer of a Residual Certificate to any Person who
is not a Permitted Transferee; (ii) the Certificateholders, such
information or reports as are required by the Code or the REMIC Provisions,
including, without limitation, reports relating to interest, original issue
discount and market discount or premium (using the Prepayment Assumption as
required hereunder); and (iii) the Internal Revenue Service, the name,
title, address and telephone number of the Person who will serve as the
representative of each of REMIC I and REMIC II.
(h) The
REMIC Administrator shall perform its duties hereunder so as to maintain
the status of each of REMIC I and REMIC II as a REMIC under the REMIC
Provisions (and the Trustee, the Master Servicer and the Special Servicer shall
assist the REMIC Administrator to the extent reasonably requested by the
REMIC Administrator and to the extent of information within the Trustee’s,
the Master Servicer’s or the Special Servicer’s possession or
control). None of the REMIC Administrator, Master Servicer, the
Special Servicer, or the Trustee shall knowingly take (or cause either of
REMIC I or REMIC II to take) any action or fail to take (or fail to
cause to be taken) any action that, under the REMIC Provisions, if taken or not
taken, as the case may be, could (i) endanger the status of either of
REMIC I or REMIC II as a REMIC, or (ii) except as provided in
Section 3.17(a), result in the imposition of a tax upon either of
REMIC I or REMIC II (including, but not limited to, the tax on
prohibited transactions as defined in Section 860F(a)(2) of the Code or the
tax on contributions to a REMIC set forth in Section 860G(d) of
the Code (any such endangerment or imposition or, except as provided in
Section 3.17(a), imposition of a tax, an “Adverse
REMIC Event”)), unless the REMIC Administrator has obtained or
received an Opinion of Counsel (at the expense of the party requesting such
action or at the expense of the Trust Fund if
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the
REMIC Administrator seeks to take such action or to refrain from acting for
the benefit of the Certificateholders) to the effect that the contemplated
action will not result in an Adverse REMIC Event. The
REMIC Administrator shall not take any action or fail to take any action
(whether or not authorized hereunder) as to which the Master Servicer or the
Special Servicer has advised it in writing that either the Master Servicer or
the Special Servicer has received or obtained an Opinion of Counsel to the
effect that an Adverse REMIC Event could occur with respect to such
action. In addition, prior to taking any action with respect to
either of REMIC I or REMIC II, or causing either of REMIC I or
REMIC II to take any action that is not expressly permitted under the terms
of this Agreement, the Master Servicer and the Special Servicer shall consult
with the REMIC Administrator or its designee, in writing, with respect to
whether such action could cause an Adverse REMIC Event to
occur. Neither the Master Servicer nor the Special Servicer shall
take any such action or cause either of REMIC I or REMIC II to take
any such action as to which the REMIC Administrator has advised it in
writing that an Adverse REMIC Event could occur, and neither the Master
Servicer nor the Special Servicer shall have any liability hereunder for any
action taken by it in accordance with the written instructions of the
REMIC Administrator. The REMIC Administrator may consult
with counsel to make such written advice, and the cost of same shall be borne by
the party seeking to take the action not expressly permitted by this Agreement,
but in no event at the cost or expense of the Trust Fund, the Trustee or the
REMIC Administrator. At all times as may be required by the
Code, the REMIC Administrator (to the extent it is within its control)
shall take all necessary actions within the scope of its responsibilities as
more specifically set forth in this Agreement such that it does not cause
substantially all of the assets of each of REMIC I and REMIC II to
fail to consist of “qualified mortgages” as defined in Section 860G(a)(3)
of the Code and “permitted investments” as defined in Section 860G(a)(5) of
the Code.
(i) If any
tax is imposed on either of REMIC I or REMIC II, including, without
limitation, “prohibited transactions” taxes as defined in
Section 860F(a)(2) of the Code, any tax on “net income from foreclosure
property” as defined in Section 860G(c) of the Code, any taxes on
contributions to either of REMIC I or REMIC II after the Startup Day
pursuant to Section 860G(d) of the Code, and any other tax imposed by
the Code or any applicable provisions of State or Local Tax laws (other than any
tax permitted to be incurred by the Special Servicer pursuant to
Section 3.17(a)), such tax, together with all incidental costs and expenses
(including, without limitation, penalties and reasonable attorneys’ fees), shall
be charged to and paid by: (i) the REMIC Administrator, if
such tax arises out of or results from a breach by the REMIC Administrator
of any of its obligations under this Article X; provided that no liability
shall be imposed upon the REMIC Administrator under this clause if another
party has responsibility for payment of such tax under clauses (iii) or
(v) of this Section; (ii) the Special Servicer, if such tax arises out
of or results from a breach by the Special Servicer of any of its obligations
under Article III or this Article X; (iii) the Master Servicer, if such tax
arises out of or results from a breach by the Master Servicer of any of its
obligations under Article III or this Article X; (iv) the Trustee if such
tax arises out of or results from a breach by the Trustee of any of its
respective obligations under Article IV, Article VIII or this Article X;
(v) the Mortgage Loan Seller, if such tax was imposed due to the fact that
any of the Mortgage Loans did not, at the time of their transfer to
REMIC I, as applicable, constitute a “qualified mortgage” as defined in
Section 860G(a)(3) of the Code; or (vi) the Trust Fund, excluding the
portion thereof constituting the Additional Interest Grantor Trust, in all other
instances. Any tax permitted to be incurred by the Special Servicer
pursuant to Section 3.17(a) shall be charged to and paid by the
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Trust
Fund. Any such amounts payable by the Trust Fund shall be paid by the
Paying Agent upon the written direction of the REMIC Administrator out of
amounts on deposit in the Distribution Account in reduction of the Available
Distribution Amount pursuant to Section 3.05(b).
(j) The
REMIC Administrator shall, for federal income tax purposes, maintain books
and records with respect to REMIC I and REMIC II on a calendar year
and on an accrual basis.
(k) Following
the Startup Day, none of the Trustee, the Master Servicer or the Special
Servicer shall accept any contributions of assets to either of REMIC I or
REMIC II unless it shall have received an Opinion of Counsel (at the
expense of the party seeking to cause such contribution and in no event at the
expense of the Trust Fund or the Trustee) to the effect that the inclusion of
such assets in such REMIC will not cause: (i) such
REMIC to fail to qualify as a REMIC at any time that any Certificates
are outstanding; or (ii) the imposition of any tax on such REMIC under the
REMIC Provisions or other applicable provisions of federal, state and local law
or ordinances.
(l) None of
the Trustee, the Master Servicer or the Special Servicer shall consent to or, to
the extent it is within the control of such Person,
permit: (i) the sale or disposition of any of the Mortgage Loans
(except in connection with (A) the default or foreclosure of a Mortgage Loan,
including, but not limited to, the sale or other disposition of a Mortgaged
Property acquired by deed in lieu of foreclosure, (B) the bankruptcy of either
of REMIC I or REMIC II, (C) the termination of either of REMIC I
and REMIC II pursuant to Article IX of this Agreement, or (D) a purchase of
Mortgage Loans pursuant to or as contemplated by Article II or III of this
Agreement); (ii) the sale or disposition of any investments in the
Servicing Accounts, the Interest Reserve Accounts, the Certificate Account, the
Distribution Account, the Companion Distribution Account, the Gain-on-Sale
Reserve Account or the REO Account for gain; or (iii) the acquisition of
any assets on behalf of either of REMIC I or REMIC II (other than (1)
a Mortgaged Property acquired through foreclosure, deed in lieu of foreclosure
or otherwise in respect of a Defaulted Mortgage Loan, (2) a Qualified Substitute
Mortgage Loan pursuant to Article II hereof and (3) Permitted Investments
acquired in connection with the investment of funds in the Servicing Accounts,
the Interest Reserve Accounts, the Certificate Account, the Distribution
Account, the Companion Distribution Account, the Gain-on-Sale Reserve Account or
the REO Account); in any event unless it has received an Opinion of Counsel (at
the expense of the party seeking to cause such sale, disposition, or acquisition
but in no event at the expense of the Trust Fund or the Trustee) to the effect
that such sale, disposition, or acquisition will not
cause: (x) either of REMIC I or REMIC II to fail to
qualify as a REMIC at any time that any Certificates are outstanding; or
(y) the imposition of any tax on either of REMIC I or REMIC II under
the REMIC Provisions or other applicable provisions of federal, state and local
law or ordinances.
(m) Except as
permitted by Section 3.17(a), none of the Trustee, the Master Servicer and
the Special Servicer shall enter into any arrangement by which either of
REMIC I or REMIC II will receive a fee or other compensation for
services nor permit either of REMIC I or REMIC II to receive any
income from assets other than “qualified mortgages” as defined in
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Section 860G(a)(3)
of the Code or “permitted investments” as defined in Section 860G(a)(5) of
the Code.
(n) The
Trustee shall treat the Class X-C Certificates as representing regular interests
in REMIC II, in the form of the Corresponding Components, with a pass-through
rate.
Section
10.02 Administration of the
Additional Interest Grantor Trust.
(a) The
REMIC Administrator shall treat the Additional Interest Grantor Trust, for
tax return preparation purposes, as a grantor trust under the Code and shall
treat the Additional Interest, the Additional Interest Account and amounts held
from time to time in the Additional Interest Account that represent Additional
Interest as separate assets of the Additional Interest Grantor Trust, and not
either of REMIC I or REMIC II permitted by Treasury Regulations
Section 1.860G-2(i)(1). The Class Z Certificates are hereby
designated as representing an undivided, beneficial interest in Additional
Interest payable on the Mortgage Loans and proceeds thereof in the Additional
Interest Account.
(b) [Reserved]
(c) The REMIC
Administrator shall pay out of its own funds any and all routine tax
administration expenses of the Trust Fund incurred with respect to the
Additional Interest Grantor Trust (but not including any professional fees or
expenses related to audits or any administrative or judicial proceedings with
respect to the Trust Fund that involve the Internal Revenue Service or state tax
authorities which extraordinary expenses shall be payable or reimbursable to the
REMIC Administrator from the Trust Fund unless otherwise provided in
Section 10.02(f) or 10.02(g)).
(d) The
REMIC Administrator shall prepare, cause the Trustee to sign and file when
due all of the Tax Returns in respect of the Additional Interest Grantor
Trust. The expenses of preparing and filing such returns shall be
borne by the REMIC Administrator without any right of reimbursement
therefor. The other parties hereto shall provide on a timely basis to
the REMIC Administrator or its designee such information with respect to
the Additional Interest Grantor Trust as is in its possession and reasonably
requested by the REMIC Administrator to enable it to perform its
obligations under this Section 10.02. Without limiting the
generality of the foregoing, the Depositor, within ten days following the
REMIC Administrator’s request therefor, shall provide in writing to the
REMIC Administrator such information as is reasonably requested by the
REMIC Administrator for tax purposes, and the REMIC Administrator’s
duty to perform its reporting and other tax compliance obligations under this
Section 10.02 shall be subject to the condition that it receives from the
Depositor such information possessed by the Depositor that is necessary to
permit the REMIC Administrator to perform such obligations.
(e) The
REMIC Administrator shall furnish or cause to be furnished to the
Class Z Certificateholders on the cash or accrual method of accounting, as
applicable, such information as to their respective portions of the income and
expenses of the Additional Interest Grantor Trust, at the time and in the manner
required under the Code, and shall perform on behalf of the Additional Interest
Grantor Trust all reporting and other tax compliance duties that
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are
required in respect thereof under the Code, the Grantor Trust Provisions or
other compliance guidance issued by the Internal Revenue Service or any state or
local taxing authority.
(f) The
REMIC Administrator shall perform its duties hereunder so as to maintain
the status of the Additional Interest Grantor Trust as grantor trusts under the
Grantor Trust Provisions (and the Trustee, the Master Servicer and the Special
Servicer shall assist the REMIC Administrator to the extent reasonably
requested by the REMIC Administrator and to the extent of information
within the Trustee’s, the Master Servicer’s or the Special Servicer’s possession
or control). None of the REMIC Administrator, Master Servicer,
the Special Servicer or the Trustee shall knowingly take (or cause the
Additional Interest Grantor Trust to take) any action or fail to take (or fail
to cause to be taken) any action that, under the Grantor Trust Provisions, if
taken or not taken, as the case may be, could endanger the status of the
Additional Interest Grantor Trust as a grantor trust under the Grantor Trust
Provisions (any such endangerment of grantor trust status, an “Adverse Grantor Trust
Event”), unless the REMIC Administrator has obtained or received an
Opinion of Counsel (at the expense of the party requesting such action or at the
expense of the Trust Fund if the REMIC Administrator seeks to take such
action or to refrain from taking any action for the benefit of the
Certificateholders) to the effect that the contemplated action will not result
in an Adverse Grantor Trust Event. None of the other parties hereto
shall take any action or fail to take any action (whether or not authorized
hereunder) as to which the REMIC Administrator has advised it in writing
that the REMIC Administrator has received or obtained an Opinion of Counsel
to the effect that an Adverse Grantor Trust Event could result from such action
or failure to act. In addition, prior to taking any action with
respect to the Additional Interest Grantor Trust, or causing the Trust Fund to
take any action, that is not expressly permitted under the terms of this
Agreement, the Master Servicer and the Special Servicer shall consult with the
REMIC Administrator or its designee, in writing, with respect to whether
such action could cause an Adverse Grantor Trust Event to
occur. Neither the Master Servicer nor the Special Servicer shall
have any liability hereunder for any action taken by it in accordance with the
written instructions of the REMIC Administrator. The
REMIC Administrator may consult with counsel to make such written advice,
and the cost of same shall be borne by the party seeking to take the action not
expressly permitted by this Agreement, but in no event at the cost or expense of
the Trust Fund, the REMIC Administrator or the Trustee. Under no
circumstances may the REMIC Administrator vary the assets of the Additional
Interest Grantor Trust so as to take advantage of variations in the market so as
to improve the rate of return of Holders of the Class Z
Certificates.
(g) If any
tax is imposed on the Additional Interest Grantor Trust, such tax, together with
all incidental costs and expenses (including, without limitation, penalties and
reasonable attorneys’ fees), shall be charged to and paid
by: (i) the REMIC Administrator, if such tax arises out of
or results from a breach by the REMIC Administrator of any of its
obligations under this Section 10.02; (ii) the Special Servicer, if
such tax arises out of or results from a breach by the Special Servicer of any
of its obligations under Article III or this Section 10.02; (iii) the
Master Servicer, if such tax arises out of or results from a breach by the
Master Servicer of any of its obligations under Article III or this
Section 10.02; (iv) the Trustee, if such tax arises out of or results
from a breach by the Trustee, of any of its obligations under Article IV,
Article VIII or this Section 10.02; or (v) the portion of the Trust
Fund constituting the Additional Interest Grantor Trust in all other
instances.
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ARTICLE
XI
MISCELLANEOUS PROVISIONS
MISCELLANEOUS PROVISIONS
Section
11.01 Amendment.
(a) This
Agreement may be amended from time to time by the mutual agreement of the
Depositor, the Master Servicer, the Special Servicer and the Trustee, without
the consent of any of the Certificateholders or Companion Holders, (i) to
cure any ambiguity, (ii) to correct, modify or supplement any provision
herein which may be inconsistent with any other provision herein, (iii) to
add any other provisions with respect to matters or questions arising hereunder
which shall not be inconsistent with the provisions hereof, (iv) to relax
or eliminate any requirement hereunder imposed by the REMIC Provisions if the
REMIC Provisions are amended or clarified such that any such requirement may be
relaxed or eliminated, or (v) if such amendment, as evidenced by an Opinion
of Counsel (at the expense of the Trust Fund, in the case of any amendment
requested by the Master Servicer or Special Servicer that protects or is in
furtherance of the interests of the Certificateholders, and otherwise at the
expense of the party seeking such amendment) delivered to the Master Servicer,
the Special Servicer and the Trustee, is advisable or reasonably necessary to
comply with any requirements imposed by the Code or any successor or amendatory
statute or any temporary or final regulation, revenue ruling, revenue procedure
or other written official announcement or interpretation relating to federal
income tax laws or any such proposed action which, if made effective, would
apply retroactively to REMIC I or REMIC II created hereunder at least
from the effective date of such amendment, or would be necessary to avoid the
occurrence of a prohibited transaction or to reduce the incidence of any tax
that would arise from any actions taken with respect to the operation of any
such REMIC or to comply with any requirements imposed by the Commission
with respect to any adopted temporary or final regulation or other written
official announcement or interpretation relating to the securities laws which,
would apply retroactively to the Depositor, any Underwriter or the Trust Fund;
provided that no such
amendment may significantly change the activities of the Trust Fund in a manner
that would adversely affect the Trust Fund’s status as a “qualifying special
purpose entity” for purposes of FAS 140; provided, further, that such action
(except any amendment described in clause (v) above) shall not, as
evidenced by an Opinion of Counsel (at the expense of the Trust Fund, in the
case of any amendment requested by the Master Servicer or Special Servicer that
protects or is in furtherance of the interests of the Certificateholders, and
otherwise at the expense of the party seeking such amendment) obtained by or
delivered to the Master Servicer, the Special Servicer and the Trustee,
adversely affect in any material respect the interests of any Certificateholder
or Companion Holder with respect to the Pari Passu Mortgage Loans; provided, further, that the Master
Servicer, the Special Servicer and the Trustee shall have first obtained from
each Rating Agency written confirmation that such amendment will not result in
the qualification, downgrade or withdrawal of the rating on any Class of
Certificates.
(b) This
Agreement may also be amended from time to time by the agreement of the
Depositor, the Master Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 51% of the Voting
Rights allocated to the affected Classes for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Agreement or of modifying in any manner the rights of the Holders
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of
Certificates; provided,
however, that no such
amendment shall (i) reduce in any manner the amount of, or delay the timing
of, payments received or advanced on Mortgage Loans that are required to be
distributed on any Certificate without the consent of the Holder of such
Certificate, or which are required to be distributed to a Companion Holder,
without the consent of such Companion Holder, (ii) as evidenced by an
Opinion of Counsel obtained by or delivered to the Master Servicer, the Special
Servicer and the Trustee, adversely affect in any material respect the interests
of the Holders of any Class of Certificates or the interests of a Companion
Holder in a manner other than as described in (i) without the consent of
the Holders of all Certificates of such Class or the consent of such
Companion Holders, as the case may be, (iii) modify the provisions of this
Section 11.01 without the consent of the Holders of all Certificates then
outstanding and the consent of all Companion Holders, (iv) modify the
provisions of Section 3.20 or the definition of Servicing Standard without
the consent of the Holders of Certificates entitled to all of the Voting Rights
and the consent of all Companion Holders or (v) modify the specified
percentage of Voting Rights which are required to be held by Certificateholders
to consent or not to object to any particular action pursuant to any provision
of this Agreement without the consent of the Holders of all Certificates then
outstanding. Notwithstanding any other provision of this Agreement,
for purposes of the giving or withholding of consents pursuant to this
Section 11.01, Certificates registered in the name of the Depositor or any
Affiliate of the Depositor shall be entitled to the same Voting Rights with
respect to matters described above as they would if any other Person held such
Certificates, so long as neither the Depositor nor any of its Affiliates is
performing servicing duties with respect to any of the Mortgage
Loans.
(c) Notwithstanding
any contrary provision of this Agreement, the Trustee shall not consent to any
amendment to this Agreement unless it shall first have obtained or been
furnished with an Opinion of Counsel (at the expense of the Trust Fund, in the
case of any amendment requested by the Master Servicer or Special Servicer that
protects or is in furtherance of the interests of the Certificateholders, and,
otherwise, at the expense of the party seeking such amendment) to the effect
that (i) such amendment or the exercise of any power granted to the
Trustee, the Master Servicer or the Special Servicer in accordance with such
amendment will not result in the imposition of a tax on either of REMIC I
or REMIC II pursuant to the REMIC Provisions or on the Additional Interest
Grantor Trust or cause either of REMIC I or REMIC II to fail to
qualify as a REMIC or the Additional Interest Grantor Trust to fail to
qualify as a grantor trust at any time that any Certificates are outstanding and
(ii) such amendment complies with the provisions of this
Section 11.01.
(d) Promptly
after the execution of any such amendment, the Trustee shall send a copy thereof
to each Certificateholder and Companion Holder.
(e) It shall
not be necessary for the consent of Certificateholders under this
Section 11.01 to approve the particular form of any proposed amendment, but
it shall be sufficient if such consent shall approve the substance
thereof. The manner of obtaining such consents and of evidencing the
authorization of the execution thereof by Certificateholders shall be subject to
such reasonable regulations as the Trustee may prescribe.
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(f) Each of
the Master Servicer, the Special Servicer and the Trustee may but shall not be
obligated to enter into any amendment pursuant to this Section that affects
its rights, duties and immunities under this Agreement or
otherwise.
(g) The cost
of any Opinion of Counsel to be delivered pursuant to Section 11.01(a),
(b) or (c) shall be borne by the Person seeking the related amendment,
except that if the Master Servicer, the Special Servicer or the Trustee requests
any amendment of this Agreement that protects or is in furtherance of the rights
and interests of Certificateholders, the cost of any Opinion of Counsel required
in connection therewith pursuant to Section 11.01(a), (b) or
(c) shall be payable out of the Certificate Account or the Distribution
Account pursuant to Sections 3.05 and 4.01.
Section
11.02 Recordation of Agreement;
Counterparts.
(a) To the
extent permitted by applicable law, this Agreement is subject to recordation in
all appropriate public offices for real property records in all the counties or
other comparable jurisdictions in which any or all of the properties subject to
the Mortgages are situated, and in any other appropriate public recording office
or elsewhere, such recordation to be effected by the Master Servicer at the
expense of the Trust Fund, but only upon direction accompanied by an Opinion of
Counsel (the cost of which may be paid out of the Certificate Account pursuant
to Section 3.05(a)) to the effect that such recordation materially and
beneficially affects the interests of the Certificateholders; provided, however, that the Trustee
shall have no obligation or responsibility to determine whether any such
recordation of this Agreement is required.
(b) For the
purpose of facilitating the recordation of this Agreement as herein provided and
for other purposes, this Agreement may be executed simultaneously in any number
of counterparts, each of which counterparts shall be deemed to be an original,
and such counterparts shall constitute but one and the same
instrument.
Section
11.03 Limitation on Rights of
Certificateholders.
(a) The death
or incapacity of any Certificateholder shall not operate to terminate this
Agreement or the Trust Fund, nor entitle such Certificateholder’s legal
representatives or heirs to claim an accounting or to take any action or
proceeding in any court for a partition or winding up of the Trust Fund, nor
otherwise affect the rights, obligations and liabilities of the parties hereto
or any of them.
(b) No
Certificateholder shall have any right to vote (except as expressly provided for
herein) or in any manner otherwise control the operation and management of the
Trust Fund, or the obligations of the parties hereto, nor shall anything herein
set forth, or contained in the terms of the Certificates, be construed so as to
constitute the Certificateholders from time to time as partners or members of an
association; nor shall any Certificateholder be under any liability to any third
party by reason of any action taken by the parties to this Agreement pursuant to
any provision hereof.
(c) No
Certificateholder shall have any right by virtue of any provision of this
Agreement to institute any suit, action or proceeding in equity or at law upon
or under or with
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respect
to this Agreement or any Mortgage Loan, unless, with respect to any suit, action
or proceeding upon or under or with respect to this Agreement, such Holder
previously shall have given to the Trustee a written notice of default
hereunder, and of the continuance thereof, as hereinbefore provided, and unless
also (except in the case of a default by the Trustee) the Holders of
Certificates entitled to at least 25% of the Voting Rights shall have made
written request upon the Trustee to institute such action, suit or proceeding in
its own name as Trustee hereunder and shall have offered to the Trustee such
reasonable indemnity as it may require against the costs, expenses and
liabilities to be incurred therein or thereby, and the Trustee, for 60 days
after its receipt of such notice, request and offer of indemnity, shall have
neglected or refused to institute any such action, suit or
proceeding. It is understood and intended, and expressly covenanted
by each Certificateholder with every other Certificateholder and the Trustee,
that no one or more Holders of Certificates shall have any right in any manner
whatsoever by virtue of any provision of this Agreement to affect, disturb or
prejudice the rights of the Holders of any other of such Certificates, or to
obtain or seek to obtain priority over or preference to any other such Holder,
which priority or preference is not otherwise provided for herein, or to enforce
any right under this Agreement, except in the manner herein provided and for the
equal, ratable and common benefit of all Certificateholders. For the
protection and enforcement of the provisions of this Section, each and every
Certificateholder and the Trustee shall be entitled to such relief as can be
given either at law or in equity.
Section
11.04 Governing
Law.
This
Agreement and the Certificates shall be construed in accordance with the
internal laws of the State of New York applicable to agreements made and to be
performed in said State, and the obligations, rights and remedies of the parties
hereunder shall be determined in accordance with such laws.
Section
11.05 Notices.
Any
communications provided for or permitted hereunder shall be in writing and,
unless otherwise expressly provided herein, shall be deemed to have been duly
given when delivered to: (i) in the case of the Depositor, Xxxxx
Fargo Commercial Mortgage Securities, Inc., 000 Xxxxx Xxxxxxx Xxxxxx, Xxxxxxxxx,
Xxxxx Xxxxxxxx 00000, Attention: Xxxxx Xxxx, Director, facsimile
number: (000) 000-0000 or email address: xxxxxx.xxxx@xxxxxxxxxx.xxx;
(ii) in the case of the Master Servicer,
[_________________________________________________________]; (iii) in the
case of the Special Servicer, [__________]; (iv) in the case of the
Trustee, [_________________________]; (v) in the case of the
Underwriters to each of [________________]; (vi) in the case of the initial
Controlling Class Representative, [__________________________]; (vii) in
the case of the Rating Agencies to each of [____________________]; and
[__________________________________]; and (viii) in the case of any Companion
Holder, the address(es) for notice to such Companion Holder as set forth in the
related Intercreditor Agreement or as to each such Person such other address as
may hereafter be furnished by such Person to the parties hereto in
writing. Any communication required or permitted to be delivered to a
Certificateholder shall be deemed to have been duly given when mailed first
class, postage prepaid, to the address of such Holder as shown in the
Certificate Register.
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Section
11.06 Severability of
Provisions.
If any
one or more of the covenants, agreements, provisions or terms of this Agreement
shall be for any reason whatsoever held invalid, then such covenants,
agreements, provisions or terms shall be deemed severable from the remaining
covenants, agreements, provisions or terms of this Agreement and shall in no way
affect the validity or enforceability of the other provisions of this Agreement
or of the Certificates or the rights of the Holders thereof.
Section
11.07 Grant of a Security
Interest.
The
Depositor intends that the conveyance of the Depositor’s right, title and
interest in and to the Mortgage Loans pursuant to this Agreement shall
constitute a sale and not a pledge of security for a loan. If such
conveyance is deemed to be a pledge of security for a loan, however, the
Depositor intends that the rights and obligations of the parties to such loan
shall be established pursuant to the terms of this Agreement. The
Depositor also intends and agrees that, in such event, the Depositor shall be
deemed to have granted to the Trustee (in such capacity) a first priority
security interest in the Depositor’s entire right, title and interest in and to
the assets constituting the Trust Fund.
Section
11.08 Xxxxxx
Act.
Any
provisions required to be contained in this Agreement by Section 126 of
Article 4-A of the New York Real Property Law are hereby incorporated herein,
and such provisions shall be in addition to those conferred or imposed by this
Agreement; provided,
however, that to the
extent that such Section 126 shall not have any effect, and if said
Section 126 should at any time be repealed or cease to apply to this
Agreement or be construed by judicial decision to be inapplicable, said
Section 126 shall cease to have any further effect upon the provisions of
this Agreement. In case of a conflict between the provisions of this
Agreement and any mandatory provisions of Article 4-A of the New York Real
Property Law, such mandatory provisions of said Article 4-A shall prevail; provided that if said Article
4-A shall not apply to this Agreement, should at any time be repealed or cease
to apply to this Agreement or be construed by judicial decision to be
inapplicable, such mandatory provisions of such Article 4-A shall cease to have
any further effect upon the provisions of this Agreement.
Section
11.09 Successors and Assigns;
Beneficiaries.
The
provisions of this Agreement shall be binding upon and inure to the benefit of
the respective successors and assigns of the parties hereto, and all such
provisions shall inure to the benefit of the Certificateholders. This
Agreement may not be amended in any manner that would adversely affect the
rights of any third party beneficiary hereof without its consent. No other
person, including, without limitation, any Mortgagor, shall be entitled to any
benefit or equitable right, remedy or claim under this Agreement; provided that the Companion
Holders are intended third party beneficiaries hereunder.
Section
11.10 Article and
Section Headings.
The
article and section headings herein are for convenience of reference only, and
shall not limit or otherwise affect the meaning hereof.
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Section
11.11 Notices to Rating
Agencies.
(a) The
Trustee shall promptly provide notice to each Rating Agency and the Controlling
Class Representative with respect to each of the following of which it has
actual knowledge:
(i) any
material change or amendment to this Agreement;
(ii) the
occurrence of any Event of Default that has not been cured;
(iii) the
merger, consolidation, resignation or termination of the Trustee, the Master
Servicer or the Special Servicer;
(iv) the
repurchase of Mortgage Loans by any of the Mortgage Loan Sellers pursuant to the
applicable Mortgage Loan Purchase Agreement;
(v) any
change in the location of the Servicing Accounts, the Interest Reserve Accounts,
the Certificate Account, the Gain-on-Sale Reserve Account, the Companion
Distribution Account or the Distribution Account;
(vi) the final
payment to any Class of Certificateholders; and
(vii) any sale
or disposition of any Mortgage Loan or REO Property.
(b) The
Master Servicer shall promptly provide notice to each Rating Agency with respect
to each of the following of which it has actual knowledge:
(i) the
resignation or removal of the Trustee; and
(ii) any
change in the location of the Certificate Account.
(c) The
Special Servicer shall furnish each Rating Agency and the Controlling Class
Representative with respect to a non-performing or Defaulted Mortgage Loan such
information as the Rating Agency or Controlling Class Representative shall
reasonably request and which the Special Servicer can reasonably provide in
accordance with applicable law.
(d) To the
extent applicable, each of the Master Servicer, the Special Servicer and the
Trustee shall promptly furnish, or cause to be furnished, to each Rating Agency
copies of the following items:
(i) each of
the annual statements as to compliance described in
Section 3.13;
(ii) each of
the annual independent public accountants’ servicing reports described in
Section 3.14;
(iii) any
Officer’s Certificate delivered to the Trustee pursuant to
Section 4.03(c) or 3.08; and
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(iv) each of
the reports described in Section 3.12(a) and the statements and
reports described in Sections 3.12(b), 3.12(c) and 3.12(d).
(e) The
Trustee shall (i) make available to each Rating Agency and the Controlling
Class Representative, upon reasonable notice, the items described in
Section 3.15(a) and (ii) promptly deliver to each Rating Agency
and the Controlling Class Representative a copy of any notices given pursuant to
Section 7.03(a) or Section 7.03(b).
(f) Each of
the Trustee, the Master Servicer and the Special Servicer shall provide to each
Rating Agency such other information with respect to the Mortgage Loans and the
Certificates, to the extent such party possesses such information, as such
Rating Agency shall reasonably request.
(g) Notwithstanding
any provision herein to the contrary each of the Master Servicer, the Special
Servicer or the Trustee shall deliver to any Underwriter any report prepared by
such party hereunder upon request.
Section
11.12 Complete
Agreement.
This
Agreement embodies the complete agreement among the parties and may not be
varied or terminated except by a written agreement conforming to the provisions
of Section 11.01. All prior negotiations or representations of
the parties are merged into this Agreement and shall have no force or effect
unless expressly stated herein.
[SIGNATURE
PAGES FOLLOW]
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IN
WITNESS WHEREOF, the parties hereto have caused their names to be signed hereto
by their respective officers thereunto duly authorized, in each case as of the
day and year first above written.
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XXXXX FARGO COMMERCIAL
MORTGAGE SECURITIES, INC., Depositor |
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By:
Name:
Title:
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[_______________],
Master Servicer
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By:
Name:
Title:
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[_______________],
Special Servicer
|
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By:
Name:
Title:
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[_______________],
Trustee
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By:
Name:
Title:
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EXHIBIT
A-1
FORM OF CLASS [A-1, X-0,
X-0, X-XX, X-0, X-0, A-1A, A-M, A-J, B, C, D, E, F,
R-I, R-II]
CERTIFICATE
CLASS
[__] COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES
[__]
evidencing
a beneficial ownership interest in a trust fund (the “Trust Fund”) consisting
primarily of a pool of multifamily and commercial mortgage loans (the “Mortgage
Loans”), such pool being formed and sold by
XXXXX FARGO COMMERCIAL MORTGAGE TRUST
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Pass-Through
Rate: [____]% per annum
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Class
Principal Balance of the Class [ ]
Certificates as of the Closing Date: $__________ |
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Date
of Pooling and Servicing Agreement: as of
[______]
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Initial
Certificate Principal Balance of this Certificate as of the Closing
Date: $__________
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Closing
Date:
[______]
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Aggregate
Stated Principal Balance of the Mortgage Loans as of the Cut-off
Date: $__________
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First
Distribution Date:
[______]
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Master
Servicer:
[Xxxxx Fargo Bank, National
Association]
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Trustee:
[______]
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Special
Servicer:
[______]
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CUSIP
No.: [______]
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Certificate
No.: [______]
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A-1-1
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST CORPORATION, A NEW YORK CORPORATION (“DTC”), TO THE DEPOSITOR, THE MASTER
SERVICER, THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR
REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.
THIS
CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN XXXXX FARGO
COMMERCIAL MORTGAGE SECURITIES, INC., [NAME OF TRUSTEE], XXXXX FARGO BANK,
NATIONAL ASSOCIATION OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER
THIS CERTIFICATE NOR THE UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY
OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT” (A “REMIC”) AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF
1986 (THE “CODE”).
DISTRIBUTIONS
IN REDUCTION OF THE CERTIFICATE PRINCIPAL BALANCE OF THIS CERTIFICATE MAY BE
MADE MONTHLY AS SET FORTH IN THE AGREEMENT REFERRED TO HEREIN. IN ADDITION, IF
THE AGGREGATE CERTIFICATE PRINCIPAL BALANCE OF THE [___] CLASS [___]
CERTIFICATES OF THE SAME SERIES IS REDUCED TO ZERO, THE CERTIFICATE PRINCIPAL
BALANCE OF THIS CERTIFICATE, THE CLASS [___] CERTIFICATES AND THE CLASS [___]
CERTIFICATES MAY BE REDUCED BY CERTAIN LOSSES AND EXPENSES EXPERIENCED BY THE
TRUST FUND AS SET FORTH IN THE AGREEMENT REFERRED TO HEREIN. ACCORDINGLY, THE
OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS THAN
THE AMOUNT SHOWN ABOVE.
[THIS
CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT OF
1933 (THE “SECURITIES ACT”) OR THE SECURITIES LAWS OF ANY STATE. ANY RESALE,
TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH REGISTRATION OR
QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT REQUIRE SUCH
REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE PROVISIONS OF SECTION
5.02 OF THE AGREEMENT REFERRED TO HEREIN.]
A-1-2
[NO
TRANSFER OF THIS CERTIFICATE OR ANY INTEREST THEREIN SHALL BE MADE TO ANY
“EMPLOYEE BENEFIT PLAN” SUBJECT TO TITLE I OF ERISA OR A “PLAN” DESCRIBED BY
SECTION 4975(E)(1) OF THE CODE OR ANY OTHER RETIREMENT PLAN OR OTHER EMPLOYEE
BENEFIT PLAN OR ARRANGEMENT SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW
MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA AND THE CODE, OR ANY
ENTITY DEEMED TO HOLD PLAN ASSETS OF THE FOREGOING BY REASON OF A PLAN’S
INVESTMENT IN SUCH ENTITY (EACH, A “PLAN”). EACH PERSON WHO ACQUIRES THIS
CERTIFICATE SHALL BE REQUIRED (OR, IN THE CASE OF A BOOK-ENTRY CERTIFICATE,
DEEMED) TO HAVE CERTIFIED THAT THE FOREGOING CONDITIONS ARE SATISFIED, AND THAT
IT WILL NOT TRANSFER THIS CERTIFICATE IN VIOLATION OF THE
FOREGOING.]
[SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “RESIDUAL INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT” (A “REMIC”) AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE. CONSEQUENTLY,
TRANSFER OF THIS CERTIFICATE IS ALSO SUBJECT TO THE ADDITIONAL TAX RELATED
TRANSFER RESTRICTIONS DESCRIBED HEREIN. IF ANY PERSON BECOMES THE REGISTERED
HOLDER OF THIS CERTIFICATE IN VIOLATION OF SUCH TRANSFER RESTRICTIONS, SUCH
REGISTRATION SHALL BE DEEMED TO BE OF NO LEGAL FORCE OR EFFECT WHATSOEVER AND
SUCH PERSON SHALL NOT BE DEEMED TO BE A CERTIFICATEHOLDER FOR ANY PURPOSE
HEREUNDER OR UNDER THE AGREEMENT REFERRED TO HEREIN, INCLUDING, BUT NOT LIMITED
TO, THE RECEIPT OF DISTRIBUTIONS ON THIS CERTIFICATE.]
This
certifies that Cede & Co. is the registered owner of the Percentage Interest
evidenced by this Class [__] Certificate (obtained by dividing the principal
amount of this Class [__] Certificate (its “Certificate Principal Balance”) as
of the Closing Date by the aggregate principal amount of all the Class [__]
Certificates (their “Class Principal Balance”) as of the Closing Date) in that
certain beneficial ownership interest evidenced by all the Class [__]
Certificates in the Trust Fund created pursuant to a Pooling and Servicing
Agreement, dated as specified above (the “Agreement”), among Xxxxx Fargo
Commercial Mortgage Securities, Inc. (herein called the “Depositor”, which term
includes any successor entity under the Agreement), [Xxxxx Fargo Bank, National
Association] (herein called the “Master Servicer,” which terms include any
successor entity under the Agreement), [_____] (herein called the “Special
Servicer,” which term includes any successor entity under the Agreement) and
[____] (herein called the “Trustee”, which term includes any successor entity
under the Agreement), a summary of certain of the pertinent provisions of which
is set forth hereafter. To the extent not defined herein, the capitalized terms
used herein have the respective meanings assigned in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is
bound.
A-1-3
Pursuant
to the terms of the Agreement, distributions will be made on the fourth Business
Day following the related Determination Date (each, a “Distribution Date”). The
Determination Date is the 11th day of each month or, if such 11th day is not a
Business Day, the Business Day immediately succeeding, commencing in [_____]
(each, a “Determination Date”). Distributions will be made commencing on the
first Distribution Date specified above, to the Person in whose name this
Certificate is registered at the close of business on the last Business Day of
the month immediately preceding the month of such distribution (the “Record
Date”), in an amount equal to the product of the Percentage Interest evidenced
by this Certificate and the amount required to be distributed to the Holders of
the Class [__] Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on the Class [__]
Certificates will be made by [______], as paying agent (the “Paying Agent”), by
wire transfer of immediately available funds to the account of the Person
entitled thereto at a bank or other entity having appropriate facilities
therefor, if such Certificateholder shall have provided the Paying Agent with
wiring instructions no less than five Business Days prior to the related Record
Date (which wiring instructions may be in the form of a standing order
applicable to all subsequent distributions), or otherwise by check mailed to the
address of such Certificateholder as it appears in the Certificate
Register. Notwithstanding the foregoing, the final distribution on
this Certificate (determined without regard to any possible future reimbursement
of any Realized Loss or Additional Trust Fund Expense previously allocated to
this Certificate) will be made in like manner, but only upon presentation and
surrender of this Certificate at the offices of the Certificate Registrar or
such other location specified in the notice to the Holder hereof of such final
distribution. Also notwithstanding the foregoing, any distribution that may be
made with respect to this Certificate in reimbursement of any Realized Loss or
Additional Trust Fund Expense previously allocated to this Certificate, which
reimbursement is to occur after the date on which this Certificate is
surrendered as contemplated by the preceding sentence, will be made by check
mailed to the address of the Holder that surrenders this Certificate as such
address last appears in the Certificate Register or to any such other address of
which the Paying Agent is subsequently notified in writing.
The
Certificates are limited in right of distribution to certain collections and
recoveries respecting the Mortgage Loans and REO Loans, all as more specifically
set forth herein and in the Agreement. As provided in the Agreement, withdrawals
from the Certificate Account, the Distribution Account and, if established, the
REO Account may be made from time to time for purposes other than, and, in
certain cases, prior to, distributions to Certificateholders, such purposes
including the reimbursement of Advances made, or certain expenses incurred, with
respect to the Mortgage Loans and the payment of interest on such Advances and
expenses.
Interest
accrued on this Certificate during an Interest Accrual Period, plus any unpaid
interest shortfall with respect to this Certificate for any prior Distribution
Date, if any, will be payable on the related Distribution Date to the extent
provided in the Agreement. The “Interest Accrual Period” with respect to any
Distribution Date and with respect to the Class [__] Certificates is the
calendar month preceding the month in which such Distribution Date occurs and is
assumed to consist of 30 days.
Any
distribution to the Holder of this Certificate in reduction of the Certificate
Principal Balance hereof is binding on such Holder and all future Holders of
this Certificate and
A-1-4
any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such distribution is made upon this
Certificate.
The Class
[__] Certificates are issuable in fully registered form only without coupons in
minimum denominations specified in the Agreement. As provided in the Agreement
and subject to certain limitations therein set forth, the Class [__]
Certificates are exchangeable for new Class [__] Certificates in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As
provided in the Agreement and subject to certain limitations therein set forth,
the transfer of this Certificate is registrable in the Certificate Register upon
surrender of this Certificate for registration of transfer at the offices of the
Certificate Registrar, duly endorsed by, or accompanied by a written instrument
of transfer in the form satisfactory to the Certificate Registrar duly executed
by, the Holder hereof or his attorney duly authorized in writing, and thereupon
one or more new Class [__] Certificates in authorized denominations evidencing
the same aggregate Percentage Interest will be issued to the designated
transferee or transferees. No service charge will be imposed for any
registration of transfer or exchange of Class [__] Certificates, but the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any transfer
or exchange of Class [__] Certificates.
Notwithstanding
the foregoing, for so long as this Certificate is registered in the name of Cede
& Co. or in such other name as is requested by an authorized representative
of DTC, transfers of interests in this Certificate shall be made through the
book-entry facilities of DTC.
The
Depositor, the Master Servicer, the Special Servicer, the Trustee, the Paying
Agent and the Certificate Registrar and any agent of the Depositor, the Master
Servicer, the Special Servicer, the Trustee, the Paying Agent or the Certificate
Registrar may treat the Person in whose name this Certificate is registered as
the owner hereof for all purposes whatsoever and none of the Depositor, the
Master Servicer, the Special Servicer, the Trustee, the Paying Agent, the
Certificate Registrar or any such agent shall be affected by notice to the
contrary.
The
Trust Fund and the obligations created by the Agreement shall terminate upon
distribution (or provision for distribution) to the Certificateholders of all
amounts held by or on behalf of the Trustee and required to be distributed to
them pursuant to the Agreement following the earlier to occur of (i) the final
payment (or any advance with respect thereto) or other liquidation of the last
Mortgage Loan or REO Property remaining in the Trust Fund, and (ii) the purchase
by the Master Servicer, the Special Servicer or the Majority Subordinate
Certificateholder at a price determined as provided in the Agreement of all
Mortgage Loans and each REO Property remaining in the Trust Fund. The Agreement
permits, but does not require, the Master Servicer, the Special Servicer or the
Majority Subordinate Certificateholder to purchase from the Trust Fund all
Mortgage Loans and each REO Property remaining therein. The exercise of such
right will effect early retirement of the Class [__] Certificates; however, such
right to purchase is subject to the aggregate Stated Principal Balance of the
Mortgage Pool at the time of purchase being less than 1% of the aggregate Stated
Principal Balance of the Mortgage Loans as of the Cut-Off Date specified on the
face hereof.
A-1-5
In
addition, any exchange by any Certificateholder of all of the then outstanding
Certificates (other than the Class Z, Class R-I and Class R-II Certificates) for
all of the Mortgage Loans and each REO Property remaining in the Trust Fund may
be made: (i) if the then outstanding Certificates (other than the Class Z, Class
R-I and Class R-II Certificates) are held by a single Certificateholder and (ii)
the [__] and Class [__] Certificates have been paid in full.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights and obligations of the Depositor, the
Master Servicer, the Special Servicer and the Trustee and the rights of the
Certificateholders under the Agreement at any time by the Depositor, the Master
Servicer, the Special Servicer and the Trustee with the consent of the Holders
of Certificates entitled to at least 51% of the Voting Rights allocated to the
affected Classes. Any such consent by the Holder of this Certificate shall be
conclusive and binding on such Holder and upon all future Holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange herefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate. The Agreement also permits the amendment thereof, in
certain limited circumstances, including any amendment necessary to maintain the
status of the Trust Fund (or designated portions thereof) as consisting of two
separate REMICs and one grantor trust, without the consent of the Holders of any
of the Certificates.
Unless
the certificate of authentication hereon has been executed by the Certificate
Registrar, by manual signature, this Certificate shall not be entitled to any
benefit under the Agreement or be valid for any purpose.
The
registered Holder hereof, by its acceptance hereof, agrees that it will look
solely to the Trust Fund (to the extent of its rights therein) for distributions
hereunder. This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, and the obligations, rights and remedies of the Holder hereof
shall be determined in accordance with such laws.
A-1-6
IN
WITNESS WHEREOF, the Certificate Registrar has caused this Certificate to be
duly executed.
| Dated: | ||||
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[_______________]
as Certificate Registrar |
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| By: | ||||
| Authorized Representative | ||||
CERTIFICATE
OF AUTHENTICATION
This is
one of the Class [ ] Certificates referred to in the within-mentioned
Agreement.
| Dated: | ||||
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[_______________]
as Authenticating Agent |
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| By: | ||||
| Authorized Representative | ||||
A-1-7
ASSIGNMENT
FOR VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
_________________________________________________________
_________________________________________________________________________________________________________________________________________
(please print or typewrite name and address including postal zip code of assignee)
_________________________________________________________________________________________________________________________________________
(please print or typewrite name and address including postal zip code of assignee)
the
beneficial ownership interest in the Trust Fund evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to assignee on the Certificate
Register of the Trust Fund.
I (we)
further direct the Certificate Registrar to issue a new Commercial Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and deliver such Commercial Mortgage Pass-Through Certificate to
the following address:
_______________________________________________________________
_________________________________________________________________________________________________________________________________.
.
| Dated: | ||||
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Signature
by or on behalf of Assignor
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| Signature Guaranteed | ||||
DISTRIBUTION
INSTRUCTIONS
The
Assignee should include the following for purposes of distribution:
Distributions
shall, if permitted, be made by wire transfer or otherwise, in immediately
available funds, to _______________________________________________
___________________________________________________ for the
account
of __________________________________________________________________________.
Distributions
made by check (such check to be made payable to _____________________) and all
applicable statements and notices should be mailed to
_________________________.
This
information is provided by ________________________________, the Assignee named
above, or ____________________________________, as its agent.
A-1-8
EXHIBIT
B
MORTGAGE LOAN SCHEDULE
MORTGAGE LOAN SCHEDULE
B-1
EXHIBIT
C-1
SCHEDULE OF EXCEPTIONS TO
MORTGAGE FILE DELIVERY
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Loan
No(s)
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Loan
Name
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Exception(s)
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C-1-1
EXHIBIT
C-2
FORM OF CUSTODIAL CERTIFICATION
FORM OF CUSTODIAL CERTIFICATION
[Date]
Xxxxx
Fargo Bank, National Association
000 Xxxxx
Xxxxxxx Xxxxxx
Xxxxxxxxx,
Xxxxx Xxxxxxxx 00000
Xxxxx
Fargo Commercial Mortgage Securities, Inc.
000 Xxxxx
Xxxxxxx Xxxxxx
Xxxxxxxxx,
Xxxxx Xxxxxxxx 00000
Attention: [______________]
[Xxxxx
Fargo Bank, National Association
0000
Xxxxxxxx Xxxxx - URP4, NC 1075
Xxxxxxxxx,
Xxxxx Xxxxxxxx 00000-0000
Attention:
Xxxxx Fargo Commercial Mortgage Trust
Commercial
Mortgage Pass-Through Certificates, Series [________]]
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Re:
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Xxxxx
Fargo Commercial Mortgage Trust,
Commercial
Mortgage Pass-Through Certificates, Series
[________]
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Ladies
and Gentlemen:
(a) [NAME
OF TRUSTEE], as Trustee, hereby certifies to the above referenced parties that,
with respect to each Mortgage Loan (and with respect to a Companion Loan, only
those items required pursuant to the definition of “Mortgage File”)
listed in the Mortgage Loan Schedule, except as specifically identified in the
schedule of exceptions annexed thereto, (i) without regard to the proviso in the
definition of “Mortgage File,” all documents specified in clauses (i), (ii),
(iv)(a), (v) and (vii), and to the extent provided in the related Mortgage File
and actually known by a Responsible Officer of the Trustee to be required,
clauses (iii), (iv)(b), (iv)(c), (vi), (viii), (ix)(a) and (xii) of the
definition of “Mortgage File” are in its possession, (ii) all documents
delivered or caused to be delivered by the applicable Mortgage Loan Seller
constituting the related Mortgage File have been reviewed by it and appear
regular on their face and appear to relate to such Mortgage Loan, (iii) based on
such examination and only as to the foregoing documents, the information set
forth in the Mortgage Loan Schedule for such Mortgage Loan with respect to the
items specified in clauses (v) and (vi)(c) of the definition of “Mortgage Loan
Schedule” is correct and (iv) solely with respect to the Companion Loans, all
documents specified in clause (xiii) of the definition of Mortgage File are in
its possession. Further, with respect to the documents described in clause
(viii) of the definition of Mortgage File, the Trustee may assume, for purposes
of the certification delivered in Section 2.02(b) of the Pooling and Servicing
Agreement and for purposes of determining (subject to the proviso at the
end of
this sentence) where to file UCC Financing Statements, that the related Mortgage
File should include one state level UCC Financing Statement filing in the state
of incorporation of the Mortgagor for each Mortgaged Property (or with respect
to any Mortgage Loan that has two or more Mortgagors, for each Mortgagor);
provided, however, that to the extent the Trustee has actual knowledge or is
notified of any fixture or real property UCC Financing Statements filed in the
county of the state where the related Mortgaged Property is located, the Trustee
shall file an assignment to the Trust Fund with respect to such UCC Financing
Statements in the appropriate jurisdiction under the UCC at the expense of the
related Mortgage Loan Seller. The UCC Financing Statements to be assigned to the
Trust Fund pursuant to Section 2.01(d) of the Pooling and Servicing Agreement
will be delivered by the related Mortgage Loan Seller to the Trustee on the new
national forms, in recordable form and completed pursuant to Revised Article IX
of the UCC. The Trustee will submit such UCC Financing Statements for filing in
the state of incorporation of the related Mortgagor as so indicated on the
documents provided.
None of
the Trustee, the Master Servicer, the Special Servicer or any Custodian is under
any duty or obligation to inspect, review or examine any of the documents,
instruments, certificates or other papers relating to the Mortgage Loans
delivered to it to determine that the same are valid, legal, effective, genuine,
enforceable, in recordable form, sufficient or appropriate for the represented
purpose or that they are other than what they purport to be on their face.
Capitalized terms used herein and not otherwise defined shall have the
respective meanings assigned to them under the Pooling and Servicing
Agreement.
| Respectfully, | |||
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| Name: | |||
| Title: | |||
X-0-0
XXXXXXX
X-0
FORM OF MASTER SERVICER REQUEST FOR RELEASE
FORM OF MASTER SERVICER REQUEST FOR RELEASE
[Date]
[NAME OF
TRUSTEE]
[ADDRESS]
Attn:
[Global Securities and Trust Services Group] - Xxxxx Fargo Commercial Mortgage
Trust,
Commercial Mortgage Pass-Through Certificates, Series [________]
Commercial Mortgage Pass-Through Certificates, Series [________]
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Re:
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Xxxxx
Fargo Commercial Mortgage Trust, Commercial
Mortgage Pass-Through
Certificates, Series
[ ]
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Ladies
and Gentlemen:
In
connection with the administration of the Mortgage Files held by you as Trustee
under a certain Pooling and Servicing Agreement dated as of [________] (the
“Pooling and Servicing
Agreement”), by and among Xxxxx Fargo Commercial Mortgage Securities,
Inc., as Depositor, [Xxxxx Fargo Bank, National Association], as Master
Servicer, [NAME OF SPECIAL SERVICER], as Special Servicer and you, as Trustee,
the undersigned hereby requests a release of the Mortgage File (or the portion
thereof specified below) held by you with respect to the following described
Mortgage Loan for the reason indicated below.
Property
Name:
Address:
Control
No.:
The
Mortgage File should be delivered to the following:
| Attn:________________________________________________ | |||
| Phone:_______________________________________________ | |||
If only
particular documents in the Mortgage File are requested, please specify
which:
D-1-1
Reason
for requesting Mortgage File (or portion thereof):
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______
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1.
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Mortgage
Loan paid in full. The Master Servicer hereby certifies that
all amounts received in connection with the Mortgage Loan that are
required to be credited to the Certificate Account pursuant to the Pooling
and Servicing Agreement have been or will be so
credited
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______
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2.
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Other. (Describe)
_____________________________________________
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____________________________________________________________
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The
undersigned acknowledges that the above Mortgage File (or requested portion
thereof) will be held by the undersigned in accordance with the provisions of
the Pooling and Servicing Agreement and will be returned to you or your designee
within ten (10) days of our receipt thereof, unless the Mortgage Loan has been
paid in full, in which case the Mortgage File (or such portion thereof) will be
retained by us permanently.
Capitalized
terms used but not defined herein shall have the meanings ascribed to them in
the Pooling and Servicing Agreement.
| [XXXXX FARGO BANK, NATIONAL ASSOCIATION], as Master Servicer |
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| By:________________________________________________ | |||
| Name: | |||
| Title: | |||
X-0-0
XXXXXXX
X-0
FORM OF SPECIAL SERVICER
REQUEST FOR RELEASE
[Date]
[NAME OF
TRUSTEE]
[ADDRESS]
Attn:
[Global Securities and Trust Services Group] - Xxxxx Fargo Commercial Mortgage
Trust,
Commercial Mortgage Pass-Through Certificates, Series [________]
Commercial Mortgage Pass-Through Certificates, Series [________]
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Re:
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Xxxxx
Fargo Commercial Mortgage Trust, Commercial
Mortgage Pass-Through
Certificates, Series
[ ]
|
Ladies
and Gentlemen:
In
connection with the administration of the Mortgage Files held by you as Trustee
under a certain Pooling and Servicing Agreement dated as of [________] (the
“Pooling and Servicing
Agreement”), by and among Xxxxx Fargo Commercial Mortgage Securities,
Inc., as Depositor, [Xxxxx Fargo Bank, National Association], as Master
Servicer, [NAME OF SPECIAL SERVICER], as Special Servicer and [NAME OF TRUSTEE],
as Trustee, the undersigned hereby requests a release of the Mortgage File (or
the portion thereof specified below) held by you with respect to the following
described Mortgage Loan for the reason indicated below.
Property
Name:
Address:
Loan
No.:
The
Mortgage File should be delivered to the following:
| Attn:________________________________________________ | |||
| Phone:_______________________________________________ | |||
If only
particular documents in the Mortgage File are requested, please specify
which:
D-2-1
Reason
for requesting Mortgage File (or portion thereof):
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______
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1.
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The
Mortgage Loan is being foreclosed.
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______
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2.
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Other. (Describe)
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The
undersigned acknowledges that the above Mortgage File (or requested portion
thereof) will be held by the undersigned in accordance with the provisions of
the Pooling and Servicing Agreement and will be returned to you or your designee
within ten (10) days of our receipt thereof, unless the Mortgage Loan is being
foreclosed, in which case the Mortgage File (or such portion thereof) will be
returned when no longer required by us for such purpose.
Capitalized
terms used but not defined herein shall have the meanings ascribed to them in
the Pooling and Servicing Agreement.
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[NAME
OF SPECIAL SERVICER] as Special Servicer] |
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| By: | |||
| Name: | |||
| Title: |
D-2-2
EXHIBIT
E
CALCULATION OF NOI/DEBT
SERVICE COVERAGE RATIOS
“Net Cash Flow” shall
mean the revenue derived from the use and operation of a Mortgaged Property less
operating expenses (such as utilities, administrative expenses, repairs and
maintenance, tenant improvement costs, leasing commissions, management fees and
advertising), fixed expenses (such as insurance, real estate taxes and, if
applicable, ground lease payments) and replacement reserves and an allowance for
vacancies and credit losses. Net Cash Flow does not reflect interest expenses
and non-cash items such as depreciation and amortization, and generally does not
reflect capital expenditures, but does reflect reserves for replacements and an
allowance for vacancies and credit losses.
In
determining vacancy for the “revenue” component of Net Cash Flow for each Rental
Property, the Special Servicer shall rely on the most recent rent roll supplied
by the related borrower and where the actual vacancy shown thereon and the
market vacancy is less than 1%, the Special Servicer shall assume a 1% vacancy
in determining revenue from rents, except that in the case of certain anchored
shopping centers, space occupied by anchor or single tenants or other large
tenants shall be disregarded in performing the vacancy adjustment due to the
length of the related leases or creditworthiness of such tenants, in accordance
with the respective Mortgage Loan Seller’s underwriting standards. Where the
actual or market vacancy was not less than 5.0%, the Special Servicer shall
determine revenue from rents by generally relying on the most recent roll
supplied and the greater of (a) actual historical vacancy at the related
Mortgaged Property, and (b) historical vacancy at comparable properties in the
same market as the related Mortgaged Property. In determining rental revenue for
multifamily, self-storage and mobile home park properties, the Special Servicer
shall either review rental revenue shown on the certified rolling 12-month
operating statements or annualized the rental revenue and reimbursement of
expenses shown on rent rolls or operating statements with respect to the prior
one to twelve month periods. For the other Rental Properties, the Special
Servicer shall annualize rental revenue shown on the most recent certified rent
roll, after applying the vacancy factor, without further regard to the terms
(including expiration dates) of the leases shown thereon. In the case of
hospitality properties, gross receipts shall be determined on the basis of
adjusted average occupancy not to exceed 75.0% and daily rates achieved during
the prior two to three year annual reporting period. In the case of residential
health care facilities, receipts shall be based on historical occupancy levels,
historical operating revenues and the then current occupancy rates. Occupancy
rates for private health care facilities shall be within current market ranges
and vacancy levels shall be at a minimum of 1%. In general, any non-recurring
items and non-property related revenue shall be eliminated from the calculation
except in the case of residential health care facilities.
In
determining the “expense” component of Net Cash Flow for each Mortgaged
Property, the Special Servicer shall rely on the rolling 12-month operating
statements and/or full-year or year-to-date financial statements supplied by the
related borrower, except that (a) if tax or insurance expense information more
current than that reflected in the financial statements is available, the newer
information shall be used, (b) with respect to each Mortgaged Property, property
management fees shall be assumed to be 3% to 7% of effective gross revenue
(except
E-1
with
respect to hospitality properties, where a minimum of 3.1% of gross receipts
shall be assumed, and with respect to limited service hospitality properties,
where a minimum of 4.0% of gross receipts shall be assumed and, with respect to
single tenant properties, where fees as low as 3% of effective gross receipts
shall be assumed), (c) assumptions shall be made with respect to reserves for
leasing commission, tenant improvement expenses and capital expenditures and (d)
expenses shall be assumed to include annual replacement reserves. In addition,
in some instances, the Special Servicer may recharacterize as capital
expenditures those items reported by borrowers as operating expenses (thus
increasing “net cash flow”) where determined appropriate.
E-2
EXHIBIT
F-1
FORM OF TRANSFEROR
CERTIFICATE
[Date]
[NAME OF
TRUSTEE]
[ADDRESS]
Attn:
[Global Securities and Trust Services Group] - Xxxxx Fargo Commercial Mortgage
Trust,
Commercial Mortgage Pass-Through Certificates, Series [________]
Commercial Mortgage Pass-Through Certificates, Series [________]
|
|
Re:
|
Xxxxx
Fargo Commercial Mortgage Trust, Commercial
Mortgage Pass-Through
Certificates, Series
[ ]
|
Ladies
and Gentlemen:
This
letter is delivered to you in connection with the transfer by
____________________ (the “Transferor”) to
_______________________ (the “Transferee”) of a Certificate (the “Transferred
Certificate”) having an initial [principal balance] [notional amount] as
of [________] (the “Closing Date”) of
$_____________ evidencing a __% interest in the Class to which it belongs. The
Certificates were issued pursuant to the Pooling and Servicing Agreement (the
“Pooling and Servicing
Agreement”), dated as of [________], among Xxxxx Fargo Commercial
Mortgage Securities, Inc., as depositor, [Xxxxx Fargo Bank, National
Association], as master servicer, [NAME OF SPECIAL SERVICER], as special
servicer and [NAME OF TRUSTEE], as trustee. All terms used herein and
not otherwise defined shall have the meanings set forth in the Pooling and
Servicing Agreement. The Transferor hereby certifies, represents and
warrants to you, as Certificate Registrar, that
1. The
Transferor is the lawful owner of the Transferred Certificate with the full
right to transfer such Certificate free from any and all claims and encumbrances
whatsoever
2. Neither
the Transferor nor anyone acting on its behalf has (a) offered, transferred,
pledged, sold or otherwise disposed of any Certificate, any interest in any
Certificate or any other similar security to any person in any manner, (b)
solicited any offer to buy or accepted a transfer, pledge or other disposition
of any Certificate, any interest in any Certificate or any other similar
security from any person in any manner, (c) otherwise approached or negotiated
with respect to any Certificate, any interest in any Certificate or any other
similar security with any person in any manner, (d) made any general
solicitation by means of general advertising or in any other manner, or (e)
taken any other action, which (in the case of any of the acts described in
clauses (a) through (e) hereof) would constitute a distribution of any
Certificate under the Securities Act of 1933, as amended (the “Securities Act”), or
would render the disposition of any Certificate a violation of Section 5 of the
Securities Act or any state securities laws, or would require registration or
qualification of any Certificate pursuant to the Securities Act or any state
securities laws.
F-1-1
| Very truly yours, | |||
| (Transferor) | |||
| By:________________________________________________ | |||
| Name:______________________________________________ | |||
| Title:_______________________________________________ | |||
F-1-2
EXHIBIT
F-2
FORM OF TRANSFEREE
CERTIFICATE
FOR QIBS
[Date]
[NAME OF
TRUSTEE]
[ADDRESS]
Attn:
[Global Securities and Trust Services Group] - Xxxxx Fargo Commercial Mortgage
Trust, Commercial Mortgage Pass-Through Certificates, Series
[________]
|
|
Re:
|
Xxxxx
Fargo Commercial Mortgage Trust, Commercial
Mortgage Pass-Through
Certificates, Series
[ ]
|
Ladies
and Gentlemen:
This
letter is delivered to you in connection with the transfer by
____________________ (the “Transferor”) to
_______________________ (the “Transferee”) of a
Certificate (the “Transferred
Certificate”) having an initial [principal balance] [notional amount] as
of [________] (the “Closing Date”) of
$_____________ evidencing a __% interest in the Class to which it belongs. The
Certificates were issued pursuant to the Pooling and Servicing Agreement (the
“Pooling and Servicing
Agreement”), dated as of [________], among Xxxxx Fargo Commercial
Mortgage Securities, Inc., as depositor, [Xxxxx Fargo Bank, National
Association], as master servicer, [NAME OF SPECIAL SERVICER], as special
servicer and [NAME OF TRUSTEE], as trustee. All terms used herein and not
otherwise defined shall have the meanings set forth in the Pooling and Servicing
Agreement. The Transferee hereby certifies, represents and warrants to you, as
Certificate Registrar, that:
1. The
Transferee is a “qualified institutional buyer” as that term is defined in Rule
144A (“Rule
144A”) under the Securities Act of 1933, as amended (the “Securities Act”) and
has completed one of the forms of certification to that effect attached hereto
as Annex 1 and Annex 2. The Transferee is aware that the sale to it is being
made in reliance on Rule 144A. The Transferee is acquiring the Transferred
Certificate for its own account or for the account of a qualified institutional
buyer, and understands that such Certificate may be resold, pledged or
transferred only (i) to a person reasonably believed to be a qualified
institutional buyer that purchases for its own account or for the account of a
qualified institutional buyer to whom notice is given that the resale, pledge or
transfer is being made in reliance on Rule 144A, or (ii) pursuant to another
exemption from registration under the Securities Act.
2. In
the case of a Class [__] or Class [__] Certificate, the Transferee either (A) is
not an “employee benefit plan” subject to Title I of ERISA or a “plan” described
by Section 4975(e)(1) of the Code or any other retirement plan or other employee
benefit plan or arrangement subject to any federal, state or local law
materially similar to the foregoing provisions of ERISA and the Code, or any
entity deemed to hold plan assets of the foregoing by
F-2-3
reason
of a plan’s investment in such entity (each, a “Plan”) or (B) (1)
qualifies as an accredited investor as defined in Rule 501(a)(1) of Regulation D
under the Securities Act and satisfies all the requirements of the Exemptions as
in effect at the time of such transfer or (2) is an insurance company general
account that is eligible for, and satisfies all of the requirements of, Sections
I and III of Department of Labor Prohibited Transaction Class Exemption 95-60
(“PTE
95-60”).
In the
case of a Class [__] or Class [__] Certificate, the Transferee either (A) is not
an “employee benefit plan” subject to Title I of ERISA or a “plan” described by
Section 4975(e)(1) of the Code or any other retirement plan or other employee
benefit plan or arrangement subject to any federal, state or local law
materially similar to the foregoing provisions of ERISA and the Code, or any
entity deemed to hold plan assets of the foregoing by reason of a plan’s
investment in such entity (each, a “Plan”) or (B) is an
insurance company general account which is eligible for, and satisfies all of
the requirements for, exemptive relief under Sections I and III of Department of
Labor Prohibited Transaction Class Exemption 95-60 (“PTE
95-60”).
3. The
Transferee has been furnished with all information regarding (a) the
Certificates and distributions thereon, (b) the nature, performance and
servicing of the Mortgage Loans, (c) the Pooling and Servicing Agreement, and
(d) any credit enhancement mechanism associated with the Certificates, that it
has requested.
4. The
Transferee understands that it may not sell or otherwise transfer any portion of
its interest in the Transferred Certificate except in compliance with the
provisions of Section 5.02 of the Pooling and Servicing Agreement, which
provisions it has carefully reviewed, and that the Transferred Certificate will
bear legends substantially to the following effect (provided that the Class [__]
and Class [__] Certificates will bear a legend substantially to the effect of
the following first paragraph only):
THE
CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR
THE SECURITIES LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF
THIS CERTIFICATE WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN
A TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
NO
TRANSFER OF THIS CERTIFICATE OR ANY INTEREST THEREIN SHALL BE MADE TO ANY
“EMPLOYEE BENEFIT PLAN” SUBJECT TO ERISA OR A “PLAN” DESCRIBED BY SECTION
4975(e)(1) OF THE CODE OR ANY OTHER RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT
PLAN OR ARRANGEMENT SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW MATERIALLY
SIMILAR TO THE FOREGOING PROVISIONS OF ERISA AND THE CODE, OR ANY ENTITY DEEMED
TO HOLD PLAN ASSETS OF THE FOREGOING BY REASON OF A PLAN’S INVESTMENT IN SUCH
ENTITY (EACH, A “PLAN”) UNLESS IT IS
AN INSURANCE
F-2-4
COMPANY
GENERAL ACCOUNT WHICH IS ELIGIBLE FOR, AND SATISFIES ALL OF THE REQUIREMENTS
FOR, EXEMPTIVE RELIEF UNDER SECTIONS I AND III OF DEPARTMENT OF LABOR PROHIBITED
TRANSACTION CLASS EXEMPTION 95-60 (“PTE 95-60”). EACH
PERSON WHO ACQUIRES THIS CERTIFICATE SHALL BE DEEMED TO HAVE CERTIFIED THAT THE
FOREGOING CONDITIONS ARE SATISFIED, AND THAT IT WILL NOT TRANSFER THIS
CERTIFICATE IN VIOLATION OF THE FOREGOING.
[In the
case of Class R-I, Class R-II or Class Z Certificates]: NO TRANSFER OF THIS
CERTIFICATE OR ANY INTEREST THEREIN SHALL BE MADE TO ANY “EMPLOYEE BENEFIT PLAN”
SUBJECT TO ERISA OR A “PLAN” DESCRIBED BY SECTION 4975(e)(1) OF THE CODE, OR ANY
OTHER RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT SUBJECT TO
ANY FEDERAL, STATE OR LOCAL LAW MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS
OF ERISA AND THE CODE, OR ANY ENTITY DEEMED TO HOLD PLAN ASSETS OF THE FOREGOING
BY REASON OF A PLAN’S INVESTMENT IN SUCH ENTITY (EACH, A “PLAN”). EACH PERSON
WHO ACQUIRES THIS CERTIFICATE SHALL BE DEEMED TO HAVE CERTIFIED THAT THE
FOREGOING CONDITIONS ARE SATISFIED, AND THAT IT WILL NOT TRANSFER THIS
CERTIFICATE IN VIOLATION OF THE FOREGOING.
5. Neither
the Transferee nor anyone acting on its behalf has (a) offered, pledged, sold,
disposed of or otherwise transferred any Certificate, any interest in any
Certificate or any other similar security to any person in any manner, (b)
solicited any offer to buy or accept a pledge, disposition or other transfer of
any Certificate, any interest in any Certificate or any other similar security
from any person in any manner, (c) otherwise approached or negotiated with
respect to any Certificate, any interest in any Certificate or any other similar
security with any person in any manner, (d) made any general solicitation by
means of general advertising or in any other manner, or (e) taken any other
action, that (in the case of any of the acts described in clauses (a) through
(e) above) would constitute a distribution of any Certificate under the
Securities Act, would render the disposition of any Certificate a violation of
Section 5 of the Securities Act or any state securities law or would require
registration or qualification of any Certificate pursuant thereto. The
Transferee will not act, nor has it authorized or will it authorize any person
to act, in any manner set forth in the foregoing sentence with respect to any
Certificate.
6. Check
one of the following:
|
o
|
The
Transferee is a U.S. Person (as defined below) and it has attached hereto
an Internal Revenue Service ("IRS") Form W-9 (or successor
form).
|
| o |
The
Transferee is not a U.S. Person and under applicable law in effect on the
date hereof, no taxes will be required to be withheld by the Trustee (or
its agent) with respect to distributions to be made on the Transferred
Certificate. The Transferee has attached
|
F-2-5
|
hereto
[(i) a duly executed IRS Form W-8BEN (or successor form), which identifies
such Transferee as the beneficial owner of the Transferred Certificate and
states that such Transferee is not a U.S. Person, (ii) two duly executed
copies of IRS Form W-8IMY (with all the appropriate attachments), or
(iii)](1) two duly executed copies of IRS Form W-8ECI (or successor form),
which identify such Transferee as the beneficial owner of the Transferred
Certificate and state that interest and original issue discount on the
Transferred Certificate and Permitted Investments is, or is expected to
be, effectively connected with a U.S. trade or business. The Transferee
agrees to provide to the Certificate Registrar updated [IRS Form W-8BEN,
IRS Form W-8IMY or]* IRS Form W-8ECI, as the case may be, any applicable
successor IRS forms, or such other certifications as the Certificate
Registrar may reasonably request, on or before the date that any such IRS
form or certification expires or becomes obsolete, or promptly after the
occurrence of any event requiring a change in the most recent IRS form of
certification furnished by it to the Certificate
Registrar.
|
For this
purpose, "U.S. Person" means a citizen or resident of the United States, a
corporation or partnership (including an entity treated as a corporation or
partnership for federal income tax purposes) created or organized in, or under
the laws of, the United States, any State thereof or the District of Columbia
unless in the case of a partnership, Treasury Regulations are adopted that
provide otherwise, an estate whose income is includable in gross income for
United States federal income tax purposes regardless of its source or a trust if
a court within the United States is able to exercise primary supervision over
the administration of the trust, and one or more United States Persons have the
authority to control all substantial decisions of the trust, all within the
meaning of Section 7701(a)(30) of the Code.
| Very truly yours, | |||
| (Transferor) | |||
| By:________________________________________________ | |||
| Name:______________________________________________ | |||
| Title:_______________________________________________ | |||
_______________
* [Delete
for Class R-I or Class R-II Certificates.]
F-2-6
|
|
ANNEX
1 TO EXHIBIT F-2
|
QUALIFIED
INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For
Transferees Other Than Registered Investment Companies]
The
undersigned hereby certifies as follows to [name of Transferor] (the “Transferor”) and
[NAME OF TRUSTEE], as Certificate Registrar, with respect to the mortgage
pass-through certificate being transferred (the “Transferred
Certificate”) as described in the Transferee Certificate to which this
certification relates and to which this certification is an Annex:
1. As
indicated below, the undersigned is the chief financial officer, a person
fulfilling an equivalent function, or other executive officer of the entity
purchasing the Transferred Certificate (the “Transferee”).
2. The
Transferee is a “qualified institutional buyer” as that term is defined in Rule
144A under the Securities Act of 1933, as amended (“Rule 144A”) because
(i) the Transferee owned and/or invested on a discretionary basis $____________
/ _____________ in securities (other than the excluded securities referred to
below) as of the end of the Transferee’s most recent fiscal year (such amount
being calculated in accordance with Rule 144A) [Transferee must own and/or
invest on a discretionary basis at least $100,000,000 in securities unless
Transferee is a dealer, and, in that case, Transferee must own and/or invest on,
a discretionary basis at least $10,000,000 in securities.] and (ii) the
Transferee satisfies the criteria in the category marked below.
|
|
o |
Corporation,
etc. The Transferee is a corporation (other than a bank,
savings and loan association or similar institution), business trust,
partnership, or any organization described in Section 501(c)(3) of the
Internal Revenue Code of 1986, as
amended.
|
|
|
o |
Bank. The
Transferee (a) is a national bank or a banking institution organized under
the laws of any State, U.S. territory or the District of Columbia, the
business of which is substantially confined to banking and is supervised
by the State or territorial banking commission or similar official or is a
foreign bank or equivalent institution, and (b) has an audited net worth
of at least $25,000,000 as demonstrated in its latest annual financial
statements, a copy of which is attached hereto, as of a date not more than
16 months preceding the date of sale of the Certificate in the case of a
U.S. bank, and not more than 18 months preceding such date of sale for a
foreign bank or equivalent
institution.
|
|
|
o |
Savings
and Loan. The Transferee (a) is a savings and loan association,
building and loan association, cooperative bank, homestead association or
similar institution, which is supervised and examined by a State or
Federal authority having supervision over any such institutions or is a
foreign savings and loan association or equivalent institution and (b) has
an audited net worth of at least
|
F-2-7
|
|
$25,000,000
as demonstrated in its latest annual financial statements, a copy of which
is attached hereto, as of a date not more than 16 months preceding the
date of sale of the Certificate in the case of a U.S. savings and loan
association, and not more than 18 months preceding such date of sale for a
foreign savings and loan association or equivalent
institution.
|
|
|
o |
Broker-dealer. The
Transferee is a dealer registered pursuant to Section 15 of the Securities
Exchange Act of 1934.
|
|
|
o |
Insurance
Company. The Transferee is an insurance company whose primary
and predominant business activity is the writing of insurance or the
reinsuring of risks underwritten by insurance companies and which is
subject to supervision by the insurance commissioner or a similar official
or agency of a State, U.S. territory or the District of
Columbia.
|
|
|
o |
State
or Local Plan. The Transferee is a plan established and
maintained by a State, its political subdivisions, or any agency or
instrumentality of the State or its political subdivisions, for the
benefit of its employees.
|
|
|
o |
ERISA
Plan. The Transferee is an employee benefit plan within the
meaning of Title I of the Employee Retirement Income Security Act of 1974,
as amended.
|
|
|
o |
Investment
Advisor. The Transferee is an investment advisor registered
under the Investment Advisers Act of
1940.
|
|
|
o |
Other. (Please
supply a brief description of the entity and a cross-reference to the
paragraph and subparagraph under subsection (a)(1) of Rule 144A pursuant
to which it qualifies. Note that registered investment
companies should complete Annex 2 rather than this Annex
1.)
|
3. The term
“securities” as used herein does not include (i) securities of issuers that are
affiliated with the Transferee, (ii) securities that are part of an unsold
allotment to or subscription by the Transferee, if the Transferee is a dealer,
(iii) bank deposit notes and certificates of deposit, (iv) loan participations,
(v) repurchase agreements, (vi) securities owned but subject to a repurchase
agreement and (vii) currency, interest rate and commodity swaps. For
purposes of determining the aggregate amount of securities owned and/or invested
on a discretionary basis by the Transferee, the Transferee did not include any
of the securities referred to in this paragraph.
4. For
purposes of determining the aggregate amount of securities owned and/or invested
on a discretionary basis by the Transferee, the Transferee used the cost of such
securities to the Transferee, unless the Transferee reports its securities
holdings in its financial statements on the basis of their market value, and no
current information with respect to the cost of those securities has been
published, in which case the securities were valued at
market. Further, in determining such aggregate amount, the Transferee
may have included securities owned by subsidiaries of the Transferee, but only
if such subsidiaries are consolidated with the Transferee in its financial
statements prepared in accordance with generally accepted accounting principles
and if the investments of such
F-2-8
subsidiaries
are managed under the Transferee’s direction. However, such
securities were not included if the Transferee is a majority-owned, consolidated
subsidiary of another enterprise and the Transferee is not itself a reporting
company under the Securities Exchange Act of 1934, as amended.
5. The
Transferee acknowledges that it is familiar with Rule 144A and understands that
the parties to which this certification is being made are relying and will
continue to rely on the statements made herein because one or more sales to the
Transferee may be in reliance on Rule 144A.
|
________
Yes
|
________
No
|
Will
the Transferee be purchasing the Transferred Certificate only for the
Transferee’s own account?
|
6. If the
answer to the foregoing question is “no”, then in each case where the Transferee
is purchasing for an account other than its own, such account belongs to a third
party that is itself a “qualified institutional buyer” within the meaning of
Rule 144A, and the “qualified institutional buyer” status of such third party
has been established by the Transferee through one or more of the appropriate
methods contemplated by Rule 144A.
7. The
Transferee will notify each of the parties to which this certification is made
of any changes in the information and conclusions herein. Until such
notice is given, the Transferee’s purchase of the Transferred Certificate will
constitute a reaffirmation of this certification as of the date of such
purchase. In addition, if the Transferee is a bank or savings and
loan as provided above, the Transferee agrees that it will furnish to such
parties any updated annual financial statements that become available on or
before the date of such purchase, promptly after they become
available.
|
|
|
Print
Name of Transferee
|
|
| By: | ____________________________________________ | ||
| Name:________________________________________ | |||
| Title:_________________________________________ | |||
| Date:_________________________________________ |
F-2-9
ANNEX 2
TO EXHIBIT F-2
QUALIFIED
INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For
Transferees That Are Registered Investment Companies]
T The
undersigned hereby certifies as follows to [name of Transferor] (the “Transferor”) and
[NAME OF TRUSTEE], as Certificate Registrar, with respect to the mortgage
pass-through certificate being transferred (the “Transferred
Certificate”) as described in the Transferee Certificate to which this
certification relates and to which this certification is an
Annex:
1. As
indicated below, the undersigned is the chief financial officer, a person
fulfilling an equivalent function, or other executive officer of the entity
purchasing the Transferred Certificate (the “Transferee”) or, if
the Transferee is a “qualified institutional buyer” as that term is defined in
Rule 144A under the Securities Act of 1933, as amended (“Rule 144A”), because
the Transferee is part of a Family of Investment Companies (as defined below),
is an executive officer of the investment adviser (the “Adviser”).
2. The
Transferee is a “qualified institutional buyer” as defined in Rule 144A because
(i) the Transferee is an investment company registered under the Investment
Company Act of 1940, and (ii) as marked below, the Transferee alone owned and/or
invested on a discretionary basis, or the Transferee’s Family of Investment
Companies owned, at least $100,000,000 in securities (other than the excluded
securities referred to below) as of the end of the Transferee’s most recent
fiscal year. For purposes of determining the amount of securities
owned by the Transferee or the Transferee’s Family of Investment Companies, the
cost of such securities was used, unless the Transferee or any member of the
Transferee’s Family of Investment Companies, as the case may be, reports its
securities holdings in its financial statements on the basis of their market
value, and no current information with respect to the cost of those securities
has been published, in which case the securities of such entity were valued at
market.
|
|
o |
The
Transferee owned and/or invested on a discretionary basis $___________ in
securities (other than the excluded securities referred to below) as of
the end of the Transferee’s most recent fiscal year (such amount being
calculated in accordance with Rule
144A).
|
|
|
o |
The
Transferee is part of a Family of Investment Companies which owned in the
aggregate $___________ in securities (other than the excluded securities
referred to below) as of the end of the Transferee’s most recent fiscal
year (such amount being calculated in accordance with Rule
144A).
|
In the
case of a Class R-I, Class R-II or Class Z Certificate, the Transferee is not an
“employee benefit plan” subject to Title I of ERISA or a “plan” described by
Section 4975(e)(1) of the Code or any other retirement plan or other employee
benefit plan or arrangement subject to any federal, state or local law
materially similar to the foregoing provisions of ERISA and the
F-2-10
Code, or
any entity deemed to hold plan assets of the foregoing by reason of a plan’s
investment in such entity (each, a “Plan”).
3. The term
“Family of Investment
Companies” as used herein means two or more registered investment
companies (or series thereof) that have the same investment adviser or
investment advisers that are affiliated (by virtue of being majority owned
subsidiaries of the same parent or because one investment adviser is a majority
owned subsidiary of the other).
4. The term
“securities” as used herein does not include (i) securities of issuers that are
affiliated with the Transferee or are part of the Transferee’s Family of
Investment Companies, (ii) bank deposit notes and certificates of deposit, (iii)
loan participations, (iv) repurchase agreements, (v) securities owned but
subject to a repurchase agreement and (vi) currency, interest rate and commodity
swaps. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by the Transferee, or owned by
the Transferee’s Family of Investment Companies, the securities referred to in
this paragraph were excluded.
5. The
Transferee is familiar with Rule 144A and understands that the parties to which
this certification is being made are relying and will continue to rely on the
statements made herein because one or more sales to the Transferee will be in
reliance on Rule 144A.
|
________
Yes
|
________
No
|
Will
the Transferee be purchasing the Transferred Certificate only for the
Transferee’s own account?
|
6. If the
answer to the foregoing question is “no”, then in each case where the Transferee
is purchasing for an account other than its own, such account belongs to a third
party that is itself a “qualified institutional buyer” within the meaning of
Rule 144A, and the “qualified institutional buyer” status of such third party
has been established by the Transferee through one or more of the appropriate
methods contemplated by Rule 144A.
7. The
undersigned will notify the parties to which this certification is made of any
changes in the information and conclusions herein. Until such notice,
the Transferee’s purchase of the Transferred Certificate will constitute a
reaffirmation of this certification by the undersigned as of the date of such
purchase.
|
|
|
Print
Name of Transferee or Adviser
|
|
| By: | ______________________________________________________________ | ||
| Name:__________________________________________________________ | |||
| Title:___________________________________________________________ |
F-2-11
EXHIBIT
F-3
FORM OF TRANSFEREE
CERTIFICATE
FOR
NON-QIBs
[Date]
[NAME OF
TRUSTEE]
[ADDRESS]
Attn:
[Global Securities and Trust Services Group] - Xxxxx Fargo Commercial Mortgage
Trust, Commercial Mortgage Pass-Through Certificates, Series
[________]
|
|
Re:
|
Xxxxx
Fargo Commercial Mortgage Trust, Commercial
Mortgage Pass-Through
Certificates, Series
[ ]
|
Ladies
and Gentlemen:
This
letter is delivered to you in connection with the transfer by
____________________ (the “Transferor”) to
_______________________ (the “Transferee”) of a
Certificate (the “Transferred
Certificate”) having an initial [principal balance] [notional amount] as
of [________] (the “Closing Date”) of
$_____________ evidencing a __% interest in the Class to which it belongs. The
Certificates were issued pursuant to the Pooling and Servicing Agreement (the
“Pooling and Servicing
Agreement”), dated as of [________], among Xxxxx Fargo Commercial
Mortgage Securities, Inc., as depositor, [Xxxxx Fargo Bank, National
Association], as master servicer, [NAME OF SPECIAL SERVICER], as special
servicer and [NAME OF TRUSTEE], as trustee. All terms used herein and not
otherwise defined shall have the meanings set forth in the Pooling and Servicing
Agreement. The Transferee hereby certifies, represents and warrants to you, as
Certificate Registrar, that
1. The
Transferee is acquiring the Transferred Certificate for its own account for
investment and not with a view to or for sale or transfer in connection with any
distribution thereof, in whole or in part, in any manner which would violate the
Securities Act of 1933, as amended (the “Securities Act”), or any applicable
state securities laws.
2. The
Transferee understands that (a) the Certificates have not been and will not be
registered under the Securities Act or registered or qualified under any
applicable state securities laws, (b) neither the Depositor nor the Trustee or
the Certificate Registrar is obligated so to register or qualify the
Certificates and (c) the Certificates may not be resold or transferred unless
they are (i) registered pursuant to the Securities Act and registered or
qualified pursuant to any applicable state securities laws or (ii) sold or
transferred in transactions which are exempt from such registration and
qualification and the Certificate Registrar has received either (A)
certifications from both the transferor and the transferee (substantially in the
forms attached to the Pooling and Servicing Agreement) setting forth the facts
surrounding the transfer or (B) an opinion of counsel
F-3-1
satisfactory
to the Certificate Registrar with respect to the availability of such exemption
(which Opinion of Counsel shall not be an expense of the Trust Fund or of the
Depositor, the Master Servicer, the Special Servicer, the Trustee or the
Certificate Registrar in their respective capacities as such), together with
copies of the certification(s) from the Transferor and/or Transferee setting
forth the facts surrounding the transfer upon which such opinion is based. Any
holder of a Certificate desiring to effect such a transfer shall, and upon
acquisition of such Certificate shall be deemed to have agreed to, indemnify the
Master Servicer, the Special Servicer, Trustee, the Certificate Registrar and
the Depositor against any liability that may result if the transfer is not so
exempt or is not made in accordance with such federal and state
laws.
3. The
Transferee understands that it may not sell or otherwise transfer any portion of
its interest in the Transferred Certificate except in compliance with the
provisions of Section 5.02 of the Pooling and Servicing Agreement, which
provisions it has carefully reviewed, and that the Transferred Certificate will
bear legends substantially to the following effect (provided that the Class [__]
and Class [__] Certificates will bear a legend substantially to the effect of
the following first paragraph only):
THE
CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR
THE SECURITIES LAWS OF ANY STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF
THIS CERTIFICATE WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN
A TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
NO
TRANSFER OF THIS CERTIFICATE OR ANY INTEREST THEREIN SHALL BE MADE TO ANY “EMPLOYEE BENEFIT
PLAN” SUBJECT TO TITLE I OF ERISA OR A “PLAN” DESCRIBED BY SECTION
4975(e)(1) OF THE CODE OR ANY OTHER RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT
PLAN OR ARRANGEMENT SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW MATERIALLY
SIMILAR TO THE FOREGOING PROVISIONS OF ERISA AND THE CODE, OR ANY ENTITY DEEMED
TO HOLD PLAN ASSETS OF THE FOREGOING BY REASON OF A PLAN’S INVESTMENT IN SUCH
ENTITY (EACH, A “PLAN”) UNLESS IT IS
AN INSURANCE COMPANY GENERAL ACCOUNT WHICH IS ELIGIBLE FOR, AND SATISFIES ALL OF
THE REQUIREMENTS FOR, EXEMPTIVE RELIEF UNDER SECTIONS I AND III OF DEPARTMENT OF
LABOR PROHIBITED TRANSACTION CLASS EXEMPTION 95-60 (“PTE 95-60”). EACH
PERSON WHO ACQUIRES THIS CERTIFICATE SHALL BE DEEMED TO HAVE CERTIFIED THAT THE
FOREGOING CONDITIONS ARE SATISFIED, AND THAT IT WILL NOT TRANSFER THIS
CERTIFICATE IN VIOLATION OF THE FOREGOING.
[In the
case of Class R-I, Class R-II and Class Z Certificates]: NO TRANSFER OF THIS
CERTIFICATE OR ANY INTEREST THEREIN SHALL BE MADE TO ANY “EMPLOYEE BENEFIT PLAN”
SUBJECT TO ERISA OR A “PLAN” DESCRIBED
F-3-2
BY
SECTION 4975(e)(1) OF THE CODE, OR ANY OTHER RETIREMENT PLAN OR OTHER EMPLOYEE
BENEFIT PLAN OR ARRANGEMENT SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW
MATERIALLY SIMILAR TO THE FOREGOING PROVISIONS OF ERISA AND THE CODE, OR ANY
ENTITY DEEMED TO HOLD PLAN ASSETS OF THE FOREGOING BY REASON OF A PLAN’S
INVESTMENT IN SUCH ENTITY (EACH, A “PLAN”). EACH PERSON WHO ACQUIRES THIS
CERTIFICATE SHALL BE DEEMED TO HAVE CERTIFIED THAT THE FOREGOING CONDITIONS ARE
SATISFIED, AND THAT IT WILL NOT TRANSFER THIS CERTIFICATE IN VIOLATION OF THE
FOREGOING.
4. Neither
the Transferee nor anyone acting on its behalf has (a) offered, pledged, sold,
disposed of or otherwise transferred any Certificate, any interest in any
Certificate or any other similar security to any person in any manner, (b)
solicited any offer to buy or accept a pledge, disposition or other transfer of
any Certificate, any interest in any Certificate or any other similar security
from any person in any manner, (c) otherwise approached or negotiated with
respect to any Certificate, any interest in any Certificate or any other similar
security with any person in any manner, (d) made any general solicitation by
means of general advertising or in any other manner, or (e) taken any other
action, that (in the case of any of the acts described in clauses (a) through
(e) above) would constitute a distribution of any Certificate under the
Securities Act, would render the disposition of any Certificate a violation of
Section 5 of the Securities Act or any state securities law or would require
registration or qualification of any Certificate pursuant thereto. The
Transferee will not act, nor has it authorized or will it authorize any person
to act, in any manner set forth in the foregoing sentence with respect to any
Certificate.
5. The
Transferee has been furnished with all information regarding (a) the Depositor,
(b) the Certificates and distributions thereon, (c) the Pooling and Servicing
Agreement, and (d) all related matters, that it has requested.
6. The
Transferee has been furnished a copy of the Private Placement Memorandum dated
[________] and has read such Private Placement Memorandum.
7. The
Transferee is an “accredited investor” as defined in Rule 501(a)(1), (2), (3) or
(7) under the Securities Act and has such knowledge and experience in financial
and business matters as to be capable of evaluating the merits and risks of an
investment in the Certificates; the Transferee has sought such accounting, legal
and tax advice as it has considered necessary to make an informed investment
decision; and the Transferee is able to bear the economic risks of such an
investment and can afford a complete loss of such investment.
8. In the
case of the Class [__] or Class [__] Certificates, the Transferee either (A) is
not an “employee benefit plan” subject to Title I of ERISA or a “plan” described
by Section 4975(e)(1) of the Code or any other retirement plan or other employee
benefit plan or arrangement subject to any federal, state or local law
materially similar to the foregoing provisions of ERISA and the Code, or any
entity deemed to hold
F-3-3
plan
assets of the foregoing by reason of a plan’s investment in such entity (each, a
“Plan”) or (B)
(1) qualifies as an accredited investor as defined in Rule 501(a)(1) of
Regulation D under the Securities Act and satisfies all the requirements of the
Exemptions as in effect at the time of such transfer or (2) is an insurance
company general account that is eligible for, and satisfies all of the
requirements for, Sections I and III of Department of Labor Prohibited
Transaction Class Exemption 95-60 (“PTE 95-60”). In the
case of Class [__] and Class [__] Certificates, the Transferee either (A) is not
an “employee benefit plan” subject to Title I of ERISA or a “plan” described by
Section 4975(e)(1) of the Code, or any other retirement plan or other employee
benefit plan or arrangement subject to any federal, state or local law
materially similar to the foregoing provisions of ERISA and the Code, or any
entity deemed to hold plan assets of the foregoing by reason of a plan’s
investment in such entity (each, a “Plan”) or (B) is an
insurance company general account which is eligible for, and satisfies all of
the requirements for, exemptive relief under Sections I and III of Department of
Labor Prohibited Transaction Class Exemption (“PTE
95-60”).
9. Check one
of the following:
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|
o |
The
Transferee is a U.S. Person (as defined below) and it has attached hereto
an Internal Revenue Service (“IRS”) Form W-9
(or successor form).
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|
|
o |
1The Transferee is not a U.S. Person and
under applicable law in effect on the date hereof, no taxes will be
required to be withheld by the Trustee (or its agent) with respect to
distributions to be made on the Transferred Certificate. The Transferee
has attached hereto [(i) a duly executed IRS Form W-8BEN (or successor
form), which identifies such Transferee as the beneficial owner of the
Transferred Certificate and states that such Transferee is not a U.S.
Person, (ii) two duly executed copies of IRS Form W-8IMY (with all the
appropriate attachments), or (iii)]* two duly executed copies of IRS Form
W-8ECI (or successor form), which identify such Transferee as the
beneficial owner of the Transferred Certificate and state that interest
and original issue discount on the Transferred Certificate and Permitted
Investments is, or is expected to be, effectively connected with a U.S.
trade or business. The Transferee agrees to provide to the Certificate
Registrar updated [IRS Form W-8BEN, IRS Form W-8IMY or]* IRS Form W-8ECI,
as the case may be, any applicable successor IRS forms, or such other
certifications as the Certificate Registrar may reasonably request, on or
before the date that any such IRS form or certification expires or becomes
obsolete, or promptly after the occurrence of any event requiring a change
in the most recent IRS form of certification furnished by it to the
Certificate Registrar.
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For this
purpose, “U.S. Person” means a citizen or resident of the United States, a
corporation or partnership (including an entity treated as a corporation or
partnership for federal income tax purposes) created or organized in, or under
the laws of, the United States, any State thereof or the
________________________
* [Delete for Class R-I or Class R-II Certificates.]
X-0-0
Xxxxxxxx xx Xxxxxxxx unless in the case of a partnership, Treasury
Regulations are adopted that provide otherwise, an estate whose income is
includable in gross income for United States federal income tax purposes
regardless of its source or a trust if a court within the United States is able
to exercise primary supervision over the administration of the trust, and one or
more United States Persons have the authority to control all substantial
decisions of the trust, all within the meaning of Section 7701(a)(30) of the
Code.
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|
|
Very truly yours, | |
| (Transferee) | |||
| By: | |||
| Name:_________________________________________________________ | |||
| Title:__________________________________________________________ |
F-3-5
EXHIBIT
G
FORM OF TRANSFEREE
CERTIFICATE
[Date]
[NAME OF
TRUSTEE]
[ADDRESS]
Attn:
[Global Securities and Trust Services Group] - Xxxxx Fargo Commercial Mortgage
Trust, Commercial Mortgage Pass-Through Certificates, Series
[________]
|
|
Re:
|
Xxxxx
Fargo Commercial Mortgage Trust, Commercial
Mortgage Pass-Through
Certificates, Series
[ ]
|
Ladies
and Gentlemen:
This
letter is delivered to you in connection with the transfer by
____________________ (the “Transferor”) to
_______________________ (the “Transferee”) of the
Class ______________ Certificates (the “Transferred
Certificate”) having an initial [principal balance] [notional amount] as
of [________] (the “Closing Date”) of $_____________ evidencing a __% interest
in the Classes to which they belong. The Certificates were issued pursuant to a
Pooling and Servicing Agreement, dated as of [________] (the “Pooling and Servicing
Agreement”), among Xxxxx Fargo Commercial Mortgage Securities, Inc., as
depositor, [Xxxxx Fargo Bank, National Association], as master servicer, [NAME
OF SPECIAL SERVICER], as special servicer and [NAME OF TRUSTEE], as trustee.
Capitalized terms used but not defined herein shall have the meanings set forth
in the Pooling and Servicing Agreement. The Transferee hereby certifies,
represents and warrants to you that:
In the
case of a Class [__] or Class [__] Certificate, the Transferee either (A) is not
an “employee benefit plan” subject to Title I of ERISA or a “plan” described by
Section 4975(e)(1) of the Code or any other retirement plan or other employee
benefit plan or arrangement subject to any federal, state or local law
materially similar to the foregoing provisions of ERISA and the Code, or any
entity deemed to hold plan assets of the foregoing by reason of a plan’s
investment in such entity (each, a “Plan”) or (B) (1)
qualifies as an accredited investor as defined in Rule 501(a)(1) of Regulation D
under the Securities Act and satisfies all the requirements of the Exemptions as
in effect at the time of such transfer or (2) is an insurance company general
account that is eligible for, and satisfies all of the requirements for,
Sections I and III of Department of Labor Prohibited Transaction Class Exemption
95-60 (“PTE
95-60”).
In the
case of a Class [__] or Class [__] Certificate, the Transferee either (A) is not
an “employee benefit plan” subject to Title I of ERISA or a “plan” described by
Section 4975(e)(1) of the Code, or any other retirement plan or other employee
benefit plan or arrangement subject to any federal, state or local law
materially similar to the foregoing provisions of ERISA and the Code, or any
entity deemed to hold plan assets of the foregoing by reason of a plan’s
investment in such entity (each, a “Plan”) or (B) is an
insurance company
G-1
general
account which is eligible for, and satisfies all of the requirements for,
exemptive relief under Sections I and III of Department of Labor Prohibited
Transaction Class Exemption 95-60 (“PTE
95-60”).
In the
case of a Class R-I, Class R-II, or Class Z Certificate, the Transferee is not
an “employee benefit plan” subject to Title I of ERISA or a “plan” described by
Section 4975(e)(1) of the Code or any other retirement plan or other employee
benefit plan or arrangement subject to any federal, state or local law
materially similar to the foregoing provisions of ERISA and the Code, or any
entity deemed to hold plan assets of the foregoing by reason of a plan’s
investment in such entity (each, a “Plan”).
IN
WITNESS WHEREOF, the undersigned has executed this certificate as of the date
first written above.
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||
| (Name of Transferee) | |||
| By: | |||
| Name:_________________________________________________________ | |||
| Title:__________________________________________________________ |
G-2
EXHIBIT
H-1
FORM OF TRANSFER AFFIDAVIT
AND AGREEMENT
PURSUANT TO SECTION
5.02(d)(i)(B)
|
STATE
OF
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)
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|
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)
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ss.:
____________________
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|
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COUNTY
OF
|
)
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[NAME OF
OFFICER], being first duly sworn, deposes, and represents and
warrants:
1. That he
is a [Title of Officer] of [Name of Owner] (the “Owner”), a
corporation duly organized and existing under the laws of the [State of
___________] [the United States], and the owner of the Xxxxx Fargo Commercial
Mortgage Securities, Inc., Commercial Mortgage Pass-Through Certificates, Series
[________], Class [R-I] [R-II] evidencing a ___% Interest in the Class to which
its belongs (the “Class [R-I] [R-II]”).
Capitalized terms used but not defined herein have the meanings assigned to such
terms in the Pooling and Servicing Agreement dated as of [________], among Xxxxx
Fargo Commercial Mortgage Securities, Inc., as depositor, [Xxxxx Fargo Bank,
National Association], as master servicer, [NAME OF SPECIAL SERVICER], as
special servicer and [NAME OF TRUSTEE], as trustee.
2. That the
Owner (i) is and will be a “Permitted Transferee” as of ________, _______ and
(ii) is acquiring the Class [R-I] [R-II] Certificates for its own account or for
the account of another Owner from which it has received an affidavit in
substantially the same form as this affidavit. A “Permitted Transferee”
is any person other than a Disqualified Organization, a Plan, or a Disqualified
Non-United States Person or a United States Person with respect to whom income
on the Class [R-I][R-II] Certificate is allocable to a foreign permanent
establishment or fixed base, within the meaning of an applicable income tax
treaty, of such Person or any other United States Person. For this purpose, a
“Disqualified
Organization” means any of the following: (i) the United States or a
possession thereof, any State or any political subdivision thereof, or any
agency or instrumentality of any of the foregoing (other than an instrumentality
which is a corporation if all of its activities are subject to tax and, except
for FHLMC, a majority of its board of directors is not selected by any such
governmental unit), (ii) a foreign government, international organization, or
any agency or instrumentality of either of the foregoing, (iii) any organization
(except certain farmers’ cooperatives described in Section 521 of the Internal
Revenue Code of 1986, as amended (the “Code”)) which is
exempt from the tax imposed by Chapter 1 of the Code (unless such organization
is subject to the tax imposed by Section 511 of the Code on unrelated business
taxable income), (iv) rural electric and telephone cooperatives described in
Section 1381 of the Code or (v) any other Person so designated by the Paying
Agent or the Certificate Registrar based upon an Opinion of Counsel that the
holding of an Ownership Interest in a Class [R-I] [R-II] Certificate by such
Person may cause the Trust Fund or any Person having an Ownership Interest in
any Class of Certificates, other than such Person, to
H-1-1
incur a
liability for any federal tax imposed under the Code that would not otherwise be
imposed but for the Transfer of an Ownership Interest in a Class [R-I] [R-II]
Certificate to such Person. The terms “United States”, “State” and
“international organization” shall have the meanings set forth in Section 7701
of the Code or successor provisions.
A “Disqualified Non-United
States Person” is any Person (i) other than a United States Person that
holds the Class[R-I] [R-II] 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 W-8ECI (or successor form)
or 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-I] [R-II] 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-I] [R-II] Certificate will not be disregarded for
federal income tax purposes or (ii) who is a United States Person with respect
to whom income on the Class [R-I] [R-II] Certificate is allocable to a foreign
permanent establishment or fixed base (within the meaning of an applicable
income tax treaty) of such Person or any other United States
Person. A “United States Person”
is a citizen or resident of the United States, a corporation or partnership
(including an entity treated as a corporation or partnership for federal income
tax purposes) created or organized in, or under the laws of the United States,
any State thereof or the District of Columbia unless, in the case of a
partnership, Treasury Regulations are adopted that provide otherwise, an estate
whose income is includable in gross income for United States federal income tax
purposes regardless of its source, or a trust if a court within the United
States is able to exercise primary supervision over the administration of the
trust and one or more United States Persons have the authority to control all
substantial decisions of the trust, all within the meaning of Section
7701(a)(30) of the Code.
3. That the
Owner is aware (i) of the tax that would be imposed on transfers of the Class
[R-I] [R-II] Certificates to Disqualified Organizations under the Code that
applies to all transfers of the Class [R-I] [R-II] Certificates after March 31,
1988; (ii) that such tax would be on the transferor, or, if such transfer is
through an agent (which person includes a broker, nominee or middleman) for a
Disqualified Organization Transferee, on the agent; (iii) that the person
otherwise liable for the tax shall be relieved of liability for the tax if the
transferee furnishes to such person an affidavit that the transferee is not a
Disqualified Organization and, at the time of transfer, such person does not
have actual knowledge that the affidavit is false; and (iv) that the Class [R-I]
[R-II] Certificates may be “non-economic residual interests” within the meaning
of Treasury regulation section 1.860E-1(c)(2) and that the transferor of a
“non-economic residual interest” will remain liable for any taxes due with
respect to the income on such residual interest, unless no significant purpose
of the transfer is to enable the transferor to impede the assessment or
collection of tax.
4. That the
Owner is aware of the tax imposed on a “pass-through entity” holding the Class
[R-I] [R-II] Certificates if at any time during the taxable year of the
pass-through entity a non-Permitted Transferee is the record holder of an
interest in such entity. For this purpose, a “pass through entity”
includes a regulated investment
H-1-2
company,
a real estate investment trust or common trust fund, a partnership, trust or
estate, and certain cooperatives.
5. That the
Owner is aware that the Certificate Registrar will not register the transfer of
any Class [R-I] [R-II] Certificate unless the transferee, or the transferee’s
agent, delivers to the Trustee, among other things, an affidavit in
substantially the same form as this affidavit. The Owner expressly agrees that
it will not consummate any such transfer if it knows or believes that any of the
representations contained in such affidavit and agreement are
false.
6. That the
Owner consents to any additional restrictions or arrangements that shall be
deemed necessary upon advice of counsel to constitute a reasonable arrangement
to ensure that the Class [R-I] [R-II] Certificates will only be owned, directly
or indirectly, by Permitted Transferees.
7. That the
Owner’s taxpayer identification number is _____________.
8. That the
Owner has reviewed the restrictions set forth on the face of the Class [R-I]
[R-II] Certificates and the provisions of Section 5.02 of the Pooling and
Servicing Agreement under which the Class [R-I] [R-II] Certificates were issued
(and, in particular, the Owner is aware that such Section authorizes the Paying
Agent to deliver payments to a person other than the Owner and negotiate a
mandatory sale by the Paying Agent in the event that the Owner holds such
Certificate in violation of Section 5.02); and that the Owner expressly agrees
to be bound by and to comply with such restrictions and provisions.
9. That the
Owner is not acquiring and will not transfer the Class [R-I] [R-II] Certificates
in order to impede the assessment or collection of any tax.
10. That the
Owner has historically paid its debts as they have come due, intends to continue
to pay its debts as they come due in the future, and anticipates that it will,
so long as it holds any of the Class [R-I] [R-II] Certificates, have sufficient
assets to pay any taxes owed by the holder of such Class [R-I] [R-II]
Certificates..
11. That the
Owner has no present knowledge that it may become insolvent or subject to a
bankruptcy proceeding for so long as it holds any of the Class [R-I] [R-II]
Certificates.
12. That the
Owner has no present knowledge or expectation that it will be unable to pay any
United States taxes owed by it so long as any of the Certificates remain
outstanding. In this regard, the Owner hereby represents to and for the benefit
of the Person from whom it acquired the Class [R-I] [R-II] Certificates that the
Owner intends to pay taxes associated with holding the Class [R-I] [R-II]
Certificates as they become due, fully understanding that it may incur tax
liabilities in excess of any cash flows generated by the Class [R-I] [R-II]
Certificates.
13. That the
Owner is not acquiring the Class [R-I] [R-II] Certificates with the intent to
transfer any of the Class [R-I] [R-II] Certificates to any person or entity that
will
H-1-3
not have
sufficient assets to pay any taxes owed by the holder of such Class [R-I] [R-II]
Certificates, or that may become insolvent or subject to a bankruptcy
proceeding, for so long as the Class [R-I] [R-II] Certificates remain
outstanding.
14. That the
Owner will, in connection with any transfer that it makes of the Class [R-I]
[R-II] Certificates, obtain from its transferee the representations required by
Section 5.02(d) of the Pooling and Servicing Agreement under which the Class
[R-I] [R-II] Certificates were issued and will not consummate any such transfer
if it knows, or knows facts that should lead it to believe, that any such
representations are false.
15. That the
Owner will, in connection with any transfer that it makes of any Class [R-I]
[R-II] Certificate, deliver to the Certificate Registrar an affidavit, which
represents and warrants that it is not transferring such Class [R-I] [R-II]
Certificate to impede the assessment or collection of any tax and that it has no
actual knowledge that the proposed transferee: (i) has insufficient assets to
pay any taxes owed by such transferee as holder of such Class [R-I] [R-II]
Certificate; (ii) may become insolvent or subject to a bankruptcy proceeding,
for so long as the Class [R-I] [R-II] Certificates remain outstanding; and (iii)
is not a “Permitted Transferee”.
16. Check the
applicable paragraph:
o The present value of the
anticipated tax liabilities associated with holding the [R-I] [R-II]
Certificate, as applicable, does not exceed the sum of:
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(i)
|
the
present value of any consideration given to the Owner to acquire such
[R-I] [R-II] Certificate;
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|
(ii)
|
the
present value of the expected future distributions on such [R-I] [R-II]
Certificate; and
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|
(iii)
|
the
present value of the anticipated tax savings associated with holding such
[R-I] [R-II] Certificate as the related REMIC generates
losses.
|
For
purposes of this calculation, (i) the Owner is assumed to pay tax at the highest
rate currently specified in Section 11(b) of the Code (but the tax rate in
Section 55(b)(1)(B) of the Code may be used in lieu of the highest rate
specified in Section 11(b) of the Code if the Owner has been subject to the
alternative minimum tax under Section 55 of the Code in the preceding two years
and will compute its taxable income in the current taxable year using the
alternative minimum tax rate) and (ii) present values are computed using a
discount rate equal to the short-term Federal rate prescribed by Section 1274(d)
of the Code for the month of the transfer and the compounding period used by the
Owner.
o The transfer of the
[R-I] [R-II] Certificate complies with U.S. Treasury Regulations Sections
1.860E-1(c)(5) and (6) and, accordingly,
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(i)
|
the
Owner is an “eligible corporation,” as defined in U.S. Treasury
Regulations Section 1.860E-1(c)(6)(i), as to which income from the [R-I]
[R-II] Certificate will only be taxed in the United
States;
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H-1-4
|
(ii)
|
at
the time of the transfer, and at the close of the Owner’s two fiscal years
preceding the year of the transfer, the Owner had gross assets for
financial reporting purposes (excluding any obligation of a person related
to the Owner within the meaning of U.S. Treasury Regulations Section
1.860E-1(c)(6)(ii)) in excess of $100 million and net assets in excess of
$10 million;
|
|
(iii)
|
the
Owner will transfer the [R-I] [R-II] Certificate only to another “eligible
corporation,” as defined in U.S. Treasury Regulations Section
1.860E-1(c)(6)(i), in a transaction that satisfies the requirements of
Sections 1.860E-1(c)(4)(i), (ii)and (iii) and Section 1.860E-1(c)(5) of
the U.S. Treasury Regulations; and
|
|
(iv)
|
the
Owner determined the consideration paid to it to acquire the [R-I] [R-II]
Certificate based on reasonable market assumptions (including, but not
limited to, borrowing and investment rates, prepayment and loss
assumptions, expense and reinvestment assumptions, tax rates and other
factors specific to the Owner) that it has determined in good
faith;
|
o None of the above.
H-1-5
IN
WITNESS WHEREOF, the Owner has caused this instrument to be executed on its
behalf, by its [Title of Officer] and Authorized Signatory, attested by its
Assistant Secretary, this ____ day of _____, ___.
|
|
|
[NAME
OF OWNER]
|
|
| By: | |||
|
[Name
of Officer]
|
|||
| [Title of Officer] | |||
| [Assistant] Secretary |
Personally
appeared before me the above-named [Name of Officer], known or proved to me to
be the same person who executed the foregoing instrument and to be [Title of
Officer], and acknowledged to me that he executed the same as his free act and
deed and the free act and deed of the Owner.
Subscribed
and sworn before me this ____ day of _____, _____.
|
|
|
||
|
NOTARY
PUBLIC
|
|||
|
COUNTY
OF____________________________________________________
|
|||
|
STATE
OF_____________________________________________________
|
|||
|
My
Commission expires the
|
|||
| ____ day of ___________, ____. | |||
|
|
X-0-0
XXXXXXX
X-0
FORM OF TRANSFEROR
CERTIFICATE
PURSUANT TO SECTION
5.02(d)(i)(D)
[Date]
[NAME OF
TRUSTEE]
[ADDRESS]
Attn:
[Global Securities and Trust Services Group] - Xxxxx Fargo Commercial Mortgage
Trust, Commercial Mortgage Pass-Through Certificates, Series
[________]
|
|
Re:
|
Xxxxx
Fargo Commercial Mortgage Trust, Commercial
Mortgage Pass-Through
Certificates, Series
[ ]_____
|
Ladies
and
Gentlemen:
This
letter is delivered to you in connection with the transfer by _________ (the
“Transferor”)
to ______________________ (the “Transferee”) of the
captioned Class [R-I] [R-II] Certificates (the “Class [R-I] [R-II]
Certificates”), pursuant to Section 5.02 of the Pooling and Servicing
Agreement (the “Pooling and Servicing
Agreement”), dated as of [________], among Xxxxx Fargo Commercial
Mortgage Securities, Inc., as depositor, [Xxxxx Fargo Bank, National
Association], as master servicer, [NAME OF SPECIAL SERVICER], as special
servicer and [NAME OF TRUSTEE], as trustee . All terms used herein and not
otherwise defined shall have the meanings set forth in the Pooling and Servicing
Agreement. The Transferor hereby represents and warrants to you, as Certificate
Registrar, that
1. No
purpose of the Transferor relating to the transfer of the Class [R-I] [R-II]
Certificates by the Transferor to the Transferee is or will be to impede the
assessment or collection of any tax.
2. The
Transferor understands that the Transferee has delivered to you a Transfer
Affidavit and Agreement in the form attached to the Pooling and Servicing
Agreement as Exhibit [H-1]. The Transferor does not know or believe that any
representation contained therein is false.
3. The
Transferor at the time of this transfer has conducted a reasonable investigation
of the financial condition of the Transferee as contemplated by Treasury
regulation section 1.860E-1(c)(4)(i) and, as a result of that investigation, the
Transferor has determined that the Transferee has historically paid its debts as
they became due and has found no significant evidence to indicate that the
Transferee will not continue to pay its debts as they become due in the
future.
H-2-1
4. The
Transferor understands that the transfer of the Class [R-I] [R-II] Certificates
may not be respected for United States income tax purposes (and the Transferor
may continue to be liable for United States income taxes associated therewith)
unless the test described above in Paragraph 3 has been met as to any
transfer.
|
|
|
||
| Very truly yours, | |||
| By: | |||
| Name:_________________________________________________________ | |||
| Title:__________________________________________________________ |
X-0-0
XXXXXXX
X-0
FORM OF NOTICE AND
ACKNOWLEDGMENT
[Date]
[Standard
& Poor’s Ratings Services, a division of The XxXxxx-Xxxx Companies,
Inc.
00 Xxxxx
Xxxxxx Xxx Xxxx, Xxx Xxxx 00000]
[Xxxxx’x
Investors Service, Inc.
0 Xxxxx
Xxxxx Xxxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Attention: Managing
Director – Corporate Mortgage-Backed Securities]
[Fitch,
Inc.
Xxx Xxxxx
Xxxxxx Xxxxx
Xxx Xxxx,
Xxx Xxxx 00000]
Ladies
and Gentlemen:
This
notice is being delivered pursuant to Section 6.09 of the Pooling and Servicing
Agreement (the “Agreement”) dated as
of [________] relating to Xxxxx Fargo Commercial Mortgage Trust, Commercial
Mortgage Pass-Through Certificates, Series [________]. Any term with initial
capital letters not otherwise defined in this notice has the meaning given such
term in the Agreement.
Notice is
hereby given that the Holders of Certificates evidencing a majority of the
Voting Rights allocated to the Controlling Class have designated
___________________ to serve as the Special Servicer under the
Agreement.
The
designation of ____________________ as Special Servicer will become final if
certain conditions are met and on the date you will deliver to [NAME OF
TRUSTEE], the trustee under the Agreement (the “Trustee”), a written
confirmation stating that the appointment of the person designated to become the
Special Servicer will not result in the qualification, downgrading or withdrawal
of the rating or ratings assigned to one or more Classes of the
Certificates.
Please
acknowledge receipt of this notice by signing the enclosed copy of this notice
where indicated below and returning it to the Trustee, in the enclosed stamped
self-addressed envelope.
I-1-1
|
|
Very
truly yours,
|
|
|
[NAME
OF TRUSTEE]
|
||
| By:____________________________________________ | ||
|
Name:
Title:
|
||
Receipt
and acknowledged:
|
[Standard
& Poor’s Ratings Services, a division of The XxXxxx-Xxxx Companies,
Inc.]
|
[Xxxxx’x
Investors Service, Inc.]
|
|
|
By:__________________________________________________
Title:_________________________________________________
Date: ________________________________________________
|
|
By:____________________________________________
Title:___________________________________________
Date:___________________________________________
|
|
[Fitch,
Inc.]
|
|
|
|
By:__________________________________________________
Title:_________________________________________________
Date: ________________________________________________
|
|
|
I-1-2
EXHIBIT
I-2
FORM OF ACKNOWLEDGMENT OF
PROPOSED SPECIAL SERVICER
[Date]
[NAME OF
TRUSTEE]
[ADDRESS]
Attn:
[Global Securities and Trust Services Group] - Xxxxx Fargo Commercial Mortgage
Trust, Commercial Mortgage Pass-Through Certificates, Series
[________]
|
|
Re:
|
Xxxxx
Fargo Commercial Mortgage Trust, Commercial
Mortgage Pass-Through
Certificates, Series
[ ]
|
Ladies
and Gentlemen:
Pursuant
to Section 6.09 of the Pooling and Servicing Agreement dated as of [________]
relating to Xxxxx Fargo Commercial Mortgage Trust, Commercial Mortgage
Pass-Through Certificates, Series [________] (the “Agreement”), the
undersigned hereby agrees with all the other parties to the Agreement that the
undersigned shall serve as Special Servicer under, and as defined in, the
Agreement. The undersigned hereby acknowledges that, as of the date hereof, it
is and shall be a party to the Agreement and bound thereby to the full extent
indicated therein in the capacity of Special Servicer. The
undersigned hereby makes, as of the date hereof, the representations and
warranties set forth in Section 3.23(b) of the Agreement as if it were the
Special Servicer thereunder.
|
|
|
||
| By: | |||
| Name:_________________________________________________________ | |||
| Title:__________________________________________________________ |
I-2-1
EXHIBIT
J
[RESERVED]
J-1
EXHIBIT
K-1
FORM OF CERTIFICATEHOLDER
CONFIRMATION CERTIFICATE
REQUEST BY BENEFICIAL
HOLDER
[Date]
[NAME OF
TRUSTEE]
[ADDRESS]
Attn:
[Global Securities and Trust Services Group] - Xxxxx Fargo Commercial Mortgage
Trust, Commercial Mortgage Pass-Through Certificates, Series
[________]
[Xxxxx
Fargo Bank, National Association
0000
Xxxxxxxx Xxxxx - URP4
Xxxxxxxxx,
Xxxxx Xxxxxxxx 00000]
[NAME OF
SPECIAL SERVICER]
[ADDRESS]
|
|
Re:
|
Xxxxx
Fargo Commercial Mortgage Trust, Commercial
Mortgage Pass-Through
Certificates, Series
[ ]
|
In
accordance with Section 3.15 of the Pooling and Servicing Agreement dated as of
[________] (the “Pooling and Servicing
Agreement”), among Xxxxx Fargo Commercial Mortgage Securities, Inc., as
depositor (the “Depositor”), [Xxxxx
Fargo Bank, National Association], as master servicer (in such capacity, the
“Master
Servicer”), [NAME OF SPECIAL SERVICER], as special servicer, (the “Special Servicer”)
and [NAME OF TRUSTEE], as trustee (the “Trustee”), with
respect to the Xxxxx Fargo Commercial Mortgage Trust, Commercial Mortgage
Pass-Through Certificates, Series [________] (the “Certificates”), the
undersigned hereby certifies and agrees as follows:
1. The
undersigned is a beneficial owner of the Class ____ Certificates.
2. The
undersigned is requesting access to the information posted to the Trustee’s
Internet Website pursuant to Section 4.02 of the Pooling and Servicing
Agreement, or the information identified on the schedule attached hereto
pursuant to Section 3.15 of the Pooling and Servicing Agreement (the “Information”).
3. In
consideration of the [Trustee’s] [Master Servicer’s] [Special Servicer’s]
disclosure to the undersigned of the Information, the undersigned will keep the
Information confidential (except from its agents and auditors), and such
Information will not, without the prior written consent of the [Trustee] [Master
Servicer] [Special Servicer], be disclosed by the undersigned or by its
officers, directors, partners, employees, agents or representatives
(collectively, the “Representatives”) in
any manner
K-1-1
whatsoever,
in whole or in part; provided that the undersigned may provide all or any part
of the Information to any other person or entity that holds or is contemplating
the purchase of any Certificate or interest therein, but only if such person or
entity confirms in writing such ownership interest or prospective ownership
interest and agrees to keep it confidential.
4. The
undersigned will not use or disclose the Information in any manner which could
result in a violation of any provision of the Securities Act of 1933, as
amended, (the “Securities Act”), or
the Securities Exchange Act of 1934, as amended, or would require registration
of any Certificate pursuant to Section 5 of the Securities Act.
5. The
undersigned shall be fully liable for any breach of this agreement by itself or
any of its Representatives and shall indemnify the Depositor, the Trustee, the
Master Servicer, the Special Servicer and the Trust for any loss, liability or
expense incurred thereby with respect to any such breach by the undersigned or
any of its Representatives.
IN
WITNESS WHEREOF, the undersigned has caused its name to be signed hereto by its
duly authorized officer, as of the day and year written above.
|
|
|
||
|
BENEFICIAL
HOLDER OF A
CERTIFICATE
|
|||
| By: | |||
| Name:_________________________________________________________ | |||
| Title:__________________________________________________________ | |||
|
Phone:_________________________________________________________
|
K-1-2
EXHIBIT
K-2
FORM OF PROSPECTIVE
PURCHASER CERTIFICATE
[Date]
[NAME OF
TRUSTEE]
[ADDRESS]
Attn:
[Global Securities and Trust Services Group] - Xxxxx Fargo Commercial Mortgage
Trust, Commercial Mortgage Pass-Through Certificates, Series
[________]
[Xxxxx
Fargo Bank, National Association
0000
Xxxxxxxx Xxxxx - XXX0
Xxxxxxxxx,
Xxxxx Xxxxxxxx 00000
Attention: Xxxxx Fargo
Commercial Mortgage Trust
Commercial Mortgage Pass-Through
Certificates, Series [________]]
[NAME OF
SPECIAL SERVICER]
[ADDRESS]
|
|
Re:
|
Xxxxx
Fargo Commercial Mortgage Trust, Commercial
Mortgage Pass-Through
Certificates, Series [ ] (the
“Certificates”)
|
In
accordance with Section 3.15 of the Pooling and Servicing Agreement, dated as of
[________] (the “Pooling and Servicing
Agreement”), among Xxxxx Fargo Commercial Mortgage Securities, Inc., as
depositor (the “Depositor”), [Xxxxx
Fargo Bank, National Association], as master servicer (in such capacity, the
“Master
Servicer”), [NAME OF SPECIAL SERVICER], as special servicer, (the “Special Servicer”)
and [NAME OF TRUSTEE], as trustee (the “Trustee”), with
respect to the Xxxxx Fargo Commercial Mortgage Trust, Commercial Mortgage
Pass-Through Certificates, Series [________] (the “Certificates”), the
undersigned hereby certifies and agrees as follows:
|
|
1.
|
The
undersigned is contemplating an investment in the Class __
Certificates.
|
|
|
2.
|
The
undersigned is requesting access to the information posted to the
Trustee’s Internet Website pursuant to Section 4.02 of the Pooling and
Servicing Agreement, or the information identified on the schedule
attached hereto pursuant to Section 3.15 of the Pooling and Servicing
Agreement (the “Information”)
for use in evaluating such possible
investment.
|
|
|
3.
|
In
consideration of the [Trustee’s] [Master Servicer’s] [Special Servicer’s]
disclosure to the undersigned of the Information, the undersigned will
keep the Information confidential (except from its agents and auditors),
|
K-2-1
|
|
|
and
such Information will not, without the prior written consent of the
[Trustee] [Master Servicer] [Special Servicer], be disclosed by the
undersigned or by its officers, directors, partners employees, agents or
representatives (collectively, the “Representatives”)
in any manner whatsoever, in whole or in
part.
|
|
|
4.
|
The
undersigned will not use or disclose the Information in any manner which
could result in a violation of any provision of the Securities Act of
1933, as amended (the “Securities
Act”), or the Securities Exchange Act of 1934, as amended, or would
require registration of any Certificate pursuant to Section 5 of the
Securities Act.
|
|
|
5.
|
The
undersigned shall be fully liable for any breach of this agreement by
itself or any of its Representatives and shall indemnify the Depositor,
the Trustee, the Master Servicer, the Special Servicer and the Trust for
any loss, liability or expense incurred thereby with respect to any such
breach by the undersigned or any of its Representatives The undersigned is
contemplating an investment in the Class ____
Certificates.
|
IN
WITNESS WHEREOF, the undersigned has caused its name to be signed hereto by its
duly authorized officer, as of the day and year written above.
|
|
|
||
|
[PROSPECTIVE PURCHASER]
|
|||
| By: | |||
| Name:_________________________________________________________ | |||
| Title:__________________________________________________________ | |||
|
Phone:_________________________________________________________
|
K-2-2
EXHIBIT
L
INITIAL COMPANION
HOLDERS
Name: Xxxxx
Fargo Bank, National Association, with respect to the
[ ]
Loan
Address: 000 Xxxxx Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxx
Xxxxxxxx 00000
Wiring
Instructions:
Tax
Identification Number:
Name: [________],
with respect to the [ ] Loan
Address:
Wiring
Instructions:
Tax
Identification Number:
L-1
EXHIBIT
M
FORM OF PURCHASE OPTION
NOTICE
PURSUANT TO SECTION
3.18
[Date]
[NAME OF
TRUSTEE]
[ADDRESS]
Attn:
[Global Securities and Trust Services Group] - Xxxxx Fargo Commercial Mortgage
Trust, Commercial Mortgage Pass-Through Certificates, Series
[________]
[Xxxxx
Fargo Bank, National Association
NC
1075
0000
Xxxxxxxx Xxxxx XXX0
Xxxxxxxxx,
Xxxxx Xxxxxxxx 00000-0000
Attention: Xxxxx
Fargo Commercial Mortgage Trust, Commercial Mortgage Pass-Through Certificates,
Series [________]]
|
|
Re:
|
Xxxxx
Fargo Commercial Mortgage Trust, Commercial
Mortgage Pass-Through
Certificates, Series
[ ]
|
Ladies
and Gentlemen:
The
undersigned hereby acknowledges that it is the holder of an assignable option
(the “Purchase
Option”) to purchase Mortgage Loan number ____ from the Trust Fund,
pursuant to Section 3.18 of the Pooling and Servicing Agreement (the “Pooling and Servicing
Agreement”) dated as of [________], by and among Xxxxx Fargo Commercial
Mortgage Securities, Inc., as depositor, [Xxxxx Fargo Bank, National
Association], as master servicer, [NAME OF SPECIAL SERVICER], as special
servicer and [NAME OF TRUSTEE], as trustee. Capitalized terms used herein and
not otherwise defined shall have the meaning set forth in the Pooling and
Servicing Agreement.
The
undersigned Option Holder [is the Special Servicer] [is the Majority Subordinate
Certificateholder] [acquired its Purchase Option from the [Special Servicer]
[Majority Subordinate Certificateholder] on _________].
The
undersigned Option Holder is exercising its Purchase Option at the cash price of
$______________, which amount equals or exceeds the Option Price, as defined in
Section 3.18(c) of the Pooling and Servicing Agreement. Within ten (10) Business
Days of the date hereof, [the undersigned Option Holder] [______________, an
Affiliate of the undersigned Option Holder] will deliver the Option Price to or
at the direction of the Special Servicer in exchange for the release of the
Mortgage Loan, the related Mortgaged Property and delivery of the related
Mortgage Loan File.
M-1
The
undersigned Option Holder agrees that it shall prepare and provide the Special
Servicer with such instruments of transfer or assignment, in each case without
recourse, as shall be reasonably necessary to vest in it or its designee the
ownership of Mortgage Loan ____, together with such other documents or
instruments as the Special Servicer shall reasonably require to consummate the
purchase contemplated hereby.
The
undersigned Option Holder acknowledges and agrees that its exercise of its
Purchase Option Notice may not be revoked and that the undersigned Option
Holder, or its designee, shall be obligated to close its purchase of Mortgage
Loan ___ in accordance with the terms and conditions of this letter and Section
3.18 of the Pooling and Servicing Agreement.
|
|
Very
truly yours,
|
|
|
[Option
Holder]
|
|
|
By:
|
______________________________________ |
|
|
Name:
|
|
|
Title:
|
[By
signing this letter in the space provided below, the [Special
Servicer] [Majority Subordinate Certificateholder] hereby
acknowledges and affirms that it transferred its Purchase Option to the Option
Holder identified above on [_________]:
[______________________________]
By:
Name:
Title:
M-2
EXHIBIT
N
FORM OF NOTICE AND
CERTIFICATION
REGARDING DEFEASANCE OF
MORTGAGE LOAN
|
To:
|
Standard
& Poor’s Ratings Services, a division of The XxXxxx-Xxxx Companies,
Inc.
|
|
|
00
Xxxxx Xxxxxx
|
|
|
Xxx
Xxxx, Xxx Xxxx 00000
|
|
|
Attn: Commercial
Mortgage Surveillance
|
|
From:
|
[Xxxxx
Fargo Bank, National Association], in its capacity as Master Servicer (the
“Master
Servicer”) under the Pooling and Servicing Agreement dated as of
[________] (the “Pooling and Servicing
Agreement”), among the Master Servicer, [NAME OF TRUSTEE], as
trustee and others
|
Date: _________,
20___
|
Re:
|
Xxxxx
Fargo Commercial Mortgage Trust, Commercial Mortgage Pass-Through
Certificates Series
[ ]
|
|
|
Mortgage
Loan (the “Mortgage Loan”)
identified by loan number _____ on the Mortgage Loan Schedule attached to
the Pooling and Servicing Agreement and heretofore secured by the
Mortgaged Properties identified on the Mortgage Loan Schedule by the
following names:
|
|
|
___________________
|
|
|
___________________
|
Reference
is made to the Pooling and Servicing Agreement described
above. Capitalized terms used but not defined herein have the
meanings assigned to such terms in the Pooling and Servicing
Agreement.
As Master
Servicer under the Pooling and Servicing Agreement, we hereby:
(a) Notify
you that the Mortgagor has consummated a defeasance of the Mortgage Loan
pursuant to the terms of the Mortgage Loan, of the type checked
below:
____ a
full defeasance of the entire principal balance of the Mortgage Loan;
or
____ a
partial defeasance of a portion of the principal balance of the Mortgage Loan
that represents and, an allocated loan amount of $____________ or _______% of
the entire principal balance of the Mortgage Loan;
(b) Certify
that each of the following is true, subject to those exceptions set forth with
explanatory notes on Exhibit A hereto, which exceptions the Master Servicer has
determined, consistent with the Servicing Standard, will have no material
adverse effect on the Mortgage Loan or the defeasance transaction:
N-1
|
|
(i)
|
The
Mortgage Loan documents permit the defeasance, and the terms and
conditions for defeasance specified therein were satisfied in all material
respects in completing the
defeasance.
|
|
|
(ii)
|
The
defeasance was consummated on __________,
20__.
|
|
|
(iii)
|
The
defeasance collateral consists of securities that (i) constitute
“government securities” as defined in Section 2(a)(16) of the Investment
Company Act of 1940 as amended (15 U.S.C. 80A1), (ii) are listed as
“Qualified Investments for `AAA’ Financings” under Paragraphs 1, 2 or 3 of
“Cash Flow Approach” in Standard & Poor’s Public Finance Criteria
2000, as amended to the date of the defeasance, (iii) are rated `AAA’ by
S&P, (iv) if they include a principal obligation, the principal due at
maturity cannot vary or change, and (v) are not subject to prepayment,
call or early redemption.
|
|
|
(iv)
|
The
Master Servicer received an opinion of counsel (from counsel approved by
Master Servicer in accordance with the Servicing Standard) that the
defeasance will not result in an Adverse REMIC
Event.
|
|
|
(v)
|
The
Master Servicer determined that the defeasance collateral will be owned by
an entity (the “Defeasance Obligor”) that is a Single-Purpose Entity (as
defined in Standard & Poor’s Structured Finance Ratings Real Estate
Finance Criteria, as amended to the date of the defeasance (the “S&P
Criteria”)) as of the date of the defeasance, and after the defeasance
owns no assets other than the defeasance collateral and real property
securing Mortgage Loans included in the
pool.
|
|
|
(vi)
|
The
Master Servicer received written confirmation of the crediting of the
defeasance collateral to an Eligible Account (as defined in the S&P
Criteria) in the name of the Defeasance Obligor, which account is
maintained as a securities account by a securities intermediary and has
been pledged to the Trustee.
|
|
|
(vii)
|
The
agreements executed in connection with the defeasance (i) grant control of
the pledged securities account to the Trustee, (ii) require the securities
intermediary to make the scheduled payments on the Mortgage Loan from the
proceeds of the defeasance collateral directly to the Servicer’s
collection account in the amounts and on the dates specified in the
Mortgage Loan documents or, in a partial defeasance, the portion of such
scheduled payments attributed to the allocated loan amount for the real
property defeased, increased by any defeasance premium specified in the
Mortgage Loan documents (the “Scheduled Payments”), (iii) permit
reinvestment of proceeds of the defeasance collateral only in Permitted
Investments (as defined in the S&P Criteria), (iv) permit release of
surplus defeasance collateral and earnings on reinvestment from the
pledged securities account only after the Mortgage Loan has been paid in
full, if any such release is permitted, (v) prohibit transfers by the
Defeasance Obligor of the defeasance collateral and subordinate liens
against the defeasance collateral, and (vi) provide for payment from
sources other than the defeasance collateral or other assets of the
Defeasance Obligor of all fees and expenses of the securities
|
N-2
|
|
|
intermediary
for administering the defeasance and the securities account and all fees
and expenses of maintaining the existence of the Defeasance
Obligor.
|
|
|
(viii)
|
The
Master Servicer received written confirmation from a firm of independent
certified public accountants, who were approved by Master Servicer in
accordance with the Servicing Standard stating that (i) revenues from the
defeasance collateral (without taking into account any earnings on
reinvestment of such revenues) will be sufficient to timely pay each of
the Scheduled Payments after the defeasance including the payment in full
of the Mortgage Loan (or the allocated portion thereof in connection with
a partial defeasance) on its Maturity Date (or, in the case of an ARD
Loan, on its Anticipated Repayment Date), (ii) the revenues received in
any month from the defeasance collateral will be applied to make Scheduled
Payments within four (4) months after the date of receipt, and (iii)
interest income from the defeasance collateral to the Defeasance Obligor
in any calendar or fiscal year will not exceed such Defeasance Obligor’s
interest expense for the Mortgage Loan (or the allocated portion thereof
in a partial defeasance) for such
year.
|
|
|
(ix)
|
The
Mortgage Loan is not among the ten (10) largest loans in the pool. The
entire principal balance of the Mortgage Loan as of the date of defeasance
was less than both $[______] and five percent of the pool balance, which
is less than [__]% of the aggregate Certificate Balance of the
Certificates as of the date of the most recent Trustee’s Distribution Date
Statement received by us (the “Current
Report”).
|
|
|
(x)
|
The
defeasance described herein, together with all prior and simultaneous
defeasances of Mortgage Loans, brings the total of all fully and partially
defeased Mortgage Loans to $__________________, which is _____% of the
aggregate Certificate Balance of the Certificates as of the date of the
Current Report
|
(c) Certify
that Exhibit B hereto is a list of the material agreements, instruments,
organizational documents for the Defeasance Obligor, and opinions of counsel and
independent accountants executed and delivered in connection with the
defeasance.
(d) Certify
that the individual under whose hand the Master Servicer has caused this Notice
and Certification to be executed did constitute a Servicing Officer as of the
date of the defeasance described above.
(e) Agree
to provide copies of all items listed in Exhibit B to you upon
request
[SIGNATURE
PAGE FOLLOWS]
N-3
IN
WITNESS WHEREOF, the Master Servicer has caused this Notice and Certification to
be executed as of the date captioned above.
|
|
[XXXXX
FARGO BANK, NATIONAL ASSOCIATION]
|
|
|
By:
|
__________________________________________ |
|
|
Name:
|
|
|
Title:
|
O-4
EXHIBIT
O
FORM OF DEPOSITOR
CERTIFICATION TO BE
PROVIDED WITH FORM
10-K
Xxxxx
Fargo Commercial Mortgage Trust,
Commercial
Mortgage Pass-Through Certificates
Series
[____] (the “Trust”)
I,
[identify the certifying individual], a [title] of Xxxxx Fargo Commercial
Mortgage Securities, Inc., the depositor into the above-referenced Trust,
certify that:
1. I
have reviewed this annual report on Form 10-K, and all reports Form 10-D
required to be filed in respect of periods included in the year covered by this
annual report, of the Trust;
2. Based
on my knowledge, the Exchange Act periodic reports, taken as a whole, does not
contain any untrue statement of a material fact or omit to state a material fact
necessary to make the statements made, in light of the circumstances under which
such statements were made, not misleading with respect to the period covered by
this annual report;
3. Based
on my knowledge, all of the distribution, servicing and other information
required to be provided under Form 10-D for the period covered by this report is
included in the Exchange Act periodic reports;
4. Based
on my knowledge and the servicer compliance statements required in this report
under Item 1123 of Regulation AB, and except as disclosed in the Exchange Act
periodic report, the servicers have fulfilled their obligations under the
pooling and servicing agreement; and
5. All
of the reports on assessment of compliance with servicing criteria for
asset-backed securities and their related attestation reports on assessment of
compliance with servicing criteria for asset-backed securities required to be
included in this report in accordance with Item 1122 of Regulation AB and
Exchange Act Rules 13a-18 and 15d-18 have been included as an exhibit to this
report, except as otherwise disclosed in this report. Any material instances of
noncompliance described in such reports have been disclosed in this report on
Form 10-K.
In giving
the certifications above, I have reasonably relied on information provided to me
by the following unaffiliated parties: [NAME OF SPECIAL SERVICER and [NAME OF
TRUSTEE].
O-1
Date:
__________________________
____________________________
President
and Chief Executive Officer
Xxxxx
Fargo Commercial Mortgage Securities, Inc.
O-2
EXHIBIT
P
FORM OF CERTIFICATION TO BE
PROVIDED TO DEPOSITOR BY THE TRUSTEE
Xxxxx
Fargo Commercial Mortgage Trust,
Commercial
Mortgage Pass-Through Certificates
Series
[____] (the “Trust”)
I,
[identify the certifying individual], a [title] of [NAME OF TRUSTEE], certify to
Xxxxx Fargo Commercial Mortgage Securities, Inc. and its officers, directors and
affiliates, and with the knowledge and intent that they will rely upon this
certification in delivering the Certification required by the pooling and
servicing agreement relating to the Certificates (capitalized terms used herein
without definition shall have the meanings assigned to such terms in the pooling
and servicing agreement), that:
1. I
have reviewed this annual report on Form 10-K, and all reports on Form 10-D
required to be filed in respect of the period included in the year covered by
this annual report, of the Trust;
2. Based
on my knowledge, the distribution information in these reports, taken as a
whole, does not contain any untrue statement of a material fact or omit to state
a material fact necessary to make the statements made, in light of the
circumstances under which such statements were made, not misleading with respect
to the period covered by this report;
3. Based
on my knowledge, the distribution and servicing information required to be
provided to the trustee by the master servicer under the pooling and servicing
agreement is included in the reports delivered by the master servicer to the
trustee;
4. I
am responsible for reviewing the activities performed by the trustee and based
on my knowledge and the compliance reviews conducted in preparing the trustee
compliance statements required in this report under Item 1123 of Regulation AB,
the trustee has fulfilled its obligations under the pooling and servicing
agreement; and
5. All
of the reports on assessment of compliance with servicing criteria for
asset-backed securities and their related attestation reports on assessment of
compliance with servicing criteria for asset-backed securities with respect to
the trustee required to be included in this report in accordance with Item 1122
of Regulation AB and Exchange Act Rules 13a-18 and 15d-18 have been included as
an exhibit to this report, except as otherwise disclosed in this report. Any
material instances of noncompliance described in such reports have been
disclosed in this report on Form 10-K.
P-1
Date: _____________________________
_________________________________
[Title]
[Name of
Trustee]
P-2
EXHIBIT
Q-1
FORM OF MASTER SERVICER
CERTIFICATION
TO BE PROVIDED WITH FORM
10-K
Xxxxx
Fargo Commercial Mortgage Trust,
Commercial
Mortgage Pass-Through Certificates
Series
[____] (the “Trust”)
I,
[identify the certifying individual], a [title] of [Xxxxx Fargo Bank, National
Association], certify to Xxxxx Fargo Commercial Mortgage Securities, Inc. and
its officers, directors and affiliates, and with the knowledge and intent that
they will rely upon this certification (capitalized terms used herein without
definition shall have the meanings assigned to such terms in the pooling and
servicing agreement), that
1. I
have reviewed the servicing reports relating to the Trust delivered by the
master servicer to the trustee pursuant to the pooling and servicing agreement
covering the fiscal year [_____];
2. Based
on my knowledge, the servicing information in these reports delivered by the
master servicer, taken as a whole, does not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the statements
made, in light of the circumstances under which such statements were made, not
misleading with respect to the period covered by this report;
3. Based
on my knowledge, and assuming that the special servicer timely delivered to the
master servicer all servicing information required to be provided to the master
servicer by the special servicer under the pooling and servicing agreement, the
servicing information required to be provided to the trustee by the master
servicer under the pooling and servicing agreement is included in the servicing
reports delivered by the master servicer to the trustee;
4. I
am responsible for reviewing the activities performed by the master servicer
under the pooling and servicing agreement and based upon my knowledge and the
annual compliance reviews conducted in preparing the servicer compliance
statements required in this report under Item 1123 of Regulation AB with respect
to the master servicer, and except as disclosed in the compliance certificate
delivered by the master servicer under Section 3.13 of the pooling and servicing
agreement, the master servicer has fulfilled its obligations under the pooling
and servicing agreement;
5. The
accountant’s statement delivered pursuant to Section 3.14 of the pooling and
servicing agreement discloses all significant deficiencies relating to the
master servicer’s compliance with the minimum servicing standards based upon the
report provided by an independent public accountant, after conducting a review
in compliance with the Uniform Single Attestation Program for Mortgage Bankers
or similar procedure, as set forth in the pooling and servicing agreement;
and
Q-1-1
6. All
of the reports on assessment of compliance with servicing criteria for
asset-backed securities and their related attestation reports on assessment of
compliance with servicing criteria for asset-backed securities with respect to
the master servicer required to be included in this report in accordance with
Item 1122 of Regulation AB and Exchange Act Rules 13a-18 and 15d-18 have been
included as an exhibit to this report, except as otherwise disclosed in this
report. Any material instances of noncompliance described in such reports have
been disclosed in this report on Form 10-K.
In giving
the certification above, I have reasonably relied on information provided to me
by the following unaffiliated parties: [names of sub-servicers].
Date:__________________________________
______________________________________
[Title]
[Xxxxx
Fargo Bank, National Association]
Q-1-2
EXHIBIT
Q-2
FORM OF SPECIAL SERVICER
CERTIFICATION
TO BE PROVIDED TO
DEPOSITOR
Xxxxx
Fargo Commercial Mortgage Trust,
Commercial
Mortgage Pass-Through Certificates
Series
[____] (the “Trust”)
I,
[identify the certifying individual], a [title] of [NAME OF SPECIAL SERVICER],
certify to Xxxxx Fargo Commercial Mortgage Securities, Inc. and its officers,
directors and affiliates, and with the knowledge and intent that they will rely
upon this certification (capitalized terms used herein without definition shall
have the meanings assigned to such terms in the pooling and servicing
agreement), that:
1. I
have reviewed the servicing reports relating to the Trust delivered by the
special servicer to the master servicer and/or the trustee pursuant to the
pooling and servicing agreement covering the fiscal year [____];
2. Based
on my knowledge, the servicing information in these reports delivered by the
special servicer, taken as a whole, does not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the statements
made, in light of the circumstances under which such statements were made, not
misleading with respect to the period covered by this report;
3. Based
on my knowledge, the servicing information required to be provided to the master
servicer by the special servicer under the pooling and servicing agreement is
included in the servicing reports delivered by the special servicer to the
master servicer;
4. I
am responsible for reviewing the activities performed by the special servicer
under the pooling and servicing agreement and based upon my knowledge and the
annual compliance reviews conducted in preparing the servicer compliance
statements required in this report under Item 1123 of Regulation AB with respect
to the special servicer, and except as disclosed in the compliance certificate
delivered by the special servicer under Section 3.13 of the pooling and
servicing agreement, the special servicer has fulfilled its obligations under
the pooling and servicing agreement; and
5. The
accountant’s statement delivered pursuant to Section 3.14 of the pooling and
servicing agreement discloses all significant deficiencies relating to the
special servicer’s compliance with the minimum servicing standards based upon
the report provided by an independent public accountant, after conducting a
review in compliance with the Uniform Single Attestation Program for Mortgage
Bankers or similar procedure, as set forth in the pooling and servicing
agreement; and
Q-2-1
6. All
of the reports on assessment of compliance with servicing criteria for
asset-backed securities and their related attestation reports on assessment of
compliance with servicing criteria for asset-backed securities with respect to
the special servicer required to be included in this report in accordance with
Item 1122 of Regulation AB and Exchange Act Rules 13a-18 and 15d-18 have been
included as an exhibit to this report, except as otherwise disclosed in this
report. Any material instances of noncompliance described in such reports have
been disclosed in this report on Form 10-K
In giving
the certification above, I have reasonably relied on information provided to me
by the following unaffiliated parties: [names of
sub-servicers].
Date:__________________________________
______________________________________
[Title]
[NAME OF
SPECIAL SERVICER]
Q-2-2
EXHIBIT
R
CLASS A-PB PLANNED PRINCIPAL
BALANCE SCHEDULE
|
Period
|
Date
|
Balance ($)
|
Period
|
Date
|
Balance
($)
|
R-1
EXHIBIT
S
RELEVANT SERVICING
CRITERIA
SERVICING
CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
The
assessment of compliance to be delivered by the Trustee, the Master Servicer,
the Special Servicer, each Sub-Servicer and each Sub-Servicer identified by the
Master Servicer shall address, at a minimum, the criteria identified as below as
“Applicable Servicing Criteria”:
|
SERVICING
CRITERIA
|
APPLICABLE
SERVICING CRITERIA
|
|
|
Reference
|
Criteria
|
|
|
|
General
Servicing Considerations
|
|
|
1122(d)(1)(i)
|
Policies
and procedures are instituted to monitor any performance or other triggers
and events of default in accordance with the transaction
agreements.
|
|
|
1122(d)(1)(ii)
|
If
any material servicing activities are outsourced to third parties,
policies and procedures are instituted to monitor the third party’s
performance and compliance with such servicing activities.
|
|
|
1122(d)(1)(iii)
|
Any
requirements in the transaction agreements to maintain a back-up servicer
for the mortgage loans are maintained.
|
|
|
1122(d)(1)(iv)
|
A
fidelity bond and errors and omissions policy is in effect on the party
participating in the servicing function throughout the reporting period in
the amount of coverage required by and otherwise in accordance with the
terms of the transaction agreements.
|
|
|
|
Cash
Collection and Administration
|
|
|
1122(d)(2)(i)
|
Payments
on mortgage loans are deposited into the appropriate custodial bank
accounts and related bank clearing accounts no more than two business days
following receipt, or such other number of days specified in the
transaction agreements.
|
|
|
1122(d)(2)(ii)
|
Disbursements
made via wire transfer on behalf of an obligor or to an investor are made
only by authorized personnel.
|
|
|
1122(d)(2)(iii)
|
Advances
of funds or guarantees regarding collections, cash flows or distributions,
and any interest or other fees charged for such advances, are made,
reviewed and approved as specified in the transaction
agreements.
|
|
|
1122(d)(2)(iv)
|
||
|
1122(d)(2)(v)
|
Each
custodial account is maintained at a federally insured depository
institution as set forth in the transaction agreements. For purposes of
this criterion, “federally insured depository institution” with respect to
a foreign financial institution means a foreign financial institution that
meets the requirements of Rule 13k-1(b)(1) of the Securities Exchange
Act.
|
|
|
1122(d)(2)(vi)
|
Unissued
checks are safeguarded so as to prevent unauthorized
access.
|
|
|
1122(d)(2)(vii)
|
Reconciliations
are prepared on a monthly basis for all asset-backed securities related
bank accounts, including custodial accounts and related bank clearing
accounts. These reconciliations are (A) mathematically accurate; (B)
prepared within 30 calendar days after the bank statement cutoff date, or
such other number of days specified in the transaction agreements; (C)
reviewed and approved by someone other than the person who prepared the
reconciliation; and (D) contain explanations for reconciling items. These
reconciling items are resolved within 90 calendar days of their original
identification, or such other number of days specified in the transaction
agreements.
|
|
S-1
|
SERVICING
CRITERIA
|
APPLICABLE
SERVICING CRITERIA
|
|
|
Reference
|
Criteria
|
|
|
Investor
Remittances and Reporting
|
||
|
1122(d)(3)(i)
|
Reports
to investors, including those to be filed with the Commission, are
maintained in accordance with the transaction agreements and applicable
Commission requirements. Specifically, such reports (A) are prepared in
accordance with timeframes and other terms set forth in the transaction
agreements; (B) provide information calculated in accordance with the
terms specified in the transaction agreements; (C) are filed with the
Commission as required by its rules and regulations; and (D) agree with
investors’ or the trustee’s records as to the total unpaid principal
balance and number of mortgage loans serviced by the Reporting
Servicer.
|
|
|
1122(d)(3)(ii)
|
Amounts
due to investors are allocated and remitted in accordance with timeframes,
distribution priority and other terms set forth in the transaction
agreements.
|
|
|
1122(d)(3)(iii)
|
Disbursements
made to an investor are posted within two business days to the Servicer’s
investor records, or such other number of days specified in the
transaction agreements.
|
|
|
1122(d)(3)(iv)
|
Amounts
remitted to investors per the investor reports agree with cancelled
checks, or other form of payment, or custodial bank
statements.
|
|
|
|
Pool
Asset Administration
|
|
|
1122(d)(4)(i)
|
Collateral
or security on mortgage loans is maintained as required by the transaction
agreements or related mortgage loan documents.
|
|
|
1122(d)(4)(ii)
|
Mortgage
loan and related documents are safeguarded as required by the transaction
agreements
|
|
|
1122(d)(4)(iii)
|
Any
additions, removals or substitutions to the mortgage loan pool are made,
reviewed and approved in accordance with any conditions or requirements in
the transaction agreements.
|
|
|
1122(d)(4)(iv)
|
Payments
on mortgage loans, including any payoffs, made in accordance with the
related mortgage loan documents are posted to the Servicer’s obligor
records maintained no more than two business days after receipt, or such
other number of days specified in the transaction agreements, and
allocated to principal, interest or other items (e.g., escrow) in
accordance with the related mortgage loan documents.
|
|
|
1122(d)(4)(v)
|
The
Reporting Servicer’s records regarding the mortgage loans agree with the
Reporting Servicer’s records with respect to an obligor’s unpaid principal
balance.
|
|
|
1122(d)(4)(vi)
|
Changes
with respect to the terms or status of an obligor’s mortgage loans (e.g.,
loan modifications or re-agings) are made, reviewed and approved by
authorized personnel in accordance with the transaction agreements and
related pool asset documents.
|
|
|
1122(d)(4)(vii)
|
Loss
mitigation or recovery actions (e.g., forbearance plans, modifications and
deeds in lieu of foreclosure, foreclosures and repossessions, as
applicable) are initiated, conducted and concluded in accordance with the
timeframes or other requirements established by the transaction
agreements.
|
|
|
1122(d)(4)(viii)
|
Records
documenting collection efforts are maintained during the period a mortgage
loan is delinquent in accordance with the transaction agreements. Such
records are maintained on at least a monthly basis, or such other period
specified in the transaction agreements, and describe the entity’s
activities in monitoring delinquent mortgage loans including, for example,
phone calls, letters and payment rescheduling plans in cases where
delinquency is deemed temporary (e.g., illness or
unemployment).
|
|
|
1122(d)(4)(ix)
|
Adjustments
to interest rates or rates of return for mortgage loans with variable
rates are computed based on the related mortgage loan
documents.
|
|
|
1122(d)(4)(x)
|
Regarding
any funds held in trust for an obligor (such as escrow accounts): (A) such
funds are analyzed, in accordance with the obligor’s mortgage loan
documents, on at least an annual basis, or such other period specified in
the transaction agreements; (B) interest on such funds is paid, or
credited, to obligors in accordance with applicable mortgage loan
documents and state laws; and (C) such funds are returned to the obligor
within 30 calendar days of full repayment of the related mortgage loans,
or such other number of days specified in the transaction
agreements.
|
S-2
|
SERVICING
CRITERIA
|
APPLICABLE
SERVICING CRITERIA
|
|
|
Reference
|
Criteria
|
|
|
1122(d)(4)(xi)
|
Payments
made on behalf of an obligor (such as tax or insurance payments) are made
on or before the related penalty or expiration dates, as indicated on the
appropriate bills or notices for such payments, provided that such support
has been received by the servicer at least 30 calendar days prior to these
dates, or such other number of days specified in the transaction
agreements.
|
|
|
1122(d)(4)(xii)
|
Any
late payment penalties in connection with any payment to be made on behalf
of an obligor are paid from the servicer’s funds and not charged to the
obligor, unless the late payment was due to the obligor’s error or
omission.
|
|
|
1122(d)(4)(xiii)
|
Disbursements
made on behalf of an obligor are posted within two business days to the
obligor’s records maintained by the servicer, or such other number of days
specified in the transaction agreements.
|
|
|
1122(d)(4)(xiv)
|
Delinquencies,
charge-offs and uncollectible accounts are recognized and recorded in
accordance with the transaction agreements.
|
|
|
1122(d)(4)(xv)
|
Any
external enhancement or other support, identified in Item 1114(a)(1)
through (3) or Item 1115 of Regulation AB, is maintained as set forth in
the transaction agreements.
|
|
|
|
|
|
[NAME OF
REPORTING SERVICER]
|
Date:
|
___________________________________ |
|
By:
|
___________________________________ |
|
Name: ___________________________________
|
|
Title:
|
___________________________________ |
S-3
EXHIBIT
T
CLASS X-P REFERENCE RATE
SCHEDULE
|
Period Total
|
Date
|
Balance ($)
|
Period Total
|
Date
|
Balance
($)
|
T-1
EXHIBIT
U
ADDITIONAL FORM 10-D
DISCLOSURE
|
Item
on Form 10-D
|
Party
Responsible
|
|
Item
1: Distribution and Pool Performance Information
Any
information required by 1121 which is NOT included on the Distribution
Date Statement
|
Master
Servicer (only with respect
to
Items 1121(a)(2), (a)(5), (a)(6), (a)(8), (a)(9), (a)(10), (a)(11),
(a)(12) and (a)(13))
Trustee
|
|
Item
2: Legal Proceedings per Item 1117 of Regulation AB (to the extent
material to Certificateholders)
|
(i)
All parties to the Pooling and Servicing Agreement (as to themselves),
(ii) the Trustee and the Master Servicer as to the Xxxxx Fargo Commercial
Mortgage Trust, Commercial Mortgage Pass-Through Certificates, Series
[______], (iii) the Depositor as to the sponsors, any 1110(b) originator
and any 1100(d)(1) party
|
|
Item
3: Sale of Securities and Use of
Proceeds
|
Depositor
|
|
Item
4: Defaults Upon Senior Certificates
|
Trustee
|
|
Item
5: Submission of Matters to a Vote of
Certificateholders
|
Trustee
|
|
Item 6: Significant
Obligors of Pool Assets
|
N/A
|
|
Item
7: Significant Enhancement Provider
Information
|
[Depositor]
|
|
Item
8: Other Information (information required to be disclosed on
Form 8-K that was not properly disclosed)
|
Any
party responsible for disclosure items on Form
8-K
|
|
Item
9: Exhibits
|
Trustee
|
U-1
EXHIBIT
V
ADDITIONAL DISCLOSURE
NOTIFICATION
**SEND
VIA FAX TO [TRUSTEE FAX NUMBER] AND VIA EMAIL TO [TRUSTEE
EMAIL
ADDRESS] AND VIA OVERNIGHT MAIL TO THE ADDRESS
IMMEDIATELY
BELOW**
[NAME OF
TRUSTEE]
[TRUSTEE
ADDRESS]
Attn: Corporate
Trust Services (CMBS) Xxxxx Fargo Commercial Mortgage Trust, Series
[_______]—SEC
REPORT PROCESSING
RE: **Additional
Form [10-D][10-K][8-K] Disclosure** Required
Ladies
and Gentlemen:
In
accordance with Section [ ] of the Pooling and Servicing Agreement,
dated as of [_______] (the “Pooling and Servicing
Agreement”), by and among Xxxxx Fargo Commercial Mortgage Securities,
Inc., as depositor, [Xxxxx Fargo Bank, National Association], as master
servicer, [NAME OF SPECIAL SERVICER], as special servicer, and [NAME OF
TRUSTEE], as trustee. The undersigned, as [ ], hereby notifies you
that certain events have come to our attention that [will] [may] need to be
disclosed on Form [10-D][10-K][8-K].
Description of Additional
Form [10-D][10-K][8-K] Disclosure:
List of any Attachments
hereto to be included in the Additional Form [10-D][10-K][8-K]
Disclosure:
Any
inquiries related to this notification should be directed to
[ ],
phone
number: [ ];
email
address: [ ].
|
|
[NAME
OF PARTY],
as [role]
|
|
|
|
By: __________________________________________ |
|
|
Name:
|
|
|
Title:
|
cc: Depositor
V-1
EXHIBIT
W
ADDITIONAL FORM 10-K
DISCLOSURE
|
Item
on Form 10-K
|
Party
Responsible
|
|
Item
1B: Unresolved Staff Comments
|
Depositor
|
|
Item
9B: Other Information (information required to be disclosed on
Form 8-K that was not properly disclosed)
|
Any
party responsible for disclosure items on Form
8-K
|
|
Item
15: Exhibits, Financial Statement
Schedules
|
Trustee
|
|
Additional
Item:
Disclosure
per Item 1117 of Reg AB
|
[Depositor]
|
|
Additional
Item:
Disclosure
per Item 1119 of Reg AB
|
(i)
All parties to the Pooling and Servicing Agreement (as to themselves),
(ii) the Trustee and the Master Servicer as to the Xxxxx Fargo Commercial
Mortgage Trust, Commercial Mortgage Pass-Through Certificates, Series
[______], (iii) the Depositor as to the sponsors, any 1110(b) originator
and any 1100(d)(1) party
|
|
Additional
Item:
Disclosure
per Item 1112(b) of Reg AB
|
(i)
All parties to the Pooling and Servicing Agreement as to themselves, (ii)
the Depositor as to the sponsors, originator, significant obligor,
enhancement or support provider, if applicable
|
|
Additional
Item:
Disclosure
per Items 1114(b) and 1115(b) of Reg AB
|
N/A
|
|
[Additional
Item:
Disclosure
per Item 1122 of Reg AB]
|
[Trustee
Master
Servicer
Special
Servicer]
|
|
[Additional
Item:
Disclosure
per Item 1122 of Reg AB]
|
[Trustee
Master
Servicer
Special
Servicer]
|
W-1
EXHIBIT
X
FORM 8-K
DISCLOSURE
|
Item
on Form 8-K
|
Party
Responsible
|
|
Item
1.01: Entry into a Material Definitive
Agreement
|
All
parties
|
|
Item
1.02: Termination of a Material Definitive
Agreement
|
All
parties
|
|
Item
1.03: Bankruptcy or Receivership
|
[Depositor]
|
|
Item
2.04: Triggering Events that Accelerate or Increase a Direct
Financial Obligation or an Obligation under an Off-Balance Sheet
Arrangement
|
Depositor
|
|
Item
3.03: Material Modification to Rights of Security
Holders
|
Trustee
|
|
Item
5.03: Amendments of Articles of Incorporation or Bylaws; Change
of Fiscal Year
|
Depositor
|
|
Item
6.01: ABS Informational and Computational
Material
|
Depositor
|
|
Item
6.02: Change of Master Servicer, Special Servicer or
Trustee
|
Master
Servicer
Special
Servicer
Trustee
|
|
Item
6.03: Change in Credit Enhancement or External
Support
|
[Depositor]
Trustee
|
|
Item
6.04: Failure to Make a Required
Distribution
|
Trustee
|
|
Item
6.05: Securities Act Updating Disclosure
|
Depositor
|
|
Item
7.01: Regulation FD Disclosure
|
[Depositor]
|
|
Item
8.01
|
[Depositor]
|
|
Item
9.01
|
[Depositor]
|
X-1
EXHIBIT
Y
SUB-SERVICER
LIST
Y-1
