EXHIBIT 4.1
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CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.,
as Depositor,
KEYCORP REAL ESTATE CAPITAL MARKETS, INC.,
as General Master Servicer,
ARCAP SERVICING, INC.,
as General Special Servicer,
NCB, FSB,
as NCBFSB Master Servicer,
NATIONAL CONSUMER COOPERATIVE BANK,
as Co-op Special Servicer,
and
XXXXX FARGO BANK MINNESOTA, N.A.,
as Trustee,
POOLING AND SERVICING AGREEMENT
Dated as of June 1, 2003
$1,764,825,640
Commercial Mortgage Pass-Through Certificates
Series 2003-C3
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TABLE OF CONTENTS
ARTICLE I
DEFINITIONS; GENERAL INTERPRETIVE PRINCIPLES;
CERTAIN CALCULATIONS IN RESPECT
OF THE MORTGAGE POOL
Section 1.01 Defined Terms...................................................
Section 1.02 General Interpretive Principles.................................
Section 1.03 Certain Calculations in Respect of the Mortgage Pool............
Section 1.04 Cross-Collateralized Mortgage Loans.............................
Section 1.05 Certain Matters with Respect to the 000 Xxxxx Xxxxxx Loan
and the Washington Center Loan.................................
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES; ORIGINAL
ISSUANCE OF UNCERTIFICATED LOWER-TIER INTERESTS AND 000 XXXXX XXXXXX LOAN
REMIC REGULAR INTERESTS; EXEcUTION OF CERTIFICATES
Section 2.01 Conveyance of Mortgage Loans....................................
Section 2.02 Acceptance of Mortgage Assets by Trustee........................
Section 2.03 Certain Repurchases and Substitutions of Mortgage Loans
by the Mortgage Loan Sellers or the Column Performance
Guarantor......................................................
Section 2.04 Representations and Warranties of the Depositor.................
Section 2.05 Representations and Warranties of the General Master
Servicer.......................................................
Section 2.06 Representations and Warranties of the General Special
Servicer.......................................................
Section 2.07 Representations and Warranties of the NCBFSB Master
Servicer.......................................................
Section 2.08 Representations and Warranties of the Co-op Special
Servicer.......................................................
Section 2.09 Representations, Warranties and Covenants of the Trustee........
Section 2.10 Issuance of 000 Xxxxx Xxxxxx Loan REMIC Regular and
Residual Interests; Issuance of Uncertificated
Lower-Tier Interests; Execution of Certificates................
Section 2.11 Acceptance of Grantor Trust by Trustee; Issuance of the
Class V Certificates...........................................
ARTICLE III
ADMINISTRATION AND SERVICING OF THE TRUST FUND
Section 3.01 General Provisions..............................................
Section 3.02 Collection of Mortgage Loan Payments............................
Section 3.03 Collection of Taxes, Assessments and Similar Items;
Servicing Accounts; Reserve Accounts...........................
Section 3.04 Collection Accounts, Distribution Account, Interest
Reserve Account and Excess Liquidation Proceeds Account........
Section 3.05 Permitted Withdrawals From the Collection Accounts, the
Distribution Account, the Interest Reserve Account and
the Excess Liquidation Proceeds Account........................
Section 3.06 Investment of Funds in the Accounts.............................
Section 3.07 Maintenance of Insurance Policies; Errors and Omissions
and Fidelity Coverage..........................................
Section 3.08 Enforcement of Alienation Clauses...............................
Section 3.09 Realization Upon Defaulted Mortgage Loans.......................
Section 3.10 Trustee to Cooperate; Release of Mortgage Files.................
Section 3.11 Master Servicing and Special Servicing Compensation;
Interest on and Reimbursement of Servicing Advances;
Payment of Certain Expenses; Obligations of the Trustee
and any Fiscal Agent Regarding Back-up Servicing Advances......
Section 3.12 Property Inspections; Collection of Financial Statements;
Delivery of Certain Reports....................................
Section 3.13 Annual Statement as to Compliance...............................
Section 3.14 Reports by Independent Public Accountants.......................
Section 3.15 Access to Certain Information...................................
Section 3.16 Title to REO Property; REO Account..............................
Section 3.17 Management of REO Property......................................
Section 3.18 Fair Value Option; Sale of REO Properties.......................
Section 3.19 Additional Obligations of Master Servicers and the
Special Servicers..............................................
Section 3.20 Modifications, Waivers, Amendments and Consents.................
Section 3.21 Transfer of Servicing Between Applicable Master Servicer
and Applicable Special Servicer; Record Keeping................
Section 3.22 Sub-Servicing Agreements........................................
Section 3.23 Controlling Class Representative................................
Section 3.24 Certain Rights and Powers of the Controlling Class
Representative.................................................
Section 3.25 Replacement of Special Servicers................................
Section 3.26 Application of Default Charges..................................
Section 3.27 Rights of the Holder of the 000 Xxxxx Xxxxxx X Loan and
the Holders of the Washington Center Junior Loans..............
Section 3.28 Servicing of the 000 Xxxxx Xxxxxx Non-Pooled Portion............
Section 3.29 Washington Center Purchase Option and Cure Rights...............
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
Section 4.01 Distributions...................................................
Section 4.02 Statements to Certificateholders; Certain Other Reports.........
Section 4.03 P&I Advances....................................................
Section 4.04 Allocation of Collateral Support Deficit........................
Section 4.05 Calculations....................................................
ARTICLE V
THE CERTIFICATES
Section 5.01 The Certificates................................................
Section 5.02 Registration of Transfer and Exchange of Certificates...........
Section 5.03 Book-Entry Certificates.........................................
Section 5.04 Mutilated, Destroyed, Lost or Stolen Certificates...............
Section 5.05 Persons Deemed Owners...........................................
Section 5.06 Certification by Certificateholders and Certificate Owners......
ARTICLE VI
THE DEPOSITOR, THE MASTER SERVICERS AND
THE SPECIAL SERVICERS
Section 6.01 Liability of the Depositor, the Master Servicers and the
Special Servicers..............................................
Section 6.02 Merger, Consolidation or Conversion of the Depositor, the
Master Servicers or the Special Servicers......................
Section 6.03 Limitation on Liability of the Depositor, the Master
Servicers and the Special Servicers............................
Section 6.04 Resignation of Master Servicers and Special Servicers...........
Section 6.05 Rights of the Depositor and the Trustee in Respect of the
Master Servicers and the Special Servicers.....................
Section 6.06 Master Servicers or Special Servicers as Owner of a
Certificate....................................................
ARTICLE VII
DEFAULT
Section 7.01 Events of Default...............................................
Section 7.02 Trustee to Act; Appointment of Successor........................
Section 7.03 Notification to Certificateholders..............................
Section 7.04 Waiver of Events of Default.....................................
Section 7.05 Additional Remedies of Trustee Upon Event of Default............
Section 7.06 Replacement of Great Lakes Crossing Special Servicer............
ARTICLE VIII
THE TRUSTEE
Section 8.01 Duties of Trustee...............................................
Section 8.02 Certain Matters Affecting the Trustee...........................
Section 8.03 Trustee and Fiscal Agent not Liable for Validity or
Sufficiency of Certificates or Mortgage Loans..................
Section 8.04 Trustee and Fiscal Agent May Own Certificates...................
Section 8.05 Fees and Expenses of Trustee; Indemnification of and by
Trustee and Fiscal Agent.......................................
Section 8.06 Eligibility Requirements for Trustee............................
Section 8.07 Resignation and Removal of Trustee..............................
Section 8.08 Successor Trustee...............................................
Section 8.09 Merger or Consolidation of Trustee..............................
Section 8.10 Appointment of Co-Trustee or Separate Trustee...................
Section 8.11 Appointment of Custodians.......................................
Section 8.12 Access to Certain Information...................................
Section 8.13 Appointment of Fiscal Agent.....................................
Section 8.14 Filings with the Securities and Exchange Commission.............
ARTICLE IX
TERMINATION
Section 9.01 Termination Upon Repurchase or Liquidation of All
Mortgage Loans.................................................
Section 9.02 Additional Termination Requirements.............................
Section 9.03 Great Lakes Crossing REO Property...............................
ARTICLE X
ADDITIONAL TAX PROVISIONS
Section 10.01 REMIC Administration............................................
Section 10.02 Grantor Trust Reporting.........................................
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01 Amendment.......................................................
Section 11.02 Recordation of Agreement; Counterparts..........................
Section 11.03 Limitation on Rights of Certificateholders, B Loan
Holders and Washington Center Junior Holders...................
Section 11.04 Governing Law...................................................
Section 11.05 Notices.........................................................
Section 11.06 Severability of Provisions......................................
Section 11.07 Successors and Assigns; Beneficiaries...........................
Section 11.08 Article and Section Headings....................................
Section 11.09 Notices to and from the Rating Agencies and the Depositor.......
Section 11.10 Notices to Controlling Class Representative.....................
Section 11.11 Complete Agreement..............................................
ARTICLE XII
SERVICING OF THE GREAT LAKES CROSSING LOAN GROUP
FOLLOWING A GREAT LAKES CROSSING CHANGE OF SERVICING CONTROL EVENT
Section 12.01 General.........................................................
Section 12.02 Collection of Loan Payments.....................................
Section 12.03 Collection of Taxes, Assessments and Similar Items;
Servicing Accounts.............................................
Section 12.04 Great Lakes Crossing Custodial Account..........................
Section 12.05 Maintenance of Insurance Policies; Errors and Omissions
and Fidelity Coverage..........................................
Section 12.06 Enforcement of Due-on-Sale and Due-on-Encumbrance
Clauses; Assumption Agreements; Defeasance Provisions;
Other Provisions...............................................
Section 12.07 Realization Upon Defaulted Mortgage Loans.......................
Section 12.08 Mortgage Loan Documents.........................................
Section 12.09 Servicing Compensation..........................................
Section 12.10 Reports and Statements..........................................
Section 12.11 Annual Statement as to Compliance; Reports by Independent
Public Accountants; Access to Certain Information..............
Section 12.12 Great Lakes Crossing REO Property...............................
Section 12.13 Modifications, Waivers, Amendments and Consents;
Inspections; Appraisals; Lock-Box Accounts and Servicing
Accounts; and Other Additional Obligations.....................
Section 12.14 Transfer of Servicing Between Master Servicer and Special
Servicer; Record Keeping; Asset Status Report..................
Section 12.15 Sub-Servicing...................................................
Xxxxxxx 00.00 X&X Advances....................................................
Section 12.17 Limitation on Liability; Certain Indemnities....................
Section 12.18 Events of Default...............................................
Section 12.19 Amendments to the Series 2003-CK2 PSA...........................
EXHIBITS
EXHIBIT A-1 Form of Class A-SP, Class A-X and Class A-Y Certificates
EXHIBIT A-2 Form of Class X-0, Xxxxx X-0, Class A-3, Class A-4, Class
A-5, Class B, Class C, Class D and Class E Certificates
EXHIBIT A-3 Form of Class F, Class G, Class H, Class J, Class K, Class
L, Class M, Class N, Class O and Class P Certificates
EXHIBIT A-4 Form of Class V Certificates
EXHIBIT A-5 Form of Class R Certificates
EXHIBIT A-6 Form of Class 622 Participation Certificates
EXHIBIT B-1A Schedule of Column Mortgage Loans
EXHIBIT B-1B Schedule of KeyBank Mortgage Loans
EXHIBIT B-1C Schedule of NCBFSB Mortgage Loans
EXHIBIT B-1D Schedule of PNC Mortgage Loans
EXHIBIT B-1E Schedule of Eurohypo Loans
EXHIBIT B-2 Schedule of Exceptions to Mortgage File Delivery
EXHIBIT B-3 Form of Custodial Certification
EXHIBIT B-4 Schedule of Mortgage Loans Covered by Environmental
Insurance
EXHIBIT B-5 Schedule of Initial LTV Co-op Basis
EXHIBIT B-6 Schedule of Reference Rates
EXHIBIT C Letters of Representations Among Depositor, Trustee and
Initial Depository
EXHIBIT D-1 Form of Master Servicer Request for Release
EXHIBIT D-2 Form of Special Servicer Request for Release
EXHIBIT E-1 Form of Trustee Report
EXHIBIT E-2 Form of CMSA Servicer Watch List Criteria for Co-op
Mortgage Loans
EXHIBIT E-3 Controlling Class Representative's Reports Checklist
EXHIBIT E-4 Form of Payments Received after Determination Date Report
EXHIBIT E-5 Form of Mortgage Loans Delinquent Report
EXHIBIT F-1A Form I of Transferor Certificate for Transfers of
Non-Registered Certificates Held in Physical Form
EXHIBIT F-1B Form II of Transferor Certificate for Transfers of
Non-Registered Certificates Held in Physical Form
EXHIBIT F-1C Form of Transferor Certificate for Certain Transfers of
Interests in Rule 144A Global Certificates
EXHIBIT F-1D Form of Transferor Certificate for Certain Transfers of
Interests in Regulation S Global Certificates
EXHIBIT F-2A Form I of Transferee Certificate for Transfers of
Non-Registered Certificates Held in Physical Form
EXHIBIT F-2B Form II of Transferee Certificate for Transfers of
Non-Registered Certificates Held in Physical Form
EXHIBIT F-2C Form of Transferee Certificate for Certain Transfers of
Interests in Rule 144A Global Certificates
EXHIBIT F-2D Form of Transferee Certificate for Certain Transfers of
Interests in Regulation S Global Certificates
EXHIBIT F-3A Form of Transferor Certificate for Transfer of the Excess
Servicing Fee Rights
EXHIBIT F-3B Form of Transferee Certificate for Transfer of the Excess
Servicing Fee Rights
EXHIBIT G-1 Form of Transferee Certificate in Connection with ERISA
(Non-Registered Certificates and Non-Investment Grade
Certificates Held in Physical Form)
EXHIBIT G-2 Form of Transferee Certificate in Connection with ERISA
(Non-Registered Certificates Held in Book-Entry Form)
EXHIBIT H-1 Form of Transfer Affidavit and Agreement for Transfers of
Class R Certificates
EXHIBIT H-2 Form of Transferor Certificate for Transfers of Class R
Certificates
EXHIBIT I-1 Form of Notice and Acknowledgment Concerning Replacement of
a Special Servicer
EXHIBIT I-2 Form of Acknowledgment of a Proposed Special Servicer
EXHIBIT J Form of UCC-1 Financing Statement
EXHIBIT K-1 Information Request from Certificateholder or Certificate
Owner
EXHIBIT K-2 Information Request from Prospective Investor
EXHIBIT L Schedule of Designated Sub-Servicers
EXHIBIT M Form of Subordination Agreement for NCBFSB Subordinate Debt
EXHIBIT N Form of S&P Defeasance Certification
EXHIBIT O ARCap Naming Convention for Electronic File Delivery
EXHIBIT P Form of Xxxxxxxx-Xxxxx Certification
EXHIBIT Q-1 Form of Purchase Option Assignment by Majority Controlling
Class Certificateholders
EXHIBIT Q-2 Form of Purchase Option Assignment by the applicable
Special Servicer
SCHEDULE I Reference Rates
This Pooling and Servicing Agreement is dated and effective as of
June 1, 2003, among CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP. as
Depositor, KEYCORP REAL ESTATE CAPITAL MARKETS, INC., as General Master
Servicer, ARCAP SERVICING, INC., as General Special Servicer, NCB, FSB, as
NCBFSB Master Servicer, NATIONAL CONSUMER COOPERATIVE BANK, as Co-op Special
Servicer and XXXXX FARGO BANK MINNESOTA, N.A. as Trustee.
PRELIMINARY STATEMENT:
Column Financial, Inc. (together with its successors in interest,
"Column") has sold to Credit Suisse First Boston Mortgage Securities Corp.
(together with its successors in interest, the "Depositor"), pursuant to the
Mortgage Loan Purchase Agreement dated as of June 1, 2003 (as such may from time
to time hereafter be amended, modified, supplemented and/or restated, the
"Column Mortgage Loan Purchase Agreement"), between Column as seller and the
Depositor as purchaser, those mortgage loans initially identified on the
schedule attached hereto as Exhibit B-1A (such mortgage loans, the "Original
Column Mortgage Loans").
KeyBank National Association (together with its successors in
interest, "KeyBank") has sold to the Depositor, pursuant to the Mortgage Loan
Purchase Agreement dated as of June 1, 2003 (as such may from time to time
hereafter be amended, modified, supplemented and/or restated, the "KeyBank
Mortgage Loan Purchase Agreement"), between KeyBank as seller and the Depositor
as purchaser, those mortgage loans initially identified on the schedule attached
hereto as Exhibit B-1B (such mortgage loans, the "Original KeyBank Mortgage
Loans").
NCB, FSB (together with its successors in interest, "NCBFSB") has
sold to the Depositor, pursuant to the Mortgage Loan Purchase Agreement dated as
of June 1, 2003 (as such may from time to time hereafter be amended, modified,
supplemented and/or restated, the "NCBFSB Mortgage Loan Purchase Agreement"),
between NCBFSB as seller and the Depositor as purchaser, those mortgage loans
initially identified on the schedule attached hereto as Exhibit B-1C (such
mortgage loans, the "Original NCBFSB Mortgage Loans").
PNC Bank, National Association (together with its successors in
interest, "PNC") has sold to the Depositor, pursuant to the Mortgage Loan
Purchase Agreement dated as of June 1, 2003 (as such may from time to time
hereafter be amended, modified, supplemented and/or restated, the "PNC Mortgage
Loan Purchase Agreement"), between PNC as seller and the Depositor as purchaser,
those mortgage loans initially identified on the schedule attached hereto as
Exhibit B-1D (such mortgage loans, the "Original PNC Mortgage Loans").
Eurohypo AG (together with its successors in interest, "Eurohypo")
has sold to the Depositor, pursuant to the Mortgage Loan Purchase Agreement
dated as of June 1, 2003 (as such may from time to time hereafter be amended,
modified, supplemented and/or restated, the "Eurohypo Mortgage Loan Purchase
Agreement"), between Eurohypo as seller and the Depositor as purchaser, the
mortgage loan initially identified on the schedule attached hereto as Exhibit
B-1E (such mortgage loan, the "Original Eurohypo Mortgage Loan").
The Depositor desires, among other things, to: (i) establish a trust
fund, consisting primarily of the Original Column Mortgage Loans, the Original
KeyBank Mortgage Loans, the Original Eurohypo Mortgage Loan, the Original NCBFSB
Mortgage Loans and the Original PNC Mortgage Loans (collectively, the "Original
Mortgage Loans") and certain related rights, funds and property; (ii) cause the
issuance of mortgage pass-through certificates in multiple classes, which
certificates will, in the aggregate, evidence the entire beneficial ownership
interest in such trust fund; and (iii) provide for the servicing and
administration of the mortgage loans, including the Original Mortgage Loans, and
the other assets that from time to time constitute part of such trust fund.
Xxxxx Fargo Bank Minnesota, N.A. (together with its successors in
interest, "Xxxxx Fargo") desires to act as "Trustee" hereunder; KeyCorp Real
Estate Capital Markets, Inc. (together with its successors in interest, "KRECM")
desires to act as "General Master Servicer" hereunder; ARCap Servicing, Inc.
(together with its successors in interest, "ARCap") desires to act as "General
Special Servicer" hereunder; NCBFSB desires to act as "NCBFSB Master Servicer"
hereunder; and National Consumer Cooperative Bank desires to act as "Co-op
Special Servicer" hereunder.
As provided herein, the Trustee shall elect or shall cause an
election to be made that each of the Upper-Tier REMIC, the Lower-Tier REMIC and
the 000 Xxxxx Xxxxxx Loan REMIC (each as defined herein) be treated for federal
income tax purposes as a "real estate mortgage investment conduit" (a "REMIC").
As further provided herein, the Trustee shall elect to treat the
segregated pool of assets consisting of the 000 Xxxxx Xxxxxx Loan 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 the "622
Third Avenue Loan REMIC." The 000 Xxxxx Xxxxxx Loan REMIC Regular Interests (as
defined herein) will evidence the "regular interests" in the 000 Xxxxx Xxxxxx
Loan REMIC and will be held as assets of the Lower-Tier REMIC. The sole class of
"residual interests" in the 000 Xxxxx Xxxxxx Loan REMIC created hereunder will
be the 000 Xxxxx Xxxxxx Loan REMIC Residual Interest and will be evidenced by
the Class LR Certificates.
As further provided herein, the Trustee shall elect to treat the
segregated pool of assets consisting of the Mortgage Loans (other than the 000
Xxxxx Xxxxxx Loan) and the 000 Xxxxx Xxxxxx Loan REMIC Regular Interests 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
the "Lower-Tier REMIC." The Class LA-1-1, Class LA-1-2, Class LA-1-3, Class
LA-2-1, Class LA-2-2, Class LA-2-3, Class LA-3-1, Class LA-3-2, Class LA-4-1,
Class LA-4-2, Class LA-5-1, Class LA-5-2, Class LB, Class LC, Class LD-1, Class
LD-2, Class LE-1, Class LE-2, Class LF-1, Class LF-2, Class LG, Class LH, Class
LJ, Class LK, Class LL, Class LM, Class LN, Class LO, Class LP, Class LY, Class
L622-A, Class L622-B, Class L622-C, Class L622-D, Class L622-E and Class L622-F
Uncertificated Interests will evidence "regular interests" in the Lower-Tier
REMIC (the "Uncertificated Lower-Tier Interests") created hereunder. The sole
class of "residual interests" in the Lower-Tier REMIC created hereunder will be
evidenced by the Class LR Certificates.
As further provided herein, the Trustee shall elect to treat the
segregated pool of assets consisting of the Uncertificated Lower-Tier Interests
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 the "Upper-Tier REMIC." The Class A-1, Class A-2, Class A-3, Class
A-4, Class A-5, Class A-X, Class A-SP, Class A-Y, 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 and Class P Certificates and the Class 622-A, Class 622-B, Class 622-C,
Class 622-D, Class 622-E and Class 622-F Participation Certificates will
represent the "regular interests" in the Upper-Tier REMIC created hereunder. The
sole class of "residual interests" in the Upper-Tier REMIC created hereunder
will be evidenced by the Class R Certificates.
The portion of the Trust Fund representing Post-ARD Additional
Interest and the Post-ARD Additional Interest Distribution Account shall be
treated as a grantor trust under subpart E, Part I of subchapter J of the Code.
The Class V Certificates will represent undivided beneficial interests in the
portion of the Trust Fund consisting of the Post-ARD Additional Interest and the
Post-ARD Additional Interest Distribution Account. Additionally, the Trust Fund
shall not include any B Loan, any interest of the holders of any B Loan (or the
Washington Center Junior Loans) or any A/B Loan Pair Custodial Account.
The following table sets forth the designation, the pass-through
rate (the "Pass-Through Rate"), the aggregate initial principal amount (the
"Original Certificate Balance") or notional balance ("Original Class Notional
Amount"), as applicable, and the initial ratings given each Class (as indicated
below) by the Rating Agencies (as defined herein) for each Class of Certificates
comprising the interests in the Upper-Tier REMIC created hereunder:
UPPER-TIER REMIC
--------------------------- ------------------------- ------------------------------------ ---------------------------
Original Certificate Balance (or,
in the case of the Class A-X,
Class A-SP and Class A-Y
Certificates, Original Class Initial Ratings(1)
Class Designation Pass-Through Rate Notional Amount) Fitch/S&P/Xxxxx'x
--------------------------- ------------------------- ------------------------------------ ---------------------------
Class A-1 2.0790% $127,000,000 AAA/AAA/Aaa
--------------------------- ------------------------- ------------------------------------ ---------------------------
Class A-2 2.8430% $214,000,000 AAA/AAA/Aaa
--------------------------- ------------------------- ------------------------------------ ---------------------------
Class A-3 3.3820% $212,000,000 AAA/AAA/Aaa
--------------------------- ------------------------- ------------------------------------ ---------------------------
Class A-4 3.7010% $55,000,000 AAA/AAA/Aaa
--------------------------- ------------------------- ------------------------------------ ---------------------------
Class A-5 3.9360% $862,414,000 AAA/AAA/Aaa
--------------------------- ------------------------- ------------------------------------ ---------------------------
Class A-X 0.1240%(2) $1,724,825,640(5) AAA/AAA/Aaa
--------------------------- ------------------------- ------------------------------------ ---------------------------
Class A-SP 1.9632%(3) $1,613,358,000(5) AAA/AAA/Aaa
--------------------------- ------------------------- ------------------------------------ ---------------------------
Class A-Y 1.0532%(4) $171,206,187(5) AAA/AAA/Aaa
--------------------------- ------------------------- ------------------------------------ ---------------------------
Class B 4.0520% $47,432,000 AA/AA/Aa2
--------------------------- ------------------------- ------------------------------------ ---------------------------
Class C 4.0820% $19,405,000 AA-/AA-/Aa3
--------------------------- ------------------------- ------------------------------------ ---------------------------
Class D 4.1310% $38,808,000 A/A/A2
--------------------------- ------------------------- ------------------------------------ ---------------------------
Class E 4.1910% $19,405,000 A-/A-/A3
--------------------------- ------------------------- ------------------------------------ ---------------------------
Class F 4.5180%(6) $19,404,000 BBB+/BBB+/Baa1
--------------------------- ------------------------- ------------------------------------ ---------------------------
Class G 4.6170%(6) $12,936,000 BBB/BBB/Baa2
--------------------------- ------------------------- ------------------------------------ ---------------------------
Class H 5.1610%(6) $19,404,000 BBB-/BBB-/Baa3
--------------------------- ------------------------- ------------------------------------ ---------------------------
Class J 4.2310%(6) $19,405,000 BB+/BB+/Ba1
--------------------------- ------------------------- ------------------------------------ ---------------------------
Class K 4.2310%(6) $12,936,000 BB/BB/Ba2
--------------------------- ------------------------- ------------------------------------ ---------------------------
Class L 4.2310%(6) $6,468,000 BB-/BB-/Ba3
--------------------------- ------------------------- ------------------------------------ ---------------------------
Class M 4.2310%(6) $10,780,000 B+/B+/B1
--------------------------- ------------------------- ------------------------------------ ---------------------------
Class N 4.2310%(6) $2,156,000 B/B/B2
--------------------------- ------------------------- ------------------------------------ ---------------------------
Class O 4.2310%(6) $4,312,000 B-/B-/B3
--------------------------- ------------------------- ------------------------------------ ---------------------------
Class P 4.2310%(6) $21,560,640 NR/NR/NR
--------------------------- ------------------------- ------------------------------------ ---------------------------
Class 622-A 4.4290%(7) $2,534,000 BBB-/A/A3
--------------------------- ------------------------- ------------------------------------ ---------------------------
Class 622-B 4.4780%(8) $6,010,000 BBB-/A-/Baa1
--------------------------- ------------------------- ------------------------------------ ---------------------------
Class 622-C 5.0090%(9) $6,009,000 BBB-/BBB+/Baa2
--------------------------- ------------------------- ------------------------------------ ---------------------------
Class 622-D 5.6750%(10) $6,010,000 BBB-/BBB/Baa3
--------------------------- ------------------------- ------------------------------------ ---------------------------
Class 622-E 6.7860%(11) $17,836,000 BB/BBB-/Ba1
--------------------------- ------------------------- ------------------------------------ ---------------------------
Class 622-F 6.7860%(12) $1,601,000 BB/BBB-/Ba2
--------------------------- ------------------------- ------------------------------------ ---------------------------
Class R None(13) None(13)
--------------------------- ------------------------- ------------------------------------ ---------------------------
(1) The Certificates marked "NR" have not been rated by the applicable Rating
Agency.
(2) The Class A-X Pass-Through Rate, as defined herein.
(3) The Class A-SP Pass-Through Rate, as defined herein.
(4) The Class A-Y Pass-Through Rate, as defined herein.
(5) Original Notional Balance. The Class A-X, Class A-SP and Class A-Y
Certificates will not have a Class Principal Balance and will not be
entitled to receive distributions of principal.
(6) The lesser of the rate specified and the Weighted Average Net Mortgage
Rate.
(7) The Class 622-A Pass-Through Rate, as defined herein.
(8) The Class 622-B Pass-Through Rate, as defined herein.
(9) The Class 622-C Pass-Through Rate, as defined herein.
(10) The Class 622-D Pass-Through Rate, as defined herein.
(11) The Class 622-E Pass-Through Rate, as defined herein.
(12) The Class 622-F Pass-Through Rate, as defined herein
(13) The Class R Certificates will not have a Class Principal Balance or Class
Notional Amount, will bear interest or will be entitled to distributions
of Prepayment Premiums or Yield Maintenance Charges. Any Available
Distribution Amounts remaining in the Upper-Tier Distribution Account
after all required distributions under this Agreement have been made to
each other Class of Certificates will be distributed to the Holders of the
Class R Certificates as owners of the residual interests in the Upper-Tier
REMIC.
The following table sets forth the Original Lower-Tier Principal
Amounts or Original Class Notional Amounts, as applicable, and per annum rates
of interest for the Uncertificated Lower-Tier Interests and the Class LR
Certificates:
LOWER-TIER REMIC
------------------- ----------------- ------------------------------------------
Original Lower-Tier Principal Amount or
Class Interest Rate Original Class Notional Amount
------------------- ----------------- ------------------------------------------
Class LA-1-1 (1) $14,446,000
------------------- ----------------- ------------------------------------------
Class LA-1-2 (1) $79,882,000
------------------- ----------------- ------------------------------------------
Class LA-1-3 (1) $32,672,000
------------------- ----------------- ------------------------------------------
Class LA-2-1 (1) $51,303,000
------------------- ----------------- ------------------------------------------
Class LA-2-2 (1) $79,545,000
------------------- ----------------- ------------------------------------------
Class LA-2-3 (1) $83,152,000
------------------- ----------------- ------------------------------------------
Class LA-3-1 (1) $168,524,000
------------------- ----------------- ------------------------------------------
Class LA-3-2 (1) $43,476,000
------------------- ----------------- ------------------------------------------
Class LA-4-1 (1) $22,200,000
------------------- ----------------- ------------------------------------------
Class LA-4-2 (1) $32,800,000
------------------- ----------------- ------------------------------------------
Class LA-5-1 (1) $133,634,000
------------------- ----------------- ------------------------------------------
Class LA-5-2 (1) $728,780,000
------------------- ----------------- ------------------------------------------
Class LB (1) $47,432,000
------------------- ----------------- ------------------------------------------
Class LC (1) $19,405,000
------------------- ----------------- ------------------------------------------
Class LD-1 (1) $4,898,000
------------------- ----------------- ------------------------------------------
Class LD-2 (1) $33,910,000
------------------- ----------------- ------------------------------------------
Class LE-1 (1) $5,989,000
------------------- ----------------- ------------------------------------------
Class LE-2 (1) $13,416,000
------------------- ----------------- ------------------------------------------
Class LF-1 (1) $2,238,000
------------------- ----------------- ------------------------------------------
Class LF-2 (1) $17,166,000
------------------- ----------------- ------------------------------------------
Class LG (1) $12,936,000
------------------- ----------------- ------------------------------------------
Class LH (1) $19,404,000
------------------- ----------------- ------------------------------------------
Class LJ (1) $19,405,000
------------------- ----------------- ------------------------------------------
Class LK (1) $12,936,000
------------------- ----------------- ------------------------------------------
Class LL (1) $6,468,000
------------------- ----------------- ------------------------------------------
Class LM (1) $10,780,000
------------------- ----------------- ------------------------------------------
Class LN (1) $2,156,000
------------------- ----------------- ------------------------------------------
Class LO (1) $4,312,000
------------------- ----------------- ------------------------------------------
Class LP (1) $21,560,640
------------------- ----------------- ------------------------------------------
Class LY (2) $2,534,000(2)
------------------- ----------------- ------------------------------------------
Class L622-A(3) (3) $6,010,000
------------------- ----------------- ------------------------------------------
Class L622-B(3) (3) $6,009,000
------------------- ----------------- ------------------------------------------
Class L622-C(3) (3) $6,010,000
------------------- ----------------- ------------------------------------------
Class L622-D(3) (3) $17,836,000
------------------- ----------------- ------------------------------------------
Class L622-E(3) (3) $1,601,000
------------------- ----------------- ------------------------------------------
Class L622-F(3) (3) $19,404,000
------------------- ----------------- ------------------------------------------
Class LR(4) None(5) None(5)
------------------- ----------------- ------------------------------------------
(1) The interest rate of each of the indicated Classes of Uncertificated
Lower-Tier Interests is the Weighted Average Net Mortgage Rate.
(2) The interest rate of the Class LY Uncertificated Interest will be the
Class A-Y Pass-Through Rate. The Class LY Uncertificated Interest will not
have a Class Principal Balance and will not be entitled to receive
distributions of principal but will have the Original Class Notional
Amount as shown above.
(3) The Class L622-A, Class L622-B, Class L622-C, Class L622-D, Class L622-E
and Class L622-F Uncertificated Interests bear interest at a rate equal to
the Class 622-A Pass-Through Rate, Class 622-B Pass-Through Rate, Class
622-C Pass-Through Rate, Class 622-D Pass-Through Rate, Class 622-E
Pass-Through Rate and Class 622-F Pass-Through Rate, respectively.
(4) In respect of the sole class of residual interests in the Lower-Tier
REMIC.
(5) The Class LR Certificates will not have a Class Principal Balance or Class
Notional Amount, will not bear interest and will not be entitled to
distributions of Prepayment Premiums or Yield Maintenance Charges. Any
Available Distribution Amounts remaining in the Lower-Tier Distribution
Account after distributing the Lower-Tier Distribution Amount on each
Distribution Date shall be distributed to the Holders of the Class LR
Certificates as owners of the residual interest in the Lower-Tier REMIC.
The following table sets forth the principal amounts and per annum
rates of interest for the 000 Xxxxx Xxxxxx Loan REMIC Regular Interests and the
Class LR Certificates:
000 XXXXX XXXXXX LOAN REMIC
----------------- ----------------- ------------------------------
Class Interest Rate Principal Amount
----------------- ----------------- ------------------------------
A (1) $203,000,000(1)
----------------- ----------------- ------------------------------
B (2) $40,000,000(2)
----------------- ----------------- ------------------------------
LR(3) None(4) None(4)
----------------- ----------------- ------------------------------
-----------------
(1) The 000 Xxxxx Xxxxxx Loan REMIC Regular Interest A shall have an interest
rate and principal amount equal to the Net Mortgage Pass-Through Rate and
Principal Amount of the 000 Xxxxx Xxxxxx Pooled Portion.
(2) The 000 Xxxxx Xxxxxx Loan REMIC Regular Interest B shall have an interest
rate and principal amount equal to the Net Mortgage Pass-Through Rate and
Principal Amount of the 000 Xxxxx Xxxxxx Non-Pooled Portion.
(3) In respect of the sole class of residual interests in the 000 Xxxxx Xxxxxx
Loan REMIC.
(4) The Class LR Certificates will not have a Class Principal Balance or Class
Notional Amount, will not bear interest and will not be entitled to
distributions of Prepayment Premiums or Yield Maintenance Charges. Any
Available Class 622 Distribution Amounts remaining in the 000 Xxxxx Xxxxxx
Loan REMIC Distribution Account after distributing the amounts
distributable in respect of the 000 Xxxxx Xxxxxx Loan REMIC Regular
Interests on each Distribution Date shall be distributed to the Holders of
the Class LR Certificates as owners of the residual interest in the 000
Xxxxx Xxxxxx Loan REMIC.
In consideration of the mutual agreements herein contained, the
parties hereto agree as follows:
ARTICLE I
DEFINITIONS; GENERAL INTERPRETIVE PRINCIPLES;
CERTAIN CALCULATIONS IN RESPECT
OF THE MORTGAGE POOL
Section 1.01 Defined Terms
Whenever used in this Agreement, the following words and phrases,
unless the context otherwise requires, shall have the meanings specified in this
Section 1.01, subject to modification in accordance with Section 1.04.
"30/360 Basis" shall mean the accrual of interest calculated on the
basis of a 360-day year consisting of twelve 30-day months.
"30/360 Mortgage Loan" shall mean a Mortgage Loan that accrues
interest on a 30/360 Basis.
"622 Principal Distribution Amount" shall mean, with respect to any
Distribution Date, the portion of the Principal Distribution Amount attributable
to the 000 Xxxxx Xxxxxx Total Loan.
"622 Non-Pooled Portion Principal Distribution Amount" shall mean,
with respect to any Distribution Date, the portion of the 622 Principal
Distribution Amount attributable to the 000 Xxxxx Xxxxxx Non-Pooled Portion.
"622 Third Avenue B Loan" shall mean the other mortgage loan that is
not included in the Trust and that is subordinate in right of payment to the 000
Xxxxx Xxxxxx Loan to the extent set forth in the 000 Xxxxx Xxxxxx Intercreditor
Agreement and that is secured by the same Mortgage on the same Mortgaged
Property as such 000 Xxxxx Xxxxxx Loan.
"622 Third Avenue Collateral Support Deficit" shall have the meaning
assigned thereto in Section 4.04.
"622 Third Avenue Intercreditor Agreement" shall mean with respect
to the 000 Xxxxx Xxxxxx Total Loan, the intercreditor agreement entered into by
and between the holders of the 000 Xxxxx Xxxxxx Loan and the 000 Xxxxx Xxxxxx X
Loan relating to the relative rights of such holders.
"622 Third Avenue Loan" shall mean, the Mortgage Loan known as the
000 Xxxxx Xxxxxx Loan and designated as Loan No. 1 on the Mortgage Loan Schedule
(including the 000 Xxxxx Xxxxxx Pooled Portion and the 000 Xxxxx Xxxxxx
Non-Pooled Portion), which Mortgage Loan is senior in right of payment to the
related 000 Xxxxx Xxxxxx X Loan to the extent set forth in the 000 Xxxxx Xxxxxx
Intercreditor Agreement.
"622 Third Avenue Loan REMIC" shall mean, the REMIC constituted by
the 000 Xxxxx Xxxxxx Loan (exclusive of any Post-ARD Additional Interest),
collections thereon, any REO Property acquired in respect thereof and amounts
held from time to time in the Collection Account, the Interest Reserve Account
or any REO Account in respect thereof, with respect to which the Trustee will
make an election to be treated as a "real estate mortgage investment conduit"
within the meaning of the REMIC Provisions.
"622 Third Avenue Loan REMIC Distribution Account" shall mean the
account, accounts or sub-accounts created and maintained by the Trustee,
pursuant to Section 3.04(b), in trust for the Certificateholders, which shall be
entitled "Xxxxx Fargo Bank Minnesota, N.A. as Trustee, for the benefit of
Holders of Credit Suisse First Boston Mortgage Securities Corp., Commercial
Mortgage Pass-Through Certificates, Series 2003-C3, 000 Xxxxx Xxxxxx Loan REMIC
Distribution Account." Any such account or accounts shall be an Eligible Account
or a subaccount of an Eligible Account.
"622 Third Avenue Loan REMIC Regular Interest" shall mean, each of
the two uncertificated regular interests represented by the 000 Xxxxx Xxxxxx
Pooled Portion and the 000 Xxxxx Xxxxxx Non-Pooled Portion, viz., 000 Xxxxx
Xxxxxx Loan REMIC Regular Interest A and 000 Xxxxx Xxxxxx REMIC Regular Interest
B, respectively.
"622 Third Avenue Loan REMIC Regular Interest A" shall mean the
uncertificated regular interest in the 000 Xxxxx Xxxxxx Loan REMIC corresponding
to the 000 Xxxxx Xxxxxx Pooled Portion.
"622 Third Avenue Loan REMIC Regular Interest B" shall mean the
uncertificated regular interest in the 000 Xxxxx Xxxxxx Loan REMIC corresponding
to the 000 Xxxxx Xxxxxx Non-Pooled Portion.
"622 Third Avenue Loan REMIC Residual Interest" shall mean, the sole
class of "residual interest" in the 000 Xxxxx Xxxxxx Loan REMIC, represented by
the Class LR Certificates.
"622 Third Avenue Non-Pooled Portion" shall mean, the portion of the
000 Xxxxx Xxxxxx Loan, with a Stated Principal Balance as of the Cut-off Date of
$40,000,000 subordinated to the 000 Xxxxx Xxxxxx Pooled Portion, and a Mortgage
Rate of 5.8874%. The Trustee as holder of the 000 Xxxxx Xxxxxx Loan REMIC
Regular Interest B and the Class L622 Uncertificated Interests and the holders
of the Class 622 Participation Certificates will be entitled to receive all
amounts payable with respect to the 000 Xxxxx Xxxxxx Non-Pooled Portion.
"622 Third Avenue Pooled Portion" shall mean, the portion of the 000
Xxxxx Xxxxxx Loan, with a Stated Principal Balance as of the Cut-off Date of
$203,000,000, senior to the 000 Xxxxx Xxxxxx Non-Pooled Portion, and a Mortgage
Rate of 5.9695%. The Trustee as holder of the 000 Xxxxx Xxxxxx Loan REMIC
Regular Interest A and the Uncertificated Lower-Tier Interests (other than the
Class L622 Uncertificated Interests) and the holders of the Regular Certificates
(other than the Class 622 Participation Certificates) will be entitled to
receive all amounts payable with respect to the 000 Xxxxx Xxxxxx Pooled Portion.
"622 Third Avenue Total Loan" shall mean the 000 Xxxxx Xxxxxx Loan
and the related B Loan, collectively.
"A Loan" shall mean with respect to an A/B Loan Pair, any of the
Mortgage Loans secured by the Mortgaged Properties identified on the Mortgage
Loan Schedule as 000 Xxxx Xxxx Xxxxxx and Northside Villas, with respect to the
000 Xxxxx Xxxxxx Total Loan, the 000 Xxxxx Xxxxxx Loan and with respect to the
Washington Center Total Loan, the Washington Center Loan.
"A Note" shall mean, with respect to any A Loan, the Mortgage Note
included in the Trust, which is senior in right of payment to the related B
Loan, if any, to the extent set forth in the related A/B Intercreditor
Agreement.
"A/B Intercreditor Agreement" shall mean, with respect to each A/B
Loan Pair, the related intercreditor agreement to be entered into by and between
the holder of the related A Loan and the B Loan Holder, as the same may be
further amended from time to time in accordance with the terms thereof, or in
the case of the Washington Center Total Loan, the related intercreditor
agreement entered into among the initial holder of the Washington Center Loan
and each Washington Center Junior Holder.
"A/B Loan Pair" shall mean any A Loan together with the related B
Loan or, in the case of the Washington Center Loan, the related A Loan together
with the Washington Center Junior Loans.
"A/B Loan Pair Custodial Account" shall mean each of the custodial
sub-account(s) of the Collection Account (but which are not included in the
Trust) created and maintained by the Master Servicer pursuant to Section 3.04 on
behalf of the Trustee in trust for the Certificateholders, the B Loan Holders
and the Washington Center Junior Holders, as applicable. Any such sub-account(s)
shall be maintained as a sub-account of an Eligible Account.
"A/B Material Default" shall mean, with respect to a CBA A/B Loan
Pair, a "Material Default" under, and within the meaning of, the related A/B
Intercreditor Agreement.
"Accounts" shall mean, collectively, the Distribution Account, the
Excess Liquidation Proceeds Account, the Interest Reserve Account, the
Collection Accounts, the REO Accounts, the Servicing Accounts and the Reserve
Accounts.
"Acquisition Date" shall mean, with respect to any REO Property, the
first day on which such REO Property is considered to be acquired by (or, if
applicable, in the case of the Great Lakes Crossing REO Property, on behalf of,
among others) the Lower-Tier REMIC and, with respect to the 000 Xxxxx Xxxxxx
Loan, the 000 Xxxxx Xxxxxx Loan REMIC within the meaning of Treasury Regulations
Section 1.856-6(b)(1), which is the first day on which the Trust is treated as
the owner of such REO Property for federal income tax purposes.
"Actual/360 Basis" shall mean the accrual of interest calculated on
the basis of the actual number of days elapsed during any calendar month (or
other applicable recurring accrual period) in a year assumed to consist of 360
days.
"Actual/360 Mortgage Loan" shall mean a Mortgage Loan that accrues
interest on an Actual/360 Basis.
"Additional Collateral" shall mean any non-real property collateral
(including any Letter of Credit) pledged and/or delivered by or on behalf of the
related Borrower and held by the related Mortgagee to secure payment on any
Mortgage Loan.
"Additional Master Servicing Compensation" shall have the meaning
assigned thereto in Section 3.11(b).
"Additional Special Servicing Compensation" shall have the meaning
assigned thereto in Section 3.11(d).
"Additional Trust Fund Expense" shall mean any expense experienced
with respect to the Trust Fund and not otherwise included in the calculation of
a Realized Loss that would result in the Holders of any Class of Regular
Certificates receiving less than the total of their Optimal Interest
Distribution Amount and Principal Distribution Amount for any Distribution Date;
provided, however, that for the purpose of determining "Additional Trust Fund
Expense," Principal Distribution Amount shall be calculated without regard to
the reduction of the Principal Distribution Amount by Special Servicing Fees,
Liquidation Fees and Advance Interest.
"Administered REO Property" shall mean any REO Property other than,
if applicable, the Great Lakes Crossing REO Property.
"Administrative Fee Rate" shall mean, with respect to each Mortgage
Loan (and any successor REO Mortgage Loan), the sum of the related Master
Servicing Fee Rate, plus the Trustee's Fee Rate.
"Advance" shall mean any P&I Advance or Servicing Advance.
"Advance Interest" shall mean the interest accrued on any Advance at
the Reimbursement Rate, which is payable to the party hereto that made that
Advance, all in accordance with Sections 3.05(a), 3.19(b), 3.11(g), 3.26(a),
4.03(d) or 12.03(c), , as applicable.
"Adverse Grantor Trust Event" shall mean either: (i) any impairment
of the status of the Grantor Trust as a "grantor trust"; or (ii) the imposition
of a tax upon the Grantor Trust or any of its assets or transactions.
"Adverse Rating Event" shall mean, with respect to any Class of
Rated Certificates and each Rating Agency that has assigned a rating thereto, as
of any date of determination, the qualification, downgrade or withdrawal of the
rating then assigned to such Class of Rated Certificates by such Rating Agency
(or the placing of such Class of Rated Certificates on "negative credit watch"
status in contemplation of any such action with respect thereto).
"Adverse REMIC Event" shall mean either: (i) any impairment of the
status of the Upper-Tier REMIC, the Lower-Tier REMIC or the 000 Xxxxx Xxxxxx
Loan REMIC as a REMIC; or (ii) except as permitted by Section 3.17(a), the
imposition of a tax upon the Upper-Tier REMIC, the Lower-Tier REMIC or the 000
Xxxxx Xxxxxx Loan REMIC or any of its assets or transactions (including the tax
on prohibited transactions as defined in Section 860F(a)(2) of the Code and the
tax on contributions set forth in Section 860G(d) of the Code).
"Affiliate" shall mean, 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" shall mean this Pooling and Servicing Agreement, as it
may be amended, modified, supplemented or restated following the Closing Date.
"A.M. Best" shall mean A.M. Best Company or its successor in
interest.
"Annual Accountants' Report" shall have the meaning assigned thereto
in Section 3.14.
"Annual Performance Certification" shall have the meaning assigned
thereto in Section 3.13.
"Anticipated Repayment Date" shall mean, with respect to any ARD
Mortgage Loan, the date specified in the related Mortgage Note, as of which
Post-ARD Additional Interest shall begin to accrue on such Mortgage Loan, which
date is prior to the Stated Maturity Date for such Mortgage Loan.
"Appraisal" shall mean, with respect to any Mortgaged Property or
REO Property as to which an appraisal is required to be performed pursuant to
the terms of this Agreement, a narrative appraisal complying with USPAP (or, in
the case of a Mortgage Loan or an REO Mortgage Loan with a Stated Principal
Balance as of the date of such appraisal of $2,000,000 or less, at the
applicable Special Servicer's option, either a limited appraisal and a summary
report or an internal valuation prepared by the applicable Special Servicer)
that (i) indicates the "market value" of the subject property (within the
meaning of 12 CFR ss. 225.62(g)) and (ii) is conducted by a Qualified Appraiser
(except that, in the case of a Mortgage Loan or an REO Mortgage Loan with a
Stated Principal Balance as of the date of such appraisal of $2,000,000 or less,
the appraiser may be an employee of the applicable Special Servicer, which
employee need not be a Qualified Appraiser but shall have experience in
commercial and/or multifamily properties, as the case may be, and possess
sufficient knowledge to value such a property).
"Appraisal Reduction Amount" shall mean, with respect to any
Required Appraisal Loan, an amount (calculated, in consultation with the
Controlling Class Representative, as of the Determination Date immediately
following the later of the date on which the most recent relevant Appraisal
acceptable for purposes of Section 3.19(c) hereof was obtained by the applicable
Special Servicer pursuant to this Agreement and the date of the most recent
Appraisal Trigger Event with respect to such Required Appraisal Loan) equal to
the excess, if any, of:
(1) the sum of (a) the Stated Principal Balance of such Required
Appraisal Loan as of such Determination Date, (b) to the extent not
previously advanced by or on behalf of the applicable Master Servicer, the
Trustee or any Fiscal Agent, all unpaid interest (other than any Default
Interest and, if applicable, Post-ARD Additional Interest) accrued on such
Required Appraisal Loan through the most recent Due Date prior to such
Determination Date, (c) all unpaid Special Servicing Fees accrued with
respect to such Required Appraisal Loan, (d) all related unreimbursed
Advances made by or on behalf of the applicable Master Servicer, the
applicable Special Servicer, the Trustee or any Fiscal Agent with respect
to such Required Appraisal Loan, together with all unpaid Advance Interest
accrued on such Advances, and (e) all currently due but unpaid real estate
taxes and assessments, insurance premiums and, if applicable, ground rents
in respect of the related Mortgaged Property or REO Property, as
applicable; over
(2) the sum of (x) the excess, if any, of (i) 90% of the Appraised
Value of the related Mortgaged Property or REO Property, as applicable, as
determined by the most recent relevant Appraisal acceptable for purposes
of Section 3.19(c) hereof, over (ii) the amount of any obligation(s)
secured by any liens on such Mortgaged Property or REO Property, as
applicable, that are prior to the lien of such Required Appraisal Loan,
and (y) any Escrow Payments, Reserve Funds and/or Letters of Credit held
by the applicable Master Servicer or the applicable Special Servicer with
respect to such Required Appraisal Loan, the related Mortgaged Property or
any related REO Property.
Notwithstanding the foregoing, if (i) an Appraisal Trigger Event
occurs with respect to any Mortgage Loan, (ii) either (A) no Appraisal has been
obtained or conducted, as applicable in accordance with Section 3.19(c), with
respect to the related Mortgaged Property during the 12-month period prior to
the date of such Appraisal Trigger Event or (B) there shall have occurred since
the date of the most recent Appraisal a material change in the circumstances
surrounding the related Mortgaged Property that would, in the applicable Special
Servicer's reasonable judgment, materially affect the value of the property as
reflected in such Appraisal, and (iii) no new Appraisal is obtained or
conducted, as applicable in accordance with Section 3.19(c), by the earlier of
the 60th day after such Appraisal Trigger Event and the date on which such
Mortgage Loan first becomes 120 days delinquent as to any Monthly Payment, then
(x) until such new Appraisal is obtained or conducted, as applicable in
accordance with Section 3.19(c), the Appraisal Reduction Amount shall equal 25%
of the Stated Principal Balance of such Required Appraisal Loan, and (y) upon
receipt or performance, as applicable in accordance with Section 3.19(c), of
such new Appraisal by the applicable Special Servicer, the Appraisal Reduction
Amount for such Required Appraisal Loan will be recalculated in accordance with
the preceding sentence of this definition. For the avoidance of doubt, it is
hereby agreed and understood that no amount due under any B Loan or, with
respect to the Washington Center Total Loan, the Washington Center Junior Loans,
shall affect the calculation of the Appraisal Reduction Amount with respect to
any A/B Loan Pair or the Washington Center Total Loan, as the case may be.
Also notwithstanding the foregoing, if and when an Appraisal Trigger
Event occurs with respect to any Cross-Collateralized Mortgage Loan, an
Appraisal Reduction Amount shall be calculated for the entire
Cross-Collateralized Group to which that particular Cross-Collateralized
Mortgage Loan belongs as if such Cross-Collateralized Group was a single
Mortgage Loan secured by multiple properties, and any resulting Appraisal
Reduction Amount for such Cross-Collateralized Group shall be allocated among
the respective Cross-Collateralized Mortgage Loans forming that group on a pro
rata basis in accordance with the respective Stated Principal Balances of those
Mortgage Loans.
"Appraisal Trigger Event" shall mean, with respect to any Mortgage
Loan, any of the following events:
(i) such Mortgage Loan (other than with respect to the 000 Xxxxx
Xxxxxx Loan or the Washington Center Loan) becomes a Modified Mortgage
Loan (other than solely as a result of an extension of the maturity date
for less than six (6) months);
(ii) any Monthly Payment (other than, if applicable, a Balloon
Payment) with respect to such Mortgage Loan remains unpaid for 60 days or,
in the case of the 000 Xxxxx Xxxxxx Loan and the Washington Center Loan,
90 days, beyond the Due Date for such payment;
(iii) in the case of a Balloon Mortgage Loan, the Balloon Payment
with respect to such Mortgage Loan remains unpaid for 90 days beyond the
related maturity date (or, if the related Borrower has delivered to the
applicable Master Servicer a refinancing commitment reasonably acceptable
to the applicable Special Servicer and continued to make monthly debt
service payments equal to the related Assumed Monthly Payment, for such
longer period, not to exceed 150 days beyond the related maturity date,
during which the refinancing would occur);
(iv) the passage of 60 days after the applicable Special Servicer
receives notice that the Borrower under such Mortgage Loan has become the
subject of bankruptcy, insolvency or similar proceedings, which
proceedings remain undischarged and undismissed at the end of such 60 day
period;
(v) the passage of 60 days after the applicable Special Servicer
receives notice that a receiver or similar official has been appointed
with respect to the related Mortgaged Property (provided that such
receiver or similar official continues in that capacity at the end of such
60 day period); and
(vi) the related Mortgaged Property becomes an REO Property.
"Appraised Value" shall mean: (a) with respect to each Mortgaged
Property or REO Property (other than a residential cooperative property), the
appraised value thereof (as is) based upon the most recent Appraisal obtained or
conducted, as appropriate, pursuant to this Agreement; and (b) with respect to
each Mortgaged Property that is a residential cooperative property or, if
applicable, any related REO Property, the value of such property as shown in the
most recent Appraisal obtained or conducted, as appropriate, pursuant to this
Agreement and determined as if such property were operated as a
cooperatively-owned multifamily residential building (rather than a multifamily
rental apartment building).
"ARCap" shall have the meaning assigned thereto in the Preliminary
Statement to this Agreement.
"ARCap Naming Convention for Electronic File Delivery" shall mean
the naming convention for electronic file delivery set forth on Exhibit O
hereto.
"ARD Mortgage Loan" shall mean a Mortgage Loan that provides for the
accrual of Post-ARD Additional Interest thereon if such Mortgage Loan is not
paid in full on or prior to its Anticipated Repayment Date.
"Asset Status Report" shall have the meaning assigned thereto in
Section 3.24(a).
"Assignment of Leases" shall mean, with respect to any Mortgaged
Property, any assignment of leases, rents and profits or similar document or
instrument executed by the related Borrower in connection with the origination
of the related Mortgage Loan, as such assignment may be amended, modified,
renewed or extended through the date hereof and from time to time hereafter.
"Assumed Monthly Payment" shall mean:
(a) with respect to any Balloon Mortgage Loan delinquent in respect
of its Balloon Payment beyond the Determination Date immediately following its
scheduled maturity date (as such date may be extended in connection with a
bankruptcy, insolvency or similar proceeding involving the related Borrower or
by reason of a modification, waiver or amendment granted or agreed to by the
applicable Master Servicer or the applicable Special Servicer pursuant to
Section 3.20), for that scheduled maturity date and for each subsequent Due Date
as of which such Mortgage Loan remains outstanding and part of the Trust Fund,
the scheduled monthly payment of principal and/or interest deemed to be due with
respect to such Mortgage Loan on such Due Date equal to the amount (exclusive of
Default Interest) that would have been due in respect thereof on such Due Date
(other than any Default Interest) if such Mortgage Loan had been required to
continue to accrue interest in accordance with its terms, and to pay principal
in accordance with the amortization schedule (if any), in effect immediately
prior to, and without regard to the occurrence of, such maturity date;
(b) with respect to any REO Mortgage Loan (other than any Great
Lakes Crossing REO Mortgage Loan), for any Due Date as of which the related REO
Property remains part of the Trust Fund, the scheduled monthly payment of
principal and/or interest deemed to be due in respect thereof on such Due Date
equal to the Monthly Payment (or, in the case of a Balloon Mortgage Loan
described in clause (a) of this definition, the Assumed Monthly Payment) that
was due (or deemed due) with respect to the related Mortgage Loan on the last
Due Date prior to its becoming an REO Mortgage Loan; and
(c) with respect to the Great Lakes Crossing Mortgage Loan and any
Great Lakes Crossing REO Property, an "Assumed Scheduled Payment" under the
Series 2003-CK2 PSA.
"ASTM" shall mean the American Society for Testing and Materials.
"Available Class 622 Distribution Amount": With respect to any
Distribution Date, an amount equal to the sum (without duplication) of:
(a) the aggregate amount received on the 000 Xxxxx Xxxxxx Loan (and
any related REO Property) allocable to the 000 Xxxxx Xxxxxx Non-Pooled
Portion as provided in Section 3.28 and on deposit in the Collection
Account as of the close of business on the Business Day preceding the
related Servicer Remittance Date, exclusive of the following amounts, to
the extent allocable to the 000 Xxxxx Xxxxxx Non-Pooled Portion:
(i) all Monthly Payments collected but due on a Due Date after
the end of the related Due Period;
(ii) all Principal Prepayments, Balloon Payments, Liquidation
Proceeds or Insurance and Condemnation Proceeds, all amounts paid in
connection with a repurchase of the 000 Xxxxx Xxxxxx Loan pursuant
to Section 2.03(b), and all other unscheduled recoveries received
after the related Determination Date;
(iii) all amounts in the Collection Account that are payable
or reimbursable to any Person from such account pursuant to clauses
(ii) through (xxiv), inclusive, of Section 3.05(a);
(iv) all amounts that are payable or reimbursable to any
Person pursuant to clauses (ii) through (vi), inclusive, of Section
3.05(b);
(v) Post-ARD Additional Interest;
(vi) all Prepayment Premiums and Yield Maintenance Charges;
and
(vii) any net interest or net investment income on funds on
deposit in the Interest Reserve Account, any Cash Collateral
Account, any Lock Box Account, any Reserve Account or any REO
Account or in Permitted Investments in which such funds may be
invested;
(b) if and to the extent not already included in clause (a) hereof,
the aggregate amount transferred with respect to the 000 Xxxxx Xxxxxx
Non-Pooled Portion from the REO Account to the Collection Account for such
Distribution Date pursuant to Section 3.16(c);
(c) Reserved;
(d) all funds released from the Excess Liquidation Proceeds Account
for distribution on such Distribution Date;
(e) the aggregate amount of any P&I Advances made in respect of the
000 Xxxxx Xxxxxx Non-Pooled Portion pursuant to Section 4.03 (which P&I
Advances shall not include any related Servicing Fees, Primary Servicing
Fees or Workout Fees); and
(f) the portion of any Cure Payments made by the Holders of the
Class 622 Participation Certificates or the 000 Xxxxx Xxxxxx X Loan
pursuant to the 000 Xxxxx Xxxxxx Intercreditor Agreement that is allocable
to interest or principal on the 000 Xxxxx Xxxxxx Non-Pooled Portion
pursuant to Section 3.28(a).
"Available Distribution Amount" shall mean, with respect to any
Distribution Date, an amount equal to the sum (without duplication) of:
(a) the aggregate amount received on the Mortgage Loans (and any
related REO Properties) (other than amounts relating to the 000 Xxxxx
Xxxxxx Non-Pooled Portion) and on deposit in the Collection Account as of
the close of business on the Business Day preceding the related Master
Servicer Remittance Date, exclusive of the following amounts (without
duplication):
(i) all Monthly Payments collected but due on a Due Date after
the end of the related Collection Period;
(ii) all Principal Prepayments, Balloon Payments, Liquidation
Proceeds, Insurance Proceeds or Condemnation Proceeds, all amounts
paid in connection with Mortgage Loan repurchases pursuant to
Section 2.03(b), and all other unscheduled recoveries received after
the related Determination Date;
(iii) all amounts in the Collection Account that are payable
or reimbursable to any Person from such account pursuant to clauses
(ii) through (xxiv), inclusive, of Section 3.05(a);
(iv) all amounts that are payable or reimbursable to any
Person pursuant to clauses (ii) through (vi), inclusive, of Section
3.05(b);
(v) all Prepayment Premiums and Yield Maintenance Charges;
(vi) all amounts deposited in the Collection Account in error;
(vii) any net interest or net investment income on funds on
deposit in the Collection Account or in Permitted Investments in
which such funds may be invested;
(viii) with respect to those Mortgage Loans that are
Actual/360 Mortgage Loans and any Distribution Date relating to each
Interest Accrual Period ending in each February and in any January
in a year which is not a leap year, an amount equal to the Interest
Reserve Amount to the extent such amount is to be deposited in the
Interest Reserve Account and held for future distribution pursuant
to Section 3.04;
(ix) in the case of each REO Property related to an A Loan or
with respect to a CBA A/B Loan Pair during an A/B Material Default,
all amounts received with respect to the A Loan that are required to
be paid to the holder of the related B Loan or Washington Center
Junior Holders pursuant to the terms of the related B Loan,
Washington Center Junior Loans and the related A/B Intercreditor
Agreement (which amounts will be deposited into the related A/B Loan
Pair Custodial Account pursuant to Section 3.04 and withdrawn from
such accounts pursuant to Section 3.05); and
(x) Post-ARD Additional Interest;
(b) if and to the extent not already included in clause (a) hereof,
the aggregate amount transferred with respect to the Mortgage Loans from
the REO Account to the Collection Account for such Distribution Date
pursuant to Section 3.16(c);
(c) the aggregate amount of any P&I Advances made in respect of the
Mortgage Loans by the applicable Master Servicer or the Trustee, as
applicable, for such Distribution Date (other than amounts relating to the
000 Xxxxx Xxxxxx Non-Pooled Portion) pursuant to Section 4.03 or 7.05
(which P&I Advances shall not include any related Servicing Fees or
Workout Fees);
(d) all funds released from the Interest Reserve Account for
distribution on such Distribution Date;
(e) all funds released from the Excess Liquidation Proceeds Account
for distribution on such Distribution Date; and
(f) the portion of any Cure Payments made by the holders of the
Class 622 Participation Certificates or 000 Xxxxx Xxxxxx X Loan pursuant
to the 000 Xxxxx Xxxxxx Intercreditor Agreement that are allocable to
interest or principal on the 000 Xxxxx Xxxxxx Pooled Portion pursuant to
Section 3.28, made by the holders of the Washington Center Junior Loans
pursuant to the Washington Center Intercreditor Agreement or made by any B
Loan Holder pursuant to the terms of the related A/B Intercreditor
Agreement.
"B Loan" shall mean, with respect to each A Loan, the 000 Xxxxx
Xxxxxx Loan and the Washington Center Loan, the related mortgage loan that (i)
is not included in the Trust Fund, (ii) is subordinate in right of payment to
such A Loan, 000 Xxxxx Xxxxxx Loan and Washington Center Loan to the extent set
forth in the related A/B Intercreditor Agreement and (iii) is secured by the
same Mortgage on the same Mortgaged Property as such A Loan.
"B Loan Holder" shall mean, with respect to any CBA A/B Loan Pair,
CBA-Mezzanine Capital Finance, LLC or its successors and assigns, as the holder
of the related B Loan, with respect to the Washington Center B Loan, the holder
of such loan and with respect to the 000 Xxxxx Xxxxxx X Loan, the holder of such
loan.
"Balloon Mortgage Loan" shall mean any Mortgage Loan that by its
original terms or by virtue of any modification entered into as of the Closing
Date (or, in the case of a Replacement Mortgage Loan, as of the related date of
substitution) provides for an amortization schedule extending beyond its Stated
Maturity Date and as to which, in accordance with such terms, a Balloon Payment
is due on its Stated Maturity Date.
"Balloon Payment" shall mean any Monthly Payment payable on a
Mortgage Loan at scheduled maturity that is at least six times as large as the
normal Monthly Payment due on such Mortgage Loan.
"Bankruptcy Code" shall mean the federal Bankruptcy Code, as amended
from time to time (Title 11 of the United States Code).
"Base Interest Fraction" shall mean, with respect to any Principal
Prepayment on any Mortgage Loan and any of the Class A-1, Class A-2, Class A-3,
Class A-4, Class A-5, Class B, Class C, Class D, Class E, Class F, Class G and
Class H Certificates, a fraction (not greater than 1) (a) whose numerator is the
amount, if any, by which (i) the Pass-Through Rate on such Class of Certificates
exceeds (ii) the rate set forth in the related Mortgage Loan Documents used to
calculate the Yield Maintenance Charge with respect to such Principal Prepayment
and (b) whose denominator is the amount, if any, by which the (i) Mortgage Rate
on such Mortgage Loan exceeds (ii) the rate set forth in the related Mortgage
Loan Documents used to calculate (as provided by the Master Servicer) the Yield
Maintenance Charge with respect to such Principal Prepayment; provided, however,
that if such rate is greater than or equal to the lesser of (x) the Mortgage
Rate on such Mortgage Loan and (y) the Pass-Through Rate described in clause
(a)(i) above, then the Base Interest Fraction shall be zero.
"Base Prospectus" shall mean that certain prospectus dated June 3,
2003, relating to trust funds established by the Depositor and publicly offered
mortgage pass-through certificates evidencing interests therein.
"Book-Entry Certificate" shall mean any Certificate registered in
the name of the Depository or its nominee.
"Book-Entry Non-Registered Certificate" shall mean any
Non-Registered Certificate that constitutes a Book-Entry Certificate.
"Borrower" shall mean, individually and collectively, as the context
may require, the obligor or obligors under a Mortgage Loan, including any Person
that has not signed the related Mortgage Note but owns an interest in the
related Mortgaged Property, which interest has been encumbered to secure such
Mortgage Loan.
"Breach" shall mean, with respect to any Mortgage Loan, any breach
of representation or warranty made by a Mortgage Loan Seller pursuant to Section
4(b) or 4(d) of the related Mortgage Loan Purchase Agreement.
"Business Day" shall mean any day other than a Saturday, a Sunday or
a day on which banking institutions in New York, New York, Minneapolis,
Minnesota, Pittsburgh, Pennsylvania, the city or cities in which the Primary
Servicing Offices of the Master Servicers and the Special Servicers are located
or the city in which the Corporate Trust Office of the Trustee is located, are
authorized or obligated by law or executive order to remain closed.
"CBA A/B Loan Pair" shall mean any A Loan together with the related
B Loan as to which the Holder of such B Loan as of the Closing Date is
CBA-Mezzanine Capital Finance, LLC or an assignee thereof.
"CBA B Loan" shall mean the B Loan that is part of a CBA A/B Loan
Pair.
"CERCLA" shall mean the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended.
"Certificate" shall mean any one of the Depositor's Series 2003-C3
Commercial Mortgage Pass-Through Certificates, as executed by the Trustee and
authenticated and delivered hereunder by the Certificate Registrar.
"Certificate Factor" shall mean, 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 related Class
Principal Balance or Class Notional Amount, as the case may be, then
outstanding, and the denominator of which is the related Class Principal Balance
or Class Notional Amount, as the case may be, outstanding as of the Closing
Date.
"Certificateholder" or "Holder" shall mean the Person in whose name
a Certificate is registered in the Certificate Register, provided, however,
that: (i) neither a Disqualified Organization nor a Non-United States Tax Person
shall be a "Holder" of, or a "Certificateholder" with respect to, a Class R or
Class LR Certificate for any purpose hereof; and (ii) solely for purposes of
giving any consent, approval, direction or waiver pursuant to this Agreement
that specifically relates to the rights, duties and/or obligations hereunder of
the Depositor, the Master Servicers, the Special Servicers, the Trustee or any
Fiscal Agent in its respective capacity as such (other than any consent,
approval or waiver contemplated by any of Sections 3.23, 3.24 and 3.25), any
Certificate registered in the name of such party or in the name of any Affiliate
thereof shall be deemed not to be outstanding, and the Voting Rights to which it
is entitled shall not be taken into account in determining whether the requisite
percentage of Voting Rights necessary to effect any such consent, approval or
waiver that specifically relates to such party has been obtained. The
Certificate Registrar shall be entitled to request and conclusively rely upon a
certificate of the Depositor, a Master Servicer or a Special Servicer in
determining whether a Certificate is registered in the name of an Affiliate of
such Person. All references herein to "Certificateholders" or "Holders" shall
reflect the rights of Certificate Owners only insofar as they may indirectly
exercise such rights through the Depository and the Depository Participants
(except as otherwise specified herein), it being herein acknowledged and agreed
that the parties hereto shall be required to recognize as a "Certificateholder"
or "Holder" only the Person in whose name a Certificate is registered in the
Certificate Register.
"Certificateholder Reports" shall mean, collectively, the Statement
to Certificateholders and the CMSA Investor Reporting Package.
"Certificate Notional Amount" shall mean, with respect to any
Interest Only Certificate, as of any date of determination, the then notional
principal amount on which such Certificate accrues interest, equal to the
product of (a) the then Certificate Factor for the Class of Interest Only
Certificates to which such Certificate belongs, multiplied by (b) the amount
specified on the face of such Certificate as the initial Certificate Notional
Amount thereof.
"Certificate Owner" shall mean, with respect to any 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" shall mean, with respect to any
Principal Balance Certificate, as of any date of determination, the then
outstanding principal amount of such Certificate equal to the product of (a) the
then Certificate Factor for the Class of Principal Balance Certificates to which
such Certificate belongs, multiplied by (b) the amount specified on the face of
such Certificate as the initial Certificate Principal Balance thereof.
"Certificate Register" and "Certificate Registrar" shall mean the
register maintained and the registrar appointed pursuant to Section 5.02.
"C Loan" shall mean the Washington Center C Loan.
"C Loan Holder" shall mean, with respect to the Washington Center
Total Loan, the holder of the Washington Center C Loan.
"Class" shall mean, collectively, all of the Certificates or
Uncertificated Lower-Tier Interests bearing the same alphabetic and, if
applicable, numeric class designation and having the same payment terms. The
respective Classes of Certificates are designated in Section 5.01(a).
"Class 622 Participation Certificates" shall mean any Class 622-A,
Class 622-B, Class 622-C, Class 622-D, Class 622-E and Class 622-F Participation
Certificate.
"Class 622-A Participation Certificate" shall mean, when combined
with any other capitalized term defined in this Agreement, of or relating to the
Class 622-A Participation Certificates.
"Class 622-A Pass-Through Rate" shall mean 4.4290% per annum.
"Class 622-B Participation Certificate" shall mean, when combined
with any other capitalized term defined in this Agreement, of or relating to the
Class 622-B Participation Certificates.
"Class 622-B Pass-Through Rate" shall mean 4.4780% per annum.
"Class 622-C Participation Certificate" shall mean, when combined
with any other capitalized term defined in this Agreement, of or relating to the
Class 622-C Participation Certificates.
"Class 622-C Pass-Through Rate" shall mean 5.0090% per annum.
"Class 622-D Participation Certificate" shall mean, when combined
with any other capitalized terms defined in this Agreement, of or relating to
the Class 622-D Participation Certificates.
"Class 622-D Pass-Through Rate" shall mean 5.6750% per annum.
Class 622-E Participation Certificate" shall mean, when combined
with any other capitalized terms defined in this Agreement, of or relating to
the Class 622-E Participation Certificates.
"Class 622-E Pass-Through Rate" shall mean 6.7860% per annum.
"Class 622-F Participation Certificate" shall mean, when combined
with any other capitalized terms defined in this Agreement, of or relating to
the Class 622-F Participation Certificates.
"Class 622-F Pass-Through Rate" shall mean 6.7860% per annum.
"Class A-1" shall mean, when combined with any other capitalized
term defined in this Agreement, of or relating to the Class A-1 Certificates.
"Class A-1 Certificate" shall mean any of the Certificates that
collectively constitute the Class bearing the alphanumeric class designation
"A-1".
"Class A-1 Pass-Through Rate" shall mean 2.0790% per annum.
"Class A-2" shall mean, when combined with any other capitalized
term defined in this Agreement, of or relating to the Class A-2 Certificates.
"Class A-2 Certificate" shall mean any of the Certificates that
collectively constitute the Class bearing the alphanumeric class designation
"A-2".
"Class A-2 Pass-Through Rate" shall mean 2.8430% per annum.
"Class A-3" shall mean, when combined with any other capitalized
term defined in this Agreement, of or relating to the Class A-3 Certificates.
"Class A-3 Certificate" shall mean any of the Certificates that
collectively constitute the Class bearing the alphanumeric class designation
"A-3".
"Class A-3 Pass-Through Rate" shall mean 3.3820% per annum.
"Class A-4" shall mean, when combined with any other capitalized
term defined in this Agreement, of or relating to the Class A-4 Certificates.
"Class A-4 Certificate" shall mean any of the Certificates that
collectively constitute the Class bearing the alphanumeric class designation
"A-4".
"Class A-4 Pass-Through Rate" shall mean 3.7010% per annum.
"Class A-5" shall mean, when combined with any other capitalized
term defined in this Agreement, of or relating to the Class A-5 Certificates.
"Class A-5 Certificate" shall mean any of the Certificates that
collectively constitute the Class bearing the alphanumeric class designation
"A-5".
"Class A-5 Pass-Through Rate" shall mean 3.9360% per annum.
"Class A-P&I Certificates" shall mean, collectively, the Class X-0,
Xxxxx X-0, Class A-3, Class A-4 and Class A-5 Certificates.
"Class A-SP" shall mean, when combined with any other capitalized
term defined in this Agreement, of or relating to the Class A-SP Certificates.
"Class A-SP Certificate" shall mean any of the Certificates that
collectively constitute the Class bearing the alphabetic class designation
"A-SP".
"Class A-SP Component" shall mean, each of Component X-0-0,
Xxxxxxxxx X-0-0, Xxxxxxxxx X-0-0, Component A-2-2, Component A-2-3, Component
A-3-1, Component A-3-2, Component A-4-1, Component A-4-2, Component A-5-1,
Component A-5-2, Component B, Component C, Component D-1, Component D-2,
Component E-1, Component E-2, Component F-1, Component F-2 and Component G.
"Class A-SP Notional Amount" shall mean, as of any date of
determination, the sum of the then Component Notional Amounts of the Class A-SP
Components.
"Class A-SP Pass-Through Rate" shall mean, as to any Distribution
Date, the per annum rate, expressed as a percentage, equal to the weighted
average of the Class A-SP Strip Rates of the Class A-SP Components for such
Distribution Date.
"Class A-SP Strip Rate" shall mean, with respect to each of the
Class A-SP Components for any Distribution Date, a rate per annum equal to (i)
for any Distribution Date occurring on or before the related Component Crossover
Date, (x) the lesser of (I) the Weighted Average Net Mortgage Rate for such
Distribution Date and (II) the Reference Rate for such Distribution Date minus
(y) the Pass-Through Rate for the Related Certificates (provided that in no
event shall any Class A-SP Strip Rate be less than zero), and (ii) for any
Distribution Date occurring after the related Component Crossover Date, 0% per
annum.
"Class A-X" shall mean, when combined with any other capitalized
term defined in this Agreement, of or relating to the Class A-X Certificates.
"Class A-X Certificate" shall mean any of the Certificates that
collectively constitute the Class bearing the alphabetic class designation
"A-X".
"Class A-X Component" shall mean any one of the Components.
"Class A-X Notional Amount" shall mean, with respect to the Class
A-X Certificates and any date of determination, the sum of the then Component
Notional Amounts of all of the Components.
"Class A-X Pass-Through Rate" shall mean, as to any Distribution
Date, the per annum rate, expressed as a percentage, equal to the weighted
average of the Class A-X Strip Rates of the Components for such Distribution
Date, weighted on the basis of their respective Component Notional Balances.
"Class A-X Strip Rate" shall mean, with respect to (A) any Class of
Components (other than the Class A-SP 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 Related
Certificates, and (B) in the case of the Class A-SP Components (i) for any
Distribution Date occurring on or before the related 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 Related Certificates for such
Distribution Date and the Class A-SP Strip Rate for such Component for such
Distribution Date, and (ii) for any Distribution Date occurring after the
related 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 Related Certificates (provided that in no event shall any Class A-X
Strip Rate be less than zero).
"Class A-Y" shall mean, when combined with any other capitalized
term defined in this Agreement, of or relating to the Class A-Y Certificates.
"Class A-Y Certificate" shall mean any of the Certificates that
collectively constitute the Class bearing the alphabetic class designation
"A-Y".
"Class A-Y Notional Amount" shall mean, as of any date of
determination, the aggregate Stated Principal Balances of the Co-op Mortgage
Loans.
"Class A-Y Pass-Through Rate" shall mean, as to any Distribution
Date, the per annum rate, expressed as a percentage, equal to the weighted
average of the Class A-Y Strip Rates attributable to each Co-op Mortgage Loan.
"Class A-Y Strip Rate" shall mean, in the case of each Co-op
Mortgage Loan (or any successor REO Mortgage Loan), an annual rate equal to the
excess, if any, of (i) the Mortgage Rate in effect for such Mortgage Loan as of
the Closing Date minus the Administrative Fee Rate, over (ii) 4.60% per annum.
With respect to any Co-op Mortgage Loan that provides for calculations of
interest based on a 360-day year and the actual number of days elapsed, (a) for
any Interest Accrual Period relating to an Interest Accrual Period beginning in
any January, February, April, June, September and November and in any December
occurring in a year immediately preceding any year that is not a leap year, the
Mortgage Rate thereof minus the related Administrative Fee Rate thereof or (b)
for any Mortgage Interest Accrual Period relating to any Interest Accrual Period
beginning in any March, May, July, August and October and in any December
occurring in a year immediately preceding a year that is a leap year, the
product of the Mortgage Rate thereof minus the related Administrative Fee Rate
thereof and a fraction whose numerator is 31 and whose denominator is 30.
"Class B" shall mean, when combined with any other capitalized term
defined in this Agreement, of or relating to the Class B Certificates.
"Class B Certificate" shall mean any of the Certificates that
collectively constitute the Class bearing the alphabetic class designation "B".
"Class B Pass-Through Rate" shall mean 4.0520% per annum.
"Class C" shall mean, when combined with any other capitalized term
defined in this Agreement, of or relating to the Class C Certificates.
"Class C Certificate" shall mean any of the Certificates that
collectively constitute the Class bearing the alphabetic class designation "C".
"Class C Pass-Through Rate" shall mean 4.0820% per annum.
"Class D" shall mean, when combined with any other capitalized term
defined in this Agreement, of or relating to the Class D Certificates.
"Class D Certificate" shall mean any of the Certificates that
collectively constitute the Class bearing the alphabetic class designation "D".
"Class D Pass-Through Rate" shall mean 4.1310% per annum.
"Class E" shall mean, when combined with any other capitalized term
defined in this Agreement, of or relating to the Class E Certificates.
"Class E Certificate" shall mean any of the Certificates that
collectively constitute the Class bearing the alphabetic class designation "E".
"Class E Pass-Through Rate" shall mean 4.1910% per annum.
"Class F" shall mean, when combined with any other capitalized term
defined in this Agreement, of or relating to the Class F Certificates.
"Class F Certificate" shall mean any of the Certificates that
collectively constitute the Class bearing the alphabetic class designation "F".
"Class F Pass-Through Rate" shall mean the lesser of (i) 4.5180% per
annum and (ii) the Weighted Average Net Mortgage Rate.
"Class G" shall mean, when combined with any other capitalized term
defined in this Agreement, of or relating to the Class G Certificates.
"Class G Certificate" shall mean any of the Certificates that
collectively constitute the Class bearing the alphabetic class designation "G".
"Class G Pass-Through Rate" shall mean the lesser of (i) 4.6170% per
annum and (ii) the Weighted Average Net Mortgage Rate.
"Class H" shall mean, when combined with any other capitalized term
defined in this Agreement, of or relating to the Class H Certificates.
"Class H Certificate" shall mean any of the Certificates that
collectively constitute the Class bearing the alphabetic class designation "H".
"Class H Pass-Through Rate" shall mean the lesser of (i) 5.1610% per
annum and (ii) the Weighted Average Net Mortgage Rate.
"Class J" shall mean, when combined with any other capitalized term
defined in this Agreement, of or relating to the Class J Certificates.
"Class J Certificate" shall mean any of the Certificates that
collectively constitute the Class bearing the alphabetic class designation "J".
"Class J Pass-Through Rate" shall mean the lesser of (i) 4.2310% per
annum and (ii) the Weighted Average Net Mortgage Rate.
"Class K" shall mean, when combined with any other capitalized term
defined in this Agreement, of or relating to the Class K Certificates.
"Class K Certificate" shall mean any of the Certificates that
collectively constitute the Class bearing the alphabetic class designation "K".
"Class K Pass-Through Rate" shall mean the lesser of (i) 4.2310% per
annum and (ii) the Weighted Average Net Mortgage Rate.
"Class L" shall mean, when combined with any other capitalized term
defined in this Agreement, of or relating to the Class L Certificates.
"Class L Certificate" shall mean any of the Certificates that
collectively constitute the Class bearing the alphabetic class designation "L".
"Class L Pass-Through Rate" shall mean the lesser of (i) 4.2310% per
annum and (ii) the Weighted Average Net Mortgage Rate.
"Class L622-A Uncertificated Interest" shall mean a regular interest
in the Lower-Tier REMIC that is held as an asset of the Upper-Tier REMIC and
having the Original Lower-Tier Principal Amount and per annum rate of interest
set forth in the Preliminary Statement hereto.
"Class L622-B Uncertificated Interest" shall mean a regular interest
in the Lower-Tier REMIC that is held as an asset of the Upper-Tier REMIC and
having the Original Lower-Tier Principal Amount and per annum rate of interest
set forth in the Preliminary Statement hereto.
"Class L622-C Uncertificated Interest" shall mean a regular interest
in the Lower-Tier REMIC that is held as an asset of the Upper-Tier REMIC and
having the Original Lower-Tier Principal Amount and per annum rate of interest
set forth in the Preliminary Statement hereto.
Class L622-D Uncertificated Interest" shall mean a regular interest
in the Lower-Tier REMIC that is held as an asset of the Upper-Tier REMIC and
having the Original Lower-Tier Principal Amount and per annum rate of interest
set forth in the Preliminary Statement hereto.
Class L622-E Uncertificated Interest" shall mean a regular interest
in the Lower-Tier REMIC that is held as an asset of the Upper-Tier REMIC and
having the Original Lower-Tier Principal Amount and per annum rate of interest
set forth in the Preliminary Statement hereto.
Class L622-F Uncertificated Interest" shall mean a regular interest
in the Lower-Tier REMIC that is held as an asset of the Upper-Tier REMIC and
having the Original Lower-Tier Principal Amount and per annum rate of interest
set forth in the Preliminary Statement hereto.
"Class LA-1-1 Uncertificated Interest" shall mean a regular interest
in the Lower-Tier REMIC that is held as an asset of the Upper-Tier REMIC and
having the Original Lower-Tier Principal Amount and per annum rate of interest
set forth in the Preliminary Statement hereto.
"Class LA-1-2 Uncertificated Interest" shall mean a regular interest
in the Lower-Tier REMIC that is held as an asset of the Upper-Tier REMIC and
having the Original Lower-Tier Principal Amount and per annum rate of interest
set forth in the Preliminary Statement hereto.
"Class LA-1-3 Uncertificated Interest" shall mean a regular interest
in the Lower-Tier REMIC that is held as an asset of the Upper-Tier REMIC and
having the Original Lower-Tier Principal Amount and per annum rate of interest
set forth in the Preliminary Statement hereto.
"Class LA-2-1 Uncertificated Interest" shall mean a regular interest
in the Lower-Tier REMIC that is held as an asset of the Upper-Tier REMIC and
having the Original Lower-Tier Principal Amount and per annum rate of interest
set forth in the Preliminary Statement hereto.
"Class LA-2-2 Uncertificated Interest" shall mean a regular interest
in the Lower-Tier REMIC that is held as an asset of the Upper-Tier REMIC and
having the Original Lower-Tier Principal Amount and per annum rate of interest
set forth in the Preliminary Statement hereto.
"Class LA-2-3 Uncertificated Interest" shall mean a regular interest
in the Lower-Tier REMIC that is held as an asset of the Upper-Tier REMIC and
having the Original Lower-Tier Principal Amount and per annum rate of interest
set forth in the Preliminary Statement hereto.
"Class LA-3-1 Uncertificated Interest" shall mean a regular interest
in the Lower-Tier REMIC that is held as an asset of the Upper-Tier REMIC and
having the Original Lower-Tier Principal Amount and per annum rate of interest
set forth in the Preliminary Statement hereto.
"Class LA-3-2 Uncertificated Interest" shall mean a regular interest
in the Lower-Tier REMIC that is held as an asset of the Upper-Tier REMIC and
having the Original Lower-Tier Principal Amount and per annum rate of interest
set forth in the Preliminary Statement hereto.
"Class LA-4-1 Uncertificated Interest" shall mean a regular interest
in the Lower-Tier REMIC that is held as an asset of the Upper-Tier REMIC and
having the Original Lower-Tier Principal Amount and per annum rate of interest
set forth in the Preliminary Statement hereto.
"Class LA-4-2 Uncertificated Interest" shall mean a regular interest
in the Lower-Tier REMIC that is held as an asset of the Upper-Tier REMIC and
having the Original Lower-Tier Principal Amount and per annum rate of interest
set forth in the Preliminary Statement hereto.
"Class LA-5-1 Uncertificated Interest" shall mean a regular interest
in the Lower-Tier REMIC that is held as an asset of the Upper-Tier REMIC and
having the Original Lower-Tier Principal Amount and per annum rate of interest
set forth in the Preliminary Statement hereto.
"Class LA-5-2 Uncertificated Interest" shall mean a regular interest
in the Lower-Tier REMIC that is held as an asset of the Upper-Tier REMIC and
having the Original Lower-Tier Principal Amount and per annum rate of interest
set forth in the Preliminary Statement hereto.
"Class LB Uncertificated Interest" shall mean a regular interest in
the Lower-Tier REMIC that is held as an asset of the Upper-Tier REMIC and having
the Original Lower-Tier Principal Amount and per annum rate of interest set
forth in the Preliminary Statement hereto.
"Class LC Uncertificated Interest" shall mean a regular interest in
the Lower-Tier REMIC that is held as an asset of the Upper-Tier REMIC and having
the Original Lower-Tier Principal Amount and per annum rate of interest set
forth in the Preliminary Statement hereto.
"Class LD-1 Uncertificated Interest" shall mean a regular interest
in the Lower-Tier REMIC that is held as an asset of the Upper-Tier REMIC and
having the Original Lower-Tier Principal Amount and per annum rate of interest
set forth in the Preliminary Statement hereto.
"Class LD-2 Uncertificated Interest" shall mean a regular interest
in the Lower-Tier REMIC that is held as an asset of the Upper-Tier REMIC and
having the Original Lower-Tier Principal Amount and per annum rate of interest
set forth in the Preliminary Statement hereto.
"Class LE-1 Uncertificated Interest" shall mean a regular interest
in the Lower-Tier REMIC that is held as an asset of the Upper-Tier REMIC and
having the Original Lower-Tier Principal Amount and per annum rate of interest
set forth in the Preliminary Statement hereto.
"Class LE-2 Uncertificated Interest" shall mean a regular interest
in the Lower-Tier REMIC that is held as an asset of the Upper-Tier REMIC and
having the Original Lower-Tier Principal Amount and per annum rate of interest
set forth in the Preliminary Statement hereto.
"Class LF-1 Uncertificated Interest" shall mean a regular interest
in the Lower-Tier REMIC that is held as an asset of the Upper-Tier REMIC and
having the Original Lower-Tier Principal Amount and per annum rate of interest
set forth in the Preliminary Statement hereto.
"Class LF-2 Uncertificated Interest" shall mean a regular interest
in the Lower-Tier REMIC that is held as an asset of the Upper-Tier REMIC and
having the Original Lower-Tier Principal Amount and per annum rate of interest
set forth in the Preliminary Statement hereto.
"Class LG Uncertificated Interest" shall mean a regular interest in
the Lower-Tier REMIC that is held as an asset of the Upper-Tier REMIC and having
the Original Lower-Tier Principal Amount and per annum rate of interest set
forth in the Preliminary Statement hereto.
"Class LH Uncertificated Interest" shall mean a regular interest in
the Lower-Tier REMIC that is held as an asset of the Upper-Tier REMIC and having
the Original Lower-Tier Principal Amount and per annum rate of interest set
forth in the Preliminary Statement hereto.
"Class LJ Uncertificated Interest" shall mean a regular interest in
the Lower-Tier REMIC that is held as an asset of the Upper-Tier REMIC and having
the Original Lower-Tier Principal Amount and per annum rate of interest set
forth in the Preliminary Statement hereto.
"Class LK Uncertificated Interest" shall mean a regular interest in
the Lower-Tier REMIC that is held as an asset of the Upper-Tier REMIC and having
the Original Lower-Tier Principal Amount and per annum rate of interest set
forth in the Preliminary Statement hereto.
"Class LL Uncertificated Interest" shall mean a regular interest in
the Lower-Tier REMIC that is held as an asset of the Upper-Tier REMIC and having
the Original Lower-Tier Principal Amount and per annum rate of interest set
forth in the Preliminary Statement hereto.
"Class LM Uncertificated Interest" shall mean a regular interest in
the Lower-Tier REMIC that is held as an asset of the Upper-Tier REMIC and having
the Original Lower-Tier Principal Amount and per annum rate of interest set
forth in the Preliminary Statement hereto.
"Class LN Uncertificated Interest" shall mean a regular interest in
the Lower-Tier REMIC that is held as an asset of the Upper-Tier REMIC and having
the Original Lower-Tier Principal Amount and per annum rate of interest set
forth in the Preliminary Statement hereto.
"Class LO Uncertificated Interest" shall mean a regular interest in
the Lower-Tier REMIC that is held as an asset of the Upper-Tier REMIC and having
the Original Lower-Tier Principal Amount and per annum rate of interest set
forth in the Preliminary Statement hereto.
"Class LP Uncertificated Interest" shall mean a regular interest in
the Lower-Tier REMIC that is held as an asset of the Upper-Tier REMIC and having
the Original Lower-Tier Principal Amount and per annum rate of interest set
forth in the Preliminary Statement hereto.
"Class LY Uncertificated Interest" shall mean a regular interest in
the Lower-Tier REMIC that is held as an asset of the Upper-Tier REMIC and having
the Original Class Notional Amount and per annum rate of interest set forth in
the Preliminary Statement hereto.
"Class M" shall mean, when combined with any other capitalized term
defined in this Agreement, of or relating to the Class M Certificates.
"Class M Certificate" shall mean any of the Certificates that
collectively constitute the Class bearing the alphabetic class designation "M".
"Class M Pass-Through Rate" shall mean the lesser of (i) 4.2310% per
annum and (ii) the Weighted Average Net Mortgage Rate.
"Class N" shall mean, when combined with any other capitalized term
defined in this Agreement, of or relating to the Class N Certificates.
"Class N Certificate" shall mean any of the Certificates that
collectively constitute the Class bearing the alphabetic class designation "N".
"Class N Pass-Through Rate" shall mean the lesser of (i) 4.2310% per
annum and (ii) the Weighted Average Net Mortgage Rate.
"Class Notional Amount" shall mean the aggregate hypothetical or
notional amount on which any Class of Interest Only Certificates accrues or is
deemed to accrue interest from time to time.
"Class O" shall mean, when combined with any other capitalized term
defined in this Agreement, of or relating to the Class O Certificates.
"Class O Certificate" shall mean any of the Certificates that
collectively constitute the Class bearing the alphabetic class designation "O".
"Class O Pass-Through Rate" shall mean the lesser of (i) 4.2310% per
annum and (ii) the Weighted Average Net Mortgage Rate.
"Class P" shall mean, when combined with any other capitalized term
defined in this Agreement, of or relating to the Class P Certificates.
"Class P Certificate" shall mean any of the Certificates that
collectively constitute the Class bearing the alphabetic class designation "P".
"Class P Pass-Through Rate" shall mean the lesser of (i) 4.2310% per
annum and (ii) the Weighted Average Net Mortgage Rate.
"Class Principal Balance" shall mean the aggregate principal balance
outstanding from time to time of any Class of Principal Balance Certificates.
"Class R" shall mean, when combined with any other capitalized term
defined in this Agreement, of or relating to the Class R Certificates.
"Class R Certificate" shall mean any of the Certificates that
collectively constitute the Class bearing the alphabetic class designation "R".
"Class V" shall mean, when combined with any other capitalized term
defined in this Agreement, of or relating to the Class V Certificates.
"Class V Certificate" shall mean any of the Certificates that
collectively constitute the Class bearing the alphabetic class designation "V".
"Clearstream" shall mean Clearstream, Luxembourg, societe anonyme
(formerly known as Cedelbank), a corporation organized under the laws of the
Duchy of Luxembourg.
"Closing Date" shall mean June 27, 2003.
"CMSA" shall mean the Commercial Mortgage Securities Association, or
any association or organization that is a successor thereto. If neither such
association nor any successor remains in existence, "CMSA" shall be deemed to
refer to such other association or organization as may exist whose principal
membership consists of servicers, trustees, issuers, placement agents and
underwriters generally involved in the commercial mortgage loan securitization
industry, which is the principal such association or organization in the
commercial mortgage loan securitization industry and one of whose principal
purposes is the establishment of industry standards for reporting
transaction-specific information relating to commercial mortgage-backed
pass-through certificates and commercial mortgage-backed bonds and the
commercial mortgage loans and foreclosed properties underlying or backing them
to investors holding or owning such certificates or bonds, and any successor to
such other association or organization. If an organization or association
described in one of the preceding sentences of this definition does not exist,
"CMSA" shall be deemed to refer to such other association or organization as
shall be selected by the General Master Servicer and reasonably acceptable to
the Trustee, the NCBFSB Master Servicer, the Special Servicers and the
Controlling Class Representative.
"CMSA Bond Level File" shall mean, subject to Section 1.03(g), the
monthly report substantially in the form of, and containing the information
called for in, the downloadable form of the "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 recommended by the CMSA for commercial mortgage-backed securities
transactions generally.
"CMSA Collateral Summary File" shall mean, subject to Section
1.03(g), 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 recommended by the CMSA for commercial mortgage-backed
securities transactions generally.
"CMSA Comparative Financial Status Report" shall mean, subject to
Section 1.03(g), 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
recommended by the CMSA for commercial mortgage-backed securities transactions
generally, and in any event (but subject to Section 1.03(g)), setting forth,
among other things, (A) the most recent property inspection date for each
Mortgaged Property to be covered thereby and (B) in each instance based on, for
all Mortgage Loans other than Co-op Mortgage Loans, (1) the most recent rent
roll in the possession or under the control of the applicable Master Servicer
and (2) to the extent in the possession or under the control of the applicable
Master Servicer (in descending order of desirability), (a) trailing 12-months
normalized financial information, or (b) if the information in clause (a) is not
available, normalized financial information based on no less than nine months of
operating statements (annualized), or (c) if the information in clauses (a) and
(b) is not available, the most recent current year-to-date financial information
(annualized): (x) the occupancy and debt service coverage ratio for each
Mortgage Loan or Mortgaged Property, as applicable, to be covered thereby; and
(y) the revenue, expense, net operating income and net cash flow for each
Mortgaged Property to be covered thereby. With respect to Co-op Mortgage Loans,
subject to Section 1.03(g), the foregoing information shall be based on annual
audited, compiled or reviewed financial statements. For the purposes of the
production by the applicable Master Servicer or the applicable Special Servicer
of any such report that is required to state information with respect to any
Original Mortgage Loan for any period prior to the related Due Date in June
2003, the applicable Master Servicer or the applicable Special Servicer, as the
case may be, may conclusively rely (without independent verification), absent
manifest error, on information provided to it by the related Mortgage Loan
Seller, by the related Borrower or (x) in the case of such a report produced by
a Master Servicer, by the applicable Special Servicer (if other than such Master
Servicer or an Affiliate thereof) and (y) in the case of such a report produced
by a Special Servicer, by the applicable Master Servicer (if other than such
Special Servicer or an Affiliate thereof).
"CMSA Delinquent Loan Status Report" shall mean, subject to Section
1.03(g), a 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 recommended by the CMSA for commercial mortgage-backed
securities transactions generally.
"CMSA Financial File" shall mean, subject to Section 1.03(g), a
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 and containing such additional information as may from time to time
be recommended by the CMSA for commercial mortgage-backed securities
transactions generally.
"CMSA Historical Liquidation Report" shall mean, subject to Section
1.03(g), a 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 recommended by the CMSA for commercial mortgage-backed
securities transactions generally.
"CMSA Historical Loan Modification and Corrected Mortgage Loan
Report" shall mean, subject to Section 1.03(g), 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 recommended by the CMSA for commercial mortgage-backed
securities transactions generally.
"CMSA Investor Reporting Package" shall mean, collectively:
(a) the following seven electronic files: (i) CMSA Loan Setup File,
(ii) CMSA Loan Periodic Update File, (iii) CMSA Property File, (iv) CMSA Bond
Level File, (v) CMSA Financial File, (vi) CMSA Collateral Summary File and (vii)
CMSA Special Servicer Loan File; and
(b) the following ten supplemental reports: (i) CMSA Delinquent Loan
Status Report, (ii) CMSA Historical Loan Modification and Corrected Mortgage
Loan Report, (iii) CMSA Historical Liquidation Report, (iv) CMSA REO Status
Report, (v) CMSA Loan Level Reserve Report, (vi) CMSA Comparative Financial
Status Report, (vii) CMSA Servicer Watch List, (viii) CMSA Reconciliation of
Funds, (ix) CMSA Operating Statement Analysis Report and (x) CMSA NOI Adjustment
Worksheet.
"CMSA Loan Level Reserve Report" shall mean a report substantially
in the form of, and containing the information called for in, the downloadable
form of the "Loan Level Reserve Report" 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 recommended by the CMSA for commercial
mortgage securities transactions generally.
"CMSA Loan Periodic Update File" shall mean, subject to Section
1.03(g), 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 recommended by the CMSA for commercial
mortgage-backed securities transactions generally.
"CMSA Loan Setup File" shall mean, subject to Section 1.03(g), 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 recommended by the CMSA for commercial mortgage-backed securities
transactions generally.
"CMSA NOI Adjustment Worksheet" shall mean, subject to Section
1.03(g), a report (using the ARCap Naming Convention for Electronic File
Delivery) 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 recommended by the CMSA for commercial mortgage-backed securities
transactions generally, 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, net cash flow and debt service coverage numbers used
in the other reports required by this Agreement.
"CMSA Operating Statement Analysis Report" shall mean, subject to
Section 1.03(g), a report (using the ARCap Naming Convention for Electronic File
Delivery) substantially in the form of, and containing the information called
for in, the downloadable form of the "Operating Statement 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 recommended by the CMSA for commercial
mortgage-backed securities transactions generally.
"CMSA Property File" shall mean, subject to Section 1.03(g), 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 recommended by the CMSA for commercial mortgage-backed securities
transactions generally.
"CMSA Reconciliation of Funds" shall mean a report substantially in
the form of, and containing the information called for in, the downloadable form
of the "Reconciliation of Funds" 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 recommended
by the CMSA for commercial mortgage-backed securities transactions generally.
"CMSA REO Status Report" shall mean a report substantially in the
form of, and containing the information called for in, the downloadable form of
the "REO Status Report" available 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 recommended by the CMSA for commercial mortgage
securities transactions generally.
"CMSA Servicer Watch List" shall mean, for any Determination Date, a
report substantially in the form of, and containing the information called for
in, the downloadable form of the "Servicer Watch List" 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 recommended by the CMSA for commercial mortgage-backed securities
transactions generally; provided, that in the case of Co-op Mortgage Loans, such
report shall identify all Co-op Mortgage Loans that are required by the criteria
set forth on Exhibit E-2 hereto; provided, further that, upon adoption by the
CMSA of a standard format and criteria, in respect of residential cooperative
mortgage loans, such format and criteria shall be used for this report instead
of Exhibit E-2 hereto.
"CMSA Special Servicer Loan File" shall mean a report substantially
in the form of, and containing the information called for in, the downloadable
form of the "Special Servicer Loan File" 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 recommended by the CMSA for commercial
mortgage securities transactions generally.
"CMSA Website" shall mean the CMSA's Website located at "www.
xxxx.xxx" or such other primary website as the CMSA may establish for
dissemination of its report forms.
"Code" shall mean the Internal Revenue Code of 1986 and regulations
promulgated thereunder, including proposed regulations to the extent that, by
reason of their proposed effective date, could, as of the date of any
determination or opinion as to the tax consequences of any action or proposed
action or transaction, be applied to the Trust or the Certificates.
"Collateral Support Deficit" shall have the meaning set forth in
Section 4.04.
"Collection Account" shall mean the segregated account or accounts
created and maintained by each Master Servicer, pursuant to Section 3.04(a), in
trust for the Certificateholders and, with respect to any A/B Loan Pair (other
than a CBA A/B Loan Pair), and with respect to any CBA A/B Loan Pair after the
occurrence of an A/B Material Default, any related B Loan Holder, and, with
respect to the Washington Center Total Loan, the Washington Center Junior
Holders, which accounts shall be entitled "[name of subject Master Servicer], as
a Master Servicer, in trust for the registered holders of Credit Suisse First
Boston Mortgage Securities Corp., Commercial Mortgage Pass-Through Certificates,
Series 2003-C3, and the B Loan Holder and Washington Center Junior Holders, as
applicable, as their interests may appear, Collection Account." Any such account
or accounts shall be an Eligible Account and shall be part of the Lower-Tier
REMIC (except with respect to collections on the 000 Xxxxx Xxxxxx Loan, which
shall be part of the 000 Xxxxx Xxxxxx Loan REMIC) other than any funds therein
allocable to a B Loan or the Washington Center Junior Loans.
"Collection Period" shall mean, with respect to any Distribution
Date, the period commencing immediately following the Determination Date in the
calendar month preceding the month in which such Distribution Date occurs (or,
in the case of the initial Distribution Date, commencing as of the Closing Date)
and ending on and including the Determination Date in the calendar month in
which such Distribution Date occurs; provided that, if any Collection Period
would be different if the definition of "Business Day" used in the Series
2003-CK2 PSA were in effect under this Agreement, then references herein to
"Collection Period" shall, to the extent (but only to the extent) relevant to
amounts due or collected, or losses and other shortfalls incurred, on the Great
Lakes Crossing Mortgage Loan, any Great Lakes Crossing REO Mortgage Loan or any
Great Lakes Crossing REO Property, mean the period described above in this
definition determined using the definition of "Business Day" under the Series
2003-CK2 PSA.
"Column" shall have the meaning assigned thereto in the Preliminary
Statement to this Agreement.
"Column Mortgage Loan" shall mean any Mortgage Loan that is either
an Original Column Mortgage Loan or a Replacement Mortgage Loan that was
delivered under the Column Mortgage Loan Purchase Agreement or the Column
Performance Guarantee in substitution for an Original Column Mortgage Loan.
"Column Mortgage Loan Purchase Agreement" shall have the meaning
assigned thereto in the Preliminary Statement to this Agreement.
"Column Mortgage Loan Seller" shall mean Column Financial, Inc.,
together with its successors in interest.
"Column Performance Guarantee" shall mean the Guarantee dated as of
June 1, 2003, from the Column Performance Guarantor in favor of the Trustee,
relating to the obligations of Column under Section 5 of the Column Mortgage
Loan Purchase Agreement.
"Column Performance Guarantor" shall mean Credit Suisse First Boston
acting through the Cayman Branch, its successor in interest or any successor
guarantor under the Column Performance Guarantee. "Commission" shall mean the
Securities and Exchange Commission or any successor thereto.
"Compensating Interest Payment" shall mean, with respect to any
Distribution Date, any payment made by a Master Servicer pursuant to Section
3.19(a) to cover Prepayment Interest Shortfalls incurred during the related
Collection Period (or, in the case of the Great Lakes Crossing Mortgage Loan,
incurred in connection with the receipt of a Principal Prepayment or other early
collection of principal in the form of Insurance Proceeds and/or Condemnation
Proceeds, that is distributable to Certificateholders on such Distribution
Date).
"Component" shall mean each of Component X-0-0, Xxxxxxxxx X-0-0,
Xxxxxxxxx X-0-0, Component A-2-1, Component A-2-2, Component A-2-3, Component
A-3-1, Component A-3-2, Component A-4-1, Component A-4-2, Component A-5-1,
Component A-5-2, Component B, Component C, Component D-1, Component D-2,
Component E-1, Component E-2, Component F-1, Component F-2, Component G,
Component H, Component J, Component K, Component L, Component M, Component N,
Component O and Component P.
"Component A-1-1" shall mean one of twenty-nine components of the
Class A-X Certificates having a Component Notional Amount equal to the then
current Lower-Tier Principal Amount of the Class LA-1-1 Uncertificated Interest
as of any date of determination.
"Component A-1-2" shall mean one of twenty-nine components of the
Class A-X Certificates and one of the twenty components of the Class A-SP
Certificates having a Component Notional Amount equal to the then current
Lower-Tier Principal Amount of the Class LA-1-2 Uncertificated Interest as of
any date of determination.
"Component A-1-3" shall mean one of the twenty-nine components of
the Class A-X Certificates and one of the twenty components of the Class A-SP
Certificates having a Component Notional Amount equal to the then current
Lower-Tier Principal Amount of the Class LA-1-3 Uncertificated Interest as of
any date of determination.
"Component A-2-1" shall mean one of the twenty-nine components of
the Class A-X Certificates and one of the twenty components of the Class A-SP
Certificates having a Component Notional Amount equal to the then current
Lower-Tier Principal Amount of the Class LA-2-1 Uncertificated Interest as of
any date of determination.
"Component A-2-2" shall mean one of the twenty-nine components of
the Class A-X Certificates and one of the twenty components of the Class A-SP
Certificates having a Component Notional Amount equal to the then current
Lower-Tier Principal Amount of the Class LA-2-2 Uncertificated Interest as of
any date of determination.
"Component A-2-3" shall mean one of the twenty-nine components of
the Class A-X Certificates and one of the twenty components of the Class A-SP
Certificates having a Component Notional Amount equal to the then current
Lower-Tier Principal Amount of the Class LA-2-3 Uncertificated Interest as of
any date of determination.
"Component A-3-1" shall mean one of the twenty-nine components of
the Class A-X Certificates and one of the twenty components of the Class A-SP
Certificates having a Component Notional Amount equal to the then current
Lower-Tier Principal Amount of the Class LA-3-1 Uncertificated Interest as of
any date of determination.
"Component A-3-2" shall mean one of the twenty-nine components of
the Class A-X Certificates and one of the twenty components of the Class A-SP
Certificates having a Component Notional Amount equal to the then current
Lower-Tier Principal Amount of the Class LA-3-2 Uncertificated Interest as of
any date of determination.
"Component A-4-1" shall mean one of the twenty-nine components of
the Class A-X Certificates and one of the twenty components of the Class A-SP
Certificates having a Component Notional Amount equal to the then current
Lower-Tier Principal Amount of the Class LA-4-1 Uncertificated Interest as of
any date of determination.
"Component A-4-2" shall mean one of the twenty-nine components of
the Class A-X Certificates and one of the twenty components of the Class A-SP
Certificates having a Component Notional Amount equal to the then current
Lower-Tier Principal Amount of the Class LA-4-2 Uncertificated Interest as of
any date of determination.
"Component A-5-1" shall mean one of the twenty-nine components of
the Class A-X Certificates and one of the twenty components of the Class A-SP
Certificates having a Component Notional Amount equal to the then current
Lower-Tier Principal Amount of the Class LA-5-1 Uncertificated Interest as of
any date of determination.
"Component A-5-2" shall mean one of the twenty-nine components of
the Class A-X Certificates and one of the twenty components of the Class A-SP
Certificates having a Component Notional Amount equal to the then current
Lower-Tier Principal Amount of the Class LA-5-2 Uncertificated Interest as of
any date of determination.
"Component B" shall mean one of the twenty-nine components of the
Class A-X Certificates and one of the twenty components of the Class A-SP
Certificates having a Component Notional Amount equal to the then current
Lower-Tier Principal Amount of the Class LB Uncertificated Interest as of any
date of determination.
"Component C" shall mean one of the twenty-nine components of the
Class A-X Certificates and one of the twenty components of the Class A-SP
Certificates having a Component Notional Amount equal to the then current
Lower-Tier Principal Amount of the Class LC Uncertificated Interest as of any
date of determination.
"Component Crossover Date" shall mean (i) with respect to the Class
A-1-2 Component, the Distribution Date occurring in June 2004, (ii) with respect
to the Class A-1-3 Component, the Distribution Date occurring in June 2005,
(iii) with respect to the Class A-2-1 Component, the Distribution Date occurring
in June 2005, (iv) with respect to the Class A-2-2 Component, the Distribution
Date in June 2006, (v) with respect to the Class A-2-3 Component, the
Distribution Date in June 2007, (vi) with respect to the Class A-3-1 Component,
the Distribution Date occurring in June 2007, (vii) with respect to the Class
A-3-2 Component, the Distribution Date occurring in June 2008, (viii) with
respect to the Class A-4-1 Component, the Distribution Date occurring in June
2008, (ix) with respect to the Class A-4-2 Component, the Distribution Date
occurring in June 2009, (x) with respect to the Class A-5-1 Component, the
Distribution Date occurring in June 2009, (xi) with respect to the Class A-5-2
Component, the Distribution Date occurring in June 2010, (xii) with respect to
the Class B Component and the Class C Component, the Distribution Date occurring
in June 2010, (xiii) with respect to the Class D-1 Component, the Distribution
Date occurring in June 2009, (xiv) with respect to the Class D-2 Component, the
Distribution Date occurring in June 2010, (xv) with respect to the Class E-1
Component, the Distribution Date occurring in June 2008, (xvi) with respect to
the Class E-2 Component, the Distribution Date occurring in June 2009, (xvii)
with respect to the Class F-1 Component, the Distribution Date occurring in June
2007, (xviii) with respect to the Class F-2 Component, the Distribution Date
occurring in June 2008, and (xix) with respect to the Class G Component, the
Distribution Date occurring in June 2007.
"Component D-1" shall mean one of the twenty-nine components of the
Class A-X Certificates and one of the twenty components of the Class A-SP
Certificates having a Component Notional Amount equal to the then current
Lower-Tier Principal Amount of the Class LD-1 Uncertificated Interest as of any
date of determination.
"Component D-2" shall mean one of the twenty-nine components of the
Class A-X Certificates and one of the twenty components of the Class A-SP
Certificates having a Component Notional Amount equal to the then current
Lower-Tier Principal Amount of the Class LD-2 Uncertificated Interest as of any
date of determination.
"Component E-1" shall mean one of the twenty-nine components of the
Class A-X Certificates and one of the twenty components of the Class A-SP
Certificates having a Component Notional Amount equal to the then current
Lower-Tier Principal Amount of the Class LE-1 Uncertificated Interest as of any
date of determination.
"Component E-2" shall mean one of the twenty-nine components of the
Class A-X Certificates and one of the twenty components of the Class A-SP
Certificates having a Component Notional Amount equal to the then current
Lower-Tier Principal Amount of the Class LE-2 Uncertificated Interest as of any
date of determination.
"Component F-1" shall mean one of the twenty-nine components of the
Class A-X Certificates and one of the twenty components of the Class A-SP
Certificates having a Component Notional Amount equal to the then current
Lower-Tier Principal Amount of the Class LF-1 Uncertificated Interest as of any
date of determination.
"Component F-2" shall mean one of the twenty-nine components of the
Class A-X Certificates and one of the twenty components of the Class A-SP
Certificates having a Component Notional Amount equal to the then current
Lower-Tier Principal Amount of the Class LF-2 Uncertificated Interest as of any
date of determination.
"Component G" shall mean one of the twenty-nine components of the
Class A-X Certificates and one of the twenty components of the Class A-SP
Certificates having a Component Notional Amount equal to the then current
Lower-Tier Principal Amount of the Class LG Uncertificated Interest as of any
date of determination.
"Component H" shall mean one of the twenty-nine components of the
Class A-X Certificates having a Component Notional Amount equal to the then
current Lower-Tier Principal Amount of the Class LH Uncertificated Interest as
of any date of determination.
"Component J" shall mean one of the twenty-nine components of the
Class A-X Certificates having a Component Notional Amount equal to the then
current Lower-Tier Principal Amount of the Class LJ Uncertificated Interest as
of any date of determination.
"Component K" shall mean one of the twenty-nine components of the
Class A-X Certificates having a Component Notional Amount equal to the then
current Lower-Tier Principal Amount of the Class LK Uncertificated Interest as
of any date of determination.
"Component L" shall mean one of the twenty-nine components of the
Class A-X Certificates having a Component Notional Amount equal to the then
current Lower-Tier Principal Amount of the Class LL Uncertificated Interest as
of any date of determination.
"Component M" shall mean one of the twenty-nine components of the
Class A-X Certificates having a Component Notional Amount equal to the then
current Lower-Tier Principal Amount of the Class LM Uncertificated Interest as
of any date of determination.
"Component N" shall mean one of the twenty-nine components of the
Class A-X Certificates having a Component Notional Amount equal to the then
current Lower-Tier Principal Amount of the Class LN Uncertificated Interest as
of any date of determination.
"Component Notional Amount" shall mean the hypothetical or notional
amount corresponding to the Lower-Tier Principal Amount on which any
Uncertificated Lower-Tier Interest accrues interest from time to time, as
calculated in accordance with the definition of the Class A-SP Strip Rate and
the Class A-X Strip Rate.
"Component O" shall mean one of the twenty-nine components of the
Class A-X Certificates having a Component Notional Amount equal to the then
current Lower-Tier Principal Amount of the Class LO Uncertificated Interest as
of any date of determination.
"Component P" shall mean one of the twenty-nine components of the
Class A-X Certificates having a Component Notional Amount equal to the then
current Lower-Tier Principal Amount of the Class LP Uncertificated Interest as
of any date of determination.
"Condemnation Proceeds" shall mean all cash amounts actually
received by the Trust or by the Master Servicers or the Special Servicers on its
behalf in connection with the taking of all or a part of a Mortgaged Property by
exercise of the power of eminent domain or condemnation, exclusive of any
portion thereof required to be released to the related Borrower or any other
third-party in accordance with applicable law and/or the terms and conditions of
the related Mortgage Loan Documents or any other applicable document.
"Confidential Offering Circular" shall mean the final Confidential
Offering Circular dated June 17, 2003, relating to certain classes of the
Non-Registered Certificates delivered by the Depositor to CSFB LLC as of the
Closing Date.
"Control Appraisal Event" shall mean (A) with respect to the 000
Xxxxx Xxxxxx Total Loan that (a) (1) the initial 000 Xxxxx Xxxxxx X Loan
principal balance minus (2) the sum of (x) any payments of principal (whether as
prepayments or otherwise) allocated to, and received on, the 000 Xxxxx Xxxxxx X
Loan, (y) any Appraisal Reduction Amounts and (z) any realized losses with
respect to the 000 Xxxxx Xxxxxx Total Loan, is less than (b) 25% of the initial
000 Xxxxx Xxxxxx X Loan principal balance, less any payments of principal
(whether as prepayments or otherwise) allocated to, and received on, the 000
Xxxxx Xxxxxx X Loan and made by the related borrower, (B) with respect to the
Washington Center Total Loan that (a)(1) the initial Washington Center C Loan
principal balance minus (2) the sum of (x) any payments of principal (whether as
Prepayments or otherwise) allocated to, and received on, the C Loan, (y) any
Appraisal Reduction Amounts and (z) any realized losses with respect to the
Washington Center Total Loan, is less than (b) 25% of the initial Washington
Center C Loan principal balance, less any payments of principal (whether as
Prepayments or otherwise) allocated to, and received on, the C Loan and made by
the related borrower and (C) with respect to the Washington Center Total Loan
that (a)(1) the initial Washington Center B Loan principal balance minus (2) the
sum of (x) any payments of principal (whether as Prepayments or otherwise)
allocated to, and received on, the Washington Center B Loan, (y) any Appraisal
Reduction Amounts allocated to the Washington Center B Loan and (z) any realized
losses with respect to the Washington Center Total Loan allocated to the
Washington Center B Loan, is less than (b) 25% of the initial Washington Center
B Loan principal balance, less any payments of principal (whether as Prepayments
or otherwise) allocated to, and received on, the Washington Center B Loan and
made by the related borrower.
"Controlling Class" shall mean, as of any date of determination, the
eligible Class of Principal Balance Certificates with the lowest payment
priority pursuant to Sections 4.01(a) and 4.01(b), that has a then outstanding
Class Principal Balance that is not less than 25% of its initial Class Principal
Balance; provided that, if no Class of Principal Balance Certificates has a
Class Principal Balance that satisfies the foregoing requirement, then the
Controlling Class shall be the eligible Class of Principal Balance Certificates
with the lowest payment priority pursuant to Sections 4.01(a) and 4.01(b), that
has a then outstanding Class Principal Balance greater than zero. For purposes
of this definition, all five (5) Classes of the Class A-P&I Certificates shall
be treated as a single Class and, if appropriate under the terms of this
definition, shall collectively constitute the Controlling Class. As of the
Closing Date, the Controlling Class shall be the Class P Certificates. With
respect to the 000 Xxxxx Xxxxxx Total Loan and the Class 622 Participation
Certificates, the Controlling Class shall be the related B Loan Holder until a
Control Appraisal Event occurs and following such Control Appraisal Event shall
be the Class 622-C Participation Certificates, so long as such Certificates have
at least 25% of their initial Certificate Principal Balance outstanding (net of
any Appraisal Reduction Amount related to the 000 Xxxxx Xxxxxx Total Loan) and
then shall be the Class 622-B and Class 622-C Participation Certificates,
respectively, so long as such Certificates have at least 25% of their initial
Certificate Principal Balance outstanding (net of any Appraisal Reduction Amount
related to the 000 Xxxxx Xxxxxx Loan). If none of the Class 622 Participation
Certificates have 25% of their initial Certificate Principal Balance outstanding
(net of any Appraisal Reduction Amount related to the 000 Xxxxx Xxxxxx Loan),
the Controlling Class with respect to the 000 Xxxxx Xxxxxx Loan shall be the
Controlling Class for the Regular Certificates. With respect to the Washington
Center Total Loan, the Controlling Class shall be the related C Loan Holder
until a Control Appraisal Event that relates to the related C Loan occurs and
following such Control Appraisal Event shall be the related B Loan Holder and if
a Control Appraisal Event occurs that relates to the related B Loan then the
Controlling Class shall be the most subordinate Class of Principal Balance
Certificates, so long as such Certificates have at least 25% of their initial
Certificate Principal Balance outstanding (net of any Appraisal Reduction Amount
related to the 000 Xxxxx Xxxxxx Total Loan).
"Controlling Class Certificateholder" shall mean any Holder of
Certificates of the Controlling Class.
"Controlling Class Representative" shall have the meaning assigned
thereto in Section 3.23(a), and shall initially be ARCap CMBS Fund REIT, Inc.
With respect to the 000 Xxxxx Xxxxxx Total Loan and the Washington Center Total
Loan, the initial Controlling Class Representative shall be the related B Loan
Holder and the Washington Center C Loan Holder, respectively. Unless and until a
Control Appraisal Event occurs, the Class 622 Participation Certificates and the
Washington Center B Loan Holder, as the case may be, shall not have any of the
Controlling Class' rights. Upon the occurrence of a Control Appraisal Event,
with respect to the 000 Xxxxx Xxxxxx Loan, the Controlling Class Representative
of the Class 622 Participation Certificates shall be selected by the Holders of
50% of the Percentage Interests in the Controlling Class of the Class 622
Participation Certificates and, with respect to the Washington Center Loan, the
Controlling Class Representative shall be the Washington Center B Loan Holder.
"Co-op Mortgage Loan" shall mean any Mortgage Loan that, as of the
date it is first included in the Trust Fund, is secured by a Mortgage that
encumbers a residential cooperative property, as identified on the Mortgage Loan
Schedule.
"Co-op Special Servicer" shall mean NCB, in its capacity as special
servicer with respect to the Co-op Mortgage Loans and any related REO Properties
hereunder, or any successor special servicer with respect to the Co-op Mortgage
Loans and any related REO Properties appointed as provided herein.
"Co-op Trust Assets" shall mean the Co-op Mortgage Loans, any REO
Properties acquired by the Trust with respect to the Co-op Mortgage Loans and
any and all other related Trust Assets.
"Corporate Trust Office" shall mean the principal corporate trust
office of the Trustee at which at any particular time its corporate trust
business with respect to this Agreement shall be administered, which office at
the date of the execution of this Agreement is located, with respect to
Certificate transfers and surrenders, at Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx,
Xxxxxxxxxxx, Xxxxxxxxx 00000 and, for all other purposes, at Xxx Xxxxxxxxx Xxxx,
Xxxxxxxx, Xxxxxxxx 00000-0000.
"Corrected Mortgage Loan" shall mean any Mortgage Loan that had been
a Specially Serviced Mortgage Loan but as to which all Servicing Transfer Events
have ceased to exist.
"Cross-Collateralized Group" shall mean any group of Mortgage Loans
that is cross-defaulted and cross-collateralized with each other.
"Cross-Collateralized Mortgage Loan" shall mean any Mortgage Loan,
that is, by its terms, cross-defaulted and cross-collateralized with any other
Mortgage Loan. For the avoidance of doubt, no A Loan, B Loan or C Loan shall be
deemed a Cross-Collateralized Mortgage Loan under this Agreement. The Great
Lakes Crossing Mortgage Loan shall not be a Cross-Collateralized Mortgage Loan
for purposes of this Agreement.
"CSFB LLC" shall mean Credit Suisse First Boston LLC or its
successor in interest.
"Cure Event" shall mean the exercise by the Controlling Class
Representative of the Class 622 Participation Certificates or the 000 Xxxxx
Xxxxxx X Loan Holder or the exercise by either Washington Center Junior Holder
of the cure rights described in Section 3.28(c) or Section 3.29 (as applicable)
hereof whether for one month, or for consecutive months in the aggregate.
"Cure Payments" shall mean (A) with respect to the 000 Xxxxx Xxxxxx
Loan, payments made by the Controlling Class Representative of the Class 622
Participation Certificates or of the 000 Xxxxx Xxxxxx X Loan Holder pursuant to
the 000 Xxxxx Xxxxxx Intercreditor Agreement, which payments shall consist
(without duplication) of all actual costs, expenses, losses, obligations,
damages, penalties, and disbursements imposed on or incurred by (whether or not
yet paid) the 000 Xxxxx Xxxxxx Loan (including, without limitation, all
unreimbursed Advances (without regard to whether such Advance would be a
non-recoverable advance) and any interest charged thereon, Default Charges and
any unpaid Servicing Fees with respect to the 000 Xxxxx Xxxxxx Total Loan)
during the period of time from the expiration of the grace period under the 000
Xxxxx Xxxxxx Total Loan until such Cure Payment is made or such other cure is
otherwise effected and (B) with respect to the Washington Center Loan, payments
made by either Washington Center Junior Holder or the mezzanine lender pursuant
to the Washington Center Intercreditor Agreement or the mezzanine intercreditor
agreement, respectively, which payments shall consist (without duplication) of
all actual costs, expenses, losses, obligations, damages, penalties, and
disbursements imposed on or incurred by (whether or not yet paid) the Washington
Center Loan (including, without limitation, all unreimbursed Advances (without
regard to whether such Advance would be a non-recoverable advance) and any
interest charged thereon, Default Charges and any unpaid Servicing Fees with
respect to the Washington Center Total Loan) during the period of time from the
expiration of the grace period under the Washington Center Loan until such Cure
Payment is made or such other cure is otherwise effected.
"Custodian" shall mean a Person who is at any time appointed by the
Trustee pursuant to Section 8.11 as a document custodian for the Mortgage Files.
"Cut-off Date" shall mean, individually and collectively, the
respective Due Dates for the Original Mortgage Loans in June 2003.
"Cut-off Date Principal Balance" shall mean, with respect to any
Original Mortgage Loan, the outstanding principal balance of such Mortgage Loan
as of its Due Date in June 2003, after application of all payments of principal
due on or before such date, whether or not received.
"Default Charges" shall mean Default Interest and/or late payment
charges that are paid or payable, as the context may require, in respect of any
Mortgage Loan or REO Mortgage Loan.
"Default Interest" shall mean, with respect to any Mortgage Loan (or
successor REO Mortgage Loan), any amounts collected thereon, other than late
payment charges, Prepayment Premiums or Yield Maintenance Charges, that
represent interest (other than, if applicable, Post-ARD Additional Interest) in
excess of interest accrued on the principal balance of such Mortgage Loan (or
REO Mortgage Loan) at the related Mortgage Rate, such excess interest arising
out of a default under such Mortgage Loan; provided that, in the case of the
Great Lakes Crossing Mortgage Loan or any Great Lakes Crossing REO Property,
"Default Interest" shall be limited to only such amounts of the type described
above in this definition as are remitted to the Master Servicer on behalf of the
Trust under the Great Lakes Crossing Servicing Agreement or, if Article XII is
in effect, as are transferred from the Great Lakes Crossing Custodial Account to
the Collection Account pursuant to Section 12.04(b).
"Defaulting Party" shall have the meaning assigned thereto in
Section 7.01(b).
"Defective Mortgage Loan" shall mean any Mortgage Loan as to which
there exists a Material Breach or a Material Document Defect that has not been
cured in all material respects.
"Definitive Certificate" shall have the meaning assigned thereto in
Section 5.03(a).
"Deleted Mortgage Loan" shall mean a Defective Mortgage Loan that is
purchased or repurchased, as the case may be, from the Trust or replaced with
one or more Replacement Mortgage Loans, in either case as contemplated by
Section 2.03.
"Depositor" shall have the meaning assigned thereto in the
Preliminary Statement to this Agreement.
"Depository" shall mean The Depository Trust Company, or any
successor depository hereafter named as contemplated by Section 5.03(c). The
nominee of the initial Depository for purposes of registering those Certificates
that are to be Book-Entry Certificates, is Cede & Co. The Depository shall at
all times be a "clearing corporation" as defined in Section 8-102(3) of the
Uniform Commercial Code of the State of New York and a "clearing agency"
registered pursuant to the provisions of Section 17A of the Exchange Act.
"Depository Participant" shall mean 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.
"Designated Sub-Servicer" shall mean Midland Loan Services, Inc.,
any Sub-Servicer set forth on Exhibit L hereto and any successor to Midland Loan
Services, Inc. or any such other Sub-Servicer set forth on Exhibit L under the
related Designated Sub-Servicer Agreement.
"Designated Sub-Servicer Agreement" shall mean any Sub-Servicing
Agreement between a Designated Sub-Servicer and a Master Servicer.
"Determination Date" shall mean, with respect to any calendar month,
commencing in June 2003, the 11th day of such calendar month (or, if such 11th
day is not a Business Day, the next succeeding Business Day). Each Determination
Date will relate to the Distribution Date in the same calendar month.
"Directly Operate" shall mean, with respect to any REO Property, the
furnishing or rendering of services to the tenants thereof, the management or
operation of such REO Property, the holding of such REO Property primarily for
sale to customers (other than the sale of REO Property pursuant to Section
3.18), the performance of any construction work thereon or any use of such REO
Property in a trade or business conducted by the Trust other than through an
Independent Contractor; provided, however, that the applicable Special Servicer
(or any Sub-Servicer on behalf of the applicable Special Servicer) shall not be
considered to Directly Operate an REO Property solely because the applicable
Special Servicer (or any Sub-Servicer on behalf of the applicable Special
Servicer) establishes rental terms, chooses tenants, enters into or renews
leases, deals with taxes and insurance, or makes decisions as to repairs or
capital expenditures with respect to such REO Property.
"Discount Rate" shall have the meaning assigned thereto in Section
4.01(d).
"Disqualified Non-United States Tax Person" shall mean, with respect
to any Class R or Class LR Certificate, any Non-United States Tax Person or
agent thereof other than: (1) a Non-United States Tax Person that (a) holds such
Class R or Class LR Certificate and, for purposes of Treasury Regulations
Section 1.860G-3(a)(3), is subject to tax under Section 882 of the Code, (b)
certifies that it understands that, for purposes of Treasury Regulations Section
1.860E-1(c)(4)(ii), as a holder of such Class R or Class LR Certificate for
United States federal income tax purposes, it may incur tax liabilities in
excess of any cash flows generated by such Class R or Class LR Certificate and
intends to pay taxes associated with holding such Class R or Class LR
Certificate, and (c) has furnished the Transferor and the Trustee with an
effective IRS Form W-8ECI or successor form and has agreed to update such form
as required under the applicable Treasury regulations; or (2) a Non-United
States Tax Person that has delivered to the Transferor, the Trustee and the
Certificate Registrar an opinion of nationally recognized tax counsel to the
effect that (x) the Transfer of such Class R or Class LR Certificate to it is in
accordance with the requirements of the Code and the regulations promulgated
thereunder and (y) such Transfer of such Class R or Class LR Certificate will
not be disregarded for United States federal income tax purposes.
"Disqualified Organization" shall mean 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 Xxxxxxx Mac, a majority of its board of directors is not
selected by any such governmental unit), (ii) a foreign government,
international organization, or any agency or instrumentality of either of the
foregoing, (iii) any organization (except certain farmers' cooperatives
described in Section 521 of the Code) which is exempt from the tax imposed by
Chapter 1 of the Code (unless such organization is subject to the tax imposed by
Section 511 of the Code on unrelated business taxable income), (iv) rural
electric and telephone cooperatives described in Section 1381 of the Code or (v)
any other Person so designated by the Trustee, based upon an Opinion of Counsel
delivered to the Trustee to the effect that the holding of an Ownership Interest
in a Class R or Class LR Certificate by such Person may cause the Trust or any
Person having an Ownership Interest in any Class of Certificates, other than
such Person, to incur a liability for any federal tax imposed under the Code
that would not otherwise be imposed but for the Transfer of an Ownership
Interest in a Class R or Class LR 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.
"Distribution Account" shall mean collectively, the Upper-Tier
Distribution Account, the Lower-Tier Distribution Account, the 000 Xxxxx Xxxxxx
Loan REMIC Distribution Account and the Post-ARD Additional Interest
Distribution Account, which may be sub-accounts of a single account.
"Distribution Date" shall mean, with respect to any calendar month,
commencing in July 2003, the fourth Business Day following the Determination
Date in such calendar month.
"Document Defect" shall mean, with respect to any Mortgage Loan,
that any document required to be part of the related Mortgage File has not been
properly executed, is missing, contains information that does not conform in any
material respect with the corresponding information set forth in the Mortgage
Loan Schedule (and the terms of such document have not been modified by written
instrument contained in the related Mortgage File), or does not appear to be
regular on its face.
"Due Date" shall mean with respect to any Mortgage Loan (and any
successor REO Mortgage Loan), the day of the month set forth in the related
Mortgage Note on which each Monthly Payment on such Mortgage Loan is first
scheduled to be due (without regard to any applicable grace period).
"Earn-Out Reserve Funds" shall mean Reserve Funds as to which any
release thereof to the related Borrower is tied to conditions relating to the
economic performance, value and/or occupancy of the subject Mortgaged Property.
"XXXXX" shall mean the Electronic Data Gathering, Analysis, and
Retrieval System of the Commission, which is the computer system for the
receipt, acceptance, review and dissemination of documents submitted to the
Commission in electronic format.
"Eligible Account" shall mean any of (i) an account maintained with
a federal or state chartered depository institution or trust company, the
long-term deposit or long-term unsecured debt obligations of which are rated no
less than "Aa3" by Xxxxx'x and "AA" by S&P and Fitch (if the deposits are to be
held in the account for more than 30 days), or the short-term deposit or
short-term unsecured debt obligations of which are rated no less than "P-1" by
Xxxxx'x and "A-1+" by S&P and "F-1+" by Fitch (if the deposits are to be held in
the account for 30 days or less), in any event at any time funds are on deposit
therein, (ii) a segregated trust account maintained with a federal or state
chartered depository institution or trust company acting in its fiduciary
capacity, which, in the case of a state chartered depository institution or
trust company is subject to regulations regarding fiduciary funds on deposit
therein substantially similar to 12 CFR ss. 9.10(b), and which, in either case,
has a combined capital and surplus of at least $50,000,000 and is subject to
supervision or examination by federal or state authority, (iii) an account or
accounts maintained with KeyBank so long as KeyBank's long-term unsecured debt
rating shall be at xxxxx "X0" from Xxxxx'x and "A" from S&P and Fitch and
KeyBank's short-term deposit or short-term unsecured debt rating shall be at
least "P-1" from Xxxxx'x, "A-1" from S&P and "F-1" from Fitch, (iv) an account
or accounts maintained with PNC so long as PNC's long-term unsecured debt rating
shall be at least "A" from S&P and Fitch and "A1" from Xxxxx'x and PNC's
short-term deposit or short-term unsecured debt rating shall be at least "P-1"
from Xxxxx'x, "A-1" from S&P and "F-1" from Fitch, (v) in the case of Reserve
Accounts and Servicing Accounts with respect to NCBFSB Serviced Mortgage Loans,
any account maintained with NCBFSB (provided that NCBFSB has a combined capital
and surplus of at least $40,000,000 and, with respect to any such Reserve
Account or Servicing Account that has a balance in excess of $500,000, has
obtained and maintains in favor of the affected Borrower(s) a standby letter of
credit from the Federal Home Loan Bank in an amount equal to the portion of such
balance that is not covered by FDIC insurance), and (vi) any other account that
is acceptable to the Rating Agencies (as evidenced by written confirmation to
the Trustee from each Rating Agency that the use of such account would not, in
and of itself, result in an Adverse Rating Event with respect to any Class of
Rated Certificates).
"Environmental Insurance Policy" shall mean, with respect to any
Mortgaged Property (other than the Great Lakes Crossing Mortgaged Property) or
REO Property, any insurance policy covering pollution conditions and/or other
environmental conditions that is maintained from time to time in respect of such
Mortgaged Property or REO Property, as the case may be, for the benefit of,
among others, the Trustee on behalf of the Certificateholders.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended.
"Escrow Payment" shall mean any payment received by a Master
Servicer or Special Servicer for the account of any Borrower for application
toward the payment of real estate taxes, assessments, insurance premiums
(including with respect to any Environmental Insurance Policy), ground rents (if
applicable) and similar items in respect of the related Mortgaged Property.
"Euroclear Operator" means Euroclear Bank S.A./N.V., as operator of
the Euroclear system, or any successor.
"Eurohypo Mortgage Loan" shall mean any Mortgage Loan that is either
an Original Eurohypo Mortgage Loan or a Replacement Mortgage Loan that was
delivered under the Eurohypo Mortgage Loan Purchase Agreement in substitution
for an Original Eurohypo Mortgage Loan.
"Eurohypo Mortgage Loan Purchase Agreement" shall have the meaning
assigned thereto in the Preliminary Statement to this Agreement.
"Event of Default" shall have the meaning assigned thereto in
Section 7.01(a).
"Excess Liquidation Proceeds" shall mean, subject to Section
3.04(d), the excess, if any, of (a) the Net Liquidation Proceeds from the sale
or liquidation of a Specially Serviced Mortgage Loan or REO Property, over (b)
the sum of (i) the amount needed to pay all principal, interest (including
Additional Interest (if applicable) and Default Interest), Prepayment Premiums
or Yield Maintenance Charges (as applicable) and late payment charges payable
with respect to such Mortgage Loan or related REO Mortgage Loan in full (or if
such amount relates to an A/B Loan Pair, the amount needed to pay off such A/B
Loan Pair in full), (ii) any other fees that would constitute Additional Master
Servicing Compensation and/or Additional Special Servicing Compensation, (iii)
any related unreimbursed Servicing Advances, (iv) all unpaid Advance Interest on
any related Advances, and (v) any related Liquidation Fee and/or Special
Servicing Fees paid or payable in respect of such Mortgage Loan or the related
REO Mortgage Loan and (vi) any other Additional Trust Fund Expenses paid or
payable in respect of such Mortgage Loan or REO Property.
"Excess Liquidation Proceeds Account" shall mean, subject to Section
3.04(d), the segregated account created and maintained by the Trustee pursuant
to Section 3.04(d) in trust for the Certificateholders, which shall be entitled
"Xxxxx Fargo Bank Minnesota, N.A., as Trustee, in trust for the registered
holders of Credit Suisse First Boston Mortgage Securities Corp., Commercial
Mortgage Pass-Through Certificates, Series 2003-C3, Excess Liquidation Proceeds
Account." Any such account shall be an Eligible Account and shall be an asset of
the Lower-Tier REMIC.
"Excess Servicing Fees" shall mean, with respect to each Mortgage
Loan (and successor REO Mortgage Loan), that portion of the Master Servicing
Fees that accrue at a per annum rate equal to the Excess Servicing Fee Rate.
"Excess Servicing Fee Rate" shall mean, with respect to each
Mortgage Loan (and successor REO Mortgage Loan), initially a rate per annum
equal to the related Master Servicing Fee Rate, minus the sum of 1.0 basis point
and the per annum rate applicable to any related primary servicing fee payable
to a Designated Sub-Servicer; provided that such Excess Servicing Fee Rate shall
be subject to reduction at any time following any resignation of the applicable
Master Servicer pursuant to Section 6.04 (if no successor is appointed in
accordance with Section 6.04(b)) or any termination of the applicable Master
Servicer pursuant to Section 7.01, to the extent reasonably necessary (as
determined by the Trustee) for the Trustee to appoint a qualified successor to
such Master Servicer (which successor may include the Trustee) that meets the
requirements of Section 7.02 and that requires market rate master servicing
compensation (exclusive of any related primary servicing fee payable to a
Designated Sub Servicer) that accrues at a per annum rate in excess of 1.0 basis
point.
"Excess Servicing Fee Right" shall mean, with respect to each
Mortgage Loan (and successor REO Mortgage Loan), the right to receive Excess
Servicing Fees.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Exchange Act Report" shall mean all Current Reports on Form 8-K and
Annual Reports on Form 10-K that are to be filed with the Commission with
respect to the Trust as contemplated by Section 8.14.
"Exchange Act Reporting Period" shall mean the period from and
including the Closing Date to and including December 31, 2003, as well as any
other fiscal year for the Trust if as of the commencement of such fiscal year
the Public Certificates are held (directly or, in the case of Public
Certificates held in book-entry form, through the Depository) by at least 300
Holders and/or Depository Participants having accounts with the Depository.
"Exemption-Favored Party" shall mean, with respect to any Class of
Certificates (other than the Class R, Class LR, Class V and Class A-Y
Certificates) that is investment grade rated by at least one Rating Agency, any
of (i) CSFB LLC, (ii) any Person directly or indirectly, through one or more
intermediaries, controlling, controlled by or under common control with CSFB
LLC, and (iii) any member of any underwriting syndicate or selling group of
which any Person described in clauses (i) and (ii) is a manager or co-manager
with respect to such Class of Certificates.
"Fair Value" shall mean, with respect to any Specially Designated
Defaulted Mortgage Loan, the amount that, in the applicable Special Servicer's
reasonable judgment, taking into account the factors set forth in the first
sentence of the second paragraph of Section 3.18(b) and such other factors as
the applicable Special Servicer reasonably deems appropriate, is the fair value
of such Mortgage Loan.
"Xxxxxx Xxx" shall mean the Federal National Mortgage Association or
any successor.
"FDIC" shall mean the Federal Deposit Insurance Corporation or any
successor.
"Final Distribution Date" shall mean the final Distribution Date on
which any distributions are to be made on the Certificates as contemplated by
Section 9.01.
"Final Recovery Determination" shall mean a determination made by
the applicable Special Servicer (or, in the case of the Great Lakes Crossing
Mortgage Loan or the Great Lakes Crossing REO Property, by the Master Servicer),
in its reasonable judgment, with respect to any Specially Serviced Mortgage Loan
or REO Property (other than a Mortgage Loan that is paid in full and other than
a Mortgage Loan or REO Property, as the case may be, that is repurchased or
replaced by a Mortgage Loan Seller pursuant to the related Mortgage Loan
Purchase Agreement, purchased or replaced by the Column Performance Guarantor
pursuant to the Column Performance Guarantee or purchased by a Master Servicer,
a Special Servicer and/or any Controlling Class Certificateholder(s) pursuant to
Section 9.01 or otherwise acquired by the Sole Certificateholder(s) in exchange
for all the Certificates pursuant to Section 9.01), that there has been a
recovery of all related Insurance Proceeds, Condemnation Proceeds, Liquidation
Proceeds and other payments or recoveries that will ultimately be recoverable.
"Fiscal Agent" shall mean a Person who is at any time appointed by
the Trustee pursuant to Section 8.13 to act as fiscal agent hereunder.
"Fiscal Agent Agreement" shall have the meaning assigned thereto in
Section 8.13.
"Fitch" shall mean Fitch, Inc. and its successors in interest.
"Xxxxxxx Mac" shall mean the Federal Home Loan Mortgage Corporation
or any successor.
"GAAP" shall mean generally accepted accounting principles in the
United States.
"General Master Servicer" shall mean KRECM, in its capacity as
master servicer with respect to the Mortgage Pool (exclusive of the NCBFSB
Serviced Mortgage Loans) and any related REO Properties hereunder, or any
successor master servicer with respect to the Mortgage Pool (exclusive of the
NCBFSB Serviced Mortgage Loans) and any related REO Properties appointed as
provided herein.
"General Mortgage Loan" shall mean any Mortgage Loan that is not an
NCBFSB Serviced Mortgage Loan.
"General Special Servicer" shall mean ARCap, in its capacity as
special servicer with respect to the Mortgage Pool (exclusive of the Co-op
Mortgage Loans) and any related REO Properties hereunder, or any successor
special servicer with respect to the Mortgage Pool (exclusive of the Co-op
Mortgage Loans) and any related REO Properties appointed as provided herein.
"Grantor Trust" shall mean the grantor trust, as defined under
subpart E of Part 1 of subchapter J of the Code, formed under Section 2.11
hereof to hold the Post-ARD Additional Interest and the Post-ARD Additional
Interest Distribution Account for the benefit of the Class V Certificates.
"Great Lakes Crossing Change of Servicing Control Event" shall mean
any event that, in accordance with the Great Lakes Crossing Intercreditor
Agreement, would result in the Great Lakes Crossing Total Loan being serviced
under this Agreement rather than under the Series 2003-CK2 PSA.
"Great Lakes Crossing Companion Loan" shall mean the mortgage loan
secured by the same Mortgage as the Great Lakes Crossing Mortgage Loan on the
Great Lakes Crossing Mortgaged Property, which mortgage loan is pari passu in
right of payment with the Great Lakes Crossing Mortgage Loan and, as of the
Closing Date, directly backs the Credit Suisse First Boston Mortgage Securities
Corp. Series 2003-CK2 Commercial Mortgage Pass-Through Certificates.
"Great Lakes Crossing Custodial Account" shall have the meaning
assigned thereto in Section 12.04.
"Great Lakes Crossing Intercreditor Agreement" shall mean the A
Notes Intercreditor and Servicing Agreement, dated as of March 27, 2003, by and
between Column and KeyBank, as holders of the Great Lakes Crossing Companion
Loan, and Column and KeyBank, as holders of the Great Lakes Crossing Mortgage
Loan.
"Great Lakes Crossing Master Servicer" shall mean the master
servicer of the Great Lakes Crossing Total Loan under any Great Lakes Crossing
Servicing Agreement.
"Great Lakes Crossing Mortgage Loan" shall mean the Mortgage Loan
included in the Trust and secured by a Mortgage on the Great Lakes Crossing
Mortgaged Property.
"Great Lakes Crossing Mortgaged Property" shall mean the Mortgaged
Property identified on the Mortgage Loan Schedule as "Great Lakes Crossing."
"Great Lakes Crossing REO Mortgage Loan" shall mean any REO Mortgage
Loan related to the Great Lakes Crossing Mortgage Loan.
"Great Lakes Crossing REO Property" shall mean the Great Lakes
Crossing Mortgaged Property, if it is acquired on behalf of the respective
holders of the Great Lakes Crossing Total Loan at a time that the Trust is one
of those holders.
"Great Lakes Crossing Servicing Agreement" shall mean any servicing
agreement (other than this Agreement) pursuant to which the Great Lakes Crossing
Total Loan and any Great Lakes Crossing REO Property is to be serviced and/or
administered, which is, as of the Closing Date, in accordance with the Great
Lakes Crossing Intercreditor Agreement, the Series 2003-CK2 PSA.
"Great Lakes Crossing Special Servicer" shall mean the special
servicer with respect to the Great Lakes Crossing Total Loan under any Great
Lakes Crossing Servicing Agreement.
"Great Lakes Crossing Total Loan" shall mean, collectively, the
Great Lakes Crossing Mortgage Loan and the Great Lakes Crossing Companion Loan.
"Ground Lease" shall mean the ground lease pursuant to which any
Borrower holds a leasehold interest in the related Mortgaged Property, together
with any estoppels or other agreements executed and delivered by the ground
lessor in favor of the lender under the related Mortgage Loans.
"Group Environmental Insurance Policy" shall mean an Environmental
Insurance Policy that is maintained from time to time in respect of more than
one Mortgaged Property or REO Property.
"Hazardous Materials" shall mean any dangerous, toxic or hazardous
pollutants, chemicals, wastes, or substances, including 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 asbestos and asbestos-containing materials, polychlorinated biphenyls
("PCBs"), radon gas, petroleum and petroleum products, urea formaldehyde and any
substances classified as being "in inventory", "usable work in process" or
similar classification which would, if classified as unusable, be included in
the foregoing definition.
"Independent" shall mean, when used with respect to any specified
Person, any such Person who (i) is in fact independent of the Depositor, each
Mortgage Loan Seller, each Master Servicer, each Special Servicer, the Trustee,
any Fiscal Agent, the Controlling Class Representative and any and all
Affiliates thereof, (ii) does not have any direct financial interest in or any
material indirect financial interest in any of the Depositor, any Mortgage Loan
Seller, either Master Servicer, either Special Servicer, the Trustee, any Fiscal
Agent, the Controlling Class Representative or any Affiliate thereof, and (iii)
is not connected with the Depositor, any Mortgage Loan Seller, either Master
Servicer, either Special Servicer, the Trustee, any Fiscal Agent, the
Controlling Class Representative 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, any Mortgage Loan Seller, either Master Servicer,
either Special Servicer, the Trustee, any Fiscal Agent, the Controlling Class
Representative 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, such Mortgage Loan Seller, such Master Servicer, such Special
Servicer, the Trustee, such Fiscal Agent, the Controlling Class Representative
or any such Affiliate thereof, as the case may be, provided that such ownership
constitutes less than 1% of the total assets owned by such Person.
"Independent Contractor" shall mean: (a) any Person that would be an
"independent contractor" with respect to the Trust Fund within the meaning of
Section 856(d)(3) of the Code if the Trust Fund were a real estate investment
trust (except that the ownership test set forth in that section shall be
considered to be met by any Person that owns, directly or indirectly, 35% or
more of any Class of Certificates, or such other interest in any Class of
Certificates as is set forth in an Opinion of Counsel, which shall be at no
expense to the Trustee or the Trust, delivered to the Trustee), provided that
(i) the Trust does not receive or derive any income from such Person and (ii)
the relationship between such Person and the Trust is at arm's length, all
within the meaning of Treasury Regulations Section 1.856-4(b)(5); or (b) any
other Person upon receipt by the Trustee of an Opinion of Counsel, which shall
be at no expense to the Trustee or the Trust, to the effect that the taking of
any action in respect of any REO Property by such Person, subject to any
conditions therein specified, that is otherwise herein contemplated to be taken
by an Independent Contractor will not cause such REO Property to cease to
qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of
the Code, or cause any income realized in respect of such REO Property to fail
to qualify as Rents from Real Property.
"Initial LTV Co-op Basis" shall mean, with respect to any Co-op
Mortgage Loan, the related loan-to-value ratio specified on Exhibit B-5 hereto.
"Initial Pool Balance" shall mean the aggregate Cut-off Date
Principal Balance of all the Original Mortgage Loans.
"Initial Resolution Period" shall have the meaning assigned thereto
in Section 2.03(b).
"Institutional Accredited Investor" or "IAI" shall mean an
"accredited investor" as defined in any of paragraphs (1), (2), (3) and (7) of
Rule 501(a) under the Securities Act or any entity in which all of the equity
owners come within such paragraphs.
"Insurance Policy" shall mean, with respect to any Mortgage Loan or
REO Property, any hazard insurance policy, flood insurance policy, title
insurance policy, earthquake insurance policy, Environmental Insurance Policy,
business interruption insurance policy or other insurance policy that is
maintained from time to time in respect of such Mortgage Loan (or the related
Mortgaged Property) or such REO Property, as the case may be.
"Insurance Proceeds" shall mean proceeds paid under any Insurance
Policy, to the extent such proceeds actually received by the Trust or a Master
Servicer or Special Servicer on its behalf are not applied to the restoration of
the related Mortgaged Property or REO Property or released to the related
Borrower or any other third-party in accordance with applicable law and/or the
terms and conditions of the related Mortgage Loan Documents; provided that, in
the case of the Great Lakes Crossing Mortgage Loan or any Great Lakes Crossing
REO Property, "Insurance Proceeds" shall be limited to only such proceeds of the
type described above in this definition as are remitted to the Master Servicer
on behalf of the Trust under a Great Lakes Crossing Servicing Agreement or, if
Article XII is in effect, as are transferred from the Great Lakes Crossing
Custodial Account to the Collection Account pursuant to Section 12.04(b).
"Insured Environmental Event" shall have the meaning assigned
thereto in Section 3.07(c).
"Interest Accrual Basis" shall mean the basis on which interest
accrues in respect of any Mortgage Loan, any Class of Regular Certificates or
any Uncertificated Lower-Tier Interest or either 000 Xxxxx Xxxxxx Loan REMIC
Regular Interest, consisting of one of the following: (i) a 30/360 Basis; or
(ii) an Actual/360 Basis.
"Interest Accrual Period" shall mean, with respect to any Class of
Regular Certificates, Uncertificated Lower-Tier Interests or either 000 Xxxxx
Xxxxxx Loan REMIC Regular Interest, for any Distribution Date, the calendar
month immediately preceding the month in which such Distribution Date occurs.
"Interest Only Certificates" shall mean, collectively, the Class
A-X, Class A-SP and Class A-Y Certificates.
"Interest Reserve Account" shall mean, subject to Section 3.04(c),
the segregated account created and maintained by the Trustee, pursuant to
Section 3.04(c), in trust for the Certificateholders, which shall be entitled
"Xxxxx Fargo Bank Minnesota, N.A., as Trustee, in trust for the registered
holders of Credit Suisse First Boston Mortgage Securities Corp., Commercial
Mortgage Pass-Through Certificates, Series 2003-C3, Interest Reserve Account."
The Interest Reserve Account shall be an asset of the Lower-Tier REMIC or, with
respect to the 000 Xxxxx Xxxxxx Loan, the 000 Xxxxx Xxxxxx Loan REMIC.
"Interest Reserve Amount" shall mean, with respect to each Interest
Reserve Mortgage Loan and each Distribution Date that occurs during the month of
February of 2004 and each year thereafter and during the month of January of
2005 and each year thereafter that is not a leap year, an amount equal to
one-day's interest at the related Net Mortgage Rate (or, in the case of an
Interest Reserve Mortgage Loan that is, has replaced or relates to a Co-op
Mortgage Loan, at an annual rate equal to the related Net Mortgage Rate minus
the related Class A-Y Strip Rate) on the Stated Principal Balance of such
Interest Reserve Mortgage Loan as of the end of the related Collection Period
(but prior to the application of any amounts due on such Due Date), to the
extent that a Monthly Payment is received in respect thereof for such Due Date
on or before the related Master Servicer Remittance Date or a P&I Advance is
made in respect thereof for such Due Date on the related P&I Advance Date.
"Interest Reserve Mortgage Loan" shall mean any Actual/360 Mortgage
Loan (or successor REO Mortgage Loan) other than the 000 Xxxxx Xxxxxx Non-Pooled
Portion.
"Interest Shortfall Amount" shall mean, as to any Distribution Date
and any Class of Regular Certificates, the amount, if any, by which the amount
distributed on such Class on such Distribution Date in respect of interest is
less than the related Optimal Interest Distribution Amount.
"Interested Person" shall mean any party hereto, any Mortgage Loan
Seller, any Certificateholder, or any Affiliate of any such Person.
"Investment Account" shall have the meaning assigned thereto in
Section 3.06(a).
"Investment Company Act" shall mean the Investment Company Act of
1940, as amended.
"IRS" shall mean the Internal Revenue Service or any successor.
"Issue Price" shall mean, with respect to each Class of
Certificates, the "issue price" as defined in the Code and Treasury regulations
promulgated thereunder.
"KeyBank" shall have the meaning assigned thereto in the Preliminary
Statement to this Agreement.
"KeyBank Mortgage Loan" shall mean any Mortgage Loan that is either
an Original KeyBank Mortgage Loan or a Replacement Mortgage Loan that was
delivered under the KeyBank Mortgage Loan Purchase Agreement in substitution for
an Original KeyBank Mortgage Loan.
"KeyBank Mortgage Loan Purchase Agreement" shall have the meaning
assigned thereto in the Preliminary Statement to this Agreement.
"KRECM" shall have the meaning assigned thereto in the Preliminary
Statement to this Agreement.
"Late Collections" shall mean: (a) with respect to any Mortgage
Loan, all amounts received by or on behalf of the Trust thereon (including, in
the case of the Great Lakes Crossing Mortgage Loan, by the Great Lakes Crossing
Master Servicer or the Great Lakes Crossing Special Servicer) during any
Collection Period, whether as payments, Insurance Proceeds, Condemnation
Proceeds, Liquidation Proceeds or otherwise, which represent or are deemed by
the applicable Master Servicer to represent late collections of the principal
and/or interest portions of a Monthly Payment (other than a Balloon Payment) or
an Assumed Monthly Payment in respect of such Mortgage Loan due or deemed due on
a Due Date in a previous Collection Period or on a Due Date during or prior to
June 2003, and not previously recovered; and (b) with respect to any REO
Mortgage Loan, all amounts received by or on behalf of the Trust in connection
with the related REO Property (including, in the case of any Great Lakes
Crossing REO Property, by the Great Lakes Crossing Master Servicer or the Great
Lakes Crossing Special Servicer) during any Collection Period, whether as
Insurance Proceeds, Condemnation Proceeds, Liquidation Proceeds, REO Revenues or
otherwise, which represent late collections of the principal and/or interest
portions of a Monthly Payment (other than a Balloon Payment) or an Assumed
Monthly Payment in respect of the predecessor Mortgage Loan or late collections
of the principal and/or interest portions of an Assumed Monthly Payment in
respect of such REO Mortgage Loan due or deemed due on a Due Date in a previous
Collection Period, and not previously recovered. Late Collections do not include
Default Charges.
"Latest Possible Maturity Date" shall mean, with respect to any
Class of Regular Certificates, Uncertificated Lower-Tier Interests or either 000
Xxxxx Xxxxxx Loan REMIC Regular Interest, the date designated as the "latest
possible maturity date" thereof in Section 10.01(l) solely for purposes of
satisfying Treasury Regulations Section 1.860G-1(a)(4)(iii).
"Letter of Credit" shall mean, with respect to any Mortgage Loan,
any third-party letter of credit delivered by or at the direction of the
Borrower pursuant to the terms of such Mortgage Loan in lieu of the
establishment of, or deposit otherwise required to be made into, a Reserve Fund.
"Liquidation Event" shall mean: (a) 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 or replaced by a Mortgage Loan Seller pursuant
to the related Mortgage Loan Purchase Agreement or purchased or replaced by the
Column Performance Guarantor pursuant to the Column Performance Guarantee, in
each case as contemplated by Section 2.03, (iv) such Mortgage Loan is purchased
by the applicable Special Servicer, the Majority Controlling Class
Certificateholder(s) or any assignee of either of them pursuant to Section 3.18,
(v) such Mortgage Loan is purchased by a Master Servicer, a Special Servicer
and/or any Controlling Class Certificateholder(s) pursuant to Section 3.18, (vi)
in the case of any CBA A/B Loan Pair, the purchase of the related A Loan by the
related B Loan Holder pursuant to the related A/B Intercreditor Agreement, (vii)
the purchase of the 000 Xxxxx Xxxxxx Loan by the Controlling Class
Certificateholder(s) of the 000 Xxxxx Xxxxxx Total Loan pursuant to the 000
Xxxxx Xxxxxx Intercreditor Agreement, (viii) the purchase of the Washington
Center Loan by any Washington Center Junior Holder pursuant to the Washington
Center Intercreditor Agreement, (ix) the exercise by a mezzanine lender of its
purchase option under a mezzanine intercreditor agreement, or (x) such Mortgage
Loan is acquired by the Sole Certificateholder(s) in exchange for all of the
Certificates pursuant to Section 9.01; and (b) with respect to any REO Property
(and the related REO Mortgage 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 a Master Servicer, (iii) such REO Property (or, in the
case of any Great Lakes Crossing REO Property, any interest therein) is
purchased by the Master Servicer, the Special Servicer or any Controlling Class
Certificateholder(s) pursuant to Section 9.01 or (iv) such REO Property (or, in
the case of any Great Lakes Crossing REO Property, any interest therein) is
acquired by the Sole Certificateholder(s) in exchange for all of the
Certificates pursuant to Section 9.01.
"Liquidation Expenses" shall mean all customary, reasonable and
necessary "out-of-pocket" costs and expenses due and owing (but not otherwise
covered by Servicing Advances) in connection with the liquidation of any
Specially Serviced Mortgage Loan or REO Property pursuant to Section 3.09 or
Section 3.18 (including legal fees and expenses, committee or referee fees and,
if applicable, brokerage commissions and conveyance taxes.
"Liquidation Fee" shall mean the fee designated as such in, and
payable to the applicable Special Servicer in connection with certain
Liquidation Events relating to a Specially Serviced Mortgage Loan or REO
Property pursuant to, the third paragraph of Section 3.11(c).
"Liquidation Fee Rate" shall mean, with respect to each Specially
Serviced Mortgage Loan or REO Property as to which a Liquidation Fee is payable,
1.0% (100 basis points), provided that the Liquidation Fee Rate for each of the
000 Xxxxx Xxxxxx Total Loan and the Washington Center Total Loan shall be the
lesser of (A) 0.50% (50 basis points) and (B) $1,000,000.
"Liquidation Proceeds" shall mean all cash amounts (other than
Insurance Proceeds, Condemnation Proceeds and REO Revenues) actually received by
the Trust (including, in the case of the Great Lakes Crossing Mortgage Loan or
any Great Lakes Crossing REO Property, from the Great Lakes Crossing Master
Servicer or the Great Lakes Crossing Special Servicer) in connection with: (i)
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 Borrower in accordance with applicable law and/or the
terms and conditions of the related Mortgage Note and Mortgage (provided that,
in the case of the Great Lakes Crossing Mortgage Loan or any Great Lakes
Crossing REO Property, "Liquidation Proceeds" shall be limited to only such
proceeds of the type described in this clause (i) as are remitted to the Master
Servicer on behalf of the Trust under a Great Lakes Crossing Servicing Agreement
or, if Article XII is in effect, as are transferred from the Great Lakes
Crossing Custodial Account to the Collection Account pursuant to Section
12.04(b)); (ii) the realization upon any deficiency judgment obtained against a
Borrower (provided that, in the case of the Great Lakes Crossing Mortgage Loan
or any Great Lakes Crossing REO Property, "Liquidation Proceeds" shall be
limited to only such proceeds of the type described in this clause (ii) as are
remitted to the Master Servicer on behalf of the Trust under a Great Lakes
Crossing Servicing Agreement or, if Article XII is in effect, as are transferred
from the Great Lakes Crossing Custodial Account to the Collection Account
pursuant to Section 12.04(b)); (iii) the purchase of a Specially Designated
Defaulted Mortgage Loan by the applicable Special Servicer, the Majority
Controlling Class Certificateholder(s) or any assignee of either of them
pursuant to Section 3.18; (iv) the repurchase or replacement of a Mortgage Loan
by a Mortgage Loan Seller pursuant to the related Mortgage Loan Purchase
Agreement; (v) the purchase or replacement of a Mortgage Loan by the Column
Performance Guarantor pursuant to the Column Performance Guarantee; (vi) the
purchase of a Mortgage Loan or REO Property by a Master Servicer, a Special
Servicer or any Controlling Class Certificateholder(s) pursuant to Section 9.01;
(vii) the acquisition of any Mortgage Loan or REO Property by the Sole
Certificateholder(s) in exchange for all the Certificates pursuant to Section
9.01; (viii) the purchase of the 000 Xxxxx Xxxxxx Loan by the Controlling Class
Representative of the holder of the 000 Xxxxx Xxxxxx Total Loan pursuant to the
000 Xxxxx Xxxxxx Intercreditor Agreement; (ix) the purchase of the Washington
Center Loan by any Washington Center Junior Holder pursuant to the Washington
Center Intercreditor Agreement; or (x) the exercise by a mezzanine lender of its
purchase option under a mezzanine intercreditor agreement.
"LOC Cash Reserve" shall have the meaning assigned thereto in the
definition of "Mortgage File".
"Lock-Box Account" shall mean, with respect to any Mortgaged
Property, the account, if any, created pursuant to any related Mortgage Loan
Documents to receive revenues therefrom. Any Lock-Box Account shall be
beneficially owned for federal income tax purposes by the Person who is entitled
to receive the reinvestment income or gain thereon in accordance with the terms
and provisions of the related Mortgage Loan Documents and Section 3.06. The
Master Servicer shall be permitted to make withdrawals therefrom for deposit
into the appropriate Accounts.
"Lock-Box Agreement" shall mean, with respect to any Loan, the
lock-box agreement, if any, between the applicable Mortgage Loan Seller and the
related Borrower, pursuant to which the related Lock-Box Account may have been
established.
"Lower-Tier Distribution Account" shall mean the account, accounts
or sub-accounts created and maintained by the Trustee, pursuant to Section
3.04(b), in trust for the Certificateholders, which shall be entitled "Xxxxx
Fargo Bank Minnesota, N.A., as Trustee, for the benefit of Holders of Credit
Suisse First Boston Mortgage Securities Corp., Commercial Mortgage Pass-Through
Certificates, Series 0000-X0, Xxxxx-Xxxx Distribution Account." Any such account
or accounts shall be an Eligible Account or a subaccount of an Eligible Account.
"Lower-Tier Distribution Amount" shall have the meaning assigned
thereto in Section 4.01.
"Lower-Tier Principal Amount" shall mean, with respect to any Class
of Uncertificated Lower-Tier Interests, (i) on or prior to the first
Distribution Date, an amount equal to the Original Lower-Tier Principal Amount
of such Class as specified in the Preliminary Statement hereto, and (ii) as of
any date of determination after the first Distribution Date, an amount equal to
the Class Principal Balance of the Class of Related Certificates on the
Distribution Date immediately prior to such date of determination (determined
after taking into account any distributions made on such Distribution Date
pursuant to Section 4.01(a) and (b) and any Collateral Support Deficits
allocated to such Class pursuant to Section 4.04); provided that (i) with
respect to the Class A-1 Certificates, (A) the Lower-Tier Principal Amount of
the Class LA-1-1 Uncertificated Interest shall be the lesser of $14,446,000 and
the Class Principal Balance of the Class A-1 Certificates minus $112,554,000 but
not less than zero, (B) the Lower-Tier Principal Amount of the Class LA-1-2
Uncertificated Interest shall be the lesser of $79,882,000 and the Class
Principal Balance of the Class A-1 Certificates minus $32,672,000 but not less
than zero, and (C) the Lower-Tier Principal Amount of the Class LA-1-3
Uncertificated Interest shall be the lesser of $32,672,000 and the Class
Principal Balance of the Class A-1 Certificates; (ii) with respect to the Class
A-2 Certificates, (A) the Lower-Tier Principal Amount for the Class LA-2-1
Uncertificated Interest shall be the lesser of $51,303,000 and the Class
Principal Balance of the Class A-2 Certificates minus $162,697,000 but not less
than zero, (B) the Lower-Tier Principal Amount for the Class LA-2-2
Uncertificated Interest shall be the lesser of $79,545,000 and the Class
Principal Balance of the Class A-2 Certificates minus $83,152,000 but not less
than zero, (C) the Lower-Tier Principal Amount for the Class LA-2-3
Uncertificated Interest shall be the lesser of $83,152,000 and the Class
Principal Balance of the Class A-2 Certificates; (iii) with respect to the Class
A-3 Certificates, (A) the Lower-Tier Principal Amount for the Class LA-3-1
Uncertificated Interest shall be the lesser of $168,524,000 and the Class
Principal Balance of the Class A-3 Certificates minus $43,476,000 but not less
than zero and (B) the Lower-Tier Principal Amount for the Class LA-3-2
Uncertificated Interest shall be the lesser of $43,476,000 and the Class
Principal Balance of the Class A-3 Certificates; (iv) with respect to the Class
A-4 Certificates, (A) the Lower-Tier Principal Amount for the Class LA-4-1
Uncertificated Interest shall be the lesser of $22,200,000 and the Class
Principal Balance of the Class A-4 Certificates minus $32,800,000 but not less
than zero and (B) the Lower-Tier Principal Amount for the Class LA-4-2
Uncertificated Interest shall be the lesser of $32,800,000 and the Class
Principal Balance of the Class A-4 Certificates; (v) with respect to the Class
A-5 Certificates, (A) the Lower-Tier Principal Amount for the Class LA-5-1
Uncertificated Interest shall be the lesser of $133,634,000 and the Class
Principal Balance of the Class A-5 Certificates minus $728,780,000 but not less
than zero and (B) the Lower-Tier Principal Amount for the Class LA-5-2
Uncertificated Interest shall be the lesser of $728,780,000 and the Class
Principal Balance of the Class A-5 Certificates; (vi) with respect to the Class
D Certificates, (A) the Lower-Tier Principal Amount for the Class LD-1
Uncertificated Interest shall be the lesser of $4,898,000 and the Class
Principal Balance of the Class D Certificates minus $33,910,000 but not less
than zero and (B) the Lower-Tier Principal Amount for the Class LD-2
Uncertificated Interest shall be the lesser of $33,910,000 and the Class
Principal Balance of the Class D Certificates; (vii) with respect to the Class E
Certificates, (A) the Lower-Tier Principal Amount for the Class LE-1
Uncertificated Interest shall be the lesser of $5,989,000 and the Class
Principal Balance of the Class E Certificates minus $13,416,000 but not less
than zero and (B) the Lower-Tier Principal Amount for the Class LE-2
Uncertificated Interest shall be the lesser of $13,416,000 and the Class
Principal Balance of the Class E Certificates; and (viii) with respect to the
Class F Certificates, (A) the Lower-Tier Principal Amount for the Class LF-1
Uncertificated Interest shall be the lesser of $2,238,000 and the Class
Principal Balance of the Class F Certificates minus $17,166,000 but not less
than zero and (B) the Lower-Tier Principal Amount for the Class LF-2
Uncertificated Interest shall be the lesser of $17,166,000 and the Class
Principal Balance of the Class F Certificates;.
"Lower-Tier REMIC" shall mean, one of three separate REMICs
comprising the Trust Fund, the assets of which consist of the Mortgage Loans
(other than the 000 Xxxxx Xxxxxx Loan and exclusive of Post-ARD Additional
Interest), the 000 Xxxxx Xxxxxx Loan REMIC Regular Interests, any REO Property
with respect thereto (exclusive of any interest therein that a B Loan Holder or
Washington Center Junior Holder may have), such amounts with respect thereto as
shall from time to time be held in any Collection Account, the Interest Reserve
Account, any REO Account (exclusive of any such amounts that are allocable to a
B Loan or Washington Center Junior Loan), the Excess Liquidation Proceeds
Account, if any, the Lower-Tier Distribution Account, any A/B Loan Pair
Custodial Account and, except as otherwise provided in this Agreement, all other
property included in the Trust Fund (other than Post-ARD Additional Interest and
the Post-ARD Additional Interest Distribution Account) that is not in the 000
Xxxxx Xxxxxx Loan REMIC and the Upper-Tier REMIC or designated as a grantor
trust asset in the Preliminary Statement hereto.
"LTV Co-op Basis" shall mean, as of any date for any Co-op Mortgage
Loan, the fraction, expressed as a percentage, the numerator of which is the
Stated Principal Balance of such Co-op Mortgage Loan on such date, and the
denominator of which is the Appraised Value of the related Mortgaged Property.
"Majority Controlling Class Certificateholder" shall mean, as of any
date of determination, any single Holder or group of Holders of Certificates
representing a majority of the Voting Rights allocated to the Class of Principal
Balance Certificates that constitutes, or the Classes of Principal Balance
Certificates that constitute, the Controlling Class as of such date of
determination.
"Master Servicer" shall mean: (a) with respect to any Mortgage Loan
(other than an NCBFSB Serviced Mortgage Loan), any REO Property acquired by the
Trust with respect to a Mortgage Loan (other than an NCBFSB Serviced Mortgage
Loan) and any matters relating to the foregoing, the General Master Servicer;
and (b) with respect to any NCBFSB Serviced Mortgage Loan, any REO Property
acquired by the Trust with respect to an NCBFSB Serviced Mortgage Loan and any
matters relating to the foregoing, the NCBFSB Master Servicer.
"Master Servicer Remittance Amount" shall mean, with respect to
either Master Servicer for any Master Servicer Remittance Date, an amount equal
to (a) all amounts on deposit in such Master Servicer's Collection Account as of
11:00 a.m., New York City time, on such Master Servicer Remittance Date, net of
(b) any portion of the amounts described in clause (a) of this definition that
represents one or more of the following: (i) collected Monthly Payments that are
due on a Due Date following the end of the related Collection Period, (ii) any
payments of principal (including Principal Prepayments) and interest (including
Post-ARD Additional Interest), Insurance Proceeds, Condemnation Proceeds and
Liquidation Proceeds received (including, if applicable, by the Great Lakes
Crossing Master Servicer or the Great Lakes Crossing Special Servicer) by or on
behalf of the Trust after the end of the related Collection Period, (iii) any
Prepayment Premiums and/or Yield Maintenance Charges received (including, if
applicable, by the Great Lakes Crossing Master Servicer or the Great Lakes
Crossing Special Servicer) by or on behalf of the Trust after the end of the
related Collection Period, (iv) any Excess Liquidation Proceeds, (v) any amounts
payable or reimbursable to any Person from such Collection Account pursuant to
clauses (ii) through (xxiii) of Section 3.05(a), and (vi) any amounts deposited
in such Collection Account in error; provided that the Master Servicer
Remittance Amount with respect to each Master Servicer for the Master Servicer
Remittance Date that occurs in the same calendar month as the anticipated Final
Distribution Date shall be calculated without regard to clauses (b)(i), (b)(ii),
(b)(iii) and (b)(iv) of this definition.
"Master Servicer Remittance Date" shall mean the Business Day
preceding each Distribution Date.
"Master Servicing Fee" shall mean, with respect to each Mortgage
Loan and REO Mortgage Loan, the fee designated as such and payable to the
applicable Master Servicer pursuant to Section 3.11(a).
"Master Servicing Fee Rate" shall mean, with respect to each
Mortgage Loan and any successor REO Mortgage Loan, the rate per annum specified
with respect to such Mortgage Loan under the heading ["Servicing and Trustee
Fees"] in the Mortgage Loan Schedule, minus the Trustee Fee Rate.
"Material Breach" shall mean any Breach that materially and
adversely affects the value of any Mortgage Loan or the interests of the
Certificateholders, or any of them, in or with respect to such Mortgage Loan,
including a material and adverse effect on any of the payments payable with
respect to any of the Certificates or the value of any of the Certificates. In
determining whether a Breach materially and adversely affects the value of a
Mortgage Loan or the interests of the Certificateholders, or any of them, in
such Mortgage Loan, the extent to which such Breach adversely affects the value
of the related Mortgaged Property, if at all, is a factor to be considered.
"Material Document Defect" shall mean any Document Defect that
materially and adversely affects the value of any Mortgage Loan or the interests
of the Certificateholders, or any of them, in or with respect to such Mortgage
Loan, including a material and adverse effect on any of the payments payable
with respect to any of the Certificates or the value of any of the Certificates;
provided, however, that, except as set forth in the next sentence, no Document
Defect will be considered to be a Material Document Defect prior to the first
anniversary of the Closing Date, unless the document with respect to which the
subject Document Defect exists is required in connection with an imminent
enforcement of the lender's rights or remedies under the related Mortgage Loan,
defending any claim asserted by any Borrower or third party with respect to the
related Mortgage Loan, establishing the validity or priority of any lien on any
collateral securing the related Mortgage Loan or for any immediate servicing
obligation. Without limiting the generality of the foregoing, it is agreed by
all parties that the absence of a Specially Designated Mortgage Loan Document
shall be a Material Document Defect.
"MII" shall mean McDonald Investments Inc. or its successor in
interest.
"Modified Mortgage Loan" shall mean any Mortgage Loan as to which
any Servicing Transfer Event has occurred and which has been modified by the
applicable Special Servicer pursuant to Section 3.20 in a manner that:
(a) materially affects the amount of any payment of principal or
interest due thereon or the timing of when such payment is due;
(b) except as expressly contemplated by the related Mortgage Loan
Documents, results in a release of the lien of the Mortgage on any material
portion of the related Mortgaged Property without a corresponding Principal
Prepayment in an amount, or the delivery of substitute real property collateral
with a fair market value (as is), that is not less than the fair market value
(as is) of the property to be released, as determined by an Appraisal delivered
to the applicable Special Servicer (at the expense of the related Borrower and
upon which the applicable Special Servicer may conclusively rely); or
(c) in the reasonable judgment of the applicable Special Servicer,
otherwise materially impairs the security for such Mortgage Loan or materially
reduces the likelihood of timely payment of amounts due thereon.
"Monthly Interest Distribution Amount" shall mean, with respect to
any Distribution Date and any Class of Regular Certificates other than the Class
A-X, Class A-Y and Class A-SP Certificates, the amount of interest accrued for
the related Interest Accrual Period at the related Pass-Through Rate on the
Class Principal Balance of such Class as of such Distribution Date, reduced by
such Class's pro rata share (based on accrued interest) of the Net Aggregate
Prepayment Interest Shortfall. As to any Distribution Date and the Class A-X,
Class A-Y and Class A-SP Certificates, the amount of interest accrued during the
related Interest Accrual Period at the Pass-Through Rate thereof on the Class
Notional Amount thereof as of such Distribution Date, reduced by such Class's
pro rata share (based on accrued interest) of the Net Aggregate Prepayment
Interest Shortfall for such Distribution Date.
"Monthly Payment" shall mean, with respect to any Mortgage Loan as
of any Due Date, the scheduled monthly payment (or, in the case of an ARD
Mortgage Loan after its Anticipated Repayment Date, the minimum required monthly
payment) of principal and/or interest on such Mortgage Loan, including any
Balloon Payment, that is actually payable by the related Borrower 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, insolvency or similar proceeding
involving the related Borrower or by reason of a modification, waiver or
amendment granted or agreed to by the applicable Master Servicer or the
applicable Special Servicer pursuant to Section 3.20); provided that the Monthly
Payment due in respect of any ARD Mortgage Loan after its Anticipated Repayment
Date shall not include Post-ARD Additional Interest (or, in the case of the
Great Lakes Crossing Mortgage Loan, by the Great Lakes Crossing Master Servicer
or the Great Lakes Crossing Special Servicer pursuant to a Great Lakes Crossing
Servicing Agreement or by the Master Servicer or the Special Servicer pursuant
to Section 12.13).
"Moody's" shall mean Xxxxx'x Investors Service, Inc. or its
successor in interest. If neither such rating agency 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 other parties
hereto, and specific ratings of Xxxxx'x Investors Service, Inc. herein
referenced shall be deemed to refer to the equivalent ratings of the party so
designated. References herein to "applicable rating category" (other than such
references to "highest applicable rating category") shall, in the case of
Moody's, be deemed to refer to such applicable rating category of Moody's,
without regard to any plus or minus or other comparable rating qualification.
"Mortgage" shall mean, with respect to any Mortgage Loan, separately
and collectively, as the context may require, each mortgage, deed of trust, deed
to secure debt or similar document that secures the related Mortgage Note and
creates a lien on the related Mortgaged Property.
"Mortgagee" shall mean the holder of legal title to any Mortgage
Loan, together with any third parties through which such holder takes actions
with respect to such Mortgage Loan.
"Mortgage File" shall mean, (a) with respect to any Mortgage Loan
other than the Great Lakes Crossing Loan, subject to Sections 1.04 and 2.01, the
following documents on a collective basis:
(i) the original executed Mortgage Note, endorsed (either on the
face thereof or pursuant to a separate allonge) "Pay to the order of Xxxxx
Fargo Bank Minnesota, N.A., as trustee for the registered holders of
Credit Suisse First Boston Mortgage Securities Corp., Commercial Mortgage
Pass-Through Certificates, Series 2003-C3, without recourse" or in blank,
without recourse, and further showing a complete, unbroken chain of
endorsement from the originator (if such originator is other than the
related Mortgage Loan Seller); or alternatively, if the original executed
Mortgage Note has been lost, a lost note affidavit and indemnity with a
copy of such Mortgage Note;
(ii) an original or a copy of the Mortgage and of any intervening
assignments thereof that precede the assignment referred to in clause
(a)(iv) of this definition, in each case (unless the particular item has
been delivered to, but not been returned from the applicable recording
office) with evidence of recording indicated thereon or certified as to
recording by the applicable recording office;
(iii) an original or a copy of any related Assignment of Leases (if
such item is a document separate from the Mortgage) and of any intervening
assignments thereof that precede the assignment referred to in clause
(a)(v) of this definition, in each case (unless the particular item has
been delivered to, but not been returned from the applicable recording
office) with evidence of recording indicated thereon or certified as to
recording by the applicable recording office;
(iv) an original executed assignment of the Mortgage, in blank or in
favor of Xxxxx Fargo, as trustee for the registered holders of Credit
Suisse First Boston Mortgage Securities Corp., Commercial Mortgage
Pass-Through Certificates, Series 2003-C3, in recordable form (except for
any missing recording information with respect to such Mortgage);
(v) an original executed assignment of any related Assignment of
Leases (if such item is a document separate from the Mortgage), in blank
or in favor of Xxxxx Fargo, as trustee for the registered holders of
Credit Suisse First Boston Mortgage Securities Corp., Commercial Mortgage
Pass-Through Certificates, Series 2003-C3, in recordable form (except for
any missing recording information with respect to such Assignment of
Leases); (vi) originals or copies of any written assumption, modification,
written assurance and substitution agreements in those instances where the
terms or provisions of the Mortgage or Mortgage Note have been modified or
the Mortgage Loan has been assumed, in each case (unless the particular
item has not been returned from the applicable recording office) with
evidence of recording indicated thereon or certified as to recording by
the applicable recording office if the instrument being modified or
assumed is a recordable document;
(vii) the original or a copy of the policy of lender's title
insurance (or, if such policy has not yet been issued, a "marked-up" pro
forma title policy or commitment for title insurance, marked as binding
and countersigned by the title insurer or its authorized agent either on
its face or by an acknowledged closing instruction or escrow letter);
(viii) copies of any prior UCC Financing Statements in favor of the
originator of such Mortgage Loan or in favor of any assignee prior to the
Trustee showing the filing thereof (but only to the extent the related
Mortgage Loan Seller had possession of such UCC Financing Statements prior
to the Closing Date) and, if there is an effective UCC Financing Statement
in favor of the related Mortgage Loan Seller on record with the applicable
public office for UCC Financing Statements, an original UCC-2 or UCC-3, as
appropriate, assignment in form suitable for filing, in blank or in favor
of Xxxxx Fargo, as trustee for the registered holders of Credit Suisse
First Boston Mortgage Securities Corp., Commercial Mortgage Pass-Through
Certificates, Series 2003-C3;
(ix) the original or a copy of any environmental indemnity agreement
and any Environmental Insurance Policy (including a blanket policy)
relating to such Mortgage Loan;
(x) the original or a copy of any power of attorney, guaranty, loan
agreement, cash management agreement, Ground Lease and/or Ground Lease
estoppels relating to such Mortgage Loan;
(xi) any original documents (including any Letter(s) of Credit)
relating to, evidencing or constituting Additional Collateral and, if
applicable, the originals or copies of any amendments or intervening
assignments thereof;
(xii) the original or a copy of any security agreement relating to
Additional Collateral and an executed assignment thereof, if such security
agreement is separate from the Mortgage, in blank or in favor of Xxxxx
Fargo, as trustee, for the registered holders of Credit Suisse First
Boston Mortgage Securities Corp., Commercial Pass-Through Certificates,
Series 2003-C3;
(xiii) the original or a copy of any intercreditor agreement
(including any A/B Intercreditor Agreement), co-lender agreement or
similar agreement relating to such Mortgage Loan together with, if the
Mortgage Loan is an A Loan, a copy of the promissory note for the related
B Loan and C Loan; and
(xiv) if the related Mortgaged Property is a hospitality property, a
copy of any franchise agreement and any franchisor comfort letter; and
(b) with respect to the Great Lakes Crossing Mortgage Loan, the
following documents on a collective basis:
(i) the original executed Mortgage Note for such Mortgage Loan,
endorsed (either on the face thereof or pursuant to a separate allonge)
"Pay to the order of Xxxxx Fargo Bank Minnesota, N.A., as trustee for the
registered holders of Credit Suisse First Boston Mortgage Securities
Corp., Commercial Mortgage Pass-Through Certificates, Series 2003-C3,
without recourse", or in blank, without recourse and further showing a
complete, unbroken chain of endorsement from the originator (if such
originator is other than the related Mortgage Loan Seller); or,
alternatively, if the original executed Mortgage Note has been lost, a
lost note affidavit and indemnity with a copy of such Mortgage Note;
(ii) a copy of the executed Great Lakes Crossing Intercreditor
Agreement; and
(iii) a copy of a Great Lakes Crossing Servicing Agreement;
provided that whenever the term "Mortgage File" is used to refer to documents
actually received by the Trustee or by a Custodian or, if applicable, a Master
Servicer on its behalf such term shall be deemed not to include such documents
and instruments required to be included therein unless they are actually so
received; and provided, further, that the Mortgage File for any Mortgage Loan
need not include any Letter of Credit referred to in clause (a)(xi) of this
definition if, in lieu thereof, the related Mortgage Loan Seller has, on behalf
of the related Borrower, either (i) delivered to the Trustee a substitute letter
of credit, in the same amount and with the same draw conditions and renewal
rights as, and otherwise substantially similar to, that Letter of Credit and
issued by an obligor that meets any criteria in the related Mortgage Loan
Documents applicable to the issuer of that Letter of Credit or (ii) delivered to
the applicable Master Servicer a cash reserve in an amount equal to the amount
of that Letter of Credit (the "LOC Cash Reserve"), which substitute letter of
credit can be drawn on, or which LOC Cash Reserve can be applied, to cover the
same items as that Letter of Credit was intended to cover. If any B Loan is
being serviced and administered in accordance herewith, the Mortgage File for
the related A Loan shall also constitute the Mortgage File for such B Loan.
"Mortgage Loan" shall mean each of the Original Mortgage Loans
(including the 000 Xxxxx Xxxxxx Pooled Portion and the 000 Xxxxx Xxxxxx
Non-Pooled Portion, but not including Great Lakes Crossing Mortgage Loan) and
Replacement Mortgage Loans that are from time to time held in the Trust Fund,
including any such mortgage loan that has been wholly or partially defeased.
"Mortgage Loan Documents" shall mean, with respect to any Mortgage
Loan, the documents included or required to be included, as the context may
require, in the related Mortgage File and Servicing File.
"Mortgage Loan Purchase Agreement" shall mean any of the Column
Mortgage Loan Purchase Agreement, the KeyBank Mortgage Loan Purchase Agreement,
the Eurohypo Mortgage Loan Purchase Agreement, the NCBFSB Mortgage Loan Purchase
Agreement and the PNC Mortgage Loan Purchase Agreement.
"Mortgage Loan Schedule" shall mean, collectively, the five
schedules of Mortgage Loans attached hereto as Exhibit X-0X, Xxxxxxx X-0X,
Xxxxxxx X-0X, Exhibit B-1D and Exhibit B-1E, respectively, as any such schedule
may be amended from time to time in accordance with this Agreement. Such
schedules shall set forth the following information with respect to each
Mortgage Loan:
(i) the Mortgage Loan number and the Prospectus Supplement
identification number;
(ii) the street address (including city, state and zip code) of the
related Mortgaged Property;
(iii) the (A) original principal balance and (B) Cut-off Date
Principal Balance;
(iv) the amount of the Monthly Payment due on the first Due Date
following the Closing Date (and, if a Mortgage Loan currently requires
only payments of interest but begins to amortize prior to maturity, on the
first Due Date after amortization begins);
(v) the Mortgage Rate as of the Closing Date;
(vi) the original and remaining term to stated maturity;
(vii) in the case of a Balloon Mortgage Loan, the original and
remaining amortization term;
(viii) whether such Mortgage Loan is a Cross-Collateralized Mortgage
Loan and, if so, an identification of the Mortgage Loans with which such
Mortgage Loan is cross-collateralized;
(ix) whether such Mortgage Loan is a Co-op Mortgage Loan;
(x) the Anticipated Repayment Date for each ARD Mortgage Loan;
(xi) whether such Mortgage Loan provides for defeasance and if so,
the period during which defeasance may occur;
(xii) whether the Mortgage Loan is secured by a fee simple interest
in the Mortgaged Property; by the Borrower's leasehold interest, and a fee
simple interest, in the Mortgaged Property; or solely by a leasehold
interest in the Mortgaged Property;
(xiii) the name of the Mortgage Loan Seller;
(xiv) the name of the originator;
(xv) the Interest Accrual Basis;
(xvi) the Administrative Fee Rate;
(xvii) the number of grace days before such Mortgage Loan requires a
late payment charge in connection with a delinquent Monthly Payment;
(xviii) the amount of Reserve Funds and Escrow Payments;
(xix) whether such Mortgage Loan is an A Loan;
(xx) whether there exists (and, if so, the amount of) any letter of
credit that constitutes Additional Collateral;
(xxi) whether repayment of such Mortgage Loan is guaranteed by a
guarantor;
(xxii) whether the subject Mortgage Loan has a Cut-off Date
Principal Balance greater than 2% of the Initial Pool Balance; and
(xxiii) whether the related Mortgaged Property is, as of the Cut-off
Date, operated as a hospitality property.
"Mortgage Loan Sellers" shall mean, collectively, Column, KeyBank,
Eurohypo, NCBFSB and PNC.
"Mortgage Note" shall mean the original executed note evidencing the
indebtedness of a Borrower under a Mortgage Loan, together with any rider,
addendum or amendment thereto, or any renewal, substitution or replacement of
such note.
"Mortgage Pool" shall mean all of the Mortgage Loans and any
successor REO Mortgage Loans, collectively, as of any particular date of
determination. The Mortgage Pool shall not include the Great Lakes Crossing
Companion Loan.
"Mortgage Rate" shall mean, with respect to any Mortgage Loan (and
any successor REO Mortgage Loan), the annualized rate at which interest is
scheduled (in the absence of a default) to accrue on such Mortgage Loan from
time to time in accordance with the related Mortgage Note and applicable law, as
such rate may be modified in connection with a bankruptcy, insolvency or similar
proceeding involving the related Borrower or by the applicable Master Servicer
or the applicable Special Servicer in accordance with Section 3.20 (or, in the
case of the Great Lakes Crossing Mortgage Loan, by the Great Lakes Crossing
Master Servicer or the Great Lakes Crossing Special Servicer pursuant to a Great
Lakes Crossing Servicing Agreement or by the Master Servicer or Special Servicer
pursuant to Section 12.13). In the case of each of the ARD Mortgage Loans, the
related Mortgage Rate will be subject to increase in accordance with the related
Mortgage Note if the particular Mortgage Loan is not paid in full by its
Anticipated Repayment Date.
"Mortgaged Property" shall mean, individually and collectively, as
the context may require, each real property (together with all improvements and
fixtures thereon) subject to the lien of a Mortgage and constituting collateral
for a Mortgage Loan. With respect to any Cross-Collateralized Mortgage Loan, if
and when the context may require, "Mortgaged Property" shall mean, collectively,
all the mortgaged real properties (together with all improvements and fixtures
thereon) securing the relevant Cross-Collateralized Group.
"NCB" shall mean National Consumer Cooperative Bank.
"NCBFSB Master Servicer" shall mean NCBFSB, in its capacity as
master servicer with respect to the NCBFSB Serviced Mortgage Loans and any
related REO Properties hereunder, or any successor master servicer with respect
to the NCBFSB Serviced Mortgage Loans and any related REO Properties appointed
as provided herein.
"NCBFSB Serviced Mortgage Loan" shall mean any NCBFSB Mortgage Loan.
"NCBFSB Trust Assets" shall mean the NCBFSB Serviced Mortgage Loans,
any REO Properties acquired by the Trust with respect to the NCBFSB Serviced
Mortgage Loans and any and all other related Trust Assets.
"NCBFSB" shall have the meaning assigned thereto in the Preliminary
Statement to this Agreement.
"NCBFSB Mortgage Loan" shall mean any Mortgage Loan that is either
an Original NCBFSB Mortgage Loan or a Replacement Mortgage Loan that was
delivered under the NCBFSB Mortgage Loan Purchase Agreement in substitution for
an Original NCBFSB Mortgage Loan.
"NCBFSB Mortgage Loan Purchase Agreement" shall have the meaning
assigned thereto in the Preliminary Statement to this Agreement.
"NCBFSB Mortgage Loan Seller" shall mean NCB, FSB, a federal savings
bank and its successors in interest.
"NCBFSB Subordinate Debt Conditions" shall mean, with respect to a
Borrower encumbering a Mortgaged Property relating to a Co-op Mortgage Loan with
a subordinate mortgage, the following conditions: (i) each of the loans, or the
sole loan, to be secured by each such subordinate mortgage is made by NCBFSB or
any Affiliate thereof (ii) each such subordinate mortgage is expressly subject
and subordinate to the lien of the Mortgage encumbering the Mortgaged Property
in question, (iii) each such subordinate mortgage is expressly made in
compliance with the underwriting standards which NCBFSB customarily employs in
connection with making subordinate mortgages for its own mortgage loan
portfolio, (iv) as of the date of the closing of the subordinate mortgage loan
in question, the New Loan-to-Value Ratio (as defined below) does not exceed the
lesser of (A) 40% and (B) the sum of 15% plus the Initial LTV Co-op Basis for
the related Co-op Mortgage Loan, (v) NCBFSB or any Affiliate thereof that
originates the subordinate mortgage loan, executes and delivers to the Trustee a
subordination agreement with respect to such subordinate mortgage in
substantially the form of Exhibit M hereto (provided that the Trustee shall have
no responsibility for determining the sufficiency or validity thereof), (vi) if
the subordinate mortgage loan will not be a fully amortizing loan, the stated
maturity date of the subordinate mortgage loan shall be no earlier than the
maturity date of the related Co-op Mortgage Loan, (vii) the subordinate mortgage
loan shall have interest payable on a current basis, with no deferral, (viii)
the subordinate mortgage loan is made principally for the purpose of funding
capital expenditures, major repairs or reserves at or with respect to the
Mortgaged Property in question and (ix) the aggregate amount of subordinate debt
encumbering the Mortgaged Property in question does not exceed $3,500,000. For
purposes of this definition, and notwithstanding anything herein to the
contrary: " Mortgage Debt" shall mean the sum of (x) the aggregate outstanding
principal balance of all loans secured by one or more mortgages then encumbering
the Mortgaged Property in question (including the related Co-op Mortgage Loan
and any then existing subordinate mortgage loans) and (y) the principal amount
of the proposed new subordinate mortgage loan; "New Loan-to-Value Ratio" shall
mean, as of any date for any Co-op Mortgage Loan, the fraction, expressed as a
percentage, the numerator of which is the Mortgage Debt for the related
Mortgaged Property on such date, and the denominator of which is the Appraised
Value of the related Mortgaged Property; and "Appraisal" shall mean an MAI
appraisal of the applicable Mortgaged Property made, in conformance with
NCBFSB's customary underwriting requirements, not more than one year prior to
the origination date of the related Co-op Mortgage Loan and reviewed by the
NCBFSB Master Servicer.
"Net Aggregate Prepayment Interest Shortfall" shall mean, 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, Insurance Proceeds and Condemnation Proceeds on the
Mortgage Loans during the related Collection Period (or, in the case of the
Great Lakes Crossing Mortgage Loan, incurred in connection with the receipt of a
Principal Prepayment, or any other early collection of principal in the form of
Insurance Proceeds and/or Condemnation Proceeds, that is distributable to
Certificateholders on such Distribution Date), exceeds (b) the aggregate amount
of any Compensating Interest Payment remitted by the Master Servicers pursuant
to Section 3.19(a) on the Master Servicer Remittance Date related to such
Distribution Date.
"Net Assumption Application Fee" shall have the meaning assigned
thereto in Section 3.08.
"Net Assumption Fee" shall have the meaning assigned thereto in
Section 3.08.
"Net Default Charges" shall mean, with respect to any Mortgage Loan
or REO Mortgage Loan, the Default Charges referred to in clause seventh of
Section 3.26(a), which are payable to the applicable Master Servicer as
Additional Master Servicing Compensation or the applicable Special Servicer as
Additional Special Servicing Compensation.
"Net Investment Earnings" shall mean, with respect to any Investment
Account for any Collection Period, the amount, if any, by which the aggregate of
all interest and other income realized during such Collection Period in
connection with the investment of funds held in such Investment Account for the
benefit of a Master Servicer, a Special Servicer or the Trustee, as applicable,
in accordance with Section 3.06, exceeds the aggregate of all losses, if any,
incurred during such Collection Period in connection with the investment of such
funds for the benefit of such Master Servicer, such Special Servicer or the
Trustee, as applicable, in accordance with Section 3.06 (other than losses of
what would otherwise have constituted interest or other income earned on such
funds).
"Net Investment Loss" shall mean, with respect to any Investment
Account for any Collection Period, the amount by which the aggregate of all
losses, if any, incurred during such Collection Period in connection with the
investment of funds held in such Investment Account for the benefit of a Master
Servicer, a Special Servicer, the Trustee or Column, as applicable, in
accordance with Section 3.06 (other than losses of what would otherwise have
constituted interest or other income earned on such funds), exceeds the
aggregate of all interest and other income realized during such Collection
Period in connection with the investment of such funds for the benefit of such
Master Servicer, such Special Servicer, the Trustee or Column, as applicable, in
accordance with Section 3.06; provided that, in the case of any Investment
Account and any particular investment of funds in such Investment Account, Net
Investment Loss shall not include any loss with respect to such investment which
is incurred solely as a result of the insolvency of the federal or state
chartered depository institution or trust company that holds such Account, so
long as such depository institution or trust company (i) satisfied the
qualifications set forth in the definition of "Eligible Account" both at the
time such investment was made and also as of a date not more than 30 days prior
to the date of such loss and (ii) was not the Person entitled hereunder to Net
Investment Earnings from the investment of funds in such Accounts or any
Affiliate of such Person.
"Net Liquidation Proceeds" shall mean the excess, if any, of all
Liquidation Proceeds actually received by the Trust with respect to any
Specially Serviced Mortgage Loan or REO Property, over the amount of all
Liquidation Expenses incurred with respect thereto and all related Servicing
Advances reimbursable therefrom.
"Net Mortgage Pass-Through Rate" shall mean, with respect to any
Mortgage Loan (except the 000 Xxxxx Xxxxxx Loan) that provides for calculations
of interest based on a 360-day year composed of twelve months of 30 days each
for any Interest Accrual Period, the Net Mortgage Rate thereof. With respect to
any Mortgage Loan that provides for calculations of interest based on a 360-day
year and the actual number of days elapsed, (a) for any Interest Accrual Period
relating to an Interest Accrual Period beginning in any January, February,
April, June, September and November and in any December occurring in a year
immediately preceding any year that is not a leap year, the Net Mortgage Rate
thereof or (b) for any Mortgage Interest Accrual Period relating to any Interest
Accrual Period beginning in any March, May, July, August and October and in any
December occurring in a year immediately preceding a year that is a leap year,
the product of the Net Mortgage Rate thereof and a fraction whose numerator is
31 and whose denominator is 30.
"Net Mortgage Rate" shall mean, with respect to any (A) General
Mortgage Loan (or successor REO Mortgage Loan), the rate per annum equal to (a)
the related Mortgage Rate minus (b) (i) the related Administrative Fee Rate and
(ii) in the case of an ARD Mortgage Loan after its Anticipated Repayment Date,
the related Post-ARD Additional Interest Rate and (B) Co-op Mortgage Loan (or
successor REO Mortgage Loan) the rate per annum equal to the lesser of (i) the
related Mortgage Rate minus the related Administrative Fee Rate and (ii) 4.60%
per annum.
"New Lease" shall mean any lease of an REO Property entered into at
the direction of the applicable Special Servicer, including any lease renewed,
modified or extended on behalf of the Certificateholders, if the applicable
Special Servicer has the right to renegotiate the terms of such lease.
"Nonrecoverable Advance" shall mean any Nonrecoverable P&I Advance
or Nonrecoverable Servicing Advance.
"Nonrecoverable P&I Advance" shall mean, as evidenced by the
Officer's Certificate and supporting documentation contemplated by Section
4.03(c), any P&I Advance previously made or to be made in respect of any
Mortgage Loan or any REO Mortgage Loan that, as determined by the applicable
Master Servicer or, if applicable, the Trustee or any Fiscal Agent, in its
reasonable judgment, based on at least an Appraisal conducted within the twelve
months preceding any such determination, will not be ultimately recoverable from
Late Collections or any other recovery on or in respect of such Mortgage Loan.
"Nonrecoverable Servicing Advance" shall mean, as evidenced by the
Officer's Certificate and supporting documentation contemplated by Section
3.11(h), any Servicing Advance previously made or to be made in respect of a
Mortgage Loan or REO Property that, as determined by the applicable Master
Servicer, the applicable Special Servicer or, if applicable, the Trustee or any
Fiscal Agent, in its reasonable judgment, based on at least an Appraisal
conducted within the twelve months preceding any such determination, will not be
ultimately recoverable from Late Collections or any other recovery on or in
respect of such Mortgage Loan or REO Property.
"Non-Registered Certificate" shall mean any Certificate that has not
been subject to registration under the Securities Act. As of the Closing Date,
the Class A-X, Class A-SP, Class A-Y, Class F, Class G, Class H, Class J, Class
K, Class L, Class M, Class N, Class O, Class P, Class LR and Class V
Certificates and the Class 622-A, Class 622-B and Class 622-C Participation
Certificates will constitute Non-Registered Certificates.
"Non-United States Tax Person" shall mean (i) any Person other than
a United States Tax Person or (ii) a United States Tax Person with respect to
whom income on a Class R or Class LR Certificate is attributable 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 Tax Person.
"Notional Balance" shall mean, for any date of determination, the
Class A-X Notional Amount, the Class A-Y Notional Amount or the Class A-SP
Notional Amount, as applicable.
"Officer's Certificate" shall mean a certificate signed by a
Servicing Officer of a Master Servicer or a Special Servicer or a Responsible
Officer of the Trustee or any Fiscal Agent, as the case may be.
"Opinion of Counsel" shall mean a written opinion of counsel (which
counsel, in the case of any such opinion relating to the taxation of the Trust
Fund or any portion thereof or the status of the Upper-Tier REMIC, the
Lower-Tier REMIC or the 000 Xxxxx Xxxxxx Loan REMIC as a REMIC or the status of
the Grantor Trust as a grantor trust for federal income tax purposes, shall be
Independent of the Depositor, each Mortgage Loan Seller, each Master Servicer,
each Special Servicer, the Trustee and any Fiscal Agent, but which may act as
counsel to such Person) acceptable to and delivered to the addressee(s) thereof
and which Opinion of Counsel, except as provided herein, shall not be at the
expense of the Trustee.
"Optimal Interest Distribution Amount" shall mean, as to any
Distribution Date and any Class of Regular Certificates, the sum of the Monthly
Interest Distribution Amount for such Class for such Distribution Date and the
Interest Shortfall Amount for prior Distribution Dates.
"Option Period" shall have the meaning assigned thereto in Section
3.18(c).
"Option Price" shall have the meaning assigned thereto in Section
3.18(c).
"Original Column Mortgage Loans" shall have the meaning assigned
thereto in the Preliminary Statement to this Agreement.
"Original Eurohypo Mortgage Loan" shall have the meaning assigned
thereto in the Preliminary Statement to this Agreement.
"Original KeyBank Mortgage Loans" shall have the meaning assigned
thereto in the Preliminary Statement to this Agreement.
"Original Lower-Tier Principal Amount" shall mean, with respect to
any Class of Uncertificated Lower-Tier Interests, the principal amount thereof
as of the Closing Date, in each case as specified in the Preliminary Statement
hereto.
"Original Mortgage Loans" shall have the meaning assigned thereto in
the Preliminary Statement to this Agreement.
"Original NCBFSB Mortgage Loans" shall have the meaning assigned
thereto in the Preliminary Statement to this Agreement.
"Original PNC Mortgage Loans" shall have the meaning assigned
thereto in the Preliminary Statement to this Agreement.
"OTS" shall mean the Office of Thrift Supervision or any successor
thereto.
"Ownership Interest" shall mean, in the case of 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" shall mean, with respect to any Mortgage Loan or REO
Mortgage Loan, any advance made by the applicable Master Servicer, the Trustee
or any Fiscal Agent pursuant to Section 4.03.
"P&I Advance Date" shall mean the Business Day preceding each
Distribution Date.
"Pass-Through Rate" shall mean, with respect to each Class of
Certificates, the respective per annum rate listed below:
------------------------- -------------------------------------
Class A-1: Class A-1 Pass-Through Rate
------------------------- -------------------------------------
Class A-2: Class A-2 Pass-Through Rate
------------------------- -------------------------------------
Class A-3: Class A-3 Pass-Through Rate
------------------------- -------------------------------------
Class A-4: Class A-4 Pass-Through Rate
------------------------- -------------------------------------
Class A-5: Class A-5 Pass-Through Rate
------------------------- -------------------------------------
Class A-X: Class A-X Pass-Through Rate
------------------------- -------------------------------------
Class A-SP: Class A-SP Pass-Through Rate
------------------------- -------------------------------------
Class A-Y: Class A-Y Pass-Through Rate
------------------------- -------------------------------------
Class B: Class B Pass-Through Rate
------------------------- -------------------------------------
Class C: Class C Pass-Through Rate
------------------------- -------------------------------------
Class D: Class D Pass-Through Rate
------------------------- -------------------------------------
Class E: Class E Pass-Through Rate
------------------------- -------------------------------------
Class F: Class F Pass-Through Rate
------------------------- -------------------------------------
Class G: Class G Pass-Through Rate
------------------------- -------------------------------------
Class H: Class H Pass-Through Rate
------------------------- -------------------------------------
Class J: Class J Pass-Through Rate
------------------------- -------------------------------------
Class K: Class K Pass-Through Rate
------------------------- -------------------------------------
Class L: Class L Pass-Through Rate
------------------------- -------------------------------------
Class M: Class M Pass-Through Rate
------------------------- -------------------------------------
Class N: Class N Pass-Through Rate
------------------------- -------------------------------------
Class O: Class O Pass-Through Rate
------------------------- -------------------------------------
Class P: Class P Pass-Through Rate
------------------------- -------------------------------------
Class 622-A Class 622-A Pass-Through Rate
------------------------- -------------------------------------
Class 622-B Class 622-B Pass-Through Rate
------------------------- -------------------------------------
Class 622-C Class 622-C Pass-Through Rate
------------------------- -------------------------------------
Class 622-D Class 622-D Pass-Through Rate
------------------------- -------------------------------------
Class 622-E Class 622-E Pass-Through Rate
------------------------- -------------------------------------
Class 622-F Class 622-F Pass-Through Rate
------------------------- -------------------------------------
"Payments Received after Determination Date Report" shall mean the
report in the form of and containing the information provided for in Exhibit E-4
attached hereto.
"Percentage Interest" shall mean: (a) 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 Class Principal Balance or Class Notional Amount, as the case may
be, of the relevant Class as of the Closing Date; and (b) with respect to a
Class V, Class R or Class LR Certificate, the percentage interest in
distributions to be made with respect to the relevant Class, as stated on the
face of such Certificate.
"Performance Certification" shall have the meaning set forth in
Section 8.14.
"Performing Mortgage Loan" shall mean, as of any date of
determination, any Mortgage Loan as to which no Servicing Transfer Event then
exists.
"Performing Party" shall have the meaning assigned thereto in
Section 8.14.
"Permitted Investments" shall mean any one or more of the following
obligations or securities:
(i) direct obligations of, or obligations fully guaranteed as to
timely payment of principal and interest by, the United States or any
agency or instrumentality thereof, provided that each such obligation is
backed by the full faith and credit of the United States;
(ii) repurchase agreements on obligations specified in clause (i),
provided that the short-term unsecured debt obligations of the party
agreeing to repurchase such obligations are at the time of investment
rated by S&P and Fitch in the highest short-term debt rating category of
S&P and Fitch and rated by Xxxxx'x "A2" or "P-1" if such obligation has a
maturity of less than one month, "A1" and "P-1" if such obligation has a
maturity of at least one month but less than three months, "Aa3" and "P-1"
if such obligation has a maturity of at least three months but less than
six months, and "Aaa" and "P-1" if such obligation has a maturity of six
months or more;
(iii) federal funds, unsecured uncertificated certificates of
deposit, time deposits and bankers' acceptances of any bank or trust
company organized under the laws of the United States or any state
thereof, provided that the short-term unsecured debt obligations of such
bank or trust company are at the time of investment rated by S&P and Fitch
in the highest short-term debt rating category of S&P and Fitch and rated
by Xxxxx'x "A2" or "P-1" if such obligation has a maturity of less than
one month, "A1" and "P-1" if such obligation has a maturity of at least
one month but less than three months, "Aa3" and "P-1" if such obligation
has a maturity of at least three months but less than six months, and
"Aaa" and "P-1" if such obligation has a maturity of six months or more;
(iv) commercial paper of any corporation incorporated under the laws
of the United States or any state thereof (or of any corporation not so
incorporated, provided that the commercial paper is United States Dollar
denominated and amounts payable thereunder are not subject to any
withholding imposed by any non-United States jurisdiction), provided that
such commercial paper is rated by S&P and Fitch in the highest short-term
debt rating category of S&P and Fitch and rated by Xxxxx'x "A2" or "P-1"
if such obligation has a maturity of less than one month, "A1" and "P-1"
if such obligation has a maturity of at least one month but less than
three months, "Aa3" and "P-1" if such obligation has a maturity of at
least three months but less than six months, and "Aaa" and "P-1" if such
obligation has a maturity of six months or more;
(v) units of money market funds (including those managed or advised
by the Trustee or its Affiliates) which maintain a constant net asset
value, provided that such units of money market funds are rated by S&P and
Fitch in the highest short-term debt rating category of S&P and Fitch and
rated by Xxxxx'x "A2" or "P-1" if such obligation has a maturity of less
than one month, "A1" and "P-1" if such obligation has a maturity of at
least one month but less than three months, "Aa3" and "P-1" if such
obligation has a maturity of at least three months but less than six
months, and "Aaa" and "P-1" if such obligation has a maturity of six
months or more; provided, that if such units of money market funds are not
rated by Fitch, then the applicable Master Servicer, Special Servicer or
the Trustee, as applicable, shall obtain a confirmation from Fitch that an
investment in such funds will not cause a downgrade, withdrawal or
qualification of the then-current ratings of the Certificates; or
(vi) any other obligation or security that is acceptable to the
Rating Agencies and will not result in an Adverse Rating Event with
respect to any Class of Rated Certificates (as confirmed in writing to the
Trustee by each Rating Agency);
provided that (A) no investment described hereunder shall evidence either the
right to receive (1) only interest with respect to such investment or (2) a
yield to maturity greater than 120% of the yield to maturity at par of the
underlying obligations, (B) 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, (C) no investment
described hereunder may be sold prior to stated maturity if such sale would
result in a loss of principal on the instrument or a tax on "prohibited
transactions" under Section 860F of the Code and (D) no investment described
hereunder may have an "r" highlighter or other comparable qualifier attached to
its S&P rating; and provided, further, that each investment described hereunder
must have (X) a predetermined fixed amount of principal due at maturity (that
cannot vary or change), (Y) an original maturity of not more than 365 days and a
remaining maturity of not more than 30 days and (Z) except in the case of a
Permitted Investment described in clause (v) of this definition, a fixed
interest rate or an interest rate that is tied to a single interest rate index
plus a single fixed spread and moves proportionately with that index; and
provided, further, that each investment described hereunder must be a "cash flow
investment" (within the meaning of the REMIC Provisions).
"Permitted Transferee" shall mean any Transferee of a Class R or
Class LR Certificate other than either a Disqualified Organization or a
Disqualified Non-United States Tax Person; provided, however, that if a
Transferee is classified as a partnership under the Code, such Transferee shall
only be a Permitted Transferee if all of its beneficial owners are United States
Tax Persons and the governing documents of the Transferee prohibit a transfer of
any interest in the Transferee to any Non-United States Tax Person.
"Person" shall mean any individual, corporation, partnership, joint
venture, association, joint-stock company, limited liability company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Phase I Environmental Assessment" shall mean a "Phase I assessment"
as described in and meeting the criteria of the American Society for Testing and
Materials, Designation E-1527, which assessment shall, if conducted subsequent
to the Closing Date, include testing for radon (in the case of multifamily
properties), lead-based paint (in the case of multifamily properties built prior
to 1978) and asbestos (in the case of any properties built prior to 1981).
"Plan" shall mean any of those retirement plans and other employee
benefit plans, including individual retirement accounts and annuities, Xxxxx
plans and collective investment funds and separate accounts in which such plans,
accounts or arrangements are invested, including insurance company general
accounts, that are subject to ERISA or the Code or Similar Law.
"Plurality Class LR Certificateholder" shall mean, as to any taxable
year of the Lower-Tier REMIC and 000 Xxxxx Xxxxxx Loan REMIC, the Holder of
Certificates evidencing the largest Percentage Interest in the Class LR
Certificates.
"Plurality Class R Certificateholder" shall mean, as to any taxable
year of the Upper-Tier REMIC, the Holder of Certificates evidencing the largest
Percentage Interest in the Class R Certificates.
"PNC" shall mean PNC Bank, National Association.
"PNC Mortgage Loan Purchase Agreement" shall have the meaning
assigned thereto in the Preliminary Statement.
"PNC Mortgage Loan Seller" shall mean PNC Bank, National
Association, a national banking association and its successors in interest.
"PNCCM" shall mean PNC Capital Markets, Inc.
"Post-ARD Additional Interest" shall mean, with respect to any ARD
Mortgage Loan after its Anticipated Repayment Date, all interest accrued on the
principal balance of such ARD Mortgage Loan at the Post-ARD Additional Interest
Rate (the payment of which interest shall, under the terms of such Mortgage
Loan, be deferred until the principal balance of such Mortgage Loan has been
paid in full), together with all interest, if any, accrued at the related
Mortgage Rate on such deferred interest.
"Post-ARD Additional Interest Distribution Account" shall mean the
trust account, accounts or subaccount created and maintained by the Trustee,
which may be a subaccount of the Distribution Account, pursuant to Section
3.04(b), which shall be entitled "Xxxxx Fargo, as Trustee, in trust for Holders
of Credit Suisse First Boston Mortgage Securities Corp., Commercial Mortgage
Pass-Through Certificates, Series 2003-C3, Post-ARD Additional Interest
Distribution Account" and which shall be an Eligible Account. The Post-ARD
Additional Interest Distribution Account shall be an asset of the Grantor Trust
and not an asset of the Lower-Tier REMIC, the Upper-Tier REMIC or the 000 Xxxxx
Xxxxxx Loan REMIC.
"Post-ARD Additional Interest Rate" shall mean, with respect to any
ARD Mortgage Loan after its Anticipated Repayment Date, the incremental increase
in the Mortgage Rate for such Mortgage Loan resulting from the passage of such
Anticipated Repayment Date.
"Prepayment Interest Excess" shall mean, with respect to any
Mortgage Loan that was subject to a Principal Prepayment in full or in part
made, or any early collection of principal in the form of Insurance Proceeds or
Condemnation Proceeds received (including, in the case of the Great Lakes
Crossing Mortgage Loan, by the Great Lakes Crossing Master Servicer or the Great
Lakes Crossing Special Servicer on behalf of the Trust), after the Due Date for
such Mortgage Loan in any Collection Period, any payment of interest (net of
related Master Servicing Fees and, further, net of any portion of such interest
that represents Default Interest or Post-ARD Additional Interest) actually
collected from the related Borrower or out of such Insurance Proceeds or
Condemnation Proceeds, as the case may be, and intended to cover the period from
and after such Due Date to, but not including, the date of prepayment
(exclusive, however, of any related Prepayment Premium or Yield Maintenance
Charge that may have been collected).
"Prepayment Interest Shortfall" shall mean with respect to any
Mortgage Loan that was subject to a Principal Prepayment in full or in part
made, or any early collection of principal in the form of Insurance Proceeds or
Condemnation Proceeds received (including, in the case of the Great Lakes
Crossing Mortgage Loan, by the Great Lakes Crossing Master Servicer or the Great
Lakes Crossing Special Servicer on behalf of the Trust), prior to the Due Date
for such Mortgage Loan in any Collection Period, the amount of interest, to the
extent not collected from the related Borrower or out of such Insurance Proceeds
or Condemnation Proceeds (without regard to any Prepayment Premium or Yield
Maintenance Charge that may have been collected), that would have accrued on the
amount of such Principal Prepayment or other early collection of principal in
the form of Insurance Proceeds or Condemnation Proceeds during the period from
the date of prepayment to, but not including, such Due Date (less the amount of
related Master Servicing Fees and, if applicable, exclusive of Default Interest
and Post-ARD Additional Interest). For the avoidance of doubt, any Prepayment
Interest Shortfall with respect to the Great Lakes Crossing Loan shall be
determined in accordance with the Series 2003-CK2 PSA.
"Prepayment Premium" shall mean, with respect to any Mortgage Loan,
any premium, fee or other additional amount paid or payable, as the context
requires, by a Borrower in connection with a Principal Prepayment on, or other
early collection of principal of, a Mortgage Loan or any successor REO Mortgage
Loan, to the extent such premium, fee or other additional amount is calculated
as a percentage of the principal amount being prepaid or as a specified amount
(other than a Yield Maintenance Minimum Amount).
"Primary Servicing Office" shall mean the office of a Master
Servicer or Special Servicer, as the context may require, that is primarily
responsible for such party's servicing obligations hereunder.
"Prime Rate" shall mean the "prime rate" published in the "Money
Rates" section of The Wall Street Journal, as such "prime rate" may change from
time to time. If The Wall Street Journal ceases to publish the "prime rate",
then the Trustee, in its sole discretion, shall select an equivalent publication
that publishes such "prime rate"; and if such "prime rate" is no longer
generally published or is limited, regulated or administered by a governmental
or quasi-governmental body, then the Trustee shall select a comparable interest
rate index. In either case, such selection shall be made by the Trustee in its
sole discretion and the Trustee shall notify the Master Servicers and the
Special Servicers in writing of its selection.
"Principal Balance Certificate" shall mean any of the Class A-1,
Class A-2, Class A-3, Class A-4, Class A-5, 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
and Class P Certificates and the Class 622-A, Class 622-B, Class 622-C, Class
622-D, Class 622-E and Class 622-F Participation Certificates.
"Principal Distribution Amount" shall mean:
(a) with respect to any Distribution Date prior to the Final
Distribution Date, an amount equal to the aggregate (without duplication) of the
following--
(i) all payments of principal (including Principal Prepayments) and,
in the case of an A Loan, the 000 Xxxxx Xxxxxx Loan or Washington Center
Loan, the principal portions of Cure Payments made by the related B Loan
Holder, the 000 Xxxxx Xxxxxx X Loan Holder or Washington Center Junior
Holder, respectively, or the principal portions of any purchase price
remitted by such B Loan Holder, 000 Xxxxx Xxxxxx X Loan Holder or
Washington Center Junior Holder, respectively, with respect to the
purchase by any such Person of the related A Loan, received by or on
behalf of the Trust with respect to the Mortgage Loans during the related
Collection Period, in each case net of any portion of the particular
payment that represents a Late Collection of principal for which a P&I
Advance was previously made for a prior Distribution Date or that
represents the principal portion of a Monthly Payment due on or before the
related Due Date in June 2003 or on a Due Date subsequent to the end of
the related Collection Period,
(ii) all scheduled payments of principal due in respect of the
Mortgage Loans for their respective Due Dates occurring during the related
Collection Period that were received by or on behalf of the Trust (other
than as part of a Principal Prepayment) prior to the related Collection
Period,
(iii) all Insurance Proceeds, Condemnation Proceeds and Liquidation
Proceeds received by or on behalf of the Trust with respect to any of the
Mortgage Loans during the related Collection Period that were identified
and applied as recoveries of principal of such Mortgage Loans in
accordance with Section 1.03, in each case net of any portion of such
proceeds that represents a Late Collection of principal due on or before
the related Due Date in June 2003 or for which a P&I Advance was
previously made for a prior Distribution Date,
(iv) all Insurance Proceeds, Condemnation Proceeds, Liquidation
Proceeds and REO Revenues received by or on behalf of the Trust in respect
of any REO Properties during the related Collection Period that were
identified and applied as recoveries of principal of the related REO
Mortgage Loans in accordance with Section 1.03, in each case net of any
portion of such proceeds and/or revenues that represents a Late Collection
of principal due on or before the related Due Date in June 2003 or for
which a P&I Advance was previously made for a prior Distribution Date;
(v) the respective principal portions of all P&I Advances made in
respect of the Mortgage Loans and any REO Mortgage Loans with respect to
such Distribution Date;
(vi) either (i) if the Great Lakes Crossing Total Loan or any Great
Lakes Crossing REO Property is then being serviced and administered
pursuant to a Great Lakes Crossing Servicing Agreement, all amounts
received by the Master Servicer on behalf of the Trust as remittances
under such Great Lakes Crossing Servicing Agreement on or with respect to
the Great Lakes Crossing Mortgage Loan or any Great Lakes Crossing REO
Mortgage Loan since the preceding Distribution Date (or, in the case of
the initial Distribution Date, since the Closing Date) that represents a
payment, advance or other recovery of principal with respect to such
Mortgage Loan or REO Mortgage Loan, as the case may be, exclusive of any
portion of such amounts that represents a Late Collection of principal due
on or before the Cut-off Date or for which a P&I Advance was previously
made under this Agreement for a prior Distribution Date, or (ii) if the
Great Lakes Crossing Total Loan or any Great Lakes Crossing REO Property
is then being serviced and administered pursuant to Article XII, the total
of all amounts described in clauses (i) through (v) above with respect to
the Great Lakes Crossing Mortgage Loan or any Great Lakes Crossing REO
Mortgage Loan (calculated as if the Great Lakes Crossing Mortgage Loan was
a Serviced Mortgage Loan or any Great Lakes Crossing REO Property was an
Administered REO Property, as applicable); provided, that if any Insurance
Proceeds, Condemnation Proceeds or Liquidation Proceeds were received
and/or a Final Recovery Determination was made with respect to any
Mortgage Loan or REO Property during the related Collection Period, then
that portion, if any, of the aggregate amount described in clause (i)
through (v) above that is specifically attributable to such Mortgage Loan
or REO Property, as the case may be, shall be reduced to not less than
zero by any Special Servicing Fees, Liquidation Fees and/or Advance
Interest with respect to such Mortgage Loan or REO Property that was paid
hereunder from a source other than Default Charges during the Collection
Period; and
(b) with respect to the Final Distribution Date, an amount equal to
the aggregate Stated Principal Balance of the entire Mortgage Pool outstanding
immediately prior to the Final Distribution Date.
The "Principal Distribution Amount" shall not include the 622
Non-Pooled Portion Principal Distribution Amount.
"Principal Prepayment" shall mean any payment of principal made by
the Borrower on a Mortgage Loan that is received (including, in the case of the
Great Lakes Crossing Mortgage Loan, by the Great Lakes Crossing Master Servicer
or the Great Lakes Crossing Special Servicer on behalf of the Trust) in advance
of its scheduled Due Date and that is not accompanied by an amount of interest
(without regard to any Prepayment Premium, Yield Maintenance Charge and/or
Post-ARD Additional Interest that may have been collected) representing
scheduled interest due on any date or dates in any month or months subsequent to
the month of prepayment; provided that "Principal Prepayment" shall not include
any such payment of principal made out of Insurance Proceeds, Condemnation
Proceeds or Liquidation Proceeds.
"Private Certificate" shall mean any Class A-X, Class A-Y, Class
A-SP, Class F, Class G, Class H, Class J, Class K, Class L, Class LR, Class M,
Class N, Class O, Class P or Class V Certificate or Class 622-A, Class 622-B or
Class 622-C Participation Certificate.
"Privileged Persons" shall mean any of the following: a party to
this Agreement, an Underwriter, a Mortgage Loan Seller, the Controlling Class
Representative, the Washington Center B Loan Holder (if not then the Controlling
Class Representative of the Washington Center Total Loan), a Rating Agency, a
designee of the Depositor, a Certificateholder and any Person who certifies to
the Trustee in the form of Exhibit K-1 hereto or Exhibit K-2 hereto, as
applicable (which form shall also be located on, and may be submitted
electronically via, the Trustee's internet website), that such Person is a
Certificate Owner, or a prospective purchaser of a Certificate or any interest
therein.
"Projected Debt Service Coverage Ratio" shall mean, with respect to
any Co-op Mortgage Loan, as of any date of determination, the Projected Net Cash
Flow for the related Mortgaged Property on an annualized basis, divided by the
annualized monthly payments for such Co-op Mortgage Loan.
"Projected Net Cash Flow" shall mean, with respect to any Mortgaged
Property that is a residential cooperative property, projected net operating
income at such Mortgaged Property, as set forth in the Appraisal obtained with
respect to such Mortgaged Property in connection with the origination of the
related Mortgage Loan (or an updated Appraisal, if required hereunder), assuming
such Mortgaged Property was operated as a rental property with rents set at
prevailing market rates taking into account the presence of existing rent
controlled or rent stabilized occupants, reduced by underwritten capital
expenditures, property operating expenses, a market-rate vacancy assumption and
projected reserves.
"Proposed Plan" shall have the meaning assigned thereto in Section
3.17(a).
"Prospectus" shall mean the Base Prospectus and the Prospectus
Supplement, together.
"Prospectus Supplement" shall mean that certain prospectus
supplement, dated June 17, 2003, relating to the Registered Certificates, that
is a supplement to the Base Prospectus.
"PTCE" shall mean Prohibited Transaction Class Exemption.
"PTE" shall mean Prohibited Transaction Exemption.
"Public Certificate" shall mean any Class A-1, Class A-2, Class A-3,
Class A-4, Class A-5, Class B, Class C, Class D or Class E Certificate.
"Purchase Option" shall have the meaning assigned thereto in Section
3.18(c).
"Purchase Price" shall mean, with respect to any Mortgage Loan (or
REO Property (or, in the case of any Great Lakes Crossing REO Property, the
Trust's interest therein)), a cash price equal to the aggregate of (a) the
outstanding principal balance of such Mortgage Loan (or the related REO Mortgage
Loan) as of the date of purchase or, in the case of the Washington Center Loan,
if the Washington Center C Loan Holder is the Person exercising the purchase
option, the outstanding principal balance of the Washington Center Loan and the
Washington Center B Loan as of the date of purchase (as such outstanding
principal balance is reduced by the principal portion of any Cure Payments made
by any B Loan Holder or Washington Center Junior Holder), (b) all accrued and
unpaid interest on such Mortgage Loan (or the related REO Mortgage Loan) at the
related Mortgage Rate (exclusive of any portion of such interest that represents
Post-ARD Additional Interest or Default Interest) to, but not including, the Due
Date occurring in the Collection Period during which the applicable purchase or
repurchase occurs, (c) all related unreimbursed Servicing Advances and all
related Advances that were previously reimbursed out of collections on other
Mortgage Loans and/or REO Properties relating to other Mortgage Loans, (d) all
accrued and unpaid Advance Interest with respect to any related Advances, and
(e) solely in the case of a purchase, repurchase or substitution, as applicable,
by a Mortgage Loan Seller pursuant to the related Mortgage Loan Purchase
Agreement or the Column Performance Guarantor pursuant to the Column Performance
Guarantee, (i) all related Special Servicing Fees, Liquidation Fees (only if
such repurchase or substitution occurs after the expiration of the applicable
Initial Resolution Period and any applicable Resolution Extension Period),
Advance Interest (to the extent not otherwise included in clause (d) of this
definition) and other related Additional Trust Fund Expenses (to the extent not
otherwise included in another clause of this definition), whether paid or then
owing, that have not been offset by Default Charges related to such Mortgage
Loan (or any successor REO Mortgage Loan) or by any Additional Master Servicing
Compensation or Additional Special Servicing Compensation related to such
Mortgage Loan (or any successor REO Mortgage Loan), and (ii) to the extent not
otherwise included in the amount described in clause (c) or clause (e)(i) of
this definition, any costs and expenses incurred by the applicable Master
Servicer, the applicable Special Servicer or the Trustee (on behalf of the
Trust) in enforcing the obligation of such Person to repurchase or replace such
Mortgage Loan or REO Property.
"Qualified Appraiser" shall mean, in connection with the appraisal
of any Mortgaged Property or REO Property, an Independent MAI-designated
appraiser with at least five years of experience in respect of the relevant
geographic location and property type.
"Qualified Institutional Buyer" or "QIB" shall mean a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act.
"Qualified Insurer" shall mean an insurance company or security or
bonding company qualified to write the related Insurance Policy in the relevant
jurisdiction.
"Qualified Mortgage" shall mean a qualified mortgage within the
meaning of Section 860G(a)(3) of the Code.
"Qualifying Substitute Mortgage Loan" shall mean, in connection with
the replacement of a Defective Mortgage Loan as contemplated by Section 2.03,
any other mortgage loan which, on the date of substitution, (i) has a principal
balance, after deduction of the principal portion of any unpaid Monthly Payment
due on or before the date of substitution, not in excess of the Stated Principal
Balance of the Defective Mortgage Loan; (ii) is accruing interest at a fixed
rate of interest at least equal to, and not more than one percentage point in
excess of, that of the Defective Mortgage Loan; (iii) has the same Due Date as,
and a grace period for delinquent Monthly Payments that is no longer than, the
Due Date and grace period, respectively, of the Defective Mortgage Loan; (iv) is
accruing interest on the same Interest Accrual Basis as the Defective Mortgage
Loan; (v) has a remaining term to stated maturity not greater than, and not more
than one year less than, that of the Defective Mortgage Loan and, in any event,
has a Stated Maturity Date not later than two years prior to the Rated Final
Distribution Date; (vi) has a then current loan-to-value ratio not higher than,
and a then current debt service coverage ratio not lower than, the loan-to-value
ratio and debt service coverage ratio, respectively, of the Defective Mortgage
Loan as of the Closing Date (provided, however, that with respect to Co-op
Mortgage Loans and corresponding Replacement Mortgage Loans, "loan-to-value
ratio" and "debt service coverage ratio" as used in this clause (vi) shall mean
LTV Co-op Basis and Projected Debt Service Coverage Ratio, respectively); (vii)
has comparable prepayment restrictions to those of the Defective Mortgage Loan;
(viii) will comply, as of the date of substitution, with all of the
representations relating to the Defective Mortgage Loan set forth in or made
pursuant to the related Mortgage Loan Purchase Agreement; (ix) has a Phase I
Environmental Assessment relating to the related Mortgaged Property in its
Servicing File, which Phase I Environmental Assessment will evidence that there
is no material adverse environmental condition or circumstance at the related
Mortgaged Property for which further remedial action may be required under
applicable law; (x) constitutes a "qualified replacement mortgage" within the
meaning of Section 860G(a)(4) of the Code (as evidenced by an Opinion of Counsel
provided by the related Mortgage Loan Seller at its expense); and (xi) is
secured by a residential cooperative property if the Defective Mortgage Loan is
a Co-op Mortgage Loan; provided, however, that if more than one mortgage loan is
to be substituted for any Defective Mortgage Loan, then all such proposed
Replacement Mortgage Loans shall, in the aggregate, satisfy the requirement
specified in clause (i) of this definition and each such proposed Replacement
Mortgage Loan shall, individually, satisfy each of the requirements specified in
clauses (ii) through (xi) of this definition; and provided, further, that no
mortgage loan shall be substituted for a Defective Mortgage Loan unless (a) such
prospective Replacement Mortgage Loan shall be acceptable to the Controlling
Class Representative (or, if there is no Controlling Class Representative then
serving, to the Holders of Certificates representing a majority of the Voting
Rights allocated to the Controlling Class), in its (or their) sole discretion,
and (b) each Rating Agency shall have confirmed in writing to the Trustee that
such substitution will not in and of itself result in an Adverse Rating Event
with respect to any Class of Rated Certificates (such written confirmation to be
obtained by the party (i.e., the related Mortgage Loan Seller or any related
Performance Guarantor) effecting the substitution). Any Qualifying Substitute
Mortgage Loan substituted for the 000 Xxxxx Xxxxxx Loan shall be an asset solely
of the 000 Xxxxx Xxxxxx Loan REMIC.
"Rated Certificate" shall mean as to each Class of Certificates,
other than the Class 622 Participation Certificates, any of the Certificates to
which a rating has been assigned by either Rating Agency at the request of the
Depositor.
"Rated Final Distribution Date" shall mean as to each Class of
Certificates other than the Class 622 Participation Certificates the
Distribution Date in May 2038.
"Rating Agency" shall mean any of Xxxxx'x, Fitch or S&P.
"Realized Loss" shall mean:
(1) with respect to each defaulted Mortgage Loan as to which a Final
Recovery Determination has been made, or with respect to any successor REO
Mortgage 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 Mortgage 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)(c) of this definition,
all unpaid interest accrued in respect of such Mortgage Loan or REO
Mortgage Loan, as the case may be, to but not including the related Due
Date in the Collection Period in which the Final Recovery Determination
was made, exclusive, however, of any portion of such unpaid interest that
constitutes Default Interest or, in the case of an ARD Mortgage Loan after
its Anticipated Repayment Date, Post-ARD Additional Interest, minus (c)
all payments and proceeds, if any, received (including, if applicable, by
the Great Lakes Crossing Master Servicer or the Great Lakes Crossing
Special Servicer on behalf of the Trust) in respect of such Mortgage Loan
or REO Mortgage Loan, as the case may be, during the Collection Period in
which such Final Recovery Determination was made that are applied as a
recovery of principal of, or interest on, such Mortgage Loan or REO
Mortgage Loan, as the case may be;
(2) with respect to each defaulted Mortgage Loan as to which any
portion of the principal or past due interest payable thereunder was
canceled in connection with a bankruptcy, insolvency or similar proceeding
involving the related Borrower or a modification, waiver or amendment of
such Mortgage Loan granted or agreed to by the applicable Master Servicer
or the applicable Special Servicer pursuant to Section 3.20 (or, in the
case of the Great Lakes Crossing Mortgage Loan, by the Great Lakes
Crossing Master Servicer or the Great Lakes Crossing Special Servicer
pursuant to a Great Lakes Crossing Servicing Agreement or by the Master
Servicer or the Special Servicer pursuant to Section 12.13), the amount of
such principal or past due interest (other than any Default Interest and,
in the case of an ARD Mortgage Loan after its Anticipated Repayment Date,
Post-ARD Additional Interest) so canceled; and
(3) with respect to each defaulted Mortgage Loan as to which the
Mortgage Rate thereon has been permanently reduced and not recaptured for
any period in connection with a bankruptcy, insolvency or similar
proceeding involving the related Borrower or a modification, waiver or
amendment of such Mortgage Loan granted or agreed to by the applicable
Master Servicer or the applicable Special Servicer pursuant to Section
3.20 (or, in the case of the Great Lakes Crossing Mortgage Loan, by the
Great Lakes Crossing Master Servicer or the Great Lakes Crossing Special
Servicer pursuant to a Great Lakes Crossing Servicing Agreement or by the
Master Servicer or the Special Servicer pursuant to Section 12.13), the
amount of any consequent reduction in the interest portion of each
successive Monthly Payment due thereon (each such Realized Loss to be
deemed to have been incurred on the Due Date for each affected Monthly
Payment).
"Record Date" shall mean, with respect to any Distribution Date, the
last Business Day of the month immediately preceding the month in which such
Distribution Date occurs.
"Reference Rate" shall mean, with respect to any Distribution Date
from and including the July 2003 Distribution Date to and including the June
2010 Distribution Date, the corresponding rate per annum set forth on Schedule I
hereto.
"Registered Certificate" shall mean any Certificate that has been
subject to registration under the Securities Act. As of the Closing Date, the
Class A-1, Class A-2, Class A-3, Class A-4, Class A-5, Class B, Class C, Class D
and Class E Certificates constitute Registered Certificates.
"Regular Certificates" shall mean any Public Certificates or Private
Certificates.
"Regulation S" shall mean Regulation S under the Securities Act.
"Regulation S Global Certificate" shall mean, with respect to any
Class of Book-Entry Non-Registered Certificates offered and sold outside of the
United States in reliance on Regulation S, a single global Certificate, or
multiple global Certificates collectively, in definitive, fully registered form
without interest coupon, each of which Certificates bears a Regulation S Legend.
"Regulation S Legend" shall mean, with respect to any Class of
Book-Entry Non-Registered Certificates offered and sold outside the United
States in reliance on Regulation S, a legend generally to the effect that such
Certificates may not be offered, sold, pledged or otherwise transferred in the
United States or to a United States Securities Person prior to the Release Date
except pursuant to an exemption from the registration requirements of the
Securities Act.
"Reimbursement Rate" shall mean the rate per annum applicable to the
accrual of Advance Interest, which rate per annum is equal to the Prime Rate.
"Related Certificates," "Related Uncertificated Lower-Tier Interest"
and "Related Components" shall mean, for the following Classes of Uncertificated
Lower-Tier Interests and Components, the related Class of Certificates set forth
below; for the following Classes of Certificates, the related Class or Classes
of Uncertificated Lower-Tier Interests and Components set forth below; and for
the following Components, the related Class of Certificates or Class of
Uncertificated Lower-Tier Interests set forth below:
Related Certificates Related Uncertificated Lower-Tier Interest Related Components
----------------------------------- -------------------------------------------- ------------------------
Class A-1 Certificate Class LA-1-1 Uncertificated Interest Component A-1-1
Class LA-1-2 Uncertificated Interest Component A-1-2
Class LA-1-3 Uncertificated Interest Component A-1-3
Class A-2 Certificate Class LA-2-1 Uncertificated Interest Component A-2-1
Class LA-2-2 Uncertificated Interest Component A-2-2
Class LA-2-3 Uncertificated Interest Component A-2-3
Class A-3 Certificate Class LA-3-1 Uncertificated Interest Component A-3-1
Class LA-3-2 Uncertificated Interest Component A-3-2
Class A-4 Certificate Class LA-4-1 Uncertificated Interest Component A-4-1
Class LA-4-2 Uncertificated Interest Component A-4-2
Class A-5 Certificate Class LA-5-1 Uncertificated Interest Component A-5-1
Class LA-5-2 Uncertificated Interest Component A-5-2
Class B Certificate Class LB Uncertificated Interest Component B
Class C Certificate Class LC Uncertificated Interest Component C
Class D Certificate Class LD-1 Uncertificated Interest Component D-1
Class LD-2 Uncertificated Interest Component D-2
Class E Certificate Class LE-1 Uncertificated Interest Component E-1
Class LE-2 Uncertificated Interest Component E-2
Class F Certificate Class LF-1 Uncertificated Interest Component F-1
Class LF-2 Uncertificated Interest Component F-2
Class G Certificate Class LG Uncertificated Interest Component G
Class H Certificate Class LH Uncertificated Interest Component H
Class J Certificate Class LJ Uncertificated Interest Component J
Class K Certificate Class LK Uncertificated Interest Component K
Class L Certificate Class LL Uncertificated Interest Component L
Class M Certificate Class LM Uncertificated Interest Component M
Class N Certificate Class LN Uncertificated Interest Component N
Class O Certificate Class LO Uncertificated Interest Component O
Class P Certificate Class LP Uncertificated Interest Component P
Class 622-A Participation Class L622-A Uncertificated Interest N/A
Certificate
Class 622-B Participation Class L622-B Uncertificated Interest N/A
Certificate
Class 622-C Participation Class L622-C Uncertificated Interest N/A
Certificate
Class 622-D Participation Class L622-D Uncertificated Interest N/A
Certificate
Class 622-E Participation Class L622-E Uncertificated Interest N/A
Certificate
Class 622-F Participation Class L622-F Uncertificated Interest N/A
Certificate
"Release Date" shall mean the date that is 40 days following the
later of (i) the Closing Date and (ii) the commencement of the initial offering
of the Non-Registered Certificates.
"Remaining Principal Distribution Amount" shall mean, as to any
Distribution Date and any Class of Subordinate Certificates, the amount, if any,
by which the Principal Distribution Amount for such Distribution Date exceeds
the aggregate amount distributed in respect of Principal Distribution Amounts on
such Distribution Date to all Classes senior to such Class.
"REMIC" shall mean a "real estate mortgage investment conduit" as
defined in Section 860D of the Code.
"REMIC Provisions" shall mean the 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" shall mean, with respect to any REO
Property, gross income of the character described in Section 856(d) of the Code.
"REO Account" shall mean a segregated custodial account or accounts
created and maintained by each Special Servicer, pursuant to Section 3.16(b), on
behalf of the Trustee in trust for the Certificateholders, and the related B
Loan Holder in connection with an A/B Loan Pair and the Washington Center Junior
Holders in connection with the Washington Center Total Loan, which shall be
entitled [name of subject Special Servicer], as Special Servicer, on behalf of
Xxxxx Fargo Bank Minnesota, N.A. [or the name of any successor Trustee], in
trust for the registered holders of Credit Suisse First Boston Mortgage
Securities Corp., Commercial Mortgage Pass Through Certificates and the related
B Loan Holder in connection with an A/B Loan Pair and Washington Center Junior
Holders in connection with the Washington Center Total Loan, Series 2003-C3, REO
Account."
"REO Acquisition" shall mean the acquisition of any REO Property
pursuant to Section 3.09.
"REO Disposition" shall mean the sale or other disposition of any
REO Property pursuant to Section 3.18.
"REO Extension" shall have the meaning assigned thereto in Section
3.16(a).
"REO Mortgage Loan" shall mean the mortgage loan deemed for purposes
hereof to be outstanding with respect to the Trust's interest in each REO
Property. Each REO Mortgage Loan shall be deemed to provide for monthly payments
of principal and/or interest equal to its Assumed Monthly 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 or the Trust's acquisition of the subject REO
Property). Each REO Mortgage Loan shall be deemed to have an initial unpaid
principal balance and Stated Principal Balance equal to the unpaid principal
balance and Stated Principal Balance, respectively, of its predecessor Mortgage
Loan as of the date of the related REO Acquisition. All Monthly Payments (other
than any Balloon Payment), Assumed Monthly 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 Mortgage Loan. In addition,
all amounts payable or reimbursable to the applicable Master Servicer, the
applicable Special Servicer, the Trustee or any Fiscal Agent in respect of the
predecessor Mortgage Loan as of the date of the related REO Acquisition,
including any unpaid or unreimbursed Servicing Fees and Advances (together with
any related unpaid Advance Interest), shall continue to be payable or
reimbursable in the same priority and manner pursuant to Section 3.05(a) to such
Master Servicer, such Special Servicer, the Trustee or any Fiscal Agent, as the
case may be, in respect of an REO Mortgage Loan.
"REO Property" shall mean a Mortgaged Property acquired by or
otherwise on behalf of the Trust for the benefit of the Certificateholders and,
if such property relates to an A/B Loan Pair, the related B Loan Holder or with
respect to the Washington Center Total Loan, the Washington Center Junior
Holders, 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" shall mean all income, rents, profits and proceeds
derived from the ownership, operation or leasing of any REO Property, other than
any Liquidation Proceeds with respect to such REO Property. With respect to an
REO Property that had been security for an A Loan, "REO Revenues" shall only
include the portion of the amounts described above received with respect to such
REO Property that are allocable to the related A Note pursuant to the related
A/B Intercreditor Agreement.
"REO Tax" shall have the meaning assigned thereto in Section
3.17(a).
"Replacement Mortgage Loan" shall mean any Qualifying Substitute
Mortgage Loan that is substituted by a Mortgage Loan Seller or the Column
Performance Guarantor for a Defective Mortgage Loan as contemplated by Section
2.03.
"Request for Release" shall mean a request signed by a Servicing
Officer of, as applicable, a Master Servicer in the form of Exhibit D-1 attached
hereto or a Special Servicer in the form of Exhibit D-2 attached hereto.
"Required Appraisal Loan" shall mean any Specially Serviced Mortgage
Loan (and any successor REO Mortgage Loan) as to which an Appraisal Trigger
Event has occurred; provided that a Mortgage Loan shall cease to be a Required
Appraisal Loan if and when, following the occurrence of the most recent
Appraisal Trigger Event with respect thereto, such Mortgage Loan has become a
Corrected Mortgage Loan.
"Reserve Account" shall mean any of the accounts established and
maintained pursuant to Section 3.03(d).
"Reserve Funds" shall mean, with respect to any Mortgage Loan, any
amounts delivered by the related Borrower to be held in escrow by or on behalf
of the mortgagee representing: (i) reserves for repairs, replacements, capital
improvements and/or environmental testing and remediation with respect to the
related Mortgaged Property; (ii) reserves for tenant improvements and leasing
commissions; (iii) reserves for debt service; or (iv) amounts to be applied as a
Principal Prepayment on such Mortgage Loan or held as Additional Collateral in
the event that certain leasing or other economic criteria in respect of the
related Mortgaged Property are not met.
"Residual Transfer Affidavit" shall have the meaning assigned
thereto in Section 5.02(d).
"Resolution Extension Period" shall have the meaning assigned
thereto in Section 2.03(b).
"Responsible Officer" shall mean: (a) when used with respect to the
Trustee, the President, the Treasurer, the Secretary, any Vice President, any
Assistant Vice President, any Trust Officer, any Assistant Secretary or any
other officer of the Trustee customarily performing functions similar to those
performed by any of the above designated officers and having direct
responsibility for the administration of this Agreement; and (b) when used with
respect to any Fiscal Agent or any Certificate Registrar (other than the
Trustee), any officer or assistant officer thereof.
"Responsible Party" shall mean: (a) in the case of a Material
Document Defect or Material Breach with respect to any Column Mortgage Loan,
each of Column and the Column Performance Guarantor; (b) in the case of a
Material Document Defect or Material Breach with respect to any KeyBank Mortgage
Loan, KeyBank; (c) in the case of a Material Document Defect or Material Breach
with respect to any Eurohypo Mortgage Loan, Eurohypo; (d) in the case of a
Material Document Defect or Material Breach with respect to any PNC Mortgage
Loan, PNC; and (e) in the case of a Material Document Defect or Material Breach
with respect to any NCBFSB Mortgage Loan, NCBFSB.
"Restricted Servicer Reports" shall mean each of the CMSA Servicer
Watch List, the CMSA Operating Statement Analysis Report, the CMSA NOI
Adjustment Worksheet, CMSA Financial File and the CMSA Comparative Financial
Status Report.
"Rule 144A Global Certificate" shall mean, with respect to any Class
of Book-Entry Non-Registered Certificates, a single global Certificate or
multiple global Certificates collectively, registered in the name of the
Depository or its nominee, in definitive, fully registered form without interest
coupons, which Certificate bears a Qualified Institutional Buyer CUSIP number
and does not bear a Regulation S Legend.
"S&P" shall mean 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 other parties hereto, and specific ratings of Standard & Poor's
Ratings Services, a division of The XxXxxx-Xxxx Companies, Inc. herein
referenced shall be deemed to refer to the equivalent ratings of the party so
designated. References herein to "applicable rating category" (other than such
references to "highest applicable rating category") shall, in the case of S&P,
be deemed to refer to such applicable rating category of S&P, without regard to
any plus or minus or other comparable rating qualification.
"Xxxxxxxx-Xxxxx Certification" shall have the meaning set forth in
Section 8.14.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Senior Certificates" shall mean, collectively, the Class X-0, Xxxxx
X-0, Class A-3, Class A-4, Class A-5, Class A-X, Class A-Y and Class A-SP
Certificates.
"Series 2003-CK2 A/B Loan Custodial Account" shall mean the "A/B
Loan Custodial Account" under the Series 2003-CK2 PSA.
"Series 2003-CK2 Appraisal Reduction Amount" shall mean an
"Appraisal Reduction Amount" under the Series 2003-CK2 PSA.
"Series 2003-CK2 Appraisal Reduction Event" shall mean an "Appraisal
Reduction Event" under the Series 2003-CK2 PSA.
"Series 2003-CK2 Assumed Scheduled Payment" shall mean an "Assumed
Scheduled Payment" under the Series 2003-CK2 PSA.
"Series 2003-CK2 Certificate" shall mean any of the Credit Suisse
First Boston Mortgage Securities Corp. Series 2003-CK2 Commercial Mortgage
Pass-Through Certificates.
"Series 2003-CK2 Certificateholder" shall mean a "Certificateholder"
under the Series 2003-CK2 PSA.
"Series 2003-CK2 Collection Account" shall mean the "Collection
Account" under the Series 2003-CK2 PSA.
"Series 2003-CK2 Companion Loan Custodial Account" shall mean the
"Great Lakes Crossing Total Mortgage Loan Custodial Account" under the Series
2003-CK2 PSA.
"Series 0000-XX0 Xxxxxxxxx" shall mean the "Depositor" under the
Series 2003-CK2 PSA.
"Series 2003-CK2 Controlling Class Representative" shall mean the
"Controlling Class Representative" under the Series 2003-CK2 PSA.
"Series 2003-CK2 Event of Default" shall mean an "Event of Default"
under the Series 2003-CK2 PSA.
"Series 2003-CK2 Fiscal Agent" shall mean the "Fiscal Agent" under
the Series 2003-CK2 PSA.
"Series 2003-CK2 Master Servicer" shall mean the "Master Servicer"
under the Series 2003-CK2 PSA.
"Series 2003-CK2 PSA" shall mean the Pooling and Servicing Agreement
dated as of April 11, 2003, between Credit Suisse First Boston Mortgage
Securities Corp. as depositor, KeyCorp Real Estate Capital Markets, Inc., as
master servicer and as special servicer, Xxxxx Fargo Bank Minnesota, N.A., as
trustee, relating to the Series 2003-CK2 Certificates, as such agreement may
from time to time be modified, amended, supplemented or restated.
"Series 2003-CK2 Rating Agency" shall mean a "Rating Agency" under
the Series 2003-CK2 PSA.
"Series 2003-CK2 Servicing Standard" shall mean the "Servicing
Standard" under the Series 2003-CK2 PSA.
"Series 2003-CK2 Servicing Transfer Event" shall mean a "Servicing
Transfer Event" under the Series 2003-CK2 PSA.
"Series 2003-CK2 Specially Serviced Mortgage Loan" shall mean a
"Specially Serviced Mortgage Loan" under the Series 2003-CK2 PSA.
"Series 2003-CK2 Trust" shall mean the "Trust" under the Series
2003-CK2 PSA.
"Series 2003-CK2 Trust Fund" shall mean the "Trust Fund" under the
Series 2003-CK2 PSA.
"Series 2003-CK2 Trustee" shall mean the "Trustee" under the Series
0000-XX0 XXX.
"Serviced Mortgage Loan" shall mean any Mortgage Loan other than the
Great Lakes Crossing Mortgage Loan.
"Servicing Account" shall mean any of the accounts established and
maintained pursuant to Section 3.03(a).
"Servicing Advances" shall mean all customary, reasonable and
necessary "out-of-pocket" costs and expenses, including reasonable attorneys'
fees and expenses, paid or to be paid, as the context requires, out of its own
funds, by the applicable Master Servicer or the applicable Special Servicer (or,
if applicable, the Trustee or any Fiscal Agent) in connection with the servicing
of a Mortgage Loan as to which a default, delinquency or other unanticipated
event has occurred or is imminent, in connection with the administration of any
REO Property or any other expenditure that is expressly designated as a
Servicing Advance herein, including (1) any such costs and expenses associated
with (a) compliance with the obligations of the applicable Master Servicer
and/or the applicable Special Servicer set forth in Sections 2.03, 3.03(c) and
3.09, (b) the preservation, insurance, restoration, protection and management of
a Mortgaged Property, including the cost of any "force placed" insurance policy
purchased by the applicable Master Servicer or the applicable Special Servicer
to the extent such cost is allocable to a particular Mortgaged Property that the
applicable Master Servicer or the applicable Special Servicer is required to
cause to be insured pursuant to Section 3.07(a), (c) obtaining any Insurance
Proceeds, Condemnation Proceeds or Liquidation Proceeds in respect of any such
Mortgage Loan or any REO Property, (d) any enforcement or judicial proceedings
with respect to any such Mortgage Loan, including foreclosures and similar
proceedings, (e) the operation, management, maintenance and liquidation of any
REO Property, (f) obtaining any Appraisal required to be obtained hereunder, and
(g) UCC filings (to the extent that the costs thereof are not reimbursed by the
related Borrower) and (2) the reasonable and direct out-of-pocket travel
expenses incurred by such Special Servicer in connection with performing
inspections pursuant to Section 3.12(a); provided that, notwithstanding anything
to the contrary, "Servicing Advances" shall not include (A) allocable overhead
of a Master Servicer or 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, (B) costs incurred by either such party
or any Affiliate thereof in connection with its purchase of any Mortgage Loan or
REO Property pursuant to any provision of this Agreement or (C) costs or
expenses expressly required under this Agreement to be borne by a Master
Servicer or Special Servicer. Any Servicing Advance that arises from the
enforcement of a remedy for a Material Breach or Material Document Defect in
accordance with Section 2.03 by the applicable Master Servicer or the applicable
Special Servicer that relates to the Washington Center Loan shall not be payable
out of or reduce any amounts otherwise distributable to, any Washington Center
Junior Loan.
"Servicing Fees" shall mean, with respect to any Mortgage Loan or
REO Mortgage Loan, the Master Servicing Fee and the Special Servicing Fee.
"Servicing File" shall mean any documents (other than documents
required to be part of the related Mortgage File, but including copies of those
documents and any correspondence file) in the possession or under the control
of, or required (pursuant to the applicable Mortgage Loan Purchase Agreement,
this Agreement or otherwise) to be delivered to, as the context may require, the
applicable Master Servicer or the applicable Special Servicer and relating to
the origination and servicing of any Mortgage Loan or the administration of any
REO Property, including any insurance certificates (and, if available, policies)
relating to hazard insurance maintained by the Borrower with respect to the
related Mortgaged Property that are in the possession of the applicable Master
Servicer or the applicable Special Servicer, as the case may be, at any
particular time, but excluding any documents and other writings (other than the
underwriting model contained in the related underwriting memorandum or asset
summary report prepared by any Mortgage Loan Seller and provided to Ernst &
Young, LLP in connection with the preparation of Exhibit A-1 to the Prospectus
Supplement) that have been prepared by the related Mortgage Loan Seller or any
of its Affiliates solely for internal credit analysis or other internal uses or
any attorney-client privileged communication.
"Servicing Officer" shall mean any officer or employee of a Master
Servicer or 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 by
such Master Servicer or Special Servicer.
"Servicing Return Date" shall mean, with respect to any Corrected
Mortgage Loan, the date that servicing thereof is returned by the applicable
Special Servicer to the applicable Master Servicer pursuant to Section 3.21(a).
"Servicing Standard" shall mean, with respect to each of the Master
Servicers and the Special Servicers, to service and administer the Mortgage
Loans and any REO Properties for which it is responsible hereunder: (a) with the
same care, skill, prudence and diligence as it services and administers
comparable mortgage loans and real properties on behalf of third parties or on
behalf of itself, whichever is the higher standard, giving due consideration to
customary and usual standards of practice utilized by prudent institutional
commercial mortgage loan servicers under comparable circumstances; (b) with a
view to (i) the timely collection of all scheduled payments of principal and
interest under the Mortgage Loans and any B Loan or C Loan, (ii) the full
collection of all Prepayment Premiums and Yield Maintenance Charges that may
become payable under the Mortgage Loans, any B Loan or C Loan, (iii) in the case
of the applicable Special Servicer, if a Mortgage Loan or any B Loan or C Loan
comes into and continues in default and if, in the good faith and reasonable
judgment of the applicable Special Servicer, no satisfactory arrangements can be
made for the collection of the delinquent payments, the maximization of the
recovery on such Mortgage Loan to the Certificateholders (as a collective whole)
(or with respect to any A/B Loan Pair and its related B Loan and, with respect
to the Washington Center Total Loan and the Washington Center Junior Loans, the
maximization of recovery on the A/B Loan Pair to the Certificateholders and the
B Loan Holder or Washington Center Junior Holders, as applicable, all taken as a
collective whole and taking into account the subordination of the related B Loan
to the related Mortgage Loan and the subordination of the Washington Center C
Loan to the Washington Center B Loan, as applicable) on a net present value
basis (the relevant discounting of anticipated collections that will be
distributable to Certificateholders to be performed at the related Net Mortgage
Rate) and the best interests of the Trust and the Certificateholders and any
related B Loan Holder or Washington Center Junior Holders, taken as a collective
whole on a net present value basis, as determined by the applicable Special
Servicer in its reasonable judgment and (iv) subject to the foregoing provisions
of this clause (b), unless the Controlling Class Representative agrees
otherwise, the full collection of all Default Charges that may become payable
under the Mortgage Loans, insofar as those Default Charges do not constitute
Additional Master Servicing Compensation or Additional Special Servicing
Compensation, as applicable; and (c) without regard to: (i) any relationship
that the applicable Master Servicer (or any Affiliate thereof) or the applicable
Special Servicer (or any Affiliate thereof), as the case may be, may have with
the related Borrower or with any other party to this Agreement; (ii) the
ownership of any Certificate by the applicable Master Servicer (or any Affiliate
thereof) or the applicable Special Servicer (or any Affiliate thereof), as the
case may be; (iii) the obligation of the applicable Master Servicer to make
Advances, (iv) the obligation of the applicable Special Servicer to make, or
direct the applicable Master Servicer to make, Servicing Advances; (v) the right
of the applicable Master Servicer (or any Affiliate thereof) or the applicable
Special Servicer (or any Affiliate thereof), as the case may be, to receive
reimbursement of costs, or the sufficiency of any compensation payable to it,
hereunder or with respect to any particular transaction; (vi) any ownership,
servicing and/or management by the subject applicable Master Servicer or
applicable Special Servicer, as the case may be, or any of its Affiliates, of
any other mortgage loans or real property; (vii) the ownership by the applicable
Master Servicer or applicable Special Servicer, as the case may be, or any of
its Affiliates of any other debt owed by, or secured by ownership interests in,
any of the Borrowers or any Affiliate of a Borrower, and (viii) the obligations
of the subject Master Servicer or Special Servicer, as the case may be, or any
of its Affiliates to repurchase any Mortgage Loan from the Trust Fund, or to
indemnify the Trust Fund, in any event as a result of a Material Breach or a
Material Document Defect; provided that the foregoing standards shall apply with
respect to the Great Lakes Crossing Mortgage Loan and any Great Lakes Crossing
REO Property only to the extent that the Master Servicer or Special Servicer has
any express duties or rights to grant consent with respect thereto pursuant to
Articles I through XI.
"Servicing Transfer Event" shall mean, with respect to any Mortgage
Loan, any of the following events:
(a) the related Borrower has failed to make when due any Monthly
Payment (including a Balloon Payment) (unless, with respect to the 000 Xxxxx
Xxxxxx Loan, such default is cured by the Controlling Class Representative of
the Class 622 Participation Certificates or the related B Loan Holder or, with
respect to the Washington Center Total Loan, such default is cured by either
Washington Center Junior Holder or the mezzanine lender of the Washington Center
Total Loan) or any other payment required under the related Mortgage Loan
Documents, which failure continues, or the applicable Master Servicer
determines, in its reasonable judgment exercised in accordance with the
Servicing Standard, will continue, unremedied (i) except in the case of a
delinquent Balloon Payment, for 60 days beyond the date on which the subject
payment was due, and (ii) solely in the case of a delinquent Balloon Payment,
for 90 days beyond the related maturity date or, if the related Borrower has (A)
delivered to the applicable Master Servicer a refinancing commitment reasonably
acceptable to the applicable Special Servicer and (B) continued to make monthly
debt service payments equal to the Assumed Monthly Payment, for such longer
period, not to exceed 150 days beyond the related maturity date, during which
the refinancing would occur; or
(b) the applicable Master Servicer (or ARCap, provided that ARCap is
a Special Servicer for any of the Mortgage Loans) has determined, in its
reasonable judgment exercised in accordance with the Servicing Standard, that a
default in making a Monthly Payment (including a Balloon Payment) or any other
material payment required under the related Mortgage Loan Documents is
reasonably foreseeable and likely to occur within 30 days and either (i) the
related Borrower has requested a material modification of the payment terms of
the related Mortgage Loan, which modification the applicable Master Servicer, in
its reasonable judgment exercised in accordance with the Servicing Standard,
determines is necessary to avoid a monetary or a material non-monetary default,
or (ii) such default is likely to remain unremedied or uncured by a B Loan
Holder, either Washington Center Junior Holder or the mezzanine lender of the
Washington Center Total Loan for at least the period contemplated by clause (a)
of this definition; or
(c) the applicable Master Servicer has determined, in its reasonable
judgment exercised in accordance with the Servicing Standard, that a default,
other than as described in clause (a) or (b) of this definition, has occurred
that may materially impair the value of the related Mortgaged Property as
security for the Mortgage Loan, which default has continued unremedied for the
applicable cure period under the terms of the Mortgage Loan (unless, with
respect to the 000 Xxxxx Xxxxxx Loan, such default is cured by the Controlling
Class Representative of the Class 622 Participation Certificates or the related
B Loan Holder or with respect to the Washington Center Loan, such default is
cured by either Washington Center Junior Holder or the mezzanine lender of the
Washington Center Total Loan) (or, if no cure period is specified, for 60 days),
provided that in no event shall the violation of a covenant contained in the
Mortgage Loan Documents for any Co-op Mortgage Loan requiring the related
Borrower to xxxxx minor building code violations be a Servicing Transfer Event,
and provided, further, that the failure of the related Borrower to obtain all
risk casualty insurance that does not contain any exclusion for terrorist or
similar acts (other than such amounts as are specifically allowed by the related
Loan Agreement) shall not apply with respect to this clause if the applicable
Master Servicer has determined (which determination shall be subject to the
approval of the Controlling Class Representative; provided that the Controlling
Class Representative's failure to respond to a request for such approval within
five (5) Business Days of such request shall be deemed approval) in accordance
with the Servicing Standard that either (i) such insurance is not available at
commercially reasonable rates or 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 or (ii) such
insurance is not available at any rate; or
(d) a decree or order of a court or agency or supervisory authority
having jurisdiction in the premises in an involuntary action against the related
Borrower under any present or future federal or state bankruptcy, insolvency or
similar law or the appointment of a conservator, receiver or liquidator in any
insolvency, readjustment of debt, marshalling of assets and liabilities or
similar proceeding, or for the winding-up or liquidation of its affairs, shall
have been entered against the related Borrower, provided that if such decree or
order shall have been dismissed, discharged or stayed within 60 days thereafter
the Mortgage Loan shall not be a Specially Serviced Mortgage Loan and no Special
Servicing Fees, Workout Fees or Liquidation Fees shall be payable with respect
thereto; or
(e) the related Borrower shall have consented to the appointment of
a conservator, receiver or liquidator in any insolvency, readjustment of debt,
marshalling of assets and liabilities or similar proceeding of or relating to
such Borrower or of or relating to all or substantially all of its property; or
(f) the related Borrower shall have admitted in writing its
inability to pay its debts generally as they become due, filed a petition to
take advantage of any applicable insolvency or reorganization statute, made an
assignment for the benefit of its creditors, or voluntarily suspended payment of
its obligations; or
(g) the applicable Master Servicer shall have received notice of the
commencement of foreclosure or similar proceedings with respect to the related
Mortgaged Property;
A Servicing Transfer Event with respect to any Mortgage Loan shall
cease to exist:
(w) in the case of the circumstances described in clause (a) above,
if and when the related Borrower has made three consecutive full and
timely Monthly Payments under the terms of such Mortgage Loan (as such
terms may be changed or modified in connection with a bankruptcy or
similar proceeding involving the related Borrower or by reason of a
modification, waiver or amendment granted or agreed to by the applicable
Master Servicer or the applicable Special Servicer pursuant to Section
3.20);
(x) in the case of the circumstances described in clauses (b), (d),
(e) and (f) above, if and when such circumstances cease to exist in the
reasonable judgment of the applicable Special Servicer;
(y) in the case of the circumstances described in clause (c) above,
if and when such default is cured in the reasonable judgment of the
applicable Special Servicer; and
(z) in the case of the circumstances described in clause (g) above,
if and when such proceedings are terminated.
"Similar Law" shall have the meaning assigned thereto in Section
5.02(c).
"Sole Certificateholder(s)" shall mean any Holder or group of
Holders, as the case may be, of 100% of the then outstanding Certificates.
"Special Servicer" shall mean: (a) with respect to any Mortgage Loan
(other than a Co-op Mortgage Loan), any REO Property acquired by the Trust with
respect to a Mortgage Loan (other than a Co-op Mortgage Loan) and any matters
relating to the foregoing, the General Special Servicer; and (b) with respect to
any Co-op Mortgage Loan, any REO Property acquired by the Trust with respect to
a Co-op Mortgage Loan and any matters relating to the foregoing, the Co-op
Special Servicer.
"Special Servicing Fee" shall mean, with respect to each Specially
Serviced Mortgage Loan and each REO Mortgage Loan, the fee designated as such
and payable to the applicable Special Servicer pursuant to the first paragraph
of Section 3.11(c).
"Special Servicing Fee Rate" shall mean, with respect to each
Specially Serviced Mortgage Loan and each REO Mortgage Loan, 0.25% (25 basis
points) per annum.
"Specially Designated Defaulted Mortgage Loan" shall mean a
Specially Serviced Mortgage Loan that is delinquent 90 days or more with respect
to any Balloon Payment or 60 days (or, in the case of a Co-op Mortgage Loan, 90
days) or more with respect to any other Monthly Payment, with 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 a Specially Serviced
Mortgage Loan as to which the amounts due thereunder have been accelerated
following any other material default.
"Specially Designated Mortgage Loan Documents" shall mean, with
respect to any Mortgage Loan, subject to Sections 1.04 and 2.01, the following
documents on a collective basis:
(a) (i) the items referred to in clause (a)(i) of the definition of
"Mortgage File";
(ii) the items (exclusive of intervening assignments) referred to in
clauses (a)(ii) and (a)(iii) of the definition of "Mortgage File";
(iii) the original or a copy of the policy of lender's title
insurance or, if such policy has not yet been issued, a "marked-up" pro
forma title policy or commitment for title insurance marked as binding and
countersigned or evidenced as binding by escrow letter or closing
instructions;
(iv) the original or a copy of any Ground Lease and Ground Lease
estoppel;
(v) the original of any Letter(s) of Credit constituting Additional
Collateral;
(vi) originals or copies of any agreements evidencing material
modifications of the foregoing documents and any assumption agreements;
and
(vii) if the subject Mortgage Loan has a Cut-off Date Principal
Balance greater than 2% of the Initial Pool Balance, the original or a
copy of any cash management agreement related to such Mortgage Loan; or
(b) with respect to the Great Lakes Crossing Mortgage Loan, the
original executed Mortgage Note (together with all related allonges) or,
alternatively, if the original executed Mortgage Note has been lost, a lost note
affidavit and indemnity with a copy of such Mortgage Note;
provided that whenever the term "Specially Designated Mortgage Loan Documents"
is used to refer to documents actually received by the Trustee, a Master
Servicer, a Special Servicer or by a Custodian on its behalf such term shall not
be deemed to include such documents and instruments referred to in items (a)(i)
through (a)(vii) of this definition unless they are actually so received; and
provided, further, that the Specially Designated Mortgage Loan Documents for any
Mortgage Loan need not include any Letter of Credit referred to in item (a)(v)
of this definition if, in lieu thereof, the related Mortgage Loan Seller has, on
behalf of the related Borrower, either (i) delivered to the Trustee a substitute
letter of credit, in the same amount and with the same draw conditions and
renewal rights as, and otherwise substantially similar to, that Letter of Credit
and issued by an obligor that meets any criteria in the related Mortgage Loan
Documents applicable to the issuer of that Letter of Credit or (ii) delivered to
the applicable Master Servicer a LOC Cash Reserve, which substitute letter of
credit can be drawn on, or which LOC Cash Reserve can be applied to cover, the
same items as that Letter of Credit was intended to cover.
"Specially Serviced Mortgage Loan" shall mean any Mortgage Loan as
to which there then exists a Servicing Transfer Event. Upon the occurrence of a
Servicing Transfer Event with respect to any Mortgage Loan, such Mortgage Loan
shall remain a Specially Serviced Mortgage Loan until the earliest of (i) its
removal from the Trust Fund, (ii) an REO Acquisition with respect to the related
Mortgaged Property, and (iii) the Mortgage Loan becoming a Corrected Mortgage
Loan.
"Startup Day" shall mean the Closing Date.
"State Tax Laws" shall mean the state and local tax laws of (a)
Minnesota, and (b) any other state, the applicability of which to the Trust Fund
or the Trust REMICs shall have been confirmed to the Trustee in writing either
by the delivery to the Trustee of an Opinion of Counsel to such effect (which
Opinion of Counsel shall not be at the expense of the Trustee), or by the
delivery to the Trustee of a written notification to such effect by the taxing
authority of such state.
"Stated Maturity Date" shall mean, with respect to any Mortgage
Loan, the Due Date specified in the related Mortgage Note (as in effect on the
Closing Date or, in the case of a Replacement Mortgage Loan, on the related date
of substitution) on which the last payment of principal is due and payable under
the terms of such Mortgage Note, without regard to any change in or modification
of such terms in connection with a bankruptcy or similar proceeding involving
the related Borrower or a modification, waiver or amendment of such Mortgage
Loan granted or agreed to by the applicable Master Servicer or the applicable
Special Servicer pursuant to Section 3.20 (or, in the case of the Great Lakes
Crossing Mortgage Loan, by the Great Lakes Crossing Master Servicer or the Great
Lakes Crossing Special Servicer pursuant to a Great Lakes Crossing Servicing
Agreement or by the Master Servicer or the Special Servicer pursuant to Section
12.13) and, in the case of an ARD Mortgage Loan, without regard to its
Anticipated Repayment Date.
"Stated Principal Balance" shall mean, with respect to any Mortgage
Loan, the 000 Xxxxx Xxxxxx Pooled Portion or the 000 Xxxxx Xxxxxx Non-Pooled
Portion (and any successor REO Mortgage Loan), a principal balance which (a)
initially in the case of any Mortgage Loan shall equal the unpaid principal
balance thereof as of the related Due Date in June 2003 or, in the case of any
Replacement Mortgage Loan, as of the related date of substitution, in the case
of the 000 Xxxxx Xxxxxx Pooled Portion, the 000 Xxxxx Xxxxxx Pooled Portion
balance as of the Due Date in June 2003, and in the case of the 000 Xxxxx Xxxxxx
Non-Pooled Portion, the 000 Xxxxx Xxxxxx Non-Pooled Portion balance as of the
Due Date in June 2003, in any event after application of all payments of
principal due thereon on or before such date, whether or not received, and (b)
shall be permanently reduced on each subsequent Distribution Date (to not less
than zero) by (i) that portion, if any, of the Principal Distribution Amount for
such Distribution Date attributable to such Mortgage Loan, such 000 Xxxxx Xxxxxx
Pooled Portion or such 000 Xxxxx Xxxxxx Non-Pooled Portion (or successor REO
Mortgage Loan), (ii) the principal portion of any Realized Loss incurred in
respect of such Mortgage Loan, such 000 Xxxxx Xxxxxx Pooled Portion or such 000
Xxxxx Xxxxxx Non-Pooled Portion (or successor REO Mortgage Loan) during the
related Collection Period and (iii) the amount of any related Special Servicing
Fees, Liquidation Fees and Advance Interest that were applied to reduce the
"Principal Distribution Amount" attributable to such Mortgage Loan; provided
that, if a Liquidation Event occurs in respect of any Mortgage Loan or REO
Property, then the "Stated Principal Balance" of such Mortgage Loan, such 000
Xxxxx Xxxxxx Pooled Portion or such 000 Xxxxx Xxxxxx Non-Pooled Portion or of
the related REO Mortgage Loan, as the case may be, shall be zero commencing as
of the Distribution Date in the Collection Period next following the Collection
Period in which such Liquidation Event occurred.
The Stated Principal Balance of the 000 Xxxxx Xxxxxx Mortgage Loan
(including the 000 Xxxxx Xxxxxx Pooled Portion and the 000 Xxxxx Xxxxxx
Non-Pooled Portion) shall equal the aggregate principal balances of the 000
Xxxxx Xxxxxx Pooled Portion and 000 Xxxxx Xxxxxx Non-Pooled Portion at any time
of determination, each as calculated in accordance with previous paragraph.
"Statement to Certificateholders" shall have the meaning assigned
thereto in Section 4.02(a).
"Subordinate Certificates" shall mean any of the 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 R and Class LR Certificates and the Class
622-A, Class 622-B, Class 622-C, Class 622-D, Class 622-E and Class 622-F
Participation Certificates.
"Subordinate Principal Balance Certificates" shall mean any of the
Subordinate Certificates other than the Class R and Class LR Certificates.
"Subsequent Exchange Act Reports" shall mean all Exchange Act
Reports other than the Current Report on Form 8-K to be filed with the
Commission with respect to the Trust by the Depositor in accordance with Section
8.14 within 15 days following the Closing Date.
"Sub-Servicer" shall mean any Person with which a Master Servicer or
Special Servicer has entered into a Sub-Servicing Agreement.
"Sub-Servicing Agreement" shall mean the written contract between a
Master Servicer or 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" shall mean, in connection with the
substitution of one or more Replacement Mortgage Loans for any Defective
Mortgage Loan, the amount, if any, by which the Purchase Price for such
Defective Mortgage Loan (calculated as if it were to be repurchased, instead of
replaced, on the relevant date of substitution), exceeds the Stated Principal
Balance or the aggregate Stated Principal Balance, as the case may be, of such
Replacement Mortgage Loan(s) as of the date of substitution.
"Tax Matters Person" shall mean, with respect to the Upper-Tier, the
Lower-Tier REMIC or the 000 Xxxxx Xxxxxx Loan REMIC, 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, pursuant to Section 10.01(b), be the
Plurality Class R Certificateholder or the Plurality Class LR Certificateholder,
as the case may be.
"Tax Returns" shall mean (a) the federal income tax return on IRS
Form 1066, U.S. Real Estate Mortgage Investment Conduit Income (REMIC) Tax
Return, including Schedule Q thereto, Quarterly Notice to Residual Interest
Holder of REMIC Taxable Income or Net Loss Allocation, or any successor forms,
to be filed on behalf of each of the Upper-Tier REMIC, the Lower-Tier REMIC and
the 000 Xxxxx Xxxxxx Loan REMIC due to its classification as a REMIC under the
REMIC Provisions and (b) the federal information return on IRS Form 1041 and
applicable schedules thereto, to be filed on behalf of the Grantor Trust,
together with any and all other information, reports or returns that may be
required to be furnished to the Certificateholders or filed with the IRS under
any applicable provisions of federal tax law or any other governmental taxing
authority under applicable state or local tax laws.
"Termination Price" shall have the meaning assigned thereto in
Section 9.01(a).
"Transfer" shall mean any direct or indirect transfer, sale, pledge,
hypothecation, or other form of assignment of any Ownership Interest in a
Certificate.
"Transfer Affidavit and Agreement" shall have the meaning assigned
thereto in Section 5.02(d).
"Transferee" shall mean any Person who is acquiring by Transfer any
Ownership Interest in a Certificate.
"Transferor" shall mean any Person who is disposing by Transfer of
any Ownership Interest in a Certificate.
"Trust" shall mean the trust created hereby.
"Trust Assets" shall mean the assets comprising the Trust Fund.
"Trust Fund" shall mean, collectively, all of the assets of the
Upper-Tier REMIC, the Lower-Tier REMIC, the 000 Xxxxx Xxxxxx Loan REMIC and the
Grantor Trust, together with the reserves delivered by any Mortgage Loan Seller
or the Column Performance Guarantor to the Master Servicers as contemplated by
Section 2.03.
"Trust REMIC" shall mean any of the 000 Xxxxx Xxxxxx Loan REMIC, the
Lower-Tier REMIC or the Upper-Tier REMIC.
"Trustee" shall mean Xxxxx Fargo, in its capacity as trustee
hereunder, or any successor trustee appointed as provided herein.
"Trustee Report" shall have the meaning assigned thereto in Section
4.02(a).
"Trustee's Fee" shall mean, with respect to any Mortgage Loan or REO
Mortgage Loan, the fee designated as such and payable to the Trustee pursuant to
Section 8.05(a).
"Trustee's Fee Rate" shall mean 0.00105% per annum.
"UCC" shall mean the Uniform Commercial Code in effect in the
applicable jurisdiction.
"UCC Financing Statement" shall mean a financing statement executed
and filed pursuant to the Uniform Commercial Code, as in effect in any relevant
jurisdiction.
"UCC Financing Statement Amendment" shall mean a financing statement
amendment filed, or to be filed, pursuant to the UCC.
"Uncertificated Lower-Tier Interests" shall mean any of the Class
LA-1-1, Class LA-1-2, Class LA-1-3, Class LA-2-1, Class LA-2-2, Class LA-2-3,
Class LA-2-4, Class LA-3-1, Class LA-3-2, Class LA-4-1, Class LA-4-2, Class
LA-5-1, Class LA-5-2, Class LB, Class LC, Class LD-1, Class LD-2, Class LE-1,
Class LE-2, Class LF-1, Class LF-2, Class LG, Class LH, Class LJ, Class LK,
Class LL, Class LM, Class LN, Class LO, Class LP, Class LY, Class L622-A, Class
L622-B, Class L622-C, Class L622-D, Class L622-E and Class L622-F Uncertificated
Interests.
"Underwriters" shall mean, collectively, CSFB LLC, PNCCM, MII,
Xxxxxx Xxxxxxx & Co. Incorporated and Bear, Xxxxxxx & Co. Inc.
"Underwriter Exemption" shall mean PTE 89-90, as amended by XXX
00-00, XXX 0000-00 and PTE 2002-41, and as may be subsequently amended following
the Closing Date.
"United States Securities Person" shall mean any "U.S. person" as
defined in Rule 902(k) of Regulation S.
"United States Tax Person" shall mean a citizen or resident of the
United States, a corporation, partnership or other entity created or organized
in, or under the laws of, the United States or any State thereof or the District
of Columbia, or an estate whose income from sources without the United States is
includible in gross income for United States federal income tax purposes
regardless of its connection with the conduct of a trade or business within the
United States, 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 Tax Persons have the authority to control all substantial
decisions of the trust, all within the meaning of Section 7701(a)(30) of the
Code.
"Unrestricted Servicer Reports" shall mean each of the files and
reports comprising the CMSA Investor Reporting Package (excluding the CMSA Bond
Level File, the CMSA Collateral Summary File and the Restricted Servicer
Reports).
"Upper-Tier Distribution Account" shall mean the account, accounts
or sub-account created and maintained by the Trustee, pursuant to Section
3.04(b) in trust for the Certificateholders, which shall be entitled "Xxxxx
Fargo Bank Minnesota, N.A., as Trustee, for the Holders of Credit Suisse First
Boston Mortgage Securities Corp., Commercial Mortgage Pass-Through Certificates,
Series 2003-C3, Upper-Tier Distribution Account." Any such account or accounts
shall be an Eligible Account or a subaccount of an Eligible Account.
"Upper-Tier REMIC" shall mean one of three separate REMICs
comprising the Trust Fund, the assets of which consist of the Uncertificated
Lower-Tier Interests and such amounts as shall from time to time be held in the
Upper-Tier Distribution Account.
"USAP" shall mean the Uniform Single Attestation Program for
Mortgage Bankers established by the Mortgage Bankers Association of America.
"USPAP" shall mean the Uniform Standards of Professional Appraisal
Practices.
"Voting Rights" shall mean the voting rights evidenced by the
respective Certificates. At all times during the term of this Agreement, 99.0%
of the Voting Rights shall be allocated among all the Holders of the various
Classes of Principal Balance Certificates in proportion to the respective Class
Principal Balances of such Classes, and 1.0% of the Voting Rights shall be
allocated among all the Holders of the various Classes of Interest Only
Certificates in proportion to the respective Class Notional Amounts of such
Classes. Voting Rights allocated to a particular Class of Certificateholders
shall be allocated among such Certificateholders in proportion to the respective
Percentage Interests evidenced by their respective Certificates. No Voting
Rights shall be allocated to the Class R, Class LR, Class V or Class 622
Certificateholders.
"Xxxxx Fargo" shall have the meaning assigned thereto in the
Preliminary Statement to this Agreement.
"Washington Center B Loan" shall mean one of the other two mortgage
loans that is not included in the Trust and that is subordinate in right of
payment to the Washington Center Loan to the extent set forth in the Washington
Center Intercreditor Agreement and that is secured by the same Mortgage on the
same Mortgaged Property as such Washington Center Loan.
"Washington Center C Loan" shall mean one of the other two mortgage
loans that is not included in the Trust and that is subordinate in right of
payment to the Washington Center Loan and the Washington Center B Loan to the
extent set forth in the Washington Center Intercreditor Agreement and that is
secured by the same Mortgage on the same Mortgaged Property as such Washington
Center Loan.
"Washington Center Intercreditor Agreement" shall mean with respect
to the Washington Center Total Loan, the intercreditor agreement entered into by
and between the holders of the Washington Center Loan, the Washington Center B
Loan and the Washington Center C Loan relating to the relative rights of such
holders.
"Washington Center Junior Holders" shall mean the holders of the
Washington Center B Loan and the Washington Center C Loan, collectively.
"Washington Center Junior Loans" shall mean the Washington Center B
Loan and the Washington Center C Loan, collectively.
"Washington Center Loan" shall mean the Mortgage Loan identified on
the Mortgage Loan Schedule as Washington Center.
"Washington Center Total Loan" shall mean the Washington Center Loan
and the Washington Center Junior Loans, collectively.
"Washington Center Triggering Event of Default" shall mean (i) any
event of default with respect to an obligation of the related Borrower to pay
principal and interest payments or any other monetary obligations due under the
Mortgage Loan or (ii) any non-monetary event of default as to which the Mortgage
Loan becomes a Specially Serviced Mortgage Loan.
"Weighted Average Net Mortgage Rate" shall mean, as to any
Distribution Date, the average, as of such Distribution Date, of the Net
Mortgage Pass-Through Rates of the Mortgage Loans (other than the 000 Xxxxx
Xxxxxx Loan) and the 000 Xxxxx Xxxxxx Pooled Portion weighted by the Stated
Principal Balances thereof; provided that such rate shall not take into account
any modification of the Mortgage Rate after the Closing Date or any modification
of the Mortgage Rate in connection with a bankruptcy, insolvency or similar
proceeding involving the related Borrower.
"Workout Fee" shall mean, with respect to each Corrected Mortgage
Loan, the fee designated as such and payable to the applicable Special Servicer
pursuant to the second paragraph of Section 3.11(c).
"Workout Fee Rate" shall mean, with respect to each Corrected
Mortgage Loan, 1.0% (100 basis points).
"Yield Maintenance Certificates" shall mean the Class A-1, Class
A-2, Class A-3, Class A-4, Class A-5, Class B, Class C, Class D, Class E, Class
F, Class G and Class H Certificates.
"Yield Maintenance Charge" shall mean, with respect to any Mortgage
Loan, any premium, fee or other additional amount paid or payable, as the
context requires, by a Borrower in connection with a Principal Prepayment on, or
other early collection of principal of, a Mortgage Loan, calculated, in whole or
in part, pursuant to a yield maintenance formula or otherwise pursuant to a
formula that reflects the lost interest, including a Yield Maintenance Minimum
Amount.
"Yield Maintenance Minimum Amount" shall mean, with respect to a
Mortgage Loan that provides for a Yield Maintenance Charge to be paid in
connection with any Principal Prepayment thereon or other early collection of
principal thereof, any specified amount or specified percentage of the amount
prepaid which constitutes the minimum amount that such Yield Maintenance Charge
may be.
Section 1.02 General Interpretive Principles
For purposes of this Agreement, except as otherwise expressly
provided or unless the context otherwise requires:
(i) the terms defined in this Agreement have the meanings assigned
to them in this Agreement and include the plural as well as the singular,
and the use of any gender herein shall be deemed to include the other
gender;
(ii) accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with GAAP as in effect from time to time;
(iii) references herein to "Articles", "Sections", "Subsections",
"Paragraphs" and other subdivisions without reference to a document are to
designated Articles, Sections, Subsections, Paragraphs and other
subdivisions of this Agreement;
(iv) a reference to a Subsection without further reference to a
Section is a reference to such Subsection as contained in the same Section
in which the reference appears, and this rule shall also apply to
Paragraphs and other subdivisions;
(v) the words "herein", "hereof", "hereunder", "hereto", "hereby"
and other words of similar import refer to this Agreement as a whole and
not to any particular provision; and
(vi) the terms "include" and "including" shall mean without
limitation by reason of enumeration.
Section 1.03 Certain Calculations in Respect of the Mortgage Pool
(a) All amounts collected by or on behalf of the Trust in respect of
any Cross-Collateralized Group (which shall not include the Great Lakes Crossing
Total Loan), in the form of payments from Borrowers, Insurance Proceeds,
Condemnation Proceeds and Liquidation Proceeds, shall be applied among the
Mortgage Loans constituting such Cross-Collateralized Group in accordance with
the express provisions of the related Mortgage Loan Documents and, in the
absence of such express provisions, in accordance with the Servicing Standard.
All amounts collected by or on behalf of the Trust in respect of or allocable to
any particular Mortgage Loan (whether or not such Mortgage Loan constitutes part
of a Cross-Collateralized Group), in the form of payments from Borrowers,
Insurance Proceeds, Condemnation Proceeds or Liquidation Proceeds, shall be
applied to amounts due and owing under the related Mortgage Note and Mortgage
(including for principal and accrued and unpaid interest) in accordance with the
express provisions of the related Mortgage Loan Documents and, in the absence of
such express provisions or if and to the extent that such terms authorize the
lender to use its discretion, shall be applied: first, as a recovery of any
related and unreimbursed Servicing Advances and, if applicable, unpaid
Liquidation Expenses and, to the extent not covered by Liquidation Expenses,
Additional Trust Fund Expenses and other fees and expenses payable to any Master
Servicer, any Special Servicer or the Trustee and attributable to such Mortgage
Loan; second, as a recovery of accrued and unpaid interest on such Mortgage Loan
to, but not including, the date of receipt by or on behalf of the Trust (or, in
the case of a full Monthly Payment from any Borrower, through the related Due
Date), exclusive, however, of any portion of such accrued and unpaid interest
that constitutes Default Interest or, in the case of an ARD Mortgage Loan after
its Anticipated Repayment Date, that constitutes Post-ARD Additional Interest;
third, as a recovery of principal of such Mortgage Loan then due and owing,
including by reason of acceleration of the Mortgage Loan following a default
thereunder (or, if a Liquidation Event has occurred in respect of such Mortgage
Loan, as a recovery of principal to the extent of its entire remaining unpaid
principal balance); fourth, unless a Liquidation Event has occurred in respect
of such Mortgage Loan, as a recovery of amounts to be currently applied to the
payment of, or escrowed for the future payment of, real estate taxes,
assessments, insurance premiums, ground rents (if applicable) and similar items;
fifth, unless a Liquidation Event has occurred in respect of such Mortgage Loan,
as a recovery of Reserve Funds to the extent then required to be held in escrow;
sixth, as a recovery of any Default Charges then due and owing under such
Mortgage Loan; seventh, as a recovery of any Prepayment Premium or Yield
Maintenance Charge then due and owing under such Mortgage Loan; eighth, as a
recovery of any assumption fees, assumption application fees and modification
fees then due and owing under such Mortgage Loan; ninth, as a recovery of any
other amounts then due and owing under such Mortgage Loan other than remaining
unpaid principal and, in the case of an ARD Mortgage Loan after its Anticipated
Repayment Date, other than Post-ARD Additional Interest; tenth, as a recovery of
any remaining principal of such Mortgage Loan to the extent of its entire
remaining unpaid principal balance; and, eleventh, in the case of an ARD
Mortgage Loan after its Anticipated Repayment Date, as a recovery of accrued and
unpaid Post-ARD Additional Interest on such ARD Mortgage Loan to but not
including the date of receipt by or on behalf of the Trust.
(b) Collections by or on behalf of the Trust in respect of each REO
Property (exclusive of amounts to be applied to the payment of the costs of
operating, managing, maintaining and disposing of such REO Property) shall be
treated: first, as a recovery of any related and unreimbursed Servicing Advances
and, if applicable, unpaid Liquidation Expenses and, to the extent not covered
by Liquidation Expenses, Additional Trust Fund Expenses or other fees and
expenses payable to any Master Servicer, any Special Servicer or the Trustee and
attributable to such REO Property or the related REO Mortgage Loan; second, as a
recovery of accrued and unpaid interest on the related REO Mortgage Loan to, but
not including, the Due Date in the Collection Period of receipt, by or on behalf
of the Trust, exclusive, however, of any portion of such accrued and unpaid
interest that constitutes Default Interest or, in the case of an REO Mortgage
Loan that relates to an ARD Mortgage Loan after its Anticipated Repayment Date,
that constitutes Post-ARD Additional Interest; third, as a recovery of principal
of the related REO Mortgage Loan to the extent of its entire unpaid principal
balance; fourth, as a recovery of any Default Charges deemed to be due and owing
in respect of the related REO Mortgage Loan; fifth, as a recovery of any
Prepayment Premium or Yield Maintenance Charge deemed to be due and owing in
respect of the related REO Mortgage Loan; sixth, as a recovery of any other
amounts deemed to be due and owing in respect of the related REO Mortgage Loan
(other than, in the case of an REO Mortgage Loan that relates to an ARD Mortgage
Loan after its Anticipated Repayment Date, accrued and unpaid Post-ARD
Additional Interest); and seventh, in the case of an REO Mortgage Loan that
relates to an ARD Mortgage Loan after its Anticipated Repayment Date, as a
recovery of any accrued and unpaid Post-ARD Additional Interest on such REO
Mortgage Loan to but not including the date of receipt by or on behalf of the
Trust.
(c) Amounts received by the Master Servicer on behalf of the Trust
as remittances under a Great Lakes Crossing Servicing Agreement with respect to
the Great Lakes Crossing Mortgage Loan or the Great Lakes Crossing REO Mortgage
Loan shall be allocated, subject to the Great Lakes Crossing Intercreditor
Agreement, among interest, principal, Prepayment Premiums, Additional Interest
and other amounts due thereon consistent with Section 3.02(b) of the Series
2003-CK2 PSA or any comparable section of any other Great Lakes Crossing
Servicing Agreement.
(d) For the purposes of this Agreement, Post-ARD Additional Interest
on an ARD Mortgage Loan or a successor REO Mortgage 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 Mortgage Loan or
successor REO Mortgage Loan, notwithstanding that the terms of the related loan
documents so permit. To the extent any Post-ARD Additional Interest is not paid
on a current basis, it shall be deemed to be deferred interest.
(e) Insofar as amounts received in respect of any Mortgage Loan or
REO Property and allocable to shared fees and shared charges owing in respect of
such Mortgage Loan or the related REO Mortgage Loan, as the case may be, that
constitute Additional Master Servicing Compensation payable to the applicable
Master Servicer and/or Additional Special Servicing Compensation payable to the
applicable Special Servicer, are insufficient to cover the full amount of such
fees and charges, such amounts shall be allocated between such of those fees and
charges as are payable to the applicable Master Servicer, on the one hand, and
such of those fees and charges as are payable to the applicable Special
Servicer, on the other, pro rata in accordance with their respective
entitlements in accordance with Section 3.11 hereof.
(f) The foregoing applications of amounts received in respect of any
Mortgage Loan or REO Property shall be determined by the applicable Master
Servicer and reflected in the appropriate monthly report from such Master
Servicer and in the appropriate monthly Statement to Certificateholders as
provided in Section 4.02.
(g) In the case of each Mortgaged Property that is a residential
cooperative property, the respective files and reports comprising the CMSA
Investor Reporting Package (other than the CMSA Servicer Watch List) shall
present the Projected Net Cash Flow for such Mortgaged Property and the
Projected Debt Service Coverage Ratio for the related Co-op Mortgage Loan, as
such terms apply to residential cooperative properties, if and to the extent
that such file or report requires preparation and/or submission of data
concerning net cash flow or debt service coverage.
Section 1.04 Cross-Collateralized Mortgage Loans
Notwithstanding anything herein to the contrary, it is hereby
acknowledged that the groups of Mortgage Loans identified on the Mortgage Loan
Schedule as being cross-collateralized with each other are, in the case of each
such particular group of Mortgage Loans, by their terms, cross-defaulted and
cross-collateralized with each other. For purposes of reference only in this
Agreement, and without in any way limiting the servicing rights and powers of
the applicable Master Servicer and/or the applicable Special Servicer, with
respect to any Cross-Collateralized Mortgage Loan (or successor REO Mortgage
Loan), the Mortgaged Property (or REO Property) that relates or corresponds
thereto shall be the property identified in the Mortgage Loan Schedule as
corresponding thereto. The provisions of this Agreement, including each of the
defined terms set forth in Section 1.01, shall be interpreted in a manner
consistent with this Section 1.04; provided that, if there exists with respect
to any Cross- Collateralized Group only one original of any document referred to
in the definition of "Mortgage File" covering all the Mortgage Loans in such
Cross-Collateralized Group, then the inclusion of the original of such document
in the Mortgage File for any of the Mortgage Loans constituting such
Cross-Collateralized Group shall be deemed an inclusion of such original in the
Mortgage File for each such Mortgage Loan.
Section 1.05 Certain Matters with Respect to the 000 Xxxxx Xxxxxx
Loan and the Washington Center Loan
(a) For the avoidance of doubt, the parties acknowledge that the
rights and duties of each of the Master Servicer and the Special Servicer under
this Agreement, insofar as such rights, duties and obligations relate to the 000
Xxxxx Xxxxxx Loan and the Washington Center Loan (including the 000 Xxxxx Xxxxxx
X Loan and the Washington Center Junior Loans), shall terminate upon the
earliest to occur of the following with respect to the 000 Xxxxx Xxxxxx Loan and
the Washington Center Loan: (i) any repurchase of or substitution for the A Note
by the Mortgage Loan Seller of the 000 Xxxxx Xxxxxx Loan or the Washington
Center Loan, (ii) any purchase of the A Note by any Washington Center Junior
Holder or by the holder of the 000 Xxxxx Xxxxxx X Loan, as applicable, pursuant
to the terms of the related A/B Intercreditor Agreement and (iii) any payment in
full of any and all amounts due (or deemed due) under the related A Note (or its
successor REO Mortgage Loan) (including amounts to which the holder of the
related A Note is entitled under the related A/B Intercreditor Agreement);
provided, however, that this statement shall not limit (A) the duty of the
Master Servicer or Special Servicer to deliver or make available the reports
otherwise required of it hereunder with respect to the period in which such
event occurs or (B) the rights of the Master Servicer or such Special Servicer
that may otherwise accrue or arise in connection with the performance of its
duties hereunder with respect to the 000 Xxxxx Xxxxxx Loan and the Washington
Center Loan prior to the date on which such event occurs.
(b) In connection with any purchase described in clause (ii) of
subsection (a) or an event described in clause (iii) of subsection (a), the
Trustee, the Master Servicer and the Special Servicer (to the extent it
possesses any such items) shall each tender to (in the case of a purchase under
such clause (ii)) the related purchaser (provided that the related purchaser
shall have paid the full amount of the applicable purchase price) or (in the
case of such clause (iii)) to the holders of the 000 Xxxxx Xxxxxx X Loan and the
Washington Center Junior Loans (if then still outstanding), upon delivery to
them of a receipt executed by such purchaser or holder, all portions of the
Mortgage File possessed by the Trustee and other documents pertaining to the
Washington Center Loan, possessed by the Trustee, and each document that
constitutes a part of the Mortgage File shall be endorsed or assigned by the
Trustee to the extent necessary or appropriate to such purchaser or holder (or
the designee of such purchaser or holder) in the same manner, and pursuant to
appropriate forms of assignment prepared by the Master Servicer, substantially
similar to the manner and forms pursuant to which documents were previously
assigned to the Trustee by the Column Mortgage Loan Seller, but in any event,
without recourse, representation or warranty; provided that such tender by the
Trustee shall be conditioned upon its receipt from the Master Servicer of a
Request for Release in the form of Exhibit D-1 hereto which the applicable
Master Servicer shall promptly deliver upon the occurrence of any purchase
described in clauses (i) and (ii) of Subsection (a). The Master Servicer shall,
and is also hereby authorized and empowered by the Trustee to, upon receipt of
notice of such purchase, convey to such purchaser or such holder any deposits
then held in an Escrow Account relating to the 000 Xxxxx Xxxxxx Loan and the
Washington Center Loan. If the A Note and the related B Loan or Washington
Center Junior Loans are then REO Mortgage Loans, then the Special Servicer
shall, and is also hereby authorized and empowered by the Trustee to, upon
receipt of notice to do so, convey to such purchaser or such holder, in each
case, to the extent not needed to pay or reimburse the Master Servicer, the
Special Servicer, the Trustee or any Fiscal Agent in accordance with this
Agreement, deposits then held in the REO Account insofar as they relate to the
related REO Property.
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES;
ORIGINAL ISSUANCE OF UNCERTIFICATED LOWER-TIER INTERESTS AND 000
XXXXX XXXXXX LOAN REMIC REGULAR INTERESTS; EXECUTION OF
CERTIFICATES
Section 2.01 Conveyance of Mortgage Loans
(a) It is the intention of the parties hereto that a common law
trust be established under the laws of the State of New York pursuant to this
Agreement and, further, that such trust be designated as "CSFB Commercial
Mortgage Trust 2003-C3." Xxxxx Fargo is hereby appointed, and does hereby agree
to act, as Trustee hereunder and, in such capacity, to hold the Trust Fund in
trust for the exclusive use and benefit of all present and future
Certificateholders. It is not intended that this Agreement create a partnership
or a joint-stock association.
(b) The Depositor, concurrently with the execution and delivery
hereof, does hereby sell, assign, transfer and otherwise convey to the Trustee
without recourse for the benefit of the Certificateholders, all the right, title
and interest of the Depositor in, to and under (i) the Original Mortgage Loans,
all payments under and proceeds of such Mortgage Loans received after the
Closing Date (other than scheduled payments of interest and principal due on or
before the respective Due Dates for the Original Mortgage Loans in June 2003),
and all documents included in the related Mortgage Files and Servicing Files and
any related Additional Collateral; (ii) any REO Property acquired in respect of
any such Mortgage Loan (or, in the case of any Great Lakes Crossing REO
Property, the Trust's interest therein); (iii) such funds or assets as from time
to time are deposited in the Collection Account, the Distribution Account, the
Interest Reserve Account, the Excess Liquidation Proceeds Account, the Great
Lakes Crossing Custodial Account (if established) and the Series 2003-CK2
Companion Loan Custodial Account and, if established, the REO Account; (iv) the
Mortgage Loan Purchase Agreements; (v) the Column Performance Guarantee; and
(vi) all other assets included or to be included in the Trust Fund. This
conveyance is subject to the right of the Designated Sub-Servicers to primary
service certain of the Original Mortgage Loans pursuant to the Designated
Sub-Servicer Agreements.
Under GAAP, the Depositor shall report and cause all of its records
to reflect: (i) its acquisition of the Original Column Mortgage Loans from
Column, pursuant to the Column Mortgage Loan Purchase Agreement, as a purchase
of such Mortgage Loans from Column; (ii) its acquisition of the Original KeyBank
Mortgage Loans from KeyBank, pursuant to the KeyBank Mortgage Loan Purchase
Agreement, as a purchase of such Mortgage Loans from KeyBank; (iii) its
acquisition of the Original Eurohypo Mortgage Loan from Eurohypo, pursuant to
the Eurohypo Mortgage Loan Purchase Agreement, as a purchase of such Mortgage
Loan from Eurohypo; (iv) its acquisition of the Original NCBFSB Mortgage Loans
from NCBFSB, pursuant to the NCBFSB Mortgage Loan Purchase Agreement, as a
purchase of such Mortgage Loans from NCBFSB; (v) its acquisition of the Original
PNC Mortgage Loans from PNC, pursuant to the PNC Mortgage Loan Purchase
Agreement, as a purchase of such Mortgage Loans from PNC; and (vi) its transfer
of the Original Mortgage Loans to the Trust, pursuant to this Section 2.01(b),
as a sale of such Mortgage Loans to the Trust; provided that, in the case of the
transactions described in clauses (i) and (vi) of this sentence, the Depositor
shall do so only upon the sale of Certificates representing at least 10% of the
aggregate Certificate Principal Balance of all the Certificates to parties that
are not Affiliates of the Depositor. Regardless of its treatment of the transfer
of the Original Mortgage Loans to the Trust under GAAP, the Depositor shall at
all times following the Closing Date cause all of its records and financial
statements and any relevant consolidated financial statements of any direct or
indirect parent clearly to reflect that the Original Mortgage Loans have been
transferred to the Trust and are no longer available to satisfy claims of the
Depositor's creditors.
After the Depositor's transfer of the Original Mortgage Loans to the
Trustee pursuant to this Section 2.01(b), the Depositor shall not take any
action inconsistent with the Trust's ownership of the Mortgage Loans.
(c) The conveyance of the Original Mortgage Loans and the related
rights and property accomplished hereby is absolute and is intended by the
parties hereto to constitute an absolute transfer of such Mortgage Loans and
such other related rights and property by the Depositor to the Trustee for the
benefit of the Certificateholders. Furthermore, it is not intended that such
conveyance be a pledge of security for a loan. If such conveyance is determined
to be a pledge of security for a loan, however, the Depositor and the Trustee
intend that the rights and obligations of the parties to such loan shall be
established pursuant to the terms of this Agreement. The Depositor and the
Trustee also intend and agree that, in such event, (i) this Agreement shall
constitute a security agreement under applicable law, (ii) the Depositor shall
be deemed to have granted to the Trustee (in such capacity) a first priority
security interest in all of the Depositor's right, title and interest in and to
the assets constituting the Trust Fund, including the Mortgage Loans subject
hereto from time to time, all principal and interest received on or with respect
to such Mortgage Loans after the Closing Date (other than scheduled payments of
interest and principal due and payable on such Mortgage Loans on or prior to the
related Due Date in June 2003 or, in the case of a Replacement Mortgage Loan, on
or prior to the related date of substitution), all amounts held from time to
time in each Collection Account, the Distribution Account, the Interest Reserve
Account, the Excess Liquidation Proceeds Account, each REO Account (if
established), the Great Lakes Crossing Custodial Account (if established) and
the Series 2003-CK2 Companion Loan Custodial Account, and all investment
earnings on such amounts, and all of the Depositor's right, title and interest
under the Mortgage Loan Purchase Agreements and the Column Performance
Guarantee, (iii) the possession by the Trustee or its agent of the Mortgage
Notes with respect to the Mortgage Loans subject hereto from time to time and
such other items of property as constitute instruments, money, negotiable
documents or chattel paper shall be deemed to be "possession by the secured
party" or possession by a purchaser or person designated by such secured party
for the purpose of perfecting such security interest under applicable law, and
(iv) notifications to, and acknowledgments, receipts or confirmations from,
Persons holding such property, shall be deemed to be notifications to, or
acknowledgments, receipts or confirmations from, securities intermediaries,
bailees or agents (as applicable) of the Trustee for the purpose of perfecting
such security interest under applicable law. The Depositor shall file or cause
to be filed, as a precautionary filing, a Form UCC-1 financing statement
substantially in the form attached as Exhibit J hereto in all appropriate
locations in the State of Delaware promptly following the initial issuance of
the Certificates, and the General Master Servicer shall prepare and file at each
such office, and the Trustee shall authorize continuation statements with
respect thereto, in each case within six months prior to the fifth anniversary,
and each succeeding anniversary that is a five-year multiple of the anniversary,
of the date of the filing of the applicable UCC Financing Statement. The
Depositor hereby authorizes the Trustee and the General Master Servicer to
prepare and file in the name of the Depositor, and shall cooperate in a
reasonable manner with the Trustee and the Master Servicers in preparing and
filing, such continuation statements. This Section 2.01(c) shall constitute
notice to the Trustee pursuant to any requirements of the UCC in effect in each
applicable jurisdiction.
(d) In connection with the Depositor's assignment pursuant to
Section 2.01(b) above, the Depositor hereby represents and warrants that it has
contractually obligated each Mortgage Loan Seller, at such Mortgage Loan
Seller's expense, pursuant to the related 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, on or before the Closing Date, the
Mortgage File and any Additional Collateral (other than Reserve Funds) for each
Original Mortgage Loan acquired by the Depositor from such Mortgage Loan Seller.
In addition, with respect to each Mortgage Loan under which any Additional
Collateral is in the form of a Letter of Credit as of the Closing Date, the
Depositor hereby represents and warrants that it has contractually obligated the
related Mortgage Loan Seller, subject to the next paragraph, to cause to be
prepared, executed and delivered to the issuer of each such Letter of Credit
such notices, assignments and acknowledgments as are required under such Letter
of Credit to assign, without recourse, to the Trustee (whether by actual
assignment or by amendment of the Letter of Credit) the related Mortgage Loan
Seller's rights as the beneficiary thereof and drawing party thereunder. The
Depositor shall deliver to the Trustee on or before the Closing Date a fully
executed counterpart of each Mortgage Loan Purchase Agreement and the Column
Performance Guarantee.
Notwithstanding the foregoing, if any Mortgage Loan Seller is unable
to deliver any Letter of Credit constituting Additional Collateral for any of
its Original Mortgage Loans, then that Mortgage Loan Seller may, in lieu
thereof, deliver on behalf of the related Borrower, to be used for the same
purposes as such missing Letter of Credit either: (i) a substitute instrument
substantially comparable to, but in all cases in the same amount and with the
same draw conditions and renewal rights as, that Letter of Credit and issued by
an obligor that meets any criteria in the related Mortgage Loan Documents
applicable to the issuer of that Letter of Credit; or (ii) a LOC Cash Reserve in
an amount equal to the amount of that Letter of Credit. For purposes of the
delivery requirements of this Section 2.01, any such substitute instrument shall
be deemed to be Additional Collateral of the type covered by the prior paragraph
of this Section 2.01(d) and any such LOC Cash Reserve shall be deemed to be
Reserve Funds of the type covered by Section 2.01(f).
(e) As soon as reasonably possible, and in any event within 90 days
after the later of (i) the Closing Date (or, in the case of a Replacement
Mortgage Loan substituted as contemplated by Section 2.03, after the related
date of substitution) and (ii) the date on which all recording information
necessary to complete the subject document is received by the Trustee, the
Trustee shall complete (to the extent necessary), and shall submit for recording
or filing, as the case may be, including via electronic means, if appropriate,
in or with the appropriate office for real property records or UCC Financing
Statements, as applicable, each assignment of Mortgage and assignment of
Assignment of Leases in favor of the Trustee referred to in clauses (a)(iv) and
(a)(v) of the definition of "Mortgage File" that has been received by the
Trustee or a Custodian on its behalf and each UCC-2 or UCC-3 assignment in favor
of the Trustee referred to in clause (a)(viii) of the definition of "Mortgage
File" that has been received by the Trustee or a Custodian on its behalf. Each
such assignment shall reflect that it should be returned by the public recording
office to the Trustee following recording, and each such UCC-2 or UCC-3
assignment shall reflect that the filed copy thereof or an appropriate receipt
therefor, as applicable, should be returned to the Trustee following filing;
provided that in those instances where the public recording office retains the
original assignment of Mortgage or assignment of Assignment of Leases the
Trustee shall obtain therefrom a copy of the recorded original. At such time as
such assignments, UCC-2s, UCC-3s or verifications of electronic filing have been
returned to the Trustee, the Trustee shall forward a copy thereof to the
applicable Master Servicer. 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 to prepare or cause to
be prepared promptly, pursuant to the related Mortgage Loan Purchase Agreement,
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. If any Mortgage Loan Seller has been so notified and has
not prepared a substitute document or cured such defect, as the case may be,
within 60 days, the Trustee shall promptly notify the applicable Master
Servicer, the applicable Special Servicer, the Rating Agencies and the
Controlling Class Representative. Each Mortgage Loan Seller shall be responsible
for paying the reasonable fees and out-of-pocket expenses of the Trustee in
connection with the above-referenced recording and filing of documents insofar
as it relates to the Original Mortgage Loans acquired by the Depositor from such
Mortgage Loan Seller, all as more particularly provided for in the related
Mortgage Loan Purchase Agreement.
Notwithstanding the foregoing, any Mortgage Loan Seller may elect
(in writing to the Trustee), at its sole cost and expense, to engage a
third-party contractor to prepare and complete in proper form for filing and
recording any and all of the assignments described in the immediately preceding
paragraph, including UCC-2 and UCC-3 assignments with respect to the Original
Mortgage Loans conveyed by it to the Depositor under the applicable Mortgage
Loan Purchase Agreement, to submit such assignments for filing and recording, as
the case may be, in the applicable public filing and recording offices and to
deliver such assignments to the Trustee or its designee as such assignments (or
certified copies thereof) are received from the applicable filing and recording
offices with evidence of such filing and recording indicated thereon. It is
hereby acknowledged that the PNC Mortgage Loan Seller has elected to engage such
a third-party contractor for the preparation, filing and recording and delivery
of such assignments to the Trustee in respect of the Original PNC Mortgage
Loans. The Trustee shall have no duties or obligations described in the
immediately preceding paragraph in respect of the Original PNC Mortgage Loans or
the Original Mortgage Loans provided by any other Mortgage Loan Seller that
makes a similar election with respect to its Original Mortgage Loans.
(f) In connection with the Depositor's assignment pursuant to
Section 2.01(b) above, the Depositor hereby represents and warrants that it has
contractually obligated each Mortgage Loan Seller, at such Mortgage Loan
Seller's expense, pursuant to the related Mortgage Loan Purchase Agreement, to
deliver to and deposit with, or cause to be delivered to and deposited with, the
applicable Master Servicer, within three (3) Business Days after the Closing
Date, the following items (except to the extent that any of the following items
are to be retained by a primary servicer that will continue to act on behalf of
the applicable Master Servicer as a Sub-Servicer): (i) originals or copies of
all financial statements, appraisals, environmental/engineering reports,
transaction screens, leases, rent rolls (except with respect to Co-op Mortgage
Loans), third-party underwriting reports, insurance policies, legal opinions,
tenant estoppels and any other relevant documents that the applicable Master
Servicer or applicable Special Servicer reasonably deems necessary to service
the subject Mortgage Loan in the possession or under the control of such
Mortgage Loan Seller that relate to the Original Mortgage Loans transferred by
it to the Depositor, copies of all documents required to be delivered by such
Mortgage Loan Seller to the Trustee or Custodian as a part of the related
Mortgage File and, to the extent they are not required to be a part of a
Mortgage File for any such Original Mortgage Loan, originals or copies of all
documents, certificates and opinions in the possession or under the control of
such Mortgage Loan Seller that were delivered by or on behalf of the related
Borrowers in connection with the origination of such Original Mortgage Loans
(provided, that (other than the underwriting model contained in the related
underwriting memorandum or asset summary report prepared by any Mortgage Loan
Seller and provided to Ernst & Young, LLP in connection with the preparation of
Exhibit A-1 to the Prospectus Supplement) such Mortgage Loan Seller shall not be
required to deliver any attorney-client privileged communication or any
documents or materials prepared by it or its Affiliates solely for internal
credit analysis or other internal uses); and (ii) all unapplied Reserve Funds
and Escrow Payments in the possession or under the control of such Mortgage Loan
Seller that relate to the Original Mortgage Loans transferred by such Mortgage
Loan Seller to the Depositor. The Master Servicers shall hold all such
documents, records and funds that it so receives on behalf of the Trustee in
trust for the benefit of the Certificateholders and, insofar as such items
relate to a B Loan or the Washington Center Junior Loans, the related B Loan
Holder or Washington Center Junior Holders, as applicable.
(g) Also in connection with the Depositor's assignment pursuant to
Section 2.01(b) above, the Depositor shall deliver to and deposit with, or cause
to be delivered to and deposited with, the applicable Master Servicer, on or
before the Closing Date, the original or a copy of any Group Environmental
Insurance Policy acquired by the Depositor or an Affiliate of the Depositor.
Section 2.02 Acceptance of Mortgage Assets by Trustee
(a) Subject to the other provisions in this Section 2.02, the
Trustee, by its execution and delivery of this Agreement, hereby accepts receipt
on behalf of the Trust, directly or through a Custodian on its behalf, of (i)
the Original Mortgage Loans and all documents delivered to it that constitute
portions of the related Mortgage Files and (ii) all other assets delivered to it
and included in the Trust Fund, 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 any other documents received by it that constitute portions
of the Mortgage Files, and that it holds and will hold the Original Mortgage
Loans and such other assets, together with any other Mortgage Loans and assets
subsequently delivered to it that are to be included in the Trust Fund, in trust
for the exclusive use and benefit of all present and future Certificateholders.
The Trustee or such Custodian (acting through the applicable Master Servicer)
shall hold any Letter of Credit in a custodial capacity only and shall have no
obligation to maintain, extend the term of, enforce or otherwise pursue any
rights under such Letter of Credit which obligation the applicable Master
Servicer hereby undertakes. In connection with the foregoing, the Trustee hereby
certifies to each of the other parties hereto and the Mortgage Loan Sellers
that, as to each Original Mortgage Loan, except as to any LOC Cash Reserve and
except as specifically identified in the Schedule of Exceptions to Mortgage File
Delivery attached hereto as Exhibit B-2, (i) the Specially Designated Mortgage
Loan Documents (without regard to Assignments of Leases, modification agreements
and assumption agreements) are in its possession or the possession of a
Custodian on its behalf, and (ii) such Mortgage Loan Documents have been
reviewed by it or by such Custodian on its behalf and (A) appear regular on
their face (handwritten additions, changes or corrections shall not constitute
irregularities if initialed by the Borrower), (B) appear to have been executed
and (C) purport to relate to such Mortgage Loan. To the extent that the contents
of the Mortgage File for any A Loan relate to the corresponding B Loan or
Washington Center Junior Loans, as the case may be, the Trustee will also hold
such Mortgage File in trust for the benefit of the holder of the related B Loan
or the Washington Center Junior Loans.
(b) On or about the 75th day following the Closing Date (and, if any
exceptions are noted or if the recordation/filing contemplated by Section
2.01(e) has not been completed (based solely on receipt by the Trustee of the
particular documents showing evidence of the recordation/filing), every 90 days
thereafter until the earlier of (i) the date on which such exceptions are
eliminated and such recordation/filing has been completed, and (ii) the date on
which all the affected Mortgage Loans are removed from the Trust Fund), the
Trustee or a Custodian on its behalf shall review the documents delivered to it
or such Custodian with respect to each Original Mortgage Loan, and the Trustee
shall, subject to Sections 1.04, 2.02(c) and 2.02(d), certify in writing
(substantially in the form of Exhibit B-3) to each of the other parties hereto,
the Mortgage Loan Sellers and the Controlling Class Representative that, as to
each Original Mortgage Loan then subject to this Agreement (except as to any LOC
Cash Reserve and except as specifically identified in any exception report
annexed to such certification): (i) the original Mortgage Note specified in
clause (a)(i) of the definition of "Mortgage File" and all allonges thereto, if
any (or a copy of such Mortgage Note, together with a lost note affidavit and
indemnity certifying that the original of such Mortgage Note has been lost), the
original or copy of documents specified in clauses (a)(ii) through (a)(v),
(a)(vii), (a)(x), (a)(xii) and (a)(xiii) of the definition of "Mortgage File"
and, in the case of a hospitality property, the documents specified in clause
(a)(viii) of the definition of "Mortgage File" (without regard to the
parenthetical) and any other Specially Designated Mortgage Loan Documents
(without regard to modification agreements and assumption agreements), have been
received by it or a Custodian on its behalf; (ii) if such Mortgage Loan is the
Great Lakes Crossing Mortgage Loan, the original Mortgage Note specified in
clause (b)(i) of the definition of "Mortgage File" and all allonges thereto, if
any (or a copy of such Mortgage Note, together with a "lost note affidavit and
indemnity" certifying that the original of such Mortgage Note has been lost),
and the original or a copy of each document specified in clauses (b)(ii) and
(b)(iii) of the definition of "Mortgage File", have been received by the Trustee
or a Custodian on its behalf; (iii) if such report is due more than 180 days
after the Closing Date, the recordation/filing contemplated by Section 2.01(e)
(except in the case of the Great Lakes Crossing Mortgage Loan) has been
completed (based solely on receipt by the Trustee of the particular
recorded/filed documents or an appropriate receipt of recording/filing
therefor); (iv) all documents received by it or any Custodian with respect to
such Mortgage Loan have been reviewed by it or by such Custodian on its behalf
and (A) appear regular on their face (handwritten additions, changes or
corrections shall not constitute irregularities if initialed by the Borrower),
(B) appear to have been executed and (C) purport to relate to such Mortgage
Loan; and (v) based on the examinations referred to in Section 2.02(a) above and
this Section 2.02(b) and only as to the foregoing documents, the information set
forth in the Mortgage Loan Schedule with respect to the items specified in
clause (iii)(A) and clause (vi) of the definition of "Mortgage Loan Schedule"
accurately reflects the information set forth in the related Mortgage File.
If a Mortgage Loan Seller or the Column Performance Guarantor
substitutes a Replacement Mortgage Loan for any Defective Mortgage Loan as
contemplated by Section 2.03, the Trustee or a Custodian on its behalf shall
review the documents delivered to it or such Custodian with respect to such
Replacement Mortgage Loan, and the Trustee shall deliver a certification
comparable to that described in the prior paragraph, in respect of such
Replacement Mortgage Loan, on or about the 30th day following the related date
of substitution (and, if any exceptions are noted, every 90 days thereafter
until the earlier of (i) the date on which such exceptions are eliminated and
all related recording/filing has been completed, and (ii) the date on which such
Replacement Mortgage Loan is removed from the Trust Fund).
With respect to the documents described in clause (a)(iii) of the
definition of "Mortgage File", absent actual knowledge to the contrary, the
Trustee may assume, for purposes of the certification(s) delivered in this
Section 2.02(a) or to be delivered pursuant to Section 2.02(b), that the
Mortgage File for each Mortgage Loan includes a separate Assignment of Leases.
With respect to the documents described in clause (a)(viii) of the
definition of "Mortgage File", absent actual knowledge to the contrary or copies
of UCC Financing Statements delivered to the Trustee as part of the Mortgage
File indicating otherwise, the Trustee may assume, for purposes of the
certification(s) to be delivered pursuant to this Section 2.02(b), that the
Mortgage File for each Mortgage Loan should include one state-level UCC
Financing Statement filing in the state of incorporation or organization of the
related Borrower for each Mortgaged Property (or with respect to any Mortgage
Loan that has two or more Borrowers, for each related Borrower). To the extent
appropriate under applicable law, the UCC-2s and UCC-3s in favor of the Trustee
will be delivered on the new national forms and in recordable form and will be
filed in the state of incorporation or organization as so indicated on the
documents provided.
(c) None of the Trustee, the Master Servicers, the Special Servicers
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, binding, enforceable, sufficient or appropriate for the
represented purpose or that they are other than what they purport to be on their
face or to determine whether any of the representations and warranties made by
any Mortgage Loan Seller in its respective Mortgage Loan Purchase Agreement are
true and correct when made. Furthermore, except as expressly provided in Section
2.01(e), none of the Trustee, the Master Servicers, the Special Servicers or any
Custodian shall have any responsibility for determining whether the text of any
assignment or endorsement is in proper or recordable form, whether the requisite
recording of any document is in accordance with the requirements of any
applicable jurisdiction, or whether a blanket assignment is permitted in any
applicable jurisdiction.
(d) In performing the reviews contemplated by subsections (a) and
(b) above, the Trustee may conclusively rely on the related Mortgage Loan Seller
as to the purported genuineness of any such document and any signature thereon.
It is understood that the scope of the Trustee's review of the Mortgage Files is
limited solely to confirming that the documents specified in clauses (a)(i)
through (a)(v), clause (a)(vii) and, in the case of any Mortgage Loan secured by
a Mortgage on a hospitality property, clause (a)(viii) of the definition of
"Mortgage File" and any other Specially Designated Mortgage Loan Documents
(without regard to modification agreements and assumption agreements), have been
received and such additional information as will be necessary for delivering the
certifications required by subsections (a) and (b) above.
Section 2.03 Certain Repurchases and Substitutions of Mortgage Loans
by the Mortgage Loan Sellers or the Column Performance Guarantor
(a) If any party hereto discovers (without implying any duty to make
such discovery), or receives notice from a non-party, that a Document Defect or
Breach exists with respect to any Mortgage Loan, then such party shall give
prompt written notice thereof to the other parties hereto, including (unless it
is the party that discovered the Document Defect or Breach) the Trustee. Upon
the Trustee's discovery or receipt of notice that a Document Defect or Breach
exists with respect to any Mortgage Loan, the Trustee shall notify the
Controlling Class Representative, the Depositor and each Person that would be a
Responsible Party with respect thereto if such Document Defect or Breach, as the
case may be, were a Material Document Defect or a Material Breach, as
applicable.
If necessary, the Trustee shall request each Mortgage Loan Seller to
comply with the second paragraph of Section 2(c) of the related Mortgage Loan
Purchase Agreement with respect to any Document Defect or other deficiency in a
Mortgage File relating to an Original Mortgage Loan transferred by such Mortgage
Loan Seller to the Depositor. If the Trustee becomes aware of any failure on the
part of any Mortgage Loan Seller to do so, the Trustee shall promptly notify the
applicable Master Servicer and the applicable Special Servicer.
(b) Promptly upon its determination that any Material Document
Defect or Material Breach exists with respect to any Mortgage Loan or its
receipt of notice from the Trustee or any other party to this Agreement of a
Material Document Defect or Material Breach with respect to any Mortgage Loan,
the applicable Master Servicer or the applicable Special Servicer with respect
to Specially Serviced Mortgage Loans, shall notify the Responsible Party or
Parties with respect thereto in writing of such Material Document Defect or
Material Breach, as the case may be, and direct such Responsible Party or
Parties that it or they, as the case may be, must, not later than 90 days from
the receipt by such Responsible Party or Parties of such notice (or, if such
Material Breach or Material Document Defect, as the case may be, relates to
whether such Mortgage Loan is or, as of the Closing Date (or, in the case of a
Replacement Mortgage Loan, as of the related date of substitution), was a
Qualified Mortgage, and provided that such Responsible Party or Parties received
prompt written notice thereof, within 90 days after any earlier discovery by any
party to this Agreement of such Material Breach or Material Document Defect, as
the case may be) (such 90-day period, in any case, the "Initial Resolution
Period"), correct or cure such Material Document Defect or Material Breach, as
the case may be, in all material respects, or repurchase the affected Mortgage
Loan (as, if and to the extent required by the related Mortgage Loan Purchase
Agreement or the Column Performance Guarantee), at the applicable Purchase
Price; provided that if a Responsible Party with respect to any Material
Document Defect or Material Breach certifies to the Trustee in writing (i) that
such Material Document Defect or Material Breach, as the case may be, does not
relate to whether the affected Mortgage Loan is or, as of the Closing Date (or,
in the case of a Replacement Mortgage Loan, as of the related date of
substitution), was a Qualified Mortgage, (ii) that such Material Document Defect
or Material Breach, as the case may be, is capable of being cured but not within
the applicable Initial Resolution Period, (iii) that such Responsible Party has
commenced and is diligently proceeding with the cure of such Material Document
Defect or Material Breach, as the case may be, during the applicable Initial
Resolution Period, (iv) what actions such Responsible Party is pursuing in
connection with the cure of such Material Document Defect or Material Breach, as
the case may be, and (v) that such Responsible Party anticipates that such
Material Document Defect or Material Breach, as the case may be, will be cured
within an additional 90-day period (such additional 90-day period, the
"Resolution Extension Period") (a copy of which certification shall be delivered
by the Trustee to the applicable Master Servicer, the applicable Special
Servicer and the Controlling Class Representative), then such Responsible Party
(or, if applicable, both of the Responsible Parties with respect to such
Material Document Defect or Material Breach, as the case may be) shall have an
additional period equal to any such applicable Resolution Extension Period to
complete such correction or cure (or, upon failure to complete such correction
or cure, to repurchase the affected Mortgage Loan); and provided, further, that,
in lieu of repurchasing the affected Mortgage Loan as contemplated above (but,
in any event, no later than such repurchase would have to have been completed),
a Responsible Party with respect to any Material Document Defect or Material
Breach shall be permitted, during the three-month period following the Startup
Day for any Trust REMIC that holds the related Mortgage Loan (or during the
two-year period following such Startup Day if the affected Mortgage Loan is a
"defective obligation" within the meaning of Section 860G(a)(4)(B)(ii) of the
Code and Treasury Regulations Section 1.860G-2(f)), to replace the affected
Mortgage Loan with one or more Qualifying Substitute Mortgage Loans and to pay a
cash amount equal to the applicable Substitution Shortfall Amount, subject to
any other applicable terms and conditions of the related Mortgage Loan Purchase
Agreement or the Column Performance Guarantee, as applicable, and this
Agreement. If any Mortgage Loan is to be repurchased or replaced as contemplated
by this Section 2.03, the applicable Master Servicer shall designate its
Collection Account as the account to which funds in the amount of the applicable
Purchase Price or Substitution Shortfall Amount (as the case may be) are to be
wired, and the applicable Master Servicer shall promptly notify the Trustee when
such deposit is made. Any such repurchase or replacement of a Mortgage Loan
shall be on a whole loan, servicing released basis.
The remedies provided for in this Section 2.03(b) with respect to
any Material Document Defect or Material Breach with respect to any Mortgage
Loan shall apply to the related REO Property.
If one or more (but not all) of the Mortgage Loans constituting a
Cross-Collateralized Group are to be repurchased or replaced by a Responsible
Party, as contemplated by this Section 2.03, then, prior to the subject
repurchase or substitution, the applicable Master Servicer (or, in the case of a
Specially Serviced Mortgage Loan, the applicable Special Servicer) shall use its
reasonable efforts, subject to the terms of the affected Mortgage Loans, to
prepare and, to the extent necessary and appropriate, have executed by the
related Borrower and record, such documentation as may be necessary to terminate
the cross-collateralization between the Mortgage Loans in such
Cross-Collateralized Group that are to be repurchased or replaced, on the one
hand, and the remaining Mortgage Loans therein, on the other hand, such that
those two groups of Mortgage Loans are each secured only by the Mortgaged
Properties identified in the Mortgage Loan Schedule as directly corresponding
thereto; provided that no such termination shall be effected unless (i) the
Mortgage Loan or Mortgage Loans from such Cross-Collateralized Group that are to
remain part of the Trust Fund have a debt service coverage ratio that is not
less than the greater of (A) the debt service coverage ratio of the
Cross-Collateralized Group, as a collective whole, immediately prior to such
repurchase or replacement and (B) 1.25x and (ii) the loan-to-value ratio with
respect to the Mortgage Loan or Mortgage Loans that are to remain part of the
Trust Fund after the repurchase or replacement of the affected Mortgage Loan is
not greater than the lesser of (A) the loan-to-value ratio of the
Cross-Collateralized Group, as a collective whole, immediately prior to such
repurchase or replacement and (B) 75%; and provided, further, that no such
termination shall be effected unless and until the applicable Master Servicer
and the Trustee have received from a Responsible Party, (i) an Opinion of
Counsel addressed to the Trustee and the applicable Master Servicer from
Independent counsel to the effect that such termination will not cause an
Adverse REMIC Event to occur with respect to the Upper-Tier REMIC, Lower-Tier
REMIC or 000 Xxxxx Xxxxxx Loan REMIC or an Adverse Grantor Trust Event with
respect to the Grantor Trust and (ii) written confirmation from each Rating
Agency that such termination will not cause an Adverse Rating Event to occur
with respect to any Class of Rated Certificates; and provided, further, that a
Responsible Party, may, at its option, repurchase or replace the entire
Cross-Collateralized Group without termination of the cross-collateralization.
To the extent necessary and appropriate, the Trustee shall execute (or, subject
to Section 3.10, provide the applicable Master Servicer or Special Servicer with
a limited power of attorney that enables the applicable Master Servicer or
Special Servicer to execute) the loan documentation referred to in the prior
sentence; provided that the Trustee shall not be liable for any misuse of any
such power of attorney by the applicable Master Servicer or Special Servicer.
The applicable Master Servicer shall advance all costs and expenses incurred by
the Trustee and the applicable Master Servicer with respect to any
Cross-Collateralized Group pursuant to this paragraph, and such advances shall
(i) constitute and be reimbursable as Servicing Advances and (ii) be included in
the calculation of Purchase Price for the Mortgage Loan(s) to be repurchased or
replaced. Neither the applicable Master Servicer nor the applicable Special
Servicer shall be liable to any Certificateholder or any other party hereto if
the cross-collateralization of any Cross-Collateralized Group cannot be
terminated as contemplated by this paragraph for any reason beyond the control
of the applicable Master Servicer or the applicable Special Servicer, as the
case may be.
If the cross-collateralization of any Cross-Collateralized Group of
Mortgage Loans cannot be terminated as contemplated by the preceding paragraph
for any reason (including, but not limited to, the failure of the related
Responsible Party to satisfy any of the conditions set forth in the provisos to
the first sentence of the preceding paragraph), then, for purposes of this
Section 2.03, the related Mortgage Loan Purchase Agreement, and, in the case of
a Cross-Collateralized Group of Column Mortgage Loans, the Column Performance
Guarantee, including for purposes of (i) determining whether the particular
Breach or Document Defect that gave rise to the repurchase/substitution
obligation for such Cross-Collateralized Group is a Material Breach or Material
Document Defect, as the case may be, and (ii) the application of remedies, such
Cross-Collateralized Group shall be treated as a single Mortgage Loan.
Whenever one or more Replacement Mortgage Loans are substituted for
a Defective Mortgage Loan by a Responsible Party, as contemplated by this
Section 2.03, the applicable Master Servicer or Special Servicer, as applicable,
shall direct the party effecting the substitution to deliver the related
Mortgage File to the Trustee, to certify that such Replacement Mortgage Loan
satisfies or such Replacement Mortgage Loans satisfy, as the case may be, all of
the requirements of the definition of "Qualifying Substitute Mortgage Loan" and
to send such certification to the Trustee. No mortgage loan may be substituted
for a Defective Mortgage Loan as contemplated by this Section 2.03 if the
Mortgage Loan to be replaced was itself a Replacement Mortgage Loan, in which
case, absent a cure of the relevant Material Breach or Material Document Defect,
the affected Mortgage Loan will be required to be repurchased as contemplated
hereby. Monthly Payments due with respect to each Replacement Mortgage Loan (if
any) after the related date of substitution, and Monthly Payments due with
respect to each corresponding Deleted Mortgage Loan (if any) after the related
Due Date in June 2003 and received by the applicable Master Servicer or the
applicable Special Servicer on behalf of the Trust on or prior to the related
date of substitution, shall be part of the Trust Fund. Monthly Payments due with
respect to each Replacement Mortgage Loan (if any) on or prior to the related
date of substitution, and Monthly Payments due with respect to each
corresponding Deleted Mortgage Loan (if any) and received by the applicable
Master Servicer or the applicable Special Servicer on behalf of the Trust after
the related date of substitution, shall not be part of the Trust Fund and are to
be remitted by the applicable Master Servicer to the party effecting the related
substitution promptly following receipt.
If any Mortgage Loan is to be repurchased or replaced by a
Responsible Party as contemplated by this Section 2.03, the applicable Master
Servicer or Special Servicer, as applicable, shall direct such party to amend
the Mortgage Loan Schedule to reflect the removal of any Deleted Mortgage Loan
and, if applicable, the substitution of the related Replacement Mortgage
Loan(s); and, upon its receipt of such amended Mortgage Loan Schedule, the
applicable Master Servicer or Special Servicer, as applicable, shall deliver or
cause the delivery of such amended Mortgage Loan Schedule to the other parties
hereto. Upon any substitution of one or more Replacement Mortgage Loans for a
Deleted Mortgage Loan, such Replacement Mortgage Loan(s) shall become part of
the Trust Fund and be subject to the terms of this Agreement in all respects.
In the event that the Master Servicer, the Special Servicer or the
Trustee is notified or otherwise has actual knowledge that Column and KeyBank
have an obligation to repurchase the Great Lakes Crossing Companion Loan from
the Series 2003-CK2 Trust by reason of a "Material Document Defect" or a
"Material Breach" (as such terms are defined in the Series 2003-CK2 PSA), then
such party shall promptly notify the other such parties, and the Master Servicer
shall, as and to the extent contemplated by the Column Mortgage Loan Purchase
Agreement and the KeyBank Mortgage Loan Purchase Agreement, direct Column and
KeyBank to repurchase the Great Lakes Crossing Mortgage Loan at the Purchase
Price contemporaneously with any repurchase of the Great Lakes Crossing
Companion Loan.
The reasonable "out-of-pocket" costs and expenses incurred by the
applicable Master Servicer, the applicable Special Servicer and/or the Trustee
pursuant to this Section 2.03(b), including reasonable attorney fees and
expenses, shall constitute Servicing Advances to the extent not collected from
the related Responsible Party; provided, that any such "out-of-pocket" costs and
expenses incurred by the applicable Master Servicer or the applicable Special
Servicer and/or the Trustee pursuant to this Section 2.03(b) including
reasonable attorneys' fees and expenses, which constitute Servicing Advances
that arise from the enforcement of a remedy for a Material Breach or Material
Document Defect in accordance with this Section 2.03 by the applicable Master
Servicer or the applicable Special Servicer that relate to the Washington Center
Loan shall not be payable out of or reduce any amounts otherwise distributable
to, any Washington Center Junior Loan.
(c) Upon receipt of an Officer's Certificate from the applicable
Master Servicer to the effect that the full amount of the Purchase Price or
Substitution Shortfall Amount (as the case may be) for any Mortgage Loan
repurchased or replaced by the related Responsible Party as contemplated by this
Section 2.03 has been deposited in such Master Servicer's Collection Account,
and further, if applicable, upon receipt of the Mortgage File for each
Replacement Mortgage Loan (if any) to be substituted for a Deleted Mortgage
Loan, together with any certifications and/or opinions required pursuant to
Section 2.03(b) to be delivered by the party effecting the
repurchase/substitution, the Trustee shall (i) release or cause the release of
the Mortgage File and any Additional Collateral held by or on behalf of the
Trustee for the Deleted Mortgage Loan to the party effecting the
repurchase/substitution or its designee and (ii) execute and deliver such
endorsements and instruments of release, transfer and/or assignment, in each
case without recourse, as shall be provided to it and are reasonably necessary
to vest in the party effecting the repurchase/substitution or its designee the
legal and beneficial ownership of the Deleted Mortgage Loan (including any
property acquired in respect thereof or proceeds of any insurance policy with
respect thereto) and the related Mortgage Loan Documents, and the applicable
Master Servicer shall notify the affected Borrowers of the transfers of the
Deleted Mortgage Loan(s) and any Replacement Mortgage Loan(s). In connection
with any such repurchase or substitution by the related Responsible Party, each
of the applicable Master Servicer and the applicable Special Servicer shall
deliver to the party effecting the repurchase/substitution or its designee any
portion of the related Servicing File, together with any Escrow Payments,
Reserve Funds and Additional Collateral, held by or on behalf of the applicable
Master Servicer or the applicable Special Servicer, as the case may be, with
respect to the Deleted Mortgage Loan, in each case at the expense of the party
effecting the repurchase/substitution. The Trustee shall notify the related B
Loan Holder or Washington Center Junior Holders, as the case may be, of any
repurchase regarding an A Loan. The reasonable "out-of-pocket" costs and
expenses, including reasonable attorneys' fees and expenses, incurred by the
applicable Master Servicer, the applicable Special Servicer and/or the Trustee
pursuant to this Section 2.03(c), to the extent not collected from the related
Responsible Party, shall be reimbursable to each of them as Servicing Advances
in respect of the affected Mortgage Loan; provided, that any such
"out-of-pocket" costs and expenses incurred by the applicable Master Servicer or
the applicable Special Servicer and/or the Trustee pursuant to this Section
2.03(c) including reasonable attorneys' fees and expenses, which constitute
Servicing Advances that arise from the enforcement of a remedy for a Material
Breach or Material Document Defect in accordance with this Section 2.03 by the
applicable Master Servicer or the applicable Special Servicer that relate to the
Washington Center Loan shall not be payable out of or reduce any amounts
otherwise distributable to, any Washington Center Junior Loan.
(d) The related Mortgage Loan Purchase Agreement, the Column
Performance Guarantee and/or this Pooling and Servicing Agreement provide the
sole remedies available to the Certificateholders, or the Trustee on their
behalf, respecting any Document Defect or Breach. If, in connection with any
Material Document Defect or Material Breach, each Responsible Party with respect
thereto defaults on its obligations to cure such Material Document Defect or
Material Breach, as the case may be, in all material respects or to repurchase
or replace the affected Mortgage Loan as contemplated by this Section 2.03, or
if, in connection with any repurchase of the Great Lakes Crossing Companion Loan
from the Series 2003-CK2 Trust, Column defaults on its obligation to repurchase
the Great Lakes Crossing Mortgage Loan, then the applicable Master Servicer or
the applicable Special Servicer, as applicable, shall promptly notify the
Trustee and the Controlling Class Representative, and the Trustee shall notify
the Certificateholders. Thereafter, the applicable Master Servicer or the
applicable Special Servicer shall take such actions on behalf of the Trust with
respect to the enforcement of such repurchase/substitution obligations (and if
the applicable Master Servicer or the applicable Special Servicer is notified or
otherwise becomes aware of a default on the part of any Mortgage Loan Seller in
respect of its obligations under the second paragraph of Section 2(c) of the
related Mortgage Loan Purchase Agreement, the applicable Master Servicer or the
applicable Special Servicer shall also take such actions on behalf of the Trust
with respect to the enforcement of such obligations of such Mortgage Loan
Seller), including the institution and prosecution of appropriate legal
proceedings, as the applicable Master Servicer (or, if applicable, the
applicable Special Servicer) shall determine are in the best interests of the
Certificateholders (taken as a collective whole). Any and all reasonable
"out-of-pocket costs and expenses incurred by the applicable Master Servicer,
the applicable Special Servicer and/or the Trustee pursuant to this Section
2.03(d), including, reasonable attorney's fees and expenses, to the extent not
collected from the related Responsible Party, shall constitute Servicing
Advances in respect of the affected Mortgage Loan; provided, that any such
"out-of-pocket" costs and expenses incurred by the applicable Master Servicer or
the applicable Special Servicer and/or the Trustee pursuant to this Section
2.03(d) including reasonable attorneys' fees and expenses, which constitute
Servicing Advances that arise from the enforcement of a remedy for a Material
Breach or Material Document Defect in accordance with this Section 2.03 by the
applicable Master Servicer or the applicable Special Servicer that relate to the
Washington Center Loan shall not be payable out of or reduce any amounts
otherwise distributable to, any Washington Center Junior Loan.
(e) If the applicable Responsible Party incurs any expense in
connection with the curing of a Breach which also constitutes a default under
the related Mortgage Loan, such Responsible Party shall have a right, and shall
be subrogated to the rights of the Trustee, as successor to the Mortgagee, to
recover the amount of such expenses from the related Borrower; provided,
however, that such Responsible Party's rights pursuant to this Section 2.03(e)
shall be junior, subject and subordinate to the rights of the Trust Fund, the
applicable Master Servicer and the applicable Special Servicer to recover
amounts owed by the related Borrower under the terms of such Mortgage Loan,
including, without limitation, the rights to recover unreimbursed Advances,
accrued and unpaid interest on Advances at the Reimbursement Rate and unpaid or
unreimbursed expenses of the Trust Fund, the applicable Master Servicer or the
applicable Special Servicer allocable to such Mortgage Loan; provided, further,
that in the event and to the extent that such expenses of such Responsible Party
in connection with any Mortgage Loan exceed five percent (5%) of the then
outstanding principal balance of such Mortgage Loan, then such Responsible
Party's rights to reimbursement pursuant to this Section 2.03(e) with respect to
such Mortgage Loan and such excess expenses shall not (without the prior consent
of the applicable Master Servicer or Special Servicer, as applicable, which
shall not be unreasonably withheld) be exercised until the payment in full of
such Mortgage Loan (as such Mortgage Loan may be amended or modified pursuant to
the terms of this Agreement) unless the applicable statute of limitations
requires commencement of any action prior to the payment in full of such
Mortgage Loan. Notwithstanding any other provision of this Agreement to the
contrary, the applicable Master Servicer or, with respect to a Specially
Serviced Mortgage Loan, the applicable Special Servicer, shall not have any
obligation pursuant to this Agreement to collect such reimbursable amounts on
behalf of such Responsible Party; provided, however, that the preceding clause
shall not operate to prevent the applicable Master Servicer or, with respect to
a Specially Serviced Mortgage Loan, the applicable Special Servicer, from using
reasonable efforts, exercised in its sole discretion, to collect such amounts to
the extent consistent with the Servicing Standard. The applicable Responsible
Party may pursue its rights to reimbursement of such expenses directly against
the Borrower, by suit or otherwise, provided that (a) the applicable Master
Servicer or, with respect to a Specially Serviced Mortgage Loan, the applicable
Special Servicer determines in the exercise of its sole discretion consistent
with the Servicing Standard that such actions by such Responsible Party will not
impair such Master Servicer's and/or such Special Servicer's collection or
recovery of principal, interest and other sums due with respect to the related
Mortgage Loan and, if applicable, the related B Loan which would otherwise be
payable to the applicable Master Servicer, the applicable Special Servicer, the
Trustee, and the Certificateholders and, if applicable, the B Loan Holder
pursuant to the terms of this Agreement, (b) such actions will not include an
involuntary bankruptcy, receivership or insolvency proceeding against the
Borrower, (c) such actions will not include the foreclosure or enforcement of
any lien or security interest under the related Mortgage or other Mortgage Loan
Document and (d) such actions will not result in the imposition of an additional
lien against the related Mortgaged Property.
Section 2.04 Representations and Warranties of the Depositor
(a) The Depositor hereby represents and warrants to each of the
other parties hereto and for the benefit of the Certificateholders, as of the
Closing Date, that:
(i) The Depositor is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware.
(ii) The Depositor's execution and delivery of, performance under,
and compliance with this Agreement, will not violate the Depositor's
organizational documents or constitute a default (or an event which, with
notice or lapse of time, or both, would constitute a default) under, or
result in the breach of, any material agreement or other material
instrument to which it is a party or by which it is bound, which default
or breach, in the good faith and reasonable judgment of the Depositor, 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.
(iii) The Depositor has the full power and authority to own its
properties, to conduct its business as presently conducted by it and to
enter into and consummate all transactions involving the Depositor
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, receivership, 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, performance under and compliance with 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) No consent, approval, authorization or order of any state or
federal court or governmental agency or body is required for the
consummation by the Depositor of the transactions contemplated herein,
except (A) for those consents, approvals, authorizations or orders that
previously have been obtained, (B) such as may be required under the blue
sky laws of any jurisdiction in connection with the purchase and sale of
the Certificates by the Underwriters, and (C) any recordation of the
assignments of Mortgage Loan Documents to the Trustee pursuant to Section
2.01(e), which has not yet been completed.
(vii) The Depositor's transfer of the Original 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.
(viii) The Depositor is not transferring the Original Mortgage Loans
to the Trustee with any intent to hinder, delay or defraud its present or
future creditors.
(ix) The Depositor has been solvent at all relevant times prior to,
and will not be rendered insolvent by, its transfer of the Original
Mortgage Loans to the Trustee, pursuant to Section 2.01(b).
(x) After giving effect to its transfer of the Original Mortgage
Loans to the Trustee, pursuant to Section 2.01(b), the value of the
Depositor's assets, either taken at their present fair saleable value or
at fair valuation, will exceed the amount of the Depositor's debts and
obligations, including contingent and unliquidated debts and obligations
of the Depositor, and the Depositor will not be left with unreasonably
small assets or capital with which to engage in and conduct its business.
(xi) The Depositor does not intend to, and does not believe that it
will, incur debts or obligations beyond its ability to pay such debts and
obligations as they mature.
(xii) No proceedings looking toward merger, liquidation, dissolution
or bankruptcy of the Depositor are pending or contemplated.
(xiii) 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.
(xiv) Immediately prior to the transfer of the Original Mortgage
Loans to the Trustee for the benefit of the Certificateholders pursuant to
this Agreement, the Depositor had such right, title and interest in and to
each Original Mortgage Loan as was transferred to it by the related
Mortgage Loan Seller pursuant to the related Mortgage Loan Purchase
Agreement. The Depositor has not transferred any of its right, title and
interest in and to the Original Mortgage Loans to any Person other than
the Trustee.
(xv) The Depositor is transferring all of its right, title and
interest in and to the Original Mortgage Loans to the Trustee for the
benefit of the Certificateholders free and clear of any and all liens,
pledges, charges, security interests and other encumbrances created by or
through the Depositor.
(xvi) Except for any actions that are the express responsibility of
another party hereunder or under any Mortgage Loan Purchase Agreement, and
further except for actions that the Depositor is expressly permitted to
complete subsequent to the Closing Date, the Depositor has taken all
actions required under applicable law to effectuate the transfer of all of
its right, title and interest in and to the Original Mortgage Loans by the
Depositor to the Trustee.
(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 remains in existence. Upon discovery by any party hereto of
any breach of any of such representations and warranties that materially and
adversely affects the interests of the Certificateholders or any party hereto,
the party discovering such breach shall give prompt written notice thereof to
the other parties hereto.
Section 2.05 Representations and Warranties of the General Master
Servicer
(a) The General Master Servicer hereby represents and warrants to
each of the other parties hereto and for the benefit of the Certificateholders,
as of the Closing Date, that:
(i) The General Master Servicer is a corporation duly organized,
validly existing and in good standing under the laws of the State of Ohio,
and the General Master Servicer is in compliance with the laws of each
State in which any related Mortgaged Property is located to the extent
necessary to ensure the enforceability of each General Mortgage Loan and
to perform its obligations under this Agreement.
(ii) The General Master Servicer's execution and delivery of,
performance under and compliance with this Agreement, will not violate the
General Master Servicer's organizational documents or constitute a default
(or an event which, with notice or lapse of time, or both, would
constitute a default) under, or result in the breach of, any material
agreement or other material instrument to which it is a party or by which
it is bound, which default or breach, in the good faith and reasonable
judgment of the General Master Servicer, is likely to affect materially
and adversely either the ability of the General Master Servicer to perform
its obligations under this Agreement or the financial condition of the
General Master Servicer.
(iii) The General Master Servicer has the full corporate power and
authority to enter into and consummate all transactions involving the
General Master Servicer 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 General Master Servicer, enforceable against
the General Master Servicer in accordance with the terms hereof, subject
to (A) applicable bankruptcy, insolvency, reorganization, receivership,
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 General Master Servicer is not in violation of, and its
execution and delivery of, performance under and compliance with 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 General Master Servicer's good faith and reasonable
judgment, is likely to affect materially and adversely either the ability
of the General Master Servicer to perform its obligations under this
Agreement or the financial condition of the General Master Servicer.
(vi) No consent, approval, authorization or order of any state or
federal court or governmental agency or body is required for the
consummation by the General Master Servicer of the transactions
contemplated herein, except for those consents, approvals, authorizations
or orders that previously have been obtained or where the lack of such
consent, approval, authorization or order would not have a material
adverse effect on the ability of the General Master Servicer to perform
its obligations under this Agreement.
(vii) No litigation is pending or, to the best of the General Master
Servicer's knowledge, threatened against the General Master Servicer that,
if determined adversely to the General Master Servicer, would prohibit the
General Master Servicer from entering into this Agreement or that, in the
General Master Servicer's good faith and reasonable judgment, is likely to
materially and adversely affect either the ability of the General Master
Servicer to perform its obligations under this Agreement or the financial
condition of the General Master Servicer.
(viii) The General Master Servicer has errors and omissions
insurance in the amounts and with the coverage required by Section
3.07(d).
(ix) The General Master Servicer has examined each of the
Sub-Servicing Agreements entered into by the General Master Servicer that
will be in effect as of the Closing Date with respect to the General
Mortgage Loans, and each such Sub-Servicing Agreement complies with the
requirements of Section 3.22(a) in all material respects.
(b) The representations and warranties of the General Master
Servicer set forth in Section 2.05(a) shall survive the execution and delivery
of this Agreement and shall inure to the benefit of the Persons for whose
benefit they were made for so long as the Trust remains in existence. Upon
discovery by any party hereto of a breach of any of such representations and
warranties that materially and adversely affects the interests of the
Certificateholders or any party hereto, the party discovering such breach shall
give prompt written notice to each of the other parties hereto.
(c) Any successor General Master Servicer shall be deemed to have
made, as of the date of its succession, each of the representations and
warranties set forth in Section 2.05(a), subject to such appropriate
modifications to the representation and warranty set forth in Section 2.05(a)(i)
to accurately reflect such successor's jurisdiction of organization and whether
it is a corporation, partnership, bank, association or other type of
organization.
Section 2.06 Representations and Warranties of the General Special
Servicer
(a) The General Special Servicer hereby represents and warrants to
each of the other parties hereto and for the benefit of the Certificateholders,
as of the Closing Date, that:
(i) The General Special Servicer is a corporation duly organized,
validly existing and in good standing under the laws of the State of
Delaware, and the General Special Servicer is in compliance with the laws
of each State in which any related Mortgaged Property is located to the
extent necessary to ensure the enforceability of each non-Co-op Mortgage
Loan and to perform its obligations under this Agreement.
(ii) The General Special Servicer's execution and delivery of,
performance under and compliance with this Agreement will not violate the
General Special Servicer's organizational documents or constitute a
default (or an event which, with notice or lapse of time, or both, would
constitute a default) under, or result in the breach of, any material
agreement or other instrument to which it is a party or which is
applicable to it or any of its assets, which default, in the good faith
and reasonable judgment of the General Special Servicer, is likely to
affect materially and adversely either the ability of the General Special
Servicer to perform its obligations under this Agreement or the financial
condition of the General Special Servicer.
(iii) The General Special Servicer has the full corporate power and
authority to enter into and consummate all transactions involving the
General Special Servicer 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 General Special Servicer, enforceable
against the General Special Servicer in accordance with the terms hereof,
subject to (A) applicable bankruptcy, insolvency, reorganization,
receivership, 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 General Special Servicer is not in violation of, and its
execution and delivery of, performance under 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 General Special Servicer's good faith and reasonable
judgment, is likely to affect materially and adversely either the ability
of the General Special Servicer to perform its obligations under this
Agreement or the financial condition of the General Special Servicer.
(vi) No consent, approval, authorization or order of any state or
federal court or governmental agency or body is required for the
consummation by the General Special Servicer of the transactions
contemplated herein, except for those consents, approvals, authorizations
or orders that previously have been obtained or where the lack of such
consent, approval, authorization or order would not have a material
adverse effect on the ability of the General Special Servicer to perform
its obligations under this Agreement.
(vii) No litigation is pending or, to the best of the General
Special Servicer's knowledge, threatened against the General Special
Servicer that, if determined adversely to the General Special Servicer,
would prohibit the General Special Servicer from entering into this
Agreement or that, in the General Special Servicer's good faith and
reasonable judgment, is likely to materially and adversely affect either
the ability of the General Special Servicer to perform its obligations
under this Agreement or the financial condition of the General Special
Servicer.
(viii) The General Special Servicer has errors and omissions
insurance in the amounts and with the coverage required by Section
3.07(d).
(ix) As of the Closing Date, the General Special Servicer is not a
party to any Sub-Servicing Agreement providing for the performance of
duties of the General Special Servicer by any Sub-Servicers with respect
to any of the General Mortgage Loans or REO Properties.
(b) The representations and warranties of the General Special
Servicer set forth in Section 2.06(a) shall survive the execution and delivery
of this Agreement and shall inure to the benefit of the Persons for whose
benefit they were made for so long as the Trust remains in existence. Upon
discovery by any party hereto of a breach of any of such representations and
warranties that materially and adversely affects the interests of the
Certificateholders or any party hereto, the party discovering such breach shall
give prompt written notice to each of the other parties hereto.
(c) Any successor General Special Servicer shall be deemed to have
made, as of the date of its succession, each of the representations and
warranties set forth in Section 2.06(a), subject to such appropriate
modifications to the representation and warranty set forth in Section 2.06(a)(i)
to accurately reflect such successor's jurisdiction of organization and whether
it is a corporation, partnership, bank, association or other type of
organization.
Section 2.07 Representations and Warranties of the NCBFSB Master
Servicer
(a) The NCBFSB Master Servicer hereby represents and warrants to
each of the other parties hereto and for the benefit of the Certificateholders,
as of the Closing Date, that:
(i) The NCBFSB Master Servicer is a federal savings bank duly
organized, validly existing and in good standing under the laws of the
United States, and the NCBFSB Master Servicer is in compliance with the
laws of each State in which any related Mortgaged Property is located to
the extent necessary to ensure the enforceability of each NCBFSB Serviced
Mortgage Loan and to perform its obligations under this Agreement.
(ii) The NCBFSB Master Servicer's execution and delivery of,
performance under and compliance with this Agreement, will not violate the
NCBFSB Master Servicer's organizational documents or constitute a default
(or an event which, with notice or lapse of time, or both, would
constitute a default) under, or result in the breach of, any material
agreement or other material instrument to which it is a party or by which
it is bound, which default or breach, in the good faith and reasonable
judgment of the NCBFSB Master Servicer, is likely to affect materially and
adversely either the ability of the NCBFSB Master Servicer to perform its
obligations under this Agreement or the financial condition of the NCBFSB
Master Servicer.
(iii) The NCBFSB Master Servicer has the full corporate power and
authority to enter into and consummate all transactions involving the
NCBFSB Master Servicer 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 NCBFSB Master Servicer, enforceable against
the NCBFSB Master Servicer in accordance with the terms hereof, subject to
(A) applicable bankruptcy, insolvency, reorganization, receivership,
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 NCBFSB Master Servicer is not in violation of, and its
execution and delivery of, performance under and compliance with 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 NCBFSB Master Servicer's good faith and reasonable
judgment, is likely to affect materially and adversely either the ability
of the NCBFSB Master Servicer to perform its obligations under this
Agreement or the financial condition of the NCBFSB Master Servicer.
(vi) No consent, approval, authorization or order of any state or
federal court or governmental agency or body is required for the
consummation by the NCBFSB Master Servicer of the transactions
contemplated herein, except for those consents, approvals, authorizations
or orders that previously have been obtained or where the lack of such
consent, approval, authorization or order would not have a material
adverse effect on the ability of the NCBFSB Master Servicer to perform its
obligations under this Agreement.
(vii) No litigation is pending or, to the best of the NCBFSB Master
Servicer's knowledge, threatened against the NCBFSB Master Servicer that,
if determined adversely to the NCBFSB Master Servicer, would prohibit the
NCBFSB Master Servicer from entering into this Agreement or that, in the
NCBFSB Master Servicer's good faith and reasonable judgment, is likely to
materially and adversely affect either the ability of the NCBFSB Master
Servicer to perform its obligations under this Agreement or the financial
condition of the NCBFSB Master Servicer.
(viii) The NCBFSB Master Servicer has errors and omissions insurance
in the amounts and with the coverage required by Section 3.07(d).
(ix) As of the Closing Date, the NCBFSB Master Servicer is not a
party to any Sub-Servicing Agreement providing for the performance of
duties of the NCBFSB Master Servicer by any Sub-Servicer with respect to
the NCBFSB Serviced Mortgage Loans.
(b) The representations and warranties of the NCBFSB Master Servicer
set forth in Section 2.07(a) shall survive the execution and delivery of this
Agreement and shall inure to the benefit of the Persons for whose benefit they
were made for so long as the Trust remains in existence. Upon discovery by any
party hereto of a breach of any of such representations and warranties that
materially and adversely affects the interests of the Certificateholders or any
party hereto, the party discovering such breach shall give prompt written notice
to each of the other parties hereto.
(c) Any successor NCBFSB Master Servicer shall be deemed to have
made, as of the date of its succession, each of the representations and
warranties set forth in Section 2.07(a), subject to such appropriate
modifications to the representation and warranty set forth in Section 2.07(a)(i)
to accurately reflect such successor's jurisdiction of organization and whether
it is a corporation, partnership, bank, association or other type of
organization.
Section 2.08 Representations and Warranties of the Co-op Special
Servicer
(a) The Co-op Special Servicer hereby represents and warrants to
each of the other parties hereto and for the benefit of the Certificateholders,
as of the Closing Date, that:
(i) The Co-op Special Servicer is a corporation duly organized,
validly existing and in good standing under the laws of the United States,
and the Co-op Special Servicer is in compliance with the laws of each
State in which any related Mortgaged Property is located to the extent
necessary to ensure the enforceability of each Co-op Mortgage Loan and to
perform its obligations under this Agreement.
(ii) The Co-op Special Servicer's execution and delivery of,
performance under and compliance with this Agreement will not violate the
Co-op Special Servicer's organizational documents or constitute a default
(or an event which, with notice or lapse of time, or both, would
constitute a default) under, or result in the breach of, any material
agreement or other instrument to which it is a party or which is
applicable to it or any of its assets, which default, in the good faith
and reasonable judgment of the Co-op Special Servicer, is likely to affect
materially and adversely either the ability of the Co-op Special Servicer
to perform its obligations under this Agreement or the financial condition
of the Co-op Special Servicer.
(iii) The Co-op Special Servicer has the full corporate power and
authority to enter into and consummate all transactions involving the
Co-op Special Servicer 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 Co-op Special Servicer, enforceable against
the Co-op Special Servicer in accordance with the terms hereof, subject to
(A) applicable bankruptcy, insolvency, reorganization, receivership,
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 Co-op Special Servicer is not in violation of, and its
execution and delivery of, performance under 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 Co-op Special Servicer's good faith and reasonable
judgment, is likely to affect materially and adversely either the ability
of the Co-op Special Servicer to perform its obligations under this
Agreement or the financial condition of the Co-op Special Servicer.
(vi) No consent, approval, authorization or order of any state or
federal court or governmental agency or body is required for the
consummation by the Co-op Special Servicer of the transactions
contemplated herein, except for those consents, approvals, authorizations
or orders that previously have been obtained or where the lack of such
consent, approval, authorization or order would not have a material
adverse effect on the ability of the Co-op Special Servicer to perform its
obligations under this Agreement.
(vii) No litigation is pending or, to the best of the Co-op Special
Servicer's knowledge, threatened against the Co-op Special Servicer that,
if determined adversely to the Co-op Special Servicer, would prohibit the
Co-op Special Servicer from entering into this Agreement or that, in the
Co-op Special Servicer's good faith and reasonable judgment, is likely to
materially and adversely affect either the ability of the Co-op Special
Servicer to perform its obligations under this Agreement or the financial
condition of the Co-op Special Servicer.
(viii) The Co-op Special Servicer has errors and omissions insurance
in the amounts and with the coverage required by Section 3.07(d).
(ix) As of the Closing Date, the Co-op Special Servicer is not a
party to any Sub-Servicing Agreement providing for the performance of
duties of the Co-op Special Servicer by any Sub-Servicer with respect to
any Co-op Mortgage Loans or related REO Properties.
(b) The representations and warranties of the Co-op Special Servicer
set forth in Section 2.08(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 remains in existence. Upon discovery by any
party hereto of a breach of any of such representations and warranties that
materially and adversely affects the interests of the Certificateholders or any
party hereto, the party discovering such breach shall give prompt written notice
to each of the other parties hereto.
(c) Any successor Co-op Special Servicer shall be deemed to have
made, as of the date of its succession, each of the representations and
warranties set forth in Section 2.08(a), subject to such appropriate
modifications to the representation and warranty set forth in Section 2.08(a)(i)
to accurately reflect such successor's jurisdiction of organization and whether
it is a corporation, partnership, bank, association or other type of
organization.
Section 2.09 Representations, Warranties and Covenants of the
Trustee
(a) The Trustee hereby represents and warrants to, and covenants
with, each of the other parties hereto and for the benefit of the
Certificateholders, as of the Closing Date, that:
(i) The Trustee is duly organized and validly existing as a national
banking association under the laws of the United States and is, shall be
or, if necessary, shall appoint a co-trustee that is, in compliance with
the laws of each State in which any Mortgaged Property is located to the
extent necessary to ensure the enforceability of each Mortgage Loan
(insofar as such enforceability is dependent upon compliance by the
Trustee with such laws) and to perform its obligations under this
Agreement.
(ii) The Trustee's execution and delivery of, performance under and
compliance with this Agreement, 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, which breach or
default, in the good faith and reasonable judgment of the Trustee is
likely to affect materially and adversely either the ability of the
Trustee to perform its obligations under this Agreement or the financial
condition of the Trustee.
(iii) The Trustee has the full power and authority to enter into and
consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement, and
has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid, legal
and binding obligation of the Trustee, enforceable against the Trustee in
accordance with the terms hereof, subject to (A) applicable bankruptcy,
insolvency, reorganization, receivership, moratorium and other laws
affecting the enforcement of creditors' rights generally and, in
particular, the rights of creditors of national banking associations, 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, performance under and compliance with this Agreement will not
constitute a violation of, any law, any order or decree of any court or
arbiter, or any order, regulation or demand of any federal, state or local
governmental or regulatory authority, which violation, in the Trustee's
good faith and reasonable judgment, is likely to affect materially and
adversely either the ability of the Trustee to perform its obligations
under this Agreement or the financial condition of the Trustee.
(vi) No consent, approval, authorization or order of any state or
federal court or governmental agency or body is required for the
consummation by the Trustee of the transactions contemplated herein,
except for those consents, approvals, authorizations or orders that
previously have been obtained.
(vii) 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 that, in the Trustee's good faith and reasonable judgment, is likely to
materially and adversely affect either the ability of the Trustee to
perform its obligations under this Agreement or the financial condition of
the Trustee.
(viii) The Trustee is eligible to act as trustee hereunder in
accordance with Section 8.06.
(b) The representations, warranties and covenants of the Trustee set
forth in Section 2.09(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 remains in existence. Upon discovery by any
party hereto of a breach of any such representations, warranties and covenants
that materially and adversely affects the interests of the Certificateholders or
any party hereto, the party discovering such breach shall give prompt written
notice thereof to the other parties hereto.
(c) Any successor Trustee shall be deemed to have made, as of the
date of its succession, each of the representations and warranties set forth in
Section 2.09(a), subject to such appropriate modifications to the
representation, warranty and covenant set forth in Section 2.09(a)(i) to
accurately reflect such successor's jurisdiction of organization and whether it
is a corporation, partnership, bank, association or other type of organization.
Section 2.10 Issuance of 000 Xxxxx Xxxxxx Loan REMIC Regular and
Residual Interests; Issuance of Uncertificated Lower-Tier Interests; Execution
of Certificates
(a) The Trustee hereby acknowledges the assignment to it of the
Mortgage Loans and the delivery of the Mortgage Files and fully executed
original counterparts of the Mortgage Loan Purchase Agreements, together with
the assignment to it of all other assets included in the Trust Fund.
Concurrently with such assignment and delivery (i) the Trustee acknowledges the
assignment to it of the 000 Xxxxx Xxxxxx Loan and the issuance of the 000 Xxxxx
Xxxxxx Loan REMIC Regular Interests and the 000 Xxxxx Xxxxxx Loan REMIC Residual
Interest to the Depositor in exchange for the 000 Xxxxx Xxxxxx Loan (exclusive
of Post-ARD Additional Interest), (ii) the Trustee acknowledges the assignment
to it of the Mortgage Loans (other than the 000 Xxxxx Xxxxxx Loan, and exclusive
of Post-ARD Additional Interest) and the 000 Xxxxx Xxxxxx Loan REMIC Regular
Interests and in exchange therefor, the Trustee acknowledges the issuance of the
Uncertificated Lower-Tier Interests to the Depositor and the residual interest
in the Lower-Tier REMIC to or upon the order of the Depositor, and (iii) the
Trustee acknowledges the assignment to it of the Uncertificated Lower-Tier
Interests, and immediately thereafter, the Trustee acknowledges that, pursuant
to the written request of the Depositor executed by an officer of the Depositor,
it has executed, authenticated and, upon the order of the Depositor, shall
deliver, (i) the Regular Certificates and the Class R Certificates in exchange
for the Uncertificated Lower-Tier Interests, (ii) the Class LR Certificates,
representing the 000 Xxxxx Xxxxxx Loan REMIC Residual Interests and the residual
interest in the Lower-Tier REMIC, and (iii) the Class V Certificates in exchange
for the right to receive Post-ARD Additional Interest, and the Depositor hereby
acknowledges the receipt by it or its designees, of all such Certificates.
Section 2.11 Acceptance of Grantor Trust by Trustee; Issuance of the
Class V Certificates
It is the intention of the parties hereto that the segregated pool
of assets consisting of any collections of Post-ARD Additional Interest received
on the ARD Mortgage Loans and the Post-ARD Additional Interest Distribution
Account constitute a portion of the Grantor Trust for federal income tax
purposes. The Trustee, by its execution and delivery hereof, acknowledges the
assignment to it of such portion of the Grantor Trust and declares that it holds
and will hold such assets in trust for the exclusive use and benefit of all
present and future Holders of the Class V Certificates. Concurrently with the
assignment to it of such portion of the assets included in the Grantor Trust,
the Trustee shall execute, and the Certificate Registrar shall authenticate and
deliver, to or upon the order of the Depositor, the Class V Certificates in
authorized denominations evidencing the entire beneficial ownership of the
Post-ARD Additional Interest and the Post-ARD Additional Interest Distribution
Account. The rights of the Holders of the Class V Certificates to receive
distributions from the proceeds of Grantor Trust, and all ownership interests of
such Holders in and to such distributions, shall be as set forth in this
Agreement.
ARTICLE III
ADMINISTRATION AND SERVICING OF THE TRUST FUND
Section 3.01 General Provisions
(a) The General Master Servicer shall be the Master Servicer with
respect to all the Trust Assets other than the NCBFSB Trust Assets and, as such,
subject to Section 3.21, shall service and administer such of the Trust Assets
(other than the NCBFSB Trust Assets) as constitute Performing Mortgage Loans and
shall continue to collect such information and prepare such reports to the
Trustee, and shall render such other incidental services, as shall be required
of such Master Servicer hereunder with respect to such of the Trust Assets
(other than the NCBFSB Trust Assets) as constitute Specially Serviced Mortgage
Loans and REO Properties. The NCBFSB Master Servicer shall be the Master
Servicer with respect to the NCBFSB Trust Assets and, as such, subject to
Section 3.21, shall service and administer such of the NCBFSB Trust Assets as
constitute Performing Mortgage Loans and shall continue to collect such
information and prepare such reports to the Trustee, and shall render such other
incidental services, as shall be required of such Master Servicer hereunder with
respect to such of the NCBFSB Trust Assets as constitute Specially Serviced
Mortgage Loans and REO Properties. The General Special Servicer shall be the
Special Servicer with respect to all the Trust Assets other than the Co-op Trust
Assets and, as such, subject to Section 3.21, shall service and administer such
of the Trust Assets (other than the Co-op Trust Assets) as constitute Specially
Serviced Mortgage Loans and REO Properties and shall render such incidental
services as are required of such Special Servicer with respect to such of the
Trust Assets (other than the Co-op Trust Assets) as constitute Performing
Mortgage Loans. The Co-op Special Servicer shall be the Special Servicer with
respect to the Co-op Trust Assets and, as such, subject to Section 3.21, shall
service and administer such of the Co-op Trust Assets as constitute Specially
Serviced Mortgage Loans and REO Properties and shall render such incidental
services as are required of such Special Servicer with respect to such of the
Co-op Trust Assets as constitute Performing Mortgage Loans.
(b) Each of the Master Servicers and the Special Servicers shall
service and administer the Mortgage Loans and any REO Properties that it is
obligated to service and administer pursuant to this Agreement, for the benefit
of the Certificateholders and, in the case of each A/B Loan Pair, the related B
Loan Holder or Washington Center Junior Holders (as a collective whole), in
accordance with: (i) any and all applicable laws; (ii) the express terms of this
Agreement and the respective Mortgage Loan Documents (and, in the case of each
A/B Loan Pair, the related A/B Intercreditor Agreement); and (iii) to the extent
consistent with the foregoing, the Servicing Standard. Subject to the foregoing,
each Master Servicer and Special Servicer shall each have full power and
authority, acting alone or through Sub-Servicers, 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 Master Servicer (with respect to those Performing Mortgage Loans that it is
obligated to service and administer pursuant to this Agreement) and Special
Servicer (with respect to Specially Serviced Mortgage Loans that it is obligated
to service and administer pursuant to this Agreement), in its own name or in the
name of the Trustee, is hereby authorized and empowered by the Trustee to
execute and deliver, on behalf of the Certificateholders, any affected B Loan
Holder or Washington Center Junior Holder 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 other related collateral; (ii) any and all instruments of satisfaction or
cancellation, or of partial or full release or discharge, or of partial or full
defeasance and all other comparable instruments; and (iii) subject to Sections
3.08, 3.20 and 3.24, any and all assumptions, modifications, waivers,
substitutions, extensions, amendments and consents. Subject to Section 3.10, the
Trustee shall, at the written request of a Servicing Officer of any Master
Servicer or Special Servicer, furnish, or cause to be so furnished, to such
Master Servicer or Special Servicer, as appropriate, any limited powers of
attorney and other documents (each of which shall be prepared by such Master
Servicer or Special Servicer, as applicable) necessary or appropriate to enable
it to carry out its servicing and administrative duties hereunder; provided,
that the Trustee shall not be held liable for any misuse of any such power of
attorney by any Master Servicer or Special Servicer.
(c) The parties hereto acknowledge that, pursuant to the Great Lakes
Crossing Intercreditor Agreement: (i) until the occurrence of a Great Lakes
Crossing Change of Servicing Control Event, the Great Lakes Crossing Total Loan
is to be serviced and administered by the Series 2003-CK2 Master Servicer and
the Series 2003-CK2 Special Servicer in accordance with the Series 2003-CK2 PSA
(provided that the Master Servicer is responsible for performing such services
with respect to the Great Lakes Crossing Mortgage Loan as are specifically set
forth in Articles I through XI of this Agreement); and (ii) upon the occurrence
of a Great Lakes Crossing Change of Servicing Control Event, the Great Lakes
Crossing Total Loan will be serviced and administered by the Master Servicer and
Special Servicer in accordance with Article XII of this Agreement; provided
that, if the Series 2003-CK2 PSA is ever to be replaced by any other Great Lakes
Crossing Servicing Agreement, then prior to exercising any consent right that
the Trustee may have with respect to that successor Great Lakes Crossing
Servicing Agreement, the Trustee shall obtain written confirmation from each
Rating Agency that such successor Great Lakes Crossing Servicing Agreement will
not result in an Adverse Rating Event with respect to any Class of Rated
Certificates.
For so long as (i) the Great Lakes Crossing Mortgage Loan or any
Great Lakes Crossing REO Mortgage Loan are part of the Mortgage Pool and (ii)
the Great Lakes Crossing Total Loan and/or any Great Lakes Crossing REO Property
are being serviced and administered under any Great Lakes Crossing Servicing
Agreement, the Master Servicer shall use reasonable efforts to monitor the
performance and, to the extent that it has standing to do so, enforce the
obligations of the Great Lakes Crossing Master Servicer and the Great Lakes
Crossing Special Servicer, respectively, under such Great Lakes Crossing
Servicing Agreement. Such enforcement, including the legal prosecution of claims
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, in its reasonable
judgment, would require were it the owner of the Great Lakes Crossing Mortgage
Loan. The reasonable costs and expenses incurred by the Master Servicer in
connection with such enforcement shall be paid by, and reimbursable as,
Servicing Advances.
(d) The relationship of each of the Master Servicers and the Special
Servicers to the Trustee and, unless they are the same Person, each other under
this Agreement is intended by the parties to be that of an independent
contractor and not that of a joint venturer, partner or, except as specifically
set forth herein, agent.
(e) Pursuant to the A/B Intercreditor Agreement for the 000 Xxxxx
Xxxxxx Loan and the Washington Center Loan, the owners of the 000 Xxxxx Xxxxxx X
Loan and the Washington Center Junior Loans, respectively, have agreed that the
Master Servicer and the related Special Servicer are authorized and obligated to
service and administer the 000 Xxxxx Xxxxxx X Loan and the Washington Center
Junior Loans pursuant to this Agreement. The Master Servicer shall be entitled,
during any period when the 000 Xxxxx Xxxxxx Total Loan and the Washington Center
Total Loan do not constitute Specially Serviced Mortgage Loans, to exercise the
rights and powers granted under the related A/B Intercreditor Agreement to the
"Lead Lender" and/or the "Servicer" referred to therein subject to the
limitations of such A/B Intercreditor Agreement and to the rights and powers of
the holder of the 000 Xxxxx Xxxxxx X Loan and the Washington Center Junior Loans
under such A/B Intercreditor Agreement. For the avoidance of doubt, the parties
acknowledge that neither the Master Servicer nor the related Special Servicer
shall be entitled or required to exercise the rights and powers granted to the
"Note B Holder" or the "Note C Holder" as defined under the related A/B
Intercreditor Agreement. The parties hereto acknowledge (A) section 3(a) of the
Washington Center Intercreditor Agreement, (B) section 3(a) of the Washington
Center Intercreditor Agreement provides (in part) that "...any such differences
between this Agreement and such Servicing Agreement shall not (x) have a
material adverse effect on any of the rights, remedies or protections granted to
the Holders under this Agreement (without giving effect to any provision of this
Agreement which states that a term shall have "the meaning assigned to such term
in the Servicing Agreement," or be "subject to the Servicing Agreement" or
similar phrases) or under the form attached hereto as Exhibit D, or (y) without
limiting the generality of the foregoing, have an adverse effect on the Note B
Holder or the Note C Holder with respect to the definitions of Servicing Fee,
Special Servicing Fee, Liquidation Fee, Workout Fee, Default Charges, Additional
Servicing Compensation Costs, Specially Serviced Mortgage Loan, Appraisal
Reduction Amount or Controlling Class Holder or diminish the rights of the
Servicers to transfer servicing compensation as set forth in Exhibit D or (z)
diminish or impair any of the rights granted to any Junior Holder under Section
20."; provided, that any such defined terms in this subsection (B) shall have
the meanings assigned to such terms in the Washington Center Intercreditor
Agreement and (C) the Washington Center Junior Holders have had the opportunity
to review and comment on this Agreement.
(f) In the event that an A/B Material Default occurs with respect to
any CBA A/B Loan Pair, and for so long as such A/B Material Default shall be
continuing, the Master Servicer and/or the Special Servicer, as applicable,
shall be obligated to service, subject to the terms and conditions of the
related A/B Intercreditor Agreement, the related CBA B Loan, on behalf of the
related B Loan Holder, and all references herein to "Mortgage Loan" (and, if the
related A Loan is a Specially Serviced Mortgage Loan, all references herein to
"Specially Serviced Mortgage Loan"), other than provisions pertaining to the
making of Advances, shall include the B Loan that is being serviced under this
Agreement.
Section 3.02 Collection of Mortgage Loan Payments
(a) The applicable Master Servicer (with respect to Performing
Mortgage Loans) and the applicable Special Servicer (with respect to each
Specially Serviced Mortgage Loans) shall undertake reasonable efforts to collect
all payments called for under the terms and provisions of the Mortgage Loans and
shall follow such collection procedures as are consistent with applicable law,
the express terms of this Agreement, the related Mortgage Loan Documents, in the
case of any B Loan or Washington Center Junior Loan, the related A/B
Intercreditor Agreement and, to the extent consistent with the foregoing, the
Servicing Standard; provided that neither such Master Servicer nor such Special
Servicer shall, with respect to any ARD Mortgage Loan after its Anticipated
Repayment Date, take any enforcement action with respect to the payment of
Post-ARD Additional Interest (other than the making of requests for its
collection), unless (i) the taking of an enforcement action with respect to the
payment of other amounts due under such Mortgage Loan is, in the reasonable
judgment of the applicable Special Servicer, and without regard to such Post-ARD
Additional Interest, also necessary, appropriate and consistent with the
Servicing Standard or (ii) all other amounts due under such Mortgage Loan have
been paid, the payment of such Post-ARD Additional Interest has not been
forgiven in accordance with Section 3.20 and, in the reasonable judgment of the
applicable Special Servicer, the Liquidation Proceeds expected to be recovered
in connection with such enforcement action will cover the anticipated costs of
such enforcement action and, if applicable, any associated Advance Interest.
Consistent with the foregoing, the applicable Master Servicer (as to Performing
Mortgage Loans), and the applicable Special Servicer (as to Specially Serviced
Mortgage Loans), each may waive any Default Charges in connection with any
specific delinquent payment on a Mortgage Loan it is obligated to service
hereunder; provided that, to the extent the applicable Master Servicer (as to
Performing Mortgage Loans) and the applicable Special Servicer (as to Specially
Serviced Mortgage Loans) waives any Default Charges, any outstanding interest on
Advances and Additional Trust Fund Expenses with respect to the related Mortgage
Loan that would otherwise have been paid out of such Default Charges shall be
paid out of the Additional Master Servicing Compensation payable to such Master
Servicer or Additional Special Servicing Compensation payable to such Special
Servicer, as the case may be, with respect to that Mortgage Loan; and provided,
further, that if no Additional Master Servicing Compensation or Additional
Special Servicing Compensation, as applicable, is available to offset the
outstanding Advance Interest, property inspection costs and other Additional
Trust Fund Expenses with respect to the Mortgage Loan that would otherwise be
offset by the Default Charges, then the applicable Master Servicer or the
applicable Special Servicer, as the case may be, shall not waive such Default
Charges unless (i) except with respect to the Washington Center Total Loan, it
is the first such waiver with respect to the subject Mortgage Loan under such
circumstances (regardless of whether such first waiver is made by the applicable
Master Servicer or the applicable Special Servicer), or (ii) in the case of a
Performing Mortgage Loan, the applicable Master Servicer has obtained the
consent of the Special Servicer (which consent shall be deemed given if the
applicable Special Servicer does not disapprove such waiver within ten (10)
Business Days) which has, as and to the extent contemplated by Section 3.24,
obtained the consent of the Controlling Class Representative, or (iii) in the
case of a Specially Serviced Mortgage Loan, the Special Servicer has, as and to
the extent contemplated by Section 3.24, obtained the consent of the Controlling
Class Representative.
(b) At least ninety days prior to the maturity date of each Balloon
Mortgage Loan, the applicable Master Servicer shall send a notice to the related
Borrower of such maturity date (with a copy to be sent to the applicable Special
Servicer) and shall request confirmation that the Balloon Payment will be paid
by such maturity date; provided that if the Master Servicer has not received
such confirmation, the Master Servicer shall send a second notice at least 60
days prior to such maturity date, and a third notice at least 30 days prior to
such maturity date.
(c) Promptly following the Closing Date, the Trustee shall send
written notice to the Series 2003-CK2 Master Servicer and the Series 2003-CK2
Trustee stating that, as of the Closing Date, the Trustee is the holder of the
Great Lakes Crossing Mortgage Loan and directing the Series 2003-CK2 Master
Servicer to remit to the Master Servicer all amounts payable to, and to forward,
deliver or otherwise make available, as the case may be, to the Master Servicer
all reports, statements, documents, communications and other information that
are to be forwarded, delivered or otherwise made available to, the holder of the
Great Lakes Crossing Mortgage Loan under the Great Lakes Crossing Intercreditor
Agreement and the Series 0000-XX0 XXX. In the event that the Series 2003-CK2 PSA
is replaced by another Great Lakes Crossing Servicing Agreement and a
Responsible Officer of the Trustee is aware of such replacement, then the
Trustee shall promptly send a comparable written notice to the then holder of
the Great Lakes Crossing Companion Loan and to the Great Lakes Crossing Master
Servicer under such new Great Lakes Crossing Servicing Agreement. The Master
Servicer shall, on the day of receipt thereof, deposit into the Collection
Account all amounts received by it from the Great Lakes Crossing Master Servicer
or any other party under any Great Lakes Crossing Servicing Agreement with
respect to the Great Lakes Crossing Mortgage Loan, the Great Lakes Crossing
Mortgaged Property or any Great Lakes Crossing REO Property. In the event the
Master Servicer fails to so receive any amounts due to the holder of the Great
Lakes Crossing Mortgage Loan during any calendar month under the Great Lakes
Crossing Intercreditor Agreement and any Great Lakes Crossing Servicing
Agreement by 2:00 p.m. (New York City time) on the Master Servicer Remittance
Date in such calendar month, the Master Servicer shall (i) notify the Great
Lakes Crossing Master Servicer or other applicable party responsible for making
such remittances, as well as the holder of the Great Lakes Crossing Companion
Loan, that such amounts due with respect to the Great Lakes Crossing Mortgage
Loan have not been received (specifying the amount of such deficiency) and (ii)
if and to the extent that the amount in question is a Monthly Payment or Assumed
Monthly Payment with respect to the Great Lakes Crossing Mortgage Loan or any
Great Lakes Crossing REO Mortgage Loan, make a P&I Advance (to the extent such
P&I Advance is not a Nonrecoverable Advance) with respect to such amounts as
required by the terms of this Agreement in accordance with Section 4.03.
Further, in accordance with Section 4.03, in the event the Master Servicer fails
to make such P&I Advance with respect to the Great Lakes Crossing Mortgage Loan
or any Great Lakes Crossing REO Mortgage Loan, then the Trustee shall make such
P&I Advance.
Section 3.03 Collection of Taxes, Assessments and Similar Items;
Servicing Accounts; Reserve Accounts
(a) Each Master Servicer shall establish and maintain one or more
accounts ("Servicing Accounts"), in which all Escrow Payments received by it
with respect to the Mortgage Loans shall be deposited and retained. The General
Master Servicer shall maintain the Servicing Accounts with respect to the
General Mortgage Loans (including any such Mortgage Loans that are Specially
Serviced Mortgage Loans), and the NCBFSB Master Servicer shall maintain the
Servicing Accounts with respect to the NCBFSB Mortgage Loans (including any such
Mortgage Loans that are Specially Serviced Mortgage Loans). Subject to any terms
of the related Mortgage Loan Documents and the terms of any related A/B
Intercreditor Agreement that specify the nature of the account in which Escrow
Payments shall be held, each Servicing Account shall be an Eligible Account. As
and to the extent consistent with the Servicing Standard, applicable law and the
related Mortgage Loan Documents, each Master Servicer may make withdrawals from
the Servicing Accounts maintained by it, and may apply Escrow Payments held
therein with respect to any Mortgage Loan (together with interest earned
thereon), only as follows: (i) to effect the payment of real estate taxes,
assessments, insurance premiums (including, premiums on any Environmental
Insurance Policy), ground rents (if applicable) and comparable items in respect
of the related Mortgaged Property; (ii) to reimburse such Master Servicer, such
Special Servicer, the Trustee or any Fiscal Agent, as applicable, for any
unreimbursed Servicing Advances made thereby with respect to such Mortgage Loan
to cover any of the items described in the immediately preceding clause (i);
(iii) to refund to the related Borrower any sums as may be determined to be
overages; (iv) to pay interest or other income, if required and as described
below, to the related Borrower on balances in the Servicing Account (or, if and
to the extent not payable to the related Borrower to pay such interest or other
income (up to the amount of any Net Investment Earnings in respect of such
Servicing Account for each Collection Period) to the applicable Master
Servicer); (v) after an event of default, to pay the principal of, accrued
interest on and any other amounts payable with respect to such Mortgage Loan; or
(vi) to clear and terminate the Servicing Account at the termination of this
Agreement in accordance with Section 9.01. The applicable Master Servicer shall
pay or cause to be paid to the related Borrowers interest and other income, if
any, earned on the investment of funds in Servicing Accounts maintained thereby,
if and to the extent required by law or the terms of the related Mortgage Loan
Documents. If the applicable Master Servicer shall deposit in a Servicing
Account any amount not required to be deposited therein, it may at any time
withdraw such amount from such Servicing Account, any provision herein to the
contrary notwithstanding. Promptly after any Escrow Payments are received by the
applicable Special Servicer from any Borrower, and in any event within two
Business Days after any such receipt, such Special Servicer shall remit such
Escrow Payments to a Master Servicer for deposit in the applicable Servicing
Account(s).
(b) The applicable Master Servicer shall as to each Mortgage Loan
(including each Specially Serviced Mortgage Loan) (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 consistent with the Servicing
Standard to obtain, from time to time, all bills for the payment of such items
(including renewal premiums) and effect payment thereof prior to the applicable
penalty or termination date. For purposes of effecting any such payment, such
Master Servicer shall apply Escrow Payments as allowed under the terms of the
related Mortgage Loan Documents; provided that if such Mortgage Loan does not
require the related Borrower to escrow for the payment of real estate taxes,
assessments, insurance premiums, ground rents (if applicable) and similar items,
each of the applicable Master Servicer, and the applicable Special Servicer
shall, as to those Mortgage Loans it is obligated to service hereunder, and
subject to and in accordance with the Servicing Standard, use efforts consistent
with the Servicing Standard to enforce the requirement of the related Mortgage
that the related Borrower make payments in respect of such items at the time
they first become due.
(c) In accordance with the Servicing Standard, but subject to
Section 3.11(h), the applicable Master Servicer shall make a Servicing Advance
with respect to each Mortgaged Property (including each Mortgaged Property
relating to a Specially Serviced Mortgage Loan and each Mortgaged Property that
secures an A/B Loan Pair, provided that the applicable Master Servicer shall not
be obligated to make such a Servicing Advance with respect to an A/B Loan Pair
after the principal balance of the related A Loan is zero) all such funds as are
necessary for the purpose of effecting the timely payment of (i) real estate
taxes, assessments and other similar items, (ii) ground rents (if applicable),
and (iii) premiums on Insurance Policies (including, premiums on any
Environmental Insurance Policy), in each instance prior to the applicable
penalty or termination date if and to the extent that (x) Escrow Payments (if
any) collected from the related Borrower are insufficient to pay such item when
due, and (y) the related Borrower has failed to pay such item on a timely basis;
provided that, in the case of amounts described in the preceding clause (i), the
applicable Master Servicer shall not make a Servicing Advance of any such amount
if such Master Servicer reasonably anticipates (in accordance with the Servicing
Standard) that such amounts will be paid by the related Borrower on or before
the applicable penalty date, in which case such Master Servicer shall use its
best efforts consistent with the Servicing Standard to confirm whether such
amounts have been paid and, subject to Section 3.11(h), shall make a Servicing
Advance of such amounts, if necessary, not later than five Business Days
following confirmation by such Master Servicer that such amounts have not been
paid by the applicable penalty date. All such Advances shall be reimbursable in
the first instance from related collections from the Borrowers and further as
provided in Section 3.05(a). No costs incurred by the applicable Master Servicer
in effecting the payment of real estate taxes, assessments and, if applicable,
ground rents on or in respect of such Mortgaged Properties shall, for purposes
hereof, including calculating monthly distributions to Certificateholders, be
added to the respective unpaid principal balances or Stated Principal Balances
of the related Mortgage Loans, notwithstanding that the terms of such Mortgage
Loans so permit; provided that this sentence shall not be construed to limit the
rights of such Master Servicer or the applicable Special Servicer on behalf of
the Trust to enforce any obligations of the related Borrower under such Mortgage
Loan.
(d) Each Master Servicer shall establish and maintain, as
applicable, one or more accounts (the "Reserve Accounts"), in which all Reserve
Funds, if any, received by it with respect to the Mortgage Loans as to which it
is the applicable Master Servicer, shall be deposited and retained. The General
Master Servicer shall maintain the Reserve Accounts with respect to all of the
Mortgage Loans (other than the NCBFSB Serviced Mortgage Loans), and the NCBFSB
Master Servicer shall maintain the Reserve Accounts with respect to the NCBFSB
Serviced Mortgage Loans. Subject to any terms of the related Mortgage Loan
Documents that specify the nature of the account in which Reserve Funds shall be
held, each Reserve Account shall be an Eligible Account. As and to the extent
consistent with the Servicing Standard, applicable law and the related Mortgage
Loan Documents, each Master Servicer may make withdrawals of amounts so
deposited, and draws under any Letter of Credit delivered in lieu of Reserve
Funds, (i) to pay for, or to reimburse the related Borrower in connection with,
the costs associated with the related tenant improvements, leasing commissions,
repairs, replacements, capital improvements and/or environmental testing and
remediation, litigation and/or other special expenses at or with respect to the
related Mortgaged Property for which such Reserve Funds were intended and to
refund the related Borrower any sums as may be determined to be overages; (ii)
in the case of Reserve Funds intended to cover debt service payments, to apply
amounts on deposit therein in respect of principal and interest on such Mortgage
Loan; (iii) to reimburse such Master Servicer, either Special Servicer, the
Trustee or any Fiscal Agent, as applicable, for any unreimbursed Advances
(together with any related Advance Interest) made thereby with respect to such
Mortgage Loan to cover any of the items described in the immediately preceding
clauses (i) and (ii); (iv) to release such Reserve Funds to the related Borrower
if the conditions precedent for such release are satisfied or, in the case of
Earn-Out Reserve Funds, to otherwise apply such Reserve Funds in accordance with
the related Mortgage Loan Documents if the conditions precedent for such release
are not satisfied, including any requirements set forth in this Agreement; (v)
to pay interest or other income, if required and as described below, to the
related Borrower on balances in the Reserve Account (or, if and to the extent
not payable to the related Borrower, to pay such interest or other income (up to
the amount of any Net Investment Earnings in respect of such Reserve Account for
each Collection Period) to such Master Servicer); (vi) after an event of
default, to pay the principal of, accrued interest on and any other amounts
payable with respect to such Mortgage Loan; or (vii) to clear and terminate the
Reserve Account at the termination of this Agreement in accordance with Section
9.01. If the Borrower under any Mortgage Loan delivers a Letter of Credit in
lieu of Reserve Funds, then the applicable Master Servicer shall make draws on
such Letter of Credit at such times and for such purposes as it would have made
withdrawals from a Reserve Account and, to the extent consistent with the
Servicing Standard, applicable law and the related Mortgage Loan Documents, in
order to convert the amount of such Letter of Credit into Reserve Funds.
Notwithstanding the foregoing, no Master Servicer shall release any Earn-Out
Reserve Funds, or return any related Letter of Credit delivered in lieu of
Earn-Out Reserve Funds, to the related Borrower, unless and until: (i) such
Master Servicer has so notified the applicable Special Servicer in writing and
has provided such Special Servicer with any written or electronic information in
such Master Servicer's possession regarding such Mortgage Loan or the related
Mortgaged Property that such Special Servicer may reasonably request within ten
Business Days of receiving such written notice; and (ii) subject to Section 3.24
the applicable Special Servicer has consented to such release of any such
Earn-Out Reserve Funds or return of any related Letter of Credit (such consent
to be given or withheld in accordance with the Servicing Standard and to be
deemed given if the applicable Special Servicer does not object in writing to
such release of any such Earn-Out Reserve Funds or return of any such Letter of
Credit within ten Business Days after receiving such additional information from
the applicable Master Servicer (or, if it did not request additional
information, within ten Business Days after receiving such notice)). Each Master
Servicer shall pay or cause to be paid to the relevant Borrowers interest and
other income, if any, earned on the investment of funds in Reserve Accounts
maintained thereby, if and to the extent required by law or the terms of the
related Mortgage Loan Documents. If a Master Servicer shall deposit in a Reserve
Account maintained by it any amount not required to be deposited therein, it may
at any time withdraw such amount from such Reserve Account, any provision herein
to the contrary notwithstanding. Promptly after any Reserve Funds are received
by a Special Servicer from any Borrower, and in any event within two Business
Days of such receipt, such Special Servicer shall remit such Reserve Funds to
the applicable Master Servicer for deposit in the applicable Reserve Account(s).
Any out-of-pocket expenses, including reasonable attorneys' fees and expenses,
incurred by the applicable Master Servicer or Special Servicer to enable such
Master Servicer or Special Servicer, as the case may be, to make any draw under
any Letter of Credit shall constitute a Servicing Advance, and such Master
Servicer or Special Servicer, as the case may be, shall make reasonable efforts
to recover such expenses from the related Borrower to the extent the Borrower is
required to pay such expenses under the terms of the related Mortgage Loan.
(e) To the extent an operations and maintenance plan is required to
be established and executed pursuant to the terms of a Mortgage Loan, the
applicable Master Servicer shall request from the related Borrower written
confirmation thereof within a reasonable time after the later of the Closing
Date and the date as of which such plan is required to be established or
completed. To the extent any other action or remediation with respect to
environmental matters is required to have been taken or completed pursuant to
the terms of a Mortgage Loan, the applicable Master Servicer shall request from
the related Borrower written confirmation of such action and remediations within
a reasonable time after the later of the Closing Date and the date as of which
such action or remediations are required to have been taken or completed. To the
extent that a Borrower shall fail to promptly respond to any inquiry described
in this Section 3.03(e), the applicable Master Servicer shall notify the
Trustee, the applicable Special Servicer, the Controlling Class Representative,
the 000 Xxxxx Xxxxxx X Loan Holder (with respect to the 000 Xxxxx Xxxxxx Loan)
and each Washington Center Junior Holder (with respect to the Washington Center
Loan). The applicable Master Servicer shall promptly notify the Trustee, the
applicable Special Servicer and the Controlling Class Representative if the
Master Servicer shall determine that any Borrower under any Mortgage Loan has
failed to perform its obligations under the related Mortgage Loan in respect of
environmental matters.
(f) Subject to applicable law and the terms of the related Mortgage
Loan Documents, funds in the Servicing Accounts and the Reserve Accounts may be
invested only in Permitted Investments in accordance with the provisions of
Section 3.06.
Section 3.04 Collection Accounts, Distribution Account, Interest
Reserve Account and Excess Liquidation Proceeds Account
(a) Each of the Master Servicers shall segregate and hold all funds
collected and received by it in connection with the Mortgage Pool separate and
apart from its own funds and general assets. In connection therewith, each
Master Servicer shall establish and maintain one or more segregated accounts
(collectively, the "Collection Account"), in which the funds described below are
to be deposited and held on behalf of the Trustee in trust for the benefit of
the Certificateholders. Each account that constitutes the Collection Account
shall be an Eligible Account. Each Master Servicer shall deposit or cause to be
deposited in the applicable Collection Account, within one Business Day of
receipt by it (in the case of payments by Borrowers or other collections on the
Mortgage Loans as to which it acts as Master Servicer) or as otherwise required
hereunder, the following payments and collections received or made by or on
behalf of such Master Servicer in respect of the Mortgage Pool subsequent to the
Closing Date with respect to the Mortgage Loans and REO Properties as to which
it is the applicable Master Servicer (other than in respect of scheduled
payments of principal and interest due and payable on the Mortgage Loan on or
before their respective Due Dates in June 2003 (or, in the case of a Replacement
Mortgage Loan, on or before the related date of substitution), which payments
shall be delivered promptly to the related Mortgage Loan Seller or its designee,
with negotiable instruments endorsed as necessary and appropriate without
recourse):
(i) all payments, from whatever source, or transfers from a debt
service reserve account, on account of principal of the Mortgage Loans and
any B Loan or C Loan, including Principal Prepayments;
(ii) all payments, from whatever source, or transfers from a debt
service reserve account, on account of interest on the Mortgage Loans and
any B Loan or C Loan, including Default Interest and Post-ARD Additional
Interest;
(iii) all Prepayment Premiums, Yield Maintenance Charges and late
payment charges received in respect of the Mortgage Loans and any B Loan
or C Loan;
(iv) all Insurance Proceeds, Condemnation Proceeds and Liquidation
Proceeds received in respect of the Serviced Mortgage Loans;
(v) all remittances to the Trust under a Great Lakes Crossing
Servicing Agreement with respect to the Great Lakes Crossing Mortgage Loan
or any Great Lakes Crossing REO Property;
(vi) any amounts required to be deposited by the Master Servicer
pursuant to Section 3.06 in connection with losses incurred with respect
to Permitted Investments of funds held in the Collection Account;
(vii) 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 or master force placed
hazard insurance policy;
(viii) any amounts required to be transferred from (A) any REO
Account pursuant to Section 3.16(c), (B) an A/B Loan Pair Custodial
Account pursuant to Section 3.04(f) or (C) any Great Lakes Crossing
Custodial Account pursuant to Section 12.04(b);
(ix) insofar as they do not constitute Escrow Payments or Reserve
Funds, any amounts paid by a Borrower specifically to cover items for
which a Servicing Advance has been made or that represent a recovery of
property protection expenses from a Borrower;
(x) any amounts received pursuant to Section 3.18 in connection with
the liquidation of a Specially Designated Defaulted Mortgage Loan or
pursuant to Section 3.09 in connection with the liquidation of a Defaulted
Mortgage Loan;
(xi) any amounts paid by a Mortgage Loan Seller or the Column
Performance Guarantor, as the case may be, in connection with the
repurchase or substitution of a Mortgage Loan by such party pursuant to
Section 2.03;
(xii) any amounts paid to purchase or otherwise acquire all the
Mortgage Loans and any REO Properties in connection with the termination
of the Trust Fund pursuant to Section 9.01; and
(xiii) any amounts paid by the B Loan Holder or any Washington
Center Junior Holder or mezzanine lender in respect of the related A Loan
in connection with any cure or purchase option exercised pursuant to the
terms of the A/B Intercreditor Agreement, or related intercreditor
agreement, as applicable.
The foregoing requirements for deposit in the Collection Account
shall be exclusive. Without limiting the generality of the foregoing, actual
payments from Borrowers in the nature of Escrow Payments, assumption fees,
assumption application fees, defeasance fees, earn-out fees, extension fees,
modification fees, charges for beneficiary statements or demands, amounts
collected for checks returned for insufficient funds and other fees and amounts
collected from Borrowers that constitute Additional Master Servicing
Compensation and/or Additional Special Servicing Compensation, need not be
deposited by either Master Servicer in its Collection Account. Each Master
Servicer shall promptly deliver to the Special Servicer any of the foregoing
items received by it, if and to the extent that such items constitute Additional
Special Servicing Compensation. If either Master Servicer shall deposit in its
Collection Account any amount not required to be deposited therein, it may at
any time withdraw such amount from such Master Servicer's Collection Account,
any provision herein to the contrary notwithstanding.
Upon receipt of any of the amounts described in clauses (i) through
(v), (viii) or (ix) through (xiii) of the first paragraph of this Section
3.04(a) with respect to any Mortgage Loan, each Special Servicer shall promptly,
but in no event later than one Business Day after receipt, remit such amounts to
the applicable Master Servicer for deposit into the Collection Account, unless
such Special Servicer determines, consistent with the Servicing Standard, that a
particular item should not be deposited because of a restrictive endorsement.
With respect to any such amounts paid by check to the order of such Special
Servicer, such Special Servicer shall endorse such check to the order of the
applicable Master Servicer (in its capacity as such), without recourse,
representation or warranty, unless the applicable Special Servicer determines,
consistent with the Servicing Standard, that a particular item cannot be so
endorsed and delivered because of a restrictive endorsement. Any such amounts
received by a Special Servicer with respect to an REO Property shall be
deposited by such Special Servicer into the REO Account and remitted to the
applicable Master Servicer for deposit into such Master Servicer's Collection
Account pursuant to Section 3.16(c) (or, if such REO Property relates to an A/B
Loan Pair, into the related A/B Loan Pair Custodial Account).
(b) The Trustee shall establish and maintain one or more segregated
accounts (collectively, the "Distribution Account"), to be held in trust for the
benefit of the Certificateholders. Each account that constitutes the
Distribution Account shall be an Eligible Account. By 1:00 p.m. (New York City
time) on each Master Servicer Remittance Date, each Master Servicer shall
deliver to the Trustee, for deposit in the Distribution Account, an aggregate
amount of immediately available funds equal to each Master Servicer's Master
Servicer Remittance Amount with respect to such Master Servicer for such Master
Servicer Remittance Date. Immediately upon deposit of any Master Servicer
Remittance Amount for any Master Servicer Remittance Date into the Distribution
Account, any portion thereof that represents any Post-ARD Additional Interest
related to the ARD Mortgage Loans shall be deemed to have been deposited into
the Post-ARD Additional Interest Distribution Account, and the remaining portion
thereof shall be deemed to have been deposited into the Lower-Tier Distribution
Account or, with respect to the 000 Xxxxx Xxxxxx Loan, into the 000 Xxxxx Xxxxxx
Loan REMIC Distribution Account. In addition, each Master Servicer shall, as and
when required hereunder, deliver to the Trustee for deposit in the Lower-Tier
Distribution Account or, with respect to the 000 Xxxxx Xxxxxx Loan, into the 000
Xxxxx Xxxxxx Loan REMIC Distribution Account, any P&I Advances and Compensating
Interest Payments required to be made by such Master Servicer hereunder.
Furthermore, any amounts paid by any party hereto to indemnify the Trust Fund
pursuant to any provision hereof shall be delivered to the Trustee for deposit
in the Lower-Tier Distribution Account. The Trustee shall, upon receipt, deposit
in the Lower-Tier Distribution Account or, with respect to the 000 Xxxxx Xxxxxx
Loan, into the 000 Xxxxx Xxxxxx Loan REMIC Distribution Account any and all
amounts received or, pursuant to Section 4.03, advanced by the Trustee or any
Fiscal Agent that are required by the terms of this Agreement to be deposited
therein. As and when required pursuant to Section 3.05(c), the Trustee shall
transfer Interest Reserve Amounts in respect of the Interest Reserve Mortgage
Loans from the Interest Reserve Account to the Lower-Tier Distribution Account
or, with respect to the 000 Xxxxx Xxxxxx Loan, into the 000 Xxxxx Xxxxxx Loan
REMIC Distribution Account. The Trustee shall also deposit in the Distribution
Account any amounts required to be deposited by the Trustee pursuant to Section
3.06 in connection with losses incurred with respect to Permitted Investments of
funds held in the Distribution Account. Furthermore, as and when required
pursuant to Section 3.05(d), the Trustee shall transfer monies from the Excess
Liquidation Proceeds Account to the Lower-Tier Distribution Account or, with
respect to the 000 Xxxxx Xxxxxx Loan, into the 000 Xxxxx Xxxxxx Loan REMIC
Distribution Account. If the Trustee shall deposit in the Lower-Tier
Distribution Account or, with respect to the 000 Xxxxx Xxxxxx Loan, into the 000
Xxxxx Xxxxxx Loan REMIC Distribution Account, any amount not required to be
deposited therein, it may at any time withdraw such amount from the Lower-Tier
Distribution Account or the 000 Xxxxx Xxxxxx Loan REMIC Distribution Account, as
applicable, any provision herein to the contrary notwithstanding.
On each Distribution Date, the Trustee shall deposit or be deemed to
have deposited in the Upper-Tier Distribution Account an aggregate amount of
immediately available funds equal to the Lower-Tier Distribution Amount and the
amount of any Prepayment Premiums and Yield Maintenance Charges for such
Distribution Date allocated in payment of the Uncertificated Lower-Tier
Interests as specified in Section 4.01.
Any amounts deposited in accordance with this Section 3.04(b) that
represent amounts deposited in respect of the 000 Xxxxx Xxxxxx Loan REMIC shall
be deemed to be distributed in respect of the 000 Xxxxx Xxxxxx Loan REMIC
Regular Interests and 000 Xxxxx Xxxxxx Loan REMIC Residual Interest as set forth
herein.
(c) The Trustee shall establish and maintain one or more accounts
(collectively, the "Interest Reserve Account") to be held in trust for the
benefit of the Certificateholders. Each account that constitutes the Interest
Reserve Account shall be an Eligible Account. On the Distribution Date in
January (except during a leap year) and February of each calendar year,
commencing in 2004, prior to any distributions being made in respect of the
Certificates on such Distribution Date, the Trustee shall, with respect to each
Interest Reserve Mortgage Loan, withdraw from the Distribution Account and
deposit in the Interest Reserve Account an amount equal to the Interest Reserve
Amount, if any, in respect of such Interest Reserve Mortgage Loan for such
Distribution Date; provided that no such transfer of monies from the
Distribution Account to the Interest Reserve Account shall be made on the Final
Distribution Date. The Trustee shall also deposit in the Interest Reserve
Account any amounts required to be deposited by the Trustee pursuant to Section
3.06 in connection with losses incurred with respect to Permitted Investments of
funds held in the Interest Reserve Account.
(d) If any Excess Liquidation Proceeds are received, the Trustee
shall establish and maintain one or more accounts (collectively, the "Excess
Liquidation Proceeds Account") to be held in trust for the benefit of the
Certificateholders. Each account that constitutes the Excess Liquidation
Proceeds Account shall be an Eligible Account. On each Master Servicer
Remittance Date, each Master Servicer shall withdraw from its Collection Account
and remit to the Trustee for deposit in the Excess Liquidation Proceeds Account
all Excess Liquidation Proceeds received by it during the Collection Period
ending on the Determination Date immediately prior to such Master Servicer
Remittance Date; provided, however, that if such Excess Liquidation Proceeds
relate to an A/B Loan Pair, the amount allocable to the related B Loan or the
Washington Center Junior Loans, as the case may be, shall be deposited in the
A/B Loan Pair Custodial Account. The Trustee shall also deposit in the Excess
Liquidation Proceeds Account any amounts required to be deposited by the Trustee
pursuant to Section 3.06 in connection with losses incurred with respect to
Permitted Investments of funds held in the Excess Liquidation Proceeds Account.
Any Excess Liquidation Proceeds received in respect of the 000 Xxxxx Xxxxxx Loan
shall be deemed to be distributed in respect of the 000 Xxxxx Xxxxxx Loan REMIC
Residual Interest and immediately deposited in the Excess Liquidation Proceeds
Account.
(e) Funds in a Collection Account, the Upper-Tier Distribution
Account, the Lower-Tier Distribution Account, the 000 Xxxxx Xxxxxx Loan REMIC
Distribution Account, the Post-ARD Additional Interest Distribution Account, the
Interest Reserve Account and/or the Excess Liquidation Proceeds Account may be
invested in Permitted Investments in accordance with the provisions of Section
3.06. Each Master Servicer shall give notice to the other parties hereto of the
location of its Collection Account as of the Closing Date and of the new
location of its Collection Account prior to any change thereof. The Upper-Tier
Distribution Account, the Lower-Tier Distribution Account, the 000 Xxxxx Xxxxxx
Loan REMIC Distribution Account, the Post-ARD Additional Interest Distribution
Account, Interest Reserve Account and Excess Liquidation Proceeds Account shall
each be established at the Corporate Trust Office of the Trustee as of the
Closing Date, and the Trustee shall give notice to the other parties hereto of
the new location of each of the Upper-Tier Distribution Account, Lower-Tier
Distribution Account, the 000 Xxxxx Xxxxxx Loan REMIC Distribution Account, the
Post-ARD Additional Interest Distribution Account, Interest Reserve Account and
Excess Liquidation Proceeds Account prior to any change thereof.
(f) (i) If any A/B Material Default occurs and is continuing with
respect to a CBA A/B Loan Pair (and, as a result, the related B Loan is being
serviced hereunder) or (ii) if the Mortgaged Property securing any CBA A/B Loan
Pair has become REO Property or (iii) with respect to the 000 Xxxxx Xxxxxx X
Loan and the Washington Center Junior Loans, the applicable Master Servicer
shall establish and maintain, or cause to be established and maintained, an A/B
Loan Pair Custodial Account, into which the applicable Master Servicer shall
deposit or cause to be deposited on a daily basis (and in no event later than
the Business Day following the receipt of available funds), except as otherwise
specifically provided herein, the following payments and collections received
after the Cut-off Date (other than payments of principal and interest on the
applicable A/B Loan Pair due and payable on or before the Cut-off Date) and
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 or transfers from a debt service reserve account,
on account of principal, including Principal Prepayments, on such A/B Loan
Pair; and
(ii) all payments on account of interest, including Post-ARD
Additional Interest, on such A/B Loan Pair; and
(iii) all Insurance Proceeds and Condemnation Proceeds received in
respect of such A/B Loan Pair; and
(iv) all Liquidation Proceeds in respect of such A/B Loan Pair; and
(v) any amounts required to be transferred from the REO Account
pursuant to Section 3.16(c); and
(vi) all Prepayment Premiums, Yield Maintenance Charges and late
payment charges received in respect of such A/B Loan Pair
(vii) any amounts required to be deposited by the applicable Master
Servicer or the applicable Special Servicer pursuant to Section 3.07(b) in
connection with losses resulting from a deductible clause in a blanket or
master force placed hazard insurance policy relating to such A/B Loan
Pair;
(viii) insofar as they do not constitute Escrow Payments or Reserve
Funds, any amounts paid by a Borrower specifically to cover items for
which a Servicing Advance has been made or that represent a recovery of
property protection expenses from a Borrower relating to such A/B Loan
Pair;
(ix) any amounts received pursuant to Section 3.18 that relate to
such A/B Loan Pair in connection with the liquidation of a Specially
Designated Defaulted Mortgage Loan or pursuant to Section 3.09 in
connection with the liquidation of a Defaulted Mortgage Loan;
(x) any amounts paid to purchase or otherwise acquire such A/B Loan
Pair and any related REO Property in connection with the termination of
the Trust Fund pursuant to Section 9.01;
(xi) any amounts paid by the B Loan Holder or any Washington Center
Junior Holder or mezzanine lender in connection with any purchase option
exercised pursuant to the terms of the A/B Intercreditor Agreement, or
related intercreditor agreement, as applicable, that are distributable to
any such B Loan Holder or C Loan Holder;
(xii) any amounts required to be deposited by the General Master
Servicer pursuant to Section 3.06 in connection with losses incurred with
respect to Permitted Investments of funds held in such A/B Loan Pair
Custodial Account.
The foregoing requirements for deposit by the applicable Master
Servicer in an A/B Loan Pair Custodial Account shall be exclusive, it being
understood and agreed that actual payments from a Borrower in the nature of
Escrow Payments, charges for beneficiary statements or demands, assumption fees,
modification fees, extension fees, amounts collected for Borrower checks
returned for insufficient funds or other amounts that the Master Servicer or the
Special Servicer is entitled to retain as additional servicing compensation
pursuant to Section 3.11 need not be deposited by the applicable Master Servicer
in such A/B Loan Pair Custodial Account. If the applicable Master Servicer shall
deposit in any A/B Loan Pair Custodial Account any amount not required to be
deposited therein, it may at any time withdraw such amount from such A/B Loan
Pair Custodial Account, notwithstanding any provision in this Agreement to the
contrary.
Within one Business Day of receipt of any of the amounts described
in the second preceding paragraph with respect to any Specially Serviced
Mortgage Loan that is part of a CBA A/B Loan Pair during the period that the
related B Loan is being serviced hereunder, the applicable Special Servicer
shall remit such amounts to the applicable Master Servicer for deposit in the
related A/B Loan Pair Custodial Account pursuant to the second preceding
paragraph. Any amounts received by the applicable Special Servicer with respect
to an REO Property that relates to an A/B Loan Pair shall be deposited into the
REO Account and remitted to the applicable Master Servicer for deposit into the
related A/B Loan Pair Custodial Account pursuant to Section 3.16(c).
If any B Loan that relates to a CBA A/B Loan Pair is being serviced
hereunder and with respect to the 000 Xxxxx Xxxxxx Loan and the Washington
Center Loan, or if the Mortgaged Property securing any CBA A/B Loan Pair has
become REO Property, then as and when required pursuant to the related A/B
Intercreditor Agreement (and in any event on the Business Day following each
Determination Date), the applicable Master Servicer shall withdraw from the
related A/B Loan Pair Custodial Account and pay to the applicable parties
hereunder such amounts as is permitted under the related A/B Intercreditor
Agreement for purposes of the reimbursement of Advances, the payment of interest
on Advances, the payment of Servicing Fees, Special Servicing Fees, Workout Fees
and Liquidation Fees and the payment of any other servicing expenses and fees
relating to the subject A/B Loan Pair or any related REO Property and, further,
pay to the Trust, as "A Note Holder" under the related A/B Intercreditor
Agreement, and to the B Loan Holder or the Washington Center Junior Holders, as
applicable, all amounts to which each of them is entitled in respect of the
subject A Loan, B Loan and C Loan, respectively, in accordance with the related
A/B Intercreditor Agreement. The foregoing payments shall be made in accordance
with the priorities set forth in the related A/B Intercreditor Agreement.
Payments to the Trust shall be made by transfer of the applicable funds to the
Collection Account, and payments to the B Loan Holder or the Washington Center
Junior Holders, as applicable, shall be made in accordance with the related A/B
Intercreditor Agreement.
(g) Notwithstanding the foregoing or any other provision to the
contrary in this Agreement, the Trustee may maintain the Distribution Account,
the Interest Reserve Account and the Excess Liquidation Proceeds Account as
three separate subaccounts of a single Eligible Account; provided that: (i) all
deposits into and withdrawals from such single Eligible Account shall be made in
the same manner as would be the case if the Distribution Account, the Interest
Reserve Account and the Excess Liquidation Proceeds Account were maintained as
three separate accounts; (ii) all distributions on the Certificates shall be
calculated and made in the same manner as would be the case if the Distribution
Account, the Interest Reserve Account and the Excess Liquidation Proceeds
Account were maintained as three separate accounts; (iii) the Trustee shall make
debits and credits to those three subaccounts in a manner consistent with the
provisions of this Agreement governing transfers of funds between the
Distribution Account, the Interest Reserve Account and the Excess Liquidation
Proceeds Account, as the case may be; (iv) the Trustee's maintaining the
Distribution Account, the Interest Reserve Account and the Excess Liquidation
Proceeds Account as three separate subaccounts of a single Eligible Account (as
opposed to in the form of three separate Eligible Accounts) shall not materially
and adversely affect any of the Certificateholders; and (v) such single Eligible
Account shall be entitled "Xxxxx Fargo Bank Minnesota, N.A., as Trustee, in
trust for the registered holders of Credit Suisse First Boston Mortgage
Securities Corp., Commercial Mortgage Pass-Through Certificates, Series 2003-C3,
Distribution Account, Interest Reserve Account and Excess Liquidation Proceeds
Account".
Section 3.05 Permitted Withdrawals From the Collection Accounts, the
Distribution Account, the Interest Reserve Account and the Excess Liquidation
Proceeds Account
(a) Each Master Servicer may, from time to time, make withdrawals
from its Collection Account for any of the following purposes (the order set
forth below not constituting an order of priority for such withdrawals but
subject to clauses (A), (B) and (C) of this Section 3.05(a) below):
(i) to remit to the Trustee for deposit in the Lower-Tier
Distribution Account, 000 Xxxxx Xxxxxx Loan REMIC Distribution Account or
Post-ARD Additional Interest Distribution Account as provided in Section
3.04(b), the Master Servicer Remittance Amount with respect to such Master
Servicer for each Master Servicer Remittance Date and any amounts that may
be applied by such Master Servicer to make P&I Advances pursuant to
Section 4.03(a);
(ii) to reimburse itself, the Trustee or any Fiscal Agent, as
applicable, for xxxxxxxxxxxx X&X Advances (to the extent not previously
reimbursed in the form of a cure payment from the 000 Xxxxx Xxxxxx X Loan
Holder, the Controlling Class Representative of the Class 622
Participation Certificates or any Washington Center Junior Holder) made
thereby (in each case, with its own funds) with respect to those Mortgage
Loans as to which such Master Servicer is the applicable Master Servicer
and/or any successor REO Mortgage Loans in respect thereof, such Master
Servicer's, the Trustee's and any Fiscal Agent's, as the case may be,
respective rights to reimbursement pursuant to this clause (ii) with
respect to any P&I Advance (other than Nonrecoverable P&I Advances, which
are reimbursable pursuant to clause (vi) below) being limited to amounts
that represent Late Collections of interest and principal received in
respect of the particular Mortgage Loan or REO Mortgage Loan as to which
such P&I Advance was made (net of related Master Servicing Fees);
(iii) to pay itself earned and unpaid Master Servicing Fees with
respect to those Mortgage Loans as to which it is the applicable Master
Servicer and/or any REO Mortgage Loans in respect thereof, such Master
Servicer's right to payment pursuant to this clause (iii) with respect to
any such Mortgage Loan or such REO Mortgage Loan being limited to amounts
that are allocable as interest thereon;
(iv) to pay the applicable Special Servicer (or, if applicable, any
predecessor thereto) earned and unpaid Special Servicing Fees, Workout
Fees and Liquidation Fees to which it is entitled pursuant to, and from
the sources contemplated by, Section 3.11(c), but only if and to the
extent that such Special Servicing Fees, Workout Fees and Liquidation Fees
relate to Mortgage Loans and/or REO Properties as to which such Special
Servicer is the applicable Special Servicer;
(v) to reimburse itself, the applicable Special Servicer, the
Trustee or any Fiscal Agent, as applicable, for any unreimbursed Servicing
Advances made thereby (in each case, with its own funds) with respect to
those Mortgage Loans and REO Properties as to which such Master Servicer
is the applicable Master Servicer, such Master Servicer's, the applicable
Special Servicer's, the Trustee's and any Fiscal Agent's, as the case may
be, respective rights to reimbursement pursuant to this clause (v) with
respect to any Servicing Advance (other than Nonrecoverable Servicing
Advances which are reimbursable pursuant to clause (vi) below) being
limited to (A) payments made by or on behalf of the related Borrower that
are allocable to cover the item in respect of which such Servicing Advance
was made, and (B) Insurance Proceeds, Condemnation Proceeds, Liquidation
Proceeds and, if applicable, REO Revenues received in respect of the
particular Mortgage Loan or REO Property as to which such Servicing
Advance was made;
(vi) (A) to reimburse itself, the applicable Special Servicer, the
Trustee or any Fiscal Agent, as applicable, out of such general
collections on the Mortgage Loans and any REO Properties as are then on
deposit in such Collection Account, for any unreimbursed Nonrecoverable
Advances made thereby with respect to any of the Mortgage Loans and/or REO
Properties as to which such Master Servicer is the applicable Master
Servicer and (B) if such Master Servicer shall have received from the
other Master Servicer an Officer's Certificate setting forth that (1) such
other Master Servicer, either Special Servicer, the Trustee or any Fiscal
Agent, as applicable, is entitled to reimbursement for any Nonrecoverable
Advance made with respect to any of the Mortgage Loans and/or REO
Properties as to which such other Master Servicer is the applicable Master
Servicer (and setting forth the nature and amount of such unreimbursed
Nonrecoverable Advance and the party entitled to reimbursement therefor)
and (2) such other Master Servicer has insufficient funds then on deposit
in its Collection Account, then to reimburse such other Master Servicer,
either Special Servicer, the Trustee or any Fiscal Agent, as applicable,
out of such general collections on the Mortgage Loans and any REO
Properties as are then on deposit in the subject Master Servicer's
Collection Account, for such unreimbursed Nonrecoverable Advance made with
respect to any of the Mortgage Loans and/or REO Properties as to which
such other Master Servicer is the applicable Master Servicer;
(vii) to pay itself, the applicable Special Servicer, the Trustee or
any Fiscal Agent, as applicable, any unpaid Advance Interest accrued on
Advances made by such Person with respect to Mortgage Loans and/or REO
Properties as to which such Master Servicer is the applicable Master
Servicer, such payment to be made, as and to the extent contemplated by
Section 3.26, out of Default Charges collected on the Mortgage Loan or REO
Mortgage Loan, as the case may be, as to which the related Advance was
made;
(viii) to the extent that, during any Collection Period, such Master
Servicer has reimbursed or is reimbursing itself, the applicable Special
Servicer, the Trustee or any Fiscal Agent, as applicable, for any
unreimbursed Advance with respect to any Mortgage Loan or REO Property as
to which such Master Servicer is the applicable Master Servicer
(regardless of whether such reimbursement is pursuant to clause (ii), (v)
or (vi) above or pursuant to Section 3.03(c) or Section 3.03(d)), and
insofar as payment has not already been made out of related Default
Charges, and the related Default Charges then on deposit in the Collection
Account are not sufficient to make such payment, pursuant to clause (vii)
above, to pay itself, such Special Servicer, the Trustee or such Fiscal
Agent, as the case may be, first out of the remaining Liquidation Proceeds
from the Mortgage Loan to which the Advance relates, then out of such
general collections on the Mortgage Loans and any REO Properties as are
then on deposit in such Collection Account, any related Advance Interest
accrued and payable on the portion of such Advance so reimbursed or being
reimbursed;
(ix) to pay (A) any outstanding expenses that were incurred by
either Special Servicer in connection with its inspecting, pursuant to
Section 3.12(a), any Mortgaged Property securing a Specially Serviced
Mortgage Loan as to which such Master Servicer is the applicable Master
Servicer or any REO Property as to which such Master Servicer is the
applicable Master Servicer or (B) any other outstanding expenses incurred
on behalf of the Trust with respect to any Mortgage Loan or REO Property
as to which such Master Servicer is the applicable Master Servicer (other
than Advance Interest, which is covered by clause (vii) above, and other
than Special Servicing Fees, Workout Fees and Liquidation Fees) that will
likely otherwise become Additional Trust Fund Expenses, such payment to be
made, as and to the extent contemplated by Section 3.26, out of Default
Charges collected on the related Mortgage Loan or REO Mortgage Loan, as
the case may be, and then from Liquidation Proceeds from the related
Mortgage Loan or REO Mortgage Loan;
(x) to pay itself any items of Additional Master Servicing
Compensation, and to pay to the applicable Special Servicer any items of
Additional Special Servicing Compensation, in each case on deposit in the
Collection Account from time to time;
(xi) to pay any unpaid Liquidation Expenses incurred with respect to
any related Mortgage Loan or REO Property as to which such Master Servicer
is the applicable Master Servicer, such payments to be made, first, out of
Insurance Proceeds, Condemnation Proceeds or Liquidation Proceeds and, if
applicable, REO Revenues received with respect to such Mortgage Loan or
REO Property, as the case may be, and then, out of such general
collections on other Mortgage Loans and REO Properties as are then on
deposit in such Collection Account;
(xii) to pay, in accordance with Section 3.11(i), out of such
general collections on the Mortgage Loans and any REO Properties as are
then on deposit in such Collection Account, certain servicing expenses
related to the Mortgage Loans and REO Properties as to which such Master
Servicer is the applicable Master Servicer, which expenses would, if
advanced, constitute Nonrecoverable Servicing Advances;
(xiii) to pay, first out of related Liquidation Proceeds, and then,
out of such general collections on the Mortgage Loans and any REO
Properties as are then on deposit in such Collection Account, costs and
expenses incurred by the Trust pursuant to Section 3.09(c) with respect to
any Mortgage Loan or REO Property as to which such Master Servicer is the
applicable Master Servicer (other than the costs of environmental testing,
which are to be covered by, and reimbursable as, a Servicing Advance);
(xiv) to pay itself, either Special Servicer, the Depositor, the
Trustee, any Fiscal Agent, or any of their respective directors, officers,
members, managers, employees and agents, as the case may be, first out of
related Liquidation Proceeds, and then, out of such general collections on
the Mortgage Loans and any REO Properties as are then on deposit in such
Collection Account, any amounts payable to any such Person pursuant to
Section 6.03, Section 7.01(b), Section 8.05(b) or Section 8.13, as
applicable, but only if and to the extent that such amounts relate to
Mortgage Loans and/or REO Properties as to which such Master Servicer is
the applicable Master Servicer;
(xv) to pay, out of such general collections on the Mortgage Loans
and any REO Properties as are then on deposit in the Collection Account,
to the Great Lakes Crossing Master Servicer, the holder of the Great Lakes
Crossing Companion Loan, any amount payable or reimbursable to such party
pursuant to the terms of the Great Lakes Crossing Intercreditor Agreement;
(xvi) to pay, first out of related Liquidation Proceeds, and then,
out of such general collections on the Mortgage Loans and any REO
Properties then on deposit in such Collection Account, (A) any reasonable
out-of-pocket cost or expense (including the reasonable fees of tax
accountants and attorneys) incurred by the Trustee pursuant to Section
3.17(a)(iii) in connection with providing advice to a Special Servicer
with respect to any REO Property as to which such Master Servicer is the
applicable Master Servicer, and (B) to the extent not otherwise advanced
by such Master Servicer, any fees and/or expenses payable or reimbursable,
as the case may be, in accordance with Section 3.18(c), to the General
Master Servicer, the Trustee or an Independent third party for confirming,
in accordance with such Section 3.18(c), a Fair Value determination made
with respect to any Specially Designated Defaulted Mortgage Loan as to
which such Master Servicer is the applicable Master Servicer;
(xvii) to pay itself, each Master Servicer, each Special Servicer,
the Trustee, any Fiscal Agent or the Depositor, as the case may be, any
amount related to the Mortgage Loans and/or REO Properties as to which
such Master Servicer is the applicable Master Servicer, that is
specifically required to be paid to such Person at the expense of the
Trust Fund under any provision of this Agreement and to which reference is
not made in any other clause of this Section 3.05(a), it being
acknowledged that this clause (xvii) shall not be construed to modify any
limitation otherwise set forth in this Agreement on the time at which any
Person is entitled to payment or reimbursement of any amount or the funds
from which any such payment or reimbursement is permitted to be made;
(xviii) to pay itself, either Special Servicer, any Mortgage Loan
Seller, a Controlling Class Certificateholder or any other particular
Person, as the case may be, with respect to any Mortgage Loan as to which
such Master Servicer is the applicable Master Servicer and that was
previously purchased or otherwise removed from the Trust Fund by such
Person pursuant to or as contemplated by this Agreement, all amounts
received on such Mortgage Loan subsequent to the date of purchase or other
removal;
(xix) to pay amounts payable to any B Loan Holder or any Washington
Center Junior Holder under the related A/B Intercreditor Agreement;
(xx) to reimburse itself for any prior Advance, including any
interest accrued and payable thereon, made for which a cure payment from
the 000 Xxxxx Xxxxxx X Loan Holder, the Controlling Class Representative
of the Class 622 Participation Certificates or any Washington Center
Junior Holder has been received, from such cure payment;
(xxi) to transfer any Excess Liquidation Proceeds on deposit in such
Collection Account to the Excess Liquidation Proceeds Account in
accordance with Section 3.04(d);
(xxii) to pay for the cost of any Opinion of Counsel for purposes of
REMIC administration or amending this Agreement pursuant to Section 11.01,
in each case, to the extent payable out of the Trust Fund, and to pay for
the cost of obtaining any extensions from the IRS in connection with the
sale of any REO Property; provided, however, that in respect of the 000
Xxxxx Xxxxxx Loan and the Washington Center Loan, no such Opinions of
Counsel shall be payable out of or reduce any amounts otherwise
distributable to, the 000 Xxxxx Xxxxxx X Loan or any Washington Center
Junior Loan;
(xxiii) to pay, out of general collections, any and all federal,
state and local taxes imposed on the Upper-Tier REMIC, Lower-Tier REMIC or
000 Xxxxx Xxxxxx Loan REMIC; provided, however, that in respect of the 000
Xxxxx Xxxxxx Loan and the Washington Center Loan, no such federal, state
and local taxes imposed on the Upper-Tier REMIC, Lower-Tier REMIC or 000
Xxxxx Xxxxxx Loan REMIC shall be payable out of or reduce any amounts
otherwise distributable to, the 000 Xxxxx Xxxxxx X Loan or any Washington
Center Junior Loan; and
(xxiv) to clear and terminate such Collection Account at the
termination of this Agreement pursuant to Section 9.01.
The Master Servicer shall keep and maintain separate accounting
records, on a loan-by-loan and property-by-property basis when appropriate, for
the purpose of justifying any withdrawal from the Collection Account. Any
amounts withdrawn from the Collection Account pursuant to clauses (ii), (iii)
and (v) through (xxiii) above that are (A) specific to the 000 Xxxxx Xxxxxx Loan
REMIC shall be allocated by the Trustee to the 000 Xxxxx Xxxxxx Loan REMIC, (B)
specific to the Mortgage Loans other than the 000 Xxxxx Xxxxxx Loan REMIC shall
be allocated by the Trustee to the Lower-Tier REMIC, and (C) not specific to a
particular Mortgage Loan shall be allocated by the Trustee between the 000 Xxxxx
Xxxxxx Loan REMIC and the Lower-Tier REMIC in proportion to the Stated Principal
Balances of their related Mortgage Loans.
If amounts on deposit in either Collection Account at any particular
time (after withdrawing any portion of such amounts deposited in such Collection
Account in error) are insufficient to satisfy all payments, reimbursements and
remittances to be made therefrom as set forth in clauses (ii) through (xvii)
above, then the corresponding withdrawals from such Collection Account shall be
made in the following priority and subject to the following rules: (x) if the
payment, reimbursement or remittance is to be made from a specific source of
funds, then such payment, reimbursement or remittance shall be made from that
specific source of funds on a pro rata basis with any and all other payments,
reimbursements and remittances to be made from such specific source of funds;
and (y) if the payment, reimbursement or remittance can be made from any funds
on deposit in such Collection Account, then (following any withdrawals made from
such Collection Account in accordance with the immediately preceding clause (x)
above) such payment, reimbursement or remittance shall be made from the general
funds remaining on deposit in such Collection Account on a pro rata basis with
any and all other payments, reimbursements or remittances to be made from such
general funds; provided that amounts payable pursuant to clauses (vi) through
(viii) shall be paid, pro rata, prior to any other such payments, reimbursements
or remittances; and provided, further, that amounts payable pursuant to clause
(xiv) shall be paid after the amounts specified in the preceding proviso but
prior to any other such payments, reimbursements or remittances; and provided,
further, that any reimbursements of Advances in respect of any particular
Mortgage Loan or REO Property out of a Collection Account pursuant to any of
clauses (ii), (v) and (vi) above, and any payments of interest thereon out of a
Collection Account pursuant to either of clauses (vii) and (viii) above, shall
be made (to the extent of their respective entitlements to such reimbursements
and/or payments): first, to any Fiscal Agent; second, to the Trustee; and third,
pro rata, to the applicable Master Servicer and Special Servicer; provided, that
nothing in this paragraph shall affect the timing of payments to any B Loan
Holder or Washington Center Junior Holder of any amounts held in the A/B Loan
Custodial Account pursuant to Section 3.05(f) or amounts due to any B Loan
Holder or Washington Center Junior Holder pursuant to clause (xix) above or any
other relevant Section herein.
No party hereto shall be entitled to payment or reimbursement of any
amount from general collections on deposit in the Collection Account with
respect to any A Loan or related REO Property for which it can be reimbursed out
of amounts then on deposit in the related A/B Loan Pair Custodial Account and,
in the case of the B Loans or the Washington Center Junior Loans, as the case
may be:
(A) the applicable Master Servicer shall be entitled to make
transfers from time to time, from the related A/B Loan Pair Custodial Account to
the portion of its Collection Account that does not constitute the A/B Loan Pair
Custodial Account, of amounts necessary for the payments or reimbursement of
amounts described in any one or more of clauses (ii), (iii), (iv), (v), (vi),
(vii), (viii), (x) and (xiii) above, but only insofar as the payment or
reimbursement described therein arises from or is related solely to an A Loan
pursuant to this Agreement and has been allocated to the related B Loan or the
Washington Center Junior Loans pursuant to the related A/B Intercreditor
Agreement, and the applicable Master Servicer shall also be entitled to make
transfers from time to time, from the related A/B Loan Pair Custodial Account to
the portion of its Collection Account that does not constitute the A/B Loan Pair
Custodial Account, of amounts transferred to such related A/B Loan Pair
Custodial Account in error, and amounts necessary for the clearing and
termination of its Collection Account pursuant to Section 9.01;
(B) the applicable Master Servicer shall be entitled to make
transfers from time to time, from the related A/B Loan Pair Custodial Account to
the portion of its Collection Account that does not constitute the A/B Loan Pair
Custodial Account, of amounts not otherwise described in clause (A) above to
which the holder of an A Note is entitled under the related A/B Intercreditor
Agreement (including in respect of interest, principal and Prepayment Premiums
due in respect of the A Note (whether or not by operation of any provision of
the related A/B Intercreditor Agreement that entitles the holder of such A Note
to receive remittances in amounts calculated without regard to any modification,
waiver or amendment of the economic terms of such A Note));
(C) the applicable Master Servicer shall on the Business Day
following receipt of payment from the related Borrower, remit to the B Loan
Holder and the Washington Center Junior Holders any amounts on deposit in such
A/B Loan Pair Custodial Account (net of amounts permitted or required to be
transferred therefrom as described in clauses (A) and/or (B) above), to the
extent that the B Loan Holder and the Washington Center Junior Holders are
entitled thereto under the related A/B Intercreditor Agreement (including by way
of the operation of any provision of the related A/B Intercreditor Agreement
that entitles the B Loan Holder and the Washington Center Junior Holders to
reimbursement of cure payments made by it).
Expenses incurred with respect to any B Loan or the Washington
Center Junior Loans shall be allocated in accordance with the related A/B
Intercreditor Agreement. The applicable Master Servicer shall keep and maintain
a separate accounting for each Mortgage Loan, B Loan and Washington Center
Junior Loans for the purpose of justifying any withdrawal or transfer from its
Collection Account and any A/B Loan Pair Custodial Account. The applicable
Master Servicer shall not be permitted to withdraw any funds from the portion of
its Collection Account that does not constitute the A/B Loan Pair Custodial
Account unless there are no remaining funds in the related A/B Loan Pair
Custodial Account available and amounts are required to be paid in accordance
with the related A/B Intercreditor Agreement. If the applicable Master Servicer
is entitled to make any payment or reimbursement described above and such
payment or reimbursement relates to a B Loan or the Washington Center Junior
Loans but is not limited to a specific source of funds (other than the
requirement that it must be made by withdrawal from the A/B Loan Pair Custodial
Account insofar as it relates to a B Loan or any Washington Center Junior Loan
and is permitted pursuant to the related A/B Intercreditor Agreement), the
applicable Master Servicer shall, if funds on deposit in such A/B Loan Pair
Custodial Account are insufficient therefor, request the B Loan Holder or the
Washington Center Junior Holders to make such payment or reimbursement to the
extent the B Loan Holder or the Washington Center Junior Holders are obligated
to make such payment or reimbursement pursuant to the related A/B Intercreditor
Agreement. If the B Loan Holder or any Washington Center Junior Holder fails to
make such payment or reimbursement that it is obligated to make and the
applicable Master Servicer deems the payment or reimbursement necessary to
protect the related Mortgaged Property from a default, delinquency or other
anticipated event that is imminent with respect to the related Mortgage Loan in
its reasonable judgment and in accordance with the Servicing Standard, the
applicable Master Servicer shall be entitled to make such payment or
reimbursement from its Collection Account. If such payment or reimbursement is
subsequently recovered from the B Loan Holder or any Washington Center Junior
Holder (including, if permitted by the related A/B Intercreditor Agreement, by
offsetting against subsequent amounts payable to the B Loan Holder or the
Washington Center Junior Holders), to the extent that any amounts were
previously taken by the applicable Master Servicer from its Collection Account,
the amount recovered shall be deposited into its Collection Account and shall
not be deposited into the A/B Loan Pair Custodial Account.
Each Master Servicer shall pay to the applicable Special Servicer
from such Master Servicer's Collection Account on each Master Servicer
Remittance Date amounts permitted to be paid to such Special Servicer therefrom
based upon an Officer's Certificate received from such Special Servicer on the
first Business Day following the immediately preceding Determination Date,
describing the item and amount to which such Special Servicer is entitled. Each
Master Servicer may rely conclusively on any such certificate and shall have no
duty to re-calculate the amounts stated therein. Each Special Servicer shall
keep and maintain separate accounting for each Specially Serviced Mortgage Loan
and REO Property as to which it is the applicable Special Servicer, on a
loan-by-loan and property-by-property basis, for the purpose of justifying any
request thereby for withdrawal from a Collection Account.
(b) The Trustee shall, from time to time, make withdrawals from the
Lower-Tier Distribution Account or the 000 Xxxxx Xxxxxx Loan REMIC Distribution
Account, as applicable, for each of the following purposes (the order set forth
below not constituting an order of priority for such withdrawals):
(i) to make distributions or deemed distributions from the 000 Xxxxx
Xxxxxx Loan REMIC to the Lower-Tier Distribution Account in respect of the
000 Xxxxx Xxxxxx Loan REMIC Regular Interests pursuant to Section 4.01(a),
Section 4.01(c) and Section 4.01(d) and distributions of the Lower-Tier
Distribution Amount pursuant to Section 4.01(c) and the amount of any
Prepayment Premium and Yield Maintenance Charges distributable pursuant to
Section 4.01(d) from the Lower-Tier Distribution Account to the Upper-Tier
Distribution Account;
(ii) to transfer Interest Reserve Amounts in respect of the Interest
Reserve Mortgage Loans to the Interest Reserve Account as and when
required by Section 3.04(c);
(iii) to pay itself, either Master Servicer, either Special
Servicer, the Depositor, the Trustee, any Fiscal Agent 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, Section 7.01(b), Section 8.05 or Section 8.13, as
applicable, if and to the extent such amounts are not payable out of a
Collection Account pursuant to Section 3.05;
(iv) to pay for the cost of the Opinions of Counsel sought by the
Trustee as contemplated by Section 11.01(a) or Section 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;
(v) to pay any and all federal, state and local taxes imposed on the
Upper-Tier REMIC, the Lower-Tier REMIC or the 000 Xxxxx Xxxxxx Loan REMIC
created hereunder, together with all incidental costs and expenses, and
any and all expenses relating to tax audits, if and to the extent that
either (A) none of the parties hereto are liable therefor pursuant to
Section 10.01(b) and/or Section 10.01(f) or (B) any such Person that may
be so liable has failed to timely make the required payment; and
(vi) to clear and terminate the 000 Xxxxx Xxxxxx Loan REMIC
Distribution Account and the Lower-Tier Distribution Account at the
termination of this Agreement pursuant to Section 9.01.
(c) On the Master Servicer Remittance Date in March of each year
(commencing in March 2004), and in any event on the Master Servicer Remittance
Date that occurs in the same calendar month as the Final Distribution Date, the
Trustee shall withdraw from the Interest Reserve Account and deposit in the 000
Xxxxx Xxxxxx Loan REMIC Distribution Account and the Lower-Tier Distribution
Account, as applicable, all Interest Reserve Amounts in respect of the Interest
Reserve Mortgage Loans then on deposit in the Interest Reserve Account. In
addition, the Trustee shall, from time to time, make withdrawals from the
Interest Reserve Account to pay itself interest or other income earned on
deposits in 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
the Interest Reserve Account for each Collection Period).
(d) On the Business Day prior to each Distribution Date, the Trustee
shall withdraw from the Excess Liquidation Proceeds Account and deposit in the
Distribution Account, for distribution on such Distribution Date, an amount
equal to the lesser of (i) the entire amount, if any, then on deposit in the
Excess Liquidation Proceeds Account and (ii) the excess, if any, of the
aggregate amount distributable on such Distribution Date pursuant to Sections
4.01(a) and 4.01(b), over the Standard Available Distribution Amount for such
Distribution Date (calculated without regard to such transfer from the Excess
Liquidation Proceeds Account to the Distribution Account); provided that on the
Business Day prior to the Final Distribution Date, the Trustee shall withdraw
from the Excess Liquidation Proceeds Account and deposit in the Lower-Tier
Distribution Account, for distribution on such Distribution Date, any and all
amounts then on deposit in the Excess Liquidation Proceeds Account. In addition,
the Trustee shall, from time to time, make withdrawals from the Excess
Liquidation Proceeds Account to pay itself interest or other income earned on
deposits in the Excess Liquidation Proceeds Account, in accordance with Section
3.06(b) (but only to the extent of the Net Investment Earnings, if any, with
respect to the Excess Liquidation Proceeds Account for each Collection Period).
(e) The Trustee, any Fiscal Agent, the Depositor, the Master
Servicers and the Special Servicers, as applicable, shall in all cases have a
right prior to the Certificateholders to any particular funds on deposit in
Collection Account and the Distribution Account from time to time for the
reimbursement or payment of compensation, Advances (with interest thereon at the
Reimbursement Rate) and their respective expenses hereunder, but only if and to
the extent such compensation, Advances (with interest) and expenses are to be
reimbursed or paid from such particular funds on deposit in such Collection
Account or the Distribution Account pursuant to the express terms of this
Agreement.
Section 3.06 Investment of Funds in the Accounts
(a) Each Master Servicer may direct (pursuant to a standing order or
otherwise) any depository institution (including the Trustee) maintaining a
Collection Account, any A/B Loan Pair Custodial Account or any Servicing Account
or Reserve Account held by it, and each Special Servicer may direct (pursuant to
a standing order or otherwise) any depository institution (including the
Trustee) maintaining an REO Account, and the Trustee may direct (pursuant to a
standing order or otherwise) any depository institution maintaining the
Distribution Account, the Interest Reserve Account or the Excess Liquidation
Proceeds Account (each such account, for purposes of this Section 3.06, an
"Investment Account"), to invest, or if any of the Master Servicers, the Special
Servicers or the Trustee is such depository institution, such Master Servicer,
such Special Servicer or the Trustee may invest itself, the funds held therein
in (but 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 or the related
Mortgage Loan Documents, as applicable, or with respect to Permitted Investments
of funds held in the Distribution Account, no later than 12:00 p.m. on the next
succeeding Distribution Date; provided that any such investment of funds in any
Servicing Account or Reserve Account shall be subject to applicable law and the
terms of the related Mortgage Loan Documents; and provided, further, that the
funds in any Investment Account shall remain uninvested unless and until the
applicable Master Servicer, the applicable Special Servicer or the Trustee, as
applicable, gives timely investment instructions with respect thereto pursuant
to this Section 3.06. 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). Each Master
Servicer (with respect to Permitted Investments of amounts in its Collection
Account, any A/B Custodial Account or any Servicing Account or Reserve Account
maintained by it) and each Special Servicer (with respect to Permitted
Investments of amounts in its REO Account), acting on behalf of the Trustee,
shall (and Trustee hereby designates the applicable Master Servicer or Special
Servicer, as the case may be, as the Person that shall), and the Trustee (with
respect to Permitted Investments of amounts in the Distribution Account, the
Interest Reserve Account or the Excess Liquidation Proceeds Account), acting on
behalf of itself, shall (i) be the "entitlement holder" of any Permitted
Investment that is a "security entitlement" and (ii) maintain "control" of any
Permitted Investment that is either a "certificated security" or an
"uncertificated security". For purposes of this Section 3.06(a), the terms "
entitlement holder", "security entitlement", "control", "certificated security"
and "uncertificated security" shall have the meanings given such terms in
Revised Article 8 (1994 Revision) of the UCC, and "control" of any Permitted
Investment by a Master Servicer, a Special Servicer or the Trustee shall
constitute "control" by a Person designated by, and acting on behalf of, the
Trustee for purposes of Revised Article 8 (1994 Revision) of the UCC. If amounts
on deposit in an Investment Account are at any time invested in a Permitted
Investment payable on demand, the party hereunder that maintains such account
(whether it is a Master Servicer, a Special Servicer or Trustee), 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 at least
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 such Master Servicer, such 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 such Account.
(b) Whether or not a Master Servicer directs the investment of funds
in its Collection Account, or any A/B Loan Pair Custodial Account, interest and
investment income realized on funds deposited therein, to the extent of the Net
Investment Earnings, if any, for such Investment Account for each Collection
Period, shall be for the sole and exclusive benefit of such Master Servicer and
shall be subject to its withdrawal in accordance with Section 3.05(a). Whether
or not a Master Servicer directs the investment of funds in any Servicing
Account or Reserve Account maintained by it, interest and investment income
realized on funds deposited therein, to the extent of the Net Investment
Earnings, if any, for such Investment Account for each Collection Period, and
subject to the requirements of applicable law or the terms of the related
Mortgage Loan regarding the payment of such interest and investment income to
the related Borrower, shall be for the sole and exclusive benefit of such Master
Servicer and shall be subject to withdrawal from time to time in accordance with
Section 3.03. Whether or not a Special Servicer directs the investment of funds
in an REO Account, interest and investment income realized on funds deposited
therein, to the extent of any Net Investment Earnings, if any, for such
Investment Account for each Collection Period, shall be for the sole and
exclusive benefit of such 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 or the Excess Liquidation Proceeds Account, interest and
investment income realized on funds deposited therein, to the extent of the Net
Investment Earnings, if any, for such Account for each Collection Period, shall
be for the sole and exclusive benefit of the Trustee and shall be subject to its
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 (other
than a loss of what would otherwise have constituted investment earnings), the
applicable Master Servicer (in the case of a Collection Account and any
Servicing Account or Reserve Account), the applicable Special Servicer (in the
case of an REO Account) and the Trustee (in the case of the Distribution
Account, the Interest Reserve Account or the Excess Liquidation Proceeds
Account) shall promptly deposit therein (or, solely to the extent that the loss
is of an amount credited to an A/B Loan Pair Custodial Account, deposit to the
related A/B Loan Pair Custodial Account, as the case may be) from its own funds,
without right of reimbursement, no later than the end of the Collection Period
during which such loss was incurred, the amount of the Net Investment Loss, if
any, in respect of such Investment Account for such Collection Period (or, in
the case of a Servicing Account or Reserve Account, the entire amount of such
loss), except (in the case of any such loss with respect to a Servicing Account
or Reserve Account) to the extent the loss amounts were invested for the benefit
of a Borrower under the terms of a Mortgage Loan or applicable law and such
Borrower has no recourse against the Trust in respect of such loss.
(c) Except as otherwise expressly provided in this Agreement, if any
default occurs in the making of any payment due (or in any other performance
required) under any Permitted Investment of funds on deposit in any Account
(exclusive of the Distribution Account, the Interest Reserve Account and the
Excess Liquidation Proceeds Account), and if the Master Servicer or Special
Servicer, as the case may be, that maintains such Account, is in default of its
obligations under or contemplated by Section 3.06(b), the Trustee may (and,
subject to Section 8.02, upon the request of (i) Holders of Certificates
entitled to not less than 25% of the Voting Rights allocated to any Class of
Regular Certificates or (ii) the Controlling Class Representative, the Trustee
shall) take such action as may be appropriate to enforce such payment or
performance, including the institution and prosecution of appropriate legal
proceedings. Any costs incurred by the Trustee in taking any such action shall
be reimbursed to it by the Master Servicer or Special Servicer, as the case may
be, that maintains such Account. This provision is in no way intended to limit
any actions that a Master Servicer or Special Servicer may take in this regard
at its own expense.
(d) Notwithstanding the investment of funds held in any Investment
Account, for purposes of the calculations hereunder, including the calculation
of the Standard Available Distribution Amount and the Master Servicer Remittance
Amount, the amounts so invested shall be deemed to remain on deposit in such
Investment Account.
Section 3.07 Maintenance of Insurance Policies; Errors and Omissions
and Fidelity Coverage
(a) Each Master Servicer shall use reasonable efforts consistent
with the Servicing Standard to cause each Borrower with respect to the Mortgage
Loans for which it acts as Master Servicer to maintain, and, if the Borrower
does not so maintain, such Master Servicer will itself cause to be maintained,
for each Mortgaged Property (including each Mortgaged Property relating to any
Specially Serviced Mortgage Loan) all insurance coverage as is required, subject
to applicable law, under the related Mortgage Loan Documents; 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 Borrower is required to maintain, such Master Servicer
shall exercise such discretion in a manner consistent with the Servicing
Standard, with a view towards requiring insurance comparable to that required
under other Mortgage Loans with express provisions governing such matters and,
in any event, business interruption or rental loss insurance for at least 12
months; and provided, further, that, if and to the extent that any such Mortgage
so permits, the related Borrower shall be required to obtain the required
insurance coverage from Qualified Insurers that, in each case, have a financial
strength or claims-paying rating no lower than two rating categories below the
highest rated Certificates outstanding, and in any event no lower than "A-" from
S&P and Fitch and "A3" from Xxxxx'x (or in such other form and amount or issued
by an insurer with such other financial strength or claims-paying ability as
would not, as confirmed in writing by the relevant Rating Agency, result in an
Adverse Rating Event); and provided, further, that such Master Servicer shall be
required to maintain such insurance coverage upon the related Borrower's failure
to do so only to the extent that (i) the Trustee as mortgagee has an insurable
interest, (ii) such insurance is available at commercially reasonable rates (as
determined by the applicable Master Servicer and approved by the Controlling
Class Representative, which approval shall be deemed given if not disapproved in
writing within 10 Business Days) and (iii) any related Servicing Advance is
deemed by the applicable Master Servicer to be recoverable from collections on
the related Mortgage Loan; provided, that if such Servicing Advance is deemed a
Nonrecoverable Servicing Advance the applicable Master Servicer may (or, at the
direction of the applicable Special Servicer if a Specially Serviced Mortgage
Loan or an REO Property is involved shall) pay such amounts out of the
applicable Collection Account provided, further, that the applicable Master
Servicer (or the applicable Special Servicer, if a Specially Serviced Mortgage
Loan or an REO Property is involved) has determined in accordance with the
Servicing Standard that making such payment is in the best interests of the
Certificateholders and any related B Loan Holder and Washington Center Junior
Holder (as a collective whole), as evidenced in each case by any Officer's
Certificate delivered promptly to the Trustee, the Depositor and the Controlling
Class Representative, setting forth the basis for such determination and
accompanied by any information that such Person may have obtained that supports
such determination. Subject to Section 3.17(b), each Special Servicer shall also
cause to be maintained for each REO Property with respect to the Mortgage Loans
for which it acts as Special Servicer no less insurance coverage, the cost of
which shall be paid by the applicable Master Servicer as a Servicing Advance (to
the extent available at commercially reasonable rates as determined by the
Controlling Class Representative) than was previously required of the Borrower
under the related Mortgage and, at a minimum, (i) hazard insurance with a
replacement cost rider, (ii) business interruption or rental loss insurance for
at least 12 months, and (iii) commercial general liability insurance, in each
case, in an amount customary for the type and geographic location of such REO
Property and consistent with the Servicing Standard; provided that all such
insurance shall be obtained from Qualified Insurers that, in each case, shall
have a financial strength or claims-paying rating no lower than two rating
categories below the highest rated Certificates outstanding, and in any event no
lower than "A-" from S&P and Fitch and "A3" from Xxxxx'x (or in such other form
and amount or issued by an insurer with such other financial strength or
claims-paying ability as would not, as confirmed in writing by the relevant
Rating Agency, result in an Adverse Rating Event). All such insurance policies
shall contain (if they insure against loss to property) a "standard" mortgagee
clause, with loss payable to the applicable Master Servicer on behalf of the
Trustee (on behalf of the Certificateholders and, if related to the 000 Xxxxx
Xxxxxx Loan or the Washington Center Loan, the 000 Xxxxx Xxxxxx X Loan Holder
and each Washington Center Junior Holder, respectively) (in the case of
insurance maintained in respect of Mortgage Loans), or shall name the Trustee as
the insured, with loss payable to the applicable Special Servicer on behalf of
the Trustee (on behalf of the Certificateholders and, if related to the 000
Xxxxx Xxxxxx Loan or the Washington Center Loan, the 000 Xxxxx Xxxxxx X Loan
Holder and each Washington Center Junior Holder, respectively) (in the case of
insurance maintained in respect of REO Properties), and shall be issued by an
insurer authorized under applicable law to issue such insurance. Any amounts
collected by a Master Servicer or a 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
Borrower, in each case in accordance with the Servicing Standard) shall be
deposited in the Collection Account or any related A/B Loan Pair Custodial
Account, subject to withdrawal pursuant to Section 3.05(a), in the case of
amounts received in respect of a Mortgage Loan, or in the REO Account, subject
to withdrawal pursuant to Section 3.16(c), in the case of amounts received in
respect of an REO Property. Any cost incurred by a Master Servicer or a Special
Servicer in maintaining any such insurance shall not, for purposes hereof,
including calculating monthly distributions to Certificateholders, be added to
unpaid principal balance or Stated Principal Balance of the related Mortgage
Loan, notwithstanding that the terms of such Mortgage Loan so permit; provided,
however, that this sentence shall not limit the rights of the applicable Master
Servicer on behalf of the Trust to enforce any obligations of the related
Borrower under such Mortgage Loan. Costs to a Master Servicer or a Special
Servicer of maintaining insurance policies pursuant to this Section 3.07 shall
be paid by and reimbursable to the applicable Master Servicer as a Servicing
Advance.
Subject to the preceding paragraph, the applicable Master Servicer
shall use reasonable efforts to cause the Borrower to maintain or, if the
Borrower does not so maintain, the applicable Master Servicer will maintain
all-risk casualty insurance or extended coverage insurance (with special form
coverage) (the cost of which shall be payable as a Servicing Advance), which
does not contain any exclusion for terrorist or similar acts; provided, however,
the applicable Master Servicer shall not require any Borrower to obtain or
maintain insurance in excess of the amounts of coverage and deductibles required
by the related Mortgage Loan Documents or the related Mortgage Loan Seller in
connection with the origination of a Mortgage Loan unless such Master Servicer
determines, in accordance with the Servicing Standard, that such insurance
required at origination would not be prudent for a Mortgaged Property of the
same type as the related Mortgaged Property. The applicable Master Servicer
shall not be required to call a default under a Mortgage Loan if the related
Borrower fails to maintain such insurance, and the applicable Master Servicer
shall not be required to maintain such insurance, to the extent, if any, that
the cost of such insurance exceeds the maximum cost that the related Borrower is
required to incur under the related Mortgage Loan Documents, or if the
applicable Master Servicer has determined in accordance with the Servicing
Standard that either (i) such insurance is not available at commercially
reasonable rates or 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 (which
determination shall be subject to the approval of the Controlling Class
Representative, which approval shall be deemed given if not disapproved in
writing within 10 Business Days), or (ii) such insurance is not available at any
rate.
(b) If a Master Servicer or Special Servicer shall obtain and
maintain, or cause to be obtained and maintained, a blanket policy or master
force placed policy insuring against hazard losses on all of the Mortgage Loans
or REO Properties, as applicable, as to which it is the applicable Master
Servicer or Special Servicer, as the case may be, then, to the extent such
policy (i) is obtained from a Qualified Insurer having a financial strength or
claims-paying rating no lower than "A" from S&P and Fitch and "A2" from Xxxxx'x
or having such other financial strength or claims-paying ability rating as would
not, as confirmed in writing by the relevant Rating Agency, result in an Adverse
Rating Event, and (ii) provides protection equivalent to the individual policies
otherwise required, such Master Servicer or 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 or REO
Properties, as applicable. Such a blanket or master force placed policy may
contain a deductible clause (not in excess of a customary amount), in which case
the applicable Master Servicer or the applicable Special Servicer, as the case
may be, that maintains such policy shall, if there shall not have been
maintained on any Mortgaged Property (other than the Great Lakes Crossing
Mortgaged Property) or REO Property thereunder 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 an individual policy,
promptly deposit into the Collection Account or A/B Loan Pair Custodial Account,
as applicable, maintained by the applicable Master Servicer, from its own funds,
the amount not otherwise payable under the blanket or master force placed policy
in connection with such loss or losses because of such deductible clause to the
extent that any such deductible exceeds the deductible limitation that pertained
to the related Mortgage Loan (or, in the absence of any such deductible
limitation, the deductible limitation for an individual policy which is
consistent with the Servicing Standard). The applicable Master Servicer or the
applicable Special Servicer, as appropriate, shall prepare and present, on
behalf of itself, the Trustee and Certificateholders, claims under any such
blanket or master force placed policy in a timely fashion in accordance with the
terms of such policy.
(c) Within 45 days after the Closing Date, with respect to each of
the Mortgage Loans for which it acts as Master Servicer covered by an
Environmental Insurance Policy that are listed on Exhibit B-4 to this Agreement,
each 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 and, with respect to the Washington Center Loan, for the
nenefit of the Washington Center Junior Holders and the Certificateholders, as a
collective whole, to be an insured (and for such Master Servicer, on behalf of
the Trust, to make claims) under such Environmental Insurance Policy. In the
event that a 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, such 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 and,
with respect to the Washington Center Loan, for the benefit of the Washington
Center Junior Holders and the Certificateholders, as a collective whole. If any
other party hereto has actual knowledge of an Insured Environmental Event with
respect to any Mortgage Loan listed on Exhibit B-4 to this Agreement, such party
shall promptly so notify the applicable Master Servicer. 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 applicable 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, serviced by a Master
Servicer, such 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
policy to realize the full value thereof for the benefit of the
Certificateholders and, with respect to the Washington Center Loan, for the
benefit of the Washington Center Junior Holders and the Certificateholders, as a
collective whole. in the event such Master Servicer has actual knowledge of an
Insured Environmental Event giving rise to a claim under such policy.
In the event that a Master Servicer receives notice of any
termination of any Environmental Insurance Policy that relates to one or more
Mortgage Loans, for which it acts as Master Servicer, such Master Servicer
shall, within five Business Days after receipt of such notice, notify the
applicable Special Servicer, the Controlling Class Representative, the Rating
Agencies and the Trustee of such termination in writing. Upon receipt of such
notice, such Master Servicer 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 applicable Master Servicer
and shall be reimbursable to it as a Servicing Advance.
(d) Each Master Servicer and each Special Servicer shall at all
times during the term of this Agreement (or, in the case of a Special Servicer,
at all times during the term of this Agreement during which Specially Serviced
Mortgage Loans and/or REO Properties as to which it is the applicable Special
Servicer exist as part of the Trust Fund) keep in force with a Qualified Insurer
having a financial strength or claims-paying rating no lower than two rating
categories below the highest rated Certificates outstanding, and in any event no
lower than "A" from S&P and Fitch, a fidelity bond in such form and amount as
would permit it to be a qualified Xxxxxx Xxx seller-servicer of multifamily
mortgage loans (or in such other form and amount or issued by an insurer with
such other financial strength or claims-paying ability rating as would not
result in an Adverse Rating Event with respect to any Class of Rated
Certificates (as confirmed in writing to the Trustee by the relevant Rating
Agency)). Each Master Servicer and each 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 applicable Master Servicer or the applicable Special
Servicer, as the case may be. Such fidelity bond shall provide that it may not
be canceled without ten days' prior written notice to the Trustee.
Each Master Servicer and each Special Servicer shall at all times
during the term of this Agreement (or, in the case of a Special Servicer, at all
times during the term of this Agreement during which Specially Serviced Mortgage
Loans and/or REO Properties as to which it is the applicable Special Servicer
exist as part of the Trust Fund) also keep in force with a Qualified Insurer
having a financial strength or claims-paying rating no lower than two rating
categories below the highest rated Certificates outstanding, and in any event no
lower than "A" from S&P and Fitch, a policy or policies of insurance covering
loss occasioned by the errors and omissions of its officers and employees in
connection with its servicing obligations hereunder and, to the limited extent
contemplated by Articles I through XI, to administer the Great Lakes Crossing
Mortgage Loan, which policy or policies shall be in such form and amount as
would permit it to be a qualified Xxxxxx Xxx seller-servicer of multifamily
mortgage loans (or in such other form and amount or issued by an insurer with
such other financial strength or claims-paying rating as would not result in an
Adverse Rating Event with respect to any Class of Rated Certificates (as
confirmed in writing to the Trustee by the relevant Rating Agency)). Each Master
Servicer and each 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 applicable Master Servicer or the applicable Special Servicer, as the case
may be. Any such errors and omissions policy shall provide that it may not be
canceled without ten days' prior written notice to the Trustee.
Section 3.08 Enforcement of Alienation Clauses
Each Master Servicer (with respect to Performing Mortgage Loans for
which it acts as Master Servicer) and each Special Servicer (with respect to
Specially Serviced Mortgage Loans for which it acts as Special Servicer), on
behalf of the Trustee as the mortgagee of record, shall enforce any
"due-on-sale" or "due-on-encumbrance" clauses and any other restrictions
contained in the related Mortgage or other related loan document on transfers or
further encumbrances of the related Mortgaged Property and on transfers of
interests in the related Borrower, unless the applicable Master Servicer or the
applicable Special Servicer, as the case may be, has (i) determined, in its
reasonable judgment, that waiver of such restrictions would be in accordance
with the Servicing Standard and (ii) complied with the applicable requirements,
if any, of Section 3.20(a), Section 3.23, Section 3.24 and Section 3.27;
provided that, subject to the related Mortgage Loan Documents and applicable
law, neither the applicable Master Servicer nor the applicable Special Servicer
shall waive any right it has, or grant any consent it is otherwise entitled to
withhold, in accordance with any related "due-on-encumbrance" clause under any
Mortgage Loan (other than a Co-op Mortgage Loan as to which the NCBFSB
Subordinate Debt Conditions have been satisfied) until it has received written
confirmation from (i) Xxxxx'x, (ii) with respect to any Mortgage Loan with a
Stated Principal Balance that is one of the ten highest Stated Principal
Balances in the Mortgage Pool, Fitch, and (iii) with respect to any Mortgage
Loan (A) with a Stated Principal Balance that is one of the ten highest Stated
Principal Balances in the Mortgage Pool, (B) has a Cut-off Date Principal
Balance in excess of $18,000,000, (C) represents more than 5% of the Mortgage
Pool, (D) has an aggregate debt service coverage ratio less than 1.20x or (E)
has an aggregate loan-to-value ratio greater than 85%, S&P, that such action
would not result in an Adverse Rating Event with respect to any Class of Rated
Certificates; and provided, further, that, if the affected Mortgage Loan,
individually or together with all other Mortgage Loans, if any, that are in the
same Cross-Collateralized Group as such Mortgage Loan (i) with a Stated
Principal Balance that is one of the ten highest Stated Principal Balances in
the Mortgage Pool, (ii) has a Cut-off Date Principal Balance in excess of
$18,000,000 or (iii) represents more than 5% of the Mortgage Pool, then, subject
to the related Mortgage Loan Documents and applicable law, neither the
applicable Master Servicer nor the applicable Special Servicer shall waive any
right it has, or grant any consent it is otherwise entitled to withhold, in
accordance with any related "due-on-sale" clause under any Mortgage Loan until
it has received written confirmation from each Rating Agency that such action
would not result in an Adverse Rating Event with respect to any Class of Rated
Certificates; and provided, further, that, subject to the related Mortgage Loan
Documents and applicable law, the applicable Master Servicer shall not waive any
right it has, or grant any consent it is otherwise entitled to withhold, in
accordance with any related "due-on-encumbrance" clause under any Mortgage Loan
(other than a Co-op Mortgage Loan as to which the NCBFSB Subordinate Debt
Conditions have been satisfied) until it has delivered to the applicable Special
Servicer its recommendation and analysis of the request, together with a copy of
the materials and information upon which such recommendation is based, and has
received the consent of the applicable Special Servicer (the giving of which
consent shall be subject to the Servicing Standard and Sections 3.23, 3.24 and
3.27), which consent shall be deemed given if not denied in writing within 10
Business Days of receipt by the applicable Special Servicer of the applicable
Master Servicer's written recommendation and analysis and any additional
information requested by the applicable Special Servicer or the Controlling
Class Representative; and provided, further, that, subject to the related
Mortgage Loan Documents and applicable law, the applicable Master Servicer shall
not waive any right it has, or grant any consent it is otherwise entitled to
withhold, in accordance with any related "due-on-sale" clause under any Mortgage
Loan until it has received the consent of the applicable Special Servicer (the
giving of which consent shall be subject to the Servicing Standard and Section
3.24), which consent shall be deemed given if not denied in writing within 10
Business Days of receipt by the applicable Special Servicer of the applicable
Master Servicer's written recommendation and analysis and any additional
information requested by the applicable Special Servicer or the Controlling
Class Representative; and provided, further, that, subject to the related
Mortgage Loan Documents and applicable law, neither the applicable Master
Servicer nor the applicable Special Servicer shall waive any right it has, or
grant any consent it is otherwise entitled to withhold, in accordance with any
related "due-on-sale" or "due-on-encumbrance" clause under any Mortgage Loan, or
approve the assumption of any Mortgage Loan, unless in any such case, all
associated costs and expenses are covered without any expense to the Trust (it
being understood and agreed that, except as expressly provided herein, neither
such Master Servicer nor such Special Servicer shall be obligated to cover or
assume any such costs or expenses); and provided, further, that neither the
applicable Master Servicer nor the applicable Special Servicer shall (to the
extent that it is within the control thereof to prohibit such event) consent to
the transfer of any Mortgaged Property which secures a Cross-Collateralized
Group unless (i) all of the Mortgaged Properties securing such
Cross-Collateralized Group are transferred simultaneously by the respective
Borrower or (ii) it obtains the consent of the Controlling Class Representative,
which consent shall be deemed given if not denied in writing within 10 Business
Days of receipt by the Controlling Class Representative of written notice of
such action and all reasonably requested information related thereto (or, if no
information is requested within ten (10) Business Days of receipt of written
notice). In the case of any Mortgage Loan, the applicable Master Servicer and
the applicable Special Servicer shall each provide the other with all such
information as each may reasonably request in order to perform its duties under
this section.
In connection with any permitted assumption of any Mortgage Loan or
waiver of a "due-on-sale" or "due-on-encumbrance" clause thereunder, each Master
Servicer (in the case of a Performing Mortgage Loan for which it acts as Master
Servicer) or each Special Servicer (in the case of a Specially Serviced Mortgage
Loan for which it acts Special Servicer) shall prepare all documents necessary
and appropriate for such purposes and shall coordinate with the related Borrower
for the due execution and delivery of such documents.
Notwithstanding the foregoing, and regardless of whether a
particular Co-op Mortgage Loan contains specific provisions regarding the
incurrence of subordinate debt, or prohibits the incurrence of subordinate debt,
or requires the consent of the Mortgagee in order to incur subordinate debt, the
NCBFSB Master Servicer may, nevertheless, in accordance with the Servicing
Standard, without the need to obtain any consent hereunder (and without the need
to obtain a ratings confirmation), permit the related Borrower to incur
subordinate debt if the NCBFSB Subordinate Debt Conditions have been met (as
certified in writing to the Trustee and the Controlling Class Representative by
the NCBFSB Master Servicer no later than five Business Days prior to the making
of the subject subordinate loan without right of reimbursement from the Trust)
which certification shall include notice of the circumstances of the waiver,
including information necessary for the Controlling Class Representative to
determine whether the NCBFSB Subordinate Debt Conditions have been satisfied);
provided that, subject to the related Mortgage Loan Documents and applicable
law, the NCBFSB Master Servicer shall not waive any right it has, or grant any
consent it is otherwise entitled to withhold, in accordance with any related
"due-on-encumbrance" clause under any Mortgage Loan, pursuant to this paragraph,
unless in any such case, all associated costs and expenses are covered without
any expense to the Trust.
If a Master Servicer or a Special Servicer collects an assumption
fee or an assumption application fee in connection with any transfer or proposed
transfer of any interest in a Borrower or a Mortgaged Property, then such Master
Servicer or such Special Servicer, as applicable, will apply that fee to cover
the costs and expenses associated with that transfer or proposed transfer that
are not otherwise paid by the related Borrower and that would otherwise be
payable or reimbursable out of the Trust Fund, including any Rating Agency fees
and expenses to the extent such fees and expenses are collectible under
applicable law and the applicable Master Servicer or Special Servicer, as
appropriate, fails to enforce such requirement in accordance with the related
Mortgage Loan Documents. Any remaining portion of such assumption fee (such
remaining portion, a "Net Assumption Fee") or of such assumption application fee
(such remaining portion, a "Net Assumption Application Fee") will be applied as
additional compensation to the applicable Master Servicer or the applicable
Special Servicer in accordance with Section 3.11; provided, however, that with
respect to the Washington Center Total Loan, any Net Assumption Fee that is
payable to the related B Holder pursuant to the related A/B Intercreditor
Agreement shall be paid to the General Master Servicer and the General Special
Servicer in accordance with Section 3.11. It is hereby acknowledged that the
assumption application fee and the assumption fee paid in connection with the
assumption of the Mortgaged Property identified on the Mortgage Loan Schedule as
The Crossings, by Chelsea Pocono Finance, LLC on or about June 12, 2003, has
been retained by the Column Mortgage Loan Seller and shall not be payable to any
Master Servicer or any Special Servicer. Neither the applicable Master Servicer
nor the applicable Special Servicer shall waive any assumption fee or assumption
application fee, to the extent it would constitute additional compensation for
the other such party, without the consent of such other party.
Section 3.09 Realization Upon Defaulted Mortgage Loans
(a) Each Special Servicer shall, subject to Sections 3.09(b),
3.09(c), 3.09(d), 3.23, 3.24, 3.20 and 3.27, exercise reasonable efforts,
consistent with the Servicing Standard, to foreclose upon or otherwise
comparably convert the ownership of the real property and other collateral
securing any Mortgage Loan for which it acts as Special Servicer that comes into
and continues in default and as to which no satisfactory arrangements can be
made for collection of delinquent payments; provided that the applicable Master
Servicer shall not, with respect to any ARD Mortgage Loan after its Anticipated
Repayment Date, take any enforcement action with respect to the payment of
Post-ARD Additional Interest (other than the making of requests for its
collection), and such Special Servicer may do so only if (i) the taking of an
enforcement action with respect to the payment of other amounts due under such
Mortgage Loan is, in the reasonable judgment of the Special Servicer, and
without regard to such Post-ARD Additional Interest, also necessary, appropriate
and consistent with the Servicing Standard or (ii) all other amounts due under
such Mortgage Loan have been paid, the payment of such Post-ARD Additional
Interest has not been forgiven in accordance with Section 3.20 and, in the
reasonable judgment of the Special Servicer, the Liquidation Proceeds expected
to be recovered in connection with such enforcement action will cover the
anticipated costs of such enforcement action and, if applicable, any associated
Advance Interest. In connection with the foregoing, in the event of a default
under any Mortgage Loan or Cross-Collateralized Group that is secured by real
properties located in multiple states, and such states include California or
another state with a statute, rule or regulation comparable to California's "one
action rule", then the applicable Special Servicer shall consult Independent
counsel regarding the order and manner in which the applicable Special Servicer
should foreclose upon or comparably proceed against such properties. The
reasonable costs of such consultation shall be paid by, and reimbursable to, the
applicable Special Servicer as a Servicing Advance. In addition, all other costs
and expenses incurred in any foreclosure sale or similar proceeding shall be
paid by, and reimbursable to, the applicable Special Servicer as a Servicing
Advance. Nothing contained in this Section 3.09 shall be construed so as to
require a Special Servicer, on behalf of the Trust, 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 such Special
Servicer taking into account the factors described in Section 3.18 and the
results of any appraisal obtained pursuant to the following sentence or
otherwise, all such cash bids to be made in a manner consistent with the
Servicing Standard. If and when a Special Servicer deems it necessary in
accordance with the Servicing Standard for purposes of establishing the fair
market value of any Mortgaged Property securing a defaulted Mortgage Loan for
which it acts as Special Servicer, whether for purposes of bidding at
foreclosure or otherwise, such Special Servicer is authorized to have an
Appraisal completed with respect to such property (the cost of which appraisal
shall be covered by, and be reimbursable as, a Servicing Advance).
No Master Servicer or Special Servicer, other than the applicable
Special Servicer, shall foreclose upon or otherwise comparably convert,
including by taking title thereto, any real property or other collateral
securing a defaulted Mortgage Loan.
(b) Notwithstanding the foregoing provisions of this Section 3.09,
no Mortgaged Property shall be acquired by a Special Servicer on behalf of the
Trust under such circumstances, in such manner or pursuant to such terms as
would (i) cause such Mortgaged Property to fail to qualify as "foreclosure
property" within the meaning of Section 860G(a)(8) of the Code (unless the
portion of such REO Property that is not treated as "foreclosure property" and
that is held by the Lower-Tier REMIC or the 000 Xxxxx Xxxxxx Loan REMIC at any
given time constitutes not more than a de minimis amount of the assets of such
Lower-Tier REMIC or such 000 Xxxxx Xxxxxx Loan REMIC within the meaning of
Treasury Regulations Section 1.860D-1(b)(3)(i) and (ii)), or (ii) except as
permitted by Section 3.17(a), subject the Trust to the imposition of any federal
income or prohibited transaction taxes under the Code. Subject to the foregoing,
however, a Mortgaged Property may be acquired through a single member limited
liability company or similar entity. In addition, except as permitted under
Section 3.17(a), a Special Servicer shall not acquire any personal property on
behalf of the Trust 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 such Special
Servicer; or
(ii) such Special Servicer shall have obtained an Opinion of Counsel
(the cost of which shall be covered by, and reimbursable to the applicable
Master Servicer as, a Servicing Advance) to the effect that the holding of
such personal property as part of the Trust Fund will not result in an
Adverse REMIC Event with respect to the Upper-Tier REMIC, the Lower-Tier
REMIC or the 000 Xxxxx Xxxxxx Loan REMIC or in an Adverse Grantor Trust
Event with respect to the Grantor Trust.
(c) Notwithstanding the foregoing provisions of this Section 3.09, a
Special Servicer shall not, on behalf of the Trust, obtain title to a Mortgaged
Property by foreclosure, deed in lieu of foreclosure or otherwise, or take any
other action with respect to any Mortgaged Property, if, as a result of any such
action, the Trustee, on behalf of the Certificateholders (and, in the case of an
A/B Loan Pair, the related B Loan Holder or the Washington Center Junior
Holders) or any other specified person, could, in the reasonable judgment of the
applicable Special Servicer, exercised in accordance with the Servicing
Standard, be considered to hold title to, to be a "mortgagee-in-possession" of,
or to be an "owner" or "operator" of such Mortgaged Property within the meaning
of CERCLA or any comparable law, unless:
(i) such Special Servicer has previously determined in accordance
with the Servicing Standard, based on a Phase I Environmental Assessment
(and any additional environmental testing that the Special Servicer deems
necessary and prudent) of such Mortgaged Property conducted by an
Independent Person who regularly conducts Phase I Environmental
Assessments and performed during the 12-month period preceding any such
acquisition of title or other action, that such Mortgaged Property is in
compliance with applicable environmental laws and regulations and there
are no circumstances or conditions present at the Mortgaged Property
relating to the use, management or disposal of Hazardous Materials for
which investigation, testing, monitoring, containment, clean-up or
remediation could be required under any applicable environmental laws and
regulations; or
(ii) in the event that the determination described in clause (c)(i)
above cannot be made, the applicable Special Servicer has previously
determined in accordance with the Servicing Standard, on the same basis as
described in clause (c)(i) above, and taking into account the coverage
provided under the related Environmental Insurance Policy, that it would
maximize the recovery to the Certificateholders (and the B Loan Holder and
the Washington Center Junior Holders if in connection with a B Loan or the
Washington Center Junior Loans, respectively, taken as a collective whole)
on a present value basis (the relevant discounting of anticipated
collections that will be distributable to Certificateholders and, if in
connection with a B Loan or the Washington Center Junior Loans, the B Loan
Holders and Washington Center Junior Holders, to be performed at the
related Net Mortgage Rate) to acquire title to or possession of the
Mortgaged Property and to take such remedial, corrective and/or other
further actions as are necessary to bring the Mortgaged Property into
compliance with applicable environmental laws and regulations and to
appropriately address any of the circumstances and conditions referred to
in clause (c)(i) above.
Any such determination by a Special Servicer contemplated by clause
(i) or clause (ii) of the preceding paragraph shall be evidenced by an Officer's
Certificate to such effect delivered to the Trustee, the applicable Master
Servicer and the Controlling Class Representative, or, if in connection with the
000 Xxxxx Xxxxxx Loan or the Washington Center Loan, to the 000 Xxxxx Xxxxxx X
Loan Holder and each Washington Center Junior Holder, specifying all of the
bases for such determination, such Officer's Certificate to be accompanied by
all related environmental reports. The cost of such Phase I Environmental
Assessment and any such additional environmental testing shall be advanced by
the applicable Master Servicer at the direction of the applicable Special
Servicer in accordance with Section 3.19(b) given in accordance with the
Servicing Standard; provided, however, that the applicable Master Servicer shall
not be obligated in connection therewith to advance any funds which, if so
advanced, would constitute a Nonrecoverable Servicing Advance. Amounts so
advanced shall be subject to reimbursement as Servicing Advances in accordance
with Section 3.05(a). The cost of any remedial, corrective or other further
action contemplated by clause (ii) of the preceding paragraph shall be payable
out of the applicable Master Servicer's Collection Account pursuant to Section
3.05.
(d) If neither of the conditions set forth in clauses (i) and (ii)
of the first paragraph of Section 3.09(c) has been satisfied with respect to any
Mortgaged Property securing a defaulted Mortgage Loan, the applicable 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 Trust, release all or a portion of such
Mortgaged Property from the lien of the related Mortgage; provided, however that
the applicable Special Servicer shall obtain confirmation from each Rating
Agency then rating the Certificates that no Adverse Rating Event shall exist
because of any such release.
(e) Each Special Servicer shall report to the Trustee, the
applicable Master Servicer and the Controlling Class Representative, the 000
Xxxxx Xxxxxx X Loan Holder (with respect to the 000 Xxxxx Xxxxxx Loan) and each
Washington Center Junior Holder (with respect to the Washington Center Loan)
monthly in writing as to any actions taken by such Special Servicer with respect
to any Mortgaged Property as to which neither of the conditions set forth in
clauses (i) and (ii) of the first paragraph of Section 3.09(c) has been
satisfied, in each case until the earliest to occur of satisfaction of either of
such conditions, release of the lien of the related Mortgage on such Mortgaged
Property and the related Mortgage Loan's becoming a Corrected Mortgaged Loan;
provided, however, that in respect of the 000 Xxxxx Xxxxxx Loan and the
Washington Center Loan, the applicable Special Servicer shall, before releasing
the lien of the related Mortgage on the related Mortgaged Properties satisfy the
conditions set forth in Section 3.27(b).
(f) The applicable 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 related
Mortgaged Property is located and the terms of the subject Mortgage Loan permit
such an action and shall, in accordance with the Servicing Standard, seek such
deficiency judgment if it deems advisable.
(g) Annually in each January, each Special Servicer shall on a
timely basis forward to the applicable Master Servicer, who shall promptly file
same with the IRS on a timely basis, the information returns with respect to the
reports of foreclosures and abandonments and reports relating to any
cancellation of indebtedness income with respect to any Mortgage Loan or
Mortgaged Property required by Sections 6050H (as applicable), 6050J and 6050P
of the Code. Contemporaneously, each Special Servicer shall deliver to the
applicable Master Servicer, who shall promptly forward it to the Trustee, an
Officer's Certificate stating that all such information returns relating to any
Specially Serviced Mortgage Loan or REO Property that were required to be filed
during the prior twelve (12) months have been properly completed and timely
provided to such Master Servicer. Each Master Servicer shall prepare and file
the information returns with respect to the receipt of any mortgage interest
received in a trade or business from individuals with respect to any Mortgage
Loan for which it acts as Master Servicer as required by Section 6050H of the
Code. All information returns shall be in form and substance sufficient to meet
the reporting requirements imposed by the relevant sections of the Code.
(h) As soon as the applicable Special Servicer (or, in the case of
the Great Lakes Crossing Mortgage Loan or any Great Lakes Crossing REO Property,
the Master Servicer) makes, in consultation with the Controlling Class
Representative, a Final Recovery Determination with respect to any Mortgage Loan
or REO Property, it shall promptly notify the Trustee, the applicable Master
Servicer, the Controlling Class Representative, the 000 Xxxxx Xxxxxx X Loan
Holder (with respect to the 000 Xxxxx Xxxxxx Loan) and each Washington Center
Junior Holder (with respect to the Washington Center Loan). Each Special
Servicer shall maintain accurate records, prepared by a Servicing Officer, of
each such Final Recovery Determination (if any) made by it and the basis
thereof. Each such Final Recovery Determination (if any) shall be evidenced by
an Officer's Certificate delivered to the Trustee, the applicable Master
Servicer, the Controlling Class Representative, the 000 Xxxxx Xxxxxx X Loan
Holder and each Washington Center Junior Holder no later than the third Business
Day following such Final Recovery Determination.
Section 3.10 Trustee to Cooperate; Release of Mortgage Files
(a) Upon the payment in full of any Mortgage Loan, the purchase of
an A Loan by the B Loan Holder or any Washington Center Junior Holder, as
applicable, pursuant to the related A/B Intercreditor Agreement or the receipt
by a Master Servicer of a notification that payment in full shall be escrowed or
made in a manner customary for such purposes, such Master Servicer shall
promptly so notify the Trustee and request delivery to it or its designee of the
related Mortgage File (such notice and request to be effected by delivering to
the Trustee a Request for Release in the form of Exhibit D-1 attached hereto,
which Request for Release shall be accompanied by the form of any release or
discharge to be executed by the Trustee and shall include a statement to the
effect that all amounts received or to be received in connection with such
payment which are required to be deposited in such Master Servicer's Collection
Account or an A/B Loan Pair Custodial Account pursuant to Section 3.04(a) have
been or will be so deposited). Upon receipt of such Request for Release, the
Trustee shall promptly release, or cause any related Custodian to release, the
related Mortgage File to the applicable Master Servicer or its designee and
shall deliver to the applicable Master Servicer or its designee such
accompanying release or discharge, duly executed. No expenses incurred in
connection with any instrument of satisfaction or deed of reconveyance shall be
chargeable to a Collection Account, an A/B Loan Pair Custodial Account or the
Distribution Account.
(b) If from time to time, and as appropriate for servicing or
foreclosure of any Mortgage Loan, 000 Xxxxx Xxxxxx Total Loan or Washington
Center Total Loan, a Master Servicer or a Special Servicer shall otherwise
require any Mortgage File (or any portion thereof), then, upon request of the
applicable Master Servicer and receipt from such 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 applicable Special Servicer and receipt
from the applicable Special Servicer of a Request for Release in the form of
Exhibit D-2 attached hereto, the Trustee shall release, or cause any related
Custodian to release, such Mortgage File (or portion thereof) to the applicable
Master Servicer or the applicable Special Servicer, as the case may be, or its
designee. Upon return of such Mortgage File (or portion thereof) to the Trustee
or the related Custodian, or upon the applicable Special Servicer's delivery to
the Trustee of an Officer's Certificate stating that (i) such Mortgage Loan, 000
Xxxxx Xxxxxx Total Loan or Washington Center Total Loan was liquidated and all
amounts received or to be received in connection with such liquidation that are
required to be deposited into a Collection Account or an A/B Loan Pair Custodial
Account, as applicable, pursuant to Section 3.04(a) have been or will be so
deposited or (ii) such Mortgage Loan, 000 Xxxxx Xxxxxx Total Loan or Washington
Center Total Loan has become an REO Property, a copy of the Request for Release
shall be returned by the Trustee to the applicable Master Servicer or the
applicable Special Servicer, as applicable.
(c) Within five Business Days of a Special Servicer's request
therefor (or, if such Special Servicer notifies the Trustee of an exigency,
within such shorter period as is reasonable under the circumstances), the
Trustee shall execute and deliver to such Special Servicer, in the form supplied
to the Trustee by such Special Servicer, any court pleadings, requests for
trustee's sale or other documents reasonably necessary to the foreclosure or
trustee's sale in respect of a Mortgaged Property or to any legal action brought
to obtain judgment against any Borrower on the Mortgage Note or Mortgage or to
obtain a deficiency judgment, or to enforce any other remedies or rights
provided by the Mortgage Note or Mortgage or otherwise available at law or in
equity or to defend any legal action or counterclaim filed against the Trust,
the applicable Master Servicer or the applicable Special Servicer; provided that
the Trustee may alternatively execute and deliver to the applicable Special
Servicer, in the form supplied to the Trustee by such Special Servicer, a
limited power of attorney issued in favor of such Special Servicer and
empowering such Special Servicer to execute and deliver any or all of such
pleadings or documents on behalf of the Trustee (however, the Trustee shall not
be liable for any misuse of such power of attorney by such Special Servicer).
Together with such pleadings or documents (or such power of attorney empowering
such Special Servicer to execute the same on behalf of the Trustee), the
applicable Special Servicer shall deliver to the Trustee an Officer's
Certificate requesting that such pleadings or documents (or such power of
attorney empowering such Special Servicer to execute the same on behalf of the
Trustee) be executed by the Trustee and certifying as to the reason such
pleadings or documents are required and that the execution and delivery thereof
by the Trustee (or by such Special Servicer on behalf of the Trustee) will not
invalidate or otherwise affect the lien of the Mortgage, except for the
termination of such a lien upon completion of the foreclosure or trustee's sale.
(d) From time to time as is appropriate for servicing or foreclosure
of any B Loan or Washington Center Junior Loan, the applicable Master Servicer,
the applicable Special Servicer or the Trustee, as applicable, subject to the
related A/B Intercreditor Agreement, may request the original of the related
promissory note from the related B Loan Holder or Washington Center Junior
Holders, respectively. Any B Loan Holder or any Washington Center Junior Holder
shall release or cause the release of such original Mortgage Note to the
requesting party or its designee. In connection with the release of the original
Mortgage Note for the any B Loan or any Washington Center Junior Loan in
accordance with the preceding sentence, the Trustee shall obtain such
documentation as is appropriate to evidence the holding by the applicable Master
Servicer or the applicable Special Servicer of such original Mortgage Note as
custodian on behalf of and for the benefit of the Trustee.
(e) If from time to time, pursuant to the terms of the Great Lakes
Crossing Intercreditor Agreement and any Great Lakes Crossing Servicing
Agreement, and as appropriate for enforcing the terms of the Great Lakes
Crossing Mortgage Loan, the Great Lakes Crossing Master Servicer, the Great
Lakes Crossing Special Servicer or the holder of the Great Lakes Crossing
Companion Loan requests delivery to it of the original Mortgage Note for the
Great Lakes Crossing Mortgage Loan, then the Trustee shall release or cause the
release of such original Mortgage Note to the requesting party or its designee.
In connection with the release of the original Mortgage Note for the Great Lakes
Crossing Mortgage Loan in accordance with the preceding sentence, the Trustee
shall obtain such documentation as is appropriate to evidence the holding by the
Great Lakes Crossing Master Servicer, the Great Lakes Crossing Special Servicer
or the holder of the Great Lakes Crossing Companion Loan of such original
Mortgage Note as custodian on behalf of and for the benefit of the Trustee.
Section 3.11 Master Servicing and Special Servicing Compensation;
Interest on and Reimbursement of Servicing Advances; Payment of Certain
Expenses; Obligations of the Trustee and any Fiscal Agent Regarding Back-up
Servicing Advances
(a) As compensation for its activities hereunder, each Master
Servicer shall be entitled to receive the Master Servicing Fee with respect to
each Mortgage Loan (including the Great Lakes Crossing Mortgage Loan, the 000
Xxxxx Xxxxxx X Loan, the Washington Center C Loan and each Specially Serviced
Mortgage Loan) as to which it is the applicable Master Servicer and each REO
Mortgage Loan that relates to an REO Property as to which it is the applicable
Master Servicer. As to each Mortgage Loan, 000 Xxxxx Xxxxxx X Xxxx, Xxxxxxxxxx
Center C Loan and REO Mortgage Loan, for each calendar month (commencing with
June 2003) or any applicable portion thereof, the Master Servicing Fee shall
accrue at the related Master Servicing Fee Rate on the same principal amount as
interest accrues from time to time during such calendar month (or portion
thereof) on such Mortgage Loan, 000 Xxxxx Xxxxxx X Loan or Washington Center C
Loan, as applicable, or is deemed to accrue from time to time during such
calendar month (or portion thereof) on such REO Mortgage Loan, as the case may
be, and shall be calculated on the same Interest Accrual Basis as is applicable
for such Mortgage Loan, 000 Xxxxx Xxxxxx X Xxxx, Xxxxxxxxxx Center C Loan or REO
Mortgage Loan, as the case may be. The Master Servicing Fee with respect to any
Mortgage Loan, 000 Xxxxx Xxxxxx X Xxxx, Xxxxxxxxxx Center C Loan or REO Mortgage
Loan shall cease to accrue if a Liquidation Event occurs in respect thereof.
Master Servicing Fees earned with respect to any Mortgage Loan, 000 Xxxxx Xxxxxx
X Xxxx, Xxxxxxxxxx Center C Loan or REO Mortgage Loan shall be payable monthly
from payments of interest on such Mortgage Loan, 000 Xxxxx Xxxxxx X Xxxx,
Xxxxxxxxxx Center C Loan or REO Revenues allocable as interest on such REO
Mortgage Loan, as the case may be other than from interest payable on the
Washington Center B Loan prior to an event of default on such loan. The
Servicing Fee with respect to the 000 Xxxxx Xxxxxx Loan shall be an expense of
the 000 Xxxxx Xxxxxx Loan REMIC. Each Master Servicer shall be entitled to
recover unpaid Master Servicing Fees in respect of any Mortgage Loan, 000 Xxxxx
Xxxxxx X Xxxx, Xxxxxxxxxx Center C Loan or REO Mortgage Loan for which it acts
as Master Servicer out of the portion any related Insurance Proceeds,
Condemnation Proceeds or Liquidation Proceeds allocable as interest on such
Mortgage Loan, 000 Xxxxx Xxxxxx X Xxxx, Xxxxxxxxxx Center C Loan or REO Mortgage
Loan, as the case may be other than from interest payable on the Washington
Center B Loan prior to an event of default on such loan.
NCBFSB and any successor holder of the Excess Servicing Fee Rights
that relate to the NCBFSB Serviced Mortgage Loans (and any successor REO
Mortgage Loans with respect to such NCBFSB Serviced Mortgage Loans) shall be
entitled, at any time, at its own expense, to transfer, sell, pledge or
otherwise assign such Excess Servicing Fee Rights in whole (but not in part),
and KRECM and any successor holder of the Excess Servicing Fee Rights that
relate to the General Mortgage Loans (and any successor REO Mortgage Loans with
respect to such other Mortgage Loans) shall be entitled, at any time at its own
expense, to transfer, sell, pledge or otherwise assign such Excess Servicing Fee
Rights in whole (but not in part), in either case, to any Qualified
Institutional Buyer or Institutional Accredited Investor (other than a Plan),
provided that no such transfer, sale, pledge or other assignment shall be made
unless (i) that transfer, sale, pledge or other assignment is exempt from the
registration and/or qualification requirements of the Securities Act and any
applicable state securities laws and is otherwise made in accordance with the
Securities Act and such state securities laws, (ii) the prospective transferor
shall have delivered to the Depositor a certificate substantially in the form
attached as Exhibit F-3A hereto, and (iii) the prospective transferee shall have
delivered to KRECM or NCBFSB, as applicable, and the Depositor a certificate
substantially in the form attached as Exhibit F-3B hereto. None of the
Depositor, the Trustee or the Certificate Registrar is obligated to register or
qualify an Excess Servicing Fee Right under the Securities Act or any other
securities law or to take any action not otherwise required under this Agreement
to permit the transfer, sale, pledge or assignment of an Excess Servicing Fee
Right without registration or qualification. KRECM, NCBFSB and each holder of an
Excess Servicing Fee Right desiring to effect a transfer, sale, pledge or other
assignment of such Excess Servicing Fee Right shall, and each of KRECM and
NCBFSB hereby agrees, and each such holder of an Excess Servicing Fee Right by
its acceptance of such Excess Servicing Fee Right shall be deemed to have
agreed, in connection with any transfer of such Excess Servicing Fee Right
effected by such Person, to indemnify the Certificateholders, the Trust, the
Depositor, the Underwriters, the Trustee, any Fiscal Agent, the Master
Servicers, the Certificate Registrar and the Special Servicers against any
liability that may result if such transfer is not exempt from registration
and/or qualification under the Securities Act or other applicable federal and
state securities laws or is not made in accordance with such federal and state
laws or in accordance with the foregoing provisions of this paragraph. By its
acceptance of an Excess Servicing Fee Right, the holder thereof shall be deemed
to have agreed (i) to keep all information relating to the Trust and the Trust
Fund and made available to it by the Master Servicers confidential (except as
permitted pursuant to clause (iii) below or, in the case of the Master
Servicers, as contemplated hereby in the performance of its duties and
obligations hereunder), (ii) not to use or disclose such information in any
manner that could result in a violation of any provision of the Securities Act
or other applicable securities laws or that would require registration of such
Excess Servicing Fee Right or any Non-Registered Certificate pursuant to the
Securities Act, and (iii) not to disclose such information, and to cause its
officers, directors, partners, employees, agents or representatives not to
disclose such information, in any manner whatsoever, in whole or in part, to any
other Person other than such holder's auditors, legal counsel and regulators,
except to the extent such disclosure is required by law, court order or other
legal requirement or to the extent such information is of public knowledge at
the time of disclosure by such holder or has become generally available to the
public other than as a result of disclosure by such holder; provided, however,
that such holder may provide all or any part of such information to any other
Person who is contemplating an acquisition of such Excess Servicing Fee Right
if, and only if, such Person (x) confirms in writing such prospective
acquisition and (y) agrees in writing to keep such information confidential, not
to use or disclose such information in any manner that could result in a
violation of any provision of the Securities Act or other applicable securities
laws or that would require registration of such Excess Servicing Fee Right or
any Non-Registered Certificates pursuant to the Securities Act and not to
disclose such information, and to cause its officers, directors, partners,
employees, agents or representatives not to disclose such information, in any
manner whatsoever, in whole or in part, to any other Person other than such
Persons' auditors, legal counsel and regulators. From time to time following any
transfer, sale, pledge or assignment of an Excess Servicing Fee Right, the
Person then acting as the Master Servicer with respect to the Mortgage Loan or
REO Mortgage Loan to which the Excess Servicing Fee Right relates, shall pay,
out of each amount paid to the applicable Master Servicer as Master Servicing
Fees with respect to such Mortgage Loan or REO Mortgage Loan, as the case may
be, the related Excess Servicing Fees to the holder of such Excess Servicing Fee
Right within one Business Day following the payment of such Master Servicing
Fees to the applicable Master Servicer, in each case in accordance with payment
instructions provided by such holder in writing to such Master Servicer. The
holder of an Excess Servicing Fee Right shall not have any rights under this
Agreement except as set forth in the preceding sentences of this paragraph.
Neither the Certificate Registrar nor the Trustee shall have any obligation
whatsoever regarding payment of an Excess Servicing Fee or the assignment or
transfer of an Excess Servicing Fee Right.
The applicable Master Servicer shall be entitled to the Servicing
Fee with respect to the 000 Xxxxx Xxxxxx X Loan and Washington Center C Loan as
described in the second preceding paragraph; provided that, in no such case,
shall the payment of any such compensation reduce amounts otherwise payable to
the Certificateholders with respect to the related A Loan.
A Master Servicer's right to receive the Master Servicing Fees to
which it is entitled may not be transferred in whole or in part except in
connection with the transfer of all of such Master Servicer's responsibilities
and obligations under this Agreement and except as otherwise expressly provided
herein, including as contemplated by the prior paragraph.
(b) Each Master Servicer shall be entitled to receive the following
items with respect to the Mortgage Loans for which it acts as Master Servicer as
additional servicing compensation (the following items, collectively,
"Additional Master Servicing Compensation"):
(i) any and all Net Default Charges collected with respect to a
Performing Mortgage Loan;
(ii) 50% of any and all Net Assumption Application Fees, Net
Assumption Fees, modification fees, extension fees, consent fees, release
fees, waiver fees, fees paid in connection with defeasance and earn-out
fees actually paid by a Borrower with respect to a Performing Mortgage
Loan provided, however, that if the consent of the Special Servicer is not
required in connection with the underlying servicing action, then the
applicable Master Servicer shall be entitled to receive 100% of such fees;
(iii) any and all charges for beneficiary statements or demands,
amounts collected for checks returned for insufficient funds and other
loan processing fees actually paid by a Borrower with respect to a
Performing Mortgage Loan and, in the case of checks returned for
insufficient funds, with respect to a Specially Serviced Mortgage Loan;
(iv) any and all Prepayment Interest Excesses collected with respect
to a Mortgage Loan, including a Specially Serviced Mortgage Loan, to the
extent not needed to pay Compensating Interest Payments; and
(v) interest or other income earned on deposits in the Investment
Accounts maintained by such Master Servicer, in accordance with Section
3.06(b) (but only to the extent of the Net Investment Earnings, if any,
with respect to any such Investment Account for each Collection Period
and, further, in the case of a Servicing Account or Reserve Account, only
to the extent such interest or other income is not required to be paid to
any Borrower under applicable law or under the related Mortgage).
The Master Servicers shall not be entitled to any Master Servicing
Fees or any other compensation from the Trust Fund hereunder with respect to the
B Loans that relate to any CBA A/B Loan Pair.
The applicable Master Servicer shall be entitled to the
above-described Additional Servicing Compensation with respect to the B Loans
and the Washington Center Junior Loans to the extent not expressly prohibited
under the respective A/B Intercreditor Agreements; provided that, in no such
case, shall the payment of any such compensation reduce amounts otherwise
payable to the Certificateholders with respect to the related A Loan.
Any Net Assumption Fee received by the General Master Servicer (A)
in respect of the 000 Xxxxx Xxxxxx Total Loan shall be allocated between and
distributed to the Trust as holder of the 000 Xxxxx Xxxxxx Loan (which amount
shall be payable to the General Master Servicer and General Special Servicer in
accordance with this Section 3.11) and the 000 Xxxxx Xxxxxx X Loan Holder based
on the respective percentage interests in the 000 Xxxxx Xxxxxx Total Loan as set
forth in the related A/B Intercreditor Agreement and (B) in respect of the
Washington Center Total Loan shall be allocated among and distributed to the
Trust as holder of the Washington Center Loan (which amount shall be payable to
the General Master Servicer and General Special Servicer in accordance with this
Section 3.11) and to the Washington Center Junior Holders based on the
respective percentage interests in the Washington Center Total Loan as set forth
in the related A/B Intercreditor Agreement; provided, however that any such Net
Assumption Fee allocated to the holder of the Washington Center B Loan shall be
payable to the General Master Servicer or Special Servicer, as applicable.
To the extent that any of the amounts described in clauses (i)
through (v) in the preceding paragraph are collected by a Special Servicer, such
Special Servicer shall promptly pay such amounts to the applicable Master
Servicer.
(c) As compensation for its activities hereunder, subject to the
proviso to clause (d) of the definition of "Servicing Transfer Event", each
Special Servicer shall be entitled to receive monthly the Special Servicing Fee
with respect to each Specially Serviced Mortgage Loan and each REO Mortgage Loan
(other than any Great Lakes Crossing REO Mortgage Loan) for which it acts as
Special Servicer. As to each such Specially Serviced Mortgage Loan and REO
Mortgage Loan (other than any Great Lakes Crossing REO Mortgage Loan), for any
particular calendar month or applicable portion thereof, the Special Servicing
Fee shall accrue at the Special Servicing Fee Rate on the same principal amount
as interest accrues from time to time during such calendar month (or portion
thereof) on such Specially Serviced Mortgage Loan or is deemed to accrue from
time to time during such calendar month (or portion thereof) on such REO
Mortgage Loan, as the case may be, and shall be calculated on the same Interest
Accrual Basis as is applicable for such Specially Serviced Mortgage Loan or REO
Mortgage Loan (other than any Great Lakes Crossing REO Mortgage Loan), as the
case may be. The Special Servicing Fee with respect to any Specially Serviced
Mortgage Loan or REO Mortgage Loan (other than any Great Lakes Crossing REO
Mortgage Loan) shall cease to accrue as of the date a Liquidation Event occurs
in respect thereof or, in the case of a Specially Serviced Mortgage Loan, as of
the date it becomes a Corrected Mortgage Loan. Earned but unpaid Special
Servicing Fees shall be payable first out of related Liquidation Proceeds and
then monthly out of general collections on the Mortgage Loans and any REO
Properties on deposit in the applicable Master Servicer's Collection Account
pursuant to Section 3.05(a).
As further compensation for its activities hereunder, each Special
Servicer shall be entitled to receive the Workout Fee with respect to each
Corrected Mortgage Loan. As to each such Corrected Mortgage Loan, the Workout
Fee shall be payable out of, and shall be calculated by application of the
Workout Fee Rate to, (i) each payment of interest (other than Default Interest)
and principal received from the related Borrower on such Mortgage Loan for so
long as it remains a Corrected Mortgage Loan. The Workout Fee with respect to
any Corrected Mortgage Loan will cease to be payable if a Servicing Transfer
Event occurs with respect thereto or if the related Mortgaged Property becomes
an REO Property; provided that a new Workout Fee would become payable if and
when such Mortgage Loan again became a Corrected Mortgage Loan with respect to
such new Servicing Transfer Event. If a Special Servicer is terminated (other
than for cause), including pursuant to Section 3.25, or resigns in accordance
with Section 6.04, it shall retain the right to receive any and all Workout Fees
payable in respect of (i) any Mortgage Loans for which it acted as Special
Servicer, that became Corrected Mortgage Loans during the period that it acted
as Special Servicer and that were still Corrected Mortgage Loans at the time of
such termination or resignation and (ii) any Specially Serviced Mortgage Loans
with respect to which it acted as Special Servicer for which the Special
Servicer has resolved the circumstances and/or conditions causing such Mortgage
Loan to be a Specially Serviced Mortgage Loan, but which had not as of the time
it was terminated or resigned become a Corrected Mortgage Loan solely because
the related Borrower had not made three consecutive timely Monthly Payments and
which subsequently becomes a Corrected Mortgage Loan as a result of the related
Borrower making such three consecutive timely Monthly Payments (and the
successor Special Servicer shall not be entitled to any portion of such Workout
Fees), in each case until the Workout Fee for any such loan ceases to be payable
in accordance with the preceding sentence; provided that, in the case of any
Specially Serviced Mortgage Loan described in clause (ii) of this sentence, the
terminated Special Servicer shall immediately deliver the related Servicing File
to the applicable Master Servicer, and such Master Servicer shall (without
further compensation) monitor that all conditions precedent to such Mortgage
Loan's becoming a Corrected Mortgage Loan are satisfied and, further, shall
immediately transfer such Servicing File to the new applicable Special Servicer
if and when it becomes apparent to such Master Servicer that such conditions
precedent will not be satisfied.
As further compensation for its activities hereunder, each Special
Servicer shall also be entitled to receive a Liquidation Fee with respect to
each Specially Serviced Mortgage Loan with respect to which it acts as Special
Servicer or REO Property related thereto as to which it receives any full,
partial or discounted payoff from the related Borrower or any Condemnation
Proceeds or Liquidation Proceeds (other than any receipt of Liquidation Proceeds
with respect to a Specially Serviced Mortgage Loan or REO Property that is (i)
purchased by the Special Servicer or any Holders of Certificate(s) of a
Controlling Class or any assignee of the foregoing pursuant to Section 3.18;
provided that if any such party assigns their Purchase Option to an unaffiliated
third party without any consideration therefor (other than nominal
consideration), a Liquidation Fee shall be payable pursuant to Section 3.11,
(ii) purchased by a Master Servicer, a Special Servicer or any
Certificateholder(s) of the Controlling Class pursuant to Section 9.01, (iii)
acquired by the Sole Certificateholder(s) in exchange for all the Certificates
pursuant to Section 9.01, (iv) purchased by the related B Loan Holder or any
Washington Center Junior Holder pursuant to the related A/B Intercreditor
Agreement so long as such Specially Serviced Mortgage Loan or REO Property is
purchased within the time period specified in such related A/B Intercreditor
Agreement (v) purchased by a mezzanine lender pursuant to the mezzanine
intercreditor agreement; provided that if such mezzanine intercreditor agreement
provides for the payment of a liquidation fee, such fee shall be payable, or
(vi) repurchased or replaced no later than the end of the applicable Initial
Resolution Period and any applicable Resolution Extension Period, as a result of
a Material Breach or a Material Document Defect, by a Mortgage Loan Seller
pursuant to the related Mortgage Loan Purchase Agreement or by the Column
Performance Guarantor pursuant to the Column Performance Guarantee). As to each
such Specially Serviced Mortgage Loan or REO Property, the Liquidation Fee shall
be payable out of, and shall be calculated by application of the Liquidation Fee
Rate to, any such full, partial or discounted payoff, Condemnation Proceeds
and/or Liquidation Proceeds received or collected in respect thereof (other than
any portion of such payment or proceeds that represents Post-ARD Additional
Interest, Default Charges, a Prepayment Premium or a Yield Maintenance Charge).
Notwithstanding the foregoing, no Liquidation Fee shall be payable under this
Agreement based on, or out of, Liquidation Proceeds received in connection with
any Liquidation Event involving the Great Lakes Crossing Mortgage Loan or any
Great Lakes Crossing REO Property. The Liquidation Fee with respect to any such
Specially Serviced Mortgage Loan shall not be payable if such Mortgage Loan
becomes a Corrected Mortgage Loan. Notwithstanding anything herein to the
contrary, no Liquidation Fee shall be payable in connection with the receipt of,
or out of, Liquidation Proceeds and, with respect to the Washington Center Loan,
Condemnation Proceeds, collected as a result of the purchase or substitution of
any Specially Serviced Mortgage Loan or REO Property described in the
parenthetical to the first sentence of this paragraph.
A Special Servicer's right to receive any Special Servicing Fee,
Workout Fee and/or Liquidation Fee to which it is entitled may not be
transferred in whole or in part except in connection with the transfer of all of
such Special Servicer's responsibilities and obligations under this Agreement
and except as otherwise expressly provided herein.
(d) Each Special Servicer shall be entitled to receive the following
items as additional special servicing compensation (the following items,
collectively, the "Additional Special Servicing Compensation"):
(i) any and all Net Default Charges collected with respect to a
Specially Serviced Mortgage Loan or an REO Mortgage Loan (other than any
Great Lakes Crossing REO Mortgage Loan);
(ii) any and all Net Assumption Fees, Net Assumption Application
Fees, modification fees, extension fees, consent fees, release fees,
waiver fees, earn-out fees and charges for beneficiary statements or
demands that are actually received on or with respect to a Specially
Serviced Mortgage Loan or an REO Mortgage Loans (other than any Great
Lakes Crossing REO Mortgage Loan);
(iii) subject to the proviso in Section 3.11(b)(ii), 50% of any and
all Net Assumption Fees, Net Assumption Application Fees, modification
fees, extension fees, consent fees, release fees, waiver fees and earn-out
fees that are actually received on or with respect to a Performing
Mortgage Loan; and
(iv) interest or other income earned on deposits in any REO Account
maintained by such Special Servicer, in accordance with Section 3.06(b)
(but only to the extent of the Net Investment Earnings, if any, with
respect to such REO Account for each Collection Period).
The applicable Special Servicer shall be entitled to such
compensation with respect to the B Loans and the Washington Center Junior Loans
as is provided under the respective A/B Intercreditor Agreements; provided that,
in no such case, shall the payment of any such compensation reduce amounts
otherwise payable to the Certificateholders with respect to the related A Loan.
Any Net Assumption Fee received by the General Special Servicer (A)
in respect of the 000 Xxxxx Xxxxxx Total Loan shall be distributed to the Trust
as holder of the 000 Xxxxx Xxxxxx Loan and the 000 Xxxxx Xxxxxx X Loan Holder
based on the respective percentage interests in the 000 Xxxxx Xxxxxx Total Loan
as set forth in the related A/B Intercreditor Agreement and (B) in respect of
the Washington Center Total Loan shall be distributed to the Trust as holder of
the Washington Center Loan and to the Washington Center Junior Holders based on
the respective percentage interests in the Washington Center Total Loan as set
forth in the related A/B Intercreditor Agreement; provided, however that any
such Net Assumption Fee allocated to the holder of the Washington Center B Loan
shall be payable to the General Special Master or Special Servicer, as
applicable.
To the extent that any of the amounts described in clauses (i)
through (iii) of the third preceding paragraph are collected by a Master
Servicer, such Master Servicer shall promptly pay such amounts to the applicable
Special Servicer and shall not be required to deposit such amounts in such
Master Servicer's Collection Account pursuant to Section 3.04(a).
(e) Each Master Servicer and each Special Servicer shall be required
(subject to Section 3.11(h) below) to pay out of its own funds all expenses
incurred by it in connection with its servicing activities hereunder (including
payment of any amounts due and owing to any of Sub-Servicers retained by it
(including any termination fees) and the premiums for any blanket policy or the
standby fee or similar premium, if any, for any master force placed policy
obtained by it insuring against hazard losses pursuant to Section 3.07(b)), if
and to the extent such expenses are not payable directly out of any Collection
Account, A/B Loan Pair Custodial Account, Servicing Account, Reserve Account or
REO Account, and neither a Master Servicer nor a Special Servicer shall be
entitled to reimbursement for any such expense incurred by it except as
expressly provided in this Agreement. If a Master Servicer is required to make
any Servicing Advance hereunder at the discretion of the applicable Special
Servicer in accordance with Section 3.19 or otherwise, such Special Servicer
shall promptly provide such Master Servicer with such documentation regarding
the subject Servicing Advance as the applicable Master Servicer may reasonably
request.
(f) If a Master Servicer or, as contemplated by Section 3.19(b), a
Special Servicer is required under this Agreement to make a Servicing Advance,
but fails to do so within ten days after such Advance is required to be made,
the Trustee shall, if it has actual knowledge of such failure on the part of the
applicable Master Servicer or the applicable Special Servicer, as the case may
be, give notice of such failure to the defaulting party. If such Advance is not
made by such Master Servicer or such Special Servicer within three Business Days
after such notice, then (subject to Section 3.11(h) below) the Trustee or a
Fiscal Agent appointed thereby shall make such Advance. If any Fiscal Agent
makes any such Servicing Advance, the Trustee shall be deemed not to be in
default under this Agreement for failing to do so.
(g) Each Master Servicer, each Special Servicer, the Trustee and any
Fiscal Agent shall each be entitled to receive interest at the Reimbursement
Rate in effect from time to time, accrued on the amount of each Servicing
Advance made thereby (with its own funds), for so long as such Servicing Advance
is outstanding. Such interest with respect to any Servicing Advances shall be
payable: (i) first, in accordance with Sections 3.05 and 3.26, out of any
Default Charges subsequently collected on or in respect of the particular
Mortgage Loan or REO Mortgage Loan as to which such Servicing Advance relates;
and (ii) then, after such Servicing Advance is reimbursed, but only if and to
the extent that such Default Charges are insufficient to cover such Advance
Interest, out of general collections on the Mortgage Loans and REO Properties on
deposit in the applicable Master Servicer's Collection Account. Each Master
Servicer shall reimburse itself, the applicable Special Servicer, the Trustee or
any Fiscal Agent, as appropriate, for any Servicing Advance made by any such
Person with respect to any Mortgage Loan or REO Property as to which such Master
Servicer is the applicable Master Servicer as soon as practicable after funds
available for such purpose are deposited in such Master Servicer's Collection
Account. A Master Servicer shall not be entitled to Advance Interest on any
Servicing Advance made thereby to the extent a payment is received but is being
held by such Master Servicer in suspense.
(h) Notwithstanding anything to the contrary set forth herein, none
of the Master Servicers, the Special Servicers, the Trustee or any Fiscal Agent
shall be required to make any Servicing Advance that it determines in its
reasonable judgment would constitute a Nonrecoverable Servicing Advance. The
determination by any Person with an obligation hereunder to make Servicing
Advances that it has made a Nonrecoverable Servicing Advance or that any
proposed Servicing Advance, if made, would constitute a Nonrecoverable Servicing
Advance, shall be made by such Person in its reasonable judgment and shall be
evidenced by an Officer's Certificate delivered promptly to the Depositor, the
Trustee (unless it is the Person making such determination), the Controlling
Class Representative, the 000 Xxxxx Xxxxxx Loan Holder (with respect to the 000
Xxxxx Xxxxxx Loan) and each Washington Center Junior Holder (with respect to the
Washington Center Loan) setting forth the basis for such determination,
accompanied by a copy of an Appraisal of the related Mortgaged Property or REO
Property performed within the 12 months preceding such determination, and
further accompanied by any other information, including engineers' reports,
environmental surveys or similar reports, that such Person may have obtained and
that support such determination. Notwithstanding the foregoing, the Trustee and
any Fiscal Agent shall be entitled to conclusively rely on any determination of
nonrecoverability that may have been made by the applicable Master Servicer or
the applicable Special Servicer with respect to a particular Servicing Advance
for any Mortgage Loan or REO Property, and the applicable Master Servicer and
the applicable Special Servicer shall each be entitled to conclusively rely on
any determination of nonrecoverability that may have been made by the other such
party with respect to a particular Servicing Advance for any Mortgage Loan or
REO Property. A copy of any such Officer's Certificate (and accompanying
information) of a Master Servicer shall also be delivered promptly to the
applicable Special Servicer for the subject Mortgage Loan or REO Property, a
copy of any such Officer's Certificate (and accompanying information) of a
Special Servicer shall also be promptly delivered to the applicable Master
Servicer for the subject Mortgage Loan or REO Property, and a copy of any such
Officer's Certificates (and accompanying information) of the Trustee or the
Fiscal Agent shall also be promptly delivered to the Controlling Class
Representative, the 000 Xxxxx Xxxxxx Loan Holder (with respect to the 000 Xxxxx
Xxxxxx Loan) and each Washington Center Junior Holder (with respect to the
Washington Center Loan) and the applicable Master Servicer and the applicable
Special Servicer for the subject Mortgage Loan or REO Property.
(i) Notwithstanding anything to the contrary set forth herein, each
Master Servicer may (and, at the direction of the applicable Special Servicer if
a Specially Serviced Mortgage Loan or an REO Property is involved, shall) pay
directly out of such Master Servicer's Collection Account any servicing expense
that, if paid by such Master Servicer or the applicable Special Servicer, would
constitute a Nonrecoverable Servicing Advance for the subject Mortgage Loan or
REO Property; provided that such Master Servicer (or the applicable Special
Servicer, if a Specially Serviced Mortgage Loan or an REO Property is involved)
has determined in accordance with the Servicing Standard that making such
payment is in the best interests of the Certificateholders (as a collective
whole), as evidenced by an Officer's Certificate delivered promptly to the
Depositor, the Trustee and the Controlling Class Representative, setting forth
the basis for such determination and accompanied by any information that such
Person may have obtained that supports such determination. A copy of any such
Officer's Certificate (and accompanying information) of a Master Servicer shall
also be delivered promptly to the applicable Special Servicer for the subject
Mortgage Loan or REO Property, and a copy of any such Officer's Certificate (and
accompanying information) of a Special Servicer shall also be promptly delivered
to the applicable Master Servicer for the subject Mortgage Loan or REO Property.
(j) If the Master Servicer and the Special Servicer are responsible
for servicing and administering the Great Lakes Crossing Total Loan or any Great
Lakes Crossing REO Property under Article XII, then each of the Master Servicer
and the Special Servicer shall be entitled to such compensation as is provided
for in Section 12.09, which shall be in addition to that provided for in this
Section 3.11.
Section 3.12 Property Inspections; Collection of Financial
Statements; Delivery of Certain Reports
(a) The applicable Special Servicer shall perform or cause to be
performed a physical inspection of a Mortgaged Property as soon as practicable
(but in any event not later than 60 days) after the related Mortgage Loan
becomes a Specially Serviced Mortgage Loan (and, in cases where the related
Mortgage Loan has become a Specially Serviced Mortgage Loan, the applicable
Special Servicer shall continue to perform or cause to be performed a physical
inspection of the subject Mortgaged Property at least once per calendar year
thereafter for so long as the related Mortgage Loan remains a Specially Serviced
Mortgage Loan or if such Mortgaged Property becomes an REO Property); provided
that such Special Servicer shall be entitled to reimbursement of the reasonable
and direct out-of-pocket expenses incurred by it in connection with each such
inspection as Servicing Advances and otherwise as contemplated by Section
3.05(a). Beginning in 2004, the applicable Master Servicer shall at its expense
perform or cause to be performed an inspection of the Mortgaged Property for
each Mortgage Loan (other than the Great Lakes Crossing Mortgaged Property) at
least once per calendar year on each Mortgage Loan, if the applicable Special
Servicer has not already done so during that period pursuant to the preceding
sentence. Each Master Servicer and each Special Servicer shall prepare a written
report (provided, that with respect to Co-op Mortgage Loans that are Performing
Mortgage Loans, such report shall be delivered to the Controlling Class
Representative in an electronic format, exclusive of photographs that are part
of such report, until such time as the NCBFSB Master Servicer or Co-op Special
Servicer, as the case may be, has established a website where such photographs
can be viewed, provided, further, however, that such report, complete with
photographs, shall be delivered to the Controlling Class Representative upon
request and, provided, further, that the NCBFSB Master Servicer shall use
commercially reasonable efforts to establish such websites with photographs on
or before December 31, 2003) of each such inspection performed by it or on its
behalf that sets forth in detail the condition of the subject Mortgaged Property
and that specifies the occurrence or existence of: (i) any sale, transfer or
abandonment of the subject Mortgaged Property of which such Master Servicer or
Special Servicer, as applicable, is aware, (ii) any change in the condition or
occupancy of the subject Mortgaged Property of which such Master Servicer or
Special Servicer, as applicable, is aware and that it considers, in accordance
with the Servicing Standard, material, or (iii) any waste committed on the
Mortgaged Property of which such Master Servicer or Special Servicer, as the
case may be, is aware and that it considers, in accordance with the Servicing
Standard, material. Each Master Servicer and each Special Servicer shall deliver
to the Controlling Class Representative (in accordance with the ARCap Naming
Convention for Electronic File Delivery) and, upon request, to the Trustee a
copy (or image in suitable electronic media) and, if the related Mortgage Loan
is the 000 Xxxxx Xxxxxx Loan or the Washington Center Loan that is a Specially
Serviced Mortgage Loan, a copy to the 000 Xxxxx Xxxxxx X Loan Holder and each
Washington Center Junior Holder, respectively, of each such written report
prepared by it (provided, that with respect to Co-op Mortgage Loans that are
Performing Mortgage Loans, such report shall be delivered to the Trustee and/or
Controlling Class Representative, as applicable, in an electronic format,
exclusive of photographs that are part of such report, until such time as the
NCBFSB Master Servicer or Co-op Special Servicer, as the case may be, has
established a website where such photographs can be viewed, provided, further,
however, that such report, complete with photographs, shall be delivered to the
Trustee and/or Controlling Class Representative and, if the related Mortgage
Loan is the 000 Xxxxx Xxxxxx Loan or the Washington Center Loan that is a
Specially Serviced Mortgage Loan, a copy to the 000 Xxxxx Xxxxxx X Loan Holder
and each Washington Center Junior Holder, respectively, upon request), in each
case within 30 days following the request (or, if later or if request is not
required, within 30 days following the later of completion of the related
inspection if the inspection is performed by the applicable Master Servicer or
Special Servicer, as applicable, or receipt of the related inspection report if
the inspection is performed by a third party). Upon request, the Trustee shall
request from such Master Servicer or Special Servicer, as applicable, and, to
the extent such items have been delivered to the Trustee upon written request by
such Master Servicer or Special Servicer, as applicable, deliver to each of the
Depositor, the related Mortgage Loan Seller, the Controlling Class
Representative, any Certificateholder and, if the related Mortgage Loan is the
000 Xxxxx Xxxxxx Loan or the Washington Center Loan that is a Specially Serviced
Mortgage Loan, a copy to the 000 Xxxxx Xxxxxx X Loan Holder and each Washington
Center Junior Holder, respectively, or, if the Trustee has in accordance with
Section 5.06(b) confirmed the Ownership Interest in Certificates held thereby,
any Certificate Owner, a copy (or image in suitable electronic media) of each
such written report prepared by a Master Servicer or a Special Servicer.
(b) Commencing with respect to the calendar quarter ended June 30,
2003, the applicable Special Servicer, in the case of any Specially Serviced
Mortgage Loan, and the General Master Servicer, in the case of each Performing
Mortgage Loan that is a General Mortgage Loan and the NCBFSB Master Servicer, in
the case of Performing Mortgage Loans that are NCB Serviced Loans other than
Co-op Mortgage Loans, shall make reasonable efforts to collect promptly from
each related Borrower quarterly and annual operating statements, budgets and,
except with respect to residential cooperative properties, rent rolls of the
related Mortgaged Property, and quarterly and annual financial statements of
such Borrower, whether or not delivery of such items is required (or, in the
case of Co-op Mortgage Loans, only if delivery of such items is required)
pursuant to the terms of the related Mortgage Loan Documents. In addition, the
applicable Special Servicer shall cause quarterly and annual operating
statements, budgets and rent rolls to be regularly prepared in respect of each
REO Property and shall collect all such items promptly following their
preparation. Each Special Servicer shall deliver images in suitable electronic
media of all of the foregoing items so collected or obtained by it to the
applicable Master Servicer within 30 days of its receipt thereof. In the case of
each Performing Mortgage Loan that is a Co-op Mortgage Loan serviced by the
NCBFSB Master Servicer, such deliveries shall be limited to those required under
the applicable loan documents. Each Master Servicer shall deliver at least
quarterly all items required to be delivered to it by the applicable Special
Servicer pursuant to the second preceding sentence to the Controlling Class
Representative, in the case of the 000 Xxxxx Xxxxxx Loan and the Washington
Center Loan, the 000 Xxxxx Xxxxxx X Loan Holder and each Washington Center
Junior Holder, respectively, and the Trustee in an imaged format in accordance
with the ARCap Naming Convention for Electronic File Delivery.
Each Master Servicer shall maintain a CMSA Operating Statement
Analysis Report with respect to each Mortgaged Property and REO Property related
to each Mortgage Loan for which it acts as Master Servicer. Within 60 days after
receipt by the applicable Master Servicer from the related Borrower or
otherwise, as to a Performing Mortgage Loan for which it acts as Master
Servicer, and within 30 days after receipt by the applicable Master Servicer
from the applicable Special Servicer, the Great Lakes Crossing Master Servicer
or otherwise, as to the Great Lakes Crossing Mortgage Loan, a Specially Serviced
Mortgage Loan or an REO Property for which it acts as Master Servicer, of any
annual operating statements and, except with respect to residential cooperative
properties, rent rolls with respect to any Mortgaged Property or REO Property,
such Master Servicer shall, based upon such operating statements or, except with
respect to residential cooperative properties, rent rolls, prepare (or, if
previously prepared, update) the CMSA Operating Statement Analysis Report for
the subject Mortgaged Property or REO Property. Each Master Servicer shall remit
in accordance with the ARCap Naming Convention for Electronic File Delivery of a
copy of each CMSA Operating Statement Analysis Report prepared or updated by it
(promptly following initial preparation and each update thereof), together with,
if so requested and not already provided pursuant to this Section 3.12(b), the
underlying operating statements and, except with respect to residential
cooperative properties, rent rolls, to the Controlling Class Representative, in
the case of the 000 Xxxxx Xxxxxx Loan and the Washington Center Loan, the 000
Xxxxx Xxxxxx X Loan Holder and each Washington Center Junior Holder,
respectively, the Trustee and the applicable Special Servicer. The Trustee
shall, upon request, request from the applicable Master Servicer (if necessary)
and, to the extent such items have been delivered to the Trustee by such Master
Servicer, deliver to any Certificateholder or, if the Trustee has in accordance
with Section 5.06(b) confirmed the Ownership Interest in the Certificates held
thereby, any Certificate Owner, a copy of the CMSA Operating Statement Analysis
(or update thereof) for any Mortgaged Property or REO Property and, if
requested, the related operating statement or, except with respect to
residential cooperative properties, rent rolls.
Within 60 days (or, in the case of items received from a Special
Servicer, the Great Lakes Crossing Master Servicer, the Great Lakes Crossing
Special Servicer or otherwise with respect to the Great Lakes Crossing Mortgage
Loan, Specially Serviced Mortgage Loans and REO Properties, 30 days) after
receipt by a Master Servicer of any quarterly or annual operating statements
with respect to any Mortgaged Property or REO Property, such Master Servicer
shall prepare or update and forward to the Trustee, the applicable Special
Servicer, in the case of the 000 Xxxxx Xxxxxx Loan and the Washington Center
Loan, the 000 Xxxxx Xxxxxx X Loan Holder and each Washington Center Junior
Holder, respectively, and the Controlling Class Representative a CMSA NOI
Adjustment Worksheet using the same format and ARCap Naming Convention for
Electronic File Delivery as the CMSA Operating Statement Analysis Report for
such Mortgaged Property or REO Property, together with the related quarterly or
annual operating statements.
If, with respect to any Mortgage Loan (other than a Specially
Serviced Mortgage Loan), the applicable Special Servicer has any questions for
the related Borrower based upon the information received by such Special
Servicer pursuant to Section 3.12(a) or 3.12(b), the applicable Master Servicer
shall, in this regard and without otherwise changing or modifying its duties
hereunder, reasonably cooperate with such Special Servicer in assisting such
Special Servicer to contact and solicit information from such Borrower.
(c) Not later than 2:00 p.m. (New York City time) on the first
Business Day following each Determination Date, each Special Servicer shall
prepare and deliver or cause to be delivered to the applicable Master Servicer,
the Controlling Class Representative and shall contemporaneously provide a copy
of such materials as they relate to an A Loan to the B Loan Holder and the
Washington Center Junior Holders the following reports (or data files relating
to reports of the applicable Master Servicer) with respect to those Specially
Serviced Mortgage Loans serviced by such Special Servicer and any related REO
Properties as to which such Special Servicer is the applicable Special Servicer,
providing the CMSA Specially Serviced Loan File or other required information as
of such Determination Date which CMSA Specially Serviced Loan File the
applicable Master Servicer shall incorporate to produce: (i) a CMSA Property
File; and (ii) a CMSA Loan Periodic Update File (which, in each case, if
applicable, will identify each subject Mortgage Loan(s) by loan number and
property name). At or before 2:00 p.m. (New York City time) on the first
Business Day following each Determination Date, such Special Servicer shall
prepare and deliver or cause to be delivered to the applicable Master Servicer
the CMSA Specially Serviced Loan File or other related data fields reflected in
the reports reasonably requested with respect to the Specially Serviced Mortgage
Loans and REO Properties as to which such Special Servicer is the applicable
Special Servicer, providing the information required of such Special Servicer
pursuant to Section 3.12(e) as of such Determination Date. The applicable Master
Servicer shall prepare and deliver: (i) a CMSA Delinquent Loan Status Report;
(ii) a CMSA Comparative Financial Status Report; (iii) a CMSA Historical
Liquidation Report; (iv) a CMSA Historical Loan Modification Report; and (v) a
CMSA REO Status Report. In addition, each Special Servicer shall from time to
time provide the applicable Master Servicer with such information in such
Special Servicer's possession regarding any Specially Serviced Mortgage Loans
for which it acts as Special Servicer and related REO Properties as may be
requested by the applicable Master Servicer and is reasonably necessary for such
Master Servicer to prepare each report and any supplemental information required
to be provided by such Master Servicer to the Trustee.
(d) Not later than 12:00 p.m. (New York City time) on the second
Business Day following each Determination Date, each Master Servicer shall
prepare (if and to the extent necessary) and deliver or cause to be delivered to
the Trustee (and shall contemporaneously provide a copy of such materials and
related reports as they relate to an A Loan to the B Loan Holder and the
Washington Center Junior Holders), in a computer-readable medium downloadable by
the Trustee (or, at the Trustee's written request, in a form reasonably
acceptable to the Trustee and such Master Servicer, including on a loan-by-loan
basis), each of the files and reports comprising the CMSA Investor Reporting
Package (excluding any CMSA Operating Statement Analysis Report, any CMSA NOI
Adjustment Worksheet, the CMSA Bond Level File, the CMSA Collateral Summary File
and the CMSA Loan Setup File), in each case providing the most recent
information with respect to the subject Mortgage Loans and REO Properties for
which it acts as Master Servicer as of the related Determination Date (and
which, in each case, if applicable, will identify each subject Mortgage Loan by
loan number and property name); provided that such Master Servicer shall not be
required to prepare and deliver any of the files and reports comprising the CMSA
Investor Reporting Package (other than the CMSA Loan Periodic Update File)
before the second Business Day following the second Determination Date following
the Closing Date.
Notwithstanding the foregoing, because each Master Servicer will not
receive the Servicing Files until three (3) Business Days after the Closing Date
and will not have sufficient time to review and analyze such Servicing Files
before the initial Distribution Date, the parties agree that the CMSA Loan
Periodic Update File required to be delivered by each Master Servicer in July
2003 will be based solely upon information generated from actual collections
received by the applicable Master Servicer and from information the Depositor
delivers or causes to be delivered to the applicable Master Servicer (including
but not limited to information prepared by third party servicers of the subject
Mortgage Loans with respect to the period prior to the Closing Date). The
applicable Special Servicer shall from time to time (and, in any event, upon
request) provide such Master Servicer with such information in its possession
regarding the Specially Serviced Mortgage Loans for which it acts as Special
Servicer and the related REO Properties as may be necessary for such Master
Servicer to prepare each report and any supplemental information to be provided
by such Master Servicer to the Trustee.
Notwithstanding the foregoing, the failure of a Master Servicer or
Special Servicer to disclose any information otherwise required to be disclosed
pursuant to this Section 3.12(d), Section 4.02(a) or Section 4.02(b) shall not
constitute a breach of this Section 3.12(d), Section 4.02(a) or Section 4.02(b)
to the extent such Master Servicer or such Special Servicer, as the case may be,
so fails because such disclosure, in the reasonable belief of such Master
Servicer or such Special Servicer, as the case may be, would violate any
applicable law or any provision of a Mortgage Loan Document prohibiting
disclosure of information with respect to the Mortgage Loans or the Mortgaged
Properties, would constitute a waiver of the attorney-client privilege on behalf
of the Trust or would otherwise materially harm the Trust Fund. A Master
Servicer or a Special Servicer may affix to any information provided by it any
disclaimer it deems appropriate in its reasonable discretion (without suggesting
liability on the part of any other party hereto).
Any Master Servicer may, but is not required to, make any of the
reports or files comprising the CMSA Investor Reporting Package prepared by it
with respect to the Mortgage Loans and REO Properties as to which it is the
applicable Master Servicer, available each month on such Master Servicer's
internet website only with the use of a password, in which case such Master
Servicer shall provide such password to (i) the other parties to this Agreement,
who by their acceptance of such password shall be deemed to have agreed not to
disclose such password to any other Person, (ii) the Rating Agencies, the
Controlling Class Representative, the 000 Xxxxx Xxxxxx X Loan Holder (with
respect to the 000 Xxxxx Xxxxxx Loan) and each Washington Center Junior Holder
(with respect to the Washington Center Loan), and (iii) each Certificateholder
and Certificate Owner who requests such password, provided that any such
Certificateholder or Certificate Owner, as the case may be, has delivered a
certification substantially in the form of Exhibit K-1 to the Trustee (with a
copy to the applicable Master Servicer). In connection with providing access to
a Master Servicer's internet website, such Master Servicer may require
registration and the acceptance of a disclaimer and otherwise (subject to the
preceding sentence) adopt reasonable rules and procedures, which may include, to
the extent such Master Servicer deems necessary or appropriate, conditioning
access on execution of an agreement governing the availability, use and
disclosure of such information, and which may provide indemnification to such
Master Servicer for any liability or damage that may arise therefrom.
Notwithstanding any other provision in this Agreement, the Master
Servicers, the Special Servicers and the Trustee shall deliver to the
Controlling Class Representative the reports (including the Payments Received
after Determination Date Report and the Mortgage Loans Delinquent Report) and
information set forth on Exhibit E-3 in the format and at the times set forth
therein.
(e) Each Special Servicer shall deliver to the applicable Master
Servicer the reports set forth in Section 3.12(b) and Section 3.12(c), and the
applicable Master Servicer shall deliver to the Trustee the reports set forth in
Section 3.12(d), in an electronic format reasonably acceptable to such Special
Servicer, the applicable Master Servicer and the Trustee. Each Master Servicer
may, absent manifest error, conclusively rely on the reports to be provided by a
Special Servicer pursuant to Section 3.12(b) and Section 3.12(c). The Trustee
may, absent manifest error, conclusively rely on the reports to be provided by a
Master Servicer pursuant to Section 3.12(d). To the extent that any report to be
prepared and provided to the Trustee and/or the Controlling Class Representative
by a Master Servicer pursuant to Section 3.12(d) is dependent on information
from a Special Servicer (or, in the case of the Great Lakes Crossing Mortgage
Loan or any Great Lakes Crossing REO Property, from a party under a Great Lakes
Crossing Servicing Agreement), and such Special Servicer (or, if applicable,
such party under such Great Lakes Crossing Servicing Agreement) has not timely
provided such information to the Master Servicer, such Master Servicer shall on
a timely basis provide to the Trustee and/or the Controlling Class
Representative, as applicable, as complete a report as the information provided
by such Special Servicer (or, if applicable, by such party under such Great
Lakes Crossing Servicing Agreement) permits and shall promptly update and
provide to the Trustee and/or the Controlling Class Representative, as
applicable, a complete report when such Special Servicer (or, if applicable,
such party under such Great Lakes Crossing Servicing Agreement) provides the
Master Servicer with the requisite missing information; and no Master Servicer
shall be in breach hereunder for so providing an incomplete report under Section
3.12(d) under the foregoing circumstances. Furthermore, if any report to be
provided to the Trustee and/or the Controlling Class Representative by a Master
Servicer pursuant to Section 3.12(d) was to be prepared by a Special Servicer
(or, in the case of the Great Lakes Crossing Mortgage Loan or any Great Lakes
Crossing REO Property, by a party under a Great Lakes Crossing Servicing
Agreement) and delivered to such Master Servicer, such Master Servicer shall not
be in breach by reason of any delay in its delivery of such report to the
Trustee and/or the Controlling Class Representative, as applicable, by reason of
a delay on the part of the Special Servicer (or, if applicable, on the part of
such party under such Great Lakes Crossing Servicing Agreement) to deliver such
report to the Master Servicer; and the Master Servicer shall deliver as promptly
as reasonably practicable to the Trustee and/or the Controlling Class
Representative, as applicable, any such report that it receives from a Special
Servicer (or, if applicable, from such party under such Great Lakes Crossing
Servicing Agreement) after the requisite delivery date.
(f) Notwithstanding the foregoing, however, the failure of a Master
Servicer or Special Servicer to disclose any information otherwise required to
be disclosed by this Section 3.12 shall not constitute a breach of this Section
3.12 to the extent such Master Servicer or Special Servicer so fails because
such disclosure, in the reasonable belief of such Master Servicer or Special
Servicer, as the case may be, would violate any applicable law or any provision
of a Mortgage Loan Document prohibiting disclosure of information with respect
to the Mortgage Loans or Mortgaged Properties or would constitute a waiver of
the attorney-client privilege on behalf of the Trust. The Master Servicers and
Special Servicers may disclose any such information or any additional
information to any Person so long as such disclosure is consistent with
applicable law, the related Mortgage Loan Documents and the Servicing Standard.
A Master Servicer or a Special Servicer may affix to any information provided by
it any disclaimer it deems appropriate in its reasonable discretion (without
suggesting liability on the part of any other party hereto).
(g) On or before the Closing Date, the Depositor shall provide to
each Master Servicer and the Trustee, the initial data (as of the respective Due
Dates for the Original Mortgage Loans in June 2003 or the most recent earlier
date for which such data is available) contemplated by the CMSA Loan Setup File,
the CMSA Loan Periodic Update File, the CMSA Operating Statement Analysis Report
and the CMSA Property File.
(h) If a Master Servicer or a Special Servicer is required to
deliver any statement, report or information under any provision of this
Agreement, such Master Servicer or Special Servicer, as the case may be, may
satisfy such obligation by (x) physically delivering a paper copy of such
statement, report or information, (y) delivering such statement, report or
information in a commonly used electronic format or (z) making such statement,
report or information available on such Master Servicer's internet website or
the Trustee's internet website, unless this Agreement expressly specifies a
particular method of delivery. Notwithstanding the foregoing, the Trustee may
request delivery in paper format of any statement, report or information
required to be delivered to the Trustee and clause (z) shall not apply to the
delivery of any information required to be delivered to the Trustee unless the
Trustee consents to such delivery.
(i) The applicable Master Servicer shall, contemporaneously with any
related delivery to the Trustee or the applicable Special Servicer, as
applicable, provide any reports which contain information related to the related
Mortgaged Property or financial information regarding the Borrower to the B Loan
Holder and the Washington Center Junior Holders. The applicable Master Servicer
shall, with the reasonable cooperation of the other parties hereto, deliver to
each B Loan Holder and the Washington Center Junior Holders all documents,
statements, reports and information with respect to the related B Loan and the
Washington Center Junior Loans, respectively, and/or the related Mortgaged
Property as may be required under the related A/B Intercreditor Agreement.
Section 3.13 Annual Statement as to Compliance
Each Master Servicer and each Special Servicer shall deliver to the
Trustee, the Depositor, the Underwriters and the Controlling Class
Representative, on or before May 1 of each year, beginning in 2004, an Officer's
Certificate (the "Annual Performance Certification") stating, as to the signer
thereof, that (i) a review of the activities of such Master Servicer or such
Special Servicer, as the case may be, during the preceding calendar year and of
its performance under this Agreement has been made under such officer's
supervision, (ii) to the best of such officer's knowledge, based on such review,
such Master Servicer or such Special Servicer, as the case may be, has fulfilled
all of its obligations under this Agreement in all material respects throughout
such year (or, if there has been a default in the fulfillment of any such
obligation, specifying each such default known to such officer and the nature
and status thereof), and (iii) such Master Servicer or such Special Servicer, as
the case may be, has received no notice regarding the qualification, or
challenging the status, of the Upper-Tier REMIC, the Lower-Tier REMIC or the 000
Xxxxx Xxxxxx Loan REMIC as a REMIC or the Grantor Trust as a grantor trust from
the IRS or any other governmental agency or body (or, if it has received any
such notice, specifying the details thereof); provided that each Master Servicer
and each Special Servicer shall be required to deliver its Annual Performance
Certification by March 15 in 2004 or any given year thereafter if it has
received written confirmation from the Trustee or the Depositor by January 31 of
that year that a Report on Form 10-K is required to be filed in respect of the
Trust for the preceding calendar year.
Section 3.14 Reports by Independent Public Accountants
On or before March 31 of each year, beginning in 2004, each Master
Servicer and each Special Servicer, at its expense, shall cause a firm of
independent public accountants that is a member of the American Institute of
Certified Public Accountants to furnish a statement (the "Annual Accountants'
Report") to the Trustee, the Depositor, the Underwriters and the Controlling
Class Representative, to the effect that such firm has examined the servicing
operations of such Master Servicer or such Special Servicer, as the case may be,
for the previous calendar year and that, on the basis of such examination,
conducted substantially in compliance with USAP, such firm confirms that such
Master Servicer or such Special Servicer, as the case may be, has complied
during such previous calendar year with the minimum servicing standards (to the
extent applicable to commercial and multifamily mortgage loans) identified in
USAP in all material respects, except for such significant exceptions or errors
in records that, in the opinion of such firm, USAP requires it to report;
provided that such Master Servicer and such Special Servicer shall each be
required to cause the delivery of its Annual Accountants' Report by March 15 in
2004 or any given year thereafter if it has received written confirmation from
the Trustee or the Depositor by January 31 of that year that a Report on Form
10-K is required to be filed in respect of the Trust for the preceding calendar
year. In rendering its report such firm may rely, as to matters relating to the
direct servicing of securitized commercial and multifamily mortgage loans by
sub-servicers, upon comparable reports of firms of independent certified public
accountants rendered on the basis of examinations conducted in accordance with
the same standards (rendered within one year of such report) with respect to
those sub-servicers.
Each Master Servicer and each Special Servicer will reasonably
cooperate with the Depositor in providing any other form of accountants' reports
as may be required by the Commission in connection with the Commission's
issuance of a no-action letter relating to the Depositor's reporting
requirements in respect of the Trust pursuant to the Exchange Act, and the
reasonable additional costs of providing such other forms of accountants'
reports shall be borne by the Depositor.
Section 3.15 Access to Certain Information
(a) Each Master Servicer and each Special Servicer shall afford to
the Trustee, any Fiscal Agent, the Depositor, each Rating Agency and the
Controlling Class Representative and to the OTS, the FDIC and any other banking
or insurance regulatory authority that may exercise authority over any
Certificateholder or Certificate Owner, 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, the terms of the
related Mortgage Loan Documents or contract entered into prior to the Closing
Date or to the extent such information is subject to a privilege under
applicable law to be asserted on behalf of the Certificateholders. Such access
shall be afforded without charge but only upon reasonable prior written request
and during normal business hours at the offices of such Master Servicer or such
Special Servicer, as the case may be, designated by it. Each Master Servicer and
each Special Servicer may affix a reasonable disclaimer to any information
provided by it for which it is not the original source (without suggesting
liability on the part of any other party hereto). In connection with providing
access to such records to the Controlling Class Representative, the 000 Xxxxx
Xxxxxx X Loan Holder, each Washington Center Junior Holder, each Master Servicer
and each Special Servicer may require registration (to the extent access is
provided via a Master Servicer's internet website) and the acceptance of a
reasonable and customary disclaimer and otherwise adopt reasonable rules and
procedures, which may include, to the extent a Master Servicer or Special
Servicer, as applicable, deems necessary or appropriate, conditioning access on
the execution and delivery of an agreement governing the availability, use and
disclosure of such information.
(b) None of the Master Servicers or the Special Servicers shall be
liable for providing or disseminating information in accordance with the terms
of this Agreement.
(c) Upon the request of the Controlling Class Representative made
not more frequently than once a month, or at such mutually acceptable time each
month as the Controlling Class Representative shall reasonably designate, each
of the Master Servicers and Special Servicers shall, without charge, make a
knowledgeable Servicing Officer available, at the option of such Controlling
Class Representative either by telephone or at the office of such Servicing
Officer, to answer questions from such 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; provided, that if the Washington Center B Loan Holder is not
the then current Controlling Class Representative with respect to the Washington
Center Total Loan, then the Controlling Class Representative of the Washington
Center Total Loan shall provide the Washington Center B Loan Holder an
opportunity (by giving notice thereto) to join such telephone conference or such
conference at the office of such Servicing Officer.
(d) Any Master Servicer may, in accordance with such reasonable
rules and procedures as it may adopt, also make available through its internet
website, or otherwise, any additional information relating to the Mortgage
Loans, the Mortgaged Properties or the Borrowers for review by the Depositor,
the Rating Agencies and any other Persons to whom the Master Servicers believe
such disclosure is appropriate, in each case except to the extent doing so is
prohibited by applicable law or by the related Mortgage Loan.
(e) The Master Servicers and the Special Servicers may make
available the following items, in electronic form or otherwise, upon request
and, except in the case of a Rating Agency or a Controlling Class
Certificateholder, at the expense of the requesting party, to the Depositor, the
Trustee, the Rating Agencies, any Certificateholder, any Certificate Owner, the
000 Xxxxx Xxxxxx X Loan Holder, each Washington Center Junior Holder, any
prospective transferee of a Certificate or an interest therein and any other
Persons to whom it believes such disclosure to be appropriate: (i) all financial
statements, occupancy information, rent rolls, retail sales information, average
daily room rates and similar information received by the Master Servicer or the
Special Servicer, as applicable, from each Borrower, (ii) the inspection reports
prepared by or on behalf of the Master Servicers or the Special Servicers, as
applicable, in connection with the property inspections pursuant to Section
3.12, (iii) any and all modifications, waivers and amendments of the terms of a
Mortgage Loan entered into by the Master Servicers or the Special Servicers, as
applicable, and (iv) any and all officer's certificates and other evidence
delivered to the Trustee and the Depositor to support the applicable Master
Servicer's determination that any Advance was, or if made would be, a
Nonrecoverable Advance; provided, however, that nothing in this Section 3.15(e)
shall be deemed or construed to otherwise limit the obligations of any Master
Servicer and any Special Servicer under this Agreement to deliver to any Person
any of the items set forth in clauses (i) through (iv) above.
(f) Notwithstanding the obligations of each Master Servicer and each
Special Servicer set forth in Section 8.14, the Master Servicers and the Special
Servicers may withhold (other than with respect to items required to be
delivered hereunder to the Controlling Class Representative and with respect to
the Washington Center Loan, the Washington Center B Loan Holder (if not then the
Controlling Class Representative of the Washington Center Loan)) any information
not yet included in a Form 8-K filed with the Commission or otherwise made
publicly available with respect to which the Trustee, the Special Servicers or
the Master Servicers have determined that such withholding is appropriate.
(g) Notwithstanding anything to the contrary in this Agreement, as a
condition to the Master Servicers or Special Servicers making any report or
information available upon request to any Person other than the parties hereto
and the Controlling Class Representative, 000 Xxxxx Xxxxxx X Loan Holder or any
Washington Center Junior Holder, the Master Servicers and Special Servicers may
require that the recipient of such information acknowledge that the Master
Servicers and Special Servicers may contemporaneously provide such information
to the Depositor, the Trustee, the Underwriters, any Rating Agency, the
Certificateholders and/or the Certificate Owners. Each Master Servicer and
Special Servicer may condition such disclosure upon the recipient delivering a
certification substantially in the form of Exhibit K-1 to the Trustee (with a
copy to the applicable Master Servicer) or otherwise entering into a reasonable
and customary confidentiality agreement reasonably acceptable to such servicer
regarding such disclosure to it. In connection with providing access to its
internet website, any Master Servicer may require registration and the
acceptance of a disclaimer and otherwise (subject to the preceding sentence)
adopt reasonable rules and procedures, which may include, to the extent it deems
necessary or appropriate, conditioning access on execution of an agreement
governing the availability, use and disclosure of such information, and which
may provide indemnification to the applicable Master Servicer for any liability
or damage that may arise therefrom. Any transmittal of information by the Master
Servicers or Special Servicers to any Person other than the Trustee, the Rating
Agencies or the Depositor shall be accompanied by a letter from each Master
Servicer or Special Servicer containing the following provision:
"By receiving the information set forth herein, you hereby
acknowledge and agree that the United States securities
laws restrict any person who possesses material,
non-public information regarding the Trust which issued
Credit Suisse First Boston Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series
2003-C3 from purchasing or selling such Certificates in
circumstances where the other party to the transaction is
not also in possession of such information. You also
acknowledge and agree that such information is being
provided to you for the purposes of, and such information
may be used only in connection with, evaluation by you or
another Certificateholder or prospective purchaser of such
Certificates or beneficial interest therein."
(h) Each Master Servicer and Special Servicer may, in its
discretion, make available by hard copy, electronic media, internet website or
bulletin board service certain information and may make available by hard copy,
electronic media, internet website or bulletin board service (in addition to
making such information available as provided herein) any reports or information
that it is required by this Agreement to provide to the Trustee, any of the
Rating Agencies, the Depositor and anyone the Depositor reasonably designates.
Section 3.16 Title to REO Property; REO Account
(a) If title to any REO Property (other than the Great Lakes
Crossing Mortgaged Property) is acquired, the deed or certificate of sale shall
be issued to the Trustee or its nominee, on behalf of the Certificateholders
(and on behalf of the related B Loan Holder and the Washington Center Junior
Holders if such REO Property is related to an A/B Loan Pair) or, subject to
Section 3.09(b), to a single member limited liability company of which the Trust
is the sole member, which limited liability company is formed or caused to be
formed by the applicable Special Servicer at the expense of the Trust for the
purpose of taking title to one or more REO Properties (other than the Great
Lakes Crossing Mortgaged Property) pursuant to this Agreement. The limited
liability company shall be a manager-managed limited liability company, with the
Special Servicer to serve as the initial manager to manage the property of the
limited liability company, including any applicable REO Property, in accordance
with the terms of this Agreement as if such property was held directly in the
name of the Trust or Trustee under this Agreement (and for the benefit of the
related B Loan Holder and the Washington Center Junior Holders if such REO
Property is related to an A/B Loan Pair). The applicable Special Servicer, on
behalf of the Trust (and for the benefit of the related B Loan Holder and the
Washington Center Junior Holders if such REO Property is related to an A/B Loan
Pair), shall sell any REO Property in accordance with Section 3.18 by the end of
the third calendar year (or, in the case of a "qualified healthcare property"
within the meaning of Section 856(c)(6) of the Code, the end of the second
calendar year) following the year in which the Trust acquires ownership of such
REO Property for purposes of Section 860G(a)(8) of the Code, unless such Special
Servicer either (i) applies, more than 60 days prior to the expiration of such
liquidation period, and is granted an extension of time (an "REO Extension") by
the IRS to sell such REO Property or (ii) obtains for the Trustee an Opinion of
Counsel, addressed to the Trustee, to the effect that the holding by the Trust
of such REO Property subsequent to the end of the third calendar year (or, in
the case of a "qualified healthcare property" within the meaning of Section
856(c)(6) of the Code, the end of the second calendar year) following the year
in which such acquisition occurred will not result in an Adverse REMIC Event
with respect to the Upper-Tier REMIC, the Lower-Tier REMIC or the 000 Xxxxx
Xxxxxx Loan REMIC or an Adverse Grantor Trust Event with respect to the Grantor
Trust. Regardless of whether the applicable Special Servicer applies for or is
granted the REO Extension contemplated by clause (i) of the immediately
preceding sentence or obtains the Opinion of Counsel referred to in clause (ii)
of such sentence, the applicable Special Servicer shall act in accordance with
the Servicing Standard to liquidate the subject REO Property on a timely basis.
If the applicable Special Servicer is granted such REO Extension or obtains such
Opinion of Counsel with respect to any REO Property, such Special Servicer shall
(i) promptly forward a copy of such REO Extension or Opinion of Counsel to the
Trustee, and (ii) sell such REO Property within such extended period as is
permitted by such REO Extension or contemplated by such Opinion of Counsel, as
the case may be. Any expense incurred by a Special Servicer in connection with
its applying for and being granted the REO Extension contemplated by clause (i)
of the third preceding sentence or its obtaining the Opinion of Counsel (which
Opinion of Counsel, if the subject REO Property is the Mortgaged Property that
secures the 000 Xxxxx Xxxxxx Loan or the Washington Center Loan, shall not be
payable by or from amounts otherwise distributable to the related B Loan or any
Washington Center Junior Holder) contemplated by clause (ii) of the third
preceding sentence, and for the creation of and the operating of a limited
liability company, shall be covered by, and be reimbursable as, a Servicing
Advance.
(b) Each Special Servicer shall segregate and hold all funds
collected and received by it in connection with any REO Property separate and
apart from its own funds and general assets. If title to any REO Property is
acquired by or on behalf of the Trust, then the applicable Special Servicer
shall establish and maintain one or more accounts (collectively, the "REO
Account"), to be held on behalf of the Trustee (as holder of the Uncertificated
Lower-Tier Interests and the 000 Xxxxx Xxxxxx Loan REMIC Regular Interests) in
trust for the benefit of the Certificateholders (and on behalf of the related B
Loan Holder and the Washington Center Junior Loans if such REO Property is
related to an A/B Loan Pair), for the retention of revenues and other proceeds
derived from each REO Property. Each account that constitutes an REO Account
shall be an Eligible Account. The Special Servicer shall deposit, or cause to be
deposited, in the REO Account, within one Business Day following receipt, all
REO Revenues, Insurance Proceeds and Liquidation Proceeds received in respect of
the REO Property. Funds in the REO Account may be invested in Permitted
Investments in accordance with Section 3.06. The Special Servicer shall be
entitled to make withdrawals from the REO Account to pay itself, as Additional
Special Servicing Compensation, 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, if any, with respect to the REO
Account for any Collection Period). The Special Servicer shall give notice to
the other parties hereto of the location of the REO Account when first
established and of the new location of its REO Account prior to any change
thereof.
(c) The Special Servicer shall withdraw from the REO Account funds
necessary for the proper operation, management, leasing, maintenance and
disposition of any REO Property, but only to the extent of amounts on deposit in
the REO Account relating to such REO Property. Five (5) Business Days prior to
each Determination Date, and again on the first Business Day following such
Determination Date, the applicable Special Servicer shall withdraw from its REO
Account and deposit into the applicable Master Servicer's Collection Account
(or, if the subject REO Property relates to an A/B Loan Pair, into the related
A/B Loan Pair Custodial Account), or deliver to the applicable Master Servicer
for deposit into such Collection Account (or, if the subject REO Property
relates to an A/B Loan Pair, into the related A/B Loan Pair Custodial Account)
the aggregate of all amounts received in respect of each REO Property during the
Collection Period ending on such Determination Date that are then on deposit in
such REO Account, net of any withdrawals made out of such amounts pursuant to
the preceding sentence; provided that, in the case of each REO Property, the
applicable Special Servicer may retain in the REO Account such portion of such
proceeds and collections as may be necessary to maintain a reserve of sufficient
funds for the proper operation, management, leasing, maintenance and disposition
of the related REO Property (including the creation of a reasonable reserve for
repairs, replacements, necessary capital improvements and other related
expenses), such reserve not to exceed an amount sufficient to cover such items
reasonably expected to be incurred during the following 12-month period.
(d) The Special Servicer shall keep and maintain separate records,
on a property-by-property basis, for the purpose of accounting for all deposits
to, and withdrawals from, the REO Account pursuant to Section 3.16(b) or
3.16(c).
(e) The REO Property and the related REO Account with respect to the
000 Xxxxx Xxxxxx Loan REMIC shall be treated as assets of such REMIC for all
purposes of this Agreement.
Section 3.17 Management of REO Property
(a) Prior to the acquisition of title to any Mortgaged Property
securing a defaulted Mortgage Loan, the applicable 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. If
the applicable Special Servicer determines from such review that:
(i) None of the income from Directly Operating such Mortgaged
Property would be subject to tax as "net income from foreclosure property"
within the meaning of the REMIC Provisions (such tax referred to herein as
an "REO Tax"), then such Mortgaged Property may be Directly Operated by
the applicable Special Servicer as REO Property (other than the
performance of activities for which an Independent Contractor is
required);
(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 such
Special Servicer may (provided that in the judgment of such Special
Servicer, exercised in accordance with the Servicing Standard, it is
commercially reasonable) so lease or otherwise operate such REO Property;
or
(iii) It is reasonable to believe that Directly Operating such
property as REO Property could result in income subject to an REO Tax and
that no commercially reasonable means exists to operate such property as
REO Property without the Trust incurring or possibly incurring an REO Tax
on income from such property, such Special Servicer shall deliver to the
Trustee and the Controlling Class Representative, in writing, a proposed
plan (the "Proposed Plan") to manage such property as REO Property. Such
plan shall include potential sources of income and good faith estimates of
the amount of income from each such source. Within a reasonable period of
time after receipt of such plan, the Trustee shall consult with such
Special Servicer and shall advise such Special Servicer of the Trust's
federal income tax reporting position with respect to the various sources
of income that the Trust would derive under the Proposed Plan. In
addition, the Trustee shall (to the maximum extent reasonably possible)
advise such Special Servicer of the estimated amount of taxes that the
Trust 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 Trustee, such Special Servicer shall either (A) implement the
Proposed Plan (after acquiring the respective Mortgaged Property as REO
Property) or (B) manage and operate such property in a manner that would
not result in the imposition of an REO Tax on the income derived from such
property.
Subject to Section 3.17(b), the applicable Special Servicer's
decision as to how each REO Property shall be managed and operated shall be in
accordance with the Servicing Standard. Neither the Special Servicers nor the
Trustee shall be liable to the Certificateholders, the Trust, the other parties
hereto or each other for errors in judgment made in good faith in the exercise
of their discretion while performing their respective responsibilities under
this Section 3.17(a) with respect to any REO Property. Nothing in this Section
3.17(a) is intended to prevent the sale of any REO Property pursuant to the
terms and subject to the conditions of Section 3.18.
(b) If title to any REO Property (other than the Great Lakes
Crossing Mortgaged Property) is acquired, the applicable Special Servicer shall
manage, conserve, protect and operate such REO Property for the benefit of the
Certificateholders (and for the benefit of the holder of the B Loan Holder and
the Washington Center Junior Holders if such REO Property is related to an A/B
Loan Pair) solely for the purpose of its prompt disposition and sale in
accordance with Section 3.18, in a manner that does not cause such REO Property
to fail to qualify as "foreclosure property" within the meaning of Section
860G(a)(8) of the Code or, except as contemplated by Section 3.17(a), result in
the receipt by the Upper-Tier REMIC, Lower-Tier REMIC or 000 Xxxxx Xxxxxx Loan
REMIC of any "income from non-permitted assets" within the meaning of Section
860F(a)(2)(B) of the Code, in an Adverse REMIC Event with respect to the
Upper-Tier REMIC, the Lower-Tier REMIC or the 000 Xxxxx Xxxxxx Loan REMIC or in
an Adverse Grantor Trust Event with respect to the Grantor Trust. Except as
contemplated by Section 3.17(a), the applicable Special Servicer shall not enter
into any lease, contract or other agreement with respect to any REO Property
that causes the Trust to receive, and (unless required to do so under any lease,
contract or agreement to which the applicable Special Servicer or the Trust may
become a party or successor to a party due to a foreclosure, deed-in-lieu of
foreclosure or other similar exercise of a creditor's rights or remedies with
respect to the related Mortgage Loan) shall not, with respect to any REO
Property, cause or allow the Trust to receive, any "net income from foreclosure
property" that is subject to taxation under the REMIC Provisions. Subject to the
foregoing, however, the applicable Special Servicer shall have full power and
authority to do any and all things in connection with the administration of any
REO Property, as are consistent with the Servicing Standard and, consistent
therewith, shall withdraw from its REO Account, to the extent of amounts on
deposit therein with respect to such REO Property, funds necessary for the
proper operation, management, maintenance and disposition of such REO Property,
including:
(i) all insurance premiums due and payable in respect of such REO
Property;
(ii) all real estate taxes and assessments in respect of such REO
Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property; and
(iv) all other costs and expenses necessary to maintain, lease,
sell, protect, manage, operate and restore such REO Property.
To the extent that amounts on deposit in the applicable Special
Servicer's REO Account with respect to any REO Property are insufficient for the
purposes contemplated by the preceding sentence with respect to such REO
Property, the applicable Master Servicer shall, at the direction of the
applicable Special Servicer pursuant to Section 3.19(b), make a Servicing
Advance of such amounts as are necessary for such purposes unless such Master
Servicer or Special Servicer determines, in its reasonable judgment, that such
advances would, if made, be Nonrecoverable Servicing Advances; provided,
however, that such Master Servicer may in its sole discretion 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.
Notwithstanding the foregoing, the 000 Xxxxx Xxxxxx X Loan Holder or
the Washington Center Junior Holders shall be not required to reimburse the
Trust Fund or any other Person for a payment of any REMIC taxes or Advances
therefor or interest accrued thereon at the Advance Rate or for deficits in
other items of disbursement or income resulting from the use of funds for
payment of REMIC taxes or for any REMIC related opinions or REMIC administration
fees.
(c) The applicable Special Servicer may, and if required to maintain
the status of the REO Property as "foreclosure property" pursuant to Section
860G(a)(8) of the Code, shall contract with any Independent Contractor for the
operation and management of any REO Property, provided that:
(i) the terms and conditions of any such contract may not be
inconsistent herewith and shall reflect an agreement reached at arm's
length;
(ii) the fees of such Independent Contractor (which shall be
expenses of the Trust) shall be reasonable and customary in consideration
of the nature and locality of the REO Property;
(iii) any such contract shall require, or shall be administered to
require, that the Independent Contractor, in a timely manner, (A) pay all
costs and expenses incurred in connection with the operation and
management of such REO Property, including those listed in Section 3.17(b)
above, and (B) remit all related revenues collected (net of its fees and
such costs and expenses) to such Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(c) relating to any
such contract or to actions taken through any such Independent Contractor
shall be deemed to relieve such Special Servicer of any of its duties and
obligations hereunder with respect to the operation and management of any
such REO Property; and
(v) such 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.
Each 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 such Special Servicer by such
Independent Contractor, and nothing in this Agreement shall be deemed to limit
or modify such indemnification. To the extent the costs of any contract with any
Independent Contractor for the operation and management of any REO Property are
greater that the revenues available from such property, such excess costs shall
be covered by, and be reimbursable to the applicable Master Servicer as, a
Servicing Advance.
Section 3.18 Fair Value Option; Sale of REO Properties
(a) The parties hereto may sell or purchase, or permit the sale or
purchase of, a Mortgage Loan or REO Property only on the terms and subject to
the conditions set forth in this Section 3.18 or as otherwise expressly provided
in or contemplated by: Section 2.03 and Section 9.01 of this Agreement; the
Mortgage Loan Purchase Agreements; the Column Performance Guarantee; and the
related Mortgage Loan Documents and/or, in the case of an A Loan, the related
A/B Intercreditor Agreement.
(b) If any Mortgage Loan becomes a Specially Designated Defaulted
Mortgage Loan, then the applicable Special Servicer shall so notify, in writing,
the Trustee, the Controlling Class Representative, the applicable Master
Servicer, the Holder(s) of the Controlling Class, the B Loan Holders (with
respect to the related A Loan) and the Washington Center Junior Holders (with
respect to the Washington Center Loan). In addition, such Special Servicer shall
determine (in accordance with the Servicing Standard, taking into account the
considerations contemplated by the following paragraph, but without regard to
the Purchase Option provided for in Section 3.18(c) below), and report to the
Trustee, the applicable Master Servicer, the Controlling Class Representative
(and with respect to the 000 Xxxxx Xxxxxx Loan and the Washington Center Loan,
the Washington Center Junior Holders and the 000 Xxxxx Xxxxxx X Loan Holder) and
the Holder(s) of the Controlling Class, the Fair Value of such Mortgage Loan.
The applicable Special Servicer's determination of the Fair Value of any
Specially Designated Defaulted Mortgage Loan shall be made as soon as reasonably
practicable, but in no event later than 30 days after the applicable Special
Servicer receives the requisite Appraisal or any other third-party reports that
it deems necessary to make the determination. If at any time the applicable
Special Servicer becomes aware of any circumstances or conditions that have
occurred or arisen with respect to any Specially Designated Defaulted Mortgage
Loan or the related Mortgaged Property subsequent to, and that would, in such
Special Servicer's reasonable judgment, materially affect, such Special
Servicer's most recent Fair Value determination with respect to such Specially
Designated Defaulted Mortgage Loan, then the applicable Special Servicer shall
redetermine (in a manner as is permitted above, but taking into account any new
circumstances or conditions known to the applicable Special Servicer), and
report to the Trustee, the Controlling Class Representative and the applicable
Master Servicer (and the Trustee shall, in turn, report to the Holder(s) of the
Controlling Class), the updated Fair Value of the subject Specially Designated
Defaulted Mortgage Loan. In addition, if the applicable Special Servicer has not
accepted a bid at the Fair Value of the Mortgage Loan, as most recently
determined by the applicable Special Servicer, prior to the expiration of 90
days from such determination, and thereafter the applicable Special Servicer
receives a bid at such Fair Value or a request from a holder of the Purchase
Option for an updated determination of the Fair Value of the Mortgage Loan, the
applicable Special Servicer shall redetermine (in the same manner as provided
above, but taking into account any new circumstances or conditions known to such
Special Servicer), and report to the Trustee, the Controlling Class
Representative and the applicable Master Servicer (and the Trustee shall, in
turn, report to the Holder(s) of the Controlling Class), the updated Fair Value
of the subject Specially Designated Defaulted Mortgage Loan; provided, however,
that the applicable Special Servicer may rely on the existing third-party
information if in its reasonable judgment it determines such reliance to be
reasonable.
In determining the Fair Value of any Specially Designated Defaulted
Mortgage Loan, the applicable 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 related Mortgaged Property
is located, and the time and expense associated with and the expected recovery
from a purchaser's foreclosing on the related Mortgaged Property or working out
such Mortgage Loan. In addition, the applicable Special Servicer shall refer to
all relevant information contained in the Servicing File, shall take into
account the most recent Appraisal obtained or conducted with respect to the
related Mortgaged Property in the preceding 12-month period in accordance with
this Agreement and shall not determine the Fair Value of any Specially
Designated Defaulted Mortgage Loan without such an Appraisal; provided that such
Special Servicer shall take account of any change in the circumstances regarding
or the condition of the related Mortgaged Property known to such Special
Servicer that has occurred or arisen subsequent to, and that would materially
affect the value of the related Mortgaged Property reflected in, such Appraisal.
Furthermore, the applicable Special Servicer shall consider any offers from
third parties desiring to purchase the Specially Designated Defaulted Mortgage
Loan, available objective third-party information obtained from generally
available sources, as well as information obtained from vendors providing real
estate services to such 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. A Special Servicer
may, to the extent it is reasonable to do so, conclusively rely on any opinions
or reports of Independent third parties in making such determination. All
reasonable costs and expenses incurred by a Special Servicer pursuant to this
Section 3.18(b) shall constitute, and be reimbursable to the applicable Master
Servicer as, Servicing Advances. The other parties to this Agreement shall
cooperate with all reasonable requests for information made by a Special
Servicer in order to allow such Special Servicer to perform its duties pursuant
to this Section 3.18(b).
(c) The Majority Controlling Class Certificateholder(s) (but, with
respect to the 000 Xxxxx Xxxxxx Loan, not a Controlling Class Representative of
the Class 622 Participation Certificates, but the Controlling Class
Representative of the Regular Certificates) or any assignee thereof may, at its
or their option, purchase from the Trust any Specially Designated Defaulted
Mortgage Loan (such option, the "Purchase Option"), at a cash price (the "Option
Price") equal to the Fair Value of such Mortgage Loan (as most recently
determined by the applicable Special Servicer and reported to the Trustee, the
Controlling Class Representative and the applicable Master Servicer as provided
in Section 3.18(b) above) or, if no such Fair Value has yet been established as
provided in Section 3.18(b) above or if the applicable Special Servicer is in
the process of redetermining such Fair Value because of a change in
circumstances, equal to the Purchase Price; provided, that with respect to an A
Loan, the option holder's rights under this Section 3.18(c) are subject to the
rights of the related B Loan Holder or any Washington Center Junior Holder or
the Washington Center Loan mezzanine holder to purchase the related A Loan
pursuant to the terms of the related A/B Intercreditor Agreement at any time
permissible under the terms of the related A/B Intercreditor Agreement,
regardless of any notice of intent to exercise the Purchase Option or tender of
the Option Price by any option holder hereunder; provided, further, that:
(i) the Purchase Option with respect to any Specially Designated
Defaulted Mortgage Loan will remain in effect only for the period (the
"Option Period") that commences on the date that such Mortgage Loan first
becomes a Specially Designated Defaulted Mortgage Loan and ends on the
earliest of (A) the date on which such Mortgage Loan becomes a Corrected
Mortgage Loan or otherwise ceases to be a Specially Designated Defaulted
Mortgage Loan and (B) the date on which a Liquidation Event occurs with
respect to such Mortgage Loan or the related Mortgaged Property becomes an
REO Property; provided, that the option with respect to an A Loan shall
terminate upon the purchase of the A Loan by the related B Loan Holder or
any Washington Center Junior Holder or the Washington Center Loan
mezzanine holder pursuant to the related A/B Intercreditor Agreement.
(ii) the Purchase Option with respect to any Specially Designated
Defaulted Mortgage Loan will be assignable by the Majority Controlling
Class Certificateholder(s) during the Option Period to any third party
(provided that the parties hereto are notified in writing of the
assignment) pursuant to an assignment in the form attached hereto as
Exhibit Q;
(iii) if the Purchase Option with respect to any Specially
Designated Defaulted Mortgage Loan is not exercised by the Majority
Controlling Class Certificateholder(s) or any assignee thereof within 60
days after the Fair Value of such Mortgage Loan has initially been
established as provided in Section 3.18(b) above, then the Majority
Controlling Class Certificateholder(s) shall automatically be deemed to
have assigned (without the need for any written assignment or other
agreement or notice to any Person) such Purchase Option, for a 30-day
period only, to the applicable Special Servicer;
(iv) during the 30-day period following the assignment to it of the
Purchase Option with respect to any Specially Designated Defaulted
Mortgage Loan, the applicable Special Servicer shall be entitled to
exercise such Purchase Option (subject to the same terms and conditions as
the option holder) or to assign such Purchase Option to any third party
pursuant to an assignment in the form of Exhibit Q (provided that the
other parties hereto are notified in writing of the assignment);
(v) if the Purchase Option with respect to any Specially Designated
Defaulted Mortgage Loan is not exercised by the applicable Special
Servicer or its assignee within the 30-day period following the assignment
of such Purchase Option to the applicable Special Servicer as contemplated
by clause (iii) above, then such Purchase Option will automatically revert
to the Majority Controlling Class Certificateholder(s); and
(vi) prior to any exercise of the Purchase Option with respect to
any Specially Designated Defaulted Mortgage Loan by the applicable Special
Servicer or any Affiliate or assignee thereof, subject to the following
paragraph, the General Master Servicer shall confirm and report to the
Trustee and such Special Servicer (or, if the General Master Servicer and
such Special Servicer are the same Person or Affiliates, the Trustee, upon
reasonable notice, shall confirm and report to such Special Servicer) that
the applicable Special Servicer's determination of the Fair Value of such
Mortgage Loan is consistent with or greater than what the General Master
Servicer (or, if applicable, the Trustee) considers to be the Fair Value
of such Mortgage Loan; provided that the applicable Special Servicer may
revise any such Fair Value determination that is rejected by the General
Master Servicer (or, if applicable, the Trustee).
Notwithstanding anything contained in clause (vi) of the preceding
paragraph to the contrary, if the General Master Servicer or the Trustee is
required to confirm or reject such Special Servicer's Fair Value determination
as contemplated by such clause (vi), either such party may (at its option)
designate an Independent third party expert in real estate or commercial
mortgage loan matters with at least 5 years' experience in valuing or investing
in loans similar to the subject Specially Designated Defaulted Mortgage Loan,
that has been selected with reasonable care by the General Master Servicer (or,
if applicable, the Trustee) to confirm that such Special Servicer's Fair Value
determination as contemplated by such clause (vi) is consistent with or greater
than what the Independent third party considers to be the Fair Value of such
Mortgage Loan. In the event that the General Master Servicer or the Trustee, as
the case may be, designates such a third party to make such determination, the
General Master Servicer or the Trustee, as applicable, shall be entitled to rely
upon such third party's determination. The reasonable costs of all appraisals,
inspection reports and third-party opinions of value, incurred by the General
Master Servicer, the Trustee or any such third party pursuant to this paragraph
or clause (vi) of the preceding paragraph shall be advanced by the General
Master Servicer or the Trustee, as applicable, and shall constitute, and be
reimbursable as, Servicing Advances.
In addition, the General Master Servicer or the Trustee, as the case
may be, shall be entitled to receive out of the Collection Account a $2,500 fee
for the initial confirmation of the applicable Special Servicer's Fair Value
Determination (but no fee for any subsequent confirmation of such Special
Servicer's Fair Value Determination) that is made by it with respect to any
Specially Designated Defaulted Mortgage Loan, in accordance with this Section
3.18(c).
Any party entitled to do so may exercise the Purchase Option with
respect to any Specially Designated Defaulted Mortgage Loan by providing to the
Trustee, the applicable Master Servicer and the applicable Special Servicer--
(i) written notice of its intention to purchase such Mortgage Loan
at the Option Price; and
(ii) if such party is the assignee of the applicable Special
Servicer or the Majority Controlling Class Certificateholder(s), evidence
of its right to exercise such Purchase Option.
The actual purchase of such Specially Designated Defaulted Mortgage Loan shall
occur (by delivery of cash in the amount of the applicable Option Price to the
applicable Special Servicer for deposit in the applicable Master Servicer's
Collection Account) no later than 10 days after the later of (i) such exercise
of the Purchase Option with respect to such Mortgage Loan and (ii) if
applicable, the confirmation of such Special Servicer's Fair Value determination
with respect to such Mortgage Loan in accordance with clause (vi) of the first
paragraph of this Section 3.18(c) and/or in accordance with the second paragraph
of this Section 3.18(c). If the Purchase Option is exercised by a third-party
assignee, the purchase of the Specially Designated Defaulted Mortgage Loan may
be made pursuant to a mortgage loan purchase agreement in form and substance
satisfactory to the applicable Special Servicer and the Majority Controlling
Class Certificateholder, provided, that such agreement shall provide that the
sale of the Specially Designated Defaulted Mortgage Loan shall be final and
without representation or warranty other than customary representations as to
title similar to those given in connection with the sale of real property. If
the Purchase Option is exercised by a third-party assignee and such third-party
assignee fails to complete such purchase within the time period provided above,
the Purchase Option shall not be deemed extinguished but shall revert back to
the assignor of such Purchase Option as if the Purchase Option had not been
exercised. The applicable Special Servicer may enforce any remedies it may have
against the assignee for failure to complete such purchase.
Notwithstanding the Purchase Option provided for in this Section
3.18(c) and subject to Sections 3.23, 3.24, and 3.27, the applicable Special
Servicer shall proceed in respect of any Specially Designated Defaulted Mortgage
Loan in accordance with Section 3.09 and/or Section 3.20, without regard to such
Purchase Option.
(d) The applicable Special Servicer shall use its reasonable
efforts, consistent with the Servicing Standard, to solicit cash bids for each
REO Property in such manner as will be reasonably likely to realize a fair price
(determined pursuant to Section 3.18(e) below) for any REO Property within a
customary and normal time frame for the sale of comparable properties (and, in
any event, within the time period provided for by Section 3.16(a)). Such Special
Servicer shall accept the first (and, if multiple cash bids are received by a
specified bid date, the highest) cash bid received from any Person that
constitutes a fair price (determined pursuant to Section 3.18(e) below) for such
REO Property. If such Special Servicer reasonably believes that it will be
unable to realize a fair price (determined pursuant to Section 3.18(e) below)
with respect to any REO Property within the time constraints imposed by Section
3.16(a), then such Special Servicer shall, consistent with the Servicing
Standard, dispose of such REO Property upon such terms and conditions as it
shall deem necessary and desirable to maximize the recovery thereon under the
circumstances.
The applicable Special Servicer shall give the Trustee, the
applicable Master Servicer and the Controlling Class Representative not less
than five (5) Business Days' prior written notice of its intention to sell any
REO Property pursuant to this Section 3.18(d). No Interested Person shall be
obligated to submit a bid to purchase any REO Property, and notwithstanding
anything to the contrary herein, neither the Trustee, in its individual
capacity, nor any of its Affiliates may bid for or purchase any REO Property
pursuant hereto.
(e) Whether any cash bid constitutes a fair price for any REO
Property for purposes of Section 3.18(d) shall be determined by the applicable
Special Servicer or, if such cash bid is from an Interested Person, by the
Trustee. In determining whether any bid received from an Interested Person
represents a fair price for any REO Property, the Trustee shall be supplied with
and shall be entitled to rely on the most recent Appraisal in the related
Servicing File conducted in accordance with this Agreement within the preceding
12-month period (or, in the absence of any such Appraisal or if there has been a
material change at the subject property since any such Appraisal, on a new
Appraisal to be obtained by the applicable Special Servicer, the cost of which
shall be covered by, and be reimbursable to the applicable Master Servicer as, a
Servicing Advance). The appraiser conducting any such new Appraisal shall be a
Qualified Appraiser that is (i) selected by the applicable Special Servicer if
neither such Special Servicer nor any Affiliate thereof is bidding with respect
to the subject REO Property and (ii) selected by the Trustee if either such
Special Servicer or any Affiliate thereof is so bidding. If any Interested
Person is among those bidding with respect to any REO Property, such Special
Servicer shall require that all bids be submitted to it (or, if such Special
Servicer is bidding, be submitted to the Trustee) in writing and be accompanied
by a refundable deposit of cash in an amount equal to 5% of the bid amount. In
determining whether any bid from a Person other than an Interested Person
constitutes a fair price for any REO Property, such Special Servicer shall take
into account the results of any Appraisal or updated Appraisal that it or the
applicable Master Servicer may have obtained in accordance with this Agreement
within the prior twelve (12) months, as well as, among other factors, the
occupancy level and physical condition of the REO Property, the state of the
then current local economy and commercial real estate market where the REO
Property is located and the obligation to dispose of any REO Property within a
customary and normal time frame for the sale of comparable properties (and, in
any event, within the time period specified in Section 3.16(a)). The Purchase
Price for any REO Property shall in all cases constitute a fair price.
Notwithstanding the other provisions of this Section 3.18, no cash bid from the
applicable Special Servicer or any Affiliate thereof shall constitute a fair
price for any REO Property unless such bid is the highest cash bid received and
at least two Independent bids (not including the bid of such Special Servicer or
any Affiliate) have been received. In the event the bid of the applicable
Special Servicer or any Affiliate thereof is the only bid received or is the
higher of only two bids received, then additional bids shall be solicited. If an
additional bid or bids, as the case may be, are received for any REO Property
and the original bid of such Special Servicer or any Affiliate thereof is the
highest of all bids received, then the bid of such Special Servicer or such
Affiliate shall be accepted, provided that the Trustee has otherwise determined,
as provided above in this Section 3.18(e), that such bid constitutes a fair
price for the subject REO Property. Any bid by the applicable Special Servicer
for any REO Property shall be unconditional; and, if accepted, the subject REO
Property shall be transferred to such Special Servicer without recourse,
representation or warranty other than customary representations as to title
given in connection with the sale of a real property.
(f) Subject to Sections 3.18(a) through 3.18(e) above, the
applicable Special Servicer shall act on behalf of the Trustee in negotiating
with Independent third parties in connection with the sale of any REO Property
and taking any other action necessary or appropriate in connection with the sale
of any Specially Designated Defaulted Mortgage Loan or REO Property, and the
collection of all amounts payable in connection therewith. In connection with
the sale of any REO Property, the applicable Special Servicer may charge
prospective bidders, and may retain, fees that approximate such Special
Servicer's actual costs in the preparation and delivery of information
pertaining to such sales or evaluating bids without obligation to deposit such
amounts into a Collection Account. Any sale of a Specially Designated Defaulted
Mortgage Loan or any REO Property shall be final and without recourse to the
Trustee or the Trust, and if such sale is consummated in accordance with the
terms of this Agreement, neither the applicable Special Servicer nor the Trustee
shall have any liability to any Certificateholder with respect to the purchase
price therefor accepted by the applicable Special Servicer or the Trustee.
(g) Any sale of any Specially Designated Defaulted Mortgage Loan or
REO Property shall be for cash only.
(h) The purchase price for any Specially Designated Defaulted
Mortgage Loan or REO Property sold under this Section 3.18 shall be deposited
into the applicable Master Servicer's Collection Account, and the Trustee, upon
receipt of written notice from such Master Servicer to the effect that such
deposit has been made (based upon notification by the applicable Special
Servicer to such Master Servicer of the amount of the purchase price), 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 ownership of such Mortgage Loan or REO Property in the Person who purchased
such Mortgage Loan or REO Property.
(i) The parties hereto acknowledge the purchase option of each B
Loan Holder, the Washington Center Junior Holders and the Washington Center
mezzanine holder with respect to the related A Loan provided for in the related
A/B Intercreditor Agreement and that such option is prior in right to the Fair
Value Option. The purchase price paid by any B Loan Holder or Washington Center
Junior Holder, as applicable, for the related A Loan in accordance with such
purchase option shall be deposited into the Collection Account, and the Trustee,
upon receipt of written notice from the applicable Master Servicer to the effect
that such deposit has been made, 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 ownership of such Mortgage Loan in the
related B Loan Holder or Washington Center Junior Holder, as applicable.
Section 3.19 Additional Obligations of Master Servicers and the
Special Servicers.
(a) Each Master Servicer shall deliver to the Trustee for deposit in
the Distribution Account by 1:00 p.m. (New York City time) on each Master
Servicer Remittance Date, without any right of reimbursement therefor, a cash
payment (a "Compensating Interest Payment") in an amount equal to the sum of:
(i) with respect to Prepayment Interest Shortfalls that arise other
than by application of Insurance Proceeds and Condemnation Proceeds to the
payment of principal on any Mortgage Loan, the lesser of (A) the aggregate
amount of Prepayment Interest Shortfalls incurred in connection with
Principal Prepayments received (including, in the case of the Great Lakes
Crossing Mortgage Loan, by the Great Lakes Crossing Master Servicer or the
Great Lakes Crossing Special Servicer on behalf of the Trust) during the
most recently ended Collection Period with respect to Mortgage Loans as to
which such Master Servicer is the applicable Master Servicer, and (B) the
aggregate of (1)(a) with respect to all Mortgage Loans other than the
Co-op Mortgage Loans, such Master Servicer's Master Servicing Fees for the
related Collection Period for each and every Mortgage Loan and REO
Mortgage Loan for which such Master Servicing Fees are being paid in such
Collection Period, exclusive of any primary servicing fees payable to the
applicable Master Servicer or any of those payable to a third-party
Sub-Servicer (including any Designated Sub-Servicer), and (b) with respect
to Co-op Mortgage Loans, the NCB Master Servicer's Master Servicing Fees
for the related Collection Period for each and every Co-op Mortgage Loan
and REO Mortgage Loan (which predecessor Mortgage Loan was a Co-op
Mortgage Loan) for which such Master Servicing Fees are being paid in such
Collection Period, exclusive of any Excess Servicing Fees payable to the
NCB Master Servicer , and (2) all Prepayment Interest Excesses that were
collected during the subject Collection Period with respect to Mortgage
Loans for which that Master Servicer is acting as such and, to the extent
earned on the particular Principal Prepayment, all Net Investment Earnings
related to such Principal Prepayment received by such Master Servicer
during the most recently ended Collection Period; provided, however, that
if such a Prepayment Interest Shortfall occurs as a result of the
applicable Master Servicer's allowing the related Borrower to deviate from
the terms of the related Mortgage Loan Documents regarding Principal
Prepayments (other than (X) subsequent to a material default under the
related Mortgage Loan Documents, (Y) pursuant to applicable law or a court
order, or (Z) at the request or with the consent of the Controlling Class
Representative), then, for purposes of calculating the Compensating
Interest Payment for the subject Collection Period and such Mortgage Loan,
the rate referred to in clause (B)(1) above shall be, except with respect
to the Co-op Mortgage Loans, deemed to include any related primary
servicing fee payable to the applicable Master Servicer but shall not
include any primary servicing fee payable to any third-party Sub-Servicer
(including any Designated Sub-Servicer); and
(ii) with respect to Prepayment Interest Shortfalls that arise by
application of Insurance Proceeds or Condemnation Proceeds to payment of
principal on any Mortgage Loan, the lesser of (A) the aggregate amount of
Prepayment Interest Shortfalls incurred in connection with Insurance
Proceeds and Condemnation Proceeds received and applied as an early
recovery of principal during the most recently ended Collection Period
with respect to Mortgage Loans as to which such Master Servicer is the
applicable Master Servicer, and (B) all Net Investment Earnings earned on
the portion of such Insurance Proceeds and Condemnation Proceeds that
represents the particular Principal Prepayment, received by such Master
Servicer during the most recently ended Collection Period.
The rights of the Certificateholders to offset the aggregate
Prepayment Interest Shortfalls shall not be cumulative from Collection Period to
Collection Period.
(b) No later than 1:00 p.m. New York City time on the first
Determination Date that follows the date on which a Special Servicer makes any
Servicing Advance, such Special Servicer shall provide the applicable Master
Servicer an Officer's Certificate (via facsimile) setting forth the details of
the Servicing Advance upon which the Master Servicer shall conclusively rely in
reimbursing such Special Servicer. The applicable Master Servicer shall be
obligated, out of such Master Servicer's own funds, to reimburse such Special
Servicer for any unreimbursed Servicing Advances (other than Nonrecoverable
Servicing Advances) made by such Special Servicer with respect to Mortgage Loans
and/or REO Properties as to which such Master Servicer is the applicable Master
Servicer, together with interest thereon at the Reimbursement Rate from the date
made to, but not including, the date of reimbursement. Any such reimbursement,
together with any accompanying payment of interest, shall be made by the
applicable Master Servicer, by wire transfer of immediately available funds to
an account designated by the requesting Special Servicer, no later than the
first Master Servicer Remittance Date that is at least three (3) Business Days
after the date on which the applicable Master Servicer receives the
corresponding Officer's Certificate contemplated by the prior sentence; provided
that any such Officer's Certificate received after 1:00 p.m., New York City
time, on any particular date shall, for purposes of any such reimbursement, be
deemed received on the next succeeding Business Day. Upon a Master Servicer's
reimbursement to a Special Servicer of any Servicing Advance and payment to such
Special Servicer of interest thereon, all in accordance with this Section
3.19(b), such Master Servicer shall for all purposes of this Agreement be deemed
to have made such Servicing Advance at the same time as such Special Servicer
actually made such Servicing Advance, and accordingly, such Master Servicer
shall be entitled to reimbursement for such Servicing Advance, together with
interest thereon in accordance with Sections 3.05(a) and 3.11(g), at the same
time, in the same manner and to the same extent as such Master Servicer would
otherwise have been entitled if it had actually made such Servicing Advance at
the time such Special Servicer did.
Notwithstanding anything to the contrary contained in any other
Section of this Agreement, the applicable Special Servicer shall notify the
applicable Master Servicer whenever a Servicing Advance is required to be made
with respect to any Specially Serviced Mortgage Loan or REO Property, and, such
Master Servicer shall make such Servicing Advance; provided that the applicable
Special Servicer may make any Servicing Advance on a Specially Serviced Mortgage
Loan or REO Property only as may be required on an urgent or emergency basis.
Each such notice and request shall be made, in writing, in a timely manner that
does not adversely affect the interests of any Certificateholder, any B Loan
Holder (with respect to its related Mortgage Loan) or Washington Center Junior
Holder (with respect to the Washington Center Loan) (and, in any event, to the
extent reasonably practicable, at least five Business Days in advance of the
date on which the subject Servicing Advance is to be made) and shall be
accompanied by such information and documentation regarding the subject
Servicing Advance as the applicable Master Servicer may reasonably request;
provided, however, that a Special Servicer shall not be entitled to make such a
request (other than for emergency Advances) more frequently than once per
calendar month (although such request may relate to more than one Servicing
Advance). The applicable Master Servicer shall have the obligation to make any
such Servicing Advance (other than a Nonrecoverable Servicing Advance) that it
is so requested by a Special Servicer to make, within five Business Days of such
Master Servicer's receipt of such request. If the request is timely and properly
made, the requesting Special Servicer shall be relieved of any obligations with
respect to a Servicing Advance that it so requests the applicable Master
Servicer to make with respect to any Mortgage Loan or REO Property (regardless
of whether or not the applicable Master Servicer shall make such Servicing
Advance). Each Master Servicer shall be entitled to reimbursement for any
Servicing Advance made by it at the direction of a Special Servicer, together
with Advance Interest in accordance with Sections 3.05(a) and 3.11(g), at the
same time, in the same manner and to the same extent as such Master Servicer is
entitled with respect to any other Servicing Advances made thereby.
Notwithstanding the foregoing provisions of this Section 3.19(b), a
Master Servicer shall not be required to reimburse a Special Servicer for, or to
make at the direction of a Special Servicer, any Servicing Advance if such
Master Servicer determines in its reasonable judgment that such Servicing
Advance, although not characterized by such Special Servicer as a Nonrecoverable
Servicing Advance, is in fact a Nonrecoverable Servicing Advance. Such Master
Servicer shall notify such Special Servicer in writing of such determination
and, if applicable, such Nonrecoverable Servicing Advance shall be reimbursed to
such Special Servicer pursuant to Section 3.05(a).
(c) Promptly following the occurrence of an Appraisal Trigger Event
with respect to any Mortgage Loan, the applicable Special Servicer shall obtain
(or, if such Mortgage Loan has a Stated Principal Balance of $2,000,000 or less,
at such Special Servicer's option, conduct) an Appraisal of the related
Mortgaged Property, unless an Appraisal thereof had previously been obtained
(or, if applicable, conducted) within the preceding 12-month period and there
has been no subsequent material change in the circumstances surrounding the
related Mortgaged Property that, in the reasonable judgment of the applicable
Special Servicer, would materially affect the value of the property, and shall
deliver a copy of such Appraisal to the Trustee, the applicable Master Servicer
and the Controlling Class Representative. If such Appraisal is obtained from a
Qualified Appraiser, the cost thereof shall be covered by, and be reimbursable
to the applicable Master Servicer as, a Servicing Advance. Promptly following
the receipt of, and based upon, such Appraisal, such Special Servicer, in
consultation with the Controlling Class Representative, shall determine and
report to the Trustee, the applicable Master Servicer, any B Loan Holder (with
respect to its related Mortgage Loan) or Washington Center Junior Holder (with
respect to the Washington Center Loan), the then applicable Appraisal Reduction
Amount, if any, with respect to the subject Required Appraisal Loan.
For so long as any Mortgage Loan or REO Mortgage Loan remains a
Required Appraisal Loan, the applicable Special Servicer shall, within 30 days
of each anniversary of such loan having become a Required Appraisal Loan, obtain
(or, if such Required Appraisal Loan has a Stated Principal Balance of
$2,000,000 or less, at such Special Servicer's option, conduct) an update of the
prior Appraisal. If such update is obtained from a Qualified Appraiser, the cost
thereof shall be covered by, and be reimbursable to the applicable Master
Servicer as, a Servicing Advance. Promptly following the receipt of, and based
upon, such update, such Special Servicer shall redetermine, in consultation with
the Controlling Class Representative, and report to the Trustee, the applicable
Master Servicer, any B Loan Holder (with respect to its related Mortgage Loan)
or Washington Center Junior Holder (with respect to the Washington Center Loan),
the then applicable Appraisal Reduction Amount, if any, with respect to the
subject Required Appraisal Loan.
The Controlling Class Representative shall have the right at any
time within six months of the date of the receipt of any Appraisal to require
that the applicable Special Servicer obtain a new Appraisal of the subject
Mortgaged Property in accordance with MAI standards, at the expense of the
Controlling Class Certificateholders or, in respect of the Washington Center
Loan, the Controlling Class Representative of the Washington Center Loan, and
upon receipt of such Appraisal the applicable Special Servicer shall redetermine
the Appraisal Reduction Amount.
(d) [RESERVED]
(e) In connection with each prepayment of principal received
hereunder, the applicable Master Servicer shall calculate any applicable
Prepayment Premium or Yield Maintenance Charge, as the case may be. Promptly
following its determination thereof, the applicable Master Servicer shall
disclose to the Trustee, the Controlling Class Representative, any B Loan Holder
(with respect to its related Mortgage Loan) or Washington Center Junior Holder
(with respect to the Washington Center Loan) and, upon request, any
Certificateholder its calculation of any such Prepayment Premium or Yield
Maintenance Charge, including, in the case of a Yield Maintenance Charge, the
U.S. Treasury rate and, if different, the discount rate used to calculate such
Yield Maintenance Charge.
(f) With respect to each Mortgage Loan that provides for defeasance,
the applicable Master Servicer shall, to the extent permitted by the terms of
such Mortgage Loan, require the related Borrower (i) to provide replacement
collateral consisting of U.S. government securities within the meaning of
Treasury Regulations Section 1.860G-2(a)(8)(i) in an amount sufficient to make
all scheduled payments under the Mortgage Loan (or defeased portion thereof)
when due (and assuming, in the case of an ARD Mortgage Loan, to the extent
consistent with the related Mortgage Loan Documents, that such Mortgage Loan
matures on its Anticipated Repayment Date), (ii) to deliver a certificate from
an independent certified public accounting firm certifying that the replacement
collateral is sufficient to make such payments, (iii) at the option of the
applicable Master Servicer, to designate a single purpose entity (which may be a
subsidiary of such Master Servicer established for the purpose of assuming all
defeased Mortgage Loans) to assume the Mortgage Loan (or defeased portion
thereof) and own the defeasance collateral, (iv) to implement such defeasance
only after the second anniversary of the Closing Date, (v) to provide an Opinion
of Counsel that the Trustee has a perfected, first priority security interest in
the new collateral, and (vi) in the case of a partial defeasance of the Mortgage
Loan, to defease a principal amount equal to at least 125% of the allocated loan
amount for the Mortgaged Property or Properties to be released. If the subject
Mortgage Loan has a Cut-off Date Principal Balance less than $20,000,000 and an
outstanding principal balance less than 2% of the then aggregate Stated
Principal Balance of the Mortgage Pool and is not one of the 10 largest Mortgage
Loans then in the Trust Fund, and if either the terms of the subject Mortgage
Loan permit the applicable Master Servicer to impose the foregoing requirements
or such Master Servicer satisfies such requirements on its own, then
confirmation that such defeasance will not result in an Adverse Rating Event is
not required so long as the applicable Master Servicer delivers to S&P a
certification in the form attached hereto as Exhibit N. In such case, the
applicable Master Servicer shall provide the Rating Agencies and the Controlling
Class Representative with notice that the foregoing requirements have been met
with respect to the subject Mortgage Loan. However, if the subject Mortgage Loan
has a Cut-off Date Principal Balance greater than or equal to $20,000,000 or an
outstanding principal balance greater than or equal to 2% of the aggregate
Stated Principal Balance of the Mortgage Pool or is one of the 10 largest
Mortgage Loans then in the Trust Fund, or if the terms of the subject Mortgage
Loan do not permit such Master Servicer to impose such requirements and such
Master Servicer does not satisfy such requirements on its own, then such Master
Servicer shall so notify the Rating Agencies and the Controlling Class
Representative and, so long as such a requirement would not violate applicable
law or the Servicing Standard, obtain a confirmation that such defeasance will
not result in an Adverse Rating Event. Subject to the related Mortgage Loan
Documents and applicable law, the applicable Master Servicer shall not execute a
defeasance unless (i) the subject Mortgage Loan requires the Borrower to pay all
Rating Agency fees associated with defeasance (if Rating Agency confirmation of
no-downgrade is a specific condition precedent thereto) and all expenses
associated with defeasance or other arrangements for payment of such costs are
made at no expense to the Trust Fund or the applicable Master Servicer
(provided, however, that in no event shall such proposed "other arrangements"
result in any liability to the Trust Fund including any indemnification of the
applicable Master Servicer or the applicable Special Servicer which may result
in legal expenses to the Trust Fund), and (ii) the Borrower is required to
provide all Opinions of Counsel, including Opinions of Counsel that the
defeasance will not cause an Adverse REMIC Event or an Adverse Grantor Trust
Event and that the Mortgage Loan Documents are fully enforceable in accordance
with their terms (subject to bankruptcy, insolvency and similar standard
exceptions), and any applicable rating confirmations.
(g) The applicable Master Servicer shall, as to each Mortgage Loan
which is secured by the interest of the related Borrower under a Ground Lease,
promptly (and in any event within 45 days) after the Closing Date notify the
related ground lessor of the transfer of such Mortgage Loan to the Trust
pursuant to this Agreement and inform such ground lessor that any notices of
default under the related Ground Lease should thereafter be forwarded to the
applicable Master Servicer.
(h) If a Mortgage Loan provides or allows that the related
Borrower's failure to make any Monthly Payment due thereunder on the applicable
Due Date will not result in an event of default for which such Mortgage Loan may
be accelerated and/or, except in the case of a Co-op Mortgage Loan, accrue
Default Charges unless and until the applicable Master Servicer notifies such
Borrower of the failure or the elapse of a specified number of days following
such Master Servicer's delivery of such notice, then such Master Servicer shall
promptly (and in any event within two Business Days following the applicable Due
Date) notify the related Borrower of such a failure. If a Co-op Mortgage Loan
provides or allows that the related Borrower's failure to make any Monthly
Payment due thereunder on the applicable Due Date will not result in an event of
default for which such Mortgage Loan may accrue Default Charges unless and until
the applicable Master Servicer notifies such Borrower of the failure or the
elapse of a specified number of days following the applicable Master Servicer's
delivery of such notice, then the applicable Master Servicer shall, in
accordance with such Master Servicer's customary practices and in accordance
with the Servicing Standard, notify the related Borrower of such a failure.
Section 3.20 Modifications, Waivers, Amendments and Consents
(a) Each Special Servicer, solely as to a Specially Serviced
Mortgage Loan for which it acts as Special Servicer) or each Master Servicer
(solely as to a Performing Mortgage Loan for which it acts as Master Servicer)
may (consistent with the Servicing Standard) agree to any modification, waiver
or amendment of any term of, extend the maturity of, defer or forgive interest
(including Default Interest and Post-ARD Additional Interest) on and principal
of, defer or forgive late payment charges, Prepayment Premiums and Yield
Maintenance Charges on, permit the release, addition or substitution of
collateral securing, and/or permit the release, addition or substitution of the
Borrower on or any guarantor of, any Mortgage Loan, and/or provide consents with
respect to any leasing activity at a Mortgaged Property securing any Mortgage
Loan; provided, that the Master Servicers' and the Special Servicers' respective
rights to do so shall be subject to Sections 3.08, 3.23, 3.24 and 3.27 (and, in
the case of any A Loan, B Loan or C Loan, subject to the terms of the related
A/B Intercreditor Agreement) and, further, to each of the following limitations,
conditions and restrictions:
(i) other than as provided in Sections 2.03(b), 3.02(a) (relating to
waiver of Default Charges), 3.08, 3.20(f) and 3.20(g), the applicable
Master Servicer shall not agree to any modification, waiver, forbearance
or amendment of any term of, or take any of the other acts referenced in
this Section 3.20(a) with respect to, any Mortgage Loan, that would affect
the amount or timing of any related payment of principal, interest or
other amount payable under such Mortgage Loan or impair the security for
such Mortgage Loan, unless such Master Servicer has obtained the consent
of the applicable Special Servicer (it being understood and agreed that
(A) such Master Servicer shall promptly provide the applicable Special
Servicer with notice of any Borrower request for such modification,
waiver, forbearance or amendment, such Master Servicer's recommendations
and analysis, and with all information reasonably available to such Master
Servicer that the applicable Special Servicer may reasonably request in
order to withhold or grant any such consent, (B) the applicable Special
Servicer shall decide whether to withhold or grant such consent in
accordance with the Servicing Standard and (C) if any such consent has not
been expressly denied within 10 Business Days (or, in the case of consents
relating to leasing activities at Mortgaged Properties securing KeyBank
Mortgage Loans and NCBFSB Mortgage Loans, within 3 Business Days) of the
applicable Special Servicer's receipt from such Master Servicer of such
Master Servicer's recommendations and analysis and all information
reasonably requested thereby and reasonably available to such Master
Servicer in order to make an informed decision (or, if the applicable
Special Servicer did not request any information, within 10 Business Days
from such notice), such consent shall be deemed to have been granted);
(ii) other than as provided in Sections 3.02(a), 3.08 and 3.20(f),
the applicable Special Servicer shall not agree to (or, in the case of a
Performing Mortgage Loan, consent to the applicable Master Servicer's
agreeing to, which consent shall be deemed given if not denied in writing
within 10 Business Days) any modification, waiver or amendment of any term
of, or take (or, in the case of a Performing Mortgage Loan, consent to the
applicable Master Servicer's taking) any of the other acts referenced in
this Section 3.20(a) with respect to, any Mortgage Loan that would affect
the amount or timing of any related payment of principal, interest or
other amount payable thereunder or, in the reasonable judgment of such
Special Servicer, would materially impair the security for such Mortgage
Loan, unless a material default on such Mortgage Loan has occurred or, in
the reasonable judgment of such Special Servicer, a default in respect of
payment on such Mortgage Loan is reasonably foreseeable, and such
modification, waiver, amendment or other action is reasonably likely to
produce a greater recovery to Certificateholders, any B Loan Holder or
Washington Center Junior Holder (as a collective whole) on a present value
basis (the relevant discounting of anticipated collections that will be
distributable to Certificateholders to be done at the related Net Mortgage
Rate), than would liquidation;
(iii) the applicable Special Servicer shall not extend (or, in the
case of a Performing Mortgage Loan, consent to the applicable Master
Servicer's extending, which consent shall be deemed given if not denied in
writing within 10 Business Days) the date on which any Balloon Payment is
scheduled to be due on any Mortgage Loan to a date beyond the earliest of
(A) the fifth anniversary of such Mortgage Loan's Stated Maturity Date,
(B) two years prior to the Rated Final Distribution Date, (C) if such
Mortgage Loan is secured by a Mortgage solely or primarily on the related
Borrower's leasehold interest in the related Mortgaged Property, 20 years
(or, to the extent consistent with the Servicing Standard, giving due
consideration to the remaining term of the Ground Lease, 10 years) prior
to the end of the then current term of the related Ground Lease (plus any
unilateral options to extend), and (D) if such Mortgage Loan is covered by
an Environmental Insurance Policy, two years prior to the expiration of
the term of such policy unless the applicable Special Servicer shall have
first determined in its reasonable judgment, based upon a Phase I
Environmental Assessment (and any additional environmental testing that
the applicable Special Servicer deems necessary and prudent) conducted by
an Independent Person who regularly conducts Phase I Environmental
Assessments, and at the expense of the Borrower, that there are no
circumstances or conditions present at the related Mortgaged Property for
which investigation, testing, monitoring, containment, clean-up or
remediation would be required under any then applicable environmental laws
or regulations;
(iv) neither the applicable Master Servicer nor the applicable
Special Servicer shall make or permit any modification, waiver or
amendment of any term of, or take any of the other acts referenced in this
Section 3.20(a) with respect to, any Mortgage Loan that would result in an
Adverse REMIC Event with respect to any Trust REMIC or an Adverse Grantor
Trust Event with respect to the Grantor Trust;
(v) subject to applicable law, the related Mortgage Loan Documents
and the Servicing Standard, neither the applicable Master Servicer nor the
applicable Special Servicer shall permit any modification, waiver or
amendment of any term of any Performing Mortgage Loan unless all related
fees and expenses are paid by the Borrower;
(vi) neither the applicable Special Servicer nor the applicable
Master Servicer shall permit (and, in the case of a Performing Mortgage
Loan, the applicable Special Servicer shall not consent to the applicable
Master Servicer's permitting, which consent shall be deemed given if not
denied in writing within 10 Business Days) any Borrower to add or
substitute any real estate collateral for its Mortgage Loan unless the
applicable Special Servicer shall have first (A) determined in its
reasonable judgment, based upon a Phase I Environmental Assessment (and
any additional environmental testing that such Special Servicer deems
necessary and prudent) conducted by an Independent Person who regularly
conducts Phase I Environmental Assessments, at the expense of the related
Borrower, that such additional or substitute collateral is in compliance
with applicable environmental laws and regulations and that there are no
circumstances or conditions present with respect to such new collateral
relating to the use, management or disposal of any Hazardous Materials for
which investigation, testing, monitoring, containment, clean-up or
remediation would be required under any then applicable environmental laws
or regulations and (B) received, at the expense of the related Borrower,
written confirmation from each Rating Agency that such addition or
substitution of collateral will not, in and of itself, result in an
Adverse Rating Event with respect to any Class of Rated Certificates; and
(vii) neither the applicable Special Servicer nor the applicable
Master Servicer shall release (and, in the case of a Performing Mortgage
Loan, the applicable Special Servicer shall not consent to the applicable
Master Servicer's releasing, which consent shall be deemed given if not
denied in writing within 10 Business Days), including in connection with a
substitution contemplated by clause (vi) above, any real property
collateral securing an outstanding Mortgage Loan, except as provided in
Section 3.09(d) or 3.20(g) or except in connection with a permitted
defeasance, or except where a Mortgage Loan (or, in the case of a
Cross-Collateralized Group, where such entire Cross-Collateralized Group)
is satisfied, or except in the case of a release of real property
collateral provided (A) the Rating Agencies have been notified in writing,
(B) either (1) such release will not, in the reasonable judgment of such
Special Servicer, materially and adversely affect the net operating income
being generated by or the then-current use of the related Mortgaged
Property, or (2) there is a corresponding principal pay down of such
Mortgage Loan in an amount at least equal to the appraised value of the
collateral to be released (or substitute real property collateral with an
appraised value at least equal to that of the collateral to be released,
is delivered), (C) the release does not materially adversely affect the
adequacy of the remaining Mortgaged Property (together with any substitute
real property collateral), in the reasonable judgment of such Special
Servicer, as security for the remaining Mortgage Loan and (D) if the real
property collateral to be released has an appraised value in excess of
$1,500,000, such release would not, in and of itself, result in an Adverse
Rating Event with respect to any Class of Rated Certificates (as confirmed
in writing to the Trustee by each Rating Agency);
provided, that the limitations, conditions and restrictions set forth in clauses
(i) through (vii) above shall not apply to any act or event (including, without
limitation, a release, substitution or addition of collateral) in respect of any
Mortgage Loan that either occurs automatically, or results from the exercise of
a unilateral option by the related Borrower within the meaning of Treasury
Regulations Section 1.1001-3(c)(2)(iii), in any event under the terms of such
Mortgage Loan in effect on the Closing Date (or, in the case of a Replacement
Mortgage Loan, on the related date of substitution); and provided, further,
that, notwithstanding clauses (i) through (vii) above, neither the applicable
Master Servicer nor the applicable Special Servicer shall be required to oppose
the confirmation of a plan in any bankruptcy or similar proceeding involving a
Borrower if, in its reasonable judgment, such opposition would not ultimately
prevent the confirmation of such plan or one substantially similar; and
provided, further, that, notwithstanding clause (vii) above, neither the
applicable Master Servicer nor the applicable Special Servicer shall be required
to obtain any confirmation of the Certificate ratings from the Rating Agencies
in order to grant easements or rights of way that do not materially affect the
use or value of a Mortgaged Property or the Borrower's ability to make any
payments with respect to the related Mortgage Loan.
(b) Neither of the Special Servicers and neither of the Master
Servicers shall have any liability to the Trust, the Certificateholders or any
other Person if its analysis and determination that the modification, waiver,
amendment or other action contemplated by Section 3.20(a) is reasonably likely
to produce a greater recovery to Certificateholders and with respect to the 000
Xxxxx Xxxxxx Loan or the Washington Center Loan, the B Loan Holder and each
Washington Center Junior Holder, respectively, as a collective whole (taking
into account the subordination of the B Loan to the related Mortgage Loan and,
in the case of the Washington Center Total Loan, the subordination of the C Loan
to the related B Loan and the Washington Center Loan), on a present value basis
than would liquidation should prove to be wrong or incorrect, so long as the
analysis and determination were made on a reasonable basis by such Special
Servicer and/or such Master Servicer, and consistent with the Servicing
Standard.
(c) Any payment of interest, which is deferred pursuant to Section
3.20(a), shall not, for purposes of calculating monthly distributions and
reporting information to Certificateholders, be added to the unpaid principal
balance or Stated Principal Balance of the related Mortgage Loan,
notwithstanding that the terms of such Mortgage Loan so permit or that such
interest may actually be capitalized; provided, however, that this sentence
shall not limit the rights of the applicable Master Servicer or the applicable
Special Servicer on behalf of the Trust to enforce any obligations of the
related Borrower under such Mortgage Loan.
(d) Each Master Servicer and each Special Servicer may, as a
condition to its granting any request by a Borrower for consent, modification,
waiver or indulgence or any other matter or thing, the granting of which is
within the discretion of such Master Servicer's or such Special Servicer's, as
the case may be, pursuant to the terms of the related Mortgage Loan Documents
and is permitted by the terms of this Agreement, require that such Borrower pay
to it a reasonable or customary fee (which shall in no event exceed 1.0% of the
unpaid principal balance of the related Mortgage Loan) for the additional
services performed in connection with such request, together with any related
costs and expenses incurred by it; provided that the charging of such fee that
is not otherwise provided for by the terms of the Mortgage Loan does not
constitute a "significant modification" of the Mortgage Loan pursuant to
Treasury Regulations Section 1.860G-2(b). All such fees collected by a Master
Servicer and/or a Special Servicer with respect to any Mortgage Loan shall be
allocable between such parties, as Additional Master Servicing Compensation and
Additional Special Servicing Compensation, respectively, as provided in Section
3.11.
(e) All modifications, amendments, material waivers and other
material actions entered into or taken in respect of the Mortgage Loans pursuant
to this Section 3.20 (other than waivers of Default Charges), and all consents,
shall be in writing; provided, that with respect to the 000 Xxxxx Xxxxxx Loan
and the Washington Center Loan, the waiver of Default Charges shall be in
writing if there is no Additional Master Servicing Compensation or Additional
Special Servicing Compensation to offset any outstanding Advance Interest;
provided, further, that with respect to the Mortgage Loans identified on the
Mortgage Loan Schedule as One Penn Center and The Crossings, to the extent
permitted under the related Loan Documents, the applicable Master Servicer shall
not consent to any amendment of the organizational documents of the related
Borrower or any of its members or partners, as applicable, without obtaining
written confirmation from S&P that such amendment would not cause an Adverse
Rating Event. Each Special Servicer and each Master Servicer shall notify the
other such applicable party, each Rating Agency, the Trustee and the Controlling
Class Representative and, with respect to the 000 Xxxxx Xxxxxx Loan and the
Washington Center Loan, the 000 Xxxxx Xxxxxx X Loan Holder and each Washington
Junior Holder, respectively, in writing, of any modification, waiver, amendment
or other action entered into or taken thereby in respect of any Mortgage Loan
pursuant to this Section 3.20 that would affect the timing, payment or other
material terms of or otherwise materially impair the security for the subject
Mortgage Loan (other than waivers of Default Charges) and the date thereof, and,
in any event, shall deliver to the Trustee or the related Custodian for deposit
in the related Mortgage File (with a copy to the other such party), an original
counterpart of the agreement relating to such modification, waiver, amendment or
other action, promptly (and in any event within ten Business Days) following the
execution thereof. In addition, following the execution of any modification,
waiver or amendment agreed to by the applicable Special Servicer or by a Master
Servicer with the consent of the applicable Special Servicer, as appropriate,
pursuant to Section 3.20(a) above, the applicable Special Servicer or the
applicable Master Servicer, as applicable, shall deliver to the other such
party, the Trustee and the Rating Agencies an Officer's Certificate certifying
that all of the requirements of Section 3.20(a) have been met and, in the case
of the applicable Special Servicer, setting forth in reasonable detail the basis
of the determination made by it pursuant to Section 3.20(a)(ii).
(f) With respect to any ARD Mortgage Loan after its Anticipated
Repayment Date, the applicable Master Servicer shall be permitted, with the
consent of the applicable Special Servicer (which consent shall be deemed
granted if not denied in writing within 10 Business Days after receipt of the
applicable Master Servicer's request therefor), to waive (such waiver to be in
writing addressed to the related Borrower, with a copy to the Trustee) all or
any portion of the accrued Post-ARD Additional Interest in respect of such ARD
Mortgage Loan if (i) such ARD Mortgage Loan is a Performing Mortgage Loan, (ii)
the related Borrower has requested the right to prepay such ARD Mortgage Loan in
full together with all payments required by the related Mortgage Loan Documents
in connection with such prepayment except for such accrued Post-ARD Additional
Interest, and (iii) the applicable Master Servicer has determined, in its
reasonable judgment, that waiving such Post-ARD Additional Interest is in
accordance with the Servicing Standard. The applicable Master Servicer shall
prepare all documents necessary and appropriate to effect any such waiver and
shall coordinate with the related Borrower for the execution and delivery of
such documents.
(g) Notwithstanding anything in this Section 3.20 or in Section 3.08
or Section 3.24 (but subject to Section 3.27) to the contrary, a Master Servicer
shall not be required to seek the consent of, or provide prior notice to, the
applicable Special Servicer or any Certificateholder (including the Controlling
Class Representative) or obtain any confirmation of the Certificate ratings from
the Rating Agencies in order to approve the following modifications, waivers or
amendments of the Mortgage Loans (but, in the case of the actions described in
clauses (iii) and (iv) of this sentence, shall notify the Controlling Class
Representative thereof): (i) waivers of minor covenant defaults (other than
financial covenants), including late financial statements; (ii) waivers of
Default Charges, to the extent allowed under Section 3.02, and permitting
subordinate debt with respect to Co-op Mortgage Loans as to which the NCBFSB
Subordinate Debt Conditions have been satisfied, in accordance with Section
3.08; (iii) releases of parcels of a Mortgaged Property (provided that any such
releases (A) are releases as to which the related Mortgage Loan Documents
expressly require the Mortgagee thereunder to make such releases upon the
satisfaction of certain conditions and such releases shall be made as required
by the Mortgage Loan Documents, or (B) are related to any pending or threatened
condemnation action); (iv) grants of easements or rights of way that do not
materially affect the use or value of a Mortgaged Property or the Borrower's
ability to make any payments with respect to the related Mortgage Loan; (v) if
the subject Mortgage Loan is (A) not a KeyBank Mortgage Loan or NCBFSB Mortgage
Loan, approval of routine leasing activities that affect less than the lesser of
30% of the net rentable area of the related Mortgaged Property or 30,000 square
feet of the related Mortgaged Property, (B) a KeyBank Mortgage Loan or NCBFSB
Mortgage Loan with an unpaid principal balance of greater than $3,000,000,
approval of routine leasing activities that affect less than 30,000 square feet
of the related Mortgaged Property, or (C) a KeyBank Mortgage Loan or NCBFSB
Mortgage Loan with an unpaid principal balance of $3,000,000 or less, approval
of any routine leasing activity; (vi) approval of annual budgets to operate the
Mortgaged Property; and (vii) temporary waivers of any requirements in the
related Mortgage Loan Documents with respect to insurance deductible amounts or
claims-paying ability ratings of insurance providers; provided that any such
modification, waiver or amendment, or agreeing to any such modification, waiver
or amendment, (w) would not in any way affect a payment term of the
Certificates, any B Loan or Washington Center Junior Loan, (x) would not
constitute a "significant modification" of such Mortgage Loan pursuant to
Treasury Regulations Section 1.860G-2(b) and would not otherwise constitute an
Adverse REMIC Event with respect to any Trust REMIC or an Adverse Grantor Trust
Event with respect to the Grantor Trust, (y) would be consistent with the
Servicing Standard, and (z) shall not violate the terms, provisions or
limitations of this Agreement or any other document contemplated hereby.
(h) The applicable Master Servicer shall not terminate or replace,
or consent to the termination or replacement of, any property manager with
respect to any Mortgaged Property, and the applicable Master Servicer shall not
terminate or change or consent to the termination or change of the franchise for
any Mortgage Property operated as a hospitality property, in any event without
the prior written consent of the applicable Special Servicer (it being
understood and agreed that (A) such Master Servicer shall promptly provide such
Special Servicer with its analysis, recommendations and all information that
such Special Servicer may reasonably request and which information is in the
possession of such Master Servicer, in order to withhold or grant any such
consent, (B) subject to Section 3.24 and Section 3.27, such Special Servicer
shall decide whether to withhold or grant such consent in accordance with the
Servicing Standard, (C) if any such consent has not been expressly denied within
10 Business Days of such Special Servicer's receipt from such Master Servicer of
such analysis, recommendation and all information reasonably requested thereby
in order to make an informed decision (or, if such Special Servicer did not
request any information, within 10 Business Days from such notice), such consent
shall be deemed to have been granted and (D) such consent shall not be required
with respect to Co-op Mortgage Loans that are Performing Mortgage Loans);
provided, that in the case of the Mortgage Loans identified on the Mortgage Loan
Schedule as One Penn Center and The Crossings, to the extent permitted under the
related Loan Documents, the applicable Master Servicer shall not terminate or
replace, or consent to the termination or replacement of, any property manager
with respect to the related Mortgaged Property, unless it has received written
confirmation from S&P that an Adverse Rating Event would not occur if the
applicable Master Servicer terminated or replaced such property manager or
consented to such termination or replacement.
(i) In connection with granting an extension of the maturity date of
any Mortgage Loan in accordance with Section 3.20(a), the applicable Special
Servicer, in the case of a Specially Serviced Mortgage Loan, and the applicable
Master Servicer, in the case of a Performing Mortgage Loan, shall each cause the
related Borrower to agree, if it has not already done so pursuant to the
existing Mortgage Loan Documents, to thereafter deliver to the applicable
Special Servicer, the Controlling Class Representative and, upon request, the
Trustee annual audited operating statements and quarterly unaudited operating
statements with respect to the related Mortgaged Property, provided that the
applicable Special Servicer or the applicable Master Servicer, as the case may
be, may, in its sole discretion, waive the requirement that such statements be
audited.
(j) Notwithstanding anything in this Agreement, including this
Section 3.20, to the contrary, for so long as the applicable Master Servicer and
the applicable Special Servicer are the same Person, the applicable Master
Servicer shall not be obligated to obtain the consent or approval of the
applicable Special Servicer as otherwise required in this Agreement but shall
instead be required to request the consent or approval of the Controlling Class
Representative (in respect of any matter as to which such consent is otherwise
required hereunder) to the extent, and on the same terms, subject to the same
limitations, restrictions and exclusions and within the same time periods as,
the applicable Special Servicer is required to request such consent or approval
of the Controlling Class Representative pursuant to Section 3.24 or Section
3.27, as applicable, or any other section or provision of this Agreement.
(k) None of the Master Servicer, the Special Servicer or the Trustee
shall agree to any amendment or supplement to or modification or termination of
either Great Lakes Crossing Intercreditor Agreement or any Great Lakes Crossing
Servicing Agreement unless (i) it shall have obtained (A) the consent of the
Controlling Class Representative (which consent shall be deemed given if the
subject servicing action is not disapproved by the Controlling Class
Representative within 10 Business Days) and (B) written confirmation from each
Rating Agency that such amendment, supplement or modification will not result in
an Adverse Rating Event with respect to any Class of Rated Certificates and (ii)
it shall have received an Opinion of Counsel to the effect that such amendment,
supplement or modification will not result in an Adverse REMIC Event or an
Adverse Grantor Trust Event.
Section 3.21 Transfer of Servicing Between Applicable Master
Servicer and Applicable Special Servicer; Record Keeping
(a) Upon determining that a Servicing Transfer Event has occurred
with respect to any Mortgage Loan, the applicable Master Servicer shall
immediately give notice thereof to the Controlling Class Representative, and if
the applicable Master Servicer is not also the applicable Special Servicer, such
Master Servicer shall immediately give notice thereof to the applicable Special
Servicer, the Trustee and the Controlling Class Representative, shall deliver
the related Servicing File to the applicable Special Servicer and shall use its
best efforts to provide such Special Servicer with all information, documents
(or copies thereof) and records (including records stored electronically on
computer tapes, magnetic discs and the like) relating to the Mortgage Loan and
reasonably requested by the applicable Special Servicer to enable it to assume
its functions hereunder with respect thereto without acting through a
Sub-Servicer. To the extent such is in the possession of the applicable Master
Servicer or any Sub-Servicer thereof, the information, documents and records to
be delivered by such Master Servicer to the applicable Special Servicer pursuant
to the prior sentence shall include, but not be limited to, financial
statements, appraisals, environmental/engineering reports, leases, rent rolls
(or, in the case of a residential cooperative property, maintenance schedules),
title insurance policies, UCC's and tenant estoppels. The applicable Master
Servicer shall use its best efforts to comply with the preceding two sentences
within five Business Days of the occurrence of each related Servicing Transfer
Event. No later than ten Business Days before the applicable Master Servicer is
required to deliver a copy of the related Servicing File to the applicable
Special Servicer, it shall review such Servicing File and request from the
Trustee any material documents that it is aware are missing from such Servicing
File. Any B Loan or Washington Center Junior Loan shall constitute a Specially
Serviced Mortgage Loan for which the applicable Special Servicer is responsible
for so long as the related A Loan is a Specially Serviced Mortgage Loan.
Upon determining that a Specially Serviced Mortgage Loan has become
a Corrected Mortgage Loan and if the applicable Master Servicer is not also the
applicable Special Servicer, such Special Servicer shall immediately give notice
thereof to the applicable Master Servicer, the Trustee and the Controlling Class
Representative and shall return the related Servicing File within five Business
Days, to the applicable Master Servicer. Upon giving such notice and returning
such Servicing File to the applicable Master Servicer, such Special Servicer's
obligation to service such Mortgage Loan, and such Special Servicer's right to
receive the Special Servicing Fee with respect to such Mortgage Loan, shall
terminate, and the obligations of the applicable Master Servicer to service and
administer such Mortgage Loan shall recommence. With respect to the 000 Xxxxx
Xxxxxx Loan and the Washington Center Loan, in determining whether such Mortgage
Loan has become a Corrected Mortgage Loan, the related B Loan and Washington
Center Junior Loans, respectively, must also be determined to be a Corrected
Mortgage Loan for the Special Servicer's obligation to terminate for such
Mortgage Loan. Any CBA B Loan shall constitute a Specially Serviced Mortgage
Loan for which the Special Servicer is responsible for so long as the related
CBA A Loan is a Specially Serviced Mortgage Loan.
Notwithstanding anything herein to the contrary, in connection with
the transfer to the applicable Special Servicer of the servicing of a
Cross-Collateralized Mortgage Loan as a result of a Servicing Transfer Event or
the re-assumption of servicing responsibilities by the applicable Master
Servicer with respect to any such Mortgage Loan upon its becoming a Corrected
Mortgage Loan, such Master Servicer and such Special Servicer shall each
transfer to the other, as and when applicable, the servicing of all other
Cross-Collateralized Mortgage Loans constituting part of the same
Cross-Collateralized Group; provided that no Cross-Collateralized Mortgage Loan
may become a Corrected Mortgage Loan at anytime that a continuing Servicing
Transfer Event exists with respect to another Cross-Collateralized Mortgage Loan
in the same Cross-Collateralized Group.
(b) In servicing any Specially Serviced Mortgage Loan, the
applicable Special Servicer shall provide to the Trustee originals of documents
contemplated by the definition of "Mortgage File" and generated while such
Mortgage Loan is a Specially Serviced Mortgage Loan, for inclusion in the
related Mortgage File (with a copy of each such original to the applicable
Master Servicer), and copies of any additional related Mortgage Loan
information, including correspondence with the related Borrower generated while
such Mortgage Loan is a Specially Serviced Mortgage Loan.
(c) Each Master Servicer and each Special Servicer shall furnish to
each other, upon reasonable request, such reports, documents, certifications and
information in its possession, and access to such books and records maintained
thereby, as may relate to any Mortgage Loan or REO Property and as shall be
reasonably required by the requesting party in order to perform its duties
hereunder.
(d) In connection with the performance of its obligations hereunder
with respect to any Mortgage Loan or REO Property, each Master Servicer and each
Special Servicer shall be entitled to rely upon written information provided to
it by the other.
(e) With respect to the 000 Xxxxx Xxxxxx Total Loan and the
Washington Center Total Loan, no later than 45 days after receipt by the Special
Servicer of the information reasonably required by the Special Servicer after a
Servicing Transfer Event for the 000 Xxxxx Xxxxxx Loan and the Washington Center
Loan, the Special Servicer shall deliver a report to the related B Loan Holder
or in the case of the Washington Center Total Loan, the Washington Center Junior
Holders, and Controlling Class Representative. In addition, for so long as the
Mortgage Loan is a Specially Serviced Mortgage Loan, with respect to any item in
any such previously delivered report that changes in any material respect
(whether as a result of a new determination, new information or otherwise), the
applicable Special Servicer shall use its best efforts to prepare or cause to be
prepared, a revised report within fifteen (15) Business Days after the date of
such determination or the receipt of such new information by the applicable
Special Servicer, but in any event no later than thirty (30) Business Days after
the receipt of such information. Such report shall set forth the following
information to the extent reasonably determinable:
(i) summary of the status of such Specially Serviced Mortgage Loan;
(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 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;
(iv) the Appraised Value of the Mortgaged Property together with the
assumptions used in the calculation thereof;
(v) the recommendations by the Special Servicer as to how such
Specially Serviced Mortgage Loan might be returned to performing status
and returned to the Master Servicer for regular servicing or otherwise
realized upon;
(vi) a summary of any proposed actions and an analysis of whether or
not taking such action is reasonably likely to produce a greater recovery
on a present value basis than not taking such action, setting forth the
basis on which the Special Servicer made such determination;
(vii) the status of any foreclosure actions or other proceedings
undertaken with respect to such mortgaged real property, any proposed
workouts with respect thereto and the status of any negotiations with
respect to such workouts, and an assessment of the likelihood of
additional events of default thereon; and
(viii) such other information as the Special Servicer deems relevant
in light of the Servicing Standard.
Section 3.22 Sub-Servicing Agreements
(a) Each Master Servicer and, subject to Section 3.22(f), Special
Servicer may enter into Sub-Servicing Agreements to provide for the performance
by third parties of any or all of their respective obligations hereunder
(including the performance on a regular basis by third parties of discrete tasks
in respect of a discrete number of assets), provided that, in each case, the
Sub-Servicing Agreement, including any amendments thereto and modifications
thereof: (i) insofar as it affects the Trust, is consistent with this Agreement,
including Section 7.01(a), in all material respects and requires the subject
Sub-Servicer to comply in all material respects with all of the applicable
conditions of this Agreement; (ii) provides that if such Master Servicer or such
Special Servicer, as the case may be, shall for any reason no longer act in such
capacity hereunder (including by reason of an Event of Default), the Trustee or
its designee or any other successor to such Master Servicer or such Special
Servicer, as the case may be, may thereupon assume all of the rights and, except
to the extent they arose prior to the date of assumption, obligations of such
Master Servicer or such Special Servicer, as the case may be, under such
agreement or, alternatively, may terminate such Sub-Servicing Agreement without
cause and without payment of any penalty or termination fee (provided, however,
that a Designated Sub-Servicer Agreement may not be terminated except for cause,
which will include the occurrence of any Adverse Rating Event resulting from the
subject Sub-Servicer's acting in such capacity); (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 such Master Servicer or Special
Servicer, as the case may be, thereunder as contemplated by the immediately
preceding clause (ii), and except with respect to the obligations of any
successor Master Servicer under the Designated Sub-Servicer Agreements) none of
the Trustee, any successor to such 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 except as explicitly set forth herein; (iv)
permits any purchaser of a Mortgage Loan pursuant to this Agreement to terminate
such agreement with respect to such purchased Mortgage Loan at its option and
without penalty; (v) does not permit the subject Sub-Servicer to foreclose on a
Mortgaged Property or to enter into or consent to any modification, waiver or
amendment or otherwise take any action on behalf of such Master Servicer or
Special Servicer, as the case may be, contemplated by Section 3.08, 3.09 and/or
Section 3.20 hereof, without the consent of such Master Servicer or Special
Servicer, as the case may be, and in any event except on the same terms and
conditions as would be applicable if such Master Servicer or Special Servicer,
as the case may be, took such action; and (vi) does not permit the subject
Sub-Servicer any rights of indemnification out of the Trust Fund except through
such Master Servicer or Special Servicer, as the case may be, pursuant to
Section 6.03; provided that the appointment by such Master Servicer or Special
Servicer of a third-party contractor for the purpose of performing discrete,
ministerial functions shall not be subject to this Section 3.22 (except that
such Master Servicer or Special Servicer, as the case may be, shall remain
responsible for the actions of such third-party contractors and shall pay all
fees and expenses of such third-party contractors, unless otherwise expressly
provided herein). No Sub-Servicing Agreement entered into by a Master Servicer
shall purport to delegate or effectively delegate to the related Sub-Servicer
any of the rights or obligations of a Special Servicer with respect to any
Specially Serviced Mortgage Loan or otherwise. Each Sub-Servicing Agreement
entered into by a Special Servicer shall relate only to Specially Serviced
Mortgage Loans and any REO Properties as to which such Special Servicer acts as
Special Servicer and shall not purport to delegate or effectively delegate to
the related Sub-Servicer any of the rights or obligations of a Master Servicer
with respect to any Mortgage Loan, including any Specially Serviced Mortgage
Loan. Each Master Servicer and each Special Servicer shall each notify the
Trustee, the Controlling Class Representative and the Depositor in writing
promptly of the appointment by it of any Sub-Servicer. Each Master Servicer and
each Special Servicer shall deliver to the Trustee 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 a Master Servicer or a Special
Servicer include actions taken or to be taken by a Sub-Servicer on behalf of a
Master Servicer or a Special Servicer, as the case may be; and, in connection
therewith, all amounts advanced by any Sub-Servicer to satisfy the obligations
of a Master Servicer or a Special Servicer hereunder to make Advances shall be
deemed to have been advanced by such Master Servicer or such Special Servicer,
as the case may be, out of its own funds and, accordingly, such Advances shall
be recoverable by such Sub-Servicer in the same manner and out of the same funds
as if such Sub-Servicer were such Master Servicer or such Special Servicer, as
the case may be. Such Advances shall accrue interest in accordance with Sections
3.11(g) and/or 4.03(d), such interest to be allocable between the applicable
Master Servicer or the applicable Special Servicer, as the case may be, and such
Sub-Servicer as they may agree. For purposes of this Agreement, each Master
Servicer and each Special Servicer shall be deemed to have received any payment
when a Sub-Servicer retained by it receives such payment.
(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 to ensure the
enforceability of the subject Mortgage Loans and to avoid any loss or liability
to the Master Servicers, the Special Servicers or the Trust.
(c) Each Master Servicer and each Special Servicer, for the benefit
of the Trustee and the Certificateholders, shall (at no expense to the other
such party hereto or to the Certificateholders or the Trust) monitor the
performance and enforce the obligations of their respective Sub-Servicers under
the related Sub-Servicing Agreements. Such enforcement, including 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 such
Master Servicer or such Special Servicer, as applicable, in its reasonable
judgment, would require were it the owner of the subject Mortgage Loans. Subject
to the terms of the related Sub-Servicing Agreement, including any provisions
thereof limiting the ability of such Master Servicer or such Special Servicer,
as applicable, to terminate a Sub-Servicer, such Master Servicer and such
Special Servicer shall each have the right to remove a Sub-Servicer retained by
it at any time it considers such removal to be in the best interests of
Certificateholders.
(d) If a Master Servicer or a Special Servicer ceases to serve as
such under this Agreement for any reason (including by reason of an Event of
Default), then the Trustee or other successor to such Master Servicer or Special
Servicer, as the case may be, shall succeed to the rights and assume the
obligations of such Master Servicer or such Special Servicer under any
Sub-Servicing Agreement to which such Master Servicer or Special Servicer, as
the case may be, are parties, unless the Trustee or other successor Master
Servicer or Special Servicer elects to terminate any such Sub-Servicing
Agreement in accordance with its terms and Section 3.22(a)(ii) hereof; provided
that no Designated Sub-Servicer Agreement may be so terminated except for cause,
which will include the occurrence of any Adverse Rating Event resulting from the
subject Sub-Servicer's acting in such capacity. In any event, if a Sub-Servicing
Agreement is to be assumed by the Trustee or other successor to a Master
Servicer or Special Servicer, then such Master Servicer or such Special
Servicer, as applicable, at its expense shall, upon request of the Trustee,
deliver to the assuming party all documents and records relating to such
Sub-Servicing Agreement and the Mortgage Loans then being serviced thereunder
and an accounting of amounts collected and held on behalf of it thereunder, and
otherwise use reasonable efforts to effect the orderly and efficient transfer of
the Sub-Servicing Agreement to the assuming party.
(e) Notwithstanding any Sub-Servicing Agreement entered into by it,
each Master Servicer and each Special Servicer shall remain obligated and liable
to the Trustee and the Certificateholders for the performance of their
respective obligations and duties under this Agreement in accordance with the
provisions hereof to the same extent and under the same terms and conditions as
if each alone were servicing and administering the Mortgage Loans or REO
Properties for which it is responsible. No appointment of a Sub-Servicer shall
result in any additional expense to the Trustee, the Certificateholders or the
Trust other than those contemplated herein, and the fees of such Sub-Servicer
shall be payable by the Master Servicer or Special Servicer that retained it,
regardless of whether such Master Servicer's or Special Servicer's, as the case
may be, compensation hereunder is sufficient to cover such fees.
(f) A Special Servicer shall not enter into any Sub-Servicing
Agreement unless either: (i) the Rating Agencies have confirmed in writing that
entering into such agreement will not result in an Adverse Rating Event; (ii)
such agreement relates to one or more Mortgage Loans (including any such
Mortgage Loan(s) previously sub-serviced in accordance with this Section 3.22)
that together represent less than 25% of the aggregate outstanding principal
balance of all Specially Serviced Mortgage Loans; or (iii) the Controlling Class
Representative has consented.
Section 3.23 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 3.23 to select a representative (the "Controlling Class
Representative") having the rights and powers specified in this Agreement
(including those specified in Section 3.24) or to replace an existing
Controlling Class Representative; provided that, subject to the last sentence of
this Section 3.23(a), and the acquisition by ARCap CMBS Fund REIT, Inc. of the
Certificates of the Controlling Class, ARCap CMBS Fund REIT, Inc. shall serve as
the initial Controlling Class Representative and, provided, further that the
Controlling Class Representative for the 000 Xxxxx Xxxxxx Total Loan shall
initially be the holder of the 000 Xxxxx Xxxxxx X Loan, and upon the occurrence
of a Control Appraisal Event shall be the Holders of a majority of the Class 622
Participation Certificates and, with respect to the Washington Center Total
Loan, the initial Controlling Class Representative shall be the Washington
Center C Loan Holder and, upon the occurrence of a Control Appraisal Event shall
be the Washington Center B Loan Holder. Upon (i) the receipt by the Trustee of
written requests for the selection of a successor 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
established by the Trustee for selecting a Controlling Class Representative,
which process shall include the designation of the Controlling Class
Representative by the Majority Controlling Class Certificateholder(s) by a
writing delivered to the Trustee. No appointment of any Person as a successor
Controlling Class Representative shall be effective until such Person provides
the Trustee with (i) written confirmation of its acceptance of such appointment,
(ii) written confirmation of its agreement to keep confidential, for so long as
reports are required to be filed with respect to the Trust under Section 15(d)
of the Exchange Act, all information received by it with respect to the Trust
and its assets that has not been filed with the Commission, (iii) an address and
telecopy number for the delivery of notices and other correspondence and (iv) 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).
(b) Within ten Business Days (or as soon thereafter as practicable
if the Controlling Class consists of Book-Entry Certificates) of any change in
the identity of the Controlling Class Representative of which a Responsible
Officer of the Trustee has actual knowledge and otherwise promptly upon request
from a Master Servicer or a Special Servicer, the Trustee shall deliver to each
of the Master Servicers and the Special Servicers 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
Holders (or, in the case of Book-Entry Certificates, subject to Section 5.06, by
the Depository or the Certificate Owners) of such Certificates, and each of the
Master Servicers and the Special Servicers shall be entitled to rely on such
information provided by the Trustee with respect to any obligation or right
hereunder that the Master Servicers and the Special Servicers, as the case may
be, 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 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.
(c) A Controlling Class Representative may at any time resign as
such by giving written notice to the Trustee, the Special Servicers, the Master
Servicers 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, the Special Servicers, the Master Servicers and
such existing Controlling Class Representative.
(d) If the Great Lakes Crossing Mortgage Loan Group becomes
specially serviced in accordance with the terms of a Great Lakes Crossing
Servicing Agreement and, pursuant to the Great Lakes Crossing Intercreditor
Agreement, the Series 2003-CK2 Trustee or other holder of the Great Lakes
Crossing Companion Loan or its servicing agent notifies the Trustee or the
Master Servicer that the Trustee, as holder of the Great Lakes Crossing Mortgage
Loan, or its designee, is entitled to certain consultation rights with respect
to the Great Lakes Crossing Mortgage Loan or any Great Lakes Crossing REO
Mortgage Loan and/or forwards a copy of its "Asset Status Report" (as defined in
the Great Lakes Crossing Intercreditor Agreement) to the Trustee or the Master
Servicer, then the Trustee or the Master Servicer, as applicable, shall promptly
within one Business Day so notify, and shall forward the copy of such Asset
Status Report to, the Special Servicer and the Controlling Class Representative.
For so long as the Trustee or its designee is entitled to such consultation
rights under the terms of the Great Lakes Crossing Intercreditor Agreement, the
Trustee hereby delegates such consultation rights to the Special Servicer, who
shall exercise them in consultation with the Controlling Class Representative.
In addition, if pursuant to the terms of the Great Lakes Crossing
Intercreditor Agreement, upon the occurrence of an event of default under the
Great Lakes Crossing Total Loan, the Trustee, as holder of the Great Lakes
Crossing Mortgage Loan, has the right to purchase the Great Lakes Crossing
Companion Loan at the price set forth in the Great Lakes Crossing Intercreditor
Agreement, then the Trustee shall promptly so notify all of the Controlling
Class Certificateholders. Any single Certificateholder or group of
Certificateholders entitled to a majority of the Voting Rights allocated to the
Controlling Class may indicate to the Trustee in writing its or their intent to
purchase the Great Lakes Crossing Companion Loan in accordance with Section 3.6
of the Great Lakes Crossing Intercreditor Agreement and/or any corresponding
provision of a Great Lakes Crossing Servicing Agreement, whereupon the Trustee
shall designate such Certificateholder or group of Certificateholders as its
designee to so purchase the Great Lakes Crossing Companion Loan, in its or their
individual capacity and not on behalf of the Trust, in accordance with such
Section 3.6 of the Great Lakes Crossing Intercreditor Agreement and/or any
corresponding provision of a Great Lakes Crossing Servicing Agreement. Any such
purchase will be subject to all applicable provisions of, and at the price set
forth in, the Great Lakes Crossing Intercreditor Agreement (including those
provisions that mandate who may be a permitted transferee of the Great Lakes
Crossing Companion Loan). Upon any such purchase, such Certificateholder or
group of Certificateholders shall constitute the "A-1 Noteholder" under the
Great Lakes Crossing Intercreditor Agreement, and the Great Lakes Crossing
Mortgage Loan shall be serviced and administered in accordance with Article XII
of this Agreement. The Trustee shall reasonably cooperate with such
Certificateholder or Certificateholders in effecting such purchase.
(e) Once a Controlling Class Representative has been selected
pursuant to this Section 3.23, 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
party to this Agreement and each 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.
(f) 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. Notwithstanding the
foregoing, if a claim is made against the Controlling Class Representative by a
Borrower with respect to this Agreement or any particular Mortgage Loan, the
Controlling Class Representative shall immediately notify the Trustee, the
Master Servicers and the Special Servicers, whereupon (if the Special Servicers,
the Master Servicers, the Trustee or the Trust are also named parties to the
same action and, in the sole judgment of the applicable Master Servicer or the
applicable Special Servicer, (i) such 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 Servicers, the
Master Servicers, the Trustee or the Trust to be an adverse party in such action
as regards such Controlling Class Representative) the applicable Special
Servicer on behalf of the Trust 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.
Section 3.24 Certain Rights and Powers of the Controlling Class
Representative
(a) The applicable Special Servicer shall prepare a report (the
"Asset Status Report") recommending the taking of certain actions for each
Mortgage Loan that becomes a Specially Serviced Mortgage Loan and deliver such
Asset Status Report to the Controlling Class Representative and the applicable
Master Servicer not later than 45 days after the servicing of such Mortgage Loan
is transferred to such Special Servicer; provided, however, that with respect to
the 000 Xxxxx Xxxxxx Loan and the Washington Center Loan, the applicable Special
Servicer shall prepare the Asset Status Report in accordance with Section 3.27.
If (i) after 10 Business Days from receipt of an Asset Status Report the
Controlling Class Representative does not object to such Asset Status Report or
(ii) within 10 Business Days after receipt of an Asset Status Report the
Controlling Class Representative objects to such Asset Status Report and the
applicable Special Servicer makes a determination in accordance with the
Servicing Standard that such objection is not in the best interest of all the
Certificateholders, the applicable Special Servicer shall take the recommended
actions described in the Asset Status Report. If within 10 Business Days after
receipt of an Asset Status Report the Controlling Class Representative objects
to such Asset Status Report and the applicable Special Servicer does not make a
determination in accordance with the Servicing Standard that such objection is
not in the best interest of all the Certificateholders, the Special Servicer
shall revise such Asset Status Report as soon as practicable thereafter, but in
no event later than 30 days after the objection to the Asset Status Report by
the Controlling Class Representative. The applicable Special Servicer shall
continue to revise the Asset Status Report until, as provided above, (i) the
Controlling Class Representative fails to object to the revised Asset Status
Report or (ii) the Controlling Class Representative objects to the revised Asset
Status Report and the applicable Special Servicer makes a determination in
accordance with the Servicing Standard that such objection is not in the best
interest of all the Certificateholders; provided, however, that if the
applicable Special Servicer has not taken the recommended actions described in
an Asset Status Report in accordance with this paragraph within 90 days of the
Controlling Class Representative's receipt of the initial Asset Status Report,
the applicable Special Servicer shall take the recommended actions described in
the most recent Asset Status Report submitted to the Controlling Class
Representative, which Asset Status Report shall be deemed to have been approved
by the Controlling Class Representative. If the applicable Special Servicer
makes a determination in accordance with the Servicing Standard that it should
take a materially different action than was previously approved in an Asset
Status Report, it shall submit a revised Asset Status Report setting forth its
proposed action in accordance with this Section 3.24(a),
In addition, notwithstanding anything in any other Section of this
Agreement to the contrary (except in the case of the 000 Xxxxx Xxxxxx Loan and
the Washington Center Loan in which case Section 3.27 shall control the
preparation of the Asset Status Report with respect to the related Mortgage Loan
and the actions the applicable Master Servicer and Special Servicer are
permitted to take with respect thereto), but in all cases subject to Section
3.24(b), the applicable Special Servicer will not be permitted to take, or
consent to the applicable Master Servicer's taking, any of the actions
identified in clauses (i) through (xi) of this sentence not otherwise
specifically covered by an approved Asset Status Report, unless and until the
applicable Special Servicer has notified the Controlling Class Representative in
writing of such Special Servicer's intent to take or permit the particular
action and the Controlling Class Representative has consented (or has failed to
object) thereto in writing within ten Business Days (or, in the case of any
consent to leasing activity at a Mortgaged Property securing a KeyBank Mortgage
Loan or NCBFSB Mortgage Loan as contemplated by clause (viii) below, 3 Business
Days) of having been notified thereof in writing and having been provided with
all reasonably requested information with respect thereto:
(i) any foreclosure upon or comparable conversion (which may include
acquisitions of an REO Property) of the ownership of the property or
properties securing any Specially Serviced Mortgage Loan as comes into and
continues in default;
(ii) any modification, amendment or waiver of a monetary term
(including a change in the timing of payments but excluding the waiver of
Default Charges) or any material non-monetary term (excluding the waiver
of any "due-on-sale" or "due-on-encumbrance" clause, which clauses are
addressed in clause (ix) below) of (A) any Performing Mortgage Loan with a
principal balance of $2,500,000 or more (or, if the proposed
modification/waiver is an extension of maturity or a waiver of Post-ARD
Additional Interest under the circumstances contemplated by Section
3.20(f), any Performing Mortgage Loan without regard to balance) or (B)
any Specially Serviced Mortgage Loan;
(iii) any acceptance of a discounted payoff with respect to any
Specially Serviced Mortgage Loan;
(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 release of real property collateral for any Mortgage Loan
(other than in circumstances (A) involving a Performing Mortgage Loan with
a principal balance of less than $2,500,000, (B) where the release of
collateral is not conditioned on obtaining the consent of the lender under
the related Mortgage Loan Documents (in which event the applicable Master
Servicer or Special Servicer, as appropriate, shall notify the Controlling
Class Representative in writing of such Master Servicer's or Special
Servicer's, as the case may be, intent to take such action) or (C) set
forth in Section 3.20(g)(iii), and other than upon satisfaction of the
subject Mortgage Loan);
(vi) any acceptance of substitute or additional real property
collateral for a Mortgage Loan (other than in circumstances involving (A)
a Performing Mortgage Loan with a principal balance of less than
$2,500,000 or (B) where the acceptance of the substitute or additional
collateral is not conditioned on obtaining the consent of the lender (in
which event the applicable Master Servicer or Special Servicer, as
appropriate, shall notify the Controlling Class Representative in writing
of such Master Servicer's or Special Servicer's, as the case may be,
intent to take such action));
(vii) any releases of Earn-Out Reserve Funds or related Letters of
Credit with respect to a Mortgaged Property (other than in circumstances
involving (A) a Performing Mortgage Loan with a principal balance of less
than $2,500,000 or (B) where the release of Earn-Out Reserve Funds or
related Letters of Credit is not conditioned on obtaining the consent of
the lender (in which event the applicable Master Servicer or Special
Servicer, as appropriate, shall notify the Controlling Class
Representative in writing of such Master Servicer's or Special Servicer's,
as the case may be, intent to take such action));
(viii) any termination or replacement, or consent to the termination
or replacement, of a property manager with respect to any Mortgaged
Property securing a Mortgage Loan, any termination or change, or consent
to the termination or change, of the franchise for any Mortgaged Property
operated as a hospitality property, or any consent to leasing activity
that affects at least 30,000 square feet at any Mortgaged Property
securing a Mortgage Loan that is a KeyBank Mortgage Loan or NCBFSB
Mortgage Loan, or any consent to leasing activity that affects at least
the lesser of 30% of the net rentable area of any Mortgaged Property
securing a Mortgage Loan that is not a KeyBank Mortgage Loan or NCBFSB
Mortgage Loan or 30,000 square feet of such Mortgaged Property (other
than, in each such case, (A) in circumstances involving a Performing
Mortgage Loan with a principal balance of less than $2,500,000 (or, in the
case of a KeyBank Mortgage Loan or NCBFSB Mortgage Loan and a situation
involving leasing activity, $3,000,000) or (B) where the action is not
conditioned on obtaining the consent of the lender or (C) with respect to
a termination or replacement of a property manager with respect to any
residential cooperative property) or;
(ix) any waiver of a "due-on-sale" or "due-on-encumbrance" clause in
any Mortgage Loan (other than in circumstances involving a Performing
Mortgage Loan with a principal balance of less than $2,500,000 or, in the
case of the waiver of a "due-on-encumbrance" clause, a Co-op Mortgage Loan
as to which the NCBFSB Subordinate Debt Conditions are satisfied (in which
event the applicable Master Servicer shall, at least five (5) days prior
to taking such action, provide the Controlling Class Representative with
written notice of such Master Servicer's intent to take such action, which
notice shall describe the circumstances of such action, including all
information necessary for the Controlling Class Representative to
determine whether the NCBFSB Subordinate Debt Conditions have been
satisfied));
(x) with respect to any Mortgage Loan with a Stated Principal
Balance of $2,500,000 or more, any waiver of insurance required to be
maintained under the related Mortgage Loan Documents; and
(xi) any waiver of Default Charges where there is no Additional
Master Servicing Compensation or Additional Special Servicing
Compensation, as applicable, to offset the outstanding Advance Interest,
property inspection costs or other Additional Trust Fund Expenses with
respect to the related Mortgage Loan that would otherwise be offset by
such Default Charges; provided that this clause (xi) shall not apply to
the first such waiver with respect to any Mortgage Loan;
provided, that with respect to Performing Mortgage Loans, the 10 Business Days
(or, if applicable, three Business Days) within which the Controlling Class
Representative must object shall coincide with the Special Servicer's
10-Business Day (or, if applicable, the three-Business Day) period to object set
forth in Sections 3.03(d), 3.08, 3.20(a)(i), 3.20(f) and 3.20(h); and provided,
further, that, in the event that the applicable Special Servicer determines that
immediate action is necessary to protect the interests of the Certificateholders
(as a collective whole), the applicable Special Servicer may take any such
action without waiting for the Controlling Class Representative's response; and
provided, further, that the foregoing rights of the Controlling Class
Representative shall not relate to the Great Lakes Crossing Mortgage Loan or any
Great Lakes Crossing REO Property; provided, further, that the Special Servicer
shall notify the Controlling Class Representative (but shall not require the
consent or deemed consent thereof) with regard to any action identified in
clauses (v) through (vii) of this sentence that the Master Servicer or the
Special Servicer proposes to take that does not require the consent of the
Controlling Class Representative pursuant to the terms of such clause.
In addition, subject to Section 3.24(b), the Controlling Class
Representative may direct each Special Servicer to take, or to refrain from
taking, such actions as the Controlling Class Representative may deem advisable
or as to which provision is otherwise made herein. Upon reasonable request, each
Special Servicer shall provide the Controlling Class Representative with any
information in such Special Servicer's possession with respect to such matters,
including, without limitation, its reasons for determining to take a proposed
action.
(b) Notwithstanding anything herein to the contrary: (i) no Special
Servicer shall have any right or obligation to consult with or to seek and/or
obtain consent or approval from any Controlling Class Representative prior to
acting, and the provisions of this Agreement requiring such shall be of no
effect, during the period prior to the initial selection of a Controlling Class
Representative and, if any Controlling Class Representative resigns or is
removed, during the period following any such resignation or removal of a
Controlling Class Representative until a replacement is selected; and (ii) no
advice, direction or objection from or by the Controlling Class Representative,
as contemplated by Section 3.24(a), may (and each Master Servicer and Special
Servicer shall ignore and act without regard to any such advice, direction or
objection that such Master Servicer or Special Servicer, as the case may be, has
determined, in its reasonable, good faith judgment, would) (A) require or cause
a Master Servicer or such Special Servicer to violate applicable law, the terms
of any Mortgage Loan or any other Section of this Agreement, including such
Master Servicer's or Special Servicer's obligation to act in accordance with the
Servicing Standard, (B) result in an Adverse REMIC Event with respect to any
Trust REMIC or an Adverse Grantor Trust Event with respect to the Grantor Trust,
(C) expose the Trust, the Depositor, a Master Servicer, a Special Servicer, any
Fiscal Agent, the Trustee or any of their respective Affiliates, members,
managers, officers, directors, employees or agents, to any material claim, suit
or liability, or (D) expand the scope of a Master Servicer's or Special
Servicer's responsibilities under this Agreement.
(c) Each Certificateholder acknowledges and agrees, by its
acceptance of its Certificates, that: (i) the Controlling Class Representative
may have special relationships and interests that conflict with those of Holders
of one or more Classes of Certificates; (ii) the Controlling Class
Representative may act solely in the interests of the Holders of the Controlling
Class; (iii) the Controlling Class Representative does not have any duties to
the Holders of any Class of Certificates other than the Controlling Class; (iv)
the Controlling Class Representative may take actions that favor interests of
the Holders of the Controlling Class over the interests of the Holders of one or
more other Classes of Certificates; and (v) the Controlling Class Representative
shall have no liability whatsoever for having so acted, and no Certificateholder
may take any action whatsoever against the Controlling Class Representative or
any director, officer, employee, agent or principal thereof for having so acted.
Section 3.25 Replacement of Special Servicers
(a) Subject to Section 3.25(b), the Controlling Class Representative
may, upon not less than ten days' prior written notice to the respective parties
hereto, remove the existing General Special Servicer hereunder (with or without
cause) or the existing Co-op Special Servicer upon the occurrence and
continuation of an Event of Default with respect to such Co-op Special Servicer
in accordance with the provisions of Section 7.01(b) and appoint a successor to
such Special Servicer; provided that, if any such removal is made without cause,
then the costs of transferring the special servicing responsibilities of the
removed General Special Servicer to a successor thereto will be paid by the
Certificateholders of the Controlling Class. In the case of the 000 Xxxxx Xxxxxx
Total Loan and the Washington Center Total Loan, the related Controlling Class
Representative may, at any time and from time to time, replace the General
Special Servicer then acting with respect to the related Mortgage Loan and
appoint a replacement Special Servicer in lieu thereof; provided that, if any
such removal is made without cause, then the costs of transferring the special
servicing responsibilities of the removed Special Servicer will be paid by the
Controlling Class Representative of the related Mortgage Loan.
(b) No removal of a Special Servicer and/or appointment of a
successor thereto pursuant to Section 3.25(a) shall be effective until: (i) the
Trustee shall have received (A) written confirmation from each of the Rating
Agencies that such removal and/or appointment will not result in an Adverse
Rating Event with respect to any Class of Rated Certificates, (B) an
Acknowledgment of Proposed Special Servicer in the form attached hereto as
Exhibit I-2, executed by the Person designated to be the successor to such
terminated Special Servicer, and (C) an Opinion of Counsel (which shall not be
an expense of the Trustee or the Trust) substantially to the effect that (1) the
removal of such terminated Special Servicer and/or the appointment of the Person
designated to serve as successor thereto is in compliance with this Section
3.25, (2) such designated Person is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization, (3) the
Acknowledgment of Proposed Special Servicer, the form of which is attached
hereto as Exhibit I-2, has been duly authorized, executed and delivered by such
designated Person and (4) upon the execution and delivery of the Acknowledgment
of Proposed Special Servicer, such designated Person shall be bound by the terms
of this Agreement and, subject to customary bankruptcy and insolvency exceptions
and customary equity exceptions, this Agreement shall be enforceable against
such designated Person in accordance with its terms; and (ii) if such terminated
Special Servicer has been removed by the Controlling Class Representative
without cause, the Certificateholders of the Controlling Class have delivered to
the Trustee and the terminated Special Servicer such Certificateholders' joint
and several undertaking and, with respect to the 000 Xxxxx Xxxxxx Loan or the
Washington Center Loan, the respective Controlling Class Representatives'
undertaking, to pay any expenses incurred by the Trustee and such terminated
Special Servicer in connection with the transfer of special servicing
responsibilities to a successor Special Servicer.
(c) Any Special Servicer terminated pursuant to Section 3.25(a)
shall be deemed to have been so terminated simultaneously with the designated
successor's becoming a Special Servicer hereunder; provided that (i) the
terminated Special Servicer shall be entitled to receive, in connection with its
termination, payment out of the Collection Accounts of all of its accrued and
unpaid Special Servicing Fees, as and to the extent provided in Section 3.05(a),
and reimbursement from the successor Special Servicer of all outstanding
Servicing Advances made by the terminated Special Servicer and all unpaid
Advance Interest accrued on such outstanding Servicing Advances (in which case
the successor Special Servicer shall be deemed to have made such Servicing
Advances at the same time that the terminated Special Servicer had actually made
them), (ii) the terminated Special Servicer shall thereafter be entitled to
Workout Fees, as and to the extent expressly permitted by Section 3.11(c), and
(iii) such terminated Special Servicer shall continue to be entitled to the
benefits of Section 6.03, notwithstanding any such termination; and provided,
further, that the terminated Special Servicer shall continue to be obligated to
pay (and entitled to receive) all other amounts accrued to (or owing by) it
under this Agreement on or prior to the effective date of such termination. Such
terminated Special Servicer shall cooperate with the Trustee and the replacement
Special Servicer in effecting the transfer of the terminated Special Servicer's
responsibilities and rights hereunder to its successor, including the transfer
within two Business Days of its termination becoming effective pursuant to
Section 3.25, to the replacement Special Servicer for administration by it of
all cash amounts that at the time are or should have been credited by the
terminated Special Servicer to the REO Account or to any Servicing Account or
Reserve Account or should have been delivered to the Master Servicer or that are
thereafter received by or on behalf of the terminated Special Servicer with
respect to any Mortgage Loan or REO Property.
Section 3.26 Application of Default Charges
(a) Any and all Default Charges that are actually received by or on
behalf of the Trust with respect to any Mortgage Loan or REO Mortgage Loan,
shall be applied for the following purposes and in the following order, in each
case to the extent of the remaining portion of such Default Charges:
first, to pay to any Fiscal Agent, the Trustee, the Master Servicers
or the Special Servicers, in that order, any Advance Interest due and owing to
such party on outstanding Advances made thereby with respect to such Mortgage
Loan or REO Mortgage Loan, as the case may be;
second, to reimburse the Trust for any Advance Interest paid to any
Fiscal Agent, the Trustee, the Master Servicers or the Special Servicers since
the Closing Date with respect to such Mortgage Loan or REO Mortgage Loan, as the
case may be, which interest was paid from a source other than Default Charges
collected on such Mortgage Loan or REO Mortgage Loan, as the case may be;
third, to pay any outstanding expense incurred by the applicable
Special Servicer in connection with inspecting the related Mortgaged Property or
REO Property, as applicable, pursuant to Section 3.12;
fourth, to reimburse the Trust for any expenses reimbursed to the
applicable Special Servicer since the Closing Date in connection with inspecting
the related Mortgaged Property or REO Property, as applicable, pursuant to
Section 3.12, which expenses were previously paid from a source other than
Default Charges collected on such Mortgage Loan or REO Mortgage Loan, as the
case may be;
fifth, to pay the appropriate party for any other outstanding
expense (exclusive of Special Servicing Fees, Workout Fees and Liquidation Fees)
incurred thereby with respect to such Mortgage Loan or REO Mortgage Loan, as the
case may be, which expense, if not paid out of Default Charges collected on such
Mortgage Loan or REO Mortgage Loan, as the case may be, will likely become an
Additional Trust Fund Expense;
sixth, to reimburse the Trust for any other Additional Trust Fund
Expense (exclusive of Special Servicing Fees, Workout Fees and Liquidation Fees)
paid to the appropriate party since the Closing Date with respect to such
Mortgage Loan or REO Mortgage Loan, as the case may be, which Additional Trust
Fund Expense was paid from a source other than Default Charges collected on such
Mortgage Loan or REO Mortgage Loan, as the case may be; and
seventh, to pay any remaining portion of such Default Charges as
Additional Master Servicing Compensation to the applicable Master Servicer, if
such Default Charges were collected when the loan was a Performing Mortgage
Loan, and otherwise to pay any remaining portion of such Default Charges as
Additional Special Servicing Compensation to the applicable Special Servicer.
(b) Default Charges applied to reimburse the Trust pursuant to any
of clause second, clause fourth or clause sixth of Section 3.26(a) are intended
to be available for distribution on the Certificates pursuant to Section 4.01(a)
and Section 4.01(b), subject to application pursuant to Section 3.05(a) or
3.05(b) for any items payable out of general collections on the Mortgage Pool.
Default Charges applied to reimburse the Trust pursuant to any of clause second,
clause fourth or clause sixth of Section 3.26(a) shall be deemed to offset
payments of Advance Interest, costs of property inspections or, except for
Special Servicing Fees, Workout Fees and Liquidation Fees, other Additional
Trust Fund Expenses (depending on which clause is applicable) in the
chronological order in which they were made or incurred with respect to the
subject Mortgage Loan or REO Mortgage Loan (whereupon such Advance Interest,
costs of property inspections or, except for Special Servicing Fees, Workout
Fees and Liquidation Fees, other Additional Trust Fund Expenses (depending on
which clause is applicable) shall thereafter be deemed to have been paid out of
Default Charges).
Section 3.27 Rights of the Holder of the 000 Xxxxx Xxxxxx X Loan and
the Holders of the Washington Center Junior Loans
(a) [Intentionally Oomitted]
(b) With respect to the 000 Xxxxx Xxxxxx Loan and the Washington
Center Loan, pursuant to the related A/B Intercreditor Agreement, the Special
Servicer shall prepare an Asset Status Report recommending the taking of certain
actions for the related Mortgage Loan when such Mortgage Loan becomes a
Specially Serviced Mortgage Loan and deliver such Asset Status Report to the
Controlling Class Representative (and, in the case of the Washington Center
Loan, the other Washington Center Junior Holder, if any) not later than 30 days
after the servicing of the related Mortgage Loan is transferred to the
applicable Special Servicer. Such Asset Status Report shall contain language on
the cover page substantially similar to the language set forth on Schedule 3 to
the related A/B Intercreditor Agreement. If within 10 Business Days after
receipt of an Asset Status Report the Controlling Class Representative objects
to such Asset Status Report, the Special Servicer shall revise such Asset Status
Report as soon as practicable thereafter, but in no event later than 30 days
after the objection to the Asset Status Report by the Controlling Class
Representative. With respect to the Washington Center Total Loan, the related B
Loan Holder (if not then the Controlling Holder) shall have 10 Business Days
after receipt of the Asset Status Report during which to consult with the
applicable Special Servicer on any action outlined in such Asset Status Report.
If within 10 Business Days after receipt of an Asset Status Report the
Controlling Class Representative neither objects nor affirmatively approves of
such Asset Status Report, the action outlined in such Asset Status Report shall
be deemed approved by the Controlling Class Representative and the applicable
Special Servicer shall deliver a notice to the Controlling Class Representative
advising them that their consent is deemed approved. With respect to the
Washington Center Total Loan, the other Washington Center Junior Holder shall
also receive notice from the applicable Special Servicer stating that it is
taking the actions outlined in the Asset Status Report. The applicable Special
Servicer shall continue to revise the Asset Status Report (in the case of the
Washington Center Total Loan, with copies thereof sent to the other Washington
Center Junior Holder) until, as provided above, the Controlling Class
Representative fails to object to the revised Asset Status Report; provided,
however, that if the applicable Special Servicer has not taken the recommended
actions described in an Asset Status Report in accordance with this paragraph
within 90 days of the Controlling Class Representative's receipt of the initial
Asset Status Report, the applicable Special Servicer shall take the recommended
actions described in the most recent Asset Status Report approved or deemed to
have been approved by the Controlling Class Representative. Notwithstanding the
foregoing, if the applicable Special Servicer makes a determination in
accordance with the Servicing Standard that such failure to take any action
recommended in an Asset Status Report, or the taking of any alternate action
recommended by the Controlling Class Representative or, in the case of the
Washington Center Total Loan, the other Washington Center Junior Holder, is not
in the best interest of the Certificateholders and any related the B Loan Holder
(with respect to the related A Loan) or Washington Center Junior Holder (with
respect to the Washington Center Loan), as applicable, as a collective whole
(taking into account the subordination of the B Loans, to the respective A Loans
and, in the case of the Washington Center Total Loan, the subordination of the C
Loan to the B Loan), then the applicable Special Servicer shall take the action
recommended by the then-current Asset Status Report.
With respect to the Washington Center Total Loan and the 000 Xxxxx
Xxxxxx Loan, the applicable Master Servicer or Special Servicer shall not be
permitted to take, or consent to the applicable Master Servicer's or Special
Servicer's, as the case may be, taking, any of the actions identified in clauses
(i) through (xiv) of this sentence not otherwise specifically covered by an
approved Asset Status Report, unless and until the applicable Master Servicer or
Special Servicer has notified the Controlling Class Representative and, in the
case of the Washington Center Total Loan, the other Washington Center Junior
Holder in writing of such Master Servicer's or Special Servicer's intent to take
or permit the particular action and the Controlling Class Representative has
consented (or has failed to object) thereto in writing within ten (10) Business
Days of having been notified thereof in writing and having been provided with
all reasonably requested information with respect thereto:
(i) any acceleration of the related Mortgage Loan (unless such
acceleration is, by its terms, automatic under the Mortgage Loan
Documents) or any foreclosure upon or comparable conversion (which may
include acquisitions of an REO Property) of the ownership of the property
or properties securing any Specially Serviced Mortgage Loan as comes into
and continues in default;
(ii) any modification, amendment or waiver of a monetary term
(including a change in the timing of payments but excluding the waiver of
Default Charges, which is covered by clause (xiv) below) or any material
non-monetary term (excluding the waiver of any "due-on-sale" or
"due-on-encumbrance" clause, which clauses are addressed in clause (ix)
below) of the related Mortgage Loan;
(iii) any acceptance of a discounted payoff with respect to the
related Mortgage Loan;
(iv) any determination to bring an REO Property into compliance with
applicable environmental laws;
(v) any release of collateral for the related Mortgage Loan, other
than upon satisfaction of such Mortgage Loan;
(vi) any acceptance of substitute or additional collateral for the
related Mortgage Loan;
(vii) any releases of reserve funds or related letters of credit or
adjustment to the amounts of reserve funds required under the related
Mortgage Loan Documents with respect to the related Mortgaged Property;
(viii) any termination or replacement, or consent to the termination
or replacement, of the property manager with respect to the related
Mortgaged Property;
(ix) any waiver of a "due-on-sale" or "due-on-encumbrance" clause in
the related Mortgage Loan;
(x) any execution, termination, renewal or material modification of
any material lease, to the extent lender's approval is provided for under
the related Mortgage Loan Documents;
(xi) any approval of an annual budget of the related Borrower, to
the extent lender's approval is provided for under the related Mortgage
Loan Documents and with respect to the Washington Center Loan, any
approval by the lender of any waiver or suspension of "FF&E Reserve" (as
such term is defined in the Mortgage Loan Documents) deposits;
(xii) any waiver or modification of insurance requirements under the
related Mortgage Loan Documents;
(xiii) any proposed transfer or sale of the related Mortgaged
Property or assumption of the related Mortgage Loan; and
(xiv) any waiver of Default Charges where there is no Additional
Master Servicing Compensation or Additional Special Servicing Compensation
to offset the outstanding interest on Advances, property inspection costs
or other Costs with respect to the related Mortgage Loan that would
otherwise be offset by such Default Charge;
provided, that, in the event that the applicable Master Servicer or Special
Servicer determines that immediate action is necessary to protect the interests
of the Certificateholders, the 000 Xxxxx Xxxxxx X Loan Holder or the Washington
Center Junior Holders, as applicable, as a collective whole (taking into account
the subordination of the 000 Xxxxx Xxxxxx X Loan to the 000 Xxxxx Xxxxxx Loan
and the subordination of the Washington Center C Loan to the Washington Center B
Loan and the Washington Center Junior Loans to the Washington Center Loan), the
applicable Master Servicer or Special Servicer may take any such action without
waiting for the Controlling Class Representative's response.
The B Loan Holder and the Washington Center Junior Holders have
agreed pursuant to the related A/B Intercreditor Agreement that they will
provide the Master Servicer or the related Special Servicer, as applicable, with
its consent or objection to any proposed actions pursuant to this Section
3.27(b) within ten (10) Business Days after its receipt of any such proposal and
any back up materials and shall be deemed to have approved of such action if no
response is received within such ten (10) Business Days.
Notwithstanding anything to the contrary contained in this Section
3.27(b), no advice, direction or objection from or by the Controlling Class
Representative of the Washington Center Loan, may (and the applicable Master
Servicer or Special Servicer, as the case may be, shall ignore and act without
regard to any such advice, direction or objection that the applicable Master
Servicer or Special Servicer has determined, in its reasonable, good faith
judgment, will) require or cause the applicable Master Servicer or Special
Servicer to take any action or refrain from taking any action that would violate
applicable law, any provision of the related A/B Intercreditor Agreement or this
Agreement or the terms of the related loan documents, including the obligation
to act in accordance with the Servicing Standard or the REMIC Provisions.
Section 3.28 Servicing of the 000 Xxxxx Xxxxxx Non-Pooled Portion
(a) On or prior to each Distribution Date, amounts received during
the related Due Period on the 000 Xxxxx Xxxxxx Loan (including any amounts
advanced with respect thereto, any Cure Payments received thereon and any
proceeds received in connection with a sale thereof) will be applied first to
payment of any related Primary Servicing Fees, Servicing Fees, Special Servicing
Fees and Trustee Fees, reimbursement of expenses incurred in connection with the
enforcement of any repurchase obligation against the Mortgage Loan Seller with
respect to the 000 Xxxxx Xxxxxx Loan together with interest thereon and the
reimbursement of any Advances made with respect thereto and payment of any
interest on such Advances to the extent provided in Section [3.05(a)(iii)
through (xviii)], and the remainder will be allocated:
(i) first, in respect of interest accrued on the 000 Xxxxx Xxxxxx
Pooled Portion during the preceding Interest Accrual Period;
(ii) second, in respect of accrued and unpaid interest on the 000
Xxxxx Xxxxxx Pooled Portion from prior Interest Accrual Periods to the
extent not previously advanced;
(iii) third, to the 000 Xxxxx Xxxxxx Pooled Portion (A) prior to an
event of default under the 000 Xxxxx Xxxxxx Loan and so long as the 000
Xxxxx Xxxxxx Loan is not a Specially Serviced Mortgage Loan, its pro rata
share of the 622 Principal Distribution Amount; (B) during the
continuation of an event of default under the 000 Xxxxx Xxxxxx Loan or if
the 000 Xxxxx Xxxxxx Loan becomes a Specially Serviced Mortgage Loan and
prior to a Final Recovery Determination with respect thereto, the 622
Principal Distribution Amount and (C) with respect to the Distribution
Date following a Final Recovery Determination, an amount up to the entire
principal balance of the 000 Xxxxx Xxxxxx Pooled Portion, in each case,
until the principal balance of the 000 Xxxxx Xxxxxx Pooled Portion has
been reduced to zero;
(iv) fourth, to reimburse the 000 Xxxxx Xxxxxx Pooled Portion for
any prior 000 Xxxxx Xxxxxx Collateral Support Deficit previously allocated
thereto pursuant to Section 4.04(e) hereof;
(v) fifth, in respect of interest accrued on the 000 Xxxxx Xxxxxx
Non-Pooled Portion during the preceding Interest Accrual Period;
(vi) sixth, in respect of accrued and unpaid interest on the 000
Xxxxx Xxxxxx Non-Pooled Portion from prior Interest Accrual Periods;
(vii) seventh, to the 000 Xxxxx Xxxxxx Non-Pooled Portion (A) prior
to an event of default under the 000 Xxxxx Xxxxxx Loan and so long as the
000 Xxxxx Xxxxxx Loan is not a Specially Serviced Mortgage Loan, its pro
rata share of the 622 Principal Distribution Amount; (B) during the
continuation of an event of default under the 000 Xxxxx Xxxxxx Loan or if
the 000 Xxxxx Xxxxxx Loan becomes a Specially Serviced Mortgage Loan any
remaining amounts of the 622 Principal Distribution Amount after
application of such amounts to the 000 Xxxxx Xxxxxx Pooled Portion
pursuant to clause (a)(iii)(B) above; and (C) with respect to the
Distribution Date following a Final Recovery Determination, an amount up
to the entire principal balance of the 000 Xxxxx Xxxxxx Non-Pooled Portion
after the application of the 622 Principal Distribution Amount to the 000
Xxxxx Xxxxxx Pooled Portion pursuant to clause (a)(iii)(C) above, in each
case, until the principal balance of the 000 Xxxxx Xxxxxx Non-Pooled
Portion has been reduced to zero;
(viii) eighth, to reimburse the 000 Xxxxx Xxxxxx Non-Pooled Portion
in the amount of any prior 000 Xxxxx Xxxxxx Collateral Support Deficits
previously allocated to the Class 622 Participation Certificates pursuant
to Section 4.04(e) hereof;
(ix) ninth, any Yield Maintenance Charge in connection with a
prepayment of the 000 Xxxxx Xxxxxx Loan will be paid to the 000 Xxxxx
Xxxxxx Pooled Portion and the 000 Xxxxx Xxxxxx Non-Pooled Portion on a pro
rata basis (based on the amount of such prepayment allocated to reduce the
Stated Principal Balances of the 000 Xxxxx Xxxxxx Pooled Portion and the
000 Xxxxx Xxxxxx Non-Pooled Portion);
(x) tenth, to reimburse the Controlling Class Representative of the
Class 622 Participation Certificates for any unreimbursed Cure Payments
previously made pursuant to Section 3.28(c) hereof; and
(xi) eleventh, any remaining amount, to the 000 Xxxxx Xxxxxx Loan
REMIC Residual Interest.
Amounts distributable in respect of the 000 Xxxxx Xxxxxx Pooled
Portion and the 000 Xxxxx Xxxxxx Non-Pooled Portion in accordance with this
Section 3.28(a) shall be deemed distributable in respect of the 000 Xxxxx Xxxxxx
Loan REMIC Regular Interest A and 000 Xxxxx Xxxxxx Loan REMIC Regular Interest B
from the 000 Xxxxx Xxxxxx Loan REMIC to the Lower-Tier REMIC pursuant to Section
4.01(k), and any amounts distributable in respect of the 000 Xxxxx Xxxxxx Loan
REMIC Residual Interest shall be deemed distributed to the Grantor Trust portion
of the Trust Fund (pursuant to Section 4.01(k)).
(b) Provided a Control Appraisal Event has occurred, and the
Controlling Class Representative of the Class 622 Participation Certificates is
the Controlling Class Representative with respect to the 000 Xxxxx Xxxxxx Total
Loan, the Controlling Class Representative of the Class 622 Participation
Certificates shall have the right, by written notice to the Master Servicer and
Special Servicer (a "Class 622 Purchase Notice") delivered (i) during any 000
Xxxxx Xxxxxx Cure Period for which the Holder of the 000 Xxxxx Xxxxxx X Loan is
entitled to make a Cure Payment or (ii) at any time the 000 Xxxxx Xxxxxx Loan is
a Specially Serviced Mortgage Loan, provided that the 000 Xxxxx Xxxxxx Loan is
then in default or default with respect thereto is reasonably foreseeable, to
purchase the 000 Xxxxx Xxxxxx Loan in whole but not in part at the Purchase
Price. Upon the delivery of the Class 622 Purchase Notice to the Master Servicer
and Special Servicer, the Master Servicer or Special Servicer, as applicable,
shall cause the Trust Fund to sell (and the Controlling Class Representative of
the Class 622 Participation Certificates shall purchase) the 000 Xxxxx Xxxxxx
Loan at the Purchase Price, on a date (the "Class 622 Purchase Date") not less
than five (5) Business Days nor more than ten (10) Business Days after the date
of the Class 622 Purchase Notice, as shall be established by the Master Servicer
or Special Servicer, as applicable. The Purchase Price shall be calculated by
the Master Servicer or Special Servicer, as applicable, three (3) Business Days
prior to the Class 622 Purchase Date and shall, absent manifest error, be
binding upon the Controlling Class Representative of the Class 622 Participation
Certificates. Concurrently with the payment to the Trust Fund of the Purchase
Price, the Master Servicer or Special Servicer, as applicable, shall direct the
Trustee to execute at the sole cost and expense of the Controlling Class
Representative of the Class 622 Participation Certificates in favor of the
Controlling Class Representative of the Class 622 Participation Certificates
assignment documentation which will assign the 000 Xxxxx Xxxxxx Loan and the
related Mortgage Loan Documents without recourse, representations or warranties.
The right of the Controlling Class Representative of the Class 622 Participation
Certificates to purchase the 000 Xxxxx Xxxxxx Loan under clause (i) of the first
sentence of this paragraph shall automatically terminate upon the expiration of
the applicable cure period. The right of the Controlling Class Representative of
the Class 622 Participation Certificates to purchase the 000 Xxxxx Xxxxxx Loan
under clause (ii) of the first sentence of this paragraph shall automatically
terminate upon a foreclosure sale, sale by power of sale or delivery of a deed
in lieu of foreclosure with respect to the related Mortgaged Property.
(c) The Master Servicer or Special Servicer shall deliver to the
Controlling Class Representative of the 000 Xxxxx Xxxxxx Total Loan notice of
any monetary or non monetary default with respect to the 000 Xxxxx Xxxxxx Loan
promptly after a Servicing Officer of the Master Servicer or the Special
Servicer, as applicable, becomes aware of such default. Upon receipt of such
notice, the Controlling Class Representative of the 000 Xxxxx Xxxxxx Total Loan
shall have the right to cure defaults with respect to the 000 Xxxxx Xxxxxx Loan
within 5 Business Days of receipt of notice with respect to a monetary default
and within 30 days of receipt of notice with respect to a non monetary default
following the date of such notice (the "622 Third Avenue Cure Period");
provided, however, that no single Cure Event shall continue for a period of more
than 90 consecutive days. In the event that the Controlling Class Representative
of the 000 Xxxxx Xxxxxx Total Loan elects to cure a default that can be cured by
making a Cure Payment, the such Controlling Class Representative shall make such
Cure Payment to the Master Servicer. The right of the Controlling Class
Representative of the 000 Xxxxx Xxxxxx Total Loan to reimbursement of any Cure
Payment (including the reimbursement of a previous Advance made by the Master
Servicer or the Trustee) will be subordinate to the payment of all other amounts
due with respect to the 000 Xxxxx Xxxxxx Loan. Notwithstanding the foregoing,
the making of a Cure Payment by the Controlling Class Representative of the 000
Xxxxx Xxxxxx Total Loan shall not act as a waiver of any amounts due under the
Mortgage Loan Documents by the related borrower.
(d) Subject to the terms and conditions of this Agreement, if the
Master Servicer or Special Servicer, as applicable, in connection with a workout
or proposed workout of the 000 Xxxxx Xxxxxx Loan, modifies 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 loan,
all payments to the 000 Xxxxx Xxxxxx Pooled Portion pursuant to Section 3.28(a)
shall be made as though such workout did not occur, with the payment terms of
the 000 Xxxxx Xxxxxx Pooled Portion remaining the same as they are on the
Closing Date, and the 000 Xxxxx Xxxxxx Non-Pooled Portion shall bear the full
economic effect of all waivers, reductions or deferrals of amounts due on such
loan attributable to such workout, before the 000 Xxxxx Xxxxxx Pooled Portion is
exposed to such economic effect.
Prior to entering into any modification of the 000 Xxxxx Xxxxxx Loan
that would have any of the effects described in clauses (i) through (iii) of the
preceding paragraph, the Master Servicer or Special Servicer, as applicable,
shall provide the Controlling Class Representative of the Class 622
Participation Certificates with notice thereof and with all information that the
Master Servicer or Special Servicer, as applicable, considers material, but in
any case including a draft of the agreement, if any, that sets forth such
proposed modification.
Section 3.29 Washington Center Purchase Option and Cure Rights
(a) If a Washington Center Triggering Event of Default has occurred
and is continuing, then, upon written notice from the applicable Master Servicer
or Special Servicer (a "Repurchase Option Notice") of such occurrence (which
notice the applicable Master Servicer or Special Servicer shall promptly give to
the Washington Center Junior Holders), the Option Holder (as defined below)
shall have the right, by written notice to the applicable Master Servicer or
Special Servicer and the other Washington Center Junior Holder (unless the
principal balance of the related junior loan has been reduced to zero) (the
"Option Repurchase Notice"), at any time after the occurrence of the Washington
Center Triggering Event of Default and prior to the earliest to occur of (a) the
cure of the Washington Center Triggering Event of Default, (b) the consummation
of a foreclosure sale, sale by power of sale or delivery of a deed in lieu of
foreclosure with respect to the related Mortgaged Property and (c) the
modification of the Mortgage Loan Documents, to purchase the Washington Center
Loan (if the Washington Center B Loan Holder is the party exercising such
option) and the Washington Center Loan and Washington Center B Loan (if the
Washington Center C Loan Holder is the party exercising such option), as
applicable, at the Purchase Price. Upon the delivery of the Option Repurchase
Notice to the applicable Master Servicer or Special Servicer and either the
Washington Center B Loan Holder or the Washington Center C Loan Holder, as
applicable, the applicable Master Servicer or Special Servicer and either the
Washington Center B Loan Holder or the Washington Center C Loan Holder, as
applicable, shall sell (and the applicable Controlling Option Holder shall
purchase) the Washington Center Loan (if the Washington Center B Loan Holder is
the party exercising such option) or the Washington Center Loan and the
Washington Center B Loan (if the Washington Center C Loan Holder is the party
exercising such option), as applicable (free and clear of any sub-interests
therein) for the applicable Purchase Price, on a date (the "Washington Center
Repurchase Date") not less than five (5) Business Days nor more than ninety (90)
Business Days after the date of the latest Option Repurchase Notice, as shall be
established by the applicable Master Servicer or Special Servicer and reasonably
acceptable to the purchasing Option Holder. Unless the Option Holder's right to
purchase the Washington Center Loan or the Washington Center Loan and the
Washington Center B Loan, as applicable, has terminated upon delivery of the
Option Repurchase Notice, the Option Holder shall be obligated to purchase the
Washington Center Loan or the Washington Center Loan and the Washington Center B
Loan, as applicable, in accordance with the terms of this Agreement and the
related A/B Intercreditor Agreement. The Purchase Price shall be calculated by
the applicable Master Servicer three (3) Business Days prior to the Washington
Center Repurchase Date (and such calculation shall be accompanied by reasonably
detailed back-up documentation explaining how such price was determined) and
shall, absent manifest error, be binding upon the Option Holder. The applicable
Master Servicer shall provide the Washington Center Junior Holders with notice
(A) if the mezzanine lender has indicated its intent to exercise its purchase
option pursuant to the mezzanine intercreditor agreement, (B) if the mezzanine
lender consummates the purchase and (C) if the mezzanine lender subsequent to
indicating its intention to exercise its purchase option, fails to do so. If any
Washington Center Junior Holder shall have remitted the Purchase Price pursuant
to its exercise of the purchase option hereunder before the applicable Master
Servicer's or such Washington Center Junior Holder's receipt of notice of the
mezzanine lender's intention to exercise its purchase option, the applicable
Master Servicer shall refund the Purchase Price to the Washington Center Junior
Holder that remitted such funds in exercising such purchase option. If the
mezzanine lender shall subsequently fail to exercise its purchase option, such
circumstance shall not affect any Washington Center Junior Holder's right to
exercise its purchase option hereunder and under the related A/B Intercreditor
Agreement and each Washington Center Junior Holder's right to exercise the
purchase option shall be reinstated (it being understood that any Washington
Center Junior Holder shall, regardless of the circumstances involving the
mezzanine lender's failure to exercise its purchase option, have only the time
period specified in this paragraph to exercise its purchase option).
The "Option Holder" shall mean, either the Washington Center C Loan
Holder or the Washington Center B Loan Holder; provided that in the event that
the Washington Center B Loan Holder delivers an Option Repurchase Notice, the
Washington Center C Loan Holder may, at any time after the Washington Center C
Loan Holder receives such Option Repurchase Notice, whether or not the
Washington Center B Loan Holder has remitted the Purchase Price, exercise the
purchase option by delivering the Option Repurchase Notice to both the
applicable Master Servicer or Special Servicer and the Washington Center B Loan
Holder and in such event the Washington Center B Loan Holder's purchase option
shall be extinguished unless the Washington Center C Loan Holder fails to
exercise its option within the time period specified in the previous paragraph
in which case the Washington Center B Loan Holder's purchase option shall be
reinstated.
(b) If the Borrower defaults under the Mortgage Loan Documents, the
Curing Junior Holder (as defined below) shall have the right to cure such
default, within the applicable cure period given to the Borrower under the
Mortgage Loan Documents, upon the terms set forth in the following paragraph.
Any such cure shall be made at the sole cost and expense of the Curing Junior
Holder, and any amounts advanced on behalf of the Borrower to effect any such
cure shall be reimbursable to the Curing Junior Holder in accordance with the
related A/B Intercreditor Agreement.
In the event any monetary default beyond applicable notice and grace
periods or non-monetary default beyond applicable notice and grace periods (of
which the applicable Master Servicer or Special Servicer has knowledge) shall
exist with respect to the Mortgage Loan, then, upon notice from the applicable
Master Servicer or Special Servicer (a "Cure Option Notice") of the occurrence
of such default beyond applicable notice and grace periods (which notice the
applicable Master Servicer or Special Servicer shall promptly give to the
Washington Center Junior Holders upon receipt of knowledge thereof), the Curing
Junior Holder shall have the right, exercisable by the Curing Junior Holder by
giving written notice of its intent to cure a default within five (5) Business
Days of receipt of the Cure Option Notice, to cure such default; provided, in
the event that the Curing Junior Holder has elected to cure any default, the
default must be cured by the Curing Junior Holder within, in the case of a
monetary default, five (5) Business Days of receipt of such Cure Option Notice
and, in the case of a non-monetary default, thirty (30) days of receipt of such
Cure Option Notice. In the event that the Curing Junior Holder elects to cure a
default that can be cured by the payment of money (each such payment, a "Cure
Payment"), the Curing Junior Holder shall make such Cure Payment as directed by
the applicable Master Servicer or Special Servicer and each such Cure Payment
shall include all actual costs, expenses, losses, obligations, damages,
penalties, and disbursements imposed on or incurred by (whether or not yet paid)
the applicable Master Servicer or Special Servicer and the Washington Center B
Loan Holder (if the Washington Center C Loan Holder is the Person exercising the
Cure Option) (including, without limitation, all unreimbursed Advances (without
regard to whether such Advance would be a Non-Recoverable Advance) and any
interest charged thereon, Default Charges and any unpaid Servicing Fees with
respect to the Mortgage Loan) during the period of time from the expiration of
the grace period under the Mortgage Loan until such Cure Payment is made or such
other cure is otherwise effected. The right of the Curing Junior Holder to
reimbursement of any Cure Payment shall be subordinate in all respects to the
rights of the applicable Master Servicer or Special Servicer and the Washington
Center B Loan Holder (if the Washington Center C Loan Holder is the Person
exercising the Cure Option) to distributions with respect to the Washington
Center Total Loan and to all amounts distributable to it. So long as a default
exists that is being cured by the Curing Junior Holder pursuant to this Section
3.29 and the cure period has not expired and the Curing Junior Holder is
permitted to cure under the terms of this Section 3.29, the applicable Master
Servicer or Special Servicer shall not treat such default as a default or an
event of default (i) for purposes of making distributions in accordance with the
post- default priorities set forth in Section 5 of the related A/B Intercreditor
Agreement; (ii) for purposes of accelerating the Washington Center Loan,
modifying, amending or waiving any provisions of the Washington Center Loan or
commencing proceedings for foreclosure or the taking of title by deed-in-lieu of
foreclosure or other similar legal proceedings with respect to the related
Mortgaged Property; or (iii) for purposes of treating the Washington Center Loan
as a Specially Serviced Mortgage Loan; provided that such limitations shall not
prevent the applicable Master Servicer or Special Servicer or the Trustee from
sending notices of the default to the Borrower or any related guarantor or
making demands on the related Borrower or any related guarantor or from
collecting default interest or late payment charges from the Borrower.
Notwithstanding anything to the contrary contained in this Section 3.29(b), (A)
the Curing Junior Holder's right to cure a monetary default or non-monetary
default shall be limited to nine Cure Events over the life of the Washington
Center Loan and (B) no single Cure Event may exceed three consecutive months.
"Cure Event" means the Curing Junior Holder's exercise of cure rights, whether
for one month or for consecutive months in the aggregate. Additional Cure Events
shall only be permitted with the consent of the Special Servicer with the
consent of the Controlling Class Representative.
The applicable Master Servicer or Special Servicer shall provide the
Washington Center Junior Holders with notice (A) if the mezzanine lender has
indicated its intent to exercise its cure rights pursuant to the mezzanine
intercreditor agreement, (B) if the mezzanine lender consummates the cure and
(C) if the mezzanine lender subsequent to indicating its intention to exercise
its cure rights, fails to do so. If any Curing Junior Holder shall have remitted
any Cure Payment in respect of the Washington Center Loan before the applicable
Master Servicer's or such Curing Junior Holder's receipt of the mezzanine
lender's intention to exercise its cure rights, the applicable Master Servicer
or Special Servicer shall refund such Cure Payment to the Curing Junior Holder.
If the mezzanine lender shall subsequently fail to exercise its cure rights,
such circumstance shall not affect any Junior Holder's rights to exercise its
cure rights hereunder and under the related A/B Intercreditor Agreement and each
Junior Holder's right to exercise its cure rights shall be reinstated. If the
applicable Master Servicer or Special Servicer or any Washington Center Junior
Holder receives notice of the failure of the mezzanine lender or the other
Washington Center Junior Holder to exercise its cure rights during the time
period for which it is permitted to cure any default, the Curing Junior Holder
shall have an additional 5 Business Days from the time of receipt of such notice
to cure such default.
The rights of the Curing Junior Holder to reimbursement for any
payments made by the Curing Junior Holder pursuant to the preceding paragraph
shall be subordinate in all respects to the rights of the applicable Master
Servicer or Special Servicer, and if applicable the Washington Center B Loan
Holder, to distributions with respect to the Washington Center Total Loan and to
all amounts distributable to it pursuant to any fees or other compensation,
indemnity payments or other amounts distributable to them pursuant to the
related A/B Intercreditor Agreement.
"Curing Junior Holder" shall mean, either the Washington Center C
Loan Holder or the Washington Center B Loan Holder; provided that in the event
that the Washington Center B Loan Holder delivers a Cure Option Notice, the
Washington Center C Loan Holder may, at any time, exercise the Cure Option by
delivering the Cure Option Notice to both the applicable Master Servicer or
Special Servicer and the Washington Center B Loan Holder and in such event the
Washington Center B Loan Holder's Cure Option shall be extinguished unless the
Washington Center C Loan Holder fails to exercise its option within the time
period specified in the second preceding paragraph in which case the Washington
Center B Loan Holder's Cure Option shall be reinstated.
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
Section 4.01 Distributions
(a) On each Distribution Date prior to the date on which the Class
Principal Balance of the last outstanding Class of Subordinate Certificates has
been reduced to zero, to the extent of the Available Distribution Amount and,
with respect to clause (xlvi) below, the Available Class 622 Distribution
Amount, for such Distribution Date, the Trustee shall transfer or be deemed to
transfer such amounts from the Lower-Tier Distribution Account to the Upper-Tier
Distribution Account and, with respect to clause (xlvi) below, from the 000
Xxxxx Xxxxxx Loan REMIC, to the Lower-Tier Distribution Account and from the
Lower-Tier Distribution Account to the Upper-Tier Distribution Account, in the
amounts and priorities set forth in Section 4.01(c) with respect to each Class
of Uncertificated Lower-Tier Interests, and immediately thereafter, shall make
distributions thereof from the Upper-Tier Distribution Account in the following
order of priority, satisfying in full, to the extent required and possible, each
priority before making any distribution with respect to any succeeding priority
from the Available Distribution Amount or the Class 622 Available Distribution
Amount, as applicable:
(i) concurrently, to the Class X-0, Xxxxx X-0, Class A-3, Class A-4,
Class A-5, Class A-X, Class A-Y and Class A-SP Certificates, pro rata, up
to the Optimal Interest Distribution Amounts for each such Class for such
Distribution Date;
(ii) to the Class A-1, Class A-2, Class A-3, Class A-4 and Class A-5
Certificates, in reduction of the Class Principal Balances thereof, an
amount up to the Principal Distribution Amount for such Distribution Date,
in the following order of priority:
First, to the Class A-1 Certificates, until the Class Principal
Balance thereof has been reduced to zero;
Second, to the Class A-2 Certificates, until the Class Principal
Balance thereof has been reduced to zero;
Third, to the Class A-3 Certificates, until the Class Principal
Balance thereof has been reduced to zero;
Fourth, to the Class A-4 Certificates, until the Class Principal
Balance thereof has been reduced to zero; and
Fifth, to the Class A-5 Certificates, until the Class Principal
Balance thereof has been reduced to zero.
(iii) to the Class X-0, Xxxxx X-0, Class A-3, Class A-4 and Class
A-5 Certificates, pro rata (based on the aggregate unreimbursed Collateral
Support Deficit previously allocated to each such Class), until all
amounts of such Collateral Support Deficit previously allocated to such
Classes, but not previously reimbursed, have been reimbursed in full;
(iv) to the Class B Certificates, in respect of interest, up to the
Optimal Interest Distribution Amount for such Class for such Distribution
Date;
(v) to the Class B Certificates, in reduction of the Class Principal
Balance thereof, an amount up to the Remaining Principal Distribution
Amount for such Distribution Date until such Class Principal Balance has
been reduced to zero;
(vi) to the Class B Certificates, until all amounts of Collateral
Support Deficit previously allocated to the Class B Certificates, but not
previously reimbursed, have been reimbursed in full;
(vii) to the Class C Certificates, in respect of interest, up to the
Optimal Interest Distribution Amount for such Class for such Distribution
Date;
(viii) to the Class C Certificates, in reduction of the Class
Principal Balance thereof, an amount up to the Remaining Principal
Distribution Amount for such Distribution Date until such Class Principal
Balance has been reduced to zero;
(ix) to the Class C Certificates, until all amounts of Collateral
Support Deficit previously allocated to the Class C Certificates, but not
previously reimbursed, have been reimbursed in full;
(x) to the Class D Certificates, in respect of interest, up to the
Optimal Interest Distribution Amount for such Class for such Distribution
Date;
(xi) to the Class D Certificates, in reduction of the Class
Principal Balance thereof, an amount up to the Remaining Principal
Distribution Amount for such Distribution Date until such Class Principal
Balance has been reduced to zero;
(xii) to the Class D Certificates, until all amounts of Collateral
Support Deficit previously allocated to the Class D Certificates, but not
previously reimbursed, have been reimbursed in full;
(xiii) the Class E Certificates, in respect of interest, up to the
Optimal Interest Distribution Amount for such Class for such Distribution
Date;
(xiv) to the Class E Certificates, in reduction of the Class
Principal Balance thereof, an amount up to the Remaining Principal
Distribution Amount for such Distribution Date until such Class Principal
Balance has been reduced to zero;
(xv) to the Class E Certificates, until all amounts of Collateral
Support Deficit previously allocated to the Class E Certificates, but not
previously reimbursed, have been reimbursed in full;
(xvi) to the Class F Certificates, in respect of interest, up to the
Optimal Interest Distribution Amount for such Class for such Distribution
Date;
(xvii) to the Class F Certificates, in reduction of the Class
Principal Balance thereof, an amount up to the Remaining Principal
Distribution Amount for such Distribution Date until such Class Principal
Balance has been reduced to zero;
(xviii) to the Class F Certificates, until all amounts of Collateral
Support Deficit previously allocated to the Class F Certificates, but not
previously reimbursed, have been reimbursed in full;
(xix) to the Class G Certificates, in respect of interest, up to the
Optimal Interest Distribution Amount for such Class for such Distribution
Date;
(xx) to the Class G Certificates, in reduction of the Class
Principal Balance thereof, an amount up to the Remaining Principal
Distribution Amount for such Distribution Date until such Class Principal
Balance has been reduced to zero;
(xxi) to the Class G Certificates, until all amounts of Collateral
Support Deficit previously allocated to the Class G Certificates, but not
previously reimbursed, have been reimbursed in full;
(xxii) to the Class H Certificates, in respect of interest, up to
the Optimal Interest Distribution Amount for such Class for such
Distribution Date;
(xxiii) to the Class H Certificates, in reduction of the Class
Principal Balance thereof, an amount up to the Remaining Principal
Distribution Amount for such Distribution Date until such Class Principal
Balance has been reduced to zero;
(xxiv) to the Class H Certificates, until all amounts of Collateral
Support Deficit previously allocated to the Class H Certificates, but not
previously reimbursed, have been reimbursed in full;
(xxv) to the Class J Certificates, in respect of interest, up to the
Optimal Interest Distribution Amount for such Class for such Distribution
Date;
(xxvi) to the Class J Certificates, in reduction of the Class
Principal Balance thereof, an amount up to the Remaining Principal
Distribution Amount for such Distribution Date until such Class Principal
Balance has been reduced to zero;
(xxvii) to the Class J Certificates, until all amounts of Collateral
Support Deficit previously allocated to the Class J Certificates, but not
previously reimbursed, have been reimbursed in full;
(xxviii) to the Class K Certificates, in respect of interest, up to
the Optimal Interest Distribution Amount for such Class for such
Distribution Date;
(xxix) to the Class K Certificates, in reduction of the Class
Principal Balance thereof, an amount up to the Remaining Principal
Distribution Amount for such Distribution Date until such Class Principal
Balance has been reduced to zero;
(xxx) to the Class K Certificates, until all amounts of Collateral
Support Deficit previously allocated to the Class K Certificates, but not
previously reimbursed, have been reimbursed in full;
(xxxi) to the Class L Certificates, in respect of interest, up to
the Optimal Interest Distribution Amount for such Class for such
Distribution Date;
(xxxii) to the Class L Certificates, in reduction of the Class
Principal Balance thereof, an amount up to the Remaining Principal
Distribution Amount for such Distribution Date until such Class Principal
Balance has been reduced to zero;
(xxxiii) to the Class L Certificates, until all amounts of
Collateral Support Deficit previously allocated to the Class L
Certificates, but not previously reimbursed, have been reimbursed in full;
(xxxiv) to the Class M Certificates, in respect of interest, up to
the Optimal Interest Distribution Amount for such Class for such
Distribution Date;
(xxxv) to the Class M Certificates, in reduction of the Class
Principal Balance thereof, an amount up to the Remaining Principal
Distribution Amount for such Distribution Date until such Class Principal
Balance has been reduced to zero;
(xxxvi) to the Class M Certificates, until all amounts of Collateral
Support Deficit previously allocated to the Class M Certificates, but not
previously reimbursed, have been reimbursed in full;
(xxxvii) to the Class N Certificates, in respect of interest, up to
the Optimal Interest Distribution Amount for such Class for such
Distribution Date;
(xxxviii) to the Class N Certificates, in reduction of the Class
Principal Balance thereof, an amount up to the Remaining Principal
Distribution Amount for such Distribution Date until such Class Principal
Balance has been reduced to zero;
(xxxix) to the Class N Certificates, until all amounts of Collateral
Support Deficit previously allocated to the Class N Certificates, but not
previously reimbursed, have been reimbursed in full;
(xl) to the Class O Certificates, in respect of interest, up to the
Optimal Interest Distribution Amount for such Class for such Distribution
Date;
(xli) to the Class O Certificates, in reduction of the Class
Principal Balance thereof, an amount up to the Remaining Principal
Distribution Amount for such Distribution Date until such Class Principal
Balance has been reduced to zero;
(xlii) to the Class O Certificates, until all amounts of Collateral
Support Deficit previously allocated to the Class O Certificates, but not
previously reimbursed, have been reimbursed in full;
(xliii) to the Class P Certificates, in respect of interest, up to
the Optimal Interest Distribution Amount for such Class for such
Distribution Date;
(xliv) to the Class P Certificates, in reduction of the Class
Principal Balance thereof, an amount up to the Remaining Principal
Distribution Amount for such Distribution Date until such Class Principal
Balance has been reduced to zero;
(xlv) to the Class P Certificates, until all amounts of Collateral
Support Deficit previously allocated to the Class P Certificates, but not
previously reimbursed, have been reimbursed in full;
(xlvi) to the Class 622-A, Class 622-B, Class 622-C, Class 622-D,
Class L622-E and Class 622-F Participation Certificates, in the following
order of priority:
(A) to the Class 622-A Participation Certificates, in respect
of interest, up to the Optimal Interest Distribution Amount for such
Class for such Distribution Date;
(B) to the Class 622-A Participation Certificates, (I) in
reduction of the Certificate Balance thereof, an amount up to its
pro rata portion (based on outstanding Certificate Balances of the
Class 622 A, Class 622 B, Class 622 C, Class 622 D, Class 622 E and
Class 622 F Participation Certificates) of (x) any principal
prepayments allocated to the 000 Xxxxx Xxxxxx Non-Pooled Portion for
such Distribution Date; and (y) the portion of all principal due
(including the Balloon Payment, if then due) on the 000 Xxxxx Xxxxxx
Loan that is allocated to the 000 Xxxxx Xxxxxx Non-Pooled Portion;
and (II) after an event of default on the 000 Xxxxx Xxxxxx Xxxx, xx
if the 000 Xxxxx Xxxxxx Loan becomes a Specially Serviced Mortgage
Loan as a result of any event of default, all principal allocated
the 000 Xxxxx Xxxxxx Non-Pooled Portion, in any case until such
Certificate Balance has been reduced to zero;
(C) to the Class 622-A Participation Certificates, until any
prior Collateral Support Deficits relating to the 000 Xxxxx Xxxxxx
Loan previously allocated to the Class 622-A Participation
Certificates, but not previously reimbursed, have been reimbursed in
full;
(D) to the Class 622-B Participation Certificates, in respect
of interest, up to the Optimal Interest Distribution Amount for such
Class for such Distribution Date;
(E) to the Class 622-B Participation Certificates, (I) in
reduction of the Certificate Balance thereof, an amount up to its
pro rata portion (based on outstanding Certificate Balances of the
Class 622 A, Class 622 B, Class 622 C, Class 622 D, Class 622 E and
Class 622 F Participation Certificates) of (x) any principal
prepayments allocated to the 000 Xxxxx Xxxxxx Non-Pooled Portion for
such Distribution Date; and (y) the portion of all principal due
(including the Balloon Payment, if then due) on the 000 Xxxxx Xxxxxx
Loan that is allocated to the 000 Xxxxx Xxxxxx Non-Pooled Portion;
and (II) after an event of default on the 000 Xxxxx Xxxxxx Xxxx, xx
if the 000 Xxxxx Xxxxxx Loan becomes a Specially Serviced Mortgage
Loan as a result of any event of default, all principal allocated to
the 000 Xxxxx Xxxxxx Non-Pooled Portion that remains after
application to the Class 622-A Participation Certificates, in any
case until such Certificate Balance has been reduced to zero;
(F) to the Class 622-B Participation Certificates, until any
prior Collateral Support Deficits relating to the 000 Xxxxx Xxxxxx
Loan previously allocated to the Class 622-B Participation
Certificates, but not previously reimbursed, have been reimbursed in
full;
(G) to the Class 622-C Participation Certificates, in respect
of interest, up to the Optimal Interest Distribution Amount for such
Class for such Distribution Date;
(H) to the Class 622-C Participation Certificates, (I) in
reduction of the Certificate Balance thereof, an amount up to its
pro rata portion (based on outstanding Certificate Balances of the
Class 622 A, Class 622 B, Class 622 C, Class 622 D, Class 622 E and
Class 622 F Participation Certificates) of (x) any principal
prepayments allocated to the 000 Xxxxx Xxxxxx Non-Pooled Portion for
such Distribution Date; and (y) the portion of all principal due
(including the Balloon Payment, if then due) on the 000 Xxxxx Xxxxxx
Loan that is allocated to the 000 Xxxxx Xxxxxx Non-Pooled Portion;
and (II) after an event of default on the 000 Xxxxx Xxxxxx Xxxx, xx
if the 000 Xxxxx Xxxxxx Loan becomes a Specially Serviced Mortgage
Loan as a result of any event of default, all principal allocated to
the 000 Xxxxx Xxxxxx Non-Pooled Portion that remains after
application to the Class 622-A Participation Certificates and the
Class 622-B Participation Certificates, in any case until such
Certificate Balance has been reduced to zero;
(I) to the Class 622-C Participation Certificates, until any
prior Collateral Support Deficits relating to the 000 Xxxxx Xxxxxx
Loan previously allocated to the Class 622-C Participation
Certificates, but not previously reimbursed, have been reimbursed in
full;
(J) to the Class 622-D Participation Certificates, in respect
of interest, up to the Optimal Interest Distribution Amount for such
Class for such Distribution Date;
(K) to the Class 622-D Participation Certificates, (I) in
reduction of the Certificate Balance thereof, an amount up to its
pro rata portion (based on outstanding Certificate Balances of the
Class 622 A, Class 622 B, Class 622 C, Class 622 D, Class 622 E and
Class 622 F Participation Certificates) of (x) any principal
prepayments allocated to the 000 Xxxxx Xxxxxx Non-Pooled Portion for
such Distribution Date; and (y) the portion of all principal due
(including the Balloon Payment, if then due) on the 000 Xxxxx Xxxxxx
Loan that is allocated to the 000 Xxxxx Xxxxxx Non-Pooled Portion;
and (II) after an event of default on the 000 Xxxxx Xxxxxx Xxxx, xx
if the 000 Xxxxx Xxxxxx Loan becomes a Specially Serviced Mortgage
Loan as a result of any event of default, all principal allocated to
the 000 Xxxxx Xxxxxx Non-Pooled Portion that remains after
application to the Class 622-A Participation Certificates, the Class
622-B Participation Certificates and the Class 622-C Participation
Certificates, in any case until such Certificate Balance has been
reduced to zero;
(L) to the Class 622-D Participation Certificates, until any
prior Collateral Support Deficits relating to the 000 Xxxxx Xxxxxx
Loan previously allocated to the Class 622-D Participation
Certificates, but not previously reimbursed, have been reimbursed in
full;
(M) to the Class 622-E Participation Certificates, in respect
of interest, up to the Optimal Interest Distribution Amount for such
Class for such Distribution Date;
(N) to the Class 622-E Participation Certificates, (I) in
reduction of the Certificate Balance thereof, an amount up to its
pro rata portion (based on outstanding Certificate Balances of the
Class 622 A, Class 622 B, Class 622 C, Class 622 D, Class 622 E and
Class 622 F Participation Certificates) of (x) any principal
prepayments allocated to the 000 Xxxxx Xxxxxx Non-Pooled Portion for
such Distribution Date; and (y) the portion of all principal due
(including the Balloon Payment, if then due) on the 000 Xxxxx Xxxxxx
Loan that is allocated to the 000 Xxxxx Xxxxxx Non-Pooled Portion;
and (II) after an event of default on the 000 Xxxxx Xxxxxx Xxxx, xx
if the 000 Xxxxx Xxxxxx Loan becomes a Specially Serviced Mortgage
Loan as a result of any event of default, all principal allocated to
the 000 Xxxxx Xxxxxx Non-Pooled Portion that remains after
application to the Class 622-A Participation Certificates, the Class
622-B Participation Certificates, the Class 622-C Participation
Certificates and the Class 622-D Participation Certificates, in any
case until such Certificate Balance has been reduced to zero;
(O) to the Class 622-E Participation Certificates, until any
prior Collateral Support Deficits relating to the 000 Xxxxx Xxxxxx
Loan previously allocated to the Class 622-E Participation
Certificates, but not previously reimbursed, have been reimbursed in
full;
(P) to the Class 622-F Participation Certificates, in respect
of interest, up to the Optimal Interest Distribution Amount for such
Class for such Distribution Date;
(Q) to the Class 622-F Participation Certificates, (I) in
reduction of the Certificate Balance thereof, an amount up to its
pro rata portion (based on outstanding Certificate Balances of the
Class 622 A, Class 622 B, Class 622 C, Class 622 D, Class 622 E and
Class 622 F Participation Certificates) of (x) any principal
prepayments allocated to the 000 Xxxxx Xxxxxx Non-Pooled Portion for
such Distribution Date; and (y) the portion of all principal due
(including the Balloon Payment, if then due) on the 000 Xxxxx Xxxxxx
Loan that is allocated to the 000 Xxxxx Xxxxxx Non-Pooled Portion;
and (II) after an event of default on the 000 Xxxxx Xxxxxx Xxxx, xx
if the 000 Xxxxx Xxxxxx Loan becomes a Specially Serviced Mortgage
Loan as a result of any event of default, all principal allocated
the 000 Xxxxx Xxxxxx Non-Pooled Portion that remains after
application to the Class 622-A Participation Certificates, the Class
622-B Participation Certificates, the Class 622-C Participation
Certificates, the Class 622-D Participation Certificates and the
Class 622-E Participation Certificates, in any case until such
Certificate Balance has been reduced to zero; and
(R) to the Class 622-F Participation Certificates, until any
prior Collateral Support Deficits relating to the 000 Xxxxx Xxxxxx
Loan previously allocated to the Class 622-F Participation
Certificates, but not previously reimbursed, have been reimbursed in
full. and
(xlvii) to the Class R Certificates, the amount, if any, remaining
in the Upper-Tier Distribution Account after all other distributions
pursuant to this Section 4.01(a) and Section 4.01(d).
(b) Notwithstanding the foregoing, on each Distribution Date
occurring on or after the date on which the Class Principal Balance of the last
outstanding Class of Subordinate Certificates has been reduced to zero, the
Trustee shall apply amounts on deposit in the Upper-Tier Distribution Account in
the following order of priority: (i) concurrently, to the Class X-0, Xxxxx X-0,
Class A-3, Class A-4, Class A-5, Class A-X, Class A-Y and Class A-SP
Certificates, pro rata, in respect of the Optimal Interest Amount allocable to
each such Class; (ii) to the Class A-1, Class A-2, Class A-3, Class A-4 and
Class A-5 Certificates, pro rata in reduction of the Class Principal Balances
thereof, until the Class Principal Balance of each such Class has been reduced
to zero; and (iii) to the Class X-0, Xxxxx X-0, Class A-3, Class A-4 and Class
A-5 Certificates, pro rata (based on the aggregate unreimbursed Collateral
Support Deficit previously allocated to such Class) until all amounts of such
Collateral Support Deficit previously allocated to such Classes but not
previously reimbursed have been reimbursed in full.
(c) On each Distribution Date, each Uncertificated Lower-Tier
Interest (other than the Class LA-1-1, Class LA-1-2. Class LA-1-3, Class LA-2-1,
Class LA-2-2, Class LA-2-3, Class LA-3-1, Class LA-3-2, Class LA-4-1, Class
LA-4-2, Class LA-5-1, Class LA-5-2, Class LD-1, Class LD-2, Class LE-1, Class
LE-2, Class LF-1 or Class LF-2 Uncertificated Interests) shall be deemed to
receive distributions from the Lower-Tier Distribution Account in respect of
principal or reimbursement of Collateral Support Deficit in an amount equal to
the amount of principal or reimbursement of Collateral Support Deficit
distributable to such Uncertificated Lower-Tier Interest's respective Class of
Related Certificates as provided in Sections 4.01(a) and (b). On each
Distribution Date, for so long as the Class Principal Balance of the Class A-1
Certificates is greater than $112,554,000, the Class LA-1-1 Uncertificated
Interest shall be deemed to receive distributions from the Lower-Tier
Distribution Account in respect of principal in an amount equal to the amount of
principal distributable to the Class A-1 Certificates as provided in Sections
4.01(a) and (b). On each Distribution Date, for so long as the Class Principal
Balance of the Class A-1 Certificates is $112,554,000 or less, but greater than
$32,672,000, the Class LA-1-2 Uncertificated Interest shall be deemed to receive
distributions from the Lower-Tier Distribution Account in respect of principal
in an amount equal to the amount of principal distributable to the Class A-1
Certificates as provided in Sections 4.01(a) and (b). On each Distribution Date,
for so long as the Class Principal Balance of the Class A-1 Certificates is
$32,672,000 or less, but greater than $-zero, the Class LA-1-3 Uncertificated
Interest shall be deemed to receive distributions from the Lower-Tier
Distribution Account in respect of principal in an amount equal to the amount of
principal distributable to the Class A-1 Certificates as provided in Sections
4.01(a) and (b). On each Distribution Date, for so long as the Class Principal
Balance of the Class A-2 Certificates is greater than $162,697,000, the Class
LA-2-1 Uncertificated Interest shall be deemed to receive distributions from the
Lower-Tier Distribution Account in respect of principal in an amount equal to
the amount of principal distributable to the Class A-2 Certificates as provided
in Sections 4.01(a) and (b). On each Distribution Date, for so long as the Class
Principal Balance of the Class A-2 Certificates is $162,697,000 or less, but
greater than $83,152,000, the Class LA-2-2 Uncertificated Interest shall be
deemed to receive distributions from the Lower-Tier Distribution Account in
respect of principal in an amount equal to the amount of principal distributable
to the Class A-2 Certificates as provided in Sections 4.01(a) and (b). On each
Distribution Date, for so long as the Class Principal Balance of the Class A-2
Certificates is $83,152,000 or less, but greater than zero, the Class LA-2-3
Uncertificated Interest shall be deemed to receive distributions from the
Lower-Tier Distribution Account in respect of principal in an amount equal to
the amount of principal distributable to the Class A-2 Certificates as provided
in Sections 4.01(a) and (b). On each Distribution Date, for so long as the Class
Principal Balance of the Class A-3 Certificates is greater than $43,476,000, the
Class LA-3-1 Uncertificated Interest shall be deemed to receive distributions
from the Lower-Tier Distribution Account in respect of principal in an amount
equal to the amount of principal distributable to the Class A-3 Certificates as
provided in Sections 4.01(a) and (b). On each Distribution Date, for so long as
the Class Principal Balance of the Class A-3 Certificates is $43,476,000 or
less, but greater than zero, the Class LA-3-2 Uncertificated Interest shall be
deemed to receive distributions from the Lower-Tier Distribution Account in
respect of principal in an amount equal to the amount of principal distributable
to the Class A-3 Certificates as provided in Sections 4.01(a) and (b). On each
Distribution Date, for so long as the Class Principal Balance of the Class A-4
Certificates is greater than $32,800,000, the Class LA-4-1 Uncertificated
Interest shall be deemed to receive distributions from the Lower-Tier
Distribution Account in respect of principal in an amount equal to the amount of
principal distributable to the Class A-4 Certificates as provided in Sections
4.01(a) and (b). On each Distribution Date, for so long as the Class Principal
Balance of the Class A-4 Certificates is $32,800,000 or less, but greater than
zero, the Class LA-4-2 Uncertificated Interest shall be deemed to receive
distributions from the Lower-Tier Distribution Account in respect of principal
in an amount equal to the amount of principal distributable to the Class A-4
Certificates as provided in Sections 4.01(a) and (b). On each Distribution Date,
for so long as the Class Principal Balance of the Class A-5 Certificates is
greater than $728,780,000, the Class LA-5-1 Uncertificated Interest shall be
deemed to receive distributions from the Lower-Tier Distribution Account in
respect of principal in an amount equal to the amount of principal distributable
to the Class A-5 Certificates as provided in Sections 4.01(a) and (b). On each
Distribution Date, for so long as the Class Principal Balance of the Class A-5
Certificates is $728,780,000 or less, but greater than zero, the Class LA-5-2
Uncertificated Interest shall be deemed to receive distributions from the
Lower-Tier Distribution Account in respect of principal in an amount equal to
the amount of principal distributable to the Class A-5 Certificates as provided
in Sections 4.01(a) and (b). On each Distribution Date, for so long as the Class
Principal Balance of the Class D Certificates is greater than $33,910,000, the
Class LD-1 Uncertificated Interest shall be deemed to receive distributions from
the Lower-Tier Distribution Account in respect of principal in an amount equal
to the amount of principal distributable to the Class D Certificates as provided
in Sections 4.01(a) and (b). On each Distribution Date, for so long as the Class
Principal Balance of the Class D Certificates is $33,910,000 or less, but
greater than zero, the Class LD-2 Uncertificated Interest shall be deemed to
receive distributions from the Lower-Tier Distribution Account in respect of
principal in an amount equal to the amount of principal distributable to the
Class D Certificates as provided in Sections 4.01(a) and (b). On each
Distribution Date, for so long as the Class Principal Balance of the Class E
Certificates is greater than $13,416,000, the Class LE-1 Uncertificated Interest
shall be deemed to receive distributions from the Lower-Tier Distribution
Account in respect of principal in an amount equal to the amount of principal
distributable to the Class E Certificates as provided in Sections 4.01(a) and
(b). On each Distribution Date, for so long as the Class Principal Balance of
the Class E Certificates is $13,416,000 or less, but greater than zero, the
Class LE-2 Uncertificated Interest shall be deemed to receive distributions from
the Lower-Tier Distribution Account in respect of principal in an amount equal
to the amount of principal distributable to the Class E Certificates as provided
in Sections 4.01(a) and (b). On each Distribution Date, for so long as the Class
Principal Balance of the Class F Certificates is greater than $17,166,000, the
Class LF-1 Uncertificated Interest shall be deemed to receive distributions from
the Lower-Tier Distribution Account in respect of principal in an amount equal
to the amount of principal distributable to the Class F Certificates as provided
in Sections 4.01(a) and (b). On each Distribution Date, for so long as the Class
Principal Balance of the Class Certificates is $17,166,000 or less, but greater
than zero, the Class LF-2 Uncertificated Interest shall be deemed to receive
distributions from the Lower-Tier Distribution Account in respect of principal
in an amount equal to the amount of principal distributable to the Class F
Certificates as provided in Sections 4.01(a) and (b).
On each Distribution Date, the Class LA-1-1, Class LA-1-2 and Class
LA-1-3 Uncertificated Interests; the Class LA-2-1, Class LA-2-2 and Class LA-2-3
Uncertificated Interests; the Class LA-3-1 and Class LA-3-2 Uncertificated
Interests; the Class LA-4-1 and Class LA-4-2 Uncertificated Interests; and the
Class LA-5-1 and Class LA-5-2 Uncertificated Interests shall be deemed to
receive distributions from the Lower-Tier Distribution Account in respect of
reimbursement of Collateral Support Deficit distributable to the Class A-1,
Class A-2, Class A-3, Class A-4 and Class A-5 Certificates, respectively, as
provided in Sections 4.01(a) and (b), in each case on a pro rata basis (based on
the aggregate Collateral Support Deficit previously allocated to such
Uncertificated Lower-Tier Interests).
During each Interest Accrual Period, each Uncertificated Lower-Tier
Interest (other than the Class LY, Class L622-A, Class L622-B, Class L622-C,
Class L622-D, Class L622-E and Class L622-F Uncertificated Interests) shall
accrue interest in an amount equal to the product of the Lower-Tier Principal
Amount of each such Uncertificated Lower-Tier Interest and the Weighted Average
Net Mortgage Rate, and the Class L622-A, Class L622-B, Class L622-C, Class
L622-D, Class L622-E and Class L622-F Uncertificated Interests shall accrue
interest at the Pass-Through Rate of their Related Certificates. On each
Distribution Date, each Uncertificated Lower-Tier Interest shall be deemed to
receive distributions in respect of interest in an amount equal to the sum of
(i) the amount of interest that will actually be distributed in respect of such
Uncertificated Lower-Tier Interest's Related Certificates (provided that the
interest distributed in respect of the Class A-1 Certificates shall be allocated
to the Class LA-1-1, Class LA-1-2 and Class LA-1-3 Uncertificated Interests, pro
rata based on interest accrued; the interest distributed in respect of the Class
A-2 Certificates shall be allocated to the Class LA-2-1, Class LA-2-2 and Class
LA-2-3 Uncertificated Interests, pro rata based on interest accrued; the
interest distributed in respect of the Class A-3 Certificates shall be allocated
to the Class LA-3-1 and Class LA-3-2 Uncertificated Interests, pro rata based on
interest accrued; the interest distributed in respect of the Class A-4
Certificates shall be allocated to the Class LA-4-1 and Class LA-4-2
Uncertificated Interests, pro rata based on interest accrued; the interest
distributed in respect of the Class A-5 Certificates shall be allocated to the
Class LA-5-1 and Class LA-5-2 Uncertificated Interests, pro rata based on
interest accrued; the interest distributed in respect of the Class D
Certificates shall be allocated to the Class LD-1 and Class LD-2 Uncertificated
Interests, pro rata based on interest accrued; the interest distributed in
respect of the Class E Certificates shall be allocated to the Class LE-1 and
Class LE-2 Uncertificated Interests, pro rata based on interest accrued; and the
interest distributed in respect of the Class F Certificates shall be allocated
to the Class LF-1 and Class LF-2 Uncertificated Interests, pro rata based on
interest accrued; and (ii) (other than with respect to the Class LY, Class
L622-A, Class L622-B, Class L622-C, Class L622-D, Class L622-E and Class L622-F
Uncertificated Interests) the amount of interest that will actually be
distributed in respect of such Uncertificated Lower-Tier Interest's
corresponding Related Component or Components. In all events, the amount accrued
in respect of each Uncertificated Lower-Tier Interest less the amount actually
distributed in respect of such Uncertificated Lower-Tier Interest shall equal
the sum of (i) the Interest Shortfall Amount allocated to such Uncertificated
Lower-Tier Interest's Related Certificate and allocated pro rata to the Class
LA-1-1, Class LA-1-2 and Class LA-1-3 Uncertificated Interests, in the case of
the Class A-1 Certificates; to the Class LA-2-1, Class LA-2-2 and Class LA-2-3
Uncertificated Interests, in the case of the Class A-2 Certificates; to the
Class LA-3-1 and Class LA-3-2 Uncertificated Interests, in the case of the Class
A-3 Certificates; to the Class LA-4-1 and Class LA-4-2 Uncertificated Interests,
in the case of the Class A-4 Certificates; to the Class LA-5-1 and Class LA-5-2
Uncertificated Interests, in the case of the Class A-5 Certificates; to the
Class LD-1 and Class LD-2 Uncertificated Interests, in the case of the Class D
Certificates; to the Class LE-1 and Class LE-2 Uncertificated Interests, in the
case of the Class E Certificates; and to the Class LF-1 and Class LF-2
Uncertificated Interests, in the case of the Class F Certificates based on their
respective Interest Shortfall Amounts and (ii) the Interest Shortfall Amount
allocated to the related Class A-X Component or Class A-SP Component and
attributable to such Uncertificated Lower-Tier Interest. The Class LY
Uncertificated Interest shall accrue interest and, on each Distribution Date,
shall be deemed to receive distributions of interest in an amount equal to the
interest accrued and the interest actually distributed in respect of the Class
A-Y Certificates (including any Interest Shortfall Amount with respect thereto).
Any amounts remaining in the Lower-Tier Distribution Account after payment to
the Uncertificated Lower-Tier Interests pursuant to this Section 4.01(c) and
Section 4.01(d) and payment of expenses of the Trust Fund shall be distributed
to the Class LR Certificates in respect of the residual interest in the
Lower-Tier REMIC.
Such amounts distributed to the Uncertificated Lower-Tier Interests
in respect of principal, interest and reduction of Collateral Support Deficit
with respect to any Distribution Date are referred to herein collectively as the
"Lower-Tier Distribution Amount" and shall be deemed to be deposited by the
Trustee in the Upper-Tier Distribution Account.
As of any date, payments of principal in respect of the Mortgage
Loans and the Collateral Support Deficit shall be allocated to the
Uncertificated Lower-Tier Interests such that the sum of the principal balance
after application of any Collateral Support Deficit of each Uncertificated
Lower-Tier Interest and the cumulative amount of Collateral Support Deficit
allocated to such Class of Uncertificated Lower-Tier Interests equals the sum of
the Class Principal Balance of the Related Certificates after the application of
any Collateral Support Deficit with respect thereto and the cumulative amount of
Collateral Support Deficit allocated to such Class of Related Certificates;
provided that
(i) the Lower-Tier Principal Amount of the Class LA-1-1
Uncertificated Interest shall be the lesser of $127,000,000 and the excess
of the Class Principal Balance of the Class A-1 Certificates over
$112,554,000, the Lower-Tier Principal Amount of the Class LA-1-2
Uncertificated Interest shall be the lesser of $112,554,000 and the excess
of the Class Principal Balance of the Class A-1 Certificates over
$32,672,000, the Lower-Tier Principal Amount of the Class LA-1-3
Uncertificated Interest shall be the lesser of $32,672,000 and the Class
Principal Balance of the Class A-1 Certificates, in each case reduced by
any Collateral Support Deficit allocated to the Class A-1 Certificates,
first, to the Class LA-1-1 Uncertificated Interest, then the Class LA-1-2
Uncertificated Interest and then the Class LA-1-3 Uncertificated Interest;
(ii) the Lower-Tier Principal Amount of the Class LA-2-1
Uncertificated Interest shall be the lesser of $214,000,000 and the excess
of the Class Principal Balance of the Class A-2 Certificates over
$162,697,000, the Lower-Tier Principal Amount of the Class LA-2-2
Uncertificated Interest shall be the lesser of $162,697,000 and the excess
of the Class Principal Balance of the Class A-2 Certificates over
$83,152,000 and the Lower-Tier Principal Amount of the Class LA-2-3
Uncertificated Interest shall be the lesser of $83,152,000 and the Class
Principal Balance of the Class A-2 Certificates, in each case reduced by
any Collateral Support Deficit allocated to the Class A-2 Certificates,
first, to the Class LA-2-1 Uncertificated Interest, then the Class LA-2-2
Uncertificated Interest and then the Class LA-2-3 Uncertificated Interest;
(iii) the Lower-Tier Principal Amount of the Class LA-3-1
Uncertificated Interest shall be the lesser of $212,000,000 and the excess
of the Class Principal Balance of the Class A-3 Certificates over
$43,476,000, and the Lower-Tier Principal Amount of the Class LA-3-2
Uncertificated Interest shall be the lesser of $43,476,000 and the Class
Principal Balance of the Class A-3 Certificates, in each case reduced by
any Collateral Support Deficit allocated to the Class A-3 Certificates,
first, to the Class LA-3-1 Uncertificated Interest and then the Class
LA-3-2 Uncertificated Interest;
(iv) the Lower-Tier Principal Amount of the Class LA-4-1
Uncertificated Interest shall be the lesser of $55,000,000 and the excess
of the Class Principal Balance of the Class A-4 Certificates over
$32,800,000, and the Lower-Tier Principal Amount of the Class LA-4-2
Uncertificated Interest shall be the lesser of $32,800,000 and the Class
Principal Balance of the Class A-4 Certificates, in each case reduced by
any Collateral Support Deficit allocated to the Class A-4 Certificates,
first, to the Class LA-4-1 Uncertificated Interest and then the Class
LA-4-2 Uncertificated Interest;
(v) the Lower-Tier Principal Amount of the Class LA-5-1
Uncertificated Interest shall be the lesser of $862,414,000 and the excess
of the Class Principal Balance of the Class A-5 Certificates over
$728,780,000, and the Lower-Tier Principal Amount of the Class LA-5-2
Uncertificated Interest shall be the lesser of $728,780,000 and the Class
Principal Balance of the Class A-5 Certificates, in each case reduced by
any Collateral Support Deficit allocated to the Class A-5 Certificates,
first, to the Class LA-5-1 Uncertificated Interest and then the Class
LA-5-2 Uncertificated Interest;
(vi) the Lower-Tier Principal Amount of the Class LD-1
Uncertificated Interest shall be the lesser of $38,808,000 and the excess
of the Class Principal Balance of the Class D Certificates over
$33,910,000, and the Lower-Tier Principal Amount of the Class LD-2
Uncertificated Interest shall be the lesser of $33,910,000 and the Class
Principal Balance of the Class D Certificates, in each case reduced by any
Collateral Support Deficit allocated to the Class D Certificates, first,
to the Class LD-1 Uncertificated Interest and then the Class LD-2
Uncertificated Interest;
(vii) the Lower-Tier Principal Amount of the Class LE-1
Uncertificated Interest shall be the lesser of $19,405,000 and the excess
of the Class Principal Balance of the Class E Certificates over
$13,416,000, and the Lower-Tier Principal Amount of the Class LE-2
Uncertificated Interest shall be the lesser of $13,416,000 and the Class
Principal Balance of the Class E Certificates, in each case reduced by any
Collateral Support Deficit allocated to the Class E Certificates, first,
to the Class LE-1 Uncertificated Interest and then the Class LE-2
Uncertificated Interest; and
(viii) the Lower-Tier Principal Amount of the Class LF-1
Uncertificated Interest shall be the lesser of $19,404,000 and the excess
of the Class Principal Balance of the Class F Certificates over
$17,166,000, and the Lower-Tier Principal Amount of the Class LF-2
Uncertificated Interest shall be the lesser of $17,166,000 and the Class
Principal Balance of the Class F Certificates, in each case reduced by any
Collateral Support Deficit allocated to the Class F Certificates, first,
to the Class LF-1 Uncertificated Interest and then the Class LF-2
Uncertificated Interest. The initial principal balance of each
Uncertificated Lower-Tier Interest equals the respective Original
Lower-Tier Principal Amount. The interest rate with respect to each
Uncertificated Lower-Tier Interest (other than the Class LY Uncertificated
Interest and the Class L622 Uncertificated Interests) will be the Weighted
Average Net Mortgage Rate, with respect to the Class LY Uncertificated
Interest will be the Class A-Y Pass-Through Rate and, with respect to each
of the Class L622 Uncertificated Interests will be the Pass-Through Rate
of their Related Certificates.
Interest Shortfall Amounts allocated to the Class A-X and Class A-SP
Certificates shall be attributed to the Uncertificated Lower-Tier Interests to
the extent of their Related Components, pro rata, based on interest accrued on
such Components. Interest Shortfall Amounts allocated to the Class A-Y
Certificates shall be attributed to the Class LY Uncertificated Interest. Any
amounts so allocated shall have the same seniority as interest payments due on
the Class A-X, Class A-Y and Class A-SP Certificates. Prepayment Interest
Shortfalls shall be allocated to each Class of Uncertificated Lower-Tier
Interests pro rata on the basis of their respective interest entitlements;
provided, that Prepayment Interest Shortfalls with respect to the 000 Xxxxx
Xxxxxx Loan shall first be allocated to the Class L622 Uncertificated Interests
in reverse alphabetical order.
(d) On each Master Servicer Remittance Date, the Master Servicers
shall remit to the Trustee all Prepayment Premiums and Yield Maintenance Charges
(other than with respect to Prepayment Premiums and Yield Maintenance Charges
allocated to the 000 Xxxxx Xxxxxx Loan) for deposit in the Lower-Tier
Distribution Account for distribution to the Uncertificated Lower-Tier
Interests, and shall remit to the Trustee all Prepayment Premiums and Yield
Maintenance Charges with respect to the 000 Xxxxx Xxxxxx Loan for deposit in the
000 Xxxxx Xxxxxx Loan REMIC Distribution Account for distribution to the 000
Xxxxx Xxxxxx Loan REMIC Regular Interests. On each Distribution Date, the
Trustee shall be deemed to withdraw from the 000 Xxxxx Xxxxxx Loan REMIC
Distribution Account an amount equal to the Prepayment Premiums and Yield
Maintenance Charges actually collected on the 000 Xxxxx Xxxxxx Loan or related
REO Mortgage Loan and shall be deemed to distribute such amounts to the 000
Xxxxx Xxxxxx Loan REMIC Regular Interests in the manner specified in Section
3.28(a)(ix) hereof for deposit in the Lower-Tier Distribution Account. On each
Distribution Date, the Trustee shall be deemed to withdraw from the Lower-Tier
Distribution Account an aggregate amount equal to all Prepayment Premiums and
Yield Maintenance Charges actually collected on the Loans or any REO Mortgage
Loans during the related Due Period (other than any Yield Maintenance Charges
and Prepayment Premiums that are allocated to the 000 Xxxxx Xxxxxx Non-Pooled
Portion pursuant to Section 3.28(a)(ix) hereof) and shall be deemed to
distribute such amount to the Uncertificated Lower-Tier Interests (other than
the Class L622 Uncertificated Interests), pro rata in proportion to their
outstanding Lower-Tier Principal Amounts. Yield Maintenance Charges and
Prepayment Premiums that are allocated to the 000 Xxxxx Xxxxxx Non-Pooled
Portion pursuant to Section 3.28(a)(ix) hereof shall be allocated to the Class
L622 Uncertificated Interests pro rata in proportion to their outstanding
principal balances.
On each Distribution Date, the Trustee shall withdraw any amounts on
deposit in the Upper-Tier Distribution Account that represent Prepayment
Premiums and Yield Maintenance Charges (other than any Yield Maintenance Charges
and Prepayment Premiums that are allocated to the 000 Xxxxx Xxxxxx Non-Pooled
Portion pursuant to Section 3.28(a)(ix) hereof) actually collected on Loans or
REO Mortgage Loans during the related Due Period and remitted in respect of the
Uncertificated Lower-Tier Interests pursuant to this Section 4.01(d), and shall
distribute such amounts as follows:
(i) Prepayment Premiums shall be distributed to the Class A-1, Class
A-2, Class A-3, Class A-4, Class A-5, Class B, Class C, Class D, Class E,
Class F, Class G and Class H Certificates, in an amount equal to the
product of (a) a fraction whose numerator is the amount distributed as
principal to such Class on such Distribution Date, and whose denominator
is the total amount distributed as principal to the Class A-1, Class A-2,
Class A-3, Class A-4, Class A-5, 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
and Class P Certificates on such Distribution Date, (b) 25% and (c) the
total amount of Prepayment Premiums (other than any Prepayment Premiums
that are allocated to the 000 Xxxxx Xxxxxx Non-Pooled Portion pursuant to
Section 3.28(a)(ix) hereof) collected during the related Due Period. If
the Prepayment Premium relates to a Co-op Mortgage Loan, the Holders of
the Class A-Y Certificates shall be entitled to 70% of the portion of the
subject Prepayment Premium that remains after the distribution
contemplated in the immediately preceding sentence. Any Prepayment
Premiums collected during the related Due Period and remaining after the
distributions contemplated in the prior two sentences shall be distributed
to the Holders of the Class A-X Certificates; and
(ii) Yield Maintenance Charges shall be distributed to the Class
A-1, Class A-2, Class A-3, Class A-4, Class A-5, Class B, Class C, Class
D, Class E, Class F, Class G and Class H Certificates, in an amount equal
to the product of (a) a fraction whose numerator is the amount distributed
as principal to such Class on such Distribution Date, and whose
denominator is the total amount distributed as principal to the Class A-1,
Class A-2, Class A-3, Class A-4, Class A-5, 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 and Class P Certificates on such Distribution Date, (b)
the Base Interest Fraction for the related Principal Prepayment and such
Class of Certificates and (c) the aggregate amount of Yield Maintenance
Charges (other than any Yield Maintenance Charges that are allocated to
the 000 Xxxxx Xxxxxx Non-Pooled Portion pursuant to Section 3.28(a)(ix)
hereof) collected on such Principal Prepayment during the related Due
Period. If the Yield Maintenance Charge relates to a Co-op Mortgage Loan,
the Holders of the Class A-Y Certificates shall be entitled to 60% of the
portion of the subject Yield Maintenance Charge that remains after the
distribution contemplated in the immediately preceding sentence. Any Yield
Maintenance Charges collected during the related Due Period remaining
after the distributions contemplated in the prior two sentences shall be
distributed to the Holders of the Class A-X Certificates.
Following the reduction of the Class Principal Balances of the Class
A-1, Class A-2, Class A-3, Class A-4, Class A-5, Class B, Class C, Class D,
Class E, Class F, Class G and Class H Certificates to zero, the Trustee shall
distribute to the Class A-Y Certificates the requisite percentage of such
Prepayment Premiums and Yield Maintenance Charges actually received and remitted
in respect of Uncertificated Lower-Tier Interests as set forth in Section
4.01(d)(i) and (ii) during the related Due Period with respect to the Co-op
Mortgage Loans. All remaining Prepayment Premiums and Yield Maintenance Charges
that relate to Co-op Mortgage Loans and all Yield Maintenance Charges and
Prepayment Premiums that relate to Mortgage Loans other than Co-op Mortgage
Loans actually received during the related Due Period with respect to the
Mortgage Loans and remitted in respect of Uncertificated Lower-Tier Interests
pursuant to this Section 4.01(d) (other than Prepayment Premiums and Yield
Maintenance Charges that are allocated to the 000 Xxxxx Xxxxxx Non-Pooled
Portion pursuant to Section 3.28(a)(ix) hereof) shall be distributed to the
Class A-X Certificates.
For purposes of determining the portion of any Yield Maintenance
Charge that is distributable to the Holders of any Class of Yield Maintenance
Certificates on any Distribution Date, the relevant "Discount Rate" shall be the
same discount rate (exclusive of any applicable spread) used to calculate such
Yield Maintenance Charge, with such discount rate (exclusive of any applicable
spread) converted to a monthly equivalent rate (regardless of whether any
similar conversion occurred at the loan level). The relevant Discount Rate shall
be provided promptly by the applicable Master Servicer to the Trustee.
(e) On any applicable Distribution Date, (i) the Trustee shall
withdraw from the Post-ARD Additional Interest Distribution Account any Post-ARD
Additional Interest collected in respect of the Mortgage Loans for such
Distribution Date and shall distribute such amount to the Class V Certificates;
and (ii) with respect to amounts on deposit in the Excess Liquidation Proceeds
Reserve Account, the Trustee shall distribute such amount to the
Certificateholders, in sequential order, after first being deemed to distribute
such amount from the Lower-Tier REMIC to the Upper-Tier REMIC in respect of the
Related Uncertificated Lower-Tier Interest, as reimbursement for previously
allocated Collateral Support Deficits and shall distribute all amounts remaining
in the Excess Liquidation Proceeds Reserve Account thereafter to the holders of
the Class LR Certificates.
(f) All distributions made with respect to each Class on each
Distribution Date shall be allocated pro rata among the outstanding Certificates
of such Class based on their respective Percentage Interests. Except as
otherwise specifically provided in Sections 4.01(h), 4.01(i) and 9.01, all such
distributions with respect to each Class on each Distribution Date shall be made
to the Certificateholders of record of the respective Class at the close of
business on the related Record Date and shall be made by wire transfer of
immediately available funds to the account of any such Certificateholder at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Trustee with written wiring
instructions no later than the related Record Date (which wiring instructions
may be in the form of a standing order applicable to all subsequent Distribution
Dates) and otherwise by check mailed to the address of such Certificateholder as
it appears in the Certificate Register. The final distribution on each
Certificate (determined without regard to any possible future reimbursement of
Collateral Support Deficit previously allocated to such Certificate) shall be
made in like manner, but only upon presentation and surrender of such
Certificate at the offices of the Trustee or such other location specified in
the notice to Certificateholders of such final distribution.
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 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 Certificate Owners that it represents. None of the Trustee, the
Depositor, the Master Servicers, the Special Servicers, the Underwriters or the
Initial Purchaser shall have any responsibility therefor except as otherwise
provided by this Agreement or applicable law.
(g) Except as otherwise provided in Section 9.01, whenever the
Trustee expects that the final distribution with respect to any Class of
Certificates (determined without regard to any possible future reimbursement of
any amount of Collateral Support Deficit previously allocated to such Class of
Certificates) will be made on the next Distribution Date, the Trustee shall, no
later than two Business Days following the related Determination Date, post a
notice on the Website to the effect that no interest shall accrue on such
Certificates from and after such Distribution Date.
Any funds not distributed to any Holder or Holders of Definitive
Certificates of any 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 Definitive Certificates
as to which notice has been given pursuant to Section 4.01(h) shall not have
been surrendered for cancellation within six months after the time specified in
such notice, the Trustee shall mail a second notice to the remaining
non-tendering Definitive 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 Definitive Certificates shall
not have been surrendered for cancellation, the Trustee, directly or through an
agent, shall take such steps to contact the remaining non-tendering Definitive
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 Definitive 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
Definitive Certificateholder on any amount held in trust hereunder by the
Trustee as a result of such Definitive Certificateholder's failure to surrender
its Certificate(s) for final payment thereof in accordance with Section 4.01(h).
(h) Distributions in reimbursement of Collateral Support Deficit
previously allocated to the Regular Certificates shall be made in the amounts
and manner specified in Section 4.01(a) to the Holders of the respective Class
otherwise entitled to distributions of interest and principal on such Class on
the relevant Distribution Date; provided, however, that all distributions in
reimbursement of Collateral Support Deficit previously allocated to a Class of
Certificates which has since been retired shall be to the prior Holders that
surrendered the Certificates of such Class upon retirement thereof and shall be
made by check mailed to the address of each such prior Holder last shown in the
Certificate Register. Notice of any such distribution to a prior Holder shall be
made in accordance with Section 11.05 at such last address. The amount of the
distribution to each such prior Holder shall be based upon the aggregate
Percentage Interest evidenced by the Certificates surrendered thereby. If the
check mailed to any such prior Holder is returned uncashed, then the amount
thereof shall be set aside and held uninvested in trust for the benefit of such
prior Holder, and the Trustee shall attempt to contact such prior Holder in the
manner contemplated by Section 4.01(i) as if such Holder had failed to surrender
its Certificates.
(i) Shortfalls in the Available Distribution Amount resulting from
unanticipated Trust Fund indemnification expenses incurred pursuant to Section
6.03 and Section 8.05 shall be allocated to the most subordinate Class of
Certificates (other than the Class 622 Participation Certificates; provided,
that if such shortfalls occur with respect to the 000 Xxxxx Xxxxxx Loan, such
shortfalls shall be allocated to the Class 622 Participation Certificates in
reverse sequential order and then to the next most subordinate Class of
Certificates then outstanding) then outstanding, until the Class Principal
Balance thereof is reduced to zero, and then shall be allocated to the next most
subordinate Class of Certificate then outstanding. Such shortfalls shall be
allocated to the Uncertificated Lower-Tier Interests and to the 000 Xxxxx Xxxxxx
Loan REMIC Regular Interests in the same manner as Collateral Support Deficits.
(j) The rights of the Certificateholders to receive distributions
from the proceeds of the Trust Fund in respect of their Certificates, and all
rights and interests of the Certificateholders in and to such distributions,
shall be as set forth in this Agreement. Neither the Holders of any Class of
Certificates nor any party hereto shall in any way be responsible or liable to
the Holders of any other Class of Certificates in respect of amounts previously
distributed on the Certificates in accordance with this Agreement.
(k) All payments made on the 000 Xxxxx Xxxxxx Loan REMIC or
subsequently acquired REO Property shall be deemed to be paid to the Lower-Tier
REMIC before payments are made to the holders of the Uncertificated Lower-Tier
Interests pursuant to Sections 4.01(c) or 4.01(d), and shall be treated as
principal, interest, Prepayment Premium or Yield Maintenance Charges, as the
case may be, based on these characterizations with respect to the 000 Xxxxx
Xxxxxx Loan (or related REO Property), except where expressly noted and, in
addition, any payment of principal on or reduction in the 000 Xxxxx Xxxxxx Loan
REMIC balance shall reduce the principal balances of the 000 Xxxxx Xxxxxx Loan
REMIC Regular Interests; provided, that payments of principal in reduction of
the Stated Principal Balance of the 000 Xxxxx Xxxxxx Loan shall be applied to
reduce the Stated Principal Balances of the 000 Xxxxx Xxxxxx Pooled Portion and
the 000 Xxxxx Xxxxxx Non-Pooled Portion as specified in Section 3.28. Any
payments on or with respect to the 000 Xxxxx Xxxxxx Loan in excess of the
principal, interest, Prepayment Premium or Yield Maintenance Charges
distributable on the 000 Xxxxx Xxxxxx Loan REMIC Regular Interests shall be
distributable to the Class LR Certificates in respect of the 000 Xxxxx Xxxxxx
Loan REMIC Residual Interest. The interest rate of the 000 Xxxxx Xxxxxx Loan
REMIC Regular Interest A and 000 Xxxxx Xxxxxx Loan REMIC Regular Interest B
shall be the Net Mortgage Pass-Through Rate of the 000 Xxxxx Xxxxxx Pooled
Portion and the 000 Xxxxx Xxxxxx Non-Pooled Portion, respectively. Servicing
Fees, Primary Servicing Fees, the Trustee Fees and all other servicing
compensation with respect to the 000 Xxxxx Xxxxxx Loan shall be deemed to be
paid by the 000 Xxxxx Xxxxxx Loan REMIC.
Section 4.02 Statements to Certificateholders; Certain Other Reports
(a) Based solely on information provided to the Trustee by the
Master Servicers pursuant to Sections 3.12, 4.02(b) and 4.02(c), the Trustee
shall prepare (or cause to be prepared) and, on each Distribution Date, provide
or make available electronically (or, upon request, by first class mail) to each
Privileged Person a statement substantially in the form of, and containing the
information set forth in, Exhibit E-1 hereto (the "Trustee Report"), detailing
the distributions on such Distribution Date and the performance, both in the
aggregate and individually to the extent available, of the Mortgage Loans and
the Mortgaged Properties; provided that the Trustee need not deliver to any
Privileged Person any Trustee Report that has been made available to such Person
via the Trustee's internet website as provided below; and provided, further,
that the Trustee has no affirmative obligation to discover the identities of
Certificate Owners and need only react to Persons claiming to be Certificate
Owners in accordance with Section 5.06; and provided, further, that during any
period that reports are required to be filed with the Commission with respect to
the Trust pursuant to Section 15(d) of the Exchange Act, each recipient of the
Trustee Report shall be deemed to have agreed to keep confidential the
information therein until such Trustee Report is filed with the Commission.
On each Distribution Date, the Trustee shall provide or make
available electronically (or, upon request, by first class mail) to each
Privileged Person each file and report comprising the CMSA Investor Reporting
Package and any other report at the direction of the Depositor, to the extent
received by the Trustee since the prior Distribution Date (or, in the case of
the initial Distribution Date, since the Closing Date); provided that during any
period that reports are required to be filed with the Commission with respect to
the Trust pursuant to Section 15(d) of the Exchange Act, each recipient of such
files and reports shall be deemed to have agreed to keep confidential the
information in any such file or report until such particular file or report is
filed with the Commission.
The Trustee shall have no obligation to provide the information or
reports described in this Section 4.02(a) until it has received the requisite
information or reports from the Master Servicers provided for herein, and the
Trustee shall not be in default hereunder due to a delay in providing the
Certificateholder Reports caused by a Master Servicer's or Special Servicer's
failure to timely deliver any information or reports hereunder. None of the
Master Servicers, the Special Servicers or the Trustee shall be responsible for
the accuracy or completeness of any information supplied to it by a Borrower,
each other or a third party, and accepted by it in good faith, that is included
in any reports, statements, materials or information prepared or provided by
either Master Servicer, either Special Servicer or the Trustee, as applicable.
None of the Trustee, the Master Servicers or the Special Servicers shall have
any obligation to verify the accuracy or completeness of any information
provided by a Borrower, a third party or each other.
The Trustee shall make available each month, to the general public,
the related Trustee Report via its internet website initially located at
"xxx.xxxxxxx.xxx/xxxx". In addition, the Trustee shall make available each
month, via its internet website on a restricted basis solely to Privileged
Persons, (i) the Unrestricted Servicer Reports, (ii) the CMSA Bond Level File
and the CMSA Collateral Summary File, (iii) any other report at the direction of
the Depositor and (iv) as a convenience to the general public (and not in
furtherance of the distribution thereof under the securities laws), the
Prospectus and this Agreement. Upon notification by the Depositor that CSFB LLC
has sold the Non-Registered Certificates to unaffiliated third parties, the
Trustee shall remove the restriction provided for in the preceding sentence and
shall make such reports and documents available to the general public. The
Trustee shall also make available each month, on a restricted basis to any
Privileged Person via its internet website, (i) the Restricted Servicer Reports,
and (ii) any other report at the direction of the Depositor. During any period
that reports are required to be filed with the Commission with respect to the
Trust pursuant to Section 15(d) of the Exchange Act, each recipient of such
files and reports shall be deemed to have agreed to keep confidential any such
information that has not been filed with the Commission.
The Trustee makes no representations or warranties as to the
accuracy or completeness or any report, document or other information made
available on its internet website and assumes no responsibility therefor. In
addition, the Trustee may disclaim responsibility for any information
distributed by the Trustee for which it is not the original source.
In connection with providing access to the Trustee's internet
website, the Trustee may require registration and the acceptance of a
disclaimer. The Trustee shall not be liable for the dissemination of information
in accordance herewith. Questions regarding the Trustee's internet website can
be directed to the Trustee's CMBS customer service desk at (000) 000-0000 or
such other number as the Trustee may hereinafter specify.
The Trustee shall be entitled to rely on but shall not be
responsible for the content or accuracy of any information provided by third
parties for purposes of preparing the Trustee Report and may affix thereto any
disclaimer it deems appropriate in its reasonable discretion (without suggesting
liability on the part of any other party hereto).
Notwithstanding the foregoing, the failure of a Master Servicer or
Special Servicer to disclose any information otherwise required to be disclosed
pursuant to this Section 4.02(a) or Section 4.02(b) shall not constitute a
breach of this Section 4.02(a) or Section 4.02(b) to the extent such Master
Servicer or such Special Servicer, as the case may be, so fails because such
disclosure, in the reasonable belief of such Master Servicer or such Special
Servicer, as the case may be, would violate any applicable law or any provision
of a Mortgage Loan Document prohibiting disclosure of information with respect
to the Mortgage Loans or the Mortgaged Properties, would constitute a waiver of
the attorney-client privilege on behalf of the Trust or would otherwise
materially harm the Trust Fund. A Master Servicer or a Special Servicer may
affix to any information provided by it any disclaimer it deems appropriate in
its reasonable discretion (without suggesting liability on the part of any other
party hereto).
(b) Within a reasonable period of time after the end of each
calendar year, the Trustee shall prepare, or cause to be prepared, and mail to
each Person who at any time during the calendar year was a Certificateholder (i)
a statement containing the aggregate information set forth on page 2 of Exhibit
E-1 hereto for such calendar year or applicable portion thereof during which
such person was a Certificateholder and (ii) such other customary information as
the Trustee deems necessary or desirable for Certificateholders to prepare their
federal, state and local income tax returns, including the amount of original
issue discount accrued on the Certificates, if applicable. The obligations of
the Trustee in the immediately preceding sentence shall be deemed to have been
satisfied to the extent that substantially comparable information shall be
provided by the Trustee pursuant to any requirements of the Code. As soon as
practicable following the request of any Certificateholder in writing, the
Trustee shall furnish to such Certificateholder such information regarding the
Mortgage Loans and the Mortgaged Properties as such Certificateholder may
reasonably request and, as has been furnished to, or may otherwise be in the
possession of, the Trustee. Each Master Servicer and each Special Servicer shall
promptly provide to the Depositor and the Trustee such information regarding the
Mortgage Loans for which it acts as Master Servicer or Special Servicer and the
related Mortgaged Properties as such party may reasonably request and that has
been furnished to, or may otherwise be in the possession of, such Master
Servicer or such Special Servicer, as the case may be.
Xxxxxxx 0.00 X&X Advances
(a) On or before 1:00 p.m., New York City time, on each P&I Advance
Date, each Master Servicer shall, subject to Section 4.03(c), either (i) remit
from its own funds to the Trustee for deposit into the Lower-Tier Distribution
Account or the 000 Xxxxx Xxxxxx Loan REMIC Distribution Account, as applicable,
an amount equal to the aggregate amount of P&I Advances, if any, to be made by
such Master Servicer in respect of the related Distribution Date, (ii) apply
amounts held in its Collection Account for future distribution to
Certificateholders in subsequent months in discharge of any such obligation to
make P&I Advances, or (iii) make P&I Advances in the form of any combination of
(i) and (ii) aggregating the total amount of P&I Advances to be made by such
Master Servicer. Any amounts held in a Collection Account for future
distribution and so used to make P&I Advances shall be appropriately reflected
in the applicable Master Servicer's records and replaced by the applicable
Master Servicer by deposit in such Collection Account prior to the next
succeeding Master Servicer Remittance 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 3:30 p.m.,
New York City time, on any P&I Advance Date, a Master Servicer shall not have
made any P&I Advance required to be made by it on such date pursuant to this
Section 4.03(a) (and shall not have delivered to the Trustee the Officer's
Certificate and other documentation related to a determination of
nonrecoverability of a P&I Advance pursuant to Section 4.03(c)) or shall not
have remitted any portion of the Master Servicer Remittance Amount required to
be remitted by such Master Servicer on such date, then the Trustee shall provide
notice of such failure to such Master Servicer by facsimile transmission as soon
as possible, but in any event before 4:30 p.m., New York City time, on such P&I
Advance Date. If after such notice the Trustee does not receive the full amount
of such P&I Advances by 6:00 p.m., New York City time, on such P&I Advance Date,
then the Trustee (or any Fiscal Agent on its behalf) shall (not later than 12:00
noon, New York City time, on the related Distribution Date) make the portion of
such P&I Advances that was required to be, but was not, made or remitted, as the
case may be, by such Master Servicer with respect to the related Distribution
Date, provided that no Master Servicer, Special Servicer, the Trustee or any
Fiscal Agent shall be required to make any P&I Advance with respect to any B
Loan.
(b) The aggregate amount of P&I Advances to be made by each Master
Servicer in respect of any Distribution Date, subject to Section 4.03(c) below,
shall equal the aggregate of all Monthly Payments (other than Balloon Payments)
and any Assumed Monthly Payments, in each case net of any related Master
Servicing Fees, due or deemed due, as the case may be, in respect of the
Mortgage Loans (including Balloon Mortgage Loans delinquent as to their
respective Balloon Payments) as to which such Master Servicer is the applicable
Master Servicer and any successor REO Mortgage Loans on their respective Due
Dates during the related Collection Period, in each case to the extent such
amount was not paid by or on behalf of the related Borrower or otherwise
collected by or on behalf of the Trust as of the close of business on the
related Determination Date; provided that, if an Appraisal Reduction Amount
exists with respect to any Required Appraisal Loan, then the interest portion of
any P&I Advance required to be made in respect of such Required Appraisal Loan
for the related Distribution Date shall be reduced (it being herein acknowledged
that there shall be no reduction in the principal portion of such P&I Advance)
to equal the product of (i) the amount of the interest portion of such P&I
Advance that would otherwise be required to be made in respect of such Required
Appraisal Loan for such Distribution Date without regard to this proviso,
multiplied by (ii) a fraction, expressed as a percentage, the numerator of which
shall equal the Stated Principal Balance of such Required Appraisal Loan
immediately prior to such Distribution Date, net of the related Appraisal
Reduction Amount, and the denominator of which shall equal the Stated Principal
Balance of such Required Appraisal Loan immediately prior to such Distribution
Date.
(c) Notwithstanding anything herein to the contrary, no P&I Advance
shall be required to be made hereunder if such P&I Advance would, if made,
constitute a Nonrecoverable P&I Advance. The determination by a Master Servicer
(or, if applicable, the Trustee or any Fiscal Agent) that it has made a
Nonrecoverable P&I Advance or that any proposed P&I Advance, if made, would
constitute a Nonrecoverable P&I Advance, shall be made by such Person in its
reasonable judgment and shall be evidenced by an Officer's Certificate delivered
to the Depositor, to the applicable Special Servicer, to the Controlling Class
Representative and, if made by such Master Servicer, to the Trustee (on or
before the related P&I Advance Date in the case of a proposed P&I Advance),
setting forth the basis for such determination, accompanied by a copy of an
Appraisal of the related Mortgaged Property or REO Property performed within the
12 months preceding such determination by a Qualified Appraiser, and further
accompanied by any other information, including engineers' reports,
environmental surveys or similar reports, that the Person making such
determination may have obtained and that support such determination. The Trustee
and any Fiscal Agent shall be entitled to conclusively rely on any
nonrecoverability determination made by a Master Servicer with respect to a
particular P&I Advance. The applicable Special Servicer shall promptly furnish
any party required to make P&I Advances hereunder with any information in its
possession regarding the Specially Serviced Mortgage Loans and REO Properties as
such party required to make P&I Advances may reasonably request.
(d) Each Master Servicer, the Trustee and any Fiscal Agent shall
each be entitled to receive interest at the Reimbursement Rate in effect from
time to time, accrued on the amount of each P&I Advance made thereby (with its
own funds), for so long as such P&I Advance is outstanding (or, if such P&I
Advance was made prior to the end of any grace period applicable to the subject
delinquent Monthly Payment, for so long as such P&I Advance is outstanding
following the end of such grace period). Such interest with respect to any P&I
Advance shall be payable: (i) first, in accordance with Sections 3.05 and 3.26,
out of any Default Charges subsequently collected on the particular Mortgage
Loan or REO Mortgage Loan as to which such P&I Advance relates; and (ii) then,
after such P&I Advance is reimbursed, but only if and to the extent that such
Default Charges are insufficient to cover such Advance Interest, out of general
collections on the Mortgage Loans and REO Properties on deposit in the
Collection Account. Each Master Servicer shall reimburse itself, the Trustee or
any Fiscal Agent, as applicable, for any outstanding P&I Advance made thereby
with respect to any Mortgage Loan or REO Mortgage Loan as soon as practicable
after funds available for such purpose are deposited in the Collection Account,
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 Late Collection was received by or
on behalf of the Trust as of the related P&I Advance Date. No Master Servicer
shall be entitled to Advance Interest on any particular P&I Advance made thereby
to the extent a payment is received but is being held by or on behalf of such
Master Servicer in suspense.
Section 4.04 Allocation of Collateral Support Deficit
(a) On each Distribution Date, immediately following the
distributions to be made on such date pursuant to Section 4.01, the Trustee
shall calculate the amount, if any, by which (i) the aggregate Stated Principal
Balance of the Mortgage Loans (excluding the 000 Xxxxx Xxxxxx Non-Pooled
Portion) and any REO Mortgage Loans (excluding the 000 Xxxxx Xxxxxx Non-Pooled
Portion) expected to be outstanding immediately following such Distribution Date
is less than (ii) the then aggregate Class Principal Balance of the Principal
Balance Certificates (other than the Class 000 Xxxxx Xxxxxx Participation
Certificates) after giving effect to distributions of principal on such
Distribution Date (any such deficit, the "Collateral Support Deficit"). Any
allocation of Collateral Support Deficit to a Class of Principal Balance
Certificates (other than the Class 000 Xxxxx Xxxxxx Participation Certificates)
shall be made by reducing the Class Principal Balance thereof by the amount so
allocated. Any Collateral Support Deficit allocated to a Class of Principal
Balance Certificates shall be allocated among the respective Certificates of
such Class in proportion to the Percentage Interests evidenced thereby. The
allocation of Collateral Support Deficit shall constitute an allocation of
losses and other shortfalls experienced by the Trust Fund. Reimbursement of
previously allocated Collateral Support Deficit will not constitute
distributions of principal for any purpose and will not result in an additional
reduction in the Class Principal Balance of the Class of Certificates in respect
of which any such reimbursement is made.
(b) On each Distribution Date, the Class Principal Balances of the
Principal Balance Certificates (other than the Class 000 Xxxxx Xxxxxx
Participation Certificates) will be reduced without distribution to the extent
of any Collateral Support Deficit, if any, allocable to such Certificates with
respect to such Distribution Date. Such reductions shall be allocated among the
respective Certificates as follows: first, to the Class P Certificates; second,
to the Class O Certificates; third, to the Class N Certificates; fourth, to the
Class M Certificates; fifth, to the Class L Certificates; sixth, to the Class K
Certificates, seventh, to the Class J Certificates, eighth, to the Class H
Certificates, ninth, to the Class G Certificates, tenth, to the Class F
Certificates, eleventh, to the Class E Certificates, twelfth, to the Class D
Certificates, thirteenth, to the Class C Certificates, and fourteenth, to the
Class B Certificates, in each case, until the remaining Class Principal Balance
of each such Class of Certificates has been reduced to zero. Following the
reduction of the Class Principal Balances of all such Classes to zero, any
remaining Collateral Support Deficit shall be allocated among the Class A-1,
Class A-2, Class A-3, Class A-4, and Class A-5 Certificates, pro rata (based
upon the Class Principal Balance of each such Class), until the remaining Class
Principal Balances of such Classes have been reduced to zero. Any Collateral
Support Deficit allocated to a Class of Certificates will be allocated among
respective Certificates of such Class in proportion to the Percentage Interests
evidenced thereby.
(c) With respect to any Distribution Date, any Collateral Support
Deficit allocated to a Class of Certificates pursuant to Section 4.04(b) with
respect to such Distribution Date shall reduce the Lower-Tier Principal Amounts
of the Related Uncertificated Lower-Tier Interest with respect thereto as a
write-off (in the case of the Class LA-1-1, Class LA-1-2 and Class LA-1-3
Uncertificated Interests, to each such Uncertificated Lower-Tier Interest, in
that order; in the case of the Class LA-2-1, Class LA-2-2 and Class LA-2-3
Uncertificated Interests, to each such Uncertificated Lower-Tier Interest, in
that order; in the case of the Class LA-3-1 and Class LA-3-2 Uncertificated
Interests, to each such Uncertificated Lower-Tier Interest, in that order; in
the case of the Class LA-4-1 and Class LA-4-2 Uncertificated Interests, to each
such Uncertificated Lower-Tier Interest, in that order; in the case of the Class
LA-5-1 and Class LA-5-2 Uncertificated Interests, to each such Uncertificated
Lower-Tier Interest, in that order; in the case of the Class LD-1 and Class LD-2
Uncertificated Interests, to each such Uncertificated Lower-Tier Interest, in
that order; in the case of the Class LE-1 and Class LE-2 Uncertificated
Interests, to each such Uncertificated Lower-Tier Interest, in that order; and
in the case of the Class LF-1 and Class LF-2 Uncertificated Interests, to each
such Uncertificated Lower-Tier Interest, in that order).
(d) On each Distribution Date, immediately following the
distribution to be made on such date pursuant to Section 4.01, the Trustee shall
calculate the amount, if any, by which (i) the Stated Principal Balance of the
000 Xxxxx Xxxxxx Loan (or any related REO Mortgage Loan) expected to be
outstanding immediately following such Distribution Date is less than (ii) the
sum of the Stated Principal Balance of the 000 Xxxxx Xxxxxx Pooled Portion and
the Certificate Balance of the Class 622 Participation Certificates,
respectively, after giving effect to distributions of principal on such
Distribution Date (any such deficit, the "622 Third Avenue Collateral Support
Deficit"). Following each Servicer Remittance Date, the 000 Xxxxx Xxxxxx
Collateral Support Deficit will be allocated as follows: first, to the Class
622-F Participation Certificates, until the remaining Certificate Balance of
such Class has been reduced to zero; second, to the Class 622-E Participation
Certificates, until the remaining Certificate Balance of such Class has been
reduced to zero; third, to the Class 622-D Participation Certificates, until the
remaining Certificate Balance of such Class has been reduced to zero, fourth, to
the Class 622-C Participation Certificates, until the remaining Certificate
Balance of such Class has been reduced to zero; fifth, to the Class 622-B
Participation Certificates, until the remaining Certificate Balance of such
Class has been reduced to zero; sixth, to the Class 622-A Participation
Certificates, until the remaining Certificate Balance of such Class has been
reduced to zero; and then, to the 000 Xxxxx Xxxxxx Pooled Portion, until the
Stated Principal Balance thereof has been reduced to zero. Any allocation of 000
Xxxxx Xxxxxx Collateral Support Deficits to any class of the Class 622
Participation Certificates shall be made by reducing the Certificate Balance
thereof by the amount so allocated. Any allocation of 000 Xxxxx Xxxxxx
Collateral Support Deficit to the 000 Xxxxx Xxxxxx Pooled Portion shall be made
by reducing the Stated Principal Balance thereof by the amount so allocated. Any
000 Xxxxx Xxxxxx Collateral Support Deficit allocated to Class 622 Participation
Certificates shall be allocated among the respective Certificates of such Class
in proportion to the Percentage Interests evidenced thereby. Any 000 Xxxxx
Xxxxxx Collateral Support Deficit allocated to the Class 622 Participation
Certificates with respect to a Distribution Date shall reduce the Lower-Tier
Principal Amount of the Class L622 Uncertificated Interests, in reverse
sequential order, as a write off, as applicable. The allocation of 000 Xxxxx
Xxxxxx Collateral Support Deficits shall constitute an allocation of losses and
other shortfalls experienced by the Trust Fund with respect to the 000 Xxxxx
Xxxxxx Loan. Any 000 Xxxxx Xxxxxx Collateral Support Deficit allocated to the
000 Xxxxx Xxxxxx Pooled Portion shall be treated as a loss on the related loan
consisting of the 000 Xxxxx Xxxxxx Pooled Portion and will result in a
Collateral Support Deficit. Reimbursement of previously allocated 000 Xxxxx
Xxxxxx Collateral Support Deficits will not constitute distributions of
principal for any purpose and will not result in an additional reduction in the
Certificate Balance of the Class 622 Participation Certificates, the Lower-Tier
Principal Amount of the related Uncertificated Lower-Tier Interests or the
Stated Principal Balance of the 000 Xxxxx Xxxxxx Pooled Portion or the 000 Xxxxx
Xxxxxx Non-Pooled Portion.
(e) Any Appraisal Reduction Amount calculated with respect to the
000 Xxxxx Xxxxxx Loan will be allocated first to the Class 622-C Participation
Certificates, second to the Class 622-B Participation Certificates and then to
the Class 622-A Participation Certificates, in that order.
Section 4.05 Calculations
Provided that the Trustee receives the necessary information from
each Master Servicer and/or each Special Servicer, the Trustee shall be
responsible for performing all calculations necessary in connection with the
actual and deemed distributions to be made pursuant to Section 4.01, the
preparation of the Statement to Certificateholders pursuant to Section 4.02(a)
and the actual and deemed allocations of Collateral Support Deficit to be made
pursuant to Section 4.04. The Trustee shall calculate the Available Distribution
Amount for each Distribution Date and shall allocate such amounts among
Certificateholders in accordance with this Agreement. Absent actual knowledge of
an error therein, the Trustee shall have no obligation to recompute, recalculate
or otherwise verify any information provided to it by a Master Servicer. The
calculations by the Trustee contemplated by this Section 4.05 shall, in the
absence of manifest error, be presumptively deemed to be correct for all
purposes hereunder.
ARTICLE V
THE CERTIFICATES
Section 5.01 The Certificates
(a) The Certificates shall consist of thirty-one (31) Classes with
the following respective alphabetic or alphanumeric Class designations: "A-X",
"A-Y", "A-SP", "X-0", "X-0", "X-0", "X-0", "X-0", "X", "C", "D", "E", "F", "G",
"H", "J", "K", "L", "M", "N", "O", "P", "R", "LR", "V", "622-A", "622-B",
"622-C", "622-D", "622-E" and "622-F", respectively. Any reference in any other
section or subsection of this Agreement to any Certificate or Certificates
preceded by a Class designation shall be to a Certificate or Certificates of the
Class so designated in this Section 5.01(a).
(b) The Certificates will be substantially in the respective forms
attached hereto as Exhibits A-1 through A-6; provided, however, 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 Class A-X, Class A-SP, Class
A-1, Class A-2, Class A-3, Class A-4, Class A-5, Class B, Class C, Class D,
Class E, Class F, Class G, Class H, Class J, Class K and Class L and
Certificates and the Class 622 Participation Certificates initially shall (and,
at the option of the Depositor, following the Closing Date, all or a portion of
any other Class of Certificates may) be held and transferred through the
book-entry facilities of the Depository. The Class A-X, Class A-SP, Class A-1,
Class A-2, Class A-3, Class A-4, Class A-5, 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
and Class P Certificates and the Class 622-A, Class 622-B, Class 622-C, Class
622-D, Class 622-E and Class 622-F Participation Certificates will be issuable
only in denominations corresponding to initial Certificate Principal Balances
(or, in the case of the Interest Only Certificates, initial Certificate Notional
Amounts) as of the Closing Date of not less than $10,000 and any whole dollar
denomination in excess thereof. The Class R Certificates, the Class LR, the
Class A-Y Certificates and the Class V Certificates will be issuable only in
denominations representing Percentage Interests in the related Class of not less
than 10.0%.
(c) The Certificates shall be executed by manual or facsimile
signature on behalf of the Trustee in its capacity as trustee hereunder by an
authorized signatory. Certificates bearing the manual or facsimile signatures of
individuals who were at any time the authorized signatory of the Trustee shall
be entitled to all benefits under this Agreement, subject to the following
sentence, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Certificates
or did not hold such offices at the date of such Certificates. No Certificate
shall be entitled to any benefit under this Agreement, or be valid for any
purpose, however, unless there appears on such Certificate a certificate of
authentication substantially in the form provided for herein executed by the
Certificate Registrar by manual signature, and such certificate of
authentication upon any Certificate shall be conclusive evidence, and the only
evidence, that such Certificate has been duly authenticated and delivered
hereunder. All Certificates shall be dated the date of their authentication.
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
(located as of the Closing Date at Xxxxx Fargo Center, Sixth and Marquette, MAC#
N9303-121, Xxxxxxxxxxx, Xxxxxxxxx, 00000-0000 may prescribe, the Certificate
Registrar shall provide for the registration of Certificates and of transfers
and exchanges of Certificates as herein provided. The Trustee is hereby
initially appointed (and hereby agrees to act in accordance with the terms
hereof) as Certificate Registrar for the purpose of registering Certificates and
transfers and exchanges of Certificates as herein provided. The Trustee may
appoint, by a written instrument delivered to the other parties hereto, any
other bank or trust company to act as Certificate Registrar under such
conditions as the Trustee may prescribe, provided that the Trustee shall not be
relieved of any of its duties or responsibilities hereunder as Certificate
Registrar by reason of such appointment. If the Trustee resigns or is removed in
accordance with the terms hereof, the successor trustee shall immediately
succeed to its predecessor's duties as Certificate Registrar. The Depositor, the
Master Servicers and the Special Servicers shall each 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.
If three or more Certificateholders make a written request to the
Trustee, and such request states that such Certificateholders desire to
communicate with other Certificateholders with respect to their rights under
this Agreement or under the Certificates and is accompanied by a copy of the
communication that such requesting Certificateholders propose to transmit, then
the Trustee shall, within 30 days after the receipt of such request, afford (or
cause any other Certificate Registrar to afford) the requesting
Certificateholders access during normal business hours to, or deliver to the
requesting Certificateholders a copy of, the most recent list of
Certificateholders held by the Certificate Registrar (which list shall be
current as of a date no earlier than 30 days prior to the Trustee's receipt of
such request). Every Certificateholder, by receiving such access, acknowledges
that neither the Certificate Registrar nor the Trustee will be held accountable
in any way by reason of the disclosure of any information as to the names and
addresses of any Certificateholder regardless of the source from which such
information was derived.
(b) No transfer, sale, pledge or other disposition of any
Non-Registered Certificate or interest therein shall be made unless that
transfer, sale, pledge or other disposition is exempt from the registration
and/or qualification requirements of the Securities Act and any applicable state
securities laws, or is otherwise made in accordance with the Securities Act and
such state securities laws.
If a transfer of any Non-Registered Certificate (other than a
Book-Entry Non-Registered Certificate) is to be made without registration under
the Securities Act (other than in connection with the initial issuance of the
Certificates or a transfer of such Non-Registered Certificate by the Depositor
or an Affiliate of the Depositor or, in the case of a Global Certificate, any
transfer of such Certificate to a successor Depository or, in the case of a
Definitive Certificate issued with respect to a Global Certificate, any transfer
of such Certificate to the applicable Certificate Owner in accordance with
Section 5.03(c)), 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 hereto as Exhibit F-1A; or (ii) a
certificate from the Certificateholder desiring to effect such transfer
substantially in the form attached hereto as Exhibit F-1B and a certificate from
such Certificateholder's prospective Transferee substantially in the form
attached hereto either as Exhibit F-2A or as Exhibit F-2B; or (iii) an Opinion
of Counsel satisfactory to the Trustee to the effect that such transfer may be
made without registration under the Securities Act (which Opinion of Counsel
shall not be an expense of the Trust or of the Depositor, the Master Servicers,
the Special Servicers, the Trustee, any Fiscal Agent 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.
Each Global Certificate shall be deposited with the Trustee as
custodian for the Depository and registered in the name of Cede & Co. as nominee
of the Depository.
If a transfer of an interest in any Rule 144A Global Certificate is
to be made without registration under the Securities Act (other than in
connection with the initial issuance of the Certificates or a transfer of an
interest in such Rule 144A Global Certificate by the Depositor or an Affiliate
of the Depositor), then (except as provided in the next succeeding paragraph or
in the penultimate paragraph of this Section 5.02(b)) the Certificate Owner
desiring to effect such transfer shall require from its prospective Transferee:
(i) a certificate substantially in the form attached as Exhibit F-2C hereto; or
(ii) an Opinion of Counsel to the effect that the prospective Transferee is a
Qualified Institutional Buyer and such transfer may be made without registration
under the Securities Act. Except as provided in the next succeeding paragraph or
in the penultimate paragraph of this Section 5.02(b), any interest in a Rule
144A Global Certificate shall not be transferred to any Person other than a
Qualified Institutional Buyer that takes delivery in the form of an interest in
such Rule 144A Global Certificate. If any Transferee of an interest in a Rule
144A Global Certificate does not, in connection with the subject transfer,
deliver to the Transferor the Opinion of Counsel or the certification described
in the second preceding sentence, then such Transferee shall be deemed to have
represented and warranted that all the certifications set forth in Exhibit F-2C
hereto are, with respect to the subject transfer, true and correct.
Notwithstanding the preceding paragraph, any interest in the Rule
144A Global Certificate with respect to the Class A-X, Class A-SP, Class F,
Class G, Class H, Class J, Class K, Class L, Class M, Class N, Class O or Class
P Certificates and the Class 622 Participation Certificates may be transferred
(without delivery of any certificate or Opinion of Counsel described in clauses
(i) and (ii) of the first sentence of the preceding paragraph) to any Person who
takes delivery in the form of a beneficial interest in the Regulation S Global
Certificate for the same Class as such Rule 144A Global Certificate upon
delivery to the Certificate Registrar and the Trustee of (i) a certificate from
the Certificate Owner desiring to effect such transfer substantially in the form
attached hereto as Exhibit F-1D and a certificate from such Certificate Owner's
prospective Transferee substantially in the form attached hereto as Exhibit F-2D
and (ii) such written orders and instructions as are required under the
applicable procedures of the Depository, Clearstream and/or Euroclear to direct
the Trustee to debit the account of a Depository Participant by a denomination
of interests in such Rule 144A Global Certificate, and credit the account of a
Depository Participant by a denomination of interests in such Regulation S
Global Certificate, that is equal to the denomination of beneficial interests in
the Class A-X, Class A-SP, Class F, Class G, Class H, Class J, Class K, Class L,
Class M, Class N, Class O or Class P Certificates or the Class 622 Participation
Certificates to be transferred. Upon delivery to the Trustee of such
certifications and such orders and instructions, the Trustee, subject to and in
accordance with the applicable procedures of the Depository, shall reduce the
denomination of the Rule 144A Global Certificate with respect to the Class A-X,
Class A-SP, Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class
N, Class O or Class P Certificates or the Class 622 Participation Certificates,
and increase the denomination of the Regulation S Global Certificate for such
Class, by the denomination of the beneficial interest in such Class specified in
such orders and instructions.
Except as provided in the next succeeding paragraph or in the
penultimate paragraph of this Section 5.02(b), beneficial interests in any
Regulation S Global Certificate shall not be transferred to any Person other
than a non-United States Securities Person that takes delivery in the form of a
beneficial interest in such Regulation S Global Certificate, and the Certificate
Owner desiring to effect such transfer shall be required to obtain from such
prospective Transferee a certification substantially in the form attached hereto
as Exhibit F-2D. On or prior to the Release Date, beneficial interests in any
Regulation S Global Certificate may be held only through Euroclear or
Clearstream.
Notwithstanding the preceding paragraph, following the Release Date,
any interest in the Regulation S Global Certificate with respect to the Class
A-X, Class A-SP, Class F, Class G, Class H, Class J, Class K, Class L, Class M,
Class N, Class O or Class P Certificates or the Class 622 Participation
Certificates may be transferred (without delivery of any certificate described
in the first sentence of the preceding paragraph) to any Person who takes
delivery in the form of a beneficial interest in the Rule 144A Global
Certificate for the same Class as such Regulation S Global Certificate upon
delivery to the Certificate Registrar and the Trustee of (i) a certificate from
the Certificate Owner desiring to effect such transfer substantially in the form
attached hereto as Exhibit F-1C and a certificate from such Certificate Owner's
prospective Transferee substantially in the form attached hereto as Exhibit F-2C
and (ii) such written orders and instructions as are required under the
applicable procedures of the Depository, Clearstream and/or Euroclear to direct
the Trustee to debit the account of a Depository Participant by a denomination
of interests in such Regulation S Global Certificate, and credit the account of
a Depository Participant by a denomination of interests in such Rule 144A Global
Certificate, that is equal to the denomination of beneficial interests in the
Class A-X, Class A-SP, Class F, Class G, Class H, Class J, Class K, Class L,
Class M, Class N, Class O or Class P Certificates or Class 622 Participation
Certificates to be transferred. Upon delivery to the Trustee of such
certifications and such orders and instructions, the Trustee, subject to and in
accordance with the applicable procedures of the Depository, shall reduce the
denomination of the Regulation S Global Certificate with respect to the Class
A-X, Class A-SP, Class F, Class G, Class H, Class J, Class K, Class L, Class M,
Class N, Class O or Class P Certificates or Class 622 Participation
Certificates, and increase the denomination of the Rule 144A Global Certificate
for such Class, by the denomination of the beneficial interest in such Class
specified in such orders and instructions.
Notwithstanding the foregoing, any interest in a Global Certificate
with respect to the Class A-X, Class A-SP, Class F, Class G, Class H, Class J,
Class K, Class L, Class M, Class N, Class O or Class P Certificates or Class 622
Participation Certificates may be transferred by any Certificate Owner holding
such interest to any Person who takes delivery in the form of a Definitive
Certificate of the same Class as such Global Certificate upon delivery to the
Certificate Registrar and the Trustee of (i) such certifications and/or opinions
as are contemplated by the second paragraph of this Section 5.02(b) and (ii)
such written orders and instructions as are required under the applicable
procedures of the Depository, Clearstream and/or Euroclear to direct the Trustee
to debit the account of a Depository Participant by a denomination of interests
in such Global Certificate. Upon delivery to the Certificate Registrar of the
certifications and/or opinions contemplated by the second paragraph of this
Section 5.02(b), the Trustee, subject to and in accordance with the applicable
procedures of the Depository, shall reduce the denomination of the subject
Global Certificate, and cause a Definitive Certificate of the same Class as such
Global Certificate, and in a denomination equal to the reduction in the
denomination of such Global Certificate, to be executed, authenticated and
delivered in accordance with this Agreement to the applicable Transferee.
None of the Depositor, the Trustee or the Certificate Registrar is
obligated to register or qualify any Class of Non-Registered Certificates under
the Securities Act or any other securities law or to take any action not
otherwise required under this Agreement to permit the transfer of any
Non-Registered Certificate or interest therein without registration or
qualification. Any Certificateholder or Certificate Owner desiring to effect a
transfer, sale, pledge or other disposition of any Non-Registered Certificate or
interest therein shall, and does hereby agree to, indemnify the Depositor, CSFB
LLC, the Trustee, any Fiscal Agent, the Master Servicers, the Special Servicers
and the Certificate Registrar against any liability that may result if such
transfer, sale, pledge or other disposition is not exempt from the registration
and/or qualification requirements of the Securities Act and any applicable state
securities laws or is not made in accordance with such federal and state laws.
(c) No transfer of any Certificate or interest therein shall be made
to a Plan or to any Person who is directly or indirectly purchasing such
Certificate on behalf of, as named fiduciary of, as trustee of, or with assets
of a Plan, if the purchase and holding of such Certificate or interest therein
by the prospective Transferee would result in a violation of Section 406 or 407
of ERISA or Section 4975 of the Code or any materially similar provisions of
applicable federal, state or local law ("Similar Law") or would result in the
imposition of an excise tax under Section 4975 of the Code or Similar Law.
Except in connection with the initial issuance of the Certificates
or any transfer of a Non-Registered Certificate by the Depositor or an Affiliate
of the Depositor or, in the case of a Global Certificate, any transfer of such
Certificate to a successor Depository or, in the case of a Definitive
Certificate issued with respect to a Global Certificate, any transfer of such
Certificate to the applicable Certificate Owner in accordance with Section
5.03(c), the Certificate Registrar shall refuse to register the transfer of a
Non-Registered Certificate unless it has received from the prospective
Transferee any of the following: (i) a certification to the effect that such
prospective Transferee is not a Plan and is not directly or indirectly
purchasing such Certificate or interest therein on behalf of, as named fiduciary
of, as trustee of, or with assets of a Plan; or (ii) except in the case of a
Class R, Class LR or Class V Certificate, a certification to the effect that the
purchase and continued holding of such Certificate by such prospective
Transferee is exempt from the prohibited transaction provisions of Section 406
and 407 of ERISA and Section 4975 of the Code by reason of Sections I and III of
Prohibited Transaction Class Exemption 95-60 (or similar exemption under Similar
Law); or (iii) in the case of a Non-Registered Certificate (other than a Class
R, Class LR or Class V Certificate) that is rated investment grade by at least
one of the Rating Agencies and is being acquired by or on behalf of a Plan in
reliance on the Underwriter Exemption, a certification to the effect that such
Plan (X) is an accredited investor as defined in Rule 501(a)(1) of Regulation D
of the Securities Act, (Y) is not sponsored (within the meaning of Section
3(16)(B) of ERISA) by the Trustee, any Exemption-Favored Party, the Depositor,
any Mortgage Loan Seller, either Master Servicer, either Special Servicer, any
Sub-Servicer, any Person responsible for servicing the Great Lakes Crossing
Mortgage Loan or any Great Lakes Crossing REO Property or any Borrower with
respect to Mortgage Loans constituting 5% of the aggregate unamortized principal
of all the Mortgage Loans determined as of the Closing Date, or by any Affiliate
of such Person, and (Z) agrees that it will obtain from each of its Transferees
a written representation that such Transferee, if a Plan, satisfies the
requirements of the immediately preceding clauses (iii)(X) and (iii)(Y),
together with a written agreement that such Transferee will obtain from each of
its Transferees that are Plans a similar written representation regarding
satisfaction of the requirements of the immediately preceding clauses (iii)(X)
and (iii)(Y); or (iv) except in the case of a Class R, Class LR or Class V
Certificate, a certification of facts and an Opinion of Counsel (which Opinion
of Counsel shall not be an expense of the Trustee, the Certificate Registrar or
the Trust) which otherwise establish to the reasonable satisfaction of the
Trustee that such transfer will not result in a violation of Section 406 or 407
of ERISA or Section 4975 of the Code or similar violation of Similar Law or
result in the imposition of an excise tax under Section 4975 of the Code or
Similar Law. It is hereby acknowledged that the form of certification attached
hereto as Exhibit G 1 is acceptable for purposes of the preceding sentence.
Except in connection with the initial issuance of the Certificates
or any transfer of an interest in a Book-Entry Non-Registered Certificate by the
Depositor or an Affiliate of the Depositor, the Certificate Owner desiring to
effect a transfer of an interest in a Book-Entry Non-Registered Certificate
shall obtain from its prospective Transferee one of the following: (i) a
certification to the effect that such prospective Transferee is not a Plan and
is not directly or indirectly purchasing such interest in such Certificate on
behalf of, as named fiduciary of, as trustee of, or with assets of a Plan; or
(ii) except in the case of a Class R, Class LR or Class V Certificate, a
certification to the effect that the purchase and continued holding of an
interest in such Certificate by such prospective Transferee is exempt from the
prohibited transaction provisions of Sections 406 and 407 of ERISA and Section
4975 of the Code by reason of Sections I and III of Prohibited Transaction Class
Exemption 95-60 (or similar exemption under Similar Law); or (iii) if such
Certificate is not a Class R, Class LR or Class V Certificate, if such
Certificate is rated investment grade by at least one of the Rating Agencies and
if the interest in such Certificate is being acquired by or on behalf of a Plan
in reliance on the Underwriter Exemption, a certification to the effect that
such Plan (X) is an accredited investor as defined in Rule 501(a)(1) of
Regulation D of the Securities Act, (Y) is not sponsored (within the meaning of
Section 3(16)(B) of ERISA) by the Trustee, the Depositor, any Mortgage Loan
Seller, either Master Servicer, either Special Servicer, any Sub-Servicer, any
Person responsible for servicing the Great Lakes Crossing Mortgage Loan or any
Great Lakes Crossing REO Property or any Borrower with respect to Mortgage Loans
constituting 5% of the aggregate unamortized principal of all the Mortgage Loans
determined as of the Closing Date, or by any Affiliate of such Person, and (Z)
agrees that it will obtain from each of its Transferees a written representation
that such Transferee, if a Plan, satisfies the requirements of the immediately
preceding clauses (iii)(X) and (iii)(Y), together with a written agreement that
such Transferee will obtain from each of its Transferees that are Plans a
similar written representation regarding satisfaction of the requirements of the
immediately preceding clauses (iii)(X) and (iii)(Y); or (iv) except in the case
of a Class R, Class LR or Class V Certificate, a certification of facts and an
Opinion of Counsel to the effect that such transfer will not result in a
violation of Section 406 or 407 of ERISA or Section 4975 of the Code or similar
violations of Similar Law or result in the imposition of an excise tax under
Section 4975 of the Code or Similar Law. It is hereby acknowledged that the form
of certification attached hereto as Exhibit G-2 is acceptable for purposes of
the preceding sentence.
Each Transferee of any Registered Certificate or interest therein or
of an interest in any Book-Entry Non-Registered Certificate shall be deemed to
have represented and warranted that either: (i) such Transferee is not a Plan
and is not directly or indirectly purchasing such Certificate or interest
therein on behalf of, as named fiduciary of, as trustee of, or with assets of a
Plan; or (ii) the purchase and continued holding of such Certificate or interest
therein by such Transferee is exempt from the prohibited transaction provisions
of Section 406 and 407 of ERISA and Section 4975 of the Code and similar
provisions of Similar Law.
(d) (i) Each Person who has or acquires any Ownership Interest in a
Class R or Class LR Certificate shall be deemed by the acceptance or acquisition
of such Ownership Interest to have agreed to be bound by the following
provisions and to have irrevocably authorized the Trustee under clause (d)(ii)
below to deliver payments to a Person other than such Person and, further, to
negotiate the terms of any mandatory disposition and to execute all instruments
of Transfer and do all other things necessary in connection with any such
disposition. The rights of each Person acquiring any Ownership Interest in a
Class R or Class LR Certificate are expressly subject to the following
provisions:
(A) Each Person holding or acquiring any Ownership Interest in
a Class R or Class LR Certificate shall be a Permitted Transferee
and shall promptly notify the Trustee of any change or impending
change in its status as a Permitted Transferee.
(B) In connection with any proposed Transfer of any Ownership
Interest in a Class R or Class LR Certificate, the Certificate
Registrar shall require delivery to it, and shall not register the
Transfer of any Class R or Class LR Certificate until its receipt,
of an affidavit substantially in the form attached hereto as Exhibit
H-1 (a "Residual Transfer Affidavit"), from the proposed Transferee,
representing and warranting, among other things, that such
Transferee is a Permitted Transferee, that it is not acquiring its
Ownership Interest in the Class R or Class LR 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 Class R or Class LR
Certificate it will endeavor to remain a Permitted Transferee, and
that it has reviewed the provisions of this Section 5.02(d) and
agrees to be bound by them.
(C) Notwithstanding the delivery of a Residual Transfer
Affidavit by a proposed Transferee under clause (B) above, if a
Responsible Officer of either the Trustee or the Certificate
Registrar has actual knowledge that the proposed Transferee is not a
Permitted Transferee, no Transfer of an Ownership Interest in a
Class R or Class LR Certificate to such proposed Transferee shall be
effected.
(D) Each Person holding or acquiring any Ownership Interest in
a Class R or Class LR Certificate shall agree (1) to require a
Residual Transfer Affidavit from any prospective Transferee to whom
such Person attempts to transfer its Ownership Interest in such
Class R or Class LR Certificate and (2) not to transfer its
Ownership Interest in such Class R or Class LR Certificate unless it
provides to the Certificate Registrar and the Trustee a certificate
substantially in the form attached hereto as Exhibit H-2 stating
that, among other things, it has no actual knowledge that such
prospective Transferee is not a Permitted Transferee.
(E) Each Person holding or acquiring an Ownership Interest in
a Class R or Class LR Certificate, by purchasing such Ownership
Interest, agrees to give the Trustee written notice that it is a
"pass-through interest holder" within the meaning of Temporary
Treasury Regulations Section 1.67-3T(a)(2)(i)(A) immediately upon
acquiring an Ownership Interest in a Class R or Class LR Certificate
if it is, or is holding an Ownership Interest in a Class R or Class
LR Certificate on behalf of, a "pass-through interest holder."
(ii) If any purported Transferee shall become a Holder of a Class R
or Class LR Certificate in violation of the provisions of this Section
5.02(d), then the last preceding Holder of such Class R or Class LR
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 Class R or Class LR Certificate. None of the Depositor, the
Trustee or the Certificate Registrar shall be under any liability to any
Person for any registration of Transfer of a Class R or Class LR
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.
If any purported Transferee shall become a Holder of a Class R or
Class LR Certificate in violation of the restrictions in this Section 5.02(d),
then, to the extent that retroactive restoration of the rights of the preceding
Holder of such Class R or Class LR Certificate as described in the preceding
paragraph of this clause (d)(ii) shall be invalid, illegal or unenforceable, the
Trustee shall have the right, but not the obligation, to cause the transfer of
such Class R or Class LR Certificate to a Permitted Transferee selected by the
Trustee on such terms as the Trustee may choose, and the Trustee shall not be
liable to any Person having an Ownership Interest in such Class R or Class LR
Certificate or any other Person as a result of its exercise of such discretion.
Such purported Transferee shall promptly endorse and deliver such Class R or
Class LR Certificate in accordance with the instructions of the Trustee. Such
Permitted Transferee may be the Trustee itself or any Affiliate of the Trustee.
(iii) The Trustee shall make available to the IRS and to those
Persons specified by the REMIC Provisions all information furnished to it
by the other parties hereto necessary to compute any tax imposed as a
result of the Transfer of an Ownership Interest in a Class R or Class LR
Certificate to any Person who is a Disqualified Organization, including
the information described in Treasury Regulations Sections 1.860D-1(b)(5)
and 1.860E-2(a)(5) with respect to the "excess inclusions" for the
Upper-Tier REMIC (in the case of the Class R Certificates), the Lower-Tier
REMIC and the 000 Xxxxx Xxxxxx Loan REMIC (in the case of the Class LR
Certificates), and each of the other parties hereto shall furnish to the
Trustee all information in its possession necessary for the Trustee to
discharge such obligation. The Person holding such Ownership Interest
shall be responsible for the reasonable compensation of the Trustee for
providing such information.
(iv) The provisions of this Section 5.02(d) set forth prior to this
clause (iv) may be modified, added to or eliminated, provided that there
shall have been delivered to the Trustee 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 result in an Adverse Rating Event with respect
to any Class of Rated Certificates; and
(B) an Opinion of Counsel, in form and substance satisfactory
to the Trustee, obtained at the expense of the party seeking such
modification of, addition to or elimination of such provisions (but
in no event at the expense of the Trustee or the Trust), to the
effect that doing so will not (1) cause any Trust REMIC to cease to
qualify as a REMIC or be subject to an entity-level tax caused by
the Transfer of any Class R or Class LR Certificate to a Person
which is not a Permitted Transferee or (2) cause a Person other than
the prospective Transferee to be subject to a REMIC-related tax
caused by the Transfer of a Class R or Class LR Certificate to a
Person that is not a Permitted Transferee.
(e) If a Person is acquiring any Non-Registered Certificate as a
fiduciary or agent for one or more accounts, such Person shall be required to
deliver to the Certificate Registrar a certification to the effect that, and
such other evidence as may be reasonably required by the Trustee to confirm
that, it has (i) sole investment discretion with respect to each such account
and (ii) full power to make the applicable foregoing acknowledgments,
representations, warranties, certifications and/or agreements with respect to
each such account as set forth in Subsections (b), (c) and/or (d), as
appropriate, of this Section 5.02.
(f) Subject to the preceding provisions of this Section 5.02, upon
surrender for registration of transfer of any Certificate at the offices of the
Certificate Registrar maintained for such purpose, the Trustee shall execute and
the Certificate Registrar shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Certificates of authorized
denominations of the same Class evidencing a like aggregate Percentage Interest.
(g) At the option of any Holder, its Certificates may be exchanged
for other Certificates of authorized denominations of the same Class evidencing
a like aggregate Percentage Interest, upon surrender of the Certificates to be
exchanged at the offices of the Certificate Registrar maintained for such
purpose. Whenever any Certificates are so surrendered for exchange, the Trustee
shall execute and the Certificate Registrar shall authenticate and deliver the
Certificates which the Certificateholder making the exchange is entitled to
receive.
(h) Every Certificate presented or surrendered for transfer or
exchange shall (if so required by the Certificate Registrar) be duly endorsed
by, or be accompanied by a written instrument of transfer in the form
satisfactory to the Certificate Registrar duly executed by, the Holder thereof
or his attorney duly authorized in writing.
(i) No service charge shall be imposed for any transfer or exchange
of Certificates, but the Trustee or the Certificate Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
(j) All Certificates surrendered for transfer and exchange shall be
physically canceled by the Certificate Registrar, and the Certificate Registrar
shall dispose of such canceled Certificates in accordance with its standard
procedures.
(k) The Certificate Registrar or the Trustee shall provide to each
of the other parties hereto, upon reasonable written request and at the expense
of the requesting party, an updated copy of the Certificate Register.
Section 5.03 Book-Entry Certificates
(a) The Class A-X, Class A-SP, Class A-1, Class A-2, Class A-3,
Class A-4, Class A-5, Class B, Class C, Class D, Class E, Class F, Class G,
Class H, Class J, Class K, Class L and Class M Certificates and the Class 622
Participation Certificates shall, in the case of each Class thereof, initially
be issued (and, at the option of the Depositor, subsequent to the Closing Date,
all or any portion of any other Class of Certificates may be issued) as one or
more Certificates registered in the name of the Depository or its nominee and,
except as provided in Section 5.02(b) or Section 5.03(c), transfer of such
Certificates may not be registered by the Certificate Registrar unless such
transfer is to a successor Depository that agrees to hold such Certificates for
the respective Certificate Owners with Ownership Interests therein. Such
Certificate Owners shall hold and, subject to Section 5.02, transfer their
respective Ownership Interests in and to such Certificates through the
book-entry facilities of the Depository; and, except as provided in Section
5.02(b) or Section 5.03(c) below, shall not be entitled to fully registered,
physical Certificates ("Definitive Certificates") in respect of such Ownership
Interests. All transfers by Certificate Owners of their respective Ownership
Interests in the Book-Entry Certificates shall be made in accordance with the
procedures established by the Depository Participant or indirect participating
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 indirect participating
brokerage firms for which it acts as agent in accordance with the Depository's
normal procedures.
(b) Except as expressly provided to the contrary herein, the
Depositor, the Master Servicers, the Special Servicers, the Trustee, any Fiscal
Agent 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. Except as expressly provided to the contrary herein, 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 indirect participating brokerage firms
representing such Certificate Owners. Multiple requests and directions from, and
votes of, the Depository as Holder of the Book-Entry Certificates with respect
to any particular matter shall not be deemed inconsistent if they are made with
respect to different Certificate Owners. The Trustee may establish a reasonable
record date in connection with solicitations of consents from or voting by
Certificateholders and shall give notice to the Depository of such record date.
(c) If (i)(A) the Depositor advises the Trustee and the Certificate
Registrar in writing that the Depository is no longer willing or able to
discharge properly its responsibilities with respect to any Class of Book-Entry
Certificates, and (B) the Depositor is unable to locate a qualified successor,
(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 all or any portion of any Class of Book-Entry
Certificates, or (iii) the Trustee determines that Definitive Certificates are
required because the Trustee has instituted or has been directed to institute
judicial proceedings in a court to enforce the right of the Certificateholders
and the Trustee has been advised by counsel that in connection with such
proceeding it is necessary or appropriate for the Trustee to obtain possession
of all or any portion of those Certificates evidenced by 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 any Class of Book-Entry
Certificates (or any portion of any Class thereof) by the Depository,
accompanied by registration instructions from the Depository for registration of
transfer, the Trustee shall execute, and the Certificate Registrar shall
authenticate and deliver, the Definitive Certificates in respect of such Class
(or portion thereof) to the Certificate Owners identified in such instructions.
None of the Depositor, the Master Servicers, the Special Servicers, the Trustee
or the Certificate Registrar shall be liable for any delay in delivery of such
instructions and may conclusively rely on, and shall be protected in relying on,
such instructions. Upon the issuance of Definitive Certificates for purposes of
evidencing ownership of any Book-Entry Certificates, the registered holders of
such Definitive Certificates shall be recognized as Certificateholders hereunder
and, accordingly, shall be entitled directly to receive payments on, to exercise
Voting Rights with respect to, and to transfer and exchange such Definitive
Certificates.
Section 5.04 Mutilated, Destroyed, Lost or Stolen Certificates
If (i) any mutilated Certificate is surrendered to the Certificate
Registrar, or the Certificate Registrar receives evidence to its satisfaction of
the destruction, loss or theft of any Certificate, and (ii) there is delivered
to the Trustee and the Certificate Registrar such security or indemnity as may
be reasonably required by them to save each of them harmless, then, in the
absence of actual notice to the Trustee or the Certificate Registrar that such
Certificate has been acquired by a bona fide purchaser, the Trustee shall
execute and the Certificate Registrar shall authenticate and deliver, in
exchange for or in lieu of any such mutilated, destroyed, lost or stolen
Certificate, a new Certificate of the same Class and like Percentage Interest.
Upon the issuance of any new Certificate under this Section, the Trustee and the
Certificate Registrar may require the payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in relation thereto and any
other reasonable expenses (including the reasonable 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 Trust Fund, 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 Servicers, the Special Servicers, the Trustee, any Fiscal
Agent, the Certificate Registrar and any agent of any of them may treat the
Person in whose name any Certificate is registered as the owner of such
Certificate for the purpose of receiving distributions pursuant to Section 4.01
and for all other purposes whatsoever, and none of the Depositor, the Master
Servicers, the Special Servicers, the Trustee, any Fiscal Agent, the Certificate
Registrar or any agent of any of them shall be affected by notice to the
contrary.
Section 5.06 Certification by Certificateholders and Certificate
Owners
(a) Each Certificate Owner is hereby deemed by virtue of its
acquisition of an Ownership Interest in the Book-Entry Certificates to agree to
comply with the transfer requirements of Section 5.02.
(b) To the extent that under the terms of this Agreement, it is
necessary to determine whether any Person is a Certificateholder or a
Certificate Owner, the Trustee shall make such determination based on a
certificate of such Person which shall be substantially in the form of paragraph
1 of Exhibit K-1 hereto (or such other form as shall be reasonably acceptable to
the Trustee) and shall specify the Class and Certificate Principal Balance or
Certificate Notional Amount, as the case may be, of the Book-Entry Certificate
beneficially owned; provided, however, that the Trustee shall not knowingly
recognize such Person as a Certificate Owner if such Person, to the knowledge of
a Responsible Officer of the Trustee, acquired its Ownership Interest in a
Book-Entry Certificate in violation of Section 5.02, or if such Person's
certification that it is a Certificate Owner is in direct conflict with
information obtained by the Trustee from the Depository, Depository Participants
and/or indirect participating brokerage firms for which Depository Participants
act as agents, with respect to the identity of a Certificate Owner. The Trustee
shall exercise its reasonable discretion in making any determination under this
Section 5.06(b) and shall afford any Person providing information with respect
to its beneficial ownership of any Book-Entry Certificate an opportunity to
resolve any discrepancies between the information provided and any other
information available to the Trustee.
ARTICLE VI
THE DEPOSITOR, THE MASTER SERVICERS AND
THE SPECIAL SERVICERS
Section 6.01 Liability of the Depositor, the Master Servicers and
the Special Servicers
The Depositor, the Master Servicers and the Special Servicers shall
be liable in accordance herewith only to the extent of the respective
obligations specifically imposed upon and undertaken by the Depositor, each
Master Servicer and each Special Servicer.
Section 6.02 Merger, Consolidation or Conversion of the Depositor,
the Master Servicers or the Special Servicers
(a) Subject to Section 6.02(b), the Depositor, the Master Servicers
and the Special Servicers shall each keep in full effect its existence, rights
and franchises as a corporation, bank, trust company, partnership, limited
liability company, association or other legal entity under the laws of the
jurisdiction wherein it was organized, and each shall obtain and preserve its
qualification to do business as a foreign entity 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.
(b) Each of the Depositor, the Master Servicers and the Special
Servicers may be merged or consolidated with or into any Person, or transfer all
or substantially all of its assets to any Person, in which case, any Person
resulting from any merger or consolidation to which the Depositor, a Master
Servicer or a Special Servicer shall be a party, or any Person succeeding to the
business of the Depositor, a Master Servicer or a Special Servicer, shall be the
successor of the Depositor, such Master Servicer or such Special Servicer, as
the case may be, hereunder, without the execution or filing of any paper or any
further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding; provided, however, that no successor or surviving
Person shall succeed to the rights of a Master Servicer or a Special Servicer
unless (i) such succession will not result in an Adverse Rating Event with
respect to any Class of Rated Certificates (as confirmed in writing to the
Trustee by each Rating Agency) and (ii) such successor or surviving Person makes
the applicable representations and warranties set forth in Section 2.05 (in the
case of a successor or surviving Person to the General Master Servicer); Section
2.06 (in the case of a successor or surviving Person to the General Special
Servicer); Section 2.07 (in the case of a successor or surviving Person to the
NCBFSB Master Servicer) or Section 2.08 (in the case of a successor or surviving
Person to the Co-op Special Servicer) as applicable.
Section 6.03 Limitation on Liability of the Depositor, the Master
Servicers and the Special Servicers
None of the Depositor, the Master Servicers or the Special Servicers
shall be under any liability to the Trust, the Trustee, any B Loan Holder or the
Certificateholders for any action taken or not taken in good faith pursuant to
this Agreement or for errors in judgment; provided, however, that this provision
shall not protect the Depositor, the Master Servicers or the Special Servicers
against any liability to the Trust, the Trustee or the Certificateholders for
the breach of a representation or warranty made by such party herein, or against
any expense or liability specifically required to be borne by such party without
right of reimbursement pursuant to the terms hereof, or against any liability
which would otherwise be imposed by reason of misfeasance, bad faith or
negligence in the performance of, or negligent disregard of, such party's
obligations or duties hereunder. The Depositor, the Master Servicers or the
Special Servicers and any director, member, manager, officer, employee or agent
of any such party may rely in good faith on any document of any kind which,
prima facie, is properly executed and submitted by any Person respecting any
matters arising hereunder. The Depositor, the Master Servicers or the Special
Servicers and any director, member, manager, officer, employee or agent of any
such party, shall be indemnified and held harmless by the Trust out of the
Collection Account (or, if such indemnification relates exclusively to an A/B
Loan Pair, first out of amounts attributable to an A/B Loan Pair on deposit in
the related A/B Loan Pair Custodial Account and then out of the related
Collection Account) or the Distribution Account, against any loss, liability,
cost or expense (including reasonable legal fees and expenses) incurred in
connection with any legal action or claim relating to this Agreement or the
Certificates, other than any loss, liability, cost or expense: (i) specifically
required to be borne thereby pursuant to the terms hereof; (ii) that constitutes
(or, but for the failure of the subject expense to be customary, reasonable or
necessary, would constitute) a Servicing Advance that is otherwise reimbursable
under this Agreement; or (iii) incurred in connection with any legal action or
claim against such party resulting from any breach of a representation or
warranty made herein, any misfeasance, bad faith or negligence in the
performance of, or negligent disregard of, obligations or duties hereunder or
any willful or negligent violation of applicable law. None of the Depositor, the
Master Servicers or the Special Servicers shall be under any obligation to
appear in, prosecute or defend any legal action unless such action is related to
its respective duties under this Agreement and, except in the case of a legal
action the costs of which such party is specifically required hereunder to bear,
in its opinion does not involve it in any ultimate expense or liability for
which it would not be reimbursed hereunder; provided, however, that the
Depositor, either Master Servicer or either Special Servicer may in its
discretion undertake any such action which it may reasonably deem necessary or
desirable with respect to the enforcement and/or protection of the rights and
duties of the parties hereto and the interests of the Certificateholders
hereunder. In such event, the legal fees and expenses and costs of such action,
and any liability resulting therefrom, shall be expenses, costs and liabilities
of the Trust, and the Depositor, the Master Servicers and the Special Servicers
shall be entitled to be reimbursed therefor from the Collection Account, as
provided in Section 3.05(a) (or, to the extent permitted by the related A/B
Intercreditor Agreement, first out of amounts attributable to an A/B Loan Pair
on deposit in the related A/B Loan Pair Custodial Account and then out of the
related Collection Account) or the Distribution Account.
In addition, neither the Master Servicers nor the Special Servicers
shall have any liability with respect to, and each shall be entitled to rely as
to the truth of the statements made and the correctness of the opinions
expressed therein on, any certificates or opinions furnished to such Master
Servicer or Special Servicer, as the case may be, and conforming to the
requirements of this Agreement. Each Master Servicer and each Special Servicer
may rely in good faith on information provided to it by the other parties hereto
(unless the provider and the recipient of such information are the same Person
or Affiliates) and by the Borrowers, and will have no duty to investigate or
verify the accuracy thereof.
Section 6.04 Resignation of Master Servicers and Special Servicers
(a) Each Master Servicer and each 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 such Master Servicer or such Special Servicer,
as the case may be, so causing such a conflict being of a type and nature
carried on by such Master Servicer or such Special Servicer, as the case may be,
at the date of this Agreement). Any such determination requiring the resignation
of a Master Servicer or a 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 a Master Servicer's or a Special Servicer's (as
the case may be) 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 6.06 or Section 7.02 hereof; provided that, if no successor master
servicer or special servicer, as applicable, shall have been so appointed and
have accepted appointment within 90 days after such Master Servicer or such
Special Servicer, as the case may be, has given notice of such resignation, the
resigning Master Servicer or Special Servicer, as applicable, may petition any
court of competent jurisdiction for the appointment of a successor thereto; and
provided, further, that such Master Servicer or Special Servicer, as the case
may be, shall, at least 10 days prior to resigning and assigning or transferring
any of its rights, benefits or privileges hereunder, inform the Controlling
Class Representative in writing of its intent to resign and disclose to the
Controlling Class Representative the name of such assignee or transferee and the
date of the proposed resignation and transfer of servicing.
(b) In addition, each Master Servicer and each Special Servicer
shall have the right to resign at any other time, provided that (i) a willing
successor thereto (including any such successor proposed by the resigning party)
reasonably acceptable to the Depositor and the Trustee has been found, (ii) each
of the Rating Agencies confirms to the Trustee in writing that the successor's
appointment will not result in an Adverse Rating Event with respect to any Class
of Rated 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.
(c) Neither of the Master Servicers nor the Special Servicers shall
be permitted to resign except as contemplated in subsections (a) and (b) of this
Section 6.04. Consistent with the foregoing, neither of the Master Servicers nor
the Special Servicers shall (except in connection with any resignation thereby
permitted above in this Section 6.04 or as otherwise expressly provided herein,
including the provisions of Section 3.11(a), Section 3.22 and/or Section 6.02)
assign or transfer any of its rights, benefits or privileges hereunder to any
other Person or delegate to, subcontract with, or authorize or appoint any other
Person to perform any of the duties, covenants or obligations to be performed by
it hereunder. If, pursuant to any provision hereof, the duties of a Master
Servicer or a Special Servicer are transferred to a successor thereto, the
entire amount of compensation payable to such Master Servicer or such Special
Servicer, as the case may be, that accrues pursuant hereto from and after the
date of such transfer shall be payable to such successor, except to the extent
provided in Section 3.11(c).
Section 6.05 Rights of the Depositor and the Trustee in Respect of
the Master Servicers and the Special Servicers
Each Master Servicer and each Special Servicer shall afford the
Depositor, the Trustee, the Controlling Class Representative, the 000 Xxxxx
Xxxxxx X Loan Holder, each Washington Center Junior Holder and each Rating
Agency, upon reasonable notice, during normal business hours access to all
records maintained by it in respect of its rights and obligations hereunder and
access to such of its officers as are responsible for such obligations. Upon
reasonable request, each Master Servicer and each Special Servicer shall furnish
the Depositor and the Trustee with its most recent publicly available annual
audited financial statements (or, if not available, the most recent publicly
available audited annual financial statements of its corporate parent) and such
other information as is publicly available regarding its business, affairs,
property and condition, financial or otherwise; provided that neither the
Depositor nor the Trustee may disclose the contents of such financial statements
or other information to non-affiliated third parties (other than accountants,
attorneys, financial advisors and other representatives retained to help it
evaluate such financial statements or other information), unless it is required
to do so under applicable securities laws or is otherwise compelled to do so as
a matter of law. Each Master Servicer and each Special Servicer may affix to any
such information described in this Section 6.05 provided by it any disclaimer it
deems appropriate in its reasonable discretion. The Depositor may, but is not
obligated to, enforce the obligations of the Master Servicers and Special
Servicers hereunder and may, but is not obligated to, perform, or cause a
designee to perform, any defaulted obligation of the Master Servicers or the
Special Servicers hereunder or exercise the rights of the Master Servicers or
the Special Servicers hereunder; provided, however, that neither of the Master
Servicers nor the Special Servicers shall be relieved of any of its obligations
hereunder by virtue of such performance by the Depositor or its designee. The
Depositor shall not have any responsibility or liability for any action or
failure to act by the Master Servicers or the Special Servicers and is not
obligated to supervise the performance of the Master Servicers or the Special
Servicers under this Agreement or otherwise.
Section 6.06 Master Servicers or Special Servicers as Owner of a
Certificate
Each Master Servicer, each Special Servicer or any Affiliate of any
of them may become the Holder of (or, in the case of a Book-Entry Certificate,
Certificate Owner with respect to) any Certificate with (except as otherwise set
forth in the definition of "Certificateholder") the same rights it would have if
it were not a Master Servicer, a Special Servicer or an Affiliate of any of
them. If, at any time during which a Master Servicer or a Special Servicer or an
Affiliate of a Master Servicer or a Special Servicer is the Holder of (or, in
the case of a Book-Entry Certificate, Certificate Owner with respect to) any
Certificate, such Master Servicer or such Special Servicer, as the case may be,
proposes to take any action (including for this purpose, omitting to take a
particular action) that is not expressly prohibited by the terms hereof and
would not, in such Master Servicer's or such Special Servicer's, as the case may
be, reasonable judgment, violate the Servicing Standard, but that, if taken,
might nonetheless, in such Master Servicer's or such Special Servicer's, as the
case may be, reasonable judgment, be considered by other Persons to violate the
Servicing Standard, then such Master Servicer or such Special Servicer, as the
case may be, may (but need not) seek the approval of the Certificateholders to
such action by delivering to the Trustee a written notice that (a) states that
it is delivered pursuant to this Section 6.06, (b) identifies the Percentage
Interest in each Class of Certificates beneficially owned by such Master
Servicer or such Special Servicer, as the case may be, or by an Affiliate
thereof and (c) describes in reasonable detail the action that such Master
Servicer or such Special Servicer, as the case may be, proposes to take. The
Trustee, upon receipt of such notice, shall forward it to the Certificateholders
(other than a Master Servicer and its Affiliates or a Special Servicer and its
Affiliates, as appropriate), together with a request for approval by the
Certificateholders of each such proposed action. If at any time
Certificateholders holding greater than 50% of the Voting Rights of all
Certificateholders (calculated without regard to the Certificates beneficially
owned by a Master Servicer or its Affiliates or a Special Servicer or its
Affiliates, as the case may be) shall have consented in writing to the proposal
described in the written notice, and if a Master Servicer or a Special Servicer,
as the case may be, shall act as proposed in the written notice, such action
shall be deemed to comply with the Servicing Standard. The Trustee shall be
entitled to reimbursement from such Master Servicer or such 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 a Master
Servicer or a 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.
ARTICLE VII
DEFAULT
Section 7.01 Events of Default
(a) "Event of Default", wherever used herein, means any one of the
following events:
(i) any failure by a Master Servicer to deposit into a Collection
Account or an A/B Custodial Account any amount required to be so deposited
under this Agreement, which failure continues unremedied for three
Business Days following the date on which such deposit was first required
to be made; or
(ii) any failure by a Special Servicer to deposit into an REO
Account or to deposit, or remit to the applicable Master Servicer for
deposit, into the applicable Master Servicer's Collection Account, any
amount required to be so deposited or remitted under this Agreement, which
failure continues unremedied for three Business Days following the date on
which such deposit or remittance, as the case may be, was first required
to be made; or
(iii) any failure by a Master Servicer to remit to the Trustee for
deposit into the Distribution Account, on any P&I Advance Date, the full
amount of P&I Advances required to be made by such Master Servicer on such
date or, on any Master Servicer Remittance Date, the full amount of the
Master Servicer Remittance Amount and any Compensating Interest Payment
required to be remitted by such Master Servicer on such date, which
failure continues unremedied until 6:00 p.m. (New York City time) on such
P&I Advance Date or Master Servicer Remittance Date, as the case may be;
or
(iv) any failure by a Master Servicer to timely make any Servicing
Advance required to be made by it hereunder, which Servicing Advance
remains unmade for a period of three Business Days following the date on
which notice shall have been given to such Master Servicer by the Trustee
as provided in Section 3.11(f); or
(v) any failure by a Special Servicer to timely make (or request the
applicable Master Servicer to make) any Servicing Advance required to be
made by it hereunder, which Servicing Advance remains unmade for a period
of three Business Days following the date on which notice has been given
to such Special Servicer by the Trustee as provided in Section 3.11(f); or
(vi) any failure on the part of a Master Servicer or Special
Servicer duly to observe or perform in any material respect any other of
the covenants or agreements on the part of such Master Servicer or such
Special Servicer, as the case may be, contained in this Agreement,
including a Master Servicer's unauthorized consent to subordinate debt,
which failure continues unremedied for a period of 30 days after the date
on which written notice of such failure, requiring the same to be
remedied, shall have been given to such Master Servicer or Special
Servicer, as the case may be, by any other party hereto or to such Master
Servicer or Special Servicer, as the case may be, with a copy to each
other party hereto, by the Controlling Class Representative or the Holders
of Certificates entitled to at least 25% of the Voting Rights; provided,
however, that, with respect to any such failure that is not curable within
such 30-day period, such Master Servicer or such Special Servicer, as the
case may be, shall have an additional cure period of 30 days to effect
such cure so long as such Master Servicer or such 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
(vii) any breach on the part of a Master Servicer or a 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 such Master Servicer or such Special
Servicer, as the case may be, by any other party hereto or to such Master
Servicer or such Special Servicer, as the case may be, with a copy to each
other party hereto, by the Controlling Class Representative or the Holders
of Certificates entitled to at least 25% of the Voting Rights; provided,
however, that, with respect to any such breach that is not curable within
such 30-day period, such Master Servicer or such Special Servicer, as the
case may be, shall have an additional cure period of 30 days to effect
such cure so long as such Master Servicer or such Special Servicer, as the
case may be, has commenced to cure such breach 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
(viii) a decree or order of a court or agency or supervisory
authority having jurisdiction in the premises in an involuntary case under
any present or future federal or state bankruptcy, insolvency or similar
law for the appointment of a conservator, receiver, liquidator, trustee or
similar official in any bankruptcy, insolvency, readjustment of debt,
marshalling of assets and liabilities or similar proceedings, or for the
winding-up or liquidation of its affairs, shall have been entered against
a Master Servicer or Special Servicer and such decree or order shall have
remained in force undischarged, undismissed or unstayed for a period of 30
days; provided, however, that, with respect to any such decree or order
that cannot be discharged, dismissed or stayed within such 30-day period,
such Master Servicer or Special Servicer, as the case may be, shall have
an additional period of 30 days to effect such discharge, dismissal or
stay so long as such Master Servicer or Special Servicer, as the case may
be, has commenced proceedings to have such decree or order dismissed,
discharged or stayed 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, such discharge or stay; or
(ix) a Master Servicer or Special Servicer shall consent to the
appointment of a conservator, receiver, liquidator, trustee or similar
official in any bankruptcy, insolvency, readjustment of debt, marshalling
of assets and liabilities or similar proceedings of or relating to it or
of or relating to all or substantially all of its property; or
(x) a Master Servicer or 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
(xi) Xxxxx'x or Fitch has qualified, downgraded or withdrawn its
rating or ratings of one or more Classes of Certificates, or Xxxxx'x has
placed one or more Classes of Certificates on "watch status" in
contemplation of possible rating downgrade or withdrawal (and such "watch
status" placement shall not have been withdrawn by Xxxxx'x within 60 days
of such placement), and, in either case, Xxxxx'x has cited servicing
concerns with a Master Servicer or a Special Servicer as the sole or a
material factor in such rating action (except that "servicing concerns"
will be deemed not to be a "material factor" if the applicable Master
Servicer or Special Servicer establishes to a reasonable degree that the
rating action would have occurred without regard to those servicing
concerns); or
(xii) The NCBFSB Master Servicer shall no longer be rated "CMS3,"
its equivalent or higher by Fitch and the Co-op Special Servicer shall no
longer be rated "CSS3," its equivalent or higher by Fitch; or
(xiii) a Master Servicer is removed from S&P's approved master
servicer list or a Special Servicer is removed from S&P's approved special
servicer list, and such Master Servicer or Special Servicer, as the case
may be, is not restored to such list within 60 days after its removal
therefrom.
When a single entity acts as General Master Servicer, NCBFSB Master
Servicer, General Special Servicer and Co-op Special Servicer, or in any two or
more of the foregoing capacities, an Event of Default (other than an event
described in clauses (xi) and (xii) above) in one capacity shall constitute an
Event of Default in both or all such capacities.
(b) If any Event of Default with respect to a Master Servicer or a
Special Servicer (in either case, for purposes of this Section 7.01(b), the
"Defaulting Party") shall occur and be continuing, then, and in each and every
such case, so long as the Event of Default shall not have been remedied, the
Depositor and Trustee each may, and at the written direction of either the
Holders of Certificates entitled to not less than 25% of the Voting Rights or
the Controlling Class Representative, the Trustee shall (subject to applicable
bankruptcy or insolvency law in the case of clauses (viii) through (x) of
Section 7.01(a)), terminate, by notice in writing to the Defaulting Party (with
a copy of such notice to each other party hereto), all of the rights and
obligations (accruing from and after such notice) of the Defaulting Party under
this Agreement and in and to the Trust Fund (other than as a Holder of any
Certificate). From and after the receipt by the Defaulting Party of such written
notice, all authority and power of the Defaulting Party under this Agreement,
whether with respect to the Certificates (other than as a Holder of any
Certificate) or the Mortgage Loans or otherwise, shall pass to and be vested in
the Trustee pursuant to and under this Section, and, without limitation, the
Trustee is hereby authorized and empowered to execute and deliver, on behalf of
and at the expense of the Defaulting Party, as attorney-in-fact or otherwise,
any and all documents and other instruments, and to do or accomplish all other
acts or things necessary or appropriate to effect the purposes of such notice of
termination, whether to complete the transfer and endorsement or assignment of
the Mortgage Loans and related documents, or otherwise (provided, however, that
each Master Servicer and each Special Servicer shall, if terminated pursuant to
this Section 7.01(b), continue to be obligated to pay and entitled to receive
all amounts accrued or owing by or to it under this Agreement on or prior to the
date of such termination, whether in respect of Advances or otherwise, including
Workout Fees (as and to the extent provided in Section 3.11(c)), and it and its
members, managers, directors, officers, employees and agents shall continue to
be entitled to the benefits of Section 3.11 and Section 6.03 notwithstanding any
such termination). Each Master Servicer and Special Servicer agrees that, if it
is terminated pursuant to this Section 7.01(b), it shall promptly (and in any
event no later than 20 days subsequent to its receipt of the notice of
termination) provide the Trustee with all documents and records requested
thereby to enable the Trustee to assume such Master Servicer's or Special
Servicer's, as the case may be, functions hereunder, and shall otherwise
cooperate with the Trustee in effecting the termination of such Master
Servicer's or Special Servicer's, as the case may be, responsibilities and
rights hereunder, including the transfer within five Business Days to the
Trustee for administration by it of all cash amounts that at the time are or
should have been credited by such Master Servicer to its Collection Account, any
A/B Custodial Account, the Distribution Account or any Servicing Account or
Reserve Account held by it (if it is the Defaulting Party) or by such Special
Servicer to an REO Account, a Collection Account or any Servicing Account or
Reserve Account held by it (if it 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 each Master Servicer and each Special
Servicer shall, if terminated pursuant to this Section 7.01(b), continue to be
obligated to pay and entitled to receive all amounts accrued or owing by or to
it under this Agreement on or prior to the date of such termination, whether in
respect of Advances or otherwise, and it and its members, managers, directors,
officers, employees and agents shall continue to be entitled to the benefits of
Section 6.03 notwithstanding any such termination). Any costs or expenses
(including those of any other party hereto) incurred in connection with any
actions to be taken by a terminated Master Servicer or a Special Servicer
pursuant to this paragraph shall be borne by such Master Servicer or Special
Servicer, as the case may be (and, in the case of the Trustee's costs and
expenses, if not paid within a reasonable time, shall be borne by the Trust out
of the Collection Account).
Section 7.02 Trustee to Act; Appointment of Successor
On and after the time any Master Servicer or a Special Servicer
resigns pursuant to Section 6.04(a) or receives a notice of termination pursuant
to Section 7.01, the Trustee shall, subject to Section 3.25, be the successor in
all respects to such Master Servicer or such 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 be subject to all the responsibilities, duties
and liabilities relating thereto and arising thereafter placed on such Master
Servicer or such Special Servicer, as the case may be, by the terms and
provisions hereof, including, if a Master Servicer is the resigning or
terminated party, such Master Servicer's obligation to make Advances; provided,
however, that any failure to perform such duties or responsibilities caused by a
Master Servicer's or a Special Servicer's, as the case may be, failure to
cooperate or to provide information or monies as required by Section 7.01 shall
not be considered a default by the Trustee hereunder. Neither the Trustee nor
any other successor shall be liable for any of the representations and
warranties of the resigning or terminated party or for any losses incurred by
the resigning or terminated party pursuant to Section 3.06 hereunder nor shall
the Trustee or any other successor be required to purchase any Mortgage Loan
hereunder. As compensation therefor, the Trustee shall be entitled to all fees
and other compensation which the resigning or terminated party would have been
entitled to for future services rendered if the resigning or terminated party
had continued to act hereunder. Notwithstanding the above, if it is unwilling to
so act, the Trustee may (and, if it is unable to so act, or if the Trustee is
not approved as an acceptable master servicer or special servicer, as the case
may be, by each Rating Agency, or if the Holders of Certificates entitled to a
majority of all the Voting Rights or the Controlling Class Representative so
request in writing, the Trustee shall), subject to Section 3.25, promptly
appoint, or petition a court of competent jurisdiction to appoint, any
established and qualified institution as the successor to the resigning or
terminated Master Servicer or a Special Servicer, as the case may be, hereunder
in the assumption of all or any part of the responsibilities, duties or
liabilities of such Master Servicer or such Special Servicer, as the case may
be, hereunder; provided, however, that such appointment does not result in an
Adverse Rating Event with respect to any Class of Rated Certificates (as
confirmed in writing to the Trustee by each Rating Agency); and, provided,
further, that such successor is reasonably acceptable to the Controlling Class
Representative. No appointment of a successor to a Master Servicer or a Special
Servicer hereunder shall be effective until the assumption by such successor of
all its responsibilities, duties and liabilities hereunder, and pending such
appointment and assumption, the Trustee shall act in such capacity as
hereinabove provided. In connection with any such appointment and assumption,
the Trustee may make such arrangements for the compensation of such successor
out of payments on the Mortgage Loans or otherwise as it and such successor
shall agree; provided, however, that no such compensation shall be in excess of
that permitted the resigning or terminated party hereunder. The Depositor, the
Trustee, such successor and each other party hereto shall take such action,
consistent with this Agreement, as shall be necessary to effectuate any such
succession.
If the Trustee or an Affiliate acts pursuant to this Section 7.02 as
successor to a Master Servicer, it may reduce the related Excess Servicing Fee
Rate to the extent that its or such Affiliate's compensation as successor to
such Master Servicer would otherwise be below the market rate servicing
compensation. If the Trustee elects to appoint a successor to a Master Servicer
other than itself or an Affiliate pursuant to this Section 7.02, it may reduce
the related Excess Servicing Fee Rate to the extent reasonably necessary (in the
sole discretion of the Trustee) for the Trustee to appoint a qualified successor
to such Master Servicer that meets the requirements of this Section 7.02.
Section 7.03 Notification to Certificateholders
(a) Upon any resignation of a Master Servicer or Special Servicer
pursuant to Section 6.04, any termination of a Master Servicer or such Special
Servicer pursuant to Section 7.01, any appointment of a successor to such Master
Servicer or such Special Servicer pursuant to Section 6.02, 6.04 or 7.02 or the
effectiveness of any designation of a new Special Servicer pursuant to Section
3.25, the Trustee shall give prompt written notice thereof to Certificateholders
at their respective addresses appearing in the Certificate Register and, to the
extent such information has been made available to the Trustee, to any B Loan
Holder and the Washington Center Junior Holders.
(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 actual knowledge of the occurrence of such an event, the Trustee
shall transmit by mail to the Depositor and all Certificateholders notice of
such occurrence, and the Depositor shall send to any B Loan Holder and the
Washington Center Junior Holders notice of such occurrence, unless such default
shall have been cured.
Section 7.04 Waiver of Events of Default
The Holders of Certificates representing at least 66-2/3% of the
Voting Rights allocated to each Class of Certificates affected by any Event of
Default hereunder may waive such Event of Default; provided that an Event of
Default under clause (i), clause (ii), clause (iii), clause (xi), clause (xii)
or clause (xiii) 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, and payment to the Trustee of all reasonable costs and expenses
incurred by the Trustee in connection with such default prior to its waiver
(which costs shall be paid by the party requesting such waiver), such Event of
Default shall cease to exist and shall be deemed to have been remedied for every
purpose hereunder. No such waiver shall extend to any subsequent or other Event
of Default or impair any right consequent thereon except to the extent expressly
so waived. Notwithstanding any other provisions of this Agreement, for purposes
of waiving any Event of Default pursuant to this Section 7.04, Certificates
registered in the name of the Depositor or any Affiliate of the Depositor shall
be entitled to the same Voting Rights with respect to the matters described
above as they would if registered in the name of any other Person.
Section 7.05 Additional Remedies of Trustee Upon Event of Default
During the continuance of any Event of Default, so long as such
Event of Default shall not have been remedied, the Trustee, in addition to the
rights specified in Section 7.01, shall have the right (exercisable subject to
Section 8.01(a)), in its own name and as trustee of an express trust, to take
all actions now or hereafter existing at law, in equity or by statute to enforce
its rights and remedies and to protect the interests, and enforce the rights and
remedies, of the Certificateholders (including the institution and prosecution
of all judicial, administrative and other proceedings and the filings of proofs
of claim and debt in connection therewith). Except as otherwise expressly
provided in this Agreement, no remedy provided for by this Agreement shall be
exclusive of any other remedy, and each and every remedy shall be cumulative and
in addition to any other remedy, and no delay or omission to exercise any right
or remedy shall impair any such right or remedy or shall be deemed to be a
waiver of any Event of Default.
Section 7.06 Replacement of Great Lakes Crossing Special Servicer
Provided the relevant Controlling Class Representative under the
Series 2003-CK2 Trust has not replaced the Great Lakes Crossing Special
Servicer, the Trustee may (and, at the direction of the Controlling Class
Representative or of Certificateholders representing at least 25% of the Voting
Rights, shall) consent to the termination and replacement of, or exercise such
rights as may be granted to it under the Great Lakes Crossing Intercreditor
Agreement and/or any Great Lakes Crossing Servicing Agreement to terminate and
replace, the Great Lakes Crossing Special Servicer; provided that the Trustee
shall first obtain written confirmation from each Rating Agency that its
granting such consent or exercising such rights shall not result in an Adverse
Rating Event with respect to any Class of Rated Certificates. The Trustee and
the Master Servicer shall each notify the other such party, the
Certificateholders, the Controlling Class Representative and the Rating Agencies
of any Series 2003-CK2 Event of Default known to a Responsible Officer of the
Trustee or a Servicing Officer of the Master Servicer, as the case may be, in
the same manner as it would notify such parties of an Event of Default
hereunder.
ARTICLE VIII
THE TRUSTEE
Section 8.01 Duties of Trustee
(a) The Trustee, prior to the occurrence of an Event of Default and
after the curing or waiver of all Events of Default which may have occurred,
undertakes to perform such duties and only such duties as are specifically set
forth in this Agreement. If an Event of Default occurs and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Agreement, and use the same degree of care and skill in their exercise as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs. Any permissive right of the Trustee contained in this Agreement
shall not be construed as a duty.
(b) Upon receipt of all resolutions, certificates, statements,
opinions, reports, documents, orders or other instruments furnished to the
Trustee which are specifically required to be furnished pursuant to any
provision of this Agreement (other than the Mortgage Files, the review of which
is specifically governed by the terms of Article II), the Trustee shall examine
them to determine whether they conform to the requirements of this Agreement. If
any such instrument is found not to conform to the requirements of this
Agreement in a material manner, the Trustee shall take such action as it deems
appropriate to have the instrument corrected. The Trustee shall not be
responsible or liable for the accuracy or content of any resolution,
certificate, statement, opinion, report, document, order or other instrument
furnished by the Depositor, the Master Servicers, the Special Servicers, any
actual or prospective Certificateholder or Certificate Owner or either Rating
Agency, and accepted by the Trustee in good faith, pursuant to this Agreement.
(c) No provision of this Agreement shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own willful misconduct; provided, however, that:
(i) Prior to the occurrence of an Event of Default, and after the
curing or waiver of all Events of Default which may have occurred, the
duties and obligations of the Trustee shall be determined solely by the
express provisions of this Agreement, the Trustee shall not be liable
except for the performance of such duties and obligations as are
specifically set forth in this Agreement, no implied covenants or
obligations shall be read into this Agreement against the Trustee and, in
the absence of bad faith on the part of the Trustee, the Trustee may
conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon any certificates or opinions
furnished to the Trustee and conforming to the requirements of this
Agreement.
(ii) The Trustee shall not be liable for an error of judgment made
in good faith by a Responsible Officer or Responsible Officers of the
Trustee, unless it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts.
(iii) The Trustee shall not be liable with respect to any action
taken, suffered or omitted to be taken by it in good faith in accordance
with the direction of Holders of Certificates entitled to at least 25%
(or, as to any particular matter, any higher percentage as may be
specifically provided for hereunder) of the Voting Rights relating to the
time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred upon
the Trustee, under this Agreement.
(iv) The Trustee shall not be required to take action with respect
to, or be deemed to have notice or knowledge of, any default or Event of
Default (except an Event of Default under Section 7.01(a)(xi), Section
7.01(a)(xii) or Section 7.01(a)(xiii) or the Master Servicer's failure to
deliver any monies, including P&I Advances, or to provide any report,
certificate or statement, to the Trustee when required pursuant to this
Agreement) unless a Responsible Officer of the Trustee shall have received
written notice or otherwise have actual knowledge thereof. Otherwise, the
Trustee may conclusively assume that there is no such default or Event of
Default.
(v) Subject to the other provisions of this Agreement and without
limiting the generality of this Section 8.01, the Trustee shall have no
duty, except as expressly provided in Section 2.01(c) or Section 2.01(e)
or in its capacity as a successor Master Servicer or successor Special
Servicer, (A) to cause any recording, filing, or depositing of this
Agreement or any agreement referred to herein or any financing statement
or continuation statement evidencing a security interest, or to cause the
maintenance of any such recording or filing or depositing or to any
re-recording, refiling or redepositing of any thereof, (B) to cause the
maintenance of any insurance, and (C) to confirm or verify the truth,
accuracy or contents of any reports or certificates of a Master Servicer,
a Special Servicer, any actual or prospective or any Certificateholder or
Certificate Owner or either Rating Agency, delivered to the Trustee
pursuant to this Agreement reasonably believed by the Trustee to be
genuine and without error and to have been signed or presented by the
proper party or parties.
(vi) For as long as the Person that serves as Trustee hereunder also
serves as a Custodian or as Certificate Registrar, the protections,
immunities and indemnities afforded to the Trustee hereunder shall also be
afforded to such Person in its capacity as Custodian and/or Certificate
Registrar, as the case may be.
Section 8.02 Certain Matters Affecting the Trustee
Except as otherwise provided in Section 8.01:
(i) the Trustee may rely upon and shall be protected in acting or
refraining from acting upon any resolution, Officers' Certificate,
certificate of auditors or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, appraisal, bond or other
paper or document reasonably believed by it to be genuine and without
error and to have been signed or presented by the proper party or parties;
(ii) the Trustee may consult with counsel and any written advice or
opinion of such counsel shall be full and complete authorization and
protection in respect of any action taken or suffered or omitted by it
hereunder in good faith and in accordance therewith;
(iii) the Trustee shall be under no obligation to exercise any of
the trusts or powers vested in it by this Agreement or to make any
investigation of matters arising hereunder or to institute, conduct or
defend any litigation hereunder or in relation hereto at the request,
order or direction of any of the Certificateholders, unless (in the
Trustee's reasonable opinion) such Certificateholders shall have offered
to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which may be incurred therein or thereby; the
Trustee shall not be required to expend or risk its own funds or otherwise
incur any financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if it shall
have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably
assured to it; provided, however, that nothing contained herein shall
relieve the Trustee of the obligation, upon the occurrence of an Event of
Default which has not been waived or cured, to exercise such of the rights
and powers vested in it by this Agreement, and to use the same degree of
care and skill in their exercise as a prudent man would exercise or use
under the circumstances in the conduct of his own affairs;
(iv) neither the Trustee nor any Fiscal Agent appointed thereby
shall be personally liable for any action reasonably taken, suffered or
omitted by it in good faith and believed by it to be authorized or within
the discretion or rights or powers conferred upon it by this Agreement;
(v) prior to the occurrence of an Event of Default and after the
waiver or curing of all Events of Default which may have occurred, the
Trustee shall not be bound to make any investigation into the facts or
matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, 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 a reasonable indemnity
against such expense or liability as a condition to taking any such
action;
(vi) except as contemplated by Section 8.06, the Trustee shall not
be required to give any bond or surety in respect of the execution of the
trusts created hereby or the powers granted hereunder;
(vii) the Trustee may execute any of the trusts or powers vested in
it by this Agreement or perform any of its duties hereunder either
directly or by or through agents or attorneys-in-fact, provided that the
use of agents or attorneys-in-fact shall not be deemed to relieve the
Trustee of any of its duties and obligations hereunder (except as
expressly set forth herein);
(viii) neither the Trustee nor any Fiscal Agent appointed thereby
shall be responsible for any act or omission of a Master Servicer or a
Special Servicer (unless the Trustee is acting as such Master Servicer or
such Special Servicer, as the case may be) or of the Depositor.
(ix) 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 or record ownership of
Certificates in the Certificate Register and to examine the same to
determine substantial compliance with the express requirements of this
Agreement; and 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 or record ownership in the
Certificate Register.
Section 8.03 Trustee and Fiscal Agent not Liable for Validity or
Sufficiency of Certificates or Mortgage Loans
The recitals contained herein and in the Certificates (other than
the statements attributed to, and the representations and warranties of, the
Trustee and/or any Fiscal Agent in Article II, and the signature of the Trustee
set forth on each outstanding Certificate) shall not be taken as the statements
of the Trustee or any Fiscal Agent, and neither the Trustee nor any Fiscal Agent
assumes any responsibility for their correctness. Neither the Trustee nor any
Fiscal Agent makes any representation as to the validity or sufficiency of this
Agreement (except as regards the enforceability of this Agreement against it) or
of any Certificate (other than as to the signature of the Trustee set forth
thereon) or of any Mortgage Loan or related document. Neither the Trustee nor
any Fiscal Agent shall 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, or any funds
deposited in or withdrawn from the Collection Account or any other account by or
on behalf of the Depositor, the Master Servicers or the Special Servicers (in
each case, unless the Trustee is acting in such capacity). Neither the Trustee
nor any Fiscal Agent shall be responsible for the legality or validity of this
Agreement (other than insofar as it relates to the obligations of the Trustee or
such Fiscal Agent, as the case may be, hereunder) or the validity, priority,
perfection or sufficiency of any security, lien or security interest granted to
it hereunder or the filing of any financing statements or continuation
statements, except to the extent set forth in Section 2.01(c) and Section
2.01(e) or to the extent the Trustee is acting as a Master Servicer or Special
Servicer and such Master Servicer or Special Servicer, as the case may be, would
be so responsible hereunder. The Trustee shall not be required to record this
Agreement, except as provided in Section 11.02(a).
Section 8.04 Trustee and Fiscal Agent May Own Certificates
The Trustee (in its individual or any other capacity), any Fiscal
Agent or any Affiliate of either of them may become the owner or pledgee of
Certificates with (except as otherwise provided in the definition of
"Certificateholder") the same rights it would have if it were not the Trustee,
such Fiscal Agent or an Affiliate of either of them, as the case may be.
Section 8.05 Fees and Expenses of Trustee; Indemnification of and by
Trustee and Fiscal Agent
(a) On each Distribution Date, the Trustee shall withdraw from the
Distribution Account, prior to any distributions to be made therefrom to
Certificateholders on such date, and pay to itself all earned but unpaid
Trustee's Fees in respect of the Mortgage Loans and any REO Mortgage Loans
through the end of the most recently ended calendar month, as compensation for
all services rendered by the Trustee in the execution of the trusts hereby
created and in the exercise and performance of any of the powers and duties of
the Trustee hereunder. As to each Mortgage Loan and REO Mortgage Loan, the
Trustee's Fee shall accrue during each calendar month, commencing with May 2003,
at the Trustee's Fee Rate on a principal amount equal to the Stated Principal
Balance of such Mortgage Loan or REO Mortgage Loan immediately following the
Distribution Date in such calendar month (or, in the case of May 2003, on a
principal amount equal to the Cut-off Date Principal Balance of the particular
Mortgage Loan), whether or not interest is actually collected on each Mortgage
Loan and REO Mortgage Loan. With respect to each Mortgage Loan and REO Mortgage
Loan, the Trustee's Fee shall accrue from time to time on the same Interest
Accrual Basis as is applicable to such Mortgage Loan or REO Mortgage Loan.
Except as otherwise expressly provided herein, the Trustee's Fees (which shall
not be limited by any provision of law in regard to the compensation of a
trustee of an express trust) shall constitute the Trustee's sole compensation
for such services to be rendered by it. The Trustee shall also be entitled to
all interest or other income earned on deposits in the Accounts maintained by
the Trustee, in accordance with Section 3.06(b) (but only to the extent of the
Net Investment Earnings, if any, with respect to any such Account for each
Collection Period).
(b) The Trustee and any director, officer, employee or agent of the
Trustee shall be entitled to be indemnified and held harmless out of the Trust
Fund for and against any loss, liability, claim or expense (including costs and
expenses of litigation, and of investigation, counsel fees, damages, judgments
and amounts paid in settlement) arising out of, or incurred in connection with,
this Agreement, the Certificates, the Mortgage Loans (unless it incurs any such
expense or liability in the capacity of a successor Master Servicer or Special
Servicer, in which case such expense or liability will be reimbursable thereto
in the same manner as it would be for any other Person acting as such Master
Servicer or Special Servicer, as the case may be) or any act or omission of the
Trustee relating to the exercise and performance of any of the powers and duties
of the Trustee hereunder, if (but only if) such loss, liability, claim or
expense constitutes an "unanticipated expense" within the meaning of Treasury
Regulations Section 1.860G-1(b)(3)(ii); provided, however, 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) allocable overhead,
such as costs for office space, office equipment, supplies and related expenses,
employee salaries and related expenses and similar internal costs and expenses,
(2) any expense or liability specifically required to be borne thereby pursuant
to the terms hereof or (3) any loss, liability, claim or expense incurred by
reason of any breach on the part of the Trustee of any of its representations,
warranties or covenants contained herein or any willful misfeasance, bad faith
or negligence in the performance of, or reckless disregard of, the Trustee's
obligations and duties hereunder.
(c) Each Master Servicer and each Special Servicer shall indemnify
the Trustee and any Fiscal Agent for and hold each of them harmless against any
loss, liability, claim or expense that is a result of such Master Servicer's or
such Special Servicer's, as the case may be, negligent acts or omissions in
connection with this Agreement, including the negligent use by such Master
Servicer or such Special Servicer, as the case may be, of any powers of attorney
delivered to it by the Trustee pursuant to the provisions hereof and the
Mortgage Loans serviced by such Master Servicer or such Special Servicer, as the
case may be; provided, however, that, if the Trustee has been reimbursed for
such loss, liability, claim or expense pursuant to Section 8.05(b), or any
Fiscal Agent has been reimbursed for such loss, liability, claim or expense
pursuant to Section 8.13, then the indemnity in favor of such Person provided
for in this Section 8.05(c) with respect to such loss, liability, claim or
expense shall be for the benefit of the Trust.
(d) Each of the Trustee and any Fiscal Agent shall indemnify the
Master Servicers and the Special Servicers for and hold each of them harmless
against any loss, liability, claim or expense that is a result of the Trustee's
or such Fiscal Agent's, as the case may be, negligent acts or omissions in
connection with this Agreement; provided, however, that if either Master
Servicer or either Special Servicer has been reimbursed for such loss,
liability, claim or expense pursuant to Section 6.03, then the indemnity in
favor of such Person provided for in this Section 8.05(d) with respect to such
loss, liability, claim or expense shall be for the benefit of the Trust.
(e) This Section 8.05 shall survive the termination of this
Agreement or the resignation or removal of the Trustee, any Fiscal Agent, either
Master Servicer or either Special Servicer as regards rights and obligations
prior to such termination, resignation or removal.
Section 8.06 Eligibility Requirements for Trustee
The Trustee hereunder shall at all times be a corporation, bank,
trust company or association organized and doing business under the laws of the
United States of America or any State thereof or the District of Columbia,
authorized under such laws to exercise trust powers, having a combined capital
and surplus of at least $50,000,000 and subject to supervision or examination by
federal or state authority. If such corporation, bank, trust company or
association publishes reports of condition at least annually, pursuant to law or
to the requirements of the aforesaid supervising or examining authority, then
for the purposes of this Section the combined capital and surplus of such
corporation, bank, trust company or association shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition
so published. In addition, the Trustee shall at all times meet the requirements
of Section 26(a)(1) of the Investment Company Act, and the affiliations of the
Trustee shall not adversely affect the availability of PTE 89-90 with respect to
any Class of investment grade rated Certificates. Furthermore, the Trustee shall
at all times maintain a long-term unsecured debt rating of no less than "Aa3"
from Xxxxx'x and "AA" from S&P and Fitch (or, in the case of either Rating
Agency, such lower rating as will not result in an Adverse Rating Event with
respect to any Class of Rated Certificates, as confirmed in writing to the
Trustee and the Depositor by such Rating Agency); provided that the Trustee
shall not cease to be eligible to serve as such based on a failure to satisfy
such rating requirements so long as the Trustee maintains a long-term unsecured
debt rating of no less than "BBB" from S&P and Fitch (or, in the case of either
Rating Agency, such lower rating as will not result in an Adverse Rating Event
with respect to any Class of Rated Certificates, as confirmed in writing to the
Trustee and the Depositor by such Rating Agency) and a Fiscal Agent meeting the
requirements of Section 8.13 has been appointed by the Trustee and is then
currently serving in such capacity. In case at any time the Trustee shall cease
to be eligible in accordance with the provisions of this Section 8.06, the
Trustee shall resign immediately in the manner and with the effect specified in
Section 8.07. The corporation, bank, trust company or association serving as
Trustee may have normal banking and trust relationships with the Depositor, any
Mortgage Loan Seller, either Master Servicer, either Special Servicer and their
respective Affiliates; provided, however, that none of (i) the Depositor, (ii)
any Person involved in the organization or operation of the Depositor or the
Trust, (iii) either Master Servicer or either Special Servicer (except during
any period when the Trustee has assumed the duties of a Master Servicer or a
Special Servicer, as the case may be, pursuant to Section 7.02), (iv) any
Mortgage Loan Seller or (v) any Affiliate of any of them, may be the Trustee
hereunder.
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
Controlling Class Representative, the Master Servicers, the Special Servicers,
the Certificateholders and any B Loan Holder. Upon receiving such notice of
resignation, the Depositor shall promptly appoint a successor trustee reasonably
acceptable to the Controlling Class Representative meeting the eligibility
requirements of Section 8.06, 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 other parties hereto
and to the Certificateholders and any B Loan Holders by the Depositor. If no
successor trustee shall have been so appointed and have accepted appointment
within 30 days after the giving of such notice of resignation, the resigning
Trustee may petition any court of competent jurisdiction for the appointment of
a successor trustee.
(b) If at any time the Trustee shall cease to be eligible in
accordance with the provisions of Section 8.06 and shall fail to resign after
written request therefor by the Depositor or the Master Servicers 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's continuing to act in such capacity would (as
confirmed in writing to any party hereto by either Rating Agency) result in an
Adverse Rating Event with respect to any Class of Rated Certificates, then the
Depositor may (and, if it fails to do so within ten Business Days, the General
Master Servicer shall as soon as practicable) remove the Trustee and appoint a
successor trustee 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 other parties hereto and to the
Certificateholders by the Depositor (or the General Master Servicer, as the case
may be).
(c) The Holders of Certificates entitled to not less than 51% of the
Voting Rights may at any time remove the Trustee and appoint a successor trustee
by written instrument or instruments, in triplicate, signed by such Holders or
their attorneys-in-fact duly authorized, one complete set of which instruments
shall be delivered to the Depositor (with copies to the Master Servicers and the
Special Servicers), one complete set to the Trustee so removed and one complete
set to the successor so appointed. All expenses incurred by the Trustee in
connection with its transfer of the Mortgages Files to a successor trustee
following the removal of the Trustee without cause pursuant to this Section
8.07(c), shall be reimbursed to the removed Trustee within 30 days of demand
therefor, such reimbursement to be made by the Certificateholders that
terminated the Trustee. A copy of such instrument shall be delivered to the
other parties hereto and to the remaining Certificateholders and B Loan Holders
by the successor so appointed.
(d) Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to any of the provisions of this Section 8.07 shall
not become effective until (i) acceptance of appointment by the successor
trustee as provided in Section 8.08 and (ii) if neither the successor trustee
nor any Fiscal Agent appointed by it has a long-term unsecured debt rating of at
least "Aa3" from Xxxxx'x and "AA" from S&P and Fitch, the Trustee and the
Depositor have received written confirmation from each Rating Agency that has
not so assigned such a rating, to the effect that the appointment of such
successor trustee shall not result in an Adverse Rating Event with respect to
any Class of Rated Certificates.
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 Servicers
and the Special Servicers and its predecessor trustee an instrument accepting
such appointment hereunder, and thereupon the resignation or removal of the
predecessor trustee shall become effective and such successor trustee, without
any further act, deed or conveyance, shall become fully vested with all the
rights, powers, duties and obligations of its predecessor hereunder, with the
like effect as if originally named as trustee herein. The predecessor trustee
shall deliver to the successor trustee all Mortgage Files and related documents
and statements held by it hereunder (other than any Mortgage Files at the time
held on its behalf by a Custodian, which Custodian shall become the agent of the
successor trustee), and the Depositor, the Master Servicers, the Special
Servicers and the predecessor trustee shall execute and deliver such instruments
and do such other things as may reasonably be required to more fully and
certainly vest and confirm in the successor trustee all such rights, powers,
duties and obligations, and to enable the successor trustee to perform its
obligations hereunder.
(b) No successor trustee shall accept appointment as provided in
this Section 8.08 unless at the time of such acceptance such successor trustee
shall be eligible under the provisions of Section 8.06.
(c) Upon acceptance of appointment by a successor trustee as
provided in this Section 8.08, such successor trustee shall mail notice of the
succession of such trustee hereunder to the Depositor and the Certificateholders
and the B Loan Holders.
Section 8.09 Merger or Consolidation of Trustee
Any entity into which the Trustee may be merged or converted or with
which it may be consolidated or any entity resulting from any merger, conversion
or consolidation to which the Trustee shall be a party, or any entity succeeding
to the corporate trust business of the Trustee, shall be the successor of the
Trustee hereunder, provided such entity shall be eligible under the provisions
of Section 8.06, without the execution or filing of any paper or any further act
on the part of any of the parties hereto, anything herein to the contrary
notwithstanding.
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 Servicers and the Trustee acting jointly shall have the power and
shall execute and deliver all instruments to appoint one or more Persons
approved by the Trustee to act as co-trustee or co-trustees, jointly with the
Trustee, or separate trustee or separate trustees, of all or any part of the
Trust Fund, and to vest in such Person or Persons, in such capacity, such title
to the Trust Fund, or any part thereof, and, subject to the other provisions of
this Section 8.10, such powers, duties, obligations, rights and trusts as the
Master Servicers and the Trustee may consider necessary or desirable. If a
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 a 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, 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.
(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 when acting as a Master Servicer or a 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 die, become incapable of acting, resign or be removed, all of
its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
(e) The appointment of a co-trustee or separate trustee under this
Section 8.10 shall not relieve the Trustee of its duties and responsibilities
hereunder.
Section 8.11 Appointment of Custodians
The Trustee may, upon prior written notice to the General Master
Servicer, General Special Servicer, NCBFSB Master Servicer and Co-op Special
Servicer, appoint at the Trustee's own expense one or more Custodians to hold
all or a portion of the Mortgage Files as agent for the Trustee; provided that
each Custodian shall be a depository institution supervised and regulated by a
federal or state banking authority, shall have combined capital and surplus of
at least $10,000,000, shall be qualified to do business in the jurisdiction in
which it holds any Mortgage File, shall not be the Depositor, any Mortgage Loan
Seller or any Affiliate of the Depositor or any Mortgage Loan Seller, and shall
have in place a fidelity bond and errors and omissions policy, each in such form
and amount as is customarily required of custodians acting on behalf of Xxxxxxx
Mac or Xxxxxx Mae. Each Custodian shall be subject to the same obligations,
standard of care, protection and indemnities as would be imposed on, or would
protect, the Trustee hereunder in connection with the retention of Mortgage
Files directly by the Trustee. The appointment of one or more Custodians shall
not relieve the Trustee from any of its obligations hereunder, and the Trustee
shall remain responsible for all acts and omissions of any Custodian.
Section 8.12 Access to Certain Information
(a) The Trustee shall afford to the Depositor, the Master Servicers,
the Special Servicers, the Controlling Class Representative, any B Loan Holder,
and each Washington Center Junior Holder (but only to the extent such
information relates to the related Mortgage Loan, Mortgaged Property or
Borrower) and each Rating Agency and to the OTS, the FDIC and any other banking
or insurance regulatory authority that may exercise authority over any
Certificateholder or Certificate Owner, access to any documentation regarding
the Mortgage Loans or the other assets of the Trust Fund that are in its
possession or within its control. Such access shall be afforded without charge
but only upon reasonable prior written request and during normal business hours
at the offices of the Trustee designated by it.
(b) The Trustee shall maintain at its offices and, upon reasonable
prior written request and during normal business hours, shall make available for
review by the Depositor, the Underwriters, the Rating Agencies, the Controlling
Class Representative and, subject to the succeeding paragraph, any
Certificateholder, each B Loan Holder and its designees, and each Washington
Center Junior Holder (but only to the extent such information relates to the
related Mortgage Loan, Mortgaged Property or Borrower), Certificate Owner or
Person identified to the Trustee as a prospective Transferee of a Certificate or
an interest therein, originals and/or copies of the following items (to the
extent such items were prepared by or delivered to the Trustee): (i) the
Prospectus, the Confidential Offering Circular and any other disclosure document
relating to the Certificates, in the form most recently provided to the Trustee
by the Depositor or by any Person designated by the Depositor; (ii) this
Agreement, each Mortgage Loan Purchase Agreement, any amendment to any such
agreement, each Sub-Servicing Agreement delivered to the Trustee since the
Closing Date and any amendments and exhibits hereto or thereto; (iii) all
Trustee Reports and any files and reports comprising the CMSA Investor Reporting
Package actually delivered or otherwise made available to Certificateholders
pursuant to Section 4.02(a) since the Closing Date; (iv) all Annual Performance
Certifications delivered by the respective Master Servicers and the Special
Servicers, respectively, to the Trustee since the Closing Date; (v) all Annual
Accountants' Reports caused to be delivered by the respective Master Servicers
and Special Servicers, respectively, to the Trustee since the Closing Date; (vi)
the most recent inspection report prepared by the Master Servicers or the
Special Servicers and delivered to the Trustee in respect of each Mortgaged
Property pursuant to Section 3.12(a) or this Section 8.12(b); (vii) the most
recent quarterly and annual operating statement and rent roll (for Mortgaged
Properties other than residential cooperative properties) of each related
Mortgaged Property and financial statements of the related Borrower collected by
the Master Servicers or the Special Servicers and delivered to the Trustee
pursuant to Section 3.12(b) or this Section 8.12(b); (viii) any and all notices
and reports delivered to the Trustee with respect to any Mortgaged Property as
to which the environmental testing contemplated by Section 3.09(c) revealed that
neither of the conditions set forth in clauses (i) and (ii) of the first
sentence thereof was satisfied; (ix) each of the Mortgage Files, including any
and all modifications, waivers and amendments of the terms of a Mortgage Loan
entered into or consented to by a Master Servicer or a Special Servicer and
delivered to the Trustee pursuant to Section 3.20; (x) the most recent Appraisal
for each Mortgage Loan and REO Property that has been delivered to the Trustee
(all Appraisals of Mortgaged Properties and/or REO Properties shall be delivered
to the Trustee by the applicable Master Servicer or Special Servicer, as
applicable, promptly following the subject Appraisal's having been obtained or
formulated); (xi) any and all Officer's Certificates and other evidence
delivered to or by the Trustee to support its, a Master Servicer's, a Special
Servicer's or any Fiscal Agent's, as the case may be, determination that any
Advance was (or, if made, would be) a Nonrecoverable Advance; (xii) a current
report from the Trustee listing all outstanding exceptions to the Mortgage File
review conducted pursuant to Section 2.02; and (xiii) any other information that
may be necessary to satisfy the requirements of subsection (d)(4)(i) of Rule
144A under the Securities Act. The Trustee shall provide copies of any and all
of the foregoing items upon request of any of the parties set forth in the
previous sentence; however, except in the case of the Rating Agencies and the
Controlling Class Representative, the Trustee shall be permitted to require
payment of a sum sufficient to cover the reasonable costs and expenses of
providing such copies. If necessary, the Trustee shall request from the Master
Servicers, and within a reasonable period following its receipt of such request,
and the Master Servicers shall deliver, copies of the items listed in clauses
(vi) and (vii) above to the Trustee.
In connection with providing access to or copies of the items
described in the preceding paragraph pursuant to this Section 8.12(b), the
Trustee shall require: (a) in the case of Certificateholders or Certificate
Owners, a written 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) generally to the effect that such Person is a holder
or a beneficial holder of Certificates and, subject to the last sentence of this
paragraph, will keep such information confidential, except that such
Certificateholder or Certificate Owner may provide such information to its
auditors, legal counsel and regulators and 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) 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.
Notwithstanding the foregoing, no Certificateholder, Certificate Owner or
prospective Certificateholder or Certificate Owner need keep confidential any
information received from the Trustee pursuant to this Section 8.12(b) that has
previously been filed with the Commission, and the Trustee shall not require
either of the certifications contemplated by the second preceding sentence in
connection with providing any information pursuant to this Section 8.12(b) that
has previously been filed with the Commission.
(c) None of the Trustee, either Master Servicer or either Special
Servicer shall be liable for providing or disseminating information in
accordance with the terms of this Agreement.
Section 8.13 Appointment of Fiscal Agent
(a) Insofar as the Trustee would not otherwise satisfy the rating
requirements of Section 8.06, the Trustee may appoint, at the Trustee's own
expense, a Fiscal Agent for purposes of making Advances hereunder that are
otherwise required to be made by the Trustee. Any Fiscal Agent shall at all
times maintain a long-term unsecured debt rating of no less than "Aa3" from
Xxxxx'x and "AA" from S&P and Fitch (or, in the case of either Rating Agency,
such lower rating as will not result in an Adverse Rating Event with respect to
any Class of Rated Certificates (as confirmed in writing to the Trustee and the
Depositor by such Rating Agency)). Any Person so appointed by the Trustee
pursuant to this Section 8.13(a) shall become the Fiscal Agent on the date as of
which the Trustee and the Depositor have received: (i) if the long-term
unsecured debt of the designated Person is not rated at least "Aa3" by Xxxxx'x
and "AA" by S&P and Fitch, written confirmation from each Rating Agency that the
appointment of such designated Person will not result in an Adverse Rating Event
with respect to any Class of Rated Certificates; (ii) a written agreement
whereby the designated Person is appointed as, and agrees to assume and perform
the duties of, Fiscal Agent hereunder, executed by such designated Person and
the Trustee (such agreement, the "Fiscal Agent Agreement"); and (iii) an Opinion
of Counsel (which shall be paid for by the designated Person or the Trustee)
substantially to the effect that (A) the appointment of the designated Person to
serve as Fiscal Agent is in compliance with this Section 8.13, (B) the
designated Person is duly organized, validly existing and in good standing under
the laws of the jurisdiction of its organization, (C) the related Fiscal Agent
Agreement has been duly authorized, executed and delivered by the designated
Person and (D) upon execution and delivery of the related Fiscal Agent
Agreement, the designated Person shall be bound by the terms of this Agreement
and, subject to customary bankruptcy and insolvency exceptions and customary
equity exceptions, that this Agreement shall be enforceable against the
designated Person in accordance with its terms. Any Person that acts as Fiscal
Agent shall, for so long as it so acts, be deemed a party to this Agreement for
all purposes hereof. Pursuant to the related Fiscal Agent Agreement, each Fiscal
Agent, if any, shall make representations and warranties with respect to itself
that are comparable to those made by the Trustee pursuant to Section 2.09.
Notwithstanding anything contained in this Agreement to the contrary, any Fiscal
Agent shall be entitled to all limitations on liability, rights of reimbursement
and indemnities to which the Trustee is entitled hereunder (including pursuant
to Sections 8.05(b) and 8.05(c)) as if it were the Trustee.
(b) To the extent that the Trustee is required, pursuant to the
terms of this Agreement, to make any Advance, whether as a successor Master
Servicer or otherwise, and has failed to do so in accordance with the terms
hereof, the Fiscal Agent (if any) shall make such Advance when and as required
by the terms of this Agreement on behalf the Trustee as if such Fiscal Agent
were the Trustee hereunder. To the extent that the Fiscal Agent (if any) makes
an Advance pursuant to this Section 8.13 or otherwise pursuant to this
Agreement, the obligations of the Trustee under this Agreement in respect of
such Advance shall be satisfied.
(c) Notwithstanding anything contained in this Agreement to the
contrary, any Fiscal Agent shall be entitled to all limitations on liability,
rights of reimbursement and indemnities to which the Trustee is entitled
hereunder (including pursuant to Sections 8.05(b) and 8.05(c)) as if it were the
Trustee, except that all fees and expenses of any Fiscal Agent (other than
interest owed to such Fiscal Agent in respect of unreimbursed Advances) incurred
by such Fiscal Agent in connection with the transactions contemplated by this
Agreement shall be borne by the Trustee, and neither the Trustee nor such Fiscal
Agent shall be entitled to reimbursement therefor from any of the Trust, the
Depositor, the Master Servicers or the Special Servicers.
(d) The obligations of any Fiscal Agent set forth in this Section
8.13 or otherwise pursuant to this Agreement shall exist only for so long as the
Trustee that appointed it shall act as Trustee hereunder. Any Fiscal Agent may
resign or be removed by the Trustee only if and when the existence of such
Fiscal Agent is no longer necessary for such Trustee to satisfy the eligibility
requirements of Section 8.06; provided that any Fiscal Agent shall be deemed to
have resigned at such time as the Trustee that appointed it resigns or is
removed as Trustee hereunder (in which case the responsibility for appointing a
successor Fiscal Agent in accordance with this Section 8.13(a) shall belong to
the successor Trustee insofar as such appointment is necessary for such
successor Trustee to satisfy the eligibility requirements of Section 8.06).
(e) The Trustee shall promptly notify the other parties hereto and
the Certificateholders in writing of the appointment, resignation or removal of
any Fiscal Agent.
Section 8.14 Filings with the Securities and Exchange Commission
(a) With respect to the Trust's fiscal year 2003 (and, if as of the
beginning of any other fiscal year for the Trust, the Registered Certificates
are held (directly or, in the case of Registered Certificates held in book-entry
form, through the Depository) by at least 300 Holders and/or Depository
Participants having accounts with the Depository), the Trustee shall:
(i) during such fiscal year, in accordance with the Exchange Act,
the rules and regulations promulgated thereunder and applicable "no-action
letters" issued by the Commission, prepare for filing, execute and
properly file with the Commission monthly, with respect to the Trust, a
Current Report on Form 8-K with copies of the Trustee Reports;
(ii) during such fiscal year, (A) monitor for and promptly notify
the Depositor of the occurrence or existence of any of the matters
identified in Section 11.09(a) and/or Section 8.14(b) (in each case to the
extent that a Responsible Officer of the Trustee has actual knowledge
thereof), (B) cooperate with the Depositor in obtaining all necessary
information in order to enable the Depositor to prepare a Current Report
on Form 8-K reporting any such matter in accordance with the Exchange Act,
the rules and regulations promulgated thereunder and applicable "no-action
letters" issued by the Commission, and (C) execute and promptly file with
the Commission any such Current Report on Form 8-K prepared by or on
behalf of the Depositor and delivered to the Trustee; and
(iii) prepare, execute and properly file with the Commission on or
before the due date specified by the Commission, with respect to the
Trust, an Annual Report on Form 10-K which complies in all material
respects with the requirements of the Exchange Act, the rules and
regulations promulgated thereunder and applicable "no-action letters"
issued by the Commission, which shall include as exhibits the Annual
Performance Certification and Annual Accountant's Report delivered
pursuant to Section 3.13 and Section 3.14, respectively, with respect to
the Master Servicers and the Special Servicers for such fiscal year, and
which shall further include such certification(s) as may be required under
the Xxxxxxxx-Xxxxx Act of 2002 (the "Sarbanes Act") and any rules
promulgated by, or interpretive guidance from, the Commission (such
certification(s), individually and collectively, insofar as they are
required to be part of any particular Annual Report on Form 10-K, a
"Xxxxxxxx-Xxxxx Certification") (which Xxxxxxxx-Xxxxx Certifications shall
be signed by the party or parties contemplated by this Section 8.14);
provided that (x) the Trustee shall not have any responsibility to file any
items (other than those generated by it) that have not been received in a format
suitable for electronic filing via the XXXXX system (or in "ASCII", "Microsoft
Word", "Microsoft Excel" or another format reasonably acceptable to the Trustee)
and shall not have any responsibility to convert any such items to such format
(other than those items generated by it and those items delivered to it in a
format readily convertible to a format suitable for electronic filing via the
XXXXX system) and (y) the Depositor shall be responsible for preparing,
executing and filing (via the XXXXX system within 15 days following the Closing
Date) a Current Report on Form 8-K reporting the establishment of the Trust and
whereby this Agreement is filed as an exhibit. Each of the other parties to this
Agreement shall deliver to the Trustee or the applicable Master Servicer, as
applicable, in a format suitable for electronic filing via the XXXXX system (or
in "ASCII", "Microsoft Word", "Microsoft Excel" or another format reasonably
acceptable to the Trustee) any and all items contemplated to be filed with the
Commission pursuant to this Section 8.14(a), to the extent it is otherwise
required to deliver such items to the Trustee or the applicable Master Servicer,
as applicable.
(b) At all times during the Trust's fiscal year 2003 (and, if as of
the beginning of any other fiscal year for the Trust, the Registered
Certificates are held (directly or, in the case of Registered Certificates held
in book-entry form, through the Depository) by at least 300 Holders and/or
Depository Participants having accounts with the Depository, at all times during
such other fiscal year), the Trustee shall monitor for and promptly notify the
Depositor of the occurrence or existence of any of the following matters of
which a Responsible Officer of the Trustee has actual knowledge:
(i) any failure of the Trustee to make any monthly distributions to
the Holders of any Class of Certificates, which failure is not otherwise
reflected in the Certificateholder Reports filed with the Commission or
has not otherwise been reported to the Depositor pursuant to any other
Section of this Agreement;
(ii) any acquisition or disposition by the Trust of a Mortgage Loan
or an REO Property (or, in the case of any Great Lakes Crossing REO
Property, any interest therein), which acquisition or disposition has not
otherwise been reflected in the Certificateholder Reports filed with the
Commission or has not otherwise been reported to the Depositor pursuant to
any other Section of this Agreement;
(iii) any other acquisition or disposition by the Trust of a
significant amount of assets (other than Permitted Investments, Mortgage
Loans and REO Properties), other than in the normal course of business;
(iv) any change in the fiscal year of the Trust;
(v) any material legal proceedings, other than ordinary routine
litigation incidental to the business of the Trust, to which the Trust (or
any party to this Agreement on behalf of the Trust) is a party or of which
any property included in the Trust Fund is subject, or any threat by a
governmental authority to bring any such legal proceedings;
(vi) any event of bankruptcy, insolvency, readjustment of debt,
marshalling of assets and liabilities, or similar proceedings in respect
of or pertaining to the Trust or any party to this Agreement, or any
actions by or on behalf of the Trust or any party to this Agreement
indicating its bankruptcy, insolvency or inability to pay its obligations;
and
(vii) any change in the rating or ratings assigned to any Class of
Certificates not otherwise reflected in the Certificateholder Reports
filed with the Commission;
provided that (x) the actual knowledge of a Responsible Officer of the Trustee
of any material legal proceedings of which property included in the Trust Fund
is subject or of any material legal proceedings threatened by a governmental
authority is limited to circumstances where it would be reasonable for the
Trustee to identify such property as an asset of, or as securing an asset of,
the Trust or such threatened proceedings as concerning the Trust and (y) no
Responsible Officer of the Trustee shall be deemed to have actual knowledge of
the matters described in clauses (vi) and (vii) of this Section 8.14(b) unless
such Responsible Officer was notified in writing.
(c) The Form 10-K shall include the Xxxxxxxx-Xxxxx Certification
required to be included therewith pursuant to the Sarbanes Act, and the rules
and regulations of the Commission promulgated thereunder (including any
interpretations thereof by the Commission's staff) and a copy of such
Xxxxxxxx-Xxxxx Certification shall be provided to the Rating Agencies. An
officer of the Depositor shall sign the Xxxxxxxx-Xxxxx Certification. The
Depositor hereby grants to the Trustee a limited power of attorney to execute
and file such annual report on Form 10-K on behalf of the Depositor, which power
of attorney shall continue until the earlier of (i) receipt by the Trustee from
the Depositor of written notice terminating such power of attorney or (ii) the
termination of the Trust. The Master Servicers, the Special Servicers and the
Trustee (each, a "Performing Party") shall provide to the Person who signs the
Xxxxxxxx-Xxxxx Certification (the "Certifying Person") a certification (each, a
" Performance Certification"), in the form set forth on Exhibit P hereto (with
respect to the Master Servicers and the Trustee) or in the form set forth on
Exhibit A to Exhibit P hereto (with respect to the Special Servicers), as
applicable, on which the Certifying Person, the Depositor (if the Certifying
Person is an individual), and the Depositor's partner, representative,
Affiliate, member, manager, director, officer, employee or agent (collectively
with the Certifying Person, "Certification Parties") can rely. The Trustee's
certification with respect to items 1 through 3 of Exhibit P hereto shall relate
to distribution information, and each Master Servicer's certification with
respect to items 4 and 5 of Exhibit P hereto shall relate to servicing
information with respect to the Mortgage Loans serviced by it hereunder.
Notwithstanding the foregoing, nothing in this paragraph shall require any
Performing Party to (i) certify or verify the accurateness or completeness of
any information provided to such Performing Party by third parties, (ii) to
certify information other than to such Performing Party's knowledge and in
accordance with such Performing Party's responsibilities hereunder or under any
other applicable servicing agreement or (iii) with respect to completeness of
information and reports, to certify anything other than that all fields of
information called for in written reports prepared by such Performing Party have
been completed except as they have been left blank on their face. In the event
any Performing Party is terminated or resigns pursuant to the terms of this
Agreement, such Performing Party shall provide a Performance Certification to
the Depositor pursuant to this Section 8.14(c) with respect to the period of
time such Performing Party was subject to this Agreement.
(d) If as of the beginning of any fiscal year for the Trust (other
than fiscal year 2003), the Public Certificates are held (directly or, in the
case of Public Certificates held in book-entry form, through the Depository) by
less than 300 Holders and/or Depository Participants having accounts with the
Depository, the Trustee shall, in accordance with the Exchange Act and the rules
and regulations promulgated thereunder, timely file a Form 15 with respect to
the Trust notifying the Commission of the suspension of the reporting
requirements under the Exchange Act.
(e) Nothing contained in this Section 8.14 shall be construed to
require any party to this Agreement (other than the Depositor), or any of such
party's officers, to execute any Form 10-K or any Xxxxxxxx-Xxxxx Certification.
The failure of any party to this Agreement, or any of such party's officers, to
execute any Form 10-K or any Xxxxxxxx-Xxxxx Certification shall not be regarded
as a breach by such party of any of its obligations under this Agreement. The
Depositor, each Performing Party and the Trustee hereby agree to negotiate in
good faith with respect to compliance with any further guidance from the
Commission or its staff relating to the execution of any Form 10-K and any
Xxxxxxxx-Xxxxx Certification. In the event such parties agree on such matters,
this Agreement shall be amended to reflect such agreement pursuant to Section
11.01.
(f) Each Performing Party shall indemnify and hold harmless each
Certification Party from and against any losses, damages, penalties, fines,
forfeitures, reasonable and necessary legal fees and related costs, judgments
and other costs and expenses incurred by such Certification Party arising out of
(i) an actual breach by the applicable Performing Party of its obligations under
this Section 8.14, (ii) negligence, bad faith or willful misconduct on the part
of such Performing Party in the performance of such obligations or (iii) any
inaccuracy made in the Performance Certification resulting from such Performing
Party's negligence, bad faith or willful misconduct. A Performing Party shall
have no obligation to indemnify any Certification Party for an inaccuracy in the
Performance Certification of any other Performing Party. If the indemnification
provided for in this Section 8.14 is unavailable or insufficient to hold
harmless a Certification Party (on grounds of public policy or otherwise), then
each Performing Party shall contribute to the amount paid or payable by such
Certification Party as a result of the losses, claims, damages or liabilities of
such Certification Party in such proportion as is appropriate to reflect the
relative fault of such Certification Party on the one hand and each Performing
Party on the other. The obligations of the Performing Parties in this subsection
(f) to contribute are several in the proportions described in the preceding
sentence and not joint.
Promptly after receipt by an indemnified party of notice of the
commencement of any action, such indemnified party shall, if a claim in respect
thereof is to be made against the indemnifying party hereunder, notify in
writing the indemnifying party of the commencement thereof; but the omission to
so notify the indemnifying party shall not relieve it from any liability which
it may have to any indemnified party under this Agreement except to the extent
that such omission to notify materially prejudices the indemnifying party. In
case any such action is brought against any indemnified party, after the
indemnifying party has been notified of the commencement of such action, such
indemnifying party shall be entitled to participate therein (at its own expense)
and, to the extent that it may wish, shall be entitled to assume the defense
thereof (jointly with any other indemnifying party similarly notified) with
counsel reasonably satisfactory to such indemnified party (who shall not, except
with the consent of the indemnified party, be counsel to the indemnifying
party), and after notice from the indemnifying party to such indemnified party
of its election to so assume the defense thereof, the indemnifying party shall
not be liable to such indemnified party for any expenses subsequently incurred
in connection with the defense thereof other than reasonable costs of
investigation. In any such proceeding, any indemnified party shall have the
right to retain its own counsel, but the fees and expenses of such counsel shall
be at the expense of such indemnified party unless (i) the indemnifying party
and the indemnified party shall have agreed to the retention of such counsel,
(ii) the named parties to any such proceeding (including any impleaded parties)
include both the indemnifying party and the indemnified party and representation
of both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them or (iii) the indemnifying party fails
within a reasonable period of time to designate counsel that is reasonably
satisfactory to the indemnified party. In no event shall the indemnifying
parties be liable for fees and expenses of more than one counsel (in addition to
any local counsel) in any one jurisdiction separate from their own counsel for
all indemnified parties in connection with any one action or separate but
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances. An indemnifying party shall not be liable
for any settlement of any proceeding effected without its written consent.
However, if settled with such consent, the indemnifying party shall indemnify
the indemnified party from and against any loss or liability by reason of such
settlement to the extent that the indemnifying party is otherwise required to do
so under this Agreement. If an indemnifying party assumes the defense of any
proceeding, it shall be entitled to settle such proceeding with the consent of
the indemnified party (which consent shall not be unreasonably withheld) or, if
such settlement (i) provides for an unconditional release of the indemnified
party in connection with all matters relating to the proceeding that have been
asserted against the indemnified party in such proceeding by the other parties
to such settlement and (ii) does not require an admission of fault by the
indemnified party, without the consent of the indemnified party.
(g) Unless the other parties hereto receive written notice from the
Trustee to the contrary, the Trustee hereby certifies that it intends to file
any Annual Report on Form 10-K with respect to the Trust for any particular
fiscal year on the last Business Day that is not more than 90 days following the
end of such fiscal year. Unless an alternative time period is provided for in
this Agreement, the respective parties hereto shall deliver to the Trustee, at
least 15 Business Days prior to the date on which the Trustee intends to file
any Annual Report on Form 10-K as contemplated by Section 8.14, any items
required to be delivered by such party that are to be an Exhibit to such Annual
Report on Form 10-K. The Trustee hereby notifies the Master Servicers and the
Special Servicers that an Annual Report on Form 10-K shall be required to be
filed with respect to the Trust for 2003.
ARTICLE IX
TERMINATION
Section 9.01 Termination Upon Repurchase or Liquidation of All
Mortgage Loans
(a) Subject to Section 9.02, the Trust and the respective
obligations and responsibilities under this Agreement of the parties hereto
(other than the obligations of the Trustee to provide for and make payments to
Certificateholders as hereafter set forth) shall terminate upon payment (or
provision for payment) to the Certificateholders (or any B Loan Holder, if
applicable) of all amounts held by or on behalf of the Trustee and required
hereunder to be so paid on the Distribution Date following the earlier to occur
of: (i) the purchase by a Master Servicer, the Co-op Special Servicer, the
General Special Servicer or any single Controlling Class Certificateholder or
group of Controlling Class Certificateholders of all Mortgage Loans and each REO
Property remaining in the Trust Fund at a price (the "Termination Price") equal
to (A) the aggregate Purchase Price of all the Mortgage Loans remaining in the
Trust Fund (exclusive of any REO Mortgage Loan(s)), plus (B) the appraised value
of each REO Property, if any, included in the Trust Fund, such appraisal to be
conducted by a Qualified Appraiser selected by the applicable Special Servicer
and approved by the Trustee and the applicable Master Servicer, minus (C) if the
purchaser is the applicable Master Servicer or the applicable Special Servicer,
the aggregate amount of unreimbursed Advances made by such Person, together with
any unpaid Advance Interest in respect of such unreimbursed Advances and any
unpaid servicing compensation payable to such Person (which items shall be
deemed to have been paid or reimbursed to such Master Servicer or such Special
Servicer, as the case may be, in connection with such purchase); (ii) if the
aggregate Class Principal Balance of the Class A-1, Class A-2, Class A-3, Class
A-4, Class A-5, Class B, Class C, Class D, and Class E Certificates have been
reduced to zero, the acquisition of all of the Mortgage Loans and REO Properties
remaining in the Trust Fund by the Sole Certificateholder(s) in exchange for all
the remaining Certificates; and (iii) the final payment or other liquidation (or
any advance with respect thereto) of the last Mortgage Loan or REO Property
remaining in the Trust Fund; provided, however, that in no event shall the Trust
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.
(b) Any single Controlling Class Certificateholder or group of
Controlling Class Certificateholders, the NCBFSB Master Servicer, the Co-op
Special Servicer, the General Master Servicer or the General Special Servicer,
in that order of preference, may at its option elect to purchase all the
Mortgage Loans and each REO Property remaining in the Trust Fund as contemplated
by clause (i) of Section 9.01(a) by giving written notice to the other parties
hereto (and, in the case of an election by a Master Servicer or Special
Servicer, to the Holders of the Controlling Class) no later than 60 days prior
to the anticipated date of purchase; provided, however, that the aggregate
Stated Principal Balance of the Mortgage Pool at the time of such election is
less than 1.0% of the Initial Pool Balance; and provided, further, that within
30 days after written notice of such election is so given, no Person with a
higher right of priority to make such an election does so; and provided,
further, that if more than one Controlling Class Certificateholder or group of
Controlling Class Certificateholders desire to purchase all of the Mortgage
Loans and any REO Properties, preference shall be given to the Controlling Class
Certificateholder or group of Controlling Class Certificateholders with the
largest Percentage Interest in the Controlling Class; and provided, further,
that if any single Controlling Class Certificateholder or group of Controlling
Class Certificateholders, the Co-op Special Servicer, the General Master
Servicer or the General Special Servicer makes such an election, then the NCBFSB
Master Servicer will have the option, by giving written notice to the other
parties hereto and to the Holders of the Controlling Class no later than 30 days
prior to the anticipated date of purchase, to purchase all of the NCBFSB
Serviced Mortgage Loans and each related REO Property remaining in the Trust
Fund, and the other party will then have the option to purchase only the
non-NCBFSB Serviced Mortgage Loans and each related REO Property remaining in
the Trust Fund. If the Trust is to be terminated in connection with the purchase
of all the Mortgage Loans and each REO Property remaining in the Trust Fund by a
Master Servicer, a Special Servicer and/or any Controlling Class
Certificateholder(s), such Person(s) shall: (i) deposit, or deliver to each of
the Master Servicers for deposit in the Master Servicers' respective Collection
Accounts (after the Determination Date, and prior to the Master Servicer
Remittance Date, relating to the anticipated Final Distribution Date) an amount
in immediately available funds equal to the Termination Price (the portion
thereof allocable to all the Trust Assets (other than the NCBFSB Trust Assets if
the NCBFSB Master Servicer elects to purchase the remaining NCBFSB Trust Assets
in accordance with the preceding sentence) to be deposited in the General Master
Servicer's Collection Account (and the portion thereof allocable to the NCBFSB
Trust Assets if the NCBFSB Master Servicer elects to purchase the remaining
NCBFSB Trust Assets in accordance with the preceding sentence to be deposited in
the NCBFSB Master Servicer's Collection Account); and (ii) shall reimburse all
of the parties hereto (other than itself, if applicable) for all reasonable
out-of-pocket costs and expenses incurred by such parties in connection with
such purchase. On the Master Servicer Remittance Date for the Final Distribution
Date, the applicable Master Servicer shall transfer to the Lower-Tier
Distribution Account all amounts required to be transferred by it to such
account on such Master Servicer Remittance Date from such Master Servicer's
Collection Account pursuant to the first paragraph of Section 3.04(b), together
with any other amounts on deposit in the Collection Account that would otherwise
be held for future distribution. Upon confirmation that the deposit of the
Termination Price has been made to the Collection Account(s) and the
reimbursement contemplated by the second preceding sentence has been made to the
parties hereto, the Trustee shall release or cause to be released to the
purchasing party (or its designee) the Mortgage Files for the remaining Mortgage
Loans and shall execute all assignments, endorsements and other instruments
furnished to it by the purchasing party as shall be necessary to effectuate
transfer of the Mortgage Loans and REO Properties to the purchasing party (or
its designee).
Following the date on which the aggregate Certificate Principal
Balance of the Registered Certificates is reduced to zero, the Sole
Certificateholder(s) shall have the right to exchange all of the Certificates
for all of the Mortgage Loans and each REO Property remaining in the Trust Fund
as contemplated by clause (ii) of Section 9.01(a) by giving written notice to
all the parties hereto no later than 60 days prior to the anticipated date of
exchange. In the event that the Sole Certificateholder(s) elect(s) to exchange
all of the Certificates for all of the Mortgage Loans and each REO Property
remaining in the Trust Fund in accordance with the preceding sentence, such Sole
Certificateholder(s), not later than the Business Day prior to the Distribution
Date on which the final distribution on the Certificates is to occur, shall
deposit in each Collection Account an amount in immediately available funds
equal to all amounts then due and owing to the Depositor, the Master Servicers,
the Special Servicers, the Trustee and/or any Fiscal Agent hereunder that may be
withdrawn from such Collection Account, pursuant to Section 3.05(a), or that may
be withdrawn from the 000 Xxxxx Xxxxxx Loan REMIC Distribution Account or the
Lower-Tier Distribution Account, pursuant to Section 3.05(b), but only to the
extent that such amounts are not already on deposit in such Collection Account.
In addition, the Master Servicers shall transfer to the Trustee for deposit into
the 000 Xxxxx Xxxxxx Loan REMIC Distribution Account or the Lower-Tier
Distribution Account all amounts required to be transferred by it to such
account on such Master Servicer Remittance Date from such Master Servicer's
Collection Account pursuant to the first paragraph of Section 3.04(b). Upon
confirmation that such final deposits have been made and following the surrender
of all the Certificates on the Final Distribution Date, the Trustee shall
release or cause to be released to the Sole Certificateholder(s) or any designee
thereof, the Mortgage Files for the remaining Mortgage Loans and shall execute
all assignments, endorsements and other instruments furnished to it by the Sole
Certificateholder(s) as shall be necessary to effectuate transfer of the
Mortgage Loans and REO Properties remaining in the Trust Fund. The exchange of
all of the Certificates by the Sole Certificateholder for all of the Mortgage
Loans and REO Property shall be treated for federal income tax purposes as a
purchase of the Trust Fund for cash and a distribution to the 000 Xxxxx Xxxxxx
Loan REMIC Regular Interests, the Uncertificated Lower-Tier Interests and the
Certificates in accordance with Section 4.01(a), Section 4.01(c), Section
4.01(d) and Section 4.01(k) in complete liquidation of the 000 Xxxxx Xxxxxx Loan
REMIC, the Lower-Tier REMIC and the Upper-Tier REMIC.
(c) Notice of any termination shall be given promptly by the Trustee
by letter to Certificateholders and each B Loan Holder and Washington Center
Junior Holder mailed (x) if such notice is given in connection with the purchase
of all the Mortgage Loans and each REO Property remaining in the Trust Fund by
the Master Servicers, the Special Servicers or any Controlling Class
Certificateholder(s), not earlier than the 15th day and not later than the 25th
day of the month next preceding the month of the final distribution on the
Certificates and (y) otherwise during the month of such final distribution on or
before the Master Servicer Remittance Date in such month, in any event
specifying (i) the Distribution Date upon which the Trust Fund will terminate
and final payment on the Certificates will be made, (ii) the amount of any such
final payment in respect of each Class of Certificates and (iii) that the Record
Date otherwise applicable to such Distribution Date is not applicable, payments
being made only upon presentation and surrender of the Certificates at the
office or agency of the Trustee therein designated. The Trustee shall give such
notice to the other parties hereto at the time such notice is given to
Certificateholders.
(d) After transferring (i) distributions in respect of the 000 Xxxxx
Xxxxxx Loan REMIC Regular Interests pursuant to Sections 4.01(k) and 4.01(d)
from the 000 Xxxxx Xxxxxx Loan REMIC Distribution Account to the Lower-Tier
Distribution Account and (ii) the Lower-Tier Distribution Amount and the amount
of any Prepayment Premiums and Yield Maintenance Charges distributable pursuant
to Section 4.01(c) and Section 4.01(d) to the Upper-Tier Distribution Account
pursuant to Section 3.04(b) and upon presentation and surrender of the
Certificates by the Certificateholders on the final Distribution Date, the
Trustee shall distribute to each Certificateholder so presenting and
surrendering its Certificates such Certificateholder's Percentage Interest of
that portion of the amounts then on deposit in the Upper-Tier Distribution
Account that are allocable to payments on the Class of Certificates so presented
and surrendered. Amounts transferred from the 000 Xxxxx Xxxxxx Loan REMIC
Distribution Account to the Lower-Tier Distribution Account in respect of the
000 Xxxxx Xxxxxx Loan REMIC Regular Interests and from the Lower-Tier
Distribution Account to the Upper-Tier Distribution Account as of the final
Distribution Date shall be allocated for the purposes, in the amounts and in
accordance with the priority set forth in Sections 4.01(c), 4.01(d), 4.01(k) and
4.01(e)(ii) and shall be distributed in termination and liquidation of the 000
Xxxxx Xxxxxx Loan REMIC Regular Interests, the Uncertificated Lower-Tier
Interests and the Class LR Certificates. Any funds not distributed on such
Distribution Date shall be set aside and held uninvested in trust for the
benefit of Certificateholders not presenting and surrendering their Certificates
in the aforesaid manner and shall be disposed of in accordance with this Section
9.01 and Section 4.01(g).
Section 9.02 Additional Termination Requirements
If a Master Servicer, a Special Servicer or a Controlling Class
Certificateholder purchases, or the Sole Certificateholder(s) exchange all of
the Certificates for, all the Mortgage Loans and each REO Property remaining in
the Trust Fund as provided in Section 9.01, the Trust and each Trust REMIC shall
be terminated in accordance with the following additional requirements, which
meet the definition of a "qualified liquidation" of the 000 Xxxxx Xxxxxx Loan
REMIC, the Lower-Tier REMIC and the Upper-Tier REMIC, within the meaning of
Section 860F(a)(4) of the Code:
(i) the Trustee shall specify the first day in the 90-day
liquidation period in a statement attached to each of the Trust REMICs'
final Tax Returns pursuant to Treasury Regulations Section 1.860F-1;
(ii) within such 90-day liquidation period and at or prior to the
time of the making of the final payment on the Certificates, the Trustee
shall sell or otherwise transfer all of the assets of the 000 Xxxxx Xxxxxx
Loan REMIC and the Lower-Tier REMIC (other than the 000 Xxxxx Xxxxxx Loan
REMIC Regular Interests, which shall be liquidated) to such Special
Servicer, the Holders of the Controlling Class or such Master Servicer, as
the case may be, for cash; and
(iii) immediately following the making of the final payment on the
000 Xxxxx Xxxxxx Loan REMIC Regular Interests, the Uncertificated
Lower-Tier Interests and the Certificates, the Trustee shall distribute or
credit, or cause to be distributed or credited, to the Class LR
Certificates (in the case of the 000 Xxxxx Xxxxxx Loan REMIC Residual
Interest and the residual interest in the Lower-Tier REMIC) and the Class
R Certificates (in the case of the Upper-Tier REMIC) all cash on hand
(other than cash retained to meet claims), in the Trust Fund and each of
the 000 Xxxxx Xxxxxx Loan REMIC, the Lower-Tier REMIC and the Upper-Tier
REMIC shall terminate at that time.
In addition, the 000 Xxxxx Xxxxxx Loan REMIC shall be liquidated
upon a repurchase of the 000 Xxxxx Xxxxxx Loan from the Trust Fund as a result
of a repurchase upon a breach of a representation or warranty with respect to
the 000 Xxxxx Xxxxxx Loan set forth in the Mortgage Loan Purchase Agreement, and
the date of such repurchase shall be specified in the 000 Xxxxx Xxxxxx Loan
REMIC's final federal income tax return as the date of adoption of a plan of
complete liquidation of such REMIC.
Section 9.03 Great Lakes Crossing REO Property
References to "REO Property" and "REO Properties" in Section 9.01
and Section 9.02 shall mean, in the context of any Great Lakes Crossing REO
Property, solely the Trust's interest in the Great Lakes Crossing REO Property.
ARTICLE X
ADDITIONAL TAX PROVISIONS
Section 10.01 REMIC Administration
(a) The Trustee shall make or cause to be made elections to treat
each of the Lower-Tier REMIC, the Upper-Tier REMIC and the 000 Xxxxx Xxxxxx Loan
REMIC as a REMIC under the Code and, if necessary, under applicable State Tax
Laws. Each such election will be made on IRS Form 1066 or other appropriate
federal tax or information return or any appropriate state return for the
taxable year ending on the last day of the calendar year in which the
Certificates are issued, which in each case shall be signed by the Trustee. The
Trustee shall designate the "regular interests" and the "residual interests,"
within the meaning of the REMIC Provisions, in each REMIC as set forth in the
Preliminary Statement hereto. To the extent the affairs of the Trust Fund are
within their control, the Master Servicers, the Special Servicers and the
Trustee shall not permit the creation of any "interests" (within the meaning of
Section 860G of the Code) in any Trust REMIC other than the foregoing interests.
(b) The Closing Date is hereby designated as the Startup Day for the
Lower-Tier REMIC, the Upper-Tier REMIC and the 000 Xxxxx Xxxxxx Loan REMIC
within the meaning of Section 860G(a)(9) of the Code.
(c) [Reserved.]
(d) The Holder of the largest Percentage Interest of the Class LR
Certificates is hereby designated, and by the acceptance of its Class LR
Certificate agrees to act, as Tax Matters Person for each of the Lower-Tier
REMIC and the 000 Xxxxx Xxxxxx Loan REMIC. The Holder of the largest Percentage
Interest of the Class R Certificates is hereby designated, and by the acceptance
of its Class R Certificate agrees to act, as Tax Matters Person for the
Upper-Tier REMIC. The Trustee is hereby designated as the agent of the Tax
Matters Person of the Lower-Tier REMIC and the Upper-Tier REMIC and shall
perform all the functions thereof, and the Holders of the Class LR and Class R
Certificates, by their acceptance of such Certificates, agree to such
designation.
(e) The Trustee shall prepare or cause to be prepared all of the Tax
Returns that are required with respect to each Trust REMIC created hereunder and
shall sign and file or cause to be filed such Tax Returns in a timely manner.
The expenses of preparing such returns shall be borne by the Trustee without any
right of reimbursement therefor.
(f) The Trustee shall provide (i) upon request by any Transferor of
a Class LR or Class R Certificate, such information to such Transferor and the
IRS as is (x) reasonably necessary for the application of any tax relating to
the transfer of a Class LR or Class R Certificate to any Person who is a
Disqualified Organization or (y) otherwise required to be provided by Treasury
Regulations Section 1.860E-2 (and in the time and manner required to be provided
to such person under such Regulations), (ii) to the Certificateholders such
information or reports as are required by the Code, the REMIC Provisions or
State Tax Laws including reports relating to interest, original issue discount
and market discount or premium (using the Prepayment Assumption) and (iii) to
the IRS the name, title, address and telephone number of the person who will
serve as the representative of each of the Trust REMICs.
(g) The Trustee shall take such actions and shall cause the Trust
Fund to take such actions as are reasonably within the Trustee's control and the
scope of its duties more specifically set forth herein as shall be necessary to
maintain the status of each Trust REMIC as a REMIC under the REMIC Provisions
(and the Master Servicers and Special Servicers shall assist the Trustee, to the
extent reasonably requested by the Trustee to do so). None of the Master
Servicers, the Special Servicers or the Trustee shall knowingly or intentionally
take any action, cause the Trust Fund to take any action or fail to take (or
fail to cause to be taken) any action reasonably within its control and the
scope of duties more specifically set forth herein, that, under the REMIC
Provisions, if taken or not taken, as the case may be, could (i) cause any Trust
REMIC to fail to qualify as a REMIC or (ii) result in the imposition of a tax
under the REMIC Provisions upon any Trust REMIC (including but not limited to
the tax on prohibited transactions as defined in Section 860F(a)(2) of the Code
and the tax on contributions to a REMIC set forth in Section 860G(d) of the
Code) (either such event, an "Adverse REMIC Event") unless such party receives
an Opinion of Counsel (at the expense of the party seeking to take such action
or, if such party fails to pay such expense, and such party determines that
taking such action is in the best interest of the Trust Fund and the
Certificateholders, at the expense of the Trust Fund, but in no event at the
expense of such party) to the effect that the contemplated action will not, with
respect to any Trust REMIC, cause any Trust REMIC to fail to qualify as a REMIC
or, unless such party (which is acceptable to the Trustee) determines that the
monetary expense to any Trust REMIC is not material and in its sole discretion
to indemnify (to the extent reasonably acceptable to the Trustee) the Trust Fund
against such tax, result in the imposition of such a tax. Wherever in this
Agreement a contemplated action may not be taken because the taking of such
action might result in the imposition of a tax on the Trust Fund, or may be
taken only pursuant to an Opinion of Counsel that such action would impose a tax
on the Trust Fund, such action may nonetheless be taken so long as (x) the
indemnity given in the preceding sentence with respect to any taxes that might
be imposed on the Trust Fund has been given and (y) all other preconditions to
the taking of such action have been satisfied. The Trustee shall not take any
action (whether or not authorized hereunder) as to which a Master Servicer has
advised it in writing that it has received an Opinion of Counsel to the effect
that an Adverse REMIC Event could occur with respect to such action. In
addition, prior to taking any action with respect to the Trust Fund or its
assets, or causing the Trust Fund to take any action, which is not expressly
permitted under the terms of this Agreement, each of the parties hereto will
consult with the Trustee or its designee, in writing, with respect to whether
such action could cause an Adverse REMIC Event to occur with respect to any
Trust REMIC, and such party shall not take any such action, or cause any Trust
REMIC to take any such action, as to which the Trustee has advised it in writing
that an Adverse REMIC Event could occur. The Trustee 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. At all
times as may be required by the Code, the Trustee will, to the extent within its
control and the scope of its duties as specifically set forth herein, maintain
substantially all of the assets of each Trust REMIC as "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. With respect to the 000 Xxxxx Xxxxxx Loan and
the Washington Center Loan, no B Loan Holder or C Loan Holder shall bear the
costs associated with obtaining any Opinion of Counsel relating to maintaining
each Trust REMIC as a REMIC or be required to bear any expenses or costs
associated therewith.
(h) In the event that any tax is imposed on "prohibited
transactions" of any Trust REMIC as defined in Section 860F(a)(2) of the Code,
on "net income from foreclosure property" of any Trust REMIC as defined in
Section 860G(c) of the Code, or any other tax is imposed by the Code or any
applicable provisions of state or local tax laws, such tax shall be charged (i)
to a Master Servicer, if such tax arises out of or results from a breach, which
breach constitutes negligence or willful misconduct of such Master Servicer, by
such Master Servicer of any of its obligations under this Agreement and such
breach is not caused by the breach of another party, (ii) to the Trustee, if
such tax arises out of or results from a breach, which breach constitutes
negligence or willful misconduct of the Trustee, by the Trustee of any of its
obligations under this Agreement and such breach is not caused by the breach of
another party, (iii) to a Special Servicer, if such tax arises out of or results
from a breach, which breach constitutes negligence or willful misconduct of such
Special Servicer, by such Special Servicer of any of its obligations under this
Agreement and such breach is not caused by the breach of another party and (iv)
otherwise, against amounts on deposit in the Collection Account, and on the
Distribution Date(s) following such reimbursement the aggregate of such taxes
shall be allocated in reduction of the Optimal Interest Distribution Amount on
each Class entitled thereto in the same manner as if such taxes constituted a
Net Aggregate Prepayment Interest Shortfall.
(i) The Trustee shall, for federal income tax purposes, maintain
books and records with respect to each of the Trust REMICs on a calendar year
and on an accrual basis.
(j) Following the Startup Day, none of the Master Servicers, the
Special Servicers or the Trustee shall accept any contributions of assets to any
Trust REMIC unless the Master Servicers, the Special Servicers and the Trustee
shall have received an Opinion of Counsel (at the expense of the party seeking
to make such contribution) to the effect that the inclusion of such assets in
any Trust REMIC will not cause any Trust REMIC to fail to qualify as a REMIC at
any time that any Certificates are outstanding or subject any Trust REMIC
created hereunder to any tax under the REMIC Provisions or other applicable
provisions of federal, state and local law or ordinances.
(k) None of the Master Servicers, the Special Servicers or the
Trustee shall enter into any arrangement by which any Trust REMIC will receive a
fee or other compensation for services nor, to the extent reasonably within
their control, permit any Trust REMIC to receive any income from assets other
than "qualified mortgages" as defined in Section 860G(a)(3) of the Code or
"permitted investments" as defined in Section 860G(a)(5) of the Code.
(l) For the purposes of Treasury Regulations Section
1.860G-1(a)(4)(iii), the "latest possible maturity date" of the 000 Xxxxx Xxxxxx
Loan REMIC Regular Interests, the Uncertificated Lower-Tier Interests and the
Regular Certificates is the Rated Final Distribution Date.
(m) Within 30 days after the Closing Date, the Trustee shall prepare
and file with the Internal Revenue Service Form 8811, "Information Return for
Real Estate Mortgage Investment Conduits (REMIC) and Issuers of Collateralized
Debt Obligations" (or applicable successor form) for the Upper-Tier REMIC
created hereunder.
(n) None of the Trustee, the Master Servicers or the Special
Servicers shall sell or dispose of or substitute for any of the Mortgage Loans
(except in connection with (i) the default, reasonably foreseeable default or
foreclosure of a Mortgage Loan, including but not limited to, the acquisition or
sale of a Mortgaged Property acquired by deed in lieu of foreclosure, (ii) the
bankruptcy of the Trust Fund, (iii) the termination of the Trust Fund pursuant
to Article X of this Agreement or (iv) a purchase of Mortgage Loans pursuant to
Article II, Section 3.18 or Section 9.01 of this Agreement) nor acquire any
assets for the Trust Fund or any Trust REMIC, nor sell or dispose of any
investments in the Collection Account for gain, nor accept any contributions to
any Trust REMIC after the Closing Date, unless it has received an Opinion of
Counsel (at the expense of the Person seeking such sale or acquisition) that
such sale or disposition will not affect adversely the status of any Trust REMIC
as a REMIC or cause any Trust REMIC to be subject to a tax on "prohibited
transactions" or "contributions" pursuant to the REMIC Provisions.
(o) The Depositor shall provide or cause to be provided to the
Trustee, within ten (10) days after the Closing Date, and thereafter on an
ongoing basis, all information or data requested by the Trustee that the Trustee
reasonably determines to be relevant for tax purposes as to the valuations and
Issue Prices of the Certificates, including without limitation, the price,
yield, original issue discount, issue premium and projected cash flow of the
Certificates. In addition, the Master Servicers, the Special Servicers and the
Depositor shall provide on a timely basis to the Trustee or its designee such
information with respect to the Trust Fund as is in its possession and
reasonably requested by the Trustee to enable it to perform its obligations
under this Section. The Trustee shall be entitled to rely conclusively upon all
such information so provided to it without recalculation or other investigation.
(p) The Trustee shall be entitled to reasonable compensation and to
the reimbursement of its reasonable expenses incurred in the performance of its
duties under this Section 10.01 as may be agreed upon by the Trustee and the
Depositor; provided, however, that the Trustee shall pay out of its own funds,
without any right of reimbursement, any and all ordinary expenses of the Trust
Fund incurred in the performance of its duties under this Article but shall be
reimbursed, except as otherwise expressly provided for herein, by the Trust Fund
for any of its "unanticipated expenses incurred by the REMIC" within the meaning
of the REMIC Provisions, including any taxes or tax-related payments, any
expenses involved in any tax examination, audit or proceeding, and the expense
of any tax-related Opinion of Counsel or other professional advice requested by
the Trustee for the benefit or protection of the Certificateholders.
Section 10.02 Grantor Trust Reporting
The parties intend that the portions of the Trust Fund consisting of
Post-ARD Additional Interest and the Post-ARD Additional Interest Distribution
Account shall constitute, and that the affairs of the Trust Fund (exclusive of
the Upper-Tier REMIC, the Lower-Tier REMIC and the 000 Xxxxx Xxxxxx Loan REMIC)
shall be conducted so as to qualify such portion as, a "grantor trust" under the
Code, and the provisions hereof shall be interpreted consistently with this
intention. In furtherance of such intention, the Trustee shall furnish or cause
to be furnished to Class V Certificateholders information returns with respect
to income relating to their share of Post-ARD Additional Interest and such other
information as may be applicable, and shall file, or cause to be filed with the
IRS, Form 1041 or such other form as may be applicable, together with copies of
such information furnished to Class V Certificateholders, at the time or times
and in the manner required by the Code.
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01 Amendment
(a) This Agreement may be amended from time to time by the mutual
agreement of the parties hereto, without the consent of any of the
Certificateholders or any B Loan Holder, (i) to cure any ambiguity, (ii) to
correct, modify or supplement any provision herein which may be inconsistent
with any other provision herein or to correct any error, (iii) to make any other
provisions with respect to matters or questions arising hereunder which shall
not be inconsistent with the then existing provisions hereof, (iv) as evidenced
by an Opinion of Counsel delivered to the Trustee, the Master Servicers and the
Special Servicers, to relax or eliminate (A) 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 (B) any transfer
restriction imposed on the Certificates pursuant to Section 5.02(b) or Section
5.02(c) (if applicable law is amended or clarified such that any such
restriction may be relaxed or eliminated), (v) as evidenced by an Opinion of
Counsel delivered to the Trustee, either (X) 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 any Trust
REMIC or the Grantor Trust at least from the effective date of such amendment,
or (Y) 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 Trust REMIC or the Grantor Trust, (vi) subject to Section
5.02(d)(iv), to modify, add to or eliminate any of the provisions of Section
5.02(d)(i), (ii) or (iii), or (vii) to avoid an Adverse Rating Event with
respect to any Class of Rated Certificates; provided that no such amendment may
significantly change the activities of the Trust; and provided, further, that
any such amendment for the specific purposes described in clause (iii) or (vii)
above shall not adversely affect in any material respect the interests of any
Certificateholder or any third-party beneficiary to this Agreement or any
provision hereof, as evidenced by the Trustee's receipt of an Opinion of Counsel
to that effect (or, alternatively, in the case of a Class of Rated Certificates,
written confirmation from each applicable Rating Agency to the effect that such
amendment shall not result in an Adverse Rating Event with respect to any Class
of Rated Certificates); and provided, further, that with respect to any such
amendment for the specific purposes described in clause (iii) above, the Trustee
shall receive written confirmation from each applicable Rating Agency to the
effect that such amendment shall not result in an Adverse Rating Event with
respect to any Class of Rated Certificates.
(b) This Agreement may also be amended from time to time by the
mutual agreement of the parties hereto, with the consent of the Holders of
Certificates entitled to not less than 51% of the Voting Rights allocated to all
of the Classes that are materially affected by the amendment, for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Agreement or of modifying in any manner the rights of the
Holders of Certificates; provided, however, that no such amendment shall (i)
reduce in any manner the amount of, or delay the timing of, payments received or
advanced on Mortgage Loans and/or REO Properties which are required to be
distributed on any Certificate, without the consent of the Holder of such
Certificate, or which are required to be distributed to any B Loan Holder or
Washington Center Junior Holder, without the consent of such B Loan Holder or
Washington Center Junior Holder, (ii) adversely affect in any material respect
the interests of the Holders of any Class of Certificates or any B Loan Holder
or Washington Center Junior Holder in a manner other than as described in clause
(i) above, without the consent of the Holders of all Certificates of such Class
or any B Loan Holder or Washington Center Junior Holder, as applicable, (iii)
modify the provisions of this Section 11.01 or the definition of "Servicing
Standard", without the consent of the Holders of all Certificates then
outstanding (and each B Loan Holder or Washington Center Junior Holder if such
modification affects the rights of such B Loan Holder or Washington Center
Junior Holder), (iv) adversely affect in any material respect the interests of
any third-party beneficiary to this Agreement or any provision herein, without
the consent of such third-party beneficiary, or (v) significantly change the
activities of the Trust, without the consent of the Holders of Certificates
entitled to no less than 51% of all the Voting Rights (without regard to
Certificates held by the Depositor and/or agents). Notwithstanding any other
provision of this Agreement, for purposes of the giving or withholding of
consents pursuant to this Section 11.01, Certificates registered in the name of
the Depositor or any Affiliate of the Depositor shall be entitled to the same
Voting Rights with respect to the matters described above as they would if
registered in the name of any other Person.
(c) Notwithstanding any contrary provision of this Agreement, none
of the Trustee, the Master Servicers or the Special Servicers shall consent to
any amendment to this Agreement unless it shall first have obtained or been
furnished with an Opinion of Counsel to the effect that neither such amendment
nor the exercise of any power granted to any party hereto in accordance with
such amendment will result in an Adverse REMIC Event with respect to any Trust
REMIC or an Adverse Grantor Trust Event with respect to the Grantor Trust.
(d) Promptly after the execution and delivery of any amendment by
all parties thereto, the Trustee shall send a copy thereof to each
Certificateholder, each B Loan Holder, each Washington Center Junior Holder and
to each Rating Agency.
(e) It shall not be necessary for the consent of Certificateholders
under this Section 11.01 to approve the particular form of any proposed
amendment, but it shall be sufficient if such consent shall approve the
substance thereof. The manner of obtaining such consents and of evidencing the
authorization, execution and delivery thereof by Certificateholders shall be
subject to such reasonable regulations as the Trustee may prescribe.
(f) The Trustee may but shall not be obligated to enter into any
amendment pursuant to this Section 11.01 that affects its rights, duties and
immunities under this Agreement or otherwise.
(g) The cost of any Opinion of Counsel to be delivered pursuant to
Section 11.01(a) or (c) shall be borne by the Person seeking the related
amendment, except that if the Trustee requests any amendment of this Agreement
that it reasonably believes protects or is in furtherance of the rights and
interests of Certificateholders, the cost of any Opinion of Counsel required in
connection therewith pursuant to Section 11.01(a) or (c) shall be payable out of
the Distribution Account.
Section 11.02 Recordation of Agreement; Counterparts
(a) To the extent permitted by applicable law, this Agreement is
subject to recordation in all appropriate public offices for real property
records in all the counties or other comparable jurisdictions in which any or
all of the properties subject to the Mortgages are situated, and in any other
appropriate public recording office or elsewhere, such recordation to be
effected by the Trustee at the expense of the Trust (payable out of the
Distribution Account), but only if (i) a Master Servicer or Special Servicer, as
applicable, determines in its reasonable good faith judgment, that such
recordation materially and beneficially affects the interests of the
Certificateholders and so informs the Trustee in writing and (ii) the
Controlling Class Representative consents.
(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, B Loan
Holders and Washington Center Junior Holders
(a) The death or incapacity of any Certificateholder, any B Loan
Holder or any Washington Center Junior Holder shall not operate to terminate
this Agreement or the Trust Fund, nor entitle such Certificateholder's, such B
Loan Holder's or such Washington Center Junior Holder'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, B Loan Holder or Washington Center Junior
Holder 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, the B Loan Holders and/or the Washington Center Junior
Holders from time to time as partners or members of an association; nor shall
any Certificateholder, any B Loan Holder or any Washington Center Junior Holder
be under any liability to any third party by reason of any action taken by the
parties to this Agreement pursuant to any provision hereof.
(c) No Certificateholder shall have any right by virtue of any
provision of this Agreement to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Agreement or any Mortgage
Loan, unless, with respect to any suit, action or proceeding upon or under or
with respect to this Agreement, such Holder previously shall have given to the
Trustee a written notice of default hereunder, and of the continuance thereof,
as hereinbefore provided, and unless also (except in the case of a default by
the Trustee) the Holders of Certificates entitled to at least 25% of the Voting
Rights shall have made written request upon the Trustee to institute such
action, suit or proceeding in its own name as Trustee hereunder and shall have
offered to the Trustee such reasonable indemnity as it may require against the
costs, expenses and liabilities to be incurred therein or thereby, and the
Trustee, for 60 days after its receipt of such notice, request and offer of
indemnity, shall have neglected or refused to institute any such action, suit or
proceeding. It is understood and intended, and expressly covenanted by each
Certificateholder with every other Certificateholder and the Trustee, that no
one or more Holders of Certificates shall have any right in any manner
whatsoever by virtue of any provision of this Agreement to affect, disturb or
prejudice the rights of any other Holders of 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 11.03, 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 substantive laws of the State of New York applicable to agreements made
and to be performed entirely in said State, and the obligations, rights and
remedies of the parties hereunder shall be determined in accordance with such
laws. The parties hereto intend that the provisions of Section 5-1401 of the New
York General Obligations Law shall apply to this Agreement.
Section 11.05 Notices
Any communications provided for or permitted hereunder shall be in
writing (including by telecopy) and, unless otherwise expressly provided herein,
shall be deemed to have been duly given when delivered to or, in the case of
telecopy notice, when received: (i) in the case of the Depositor, Credit Suisse
First Boston Mortgage Securities Corp., Eleven Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: Xxxxxx Xxxxxx, with a copy to Xxxxxx XxXxxxxxx, Esq.,
Compliance Department, telecopy number: (000) 000-0000; (ii) in the case of the
General Master Servicer, KeyCorp Real Estate Capital Markets, Inc., 000 Xxxx
Xxxxxx, Xxxxx 0000, Xxxxxx Xxxx, Xxxxxxxx 00000, telecopy number: (816)
221-8848, Attention: X.X. Xxxxx (with a copy to Xxxxxx X. Xxxxx, KeyBank
National Association, 000 Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxx 00000, telecopy: (212)
689-5681); (iii) in the case of the General Special Servicer, ARCap Servicing,
Inc., 0000 X. XxxXxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000, telecopy
number (000) 000-0000, Attention: Xxxxx Xxxxxxx (with a copy to Xxxxx Xxxxxx,
ARCap Servicing, Inc., 0000 X. XxxXxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxx, Xxxxx
00000, telecopy number (000) 000-0000); (iv) Underwriter and the Initial
Purchaser, Credit Suisse First Boston Corporation, Eleven Xxxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx Xxxxxx, with a copy to Xxxxxx XxXxxxxxx,
Esq., Compliance Department, telecopy number: (000) 000-0000; (v) if sent to PNC
Capital Markets, Inc., shall be mailed, delivered or telecopied to it at One PNC
Plaza, 000 Xxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxx 00000, Attention: Xxxxx
Xxxxxx, telecopy number: (000) 000-0000, with a copy to Xxxxxxx Xxxxxxxx,
telecopy number: (000) 000-0000; (vi) in the case of the Trustee, Xxxxx Fargo
Bank Minnesota, N.A., to the Corporate Trust Office, telecopy number (410)
715-2380; (vii) in the case of the PNC Mortgage Loan Seller, PNC Bank, National
Association, 00000 Xxxxxx, Xxxxx 000, Xxxxxxxx Xxxx, Xxxxxx 00000 (for
deliveries), and X.X. Xxx 00000, Xxxxxxx Xxxxxxx, Xxxxxx 00000-0000 (for
communications by United States mail), Attention: Xxxxx Xxxx, telecopy number:
(000) 000-0000, with a copy to PNC Bank, National Association, One PNC Plaza,
000 Xxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxxxxx, Xxxxxxxxxxxx 00000, Attention:
Xxxxxxxx Xxxxxx Xxxxx, telecopy number: (000) 000-0000; (viii) in the case of
the Rating Agencies, (A) Fitch Inc. Xxx Xxxxx Xxxxxx Xxxxx, 00xx Xxxxx, Xxx
Xxxx, XX 00000, Attention: CMBS Surveillance, and (B) Standard & Poor's Ratings
Services, a division of The XxXxxx-Xxxx Companies, Inc., 00 Xxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: CMBS Surveillance Department, telecopy number:
(000) 000-0000; (ix) in the case of the NCBFSB Master Servicer, NCB, FSB, 0000
Xxx Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000, Attention: Xxxxxx Xxxxxxxx, telecopy
number: (000) 000-0000; in the case of the Co-op Special Servicer, National
Consumer Cooperative Bank, 0000 Xxx Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000,
Attention: Xxxxxx Xxxxxxxx, telecopy number: (000) 000-0000; (x) in the case of
any Mortgage Loan Seller, the address for notices to such Mortgage Loan Seller
under the related Mortgage Loan Purchase Agreement; (xi) in the case of the
Column Performance Guarantor, the address for notices to the Column Performance
Guarantor under the Column Performance Guarantee; and (xii) in the case of the
initial the B Loan Holder as specified in the A/B Intercreditor Agreement,
Column Financial, Inc., 0000 Xxxxxxxxx Xxxx, X.X., Xxxxx 0000, Xxxxxxx, Xxxxxxx
00000-0000, Attention: Xxxxxx X. Xxxxxx, telecopy number (000) 000-0000; or as
to each such Person such other address and/or telecopy number as may hereafter
be furnished by such Person to the parties hereto in writing. Any communication
required or permitted to be delivered to a Certificateholder shall be deemed to
have been duly given when mailed first class, postage prepaid, to the address of
such Holder as shown in the Certificate Register.
Section 11.06 Severability of Provisions
If any one or more of the covenants, agreements, provisions or terms
of this Agreement shall be for any reason whatsoever held invalid, then such
covenant(s), agreement(s), provision(s) or term(s) 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 Successors and Assigns; Beneficiaries
The provisions of this Agreement shall be binding upon and inure to
the benefit of the parties hereto, their respective successors and assigns and,
as third party beneficiaries (with all right to enforce the obligations
hereunder intended for their benefit as if a party hereto), the Underwriters,
the Designated Sub-Servicers and the non-parties referred to in Sections 6.03
and 8.05, and all such provisions shall inure to the benefit of the
Certificateholders. The B Loan Holders and the Washington Center Junior Holders
are each an intended third-party beneficiary in respect of the rights afforded
it hereunder. No other person, including any Borrower, shall be entitled to any
benefit or equitable right, remedy or claim under this Agreement.
Section 11.08 Article and Section Headings
The article and section headings herein are for convenience of
reference only, and shall not limit or otherwise affect the meaning hereof.
Section 11.09 Notices to and from the Rating Agencies and the
Depositor
(a) The Trustee shall promptly provide notice to each Rating Agency
and the Depositor with respect to each of the following of which a Responsible
Officer of the Trustee has actual knowledge:
(i) any material change or amendment to this Agreement;
(ii) the occurrence of any Event of Default that has not been cured;
(iii) the resignation, termination, merger or consolidation of a
Master Servicer or Special Servicer and the appointment of a successor;
(iv) the appointment, resignation or removal of a Fiscal Agent;
(v) any change in the location of the Distribution Account, the
Interest Reserve Account or the Excess Liquidation Proceeds Account;
(vi) any repurchase or substitution of a Mortgage Loan by a Mortgage
Loan Seller or the Column Performance Guarantor as contemplated by Section
2.03; and
(vii) the final payment to any Class of Certificateholders (or, in
the case of S&P, on all the Certificates).
(b) Each Master Servicer shall promptly provide notice to each
Rating Agency and the Depositor with respect to each of the following of which
it has actual knowledge:
(i) the resignation or removal of the Trustee and the appointment of
a successor; and
(ii) any change in the location of its Collection Account.
(c) Each Master Servicer and each Special Servicer, as the case may
be, shall furnish each Rating Agency such information with respect to the
Mortgage Loans for which it acts as Master Servicer or Special Servicer as such
Rating Agency shall reasonably request and which such Master Servicer or such
Special Servicer, as the case may be, can reasonably provide to the extent
consistent with applicable law and the related Mortgage Loan Documents and
without waiving any attorney-client privilege relating to such information. In
any event, each Master Servicer and each Special Servicer shall notify each
Rating Agency with respect to each of the following with respect to the Mortgage
Loans for which it acts as Master Servicer or Special Servicer of which it has
actual knowledge:
(i) any change in the lien priority of the Mortgage securing any
Mortgage Loan;
(ii) any assumption of, or release or substitution of collateral
for, a Mortgage Loan that represents greater than 2% of the then aggregate
Stated Principal Balance of the Mortgage Pool; and
(iii) any defeasance of a Mortgage Loan or material damage to a
Mortgaged Property.
(d) Each Master Servicer and each Special Servicer, as the case may
be, shall promptly furnish (in hard copy format or through use of a Master
Servicer's internet website), to each Rating Agency copies of the following
items (in each case, at or about the same time that it delivers or causes the
delivery of such item to the Trustee):
(i) each of its Annual Performance Certifications;
(ii) each of its Annual Accountants' Reports; and
(iii) each report prepared pursuant to Section 3.09(e).
(e) The Trustee shall promptly deliver or otherwise make available
to each Rating Agency (in hard copy format or through use of the Trustee's
internet website) a copy of each Certificateholder Report forwarded to the
Holders of the Certificates (in each case, at or about the same time that it
delivers such Certificateholder Report to such Holders). Any Restricted Servicer
Reports delivered electronically as aforesaid shall be accessible on the
Trustee's internet website on a restricted basis.
(f) The parties intend that each Rating Agency provide to the
Trustee, upon request, a listing of the then-current rating (if any) assigned by
such Rating Agency to each Class of Certificates then outstanding.
Section 11.10 Notices to Controlling Class Representative
The Trustee, the applicable Master Servicer or the applicable
Special Servicer, as the case may be, shall deliver to the Controlling Class
Representative a copy of each notice or other item of information such Person is
required to deliver to the Rating Agencies pursuant to Section 11.09, in each
case simultaneously with the delivery thereof to the Rating Agencies, to the
extent not already delivered pursuant to this Agreement.
Section 11.11 Complete Agreement
This Agreement embodies the complete agreement among the parties and
may not be varied or terminated except by a written agreement conforming to the
provisions of Section 11.01. All prior negotiations or representations of the
parties are merged into this Agreement and shall have no force or effect unless
expressly stated herein.
ARTICLE XII
SERVICING OF THE GREAT LAKES CROSSING LOAN GROUP
FOLLOWING A GREAT LAKES CROSSING CHANGE OF SERVICING CONTROL
EVENT
Section 12.01 General
(a) The terms of this Article XII shall apply only if and when a
Great Lakes Crossing Change of Servicing Control Event shall occur, and shall
remain in effect only for so long as the Great Lakes Crossing Mortgage Loan or
any interest in any Great Lakes Crossing REO Property remains an asset of the
Trust.
(b) If and when a Great Lakes Crossing Change of Servicing Control
Event shall occur, each of the Master Servicer and the Special Servicer shall
diligently service and administer the Great Lakes Crossing Total Loan (and, with
respect to the Special Servicer, any Great Lakes Crossing REO Property) as and
when it is required to do so, pursuant to this Article XII on behalf of the
Trustee and in the best interests of and for the benefit of the
Certificateholders and the holders of the Great Lakes Crossing Companion Loan,
taken as a collective whole (as determined by the Master Servicer or the Special
Servicer, as the case may be, in its reasonable judgment), in accordance with
applicable law, the terms of the Great Lakes Crossing Total Loan, the terms of
the Great Lakes Crossing Intercreditor Agreement and, to the extent consistent
with the foregoing, the Series 2003-CK2 Servicing Standard. Without limiting the
foregoing, subject to Section 12.14 hereunder, the Special Servicer shall be
obligated to service and administer the Great Lakes Crossing Total Loan while a
Series 2003-CK2 Servicing Transfer Event has occurred and is continuing with
respect thereto and to service and administer any Great Lakes Crossing REO
Property; provided that the Master Servicer shall continue to make all
calculations, and prepare, and deliver to the Trustee, all reports required to
be prepared by the Master Servicer hereunder with respect to the Great Lakes
Crossing Mortgage Loan as if no Series 2003-CK2 Servicing Transfer Event had
occurred with respect thereto or as if the Great Lakes Crossing Mortgaged
Property had not become an REO Property, as the case may be, and to render such
incidental services with respect to the Great Lakes Crossing Total Loan while
any Series 2003-CK2 Servicing Transfer Event exists with respect thereto or
while the Great Lakes Crossing Mortgaged Property constitutes an REO Property,
as the case may be. Also without limiting the foregoing, the Master Servicer
shall be obligated to service and administer the Great Lakes Crossing Total Loan
prior to the occurrence of the Series 2003-CK2 Servicing Transfer Event and
after all Series 2003-CK2 Transfer Events have ceased to exist, in either case
with respect to the Great Lakes Crossing Total Loan. In connection with the
foregoing, the Master Servicer and the Special Servicer shall have all right,
power and authority granted to, and all duties and obligations imposed upon, the
Series 2003-CK2 Master Servicer and the Series 2003-CK2 Special Servicer,
respectively, pursuant to Section 3.01(b) and Section 3.01(d) of the Series
0000-XX0 XXX, except that all references in the Series 2003-CK2 PSA to
"Certificateholders" and "Trustee" shall be deemed to mean the
"Certificateholders" and "Trustee", respectively, hereunder.
(c) Whenever the Master Servicer or the Special Servicer is required
to act under this Article XII in accordance with the Series 2003-CK2 Servicing
Standard, such standard shall be applied with the following changes:
(i) the reference to "Certificateholders" in clause (ii) of the
first paragraph of Section 3.01(a) of the Series 2003-CK2 PSA shall be
deemed a reference to the holder of the Great Lakes Crossing Companion
Loan; and
(ii) the reference to "Certificate" in subclause (iii)(b) of the
first paragraph of Section 3.01(a) of the Series 2003-CK2 PSA shall be
deemed a reference to any ownership interest in the Great Lakes Crossing
Mortgage Loan or in either of the Great Lakes Crossing Companion Loan.
In addition, even when the Master Servicer or the Special Servicer
is required to act under this Article XII with respect to the Great Lakes
Crossing Total Loan as if it constituted Serviced Mortgage Loans or any Great
Lakes Crossing REO Property as if it constituted an Administered REO Property,
the Series 2003-CK2 Servicing Standard (with the foregoing changes) will apply
rather than the Servicing Standard hereunder.
(d) The Controlling Class Representative shall, subject to Section
3.24(b) hereunder, be entitled to exercise all rights and powers that would
otherwise be exercisable by the Series 2003-CK2 Directing Certificateholder in
connection with the matters contemplated by this Article XII. To the extent that
the Master Servicer or the Special Servicer would have any obligation to notify,
seek direction or approval from, obtain the consent of or otherwise interact
with the Series 2003-CK2 Directing Certificateholder in accordance with this
Article XII, it shall, subject to Section 3.24(b) hereunder, instead notify,
seek direction or approval from, obtain the consent of or otherwise interact
with the Controlling Class Representative. The Controlling Class Representative
shall be entitled to receive from each of the Master Servicer and the Special
Servicer all reports, statements, documents, certifications, information and
communications with respect to the Great Lakes Crossing Total Loan that would
otherwise have been delivered to the Series 2003-CK2 Directing Certificateholder
by the Series 2003-CK2 Master Servicer and the Series 2003-CK2 Special Servicer,
respectively, under the Series 0000-XX0 XXX.
(e) To the extent that the Master Servicer or the Special Servicer
would have any obligation to notify, seek a ratings confirmation from or
otherwise interact with the Series 2003-CK2 Rating Agencies in accordance with
this Article XII, it shall instead notify, seek a ratings confirmation from or
otherwise interact with the Rating Agencies, and any such ratings confirmation
shall relate to the ratings on the Certificates issued hereunder. Fitch and
Xxxxx'x shall continue to be entitled to receive from each of the Master
Servicer, the Special Servicer and the Trustee all reports, statements,
documents, certifications, information and communications with respect to the
Great Lakes Crossing Total Loan that it would otherwise have been entitled to
receive from the Series 2003-CK2 Master Servicer, the Series 2003-CK2 Special
Servicer and the Series 2003-CK2 Trustee, respectively, under the Series
0000-XX0 XXX.
(f) Any Holder of a Class L, Class M, Class N or Class P Certificate
shall be entitled to exercise all rights and powers that would otherwise be
exercisable by a Series 2003-CK2 Requesting Subordinate Certificateholder in
connection with the matters contemplated by this Article XII. To the extent that
the Master Servicer or the Special Servicer would have any obligation to notify
or otherwise interact with the Series 2003-CK2 Requesting Subordinate
Certificateholders in accordance with this Article XII, it shall instead notify
or otherwise interact with the Holders of the Class L, Class M, Class N or Class
P Certificates. The Holders of the Class L, Class M, Class N or Class P
Certificates shall be entitled to receive from each of the Master Servicer and
the Special Servicer all reports, statements, documents, certifications,
information and communications with respect to the Great Lakes Crossing Total
Loan that would otherwise have been delivered to the Series 2003-CK2 Requesting
Subordinate Certificateholders by the Series 2003-CK2 Master Servicer and the
Series 2003-CK2 Special Servicer, respectively, under the Series 2003-CK2 PSA.
Section 12.02 Collection of Loan Payments
(a) The Master Servicer and the Special Servicer shall perform all
such duties and obligations and have all such right, power and authority with
respect to the Great Lakes Crossing Total Loan as did the Series 2003-CK2 Master
Servicer and the Series 2003-CK2 Special Servicer, respectively, pursuant to
Section 3.02(a) and Section 3.02(b) of the Series 0000-XX0 XXX.
(b) Amounts collected with respect to the Great Lakes Crossing Total
Loan or any Great Lakes Crossing REO Property shall, subject to the Great Lakes
Crossing Intercreditor Agreement, be applied as contemplated by the Series
2003-CK2 PSA.
Section 12.03 Collection of Taxes, Assessments and Similar Items;
Servicing Accounts
(a) The Master Servicer and the Special Servicer shall perform all
such duties and obligations and have all such right, power and authority with
respect to the Great Lakes Crossing Total Loan and any Great Lakes Crossing REO
Property as did the Series 2003-CK2 Master Servicer and the Series 2003-CK2
Special Servicer, respectively, pursuant to Section 3.03 of the Series 0000-XX0
XXX.
(b) The Trustee and any Fiscal Agent shall have the same backup
advancing obligation with respect to the Great Lakes Crossing Total Loan and any
Great Lakes Crossing REO Property as did the Series 2003-CK2 Trustee and the
Series 2003-CK2 Fiscal Agent pursuant to Section 3.03 of the Series 0000-XX0
XXX.
(c) Each of the Master Servicer, the Special Servicer, the Trustee
and the Fiscal Agent shall be entitled to reimbursement of Advance Interest in
respect of any advance made by it in accordance with this Article XII as if it
had made such advance with respect to any Serviced Mortgage Loan or Administered
REO Property.
(d) For purposes of this Section 12.03, the reference to
"Certificateholders" in the last paragraph of Section 3.03(c) of the Series
2003-CK2 PSA shall be deemed to be a reference to the Certificateholders
hereunder.
Section 12.04 Great Lakes Crossing Custodial Account
(a) The Master Servicer shall establish and maintain, or cause to be
established and maintained, solely with respect to the Great Lakes Crossing
Total Loan, an Eligible Account for purposes of holding the same types of
collections with respect to the Great Lakes Crossing Total Loan as were to be
deposited into the Series 2003-CK2 Companion Loan Custodial Account and such
Eligible Account shall constitute the "Great Lakes Crossing Custodial Account".
The Master Servicer shall, solely with respect to the Great Lakes Crossing Total
Loan, make deposits to the Great Lakes Crossing Custodial Account in the same
manner and at the same times as the Series 2003-CK2 Master Servicer would have
made such deposits to the Series 2003-CK2 Companion Loan Custodial Account
pursuant to Section 3.04(f) of the Series 0000-XX0 XXX. In connection with the
foregoing, the Master Servicer shall establish and maintain one subaccount of
the Great Lakes Crossing Custodial Account that is substantially similar to the
Series 2003-CK2 Companion Loan Custodial Account. The Master Servicer shall
deposit from the Great Lakes Crossing Custodial Account into such subaccount
thereof any amounts described in Section 3.04(f) of the Series 2003-CK2 PSA that
are required to be paid to the holder of the Great Lakes Crossing Companion Loan
pursuant to the terms of the Great Lakes Crossing Intercreditor Agreement, in
each case on the same day as the deposit thereof into the Great Lakes Crossing
Custodial Account. The subaccount of the Great Lakes Crossing Custodial Account
(i) shall be held in trust for the benefit of the holder of the Great Lakes
Crossing Companion Loan, (ii) shall not be part of any REMIC created under this
Agreement, and (iii) for purposes of this Agreement, except as otherwise
specified in Section 12.04(b), shall be administered such that all references to
the holder of the "Great Lakes Crossing Companion Mortgage Loan" with respect to
such account under the Series 2003-CK2 PSA shall be deemed to be references to
the holder of the Great Lakes Crossing Companion Loan.
(b) The Master Servicer may, from time to time, make withdrawals
from the Great Lakes Crossing Custodial Account and the various subaccounts
thereof contemplated by Section 12.04(a) in respect of the Great Lakes Crossing
Total Loan or any Great Lakes Crossing REO Property for the same purposes, in
the same amounts and at the same times as the Series 2003-CK2 Master Servicer
would have been permitted to make such withdrawals from the similar
accounts/subaccounts pursuant to Section 3.04(f) of the Series 2003-CK2 PSA;
provided that no withdrawals shall be made from the Great Lakes Crossing
Custodial Account for purposes of making P&I Advances; and provided, further,
that any remittance that would otherwise be required to be made to the holder of
the Great Lakes Crossing Mortgage Loan shall be made through a transfer on the
relevant date from the Great Lakes Crossing Custodial Account to the Collection
Account; and provided, further, that any other remittances that would have been
made pursuant to the Series 2003-CK2 Trustee as the holder of the Great Lakes
Crossing Companion Loan shall instead be remitted from the subaccount of the
Great Lakes Crossing Custodial Account to the holder of the Great Lakes Crossing
Companion Loan pursuant to Section 3.04(f) of the Series 2003-CK2 PSA; and
provided, further, that any withdrawals that would have been made pursuant to
Section 3.04(f) or 3.05(a) of the Series 2003-CK2 PSA to pay compensation and/or
interest on advances and/or to reimburse any costs or expenses incurred by a
party to the Series 2003-CK2 PSA shall instead be paid or reimbursed, as the
case may be, to the corresponding party under this Agreement. The Master
Servicer shall account for all withdrawals from the Great Lakes Crossing
Custodial Account and the various subaccounts thereof contemplated by Section
12.04(a) in the same manner as the Series 2003-CK2 Master Servicer is required
to account for withdrawals from the similar accounts/subaccounts under the
Series 2003-CK2 PSA.
(c) The General Master Servicer may retain investment earnings on
the Great Lakes Crossing Custodial Account to the same extent set forth in
Section 3.04(f) of the Series 2003-CK2 PSA.
Section 12.05 Maintenance of Insurance Policies; Errors and
Omissions and Fidelity Coverage
(a) The Master Servicer and the Special Servicer shall perform all
such duties and obligations and have all such right, power and authority with
respect to the Great Lakes Crossing Total Loan and any Great Lakes Crossing REO
Property as did the Series 2003-CK2 Master Servicer and the Series 2003-CK2
Special Servicer, respectively, pursuant to Sections 3.07(a), 3.07(b) and
3.07(c) of the Series 2003-CK2 PSA (taking into account that each is now acting
on behalf of the Trustee and the Certificateholders hereunder). Any references
to "Trustee", "Certificates" and/or "Certificateholders" in any such sections of
the Series 2003-CK2 PSA shall be deemed to be references to the Trustee
hereunder, the Certificates issued hereunder and the Certificateholders
hereunder, respectively.
(b) The obligations of the Master Servicer and the Special Servicer
to maintain errors and omissions insurance and fidelity bond coverage pursuant
to Section 3.07 hereunder shall, so long as this Article XII is in effect, be
required to be in an amount that is calculated assuming that the Great Lakes
Crossing Total Loan constitutes Serviced Mortgage Loans.
Section 12.06 Enforcement of Due-on-Sale and Due-on-Encumbrance
Clauses; Assumption Agreements; Defeasance Provisions; Other Provisions
The Master Servicer and the Special Servicer shall perform all such
duties and obligations and have all such right, power and authority with respect
to the Great Lakes Crossing Total Loan as did the Series 2003-CK2 Master
Servicer and the Series 2003-CK2 Special Servicer, respectively, pursuant to
Section 3.08 of the Series 2003-CK2 PSA (taking into account that each is now
acting on behalf of the Trustee and the Certificateholders hereunder). Any
references to "Trustee" and "Certificates" in such section of the Series
2003-CK2 PSA shall be deemed to be references to the Trustee hereunder and the
Certificates issued hereunder, respectively. Furthermore, the references to
"REMIC Pool" in Section 3.08 of the Series 2003-CK2 PSA shall be deemed to be
references to any Trust REMIC hereunder.
Section 12.07 Realization Upon Defaulted Mortgage Loans
(a) The Master Servicer and the Special Servicer shall, subject to
Section 3.02(a) of the Series 2003-CK2 PSA and, further, subject to Sections
3.09(a), 3.09(b), 3.09(c) and 3.09(d) hereunder (applied as if the Great Lakes
Crossing Total Loan constituted Serviced Mortgage Loans), perform all such
duties and obligations and have all such right, power and authority with respect
to the Great Lakes Crossing Total Loan and any Great Lakes Crossing REO Property
as did the Series 2003-CK2 Master Servicer and the Series 2003-CK2 Special
Servicer, respectively, pursuant to Section 3.09(a) of the Series 2003-CK2 PSA
(taking into account that it is now acting on behalf of the Trustee and the
Certificateholders hereunder). Any references to "Certificateholders" in Section
3.09(a) of the Series 2003-CK2 PSA shall be deemed to be references to the
holder of the Great Lakes Crossing Companion Loan.
(b) The Master Servicer and the Special Servicer shall have the same
respective rights, duties and obligations with respect to the Great Lakes
Crossing Total Loan as they do with respect to the Serviced Mortgage Loans under
Sections 3.09(e), 3.09(f), 3.09(g) and 3.09(h) hereunder.
Section 12.08 Mortgage Loan Documents
The Master Servicer and the Special Servicer shall obtain from the
respective holders of the Great Lakes Crossing Mortgage Loan and the Great Lakes
Crossing Companion Loan such documentation as is necessary to perform servicing
and administration of the Great Lakes Crossing Total Loan. If and to the extent
that the Trustee holds any loan documents with respect to the Great Lakes
Crossing Total Loan, and if the Great Lakes Crossing Total Loan is being
serviced under this Article XII, then the Trustee is authorized to release any
or all of those loan documents to the Master Servicer and the Special Servicer
under the same circumstances as it would release such Mortgage Loan Documents to
the Master Servicer or the Special Servicer, as the case may be, with respect to
a Serviced Mortgage Loan.
Section 12.09 Servicing Compensation
The Master Servicer and the Special Servicer shall be entitled, for
performing their respective servicing and administration duties with respect to
the Great Lakes Crossing Total Loan and any Great Lakes Crossing REO Property,
to the same compensation as would the Series 2003-CK2 Master Servicer and the
Series 2003-CK2 Special Servicer pursuant to Section 3.11 of the Series 2003-CK2
PSA.
Section 12.10 Reports and Statements
(a) The Master Servicer and the Special Servicer each shall, with
respect to the Great Lakes Crossing Total Loan and any Great Lakes Crossing REO
Property, prepare or obtain, as applicable, and deliver to the Trustee and the
holder of the Great Lakes Crossing Companion Loan any and all reports,
statements, documentation and other information as are required to be delivered
by the Series 2003-CK2 Master Servicer and the Series 2003-CK2 Special Servicer,
respectively, to the holder of the Great Lakes Crossing Mortgage Loan and the
Series 2003-CK2 Trustee, pursuant to Section 3.12 of the Series 2003-CK2 PSA.
(b) The Master Servicer and the Special Servicer each shall, with
respect to the Great Lakes Crossing Total Loan and any Great Lakes Crossing REO
Property, prepare or obtain, as applicable, and deliver to each other any and
all reports, statements, documentation and other information as are required to
be delivered by the Series 2003-CK2 Master Servicer and the Series 2003-CK2
Special Servicer to each other pursuant to Section 3.12 of the Series 2003-CK2
PSA.
Section 12.11 Annual Statement as to Compliance; Reports by
Independent Public Accountants; Access to Certain Information
The Master Servicer and the Special Servicer shall, in fulfilling
their obligations pursuant to Sections 3.13, 3.14 and 3.15 hereunder, take into
account their respective obligations under this Article XII and treat the Great
Lakes Crossing Total Loan as Serviced Mortgage Loans and any Great Lakes
Crossing REO Property as an Administered REO Property.
Section 12.12 Great Lakes Crossing REO Property
If the Great Lakes Crossing Mortgaged Property becomes an REO
Property, then the Great Lakes Crossing REO Property shall be serviced and
administered under Section 3.16, Section 3.17, Section 3.18(d), Section 3.18(e),
Section 3.18(f) and Section 3.18(g) hereunder as if it were an Administered REO
Property; except that (i) it is hereby acknowledged that such REO Property and
any related account in the nature of an REO Account would be held on behalf of
the Certificateholders and the respective holders of the Great Lakes Crossing
Companion Loan, as their interests may appear, (ii) the account contemplated by
the immediately preceding clause (i) shall not include any amounts in respect of
any other REO Property and (iii) any transfers from the account contemplated by
clause (i) above that would in accordance with Section 3.16 hereunder ordinarily
be made to the Collection Account shall instead be made to the Great Lakes
Crossing Custodial Account.
Section 12.13 Modifications, Waivers, Amendments and Consents;
Inspections; Appraisals; Lock-Box Accounts and Servicing Accounts; and Other
Additional Obligations
The Master Servicer and the Special Servicer shall perform all such
duties and obligations and have all such right, power and authority with respect
to the Great Lakes Crossing Total Loan as did the Series 2003-CK2 Master
Servicer and the Series 2003-CK2 Special Servicer, respectively, pursuant to
Section 3.19 and Section 3.20 of the Series 2003-CK2 PSA (taking into account
that each is now acting on behalf of the Trustee and the Certificateholders
hereunder). Any references to "Trustee" and "Certificates" in such sections of
the Series 2003-CK2 PSA shall be deemed to be references to the Trustee
hereunder and the Certificates issued hereunder, respectively.
Section 12.14 Transfer of Servicing Between Master Servicer and
Special Servicer; Record Keeping; Asset Status Report
The Master Servicer and the Special Servicer shall perform all such
duties and obligations, including the transfer of servicing, and have all such
right, power and authority with respect to the Great Lakes Crossing Total Loan
as did the Series 2003-CK2 Master Servicer and the Series 2003-CK2 Special
Servicer, respectively, pursuant to Section 3.21 of the Series 2003-CK2 PSA
(taking into account that each is now acting on behalf of the Trustee and the
Certificateholders hereunder); provided that, consistent with Section 12.01(d)
hereunder, all references to "Directing Certificateholder" in Section 3.21(e) of
the Series 2003-CK2 PSA shall be deemed to be references to the Controlling
Class Representative. Any references to "Trustee", "Fiscal Agent", "Depositor"
and "Certificateholders" in Section 3.21 of the Series 2003-CK2 PSA shall be
deemed to be references to the Trustee, Fiscal Agent, Depositor and
Certificateholders, respectively, hereunder.
Section 12.15 Sub-Servicing
Each of the Master Servicer and the Special Servicer may enter into
Sub-Servicing Agreements to provide for the performance by third parties of any
or all of its respective obligations under this Article XII to the same extent,
and subject to the same terms, conditions and limitations, as would be
applicable to entering into Sub-Servicing Agreements with respect to the
Serviced Mortgage Loans under Section 3.22 hereunder.
Xxxxxxx 00.00 X&X Advances
The Master Servicer shall have the same advancing obligations with
respect to the Great Lakes Crossing Total Loan as did the Series 2003-CK2 Master
Servicer under Section 4.03 of the Series 2003-CK2 PSA.
Section 12.17 Limitation on Liability; Certain Indemnities
Solely insofar as it relates to the matters contemplated by this
Article XII, Section 6.03 of the Series 2003-CK2 PSA is incorporated herein by
reference and made a part hereof; provided that capitalized terms that are used
therein and are defined in this Agreement shall have the respective meanings
assigned thereto in this Agreement; and provided, further, that the term "Great
Lakes Crossing Companion Mortgage Loan," as used therein, shall be deemed to
mean the Great Lakes Crossing Companion Loan. Section 6.03 of this Agreement
shall not be applicable to, and is replaced in its entirety with respect to, the
matters contemplated by this Article XII.
Section 12.18 Events of Default
(a) If any Event of Default shall occur hereunder that materially
and adversely affects the rights and interests of the holder of the Great Lakes
Crossing Companion Loan, then such holder shall have the same rights (and be
subject to the same constraints, including the obtaining of any required rating
confirmations) in respect of such Event of Default as did the holder of the
Great Lakes Crossing Mortgage Loan upon the occurrence of a Series 2003-CK2
Event of Default.
(b) In the event that the Master Servicer or the Special Servicer
may be terminated under this Section 12.19, but is not otherwise terminated
under Article VII hereof, then such party shall be replaced solely as to its
duties and obligations, and its right, power and authority, with respect to the
Great Lakes Crossing Total Loan and any Great Lakes Crossing REO Property, and
all references to "Master Servicer" or "Special Servicer" in this Article XII
shall be deemed to refer to its successor under this Article XII. Articles I
through XI hereof shall apply to such successor master servicer or special
servicer, as applicable, but only to the extent that they would if the Great
Lakes Crossing Total Loan and/or any Great Lakes Crossing REO Property were the
only asset being serviced and administered hereunder and there were no Serviced
Mortgage Loans or Administered REO Properties. The Master Servicer or Special
Servicer, as the case may be, that was so replaced with respect to the Great
Lakes Crossing Total Loan and/or any Great Lakes Crossing REO Property shall
continue to have the same duties and obligations, and the same right, power and
authority, with respect to the Serviced Mortgage Loans and/or any Administered
REO Properties that it otherwise would without regard to this Article XII, and
Articles I through XI hereof shall apply to such replaced Master Servicer or
Special Servicer, as the case may be, as if this Article XII did not exist.
Section 12.19 Amendments to the Series 2003-CK2 PSA
All references to the Series 2003-CK2 PSA throughout this Article
XII are intended to be references to such agreement as in effect on the Closing
Date, with such amendments and modifications as either (i) have been agreed to
by the Trustee in accordance with Article XI hereof or (ii) do not materially
and adversely affect the interests of the holder of the Great Lakes Crossing
Mortgage Loan.
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.
XXXXX FARGO BANK MINNESOTA, N.A.
Solely in its capacity as Trustee
By: /s/ Xxxxxxx Xxxxxxx
------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Vice President
CREDIT SUISSE FIRST BOSTON
MORTGAGE SECURITIES CORP.
Depositor
By: /s/ Xxxxx Xxxxxx
------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
KEYCORP REAL ESTATE CAPITAL
MARKETS, INC.
General Master Servicer
By: /s/ Xxxx X. Xxxxxxx
------------------------------
Name: Xxxx X. Xxxxxxx
Title: Senior Vice President
ARCAP SERVICING, INC.
General Special Servicer
By: /s/ Xxxxx X. Xxxxxxx
------------------------------
Name: Xxxxx X. Xxxxxxx
Title: President
NCB, FSB
NCBFSB Master Servicer
By: /s/ Xxxxxxxx X. Xxxxx
------------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Chief Operating Officer
NATIONAL CONSUMER COOPERATIVE
BANK
Co-op Special Servicer
By: /s/ Xxxx Xxxxx
------------------------------
Name: Xxxx Xxxxx
Title: Managing Director
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 27th day of June 2003, before me, a notary public in and
for said State, personally appeared Xxxxx Xxxxxx, personally known to me
to be a Vice President of CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES
CORP., one of the entities that executed the within instrument, and also known
to me to be the person who executed it on behalf of such entity, and
acknowledged to me that such entity executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxxxxxx X. Xxxxx
Notary Public
[Notarial Seal]
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 27th day of June 2003, before me, a notary public in and for
said State, personally appeared Xxxxxxx Xxxxxxx, personally known to me to be a
Vice President of Xxxxx Fargo Bank Minnesota, N.A., one of the entities that
executed the within instrument, and also known to me to be the person who
executed it on behalf of such entity, and acknowledged to me that such entity
executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxxxxxx X. Xxxxx
Notary Public
[Notarial Seal]
STATE OF TEXAS )
) ss.:
COUNTY OF DALLAS )
On the 25th day of June 2003, before me, a notary public in and
for said State, personally appeared Xxxxx X. Xxxxxxx, known to me to be a
Vice President of ARCAP SERVICING, INC., one of the entities that executed
the within instrument, and also known to me to be the person who executed it on
behalf of such entity, and acknowledged to me that such entity executed the
within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ C.F. Greenhouse
Notary Public
[Notarial Seal]
STATE OF MISSOURI )
) ss.:
COUNTY OF XXXXXXX )
On the 24th day of June 2003, before me, a notary public in and for
said State, personally appeared Xxxx X. Xxxxxxx, personally known to me to be a
Senior Vice President of KeyCorp Real Estate Capital Markets, one of the
entities that executed the within instrument, and also known to me to be the
person who executed it on behalf of such entity, and acknowledged to me that
such entity executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxxxx X. Xxxxxxxx
Notary Public
[Notarial Seal]
STATE OF DISTRICT OF )
) ss.:
COUNTY OF COLUMBIA )
On the 23rd day of June 2003, before me, a notary public in and for
said State, personally appeared Xxxxxxxx X. Xxxxx, known to me to be a Chief
Operating Officer of NATIONAL CONSUMER COOPERATIVE BANK, one of the entities
that executed the within instrument, and also known to me to be the person who
executed it on behalf of such entity, and acknowledged to me that such entity
executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxxxxxxxx Xxxx
Notary Public
[Notarial Seal]
STATE OF DISTRICT OF )
) ss.:
COUNTY OF COLUMBIA )
On the 23rd day of June 2003, before me, a notary public in and
for said State, personally appeared Xxxx Xxxxx, known to me to be a
Managing Director of NCB, FSB, one of the entities that executed the within
instrument, and also known to me to be the person who executed it on behalf of
such entity, and acknowledged to me that such entity executed the within
instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxxxxxxxx Xxxx
Notary Public
[Notarial Seal]
EXHIBIT A-1
FORM OF CLASS [A-X] [A-SP] [A-Y] CERTIFICATES
CLASS [A-X] [A-SP] [A-Y] COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE, SERIES
2003-C3
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire 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:
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
Pass-Through Rate: Variable Class Notional Amount
of the Class [A-X] [A-SP] [A-Y]
Certificates as of the Closing Date:
Closing Date: June 27, 2003 Initial Certificate Notional Amount of
this Certificate as of the Closing Date:
First Distribution Date: July 17, 2003 $
General Master Servicer: Aggregate Stated Principal Balance of the
KeyCorp Real Estate Capital Markets, Inc. Mortgage Loans as of the Closing Date
("Initial Net Pool Balance"):
$1,724,825,640
General Special Servicer:
ARCap Servicing, Inc.
NCBFSB Master Servicer: Trustee:
NCB, FSB Xxxxx Fargo Bank Minnesota, N.A.
Co-op Special Servicer:
National Consumer Cooperative Bank
Certificate No. [A-X] [A-SP] [A-Y]-__ CUSIP No.: _____________
Common Code: _____________
ISIN No.: _____________
[FOR CLASS A-X AND CLASS A-SP CERTIFICATES--UNLESS THIS CERTIFICATE IS PRESENTED
BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), TO THE TRUSTEE OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.]
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, PLEDGE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE OR ANY
INTEREST HEREIN WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A
TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH
IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE (A) TO ANY
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT THAT IS SUBJECT TO
THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR
(B) TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR
SUCH INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH
ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR
ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN CREDIT
SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP., XXXXX FARGO BANK MINNESOTA, N.A.,
KEYCORP REAL ESTATE CAPITAL MARKETS, INC., ARCAP SERVICING, INC., NCB, FSB,
NATIONAL CONSUMER COOPERATIVE BANK, OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR ANY OF THE UNDERLYING MORTGAGE LOANS IS GUARANTEED
BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE").
THE OUTSTANDING CERTIFICATE NOTIONAL AMOUNT HEREOF AT ANY TIME MAY BE LESS THAN
THE AMOUNT SHOWN ABOVE. THIS CERTIFICATE DOES NOT HAVE A CERTIFICATE PRINCIPAL
BALANCE AND WILL NOT ENTITLE THE HOLDER HEREOF TO DISTRIBUTIONS OF PRINCIPAL.
[Legend for Regulation S Global Certificate for Class A-X and Class A-SP
Certificates--PRIOR TO THE DATE THAT IS 40 DAYS AFTER THE LATER OF (A) THE
COMMENCEMENT OF THE OFFERING OF THE CERTIFICATES AND (B) JUNE 27, 2003, THIS
CERTIFICATE MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE
UNITED STATES OR TO A U.S. PERSON EXCEPT PURSUANT TO AN EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED. NO
BENEFICIAL OWNERS OF THIS CERTIFICATE SHALL BE ENTITLED TO RECEIVE PAYMENT OF
PRINCIPAL OR INTEREST HEREON UNLESS THE REQUIRED CERTIFICATIONS HAVE BEEN
DELIVERED PURSUANT TO THE TERMS OF THE POOLING AND SERVICING AGREEMENT REFERRED
TO HEREIN.]
This certifies that [________________] is the registered owner of
the Percentage Interest evidenced by this Certificate (obtained by dividing the
notional amount of this Certificate (its "Certificate Notional Amount") as of
the Closing Date by the aggregate notional amount of all the Class [A-X] [A-SP]
[A-Y] Certificates (their "Class Notional Amount") as of the Closing Date) in
that certain beneficial ownership interest in the Trust Fund evidenced by all
the Class [A-X] [A-SP] [A-Y] Certificates. The Trust Fund was created and the
Certificates were issued pursuant to a Pooling and Servicing Agreement, dated as
of June 1, 2003 (the "Agreement"), among Credit Suisse First Boston Mortgage
Securities Corp. as depositor (the "Depositor", which term includes any
successor entity under the Agreement), KeyCorp Real Estate Capital Markets,
Inc., as general master servicer (in such capacity, the "General Master
Servicer", which term includes any successor entity under the Agreement), ARCap
Servicing, Inc., as general special servicer (in such capacity, the "General
Special Servicer", which term includes any successor entity under the
Agreement), NCB, FSB, as NCBFSB master servicer (in such capacity, the "NCBFSB
Master Servicer", which term includes any successor entity under the Agreement),
National Consumer Cooperative Bank, as co-op special servicer (in such capacity,
the "Co-op Special Servicer", which term includes any successor entity under the
Agreement), and Xxxxx Fargo Bank Minnesota, N.A., as trustee (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, capitalized terms used herein have the respective
meanings assigned thereto 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 its acceptance hereof
assents and by which such Holder is bound.
Pursuant to the terms of the Agreement, beginning on the First
Distribution Date specified above, distributions will be made on that date (the
"Distribution Date") each month that is the fourth Business Day following the
Determination Date in such month, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed to all the Holders of the
Class [A-X] [A-SP] [A-Y] Certificates on the applicable Distribution Date
pursuant to the Agreement. All distributions made under the Agreement on this
Certificate will be made by the Trustee by wire transfer of immediately
available funds to the account of the Person entitled thereto at a bank or other
entity having appropriate facilities therefor, if such Certificateholder shall
have provided the Trustee with wiring instructions no later than 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 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.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Distribution Account, the Collection Accounts
and, if established, the REO Accounts 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.
This Certificate is issuable in fully registered form only without
coupons. As provided in the Agreement and subject to certain limitations therein
set forth, this Certificate is exchangeable for new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest, as requested by the Holder surrendering the same.
No transfer, sale, pledge or other disposition of this Certificate
or any interest herein shall be made unless that transfer, sale, pledge or other
disposition is exempt from the registration and/or qualification requirements of
the Securities Act and any applicable state securities laws, or is otherwise
made in accordance with the Securities Act and such state securities laws. If a
transfer of this Certificate is to be made without registration under the
Securities Act, then (except under limited circumstances specified in the
Agreement) the Certificate Registrar shall refuse to register such transfer
unless it receives (and, upon receipt, may conclusively rely upon) either: (i) a
certificate from the Certificateholder desiring to effect such transfer
substantially in the form attached as Exhibit F-1A to the Agreement; or (ii) a
certificate from the Certificateholder desiring to effect such transfer
substantially in the form attached as Exhibit F-1B to the Agreement and a
certificate from such Certificateholder's prospective Transferee substantially
in the form attached either as Exhibit F-2A or as Exhibit F-2B to the Agreement;
or (iii) an Opinion of Counsel satisfactory to the Trustee to the effect that
such transfer may be made without registration under the Securities Act (which
Opinion of Counsel shall not be an expense of the Trust or of the Depositor, the
General Master Servicer, the NCBFSB Master Servicer, the General Special
Servicer, the Co-op Special Servicer, the Trustee, any Fiscal Agent 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.
If this Certificate constitutes a Rule 144A Global Certificate and a
transfer of any interest in this Certificate is to be made without registration
under the Securities Act, then (except under limited circumstances specified in
the Agreement) the Certificate Owner desiring to effect such transfer shall be
required to obtain either (i) a certificate from such Certificate Owner's
prospective Transferee substantially in the form attached as Exhibit F-2C to the
Agreement, or (ii) an Opinion of Counsel to the effect that such prospective
Transferee is a Qualified Institutional Buyer and such transfer may be made
without registration under the Securities Act. Except as discussed below, if
this Certificate constitutes a Rule 144A Global Certificate, then interests
herein shall not be transferred to any Person who takes delivery in the form of
an interest in this Rule 144A Global Certificate.
[FOR CLASS A-X AND CLASS A-SP CERTIFICATES: Notwithstanding the
preceding paragraph, if this Certificate constitutes a Rule 144A Global
Certificate, then interests herein may be transferred (without delivery of any
certificate or Opinion of Counsel described in the preceding paragraph) to any
Person who takes delivery in the form of a beneficial interest in the Regulation
S Global Certificate of the same Class as this Rule 144A Global Certificate upon
delivery to the Certificate Registrar and the Trustee of (x) a certificate from
the Certificate Owner desiring to effect such transfer substantially in the form
attached as Exhibit F-1D to the Agreement and a certificate from such
Certificate Owner's prospective Transferee substantially in the form attached as
Exhibit F-2D to the Agreement and (y) such written orders and instructions as
are required under the applicable procedures of DTC, Clearstream and/or
Euroclear to direct the Trustee to debit the account of a Depository Participant
by a denomination of interests in this Rule 144A Global Certificate, and credit
the account of a Depository Participant by a denomination of interests in such
Regulation S Global Certificate, that is equal to the denomination of beneficial
interests in such Class to be transferred. Upon delivery to the Certificate
Registrar of such certifications and such orders and instructions, the Trustee,
subject to and in accordance with the applicable procedures of DTC, shall reduce
the denomination of this Rule 144A Global Certificate, and increase the
denomination of the related Regulation S Global Certificate, by the denomination
of the beneficial interest in such Class specified in such orders and
instructions.]
[FOR CLASS A-X AND CLASS A-SP CERTIFICATES: Except as discussed
below, if this Certificate constitutes a Regulation S Global Certificate, then
beneficial interests in this Certificate shall not be transferred to any Person
other than a non-United States Securities Person who takes delivery other than
in the form of a beneficial interest in this Certificate, and the Certificate
Owner desiring to effect such transfer shall be required to obtain from such
Certificate Owner's prospective Transferee a certification substantially in the
form attached as Exhibit F-2D to the Agreement. On or prior to the Release Date,
beneficial interests in any Regulation S Global Certificate may be held only
through Euroclear or Clearstream. After the Release Date, beneficial interests
in any Regulation S Global Certificate may be held through Euroclear,
Clearstream or any other direct account holder at DTC.]
[FOR CLASS A-X AND CLASS A-SP CERTIFICATES: Notwithstanding the
preceding paragraph, if this Certificate constitutes a Regulation S Global
Certificate, then interests in this Certificate may be transferred (without
delivery of any certificate described in the preceding paragraph) to any Person
who takes delivery in the form of a beneficial interest in the Rule 144A Global
Certificate for the same Class as this Regulation S Global Certificate upon
delivery to the Certificate Registrar and the Trustee of (i) a certificate from
the Certificate Owner desiring to effect such transfer substantially in the form
attached as Exhibit F-1C to the Agreement and a certificate from such
Certificate Owner's prospective Transferee substantially in the form attached as
Exhibit F-2C to the Agreement and (ii) such written orders and instructions as
are required under the applicable procedures of the Depository, Clearstream
and/or Euroclear to direct the Trustee to debit the account of a Depository
Participant by a denomination of interests in this Regulation S Global
Certificate, and credit the account of a Depository Participant by a
denomination of interests in such Rule 144A Global Certificate, that is equal to
the denomination of beneficial interests to be transferred. Upon delivery to the
Trustee of such certifications and such orders and instructions, the Trustee,
subject to and in accordance with the applicable procedures of the Depository,
shall reduce the denomination of this Regulation S Global Certificate, and
increase the denomination of the related Rule 144A Global Certificate, by the
denomination of the beneficial interest in such Class specified in such orders
and instructions.]
Notwithstanding the foregoing, any interest in a Global Certificate
may be transferred by any Certificate Owner holding such interest to any Person
who takes delivery in the form of a Definitive Certificate of the same Class as
such Global Certificate upon delivery to the Certificate Registrar and the
Trustee of (i) such certifications and/or opinions as are contemplated above
with respect to transfers of this Certificate in definitive form and (ii) such
written orders and instructions as are required under the applicable procedures
of the Depository, Clearstream and/or Euroclear to direct the Trustee to debit
the account of a Depository Participant by a denomination of interests in such
Global Certificate. Upon delivery to the Certificate Registrar of the
certifications and/or opinions contemplated above with respect to transfers of
this Certificate in definitive form, the Trustee, subject to and in accordance
with the applicable procedures of the Depository, shall reduce the denomination
of the subject Global Certificate, and cause a Definitive Certificate of the
same Class as such Global Certificate, and in a denomination equal to the
reduction in the denomination of such Global Certificate, to be executed,
authenticated and delivered in accordance with this Agreement to the applicable
Transferee.
The Global Certificates shall be deposited with the Trustee as
custodian for DTC and registered in the name of Cede & Co. as nominee of DTC.
None of the Depositor, the Trustee or the Certificate Registrar is
obligated to register or qualify the Class [A-X] [A-SP] [A-Y] Certificates under
the Securities Act or any other securities law or to take any action not
otherwise required under the Agreement to permit the transfer of this
Certificate or any interest herein without registration or qualification. Any
Certificateholder or Certificate Owner desiring to effect a transfer of this
Certificate or any interest herein shall, and does hereby agree to, indemnify
CSFB Corporation, the Depositor, the Trustee, the General Master Servicer, the
NCBFSB Master Servicer, the General Special Servicer, the Co-op Special
Servicer, any Fiscal Agent and the Certificate Registrar against any liability
that may result if the transfer is not so exempt or is not made in accordance
with such federal and state laws or the provisions described in the preceding
paragraphs.
No transfer of this Certificate or any interest herein shall be made
(A) to any retirement plan or other employee benefit plan or arrangement,
including individual retirement accounts and annuities, Xxxxx plans and
collective investment funds and separate accounts in which such plans, accounts
or arrangements are invested, including insurance company general accounts, that
is subject to ERISA or Section 4975 of the Code (each, a "Plan"), or (B) to any
Person who is directly or indirectly purchasing this Certificate or any interest
herein on behalf of, as named fiduciary of, as trustee of, or with assets of a
Plan, if the purchase and holding of this Certificate or such interest herein by
the prospective Transferee would result in a violation of Section 406 or 407 of
ERISA or Section 4975 of the Code or would result in the imposition of an excise
tax under Section 4975 of the Code. Except in limited circumstances, the
Certificate Registrar shall refuse to register the transfer of this Certificate
(and, if applicable, any Certificate Owner shall refuse to transfer an interest
in this Certificate), unless it has received from the prospective Transferee
either (i) a certification to the effect that such prospective Transferee is not
a Plan and is not directly or indirectly purchasing this Certificate on behalf
of, as named fiduciary of, as trustee of, or with assets of a Plan; or (ii) [FOR
CLASS A-X AND CLASS A-SP ONLY: a certification to the effect that the purchase
and holding of this Certificate by such prospective Transferee is exempt from
the prohibited transaction provisions of Sections 406 and 407 of ERISA and
Section 4975 of the Code by reason of Sections I and III of Prohibited
Transaction Class Exemption 95-60; or (iii) if this Certificate is rated
investment grade by at least one of the Rating Agencies and is being acquired
by, on behalf of or with assets of a Plan in reliance Prohibited Transaction
Exemption 89-90, a certification to the effect that such Plan (X) is an
accredited investor as defined in Rule 501(a)(1) of Regulation D of the
Securities Act, (Y) is not sponsored (within the meaning of Section 3(16)(B) of
ERISA) by the Trustee, the Depositor, any Fiscal Agent, any Mortgage Loan
Seller, any Exemption-Favored Party, the General Master Servicer, the NCBFSB
Master Servicer, the General Special Servicer, the Co-op Special Servicer, any
Sub-Servicer or any Borrower with respect to Mortgage Loans constituting MORE
THAN 5% of the aggregate unamortized principal of all the Mortgage Loans
determined as of the Closing Date, or by an Affiliate of any such Person, and
(Z) agrees that it will obtain from each of its Transferees a written
representation that such Transferee, if a Plan, satisfies the requirements of
the immediately preceding clauses (iii)(X) and (iii)(Y), together with a written
agreement that such Transferee will obtain from each of its Transferees that are
Plans a similar written representation regarding satisfaction of the
requirements of the immediately preceding clauses (iii)(X) and (iii)(Y); or
(iv)] a certification of facts and an Opinion of Counsel which otherwise
establish to the reasonable satisfaction of the Certificate Registrar (or, if
applicable, the Certificate Owner effecting the transfer) that such transfer
will not result in a violation of Section 406 or 407 of ERISA or Section 4975 of
the Code or result in the imposition of an excise tax under Section 4975 of the
Code.
If a Person is acquiring this Certificate as a fiduciary or agent
for one or more accounts, such Person shall be required to deliver to the
Certificate Registrar a certification to the effect that, and such other
evidence as may be reasonably required by the Trustee to confirm that, it has
(i) sole investment discretion with respect to each such account and (ii) full
power to make the acknowledgments, representations, warranties, certifications
and/or agreements with respect to each such account as described above in this
Certificate.
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 Certificates of the same
Class 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 this Certificate, but the Trustee or the Certificate Registrar
may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of this
Certificate.
[FOR CLASS A-X AND CLASS A-SP ONLY: 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, and accordingly, this Certificate shall constitute a
Book-Entry Certificate.]
The Depositor, the General Master Servicer, the NCBFSB Master
Servicer, the General Special Servicer, the Co-op Special Servicer, the Trustee,
any Fiscal Agent, the Certificate Registrar and any agent of the Depositor, the
General Master Servicer, the NCBFSB Master Servicer, the General Special
Servicer, the Co-op Special Servicer, the Trustee, any Fiscal Agent or the
Certificate Registrar may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and none of the Depositor, the
General Master Servicer, the NCBFSB Master Servicer, the General Special
Servicer, the Co-op Special Servicer, the Trustee, any Fiscal Agent, the
Certificate Registrar or any such agent shall be affected by notice to the
contrary.
Subject to certain terms and conditions set forth in the Agreement,
the Trust Fund and the obligations created by the Agreement shall terminate upon
distribution (or provision for distribution) to the Certificateholders of all
amounts held by or on behalf of the Trustee and required to be distributed to
them pursuant to the Agreement following the earlier of (i) the final payment or
other liquidation (or any advance with respect thereto) of the last Mortgage
Loan or REO Property remaining in the Trust Fund, (ii) the purchase by the
NCBFSB Master Servicer, the Co-op Special Servicer, the General Master Servicer,
the General Special Servicer, or any single Controlling Class Certificateholder
or group of Controlling Class Certificateholders, at a price determined as
provided in the Agreement, of all the Mortgage Loans and each REO Property
remaining in the Trust Fund and (iii) the acquisition by the Sole
Certificateholder(s) of all the Mortgage Loans and each REO Property remaining
in the Trust Fund in exchange for all of the Certificates. The Agreement
permits, but does not require, the NCBFSB Master Servicer, the Co-op Special
Servicer, the General Master Servicer, the General Special Servicer, or any
single Controlling Class Certificateholder or group of Controlling Class
Certificateholders to purchase from the Trust Fund all the Mortgage Loans and
each REO Property remaining therein. The exercise of such right may effect early
retirement of the 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 1.0% of the Initial Net Pool Balance.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the General Master Servicer, the NCBFSB Master Servicer, the General
Special Servicer, the Co-op Special Servicer, the Trustee and any Fiscal Agent
and the rights of the Certificateholders under the Agreement at any time by the
Depositor, the General Master Servicer, the NCBFSB Master Servicer, the General
Special Servicer, the Co-op Special Servicer, the Trustee and any Fiscal Agent
with the consent of the Holders of Certificates entitled to not less than 51% of
the Voting Rights allocated to all of the Classes materially affected by the
amendment. 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 any REMIC Pool as a REMIC, without the consent of the Holders of any
of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the laws of
the State of New York applicable to agreements negotiated, made and to be
performed entirely in said State, and the obligations, rights and remedies of
the Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
XXXXX FARGO BANK MINNESOTA, N.A.
as Trustee
By:
-----------------------------------------
Authorized Representative
CERTIFICATE OF AUTHENTICATION
This is one of the Class [A-X] [A-SP] [A-Y] Certificates referred
to in the within-mentioned Agreement.
Dated:
XXXXX FARGO BANK MINNESOTA, N.A.
as Certificate Registrar
By:
-----------------------------------------
Authorized Representative
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
________________________________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
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 Mortgage Pass-Through
Certificate to the following address:___________________________________________
________________________________________________________________________________
Dated:
_____________________________________
Signature by or on behalf of Assignor
_____________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds,
to_______________________________________ for the account
of__________________________________________________________________.
Distributions made by check (such check to be made payable to
___________________________) and all applicable statements and notices should be
mailed to
_______________________________________________________________________________.
This information is provided by____________________________________,
the Assignee named above, or___________________________________________________,
as its agent.
EXHIBIT A-2
FORM OF CLASS A-1, CLASS A-2, CLASS A-3, CLASS A-4, CLASS A-5
CLASS B, CLASS C, CLASS D AND CLASS E CERTIFICATES
CLASS [A-1] [A-2] [A-3] [A-4] [A-5] [B] [C] [D] [E]COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE, SERIES 2003-C3
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire 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
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
Pass-Through Rate: [For Class A-1, Class Class Principal Balance of the Class
A-2, Class A-3, Class A-4, Class X-0, [X-0] [X-0] [X-0] [A-4] [A-5] [B] [C] [D]
Class B, Class C, Class D and Class E: [E] Certificates as of the Closing Date:
____% per annum] $_________________
Closing Date: June 27, 2003 Initial Certificate Principal Balance of
this Certificate as of the Closing Date:
First Distribution Date: July 17, 2003 $_________________
General Master Servicer: Aggregate Stated Principal Balance of the
KeyCorp Real Estate Capital Markets, Inc. Mortgage Loans as of the Closing Date
("Initial Net Pool Balance"):
$1,724,825,640
General Special Servicer:
ARCap Servicing, Inc.
NCBFSB Master Servicer: Trustee:
NCB, FSB Xxxxx Fargo Bank Minnesota, N.A.
Co-op Special Servicer:
National Consumer Cooperative Bank
Certificate No. [A-1] [A-2] [A-3] [A-4] CUSIP No.: _____________
[A-5] [B] [C] [D] [E] -___ Common Code: _____________
ISIN No.: _____________
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ANY
AGENT THEREOF FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE (A) TO ANY
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT THAT IS SUBJECT TO
THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR
(B) TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR
SUCH INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH
ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR
ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN CREDIT
SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP., XXXXX FARGO BANK MINNESOTA, N.A.,
KEYCORP REAL ESTATE CAPITAL MARKETS, INC., ARCAP SERVICING, INC., NCB, FSB,
NATIONAL CONSUMER COOPERATIVE BANK, OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR ANY OF THE UNDERLYING MORTGAGE LOANS IS GUARANTEED
BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE").
[FOR CLASS B, CLASS C, CLASS D AND CLASS E CERTIFICATES: THIS CERTIFICATE IS
SUBORDINATE TO ONE OR MORE CLASSES OF CERTIFICATES OF THE SAME SERIES AS AND TO
THE EXTENT DESCRIBED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.]
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that [CEDE & CO.] is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
principal amount of this Certificate (its "Certificate Principal Balance") as of
the Closing Date by the aggregate principal amount of all the Class [A-1] [A-2]
[A-3] [A-4] [A-5] [B] [C] [D] [E] Certificates (their "Class Principal Balance")
as of the Closing Date) in that certain beneficial ownership interest in the
Trust Fund evidenced by all the Class [A-1] [A-2] [A-3] [A-4] [A-5] [B] [C] [D]
[E] Certificates. The Trust Fund was created and the Certificates were issued
pursuant to a Pooling and Servicing Agreement, dated as of June 1, 2003 (the
"Agreement"), among Credit Suisse First Boston Mortgage Securities Corp. as
depositor (the "Depositor", which term includes any successor entity under the
Agreement), KeyCorp Real Estate Capital Markets, Inc., as general master
servicer (in such capacity, the "General Master Servicer", which term includes
any successor entity under the Agreement), ARCap Servicing, Inc., as general
special servicer (in such capacity, the "General Special Servicer", which term
includes any successor entity under the Agreement), NCB, FSB, as NCBFSB master
servicer (in such capacity, the "NCBFSB Master Servicer", which term includes
any successor entity under the Agreement), National Consumer Cooperative Bank,
as co-op special servicer (in such capacity, the "Co-op Special Servicer", which
term includes any successor entity under the Agreement), and Xxxxx Fargo Bank
Minnesota, N.A., as trustee (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, capitalized
terms used herein have the respective meanings assigned thereto 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 its acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, beginning on the First
Distribution Date specified above, distributions will be made on that date (the
"Distribution Date") each month that is the fourth Business Day following the
Determination Date in such month, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed to all the Holders of the
Class [A-1] [A-2] [A-3] [A-4] [A-5] [B] [C] [D] [E] Certificates on the
applicable Distribution Date pursuant to the Agreement. All distributions made
under the Agreement on this Certificate will be made by the Trustee by wire
transfer of immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Trustee with wiring instructions
no later than 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 portion of an Unfunded Principal Balance Reduction
in respect of 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.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Distribution Account, the Collection Accounts
and, if established, the REO Accounts may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
This Certificate is issuable in fully registered form only without
coupons. As provided in the Agreement and subject to certain limitations therein
set forth, this Certificate is exchangeable for new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest, as requested by the Holder surrendering the same.
No transfer of this Certificate or any interest herein shall be made
(A) to any retirement plan or other employee benefit plan or arrangement,
including individual retirement accounts and annuities, Xxxxx plans and
collective investment funds and separate accounts in which such plans, accounts
or arrangements are invested, including insurance company general accounts, that
is subject to ERISA or Section 4975 of the Code (each, a "Plan"), or (B) to any
Person who is directly or indirectly purchasing this Certificate or any interest
herein on behalf of, as named fiduciary of, as trustee of, or with assets of a
Plan, if the purchase and holding of this Certificate or such interest herein by
the prospective Transferee would result in a violation of Section 406 or 407 of
ERISA or Section 4975 of the Code or would result in the imposition of an excise
tax under Section 4975 of the Code.
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 Certificates of the same
Class 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 this Certificate, but the Trustee or the Certificate Registrar
may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of this
Certificate.
[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, and accordingly, this
Certificate shall constitute a Book-Entry Certificate.]
The Depositor, the General Master Servicer, the NCBFSB Master
Servicer, the General Special Servicer, the Co-op Special Servicer, the Trustee,
any Fiscal Agent, the Certificate Registrar and any agent of the Depositor, the
General Master Servicer, the NCBFSB Master Servicer, the General Special
Servicer, the Co-op Special Servicer, the Trustee, any Fiscal Agent or the
Certificate Registrar may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and none of the Depositor, the
General Master Servicer, the NCBFSB Master Servicer, the General Special
Servicer, the Co-op Special Servicer, the Trustee, any Fiscal Agent, the
Certificate Registrar or any such agent shall be affected by notice to the
contrary.
Subject to certain terms and conditions set forth in the Agreement,
the Trust Fund and the obligations created by the Agreement shall terminate upon
distribution (or provision for distribution) to the Certificateholders of all
amounts held by or on behalf of the Trustee and required to be distributed to
them pursuant to the Agreement following the earlier of (i) the final payment or
other liquidation (or any advance with respect thereto) of the last Mortgage
Loan or REO Property remaining in the Trust Fund, (ii) the purchase by the
NCBFSB Master Servicer, the Co-op Special Servicer, the General Master Servicer,
the General Special Servicer, or any single Controlling Class Certificateholder
or group of Controlling Class Certificateholders, at a price determined as
provided in the Agreement, of all the Mortgage Loans and each REO Property
remaining in the Trust Fund and (iii) the acquisition by the Sole
Certificateholder(s) of all the Mortgage Loans and each REO Property remaining
in the Trust Fund in exchange for all the Certificates. The Agreement permits,
but does not require, the NCBFSB Master Servicer, the Co-op Special Servicer,
the General Master Servicer, the General Special Servicer, or any single
Controlling Class Certificateholder or group of Controlling Class
Certificateholders to purchase from the Trust Fund all the Mortgage Loans and
each REO Property remaining therein. The exercise of such right may effect early
retirement of the 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 1.0% of the Initial Net Pool Balance.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the General Master Servicer, the NCBFSB Master Servicer, the General
Special Servicer, the Co-op Special Servicer, the Trustee and any Fiscal Agent
and the rights of the Certificateholders under the Agreement at any time by the
Depositor, the General Master Servicer, the NCBFSB Master Servicer, the General
Special Servicer, the Co-op Special Servicer, the Trustee and any Fiscal Agent
with the consent of the Holders of Certificates entitled to not less than 51% of
the Voting Rights allocated to all of the Classes materially affected by the
amendment. 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 any REMIC Pool as a REMIC, without the consent of the Holders of any
of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the laws of
the State of New York applicable to agreements negotiated, made and to be
performed entirely in said State, and the obligations, rights and remedies of
the Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
XXXXX FARGO BANK MINNESOTA, N.A.
as Trustee
By:
-----------------------------------------
Authorized Representative
CERTIFICATE OF AUTHENTICATION
This is one of the Class [A-1] [A-2] [A-3] [A-4] [A-5] [B] [C]
[D] [E] Certificates referred to in the within-mentioned Agreement.
Dated:
XXXXX FARGO BANK MINNESOTA, N.A.
as Certificate Registrar
By:
-----------------------------------------
Authorized Representative
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
________________________________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
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 Mortgage Pass-Through
Certificate to the following address:___________________________________________
________________________________________________________________________________
Dated:
_____________________________________
Signature by or on behalf of Assignor
_____________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds,
to_______________________________________ for the account
of__________________________________________________________________.
Distributions made by check (such check to be made payable to
___________________________) and all applicable statements and notices should be
mailed to
_______________________________________________________________________________.
This information is provided by____________________________________,
the Assignee named above, or___________________________________________________,
as its agent.
EXHIBIT A-3
FORM OF CLASS F, CLASS G, CLASS H, CLASS J, CLASS K, CLASS L, CLASS M, CLASS
N, CLASS O AND CLASS P CERTIFICATES
CLASS [F] [G] [H] [J] [K] [L] [M] [N] [O] [P] COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE, SERIES 2003-C3
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire 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
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
Pass-Through Rate: Variable Class Principal
Balance of the [F] [G] [H] [J] [K]
[L] [M] [N] [O] [P] Certificates as
of the Closing Date:
$_________________-
Closing Date: June 27, 2003 Initial Certificate Principal Balance of
this Certificate as of the Closing Date:
First Distribution Date: July 17, 2003 $_________________
General Master Servicer: Aggregate Stated Principal Balance of the
KeyCorp Real Estate Capital Markets, Inc. Mortgage Loans as of the Closing Date:
("Initial Net Pool Balance"):
$1,724,825,640
General Special Servicer:
ARCap Servicing, Inc.
NCBFSB Master Servicer: Trustee:
NCB, FSB Xxxxx Fargo Bank Minnesota, N.A.
Co-op Special Servicer:
National Consumer Cooperative Bank
Certificate No. [F] [G] [H] [J] [K] [L] CUSIP No.: _____________
[M] [N] [O] [P] -___ Common Code: _____________
ISIN No.: _____________
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR ANY
AGENT THEREOF FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, PLEDGE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE OR ANY
INTEREST HEREIN WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A
TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH
IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE (A) TO ANY
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT THAT IS SUBJECT TO
THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR
(B) TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR
SUCH INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH
ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR
ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN CREDIT
SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP., XXXXX FARGO BANK MINNESOTA, N.A.,
KEYCORP REAL ESTATE CAPITAL MARKETS, INC., ARCAP SERVICING, INC., NCB, FSB,
NATIONAL CONSUMER COOPERATIVE BANK, OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR ANY OF THE UNDERLYING MORTGAGE LOANS IS GUARANTEED
BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO ONE OR MORE CLASSES OF CERTIFICATES OF THE
SAME SERIES AS AND TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
[Legend for Regulation S Global Certificate -- PRIOR TO THE DATE THAT IS 40 DAYS
AFTER THE LATER OF (A) THE COMMENCEMENT OF THE OFFERING OF THE CERTIFICATES AND
(B) JUNE 27, 2003, THIS CERTIFICATE MAY NOT BE OFFERED, SOLD, PLEDGED OR
OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A U.S. PERSON EXCEPT PURSUANT
TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OF
1933, AS AMENDED. NO BENEFICIAL OWNERS OF THIS CERTIFICATE SHALL BE ENTITLED TO
RECEIVE PAYMENT OF PRINCIPAL OR INTEREST HEREON UNLESS THE REQUIRED
CERTIFICATIONS HAVE BEEN DELIVERED PURSUANT TO THE TERMS OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.]
This certifies that [CEDE & CO.] is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
principal amount of this Certificate (its "Certificate Principal Balance") as of
the Closing Date by the aggregate principal amount of all the Class [F] [G] [H]
[J] [K] [L] [M] [N] [O] [P] Certificates (their "Class Principal Balance") as of
the Closing Date) in that certain beneficial ownership interest in the Trust
Fund evidenced by all the Class [F] [G] [H] [J] [K] [L] [M] [N] [O] [P]
Certificates. The Trust Fund was created and the Certificates were issued
pursuant to a Pooling and Servicing Agreement, dated as of June 1, 2003 (the
"Agreement"), among Credit Suisse First Boston Mortgage Securities Corp. as
depositor (the "Depositor", which term includes any successor entity under the
Agreement), KeyCorp Real Estate Capital Markets, Inc., as general master
servicer (in such capacity, the "General Master Servicer", which term includes
any successor entity under the Agreement), ARCap Servicing, Inc., as general
special servicer (in such capacity, the "General Special Servicer", which term
includes any successor entity under the Agreement), NCB, FSB, as NCBFSB master
servicer (in such capacity, the "NCBFSB Master Servicer", which term includes
any successor entity under the Agreement), National Consumer Cooperative Bank,
as co-op special servicer (in such capacity, the "Co-op Special Servicer", which
term includes any successor entity under the Agreement), and Xxxxx Fargo Bank
Minnesota, N.A., as trustee (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, capitalized
terms used herein have the respective meanings assigned thereto 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 its acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, beginning on the First
Distribution Date specified above, distributions will be made on that date (the
"Distribution Date") each month that is the fourth Business Day following the
Determination Date in such month, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed to all the Holders of the
Class [F] [G] [H] [J] [K] [L] [M] [N] [O] [P] Certificates on the applicable
Distribution Date pursuant to the Agreement. All distributions made under the
Agreement on this Certificate will be made by the Trustee by wire transfer of
immediately available funds to the account of the Person entitled thereto at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided the Trustee with wiring instructions no
later than 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 portion of an Unfunded Principal Balance Reduction in respect of 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.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Distribution Account, the Collection Accounts
and, if established, the REO Accounts may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
This Certificate is issuable in fully registered form only without
coupons. As provided in the Agreement and subject to certain limitations therein
set forth, this Certificate is exchangeable for new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest, as requested by the Holder surrendering the same.
No transfer, sale, pledge or other disposition of this Certificate
or any interest herein shall be made unless that transfer, sale, pledge or other
disposition is exempt from the registration and/or qualification requirements of
the Securities Act and any applicable state securities laws, or is otherwise
made in accordance with the Securities Act and such state securities laws. If a
transfer of this Certificate is to be made without registration under the
Securities Act, then (except under limited circumstances specified in the
Agreement) the Certificate Registrar shall refuse to register such transfer
unless it receives (and, upon receipt, may conclusively rely upon) either: (i) a
certificate from the Certificateholder desiring to effect such transfer
substantially in the form attached as Exhibit F-1A to the Agreement; or (ii) a
certificate from the Certificateholder desiring to effect such transfer
substantially in the form attached as Exhibit F-1B to the Agreement and a
certificate from such Certificateholder's prospective Transferee substantially
in the form attached either as Exhibit F-2A or as Exhibit F-2B to the Agreement;
or (iii) an Opinion of Counsel satisfactory to the 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 or of the
Depositor, the General Master Servicer, the NCBFSB Master Servicer, the General
Special Servicer, the Co-op Special Servicer, the Trustee, any Fiscal Agent 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.
If this Certificate constitutes a Rule 144A Global Certificate and a
transfer of any interest in this Certificate is to be made without registration
under the Securities Act, then (except under limited circumstances specified in
the Agreement) the Certificate Owner desiring to effect such transfer shall be
required to obtain either (i) a certificate from such Certificate Owner's
prospective Transferee substantially in the form attached as Exhibit F-2C to the
Agreement, or (ii) an Opinion of Counsel to the effect that such prospective
Transferee is a Qualified Institutional Buyer and such transfer may be made
without registration under the Securities Act. Except as discussed below, if
this Certificate constitutes a Rule 144A Global Certificate, then interests
herein shall not be transferred to any Person who takes delivery other than in
the form of an interest in this Rule 144A Global Certificate.
Notwithstanding the preceding paragraph, if this Certificate
constitutes a Rule 144A Global Certificate, then interests herein may be
transferred (without delivery of any certificate or Opinion of Counsel described
in the preceding paragraph) to any Person who takes delivery in the form of a
beneficial interest in the Regulation S Global Certificate of the same Class as
this Rule 144A Global Certificate upon delivery to the Certificate Registrar and
the Trustee of (x) a certificate from the Certificate Owner desiring to effect
such transfer substantially in the form attached as Exhibit F-1D to the
Agreement and a certificate from such Certificate Owner's prospective Transferee
substantially in the form attached as Exhibit F-2D to the Agreement and (y) such
written orders and instructions as are required under the applicable procedures
of DTC, Clearstream and/or Euroclear to direct the Trustee to debit the account
of a Depository Participant by a denomination of interests in this Rule 144A
Global Certificate, and credit the account of a Depository Participant by a
denomination of interests in such Regulation S Global Certificate, that is equal
to the denomination of beneficial interests in such Class to be transferred.
Upon delivery to the Certificate Registrar of such certifications and such
orders and instructions, the Trustee, subject to and in accordance with the
applicable procedures of DTC, shall reduce the denomination of this Rule 144A
Global Certificate, and increase the denomination of the related Regulation S
Global Certificate, by the denomination of the beneficial interest in such Class
specified in such orders and instructions.
Except as discussed below, if this Certificate constitutes a
Regulation S Global Certificate, then beneficial interests in this Certificate
shall not be transferred to any Person other than a non-United States Securities
Person who takes delivery in the form of a beneficial interest in this
Certificate, and the Certificate Owner desiring to effect such transfer shall be
required to obtain from such Certificate Owner's prospective Transferee a
certification substantially in the form attached as Exhibit F-2D to the
Agreement. On or prior to the Release Date, beneficial interests in any
Regulation S Global Certificate may be held only through Euroclear or
Clearstream. After the Release Date, beneficial interests in any Regulation S
Global Certificate may be held through Euroclear, Clearstream or any other
direct account holder at DTC.
Notwithstanding the preceding paragraph, if this Certificate
constitutes a Regulation S Global Certificate, then interests in this
Certificate may be transferred (without delivery of any certificate described in
the preceding paragraph) to any Person who takes delivery in the form of a
beneficial interest in the Rule 144A Global Certificate for the same Class as
this Regulation S Global Certificate upon delivery to the Certificate Registrar
and the Trustee of (i) a certificate from the Certificate Owner desiring to
effect such transfer substantially in the form attached as Exhibit F-1C to the
Agreement and a certificate from such Certificate Owner's prospective Transferee
substantially in the form attached as Exhibit F-2C to the Agreement and (ii)
such written orders and instructions as are required under the applicable
procedures of the Depository, Clearstream and/or Euroclear to direct the Trustee
to debit the account of a Depository Participant by a denomination of interests
in this Regulation S Global Certificate, and credit the account of a Depository
Participant by a denomination of interests in such Rule 144A Global Certificate,
that is equal to the denomination of beneficial interests to be transferred.
Upon delivery to the Trustee of such certifications and such orders and
instructions, the Trustee, subject to and in accordance with the applicable
procedures of the Depository, shall reduce the denomination of this Regulation S
Global Certificate, and increase the denomination of the related Rule 144A
Global Certificate, by the denomination of the beneficial interest in such Class
specified in such orders and instructions.
Notwithstanding the foregoing, any interest in a Global Certificate
may be transferred by any Certificate Owner holding such interest to any Person
who takes delivery in the form of a Definitive Certificate of the same Class as
such Global Certificate upon delivery to the Certificate Registrar and the
Trustee of (i) such certifications and/or opinions as are contemplated above
with respect to transfers of this Certificate in definitive form and (ii) such
written orders and instructions as are required under the applicable procedures
of the Depository, Clearstream and/or Euroclear to direct the Trustee to debit
the account of a Depository Participant by a denomination of interests in such
Global Certificate. Upon delivery to the Certificate Registrar of the
certifications and/or opinions contemplated above with respect to transfers of
this Certificate in definitive form, the Trustee, subject to and in accordance
with the applicable procedures of the Depository, shall reduce the denomination
of the subject Global Certificate, and cause a Definitive Certificate of the
same Class as such Global Certificate, and in a denomination equal to the
reduction in the denomination of such Global Certificate, to be executed,
authenticated and delivered in accordance with this Agreement to the applicable
Transferee.
The Global Certificates shall be deposited with the Trustee as
custodian for DTC and registered in the name of Cede & Co. as nominee of DTC.
None of the Depositor, the Trustee or the Certificate Registrar is
obligated to register or qualify the Class [F] [G] [H] [J] [K] [L] [M] [N] [O]
[P] Certificates under the Securities Act or any other securities law or to take
any action not otherwise required under the Agreement to permit the transfer of
this Certificate or any interest herein without registration or qualification.
Any Certificateholder or Certificate Owner desiring to effect a transfer of this
Certificate or any interest herein shall, and does hereby agree to, indemnify
the Depositor, CSFB Corporation, the Trustee, the General Master Servicer, the
NCBFSB Master Servicer, the General Special Servicer, the Co-op Special
Servicer, any Fiscal Agent and the Certificate Registrar against any liability
that may result if the transfer is not so exempt or is not made in accordance
with such federal and state laws or the provisions described in the preceding
paragraphs.
No transfer of this Certificate or any interest herein shall be made
(A) to any retirement plan or other employee benefit plan or arrangement,
including individual retirement accounts and annuities, Xxxxx plans and
collective investment funds and separate accounts in which such plans, accounts
or arrangements are invested, including insurance company general accounts, that
is subject to ERISA or Section 4975 of the Code (each, a "Plan"), or (B) to any
Person who is directly or indirectly purchasing this Certificate or any interest
herein on behalf of, as named fiduciary of, as trustee of, or with assets of a
Plan, if the purchase and holding of this Certificate or such interest herein by
the prospective Transferee would result in a violation of Section 406 or 407 of
ERISA or Section 4975 of the Code or would result in the imposition of an excise
tax under Section 4975 of the Code. Except in limited circumstances, the
Certificate Registrar shall refuse to register the transfer of this Certificate
(and, if applicable, any Certificate Owner shall refuse to transfer an interest
in this Certificate), unless it has received from the prospective Transferee
either (i) a certification to the effect that such prospective Transferee is not
a Plan and is not directly or indirectly purchasing this Certificate on behalf
of, as named fiduciary of, as trustee of, or with assets of a Plan; or (ii) a
certification to the effect that the purchase and holding of this Certificate by
such prospective Transferee is exempt from the prohibited transaction provisions
of Section 406 and 407 of ERISA and Section 4975 of the Code by reason of
Sections I and III of Prohibited Transaction Class Exemption 95-60; or (iii) if
this Certificate is rated investment grade by at least one of the Rating
Agencies and is being acquired by, on behalf of or with assets of a Plan in
reliance upon Prohibited Transaction Exemption 89-90, a certification to the
effect that such Plan (X) is an accredited investor as defined in Rule 501(a)(1)
of Regulation D of the Securities Act, (Y) is not sponsored (within the meaning
of Section 3(16)(B) of ERISA) by the Trustee, the Depositor, any Fiscal Agent,
any Mortgage Loan Seller, any Exemption-Favored Party, the General Master
Servicer, the NCBFSB Master Servicer, the General Special Servicer, the Co-op
Special Servicer, any Sub-Servicer or any Borrower with respect to Mortgage
Loans constituting more than 5% of the aggregate unamortized principal of all
the Mortgage Loans determined as of the Closing Date, or by an Affiliate of any
such Person, and (Z) agrees that it will obtain from each of its Transferees a
written representation that such Transferee, if a Plan, satisfies the
requirements of the immediately preceding clauses (iii)(X) and (iii)(Y),
together with a written agreement that such Transferee will obtain from each of
its Transferees that are Plans a similar written representation regarding
satisfaction of the requirements of the immediately preceding clauses (iii)(X)
and (iii)(Y); or (iv) a certification of facts and an Opinion of Counsel which
otherwise establish to the reasonable satisfaction of the Certificate Registrar
(or, if applicable, the Certificate Owner effecting the transfer) that such
transfer will not result in a violation of Section 406 or 407 of ERISA or
Section 4975 of the Code or result in the imposition of an excise tax under
Section 4975 of the Code.
If a Person is acquiring this Certificate as a fiduciary or agent
for one or more accounts, such Person shall be required to deliver to the
Certificate Registrar a certification to the effect that, and such other
evidence as may be reasonably required by the Trustee to confirm that, it has
(i) sole investment discretion with respect to each such account and (ii) full
power to make the acknowledgments, representations, warranties, certifications
and/or agreements with respect to each such account described above in this
Certificate.
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 Certificates of the same
Class 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 this Certificate, but the Trustee or the Certificate Registrar
may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of this
Certificate.
[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, and accordingly, this
Certificate shall constitute a Book-Entry Certificate.]
The Depositor, the General Master Servicer, the NCBFSB Master
Servicer, the General Special Servicer, the Co-op Special Servicer, the Trustee,
any Fiscal Agent, the Certificate Registrar and any agent of the Depositor, the
General Master Servicer, the NCBFSB Master Servicer, the General Special
Servicer, the Co-op Special Servicer, the Trustee, any Fiscal Agent or the
Certificate Registrar may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and none of the Depositor, the
General Master Servicer, the NCBFSB Master Servicer, the General Special
Servicer, the Co-op Special Servicer, the Trustee, any Fiscal Agent, the
Certificate Registrar or any such agent shall be affected by notice to the
contrary.
Subject to certain terms and conditions set forth in the Agreement,
the Trust Fund and the obligations created by the Agreement shall terminate upon
distribution (or provision for distribution) to the Certificateholders of all
amounts held by or on behalf of the Trustee and required to be distributed to
them pursuant to the Agreement following the earlier of (i) the final payment or
other liquidation (or any advance with respect thereto) of the last Mortgage
Loan or REO Property remaining in the Trust Fund, (ii) the purchase by the
NCBFSB Master Servicer, the Co-op Special Servicer, the General Master Servicer,
the General Special Servicer, or any single Controlling Class Certificateholder
or group of Controlling Class Certificateholders, at a price determined as
provided in the Agreement, of all the Mortgage Loans and each REO Property
remaining in the Trust Fund and (iii) the acquisition by the Sole
Certificateholder(s) of all the Mortgage Loans and each REO Property remaining
in the Trust in exchange for all the Certificates. The Agreement permits, but
does not require, the NCBFSB Master Servicer, the Co-op Special Servicer, the
General Master Servicer, the General Special Servicer, or any single Controlling
Class Certificateholder or group of Controlling Class Certificateholders to
purchase from the Trust Fund all the Mortgage Loans and each REO Property
remaining therein. The exercise of such right may effect early retirement of the
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
1.0% of the Initial Net Pool Balance.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the General Master Servicer, the NCBFSB Master Servicer, the General
Special Servicer, the Co-op Special Servicer, the Trustee and any Fiscal Agent
and the rights of the Certificateholders under the Agreement at any time by the
Depositor, the General Master Servicer, the NCBFSB Master Servicer, the General
Special Servicer, the Co-op Special Servicer, the Trustee and any Fiscal Agent
with the consent of the Holders of Certificates entitled to not less than 51% of
the Voting Rights allocated to all of the Classes materially affected by the
amendment. 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 any REMIC Pool as a REMIC, without the consent of the Holders of any
of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the laws of
the State of New York applicable to agreements negotiated, made and to be
performed entirely in said State, and the obligations, rights and remedies of
the Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
XXXXX FARGO BANK MINNESOTA, N.A.
as Trustee
By:
-----------------------------------------
Authorized Representative
CERTIFICATE OF AUTHENTICATION
This is one of the Class [F] [G] [H] [J] [K] [L] [M] [N] [O] [P]
Certificates referred to in the within-mentioned Agreement.
Dated:
XXXXX FARGO BANK MINNESOTA, N.A.
as Certificate Registrar
By:
-----------------------------------------
Authorized Representative
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
________________________________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
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 Mortgage Pass-Through
Certificate to the following address:___________________________________________
________________________________________________________________________________
Dated:
_____________________________________
Signature by or on behalf of Assignor
_____________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds,
to_______________________________________ for the account
of__________________________________________________________________.
Distributions made by check (such check to be made payable to
___________________________) and all applicable statements and notices should be
mailed to
_______________________________________________________________________________.
This information is provided by____________________________________,
the Assignee named above, or___________________________________________________,
as its agent.
EXHIBIT A-4
FORM OF CLASS V CERTIFICATES
CLASS V COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE, SERIES 2003-C3
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire 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
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
Closing Date: June 27, 2003 Percentage Interest evidenced by this
Class V Certificate: ______%
First Distribution Date: July 17, 2003
General Master Servicer: Aggregate Stated Principal Balance of the
KeyCorp Real Estate Capital Markets, Inc. Mortgage Loans as of the Closing Date
("Initial Net Pool Balance"):
$1,724,825,640
General Special Servicer:
ARCap Servicing, Inc.
NCBFSB Master Servicer: Trustee:
NCB, FSB Xxxxx Fargo Bank Minnesota, N.A.
Co-op Special Servicer:
National Consumer Cooperative Bank
Certificate No. V-___ CUSIP No.: ______________________
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, PLEDGE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE OR ANY
INTEREST HEREIN WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A
TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH
IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE (A) TO ANY
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT THAT IS SUBJECT TO
THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR
(B) TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR
SUCH INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH
ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR
ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN CREDIT
SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP., XXXXX FARGO BANK MINNESOTA, N.A.,
KEYCORP REAL ESTATE CAPITAL MARKETS, INC., ARCAP SERVICING, INC., NCB, FSB,
NATIONAL CONSUMER COOPERATIVE BANK, OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR ANY OF THE UNDERLYING MORTGAGE LOANS IS GUARANTEED
BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS ENTITLED ONLY TO CERTAIN ADDITIONAL INTEREST (IF ANY)
RECEIVED IN RESPECT OF THE ARD LOANS, SUBJECT TO THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
This certifies that __________________ is the registered owner of
the Percentage Interest evidenced by this Certificate (as specified above) in
that certain beneficial ownership interest in the Trust Fund evidenced by all
the Class V Certificates. The Trust Fund was created and the Certificates were
issued pursuant to a Pooling and Servicing Agreement, dated as of June 1, 2003
(the "Agreement"), among Credit Suisse First Boston Mortgage Securities Corp. as
depositor (the "Depositor", which term includes any successor entity under the
Agreement), KeyCorp Real Estate Capital Markets, Inc., as general master
servicer (in such capacity, the "General Master Servicer", which term includes
any successor entity under the Agreement), ARCap Servicing, Inc., as general
special servicer (in such capacity, the "General Special Servicer", which term
includes any successor entity under the Agreement), NCB, FSB, as NCBFSB master
servicer (in such capacity, the "NCBFSB Master Servicer", which term includes
any successor entity under the Agreement), National Consumer Cooperative Bank,
as co-op special servicer (in such capacity, the "Co-op Special Servicer", which
term includes any successor entity under the Agreement), and Xxxxx Fargo Bank
Minnesota, N.A., as trustee (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, capitalized
terms used herein have the respective meanings assigned thereto 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 its acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, beginning on the First
Distribution Date specified above, distributions will be made on that date (the
"Distribution Date") each month that is the fourth Business Day following the
Determination Date in such month, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed to all the Holders of the
Class V Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on this Certificate will
be made by the Trustee by wire transfer of immediately available funds to the
account of the Person entitled thereto at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have provided
the Trustee with wiring instructions no later than 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 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.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Distribution Account, the Collection Accounts
and, if established, the REO Accounts 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.
This Certificate is issuable in fully registered form only without
coupons. As provided in the Agreement and subject to certain limitations therein
set forth, this Certificate is exchangeable for new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest, as requested by the Holder surrendering the same.
No transfer, sale, pledge or other disposition of this Certificate
or any interest herein shall be made unless that transfer, sale, pledge or other
disposition is exempt from the registration and/or qualification requirements of
the Securities Act and any applicable state securities laws, or is otherwise
made in accordance with the Securities Act and such state securities laws. If a
transfer of this Certificate is to be made without registration under the
Securities Act, then (except under the limited circumstances specified in the
Agreement) the Certificate Registrar shall refuse to register such transfer
unless it receives (and, upon receipt, may conclusively rely upon) either: (i) a
certificate from the Certificateholder desiring to effect such transfer
substantially in the form attached as Exhibit F-1A to the Agreement; or (ii) a
certificate from the Certificateholder desiring to effect such transfer
substantially in the form attached as Exhibit F-1B to the Agreement and a
certificate from such Certificateholder's prospective Transferee substantially
in the form attached either as Exhibit F-2A or as Exhibit F-2B to the Agreement;
or (iii) an Opinion of Counsel satisfactory to the Trustee to the effect that
such transfer may be made without registration under the Securities Act (which
Opinion of Counsel shall not be an expense of the Trust or of the Depositor, the
General Master Servicer, the NCBFSB Master Servicer, the General Special
Servicer, the Co-op Special Servicer, the Trustee, any Fiscal Agent 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. Any Certificateholder desiring to effect a transfer, sale, pledge or
other disposition of this Certificate or any interest herein shall, and does
hereby agree to, indemnify the Depositor, Credit Suisse First Boston
Corporation, the Trustee, any Fiscal Agent, the General Master Servicer, the
NCBFSB Master Servicer, the General Special Servicer, the Co-op Special
Servicer, and the Certificate Registrar against any liability that may result if
such transfer, sale, pledge or other disposition is not exempt from the
registration and/or qualification requirements of the Securities Act and any
applicable state securities laws or is not made in accordance with such federal
and state laws.
No transfer of this Certificate or any interest herein shall be made
(A) to any retirement plan or other employee benefit plan or arrangement,
including individual retirement accounts and annuities, Xxxxx plans and
collective investment funds and separate accounts in which such plans, accounts
or arrangements are invested, including insurance company general accounts, that
is subject to ERISA or Section 4975 of the Code (each, a "Plan"), or (B) to any
Person who is directly or indirectly purchasing this Certificate or any interest
herein on behalf of, as named fiduciary of, as trustee of, or with assets of a
Plan, if the purchase and holding of this Certificate or such interest herein by
the prospective Transferee would result in a violation of Section 406 or 407 of
ERISA or Section 4975 of the Code or would result in the imposition of an excise
tax under Section 4975 of the Code. Except in limited circumstances, the
Certificate Registrar shall refuse to register the transfer of this Certificate
unless it has received from the prospective Transferee either (i) a
certification to the effect that such prospective Transferee is not a Plan and
is not directly or indirectly purchasing this Certificate on behalf of, as named
fiduciary of, as trustee of, or with assets of a Plan; or (ii) a certification
of facts and an Opinion of Counsel which otherwise establish to the reasonable
satisfaction of the Trustee that such transfer will not result in a violation of
Section 406 or 407 of ERISA or Section 4975 of the Code or result in the
imposition of an excise tax under Section 4975 of the Code.
If a Person is acquiring this Certificate as a fiduciary or agent
for one or more accounts, such Person shall be required to deliver to the
Certificate Registrar a certification to the effect that, and such other
evidence as may be reasonably required by the Trustee to confirm that, it has
(i) sole investment discretion with respect to each such account and (ii) full
power to make the acknowledgments, representations, warranties, certifications
and/or agreements with respect to each such account described above in this
Certificate.
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 Certificates of the same
Class 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 this Certificate, but the Trustee or the Certificate Registrar
may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of this
Certificate.
The Depositor, the General Master Servicer, the NCBFSB Master
Servicer, the General Special Servicer, the Co-op Special Servicer, the Trustee,
any Fiscal Agent, the Certificate Registrar and any agent of the Depositor, the
General Master Servicer, the NCBFSB Master Servicer, the General Special
Servicer, the Co-op Special Servicer, the Trustee, any Fiscal Agent or the
Certificate Registrar may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and none of the Depositor, the
General Master Servicer, the NCBFSB Master Servicer, the General Special
Servicer, the Co-op Special Servicer, the Trustee, any Fiscal Agent, the
Certificate Registrar or any such agent shall be affected by notice to the
contrary.
Subject to certain terms and conditions set forth in the Agreement,
the Trust Fund and the obligations created by the Agreement shall terminate upon
distribution (or provision for distribution) to the Certificateholders of all
amounts held by or on behalf of the Trustee and required to be distributed to
them pursuant to the Agreement following the earlier of (i) the final payment or
other liquidation (or any advance with respect thereto) of the last Mortgage
Loan or REO Property remaining in the Trust Fund, (ii) the purchase by the
NCBFSB Master Servicer, the Co-op Special Servicer, the General Master Servicer,
the General Special Servicer, or any single Controlling Class Certificateholder
or group of Controlling Class Certificateholders, at a price determined as
provided in the Agreement, of all the Mortgage Loans and each REO Property
remaining in the Trust Fund and (iii) the acquisition by the Sole
Certificateholder(s) of all the Mortgage Loans and each REO Property remaining
in the Trust Fund in exchange for all the Certificates. The Agreement permits,
but does not require, the NCBFSB Master Servicer, the Co-op Special Servicer,
the General Master Servicer, the General Special Servicer, or any single
Controlling Class Certificateholder or group of Controlling Class
Certificateholders to purchase from the Trust Fund all the Mortgage Loans and
each REO Property remaining therein. The exercise of such right may effect early
retirement of the 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 1.0% of the Initial Net Pool Balance.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the General Master Servicer, the NCBFSB Master Servicer, the General
Special Servicer, the Co-op Special Servicer, the Trustee and any Fiscal Agent
and the rights of the Certificateholders under the Agreement at any time by the
Depositor, the General Master Servicer, the NCBFSB Master Servicer, the General
Special Servicer, the Co-op Special Servicer, the Trustee and any Fiscal Agent
with the consent of the Holders of Certificates entitled to not less than 51% of
the Voting Rights allocated to all of the Classes materially affected by the
amendment. 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 any REMIC Pool as a REMIC, without the consent of the Holders of any
of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the laws of
the State of New York applicable to agreements negotiated, made and to be
performed entirely in said State, and the obligations, rights and remedies of
the Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
XXXXX FARGO BANK MINNESOTA, N.A.
as Trustee
By:
-----------------------------------------
Authorized Representative
CERTIFICATE OF AUTHENTICATION
This is one of the Class V Certificates referred to in the
within-mentioned Agreement.
Dated:
XXXXX FARGO BANK MINNESOTA, N.A.
as Certificate Registrar
By:
-----------------------------------------
Authorized Representative
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
________________________________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
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 Mortgage Pass-Through
Certificate to the following address:___________________________________________
________________________________________________________________________________
Dated:
_____________________________________
Signature by or on behalf of Assignor
_____________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds,
to_______________________________________ for the account
of__________________________________________________________________.
Distributions made by check (such check to be made payable to
___________________________) and all applicable statements and notices should be
mailed to
_______________________________________________________________________________.
This information is provided by____________________________________,
the Assignee named above, or___________________________________________________,
as its agent.
EXHIBIT A-5
FORM OF CLASS R CERTIFICATES
CLASS R COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE, SERIES 2003-C3
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire 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
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
Closing Date: June 27, 2003 Percentage Interest evidenced by this
Class R Certificate: ___%
First Distribution Date: July 17, 2003
General Master Servicer: Aggregate Stated Principal Balance of the
KeyCorp Real Estate Capital Markets, Inc. Mortgage Loans as of the Closing Date
("Initial Net Pool Balance"):
$1,724,825,640
General Special Servicer:
ARCap Servicing, Inc.
NCBFSB Master Servicer: Trustee:
NCB, FSB Xxxxx Fargo Bank Minnesota, N.A.
Co-op Special Servicer:
National Consumer Cooperative Bank
Certificate No. R-___ CUSIP No.: __________________
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, PLEDGE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE OR ANY
INTEREST HEREIN WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A
TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH
IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE (A) TO ANY
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT THAT IS SUBJECT TO
THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR
(B) TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR
SUCH INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH
ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR
ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN CREDIT
SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP., XXXXX FARGO BANK MINNESOTA, N.A.,
KEYCORP REAL ESTATE CAPITAL MARKETS, INC., ARCAP SERVICING, INC., NCB, FSB,
NATIONAL CONSUMER COOPERATIVE BANK, OR ANY OF THEIR RESPECTIVE AFFILIATES.
NEITHER THIS CERTIFICATE NOR ANY OF THE UNDERLYING MORTGAGE LOANS IS GUARANTEED
BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED STATES OR ANY OTHER PERSON.
THIS CERTIFICATE IS SUBORDINATE TO ONE OR MORE CLASSES OF CERTIFICATES OF THE
SAME SERIES AS AND TO THE EXTENT DESCRIBED IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE EVIDENCES
OWNERSHIP OF THE "RESIDUAL INTEREST" IN MULTIPLE "REAL ESTATE MORTGAGE
INVESTMENT CONDUITS" (EACH A "REMIC") AS THOSE TERMS ARE DEFINED, RESPECTIVELY,
IN SECTIONS 860G AND 860D OF THE CODE. CONSEQUENTLY, TRANSFER OF THIS
CERTIFICATE IS ALSO SUBJECT TO THE ADDITIONAL TAX RELATED TRANSFER RESTRICTIONS
DESCRIBED HEREIN. IF ANY PERSON BECOMES THE REGISTERED HOLDER OF THIS
CERTIFICATE IN VIOLATION OF SUCH TRANSFER RESTRICTIONS, SUCH REGISTRATION SHALL
BE DEEMED TO BE OF NO LEGAL FORCE OR EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT
BE DEEMED TO BE A CERTIFICATEHOLDER FOR ANY PURPOSE HEREUNDER OR UNDER THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN, INCLUDING, BUT NOT LIMITED
TO, THE RECEIPT OF DISTRIBUTIONS, IF ANY, ON THIS CERTIFICATE.
This certifies that __________________ is the registered owner of
the Percentage Interest evidenced by this Certificate (as specified above) in
that certain beneficial ownership interest in the Trust Fund evidenced by all
the Class R Certificates. The Trust Fund was created and the Certificates were
issued pursuant to a Pooling and Servicing Agreement, dated as of June 1, 2003
(the "Agreement"), among Credit Suisse First Boston Mortgage Securities Corp. as
depositor (the "Depositor", which term includes any successor entity under the
Agreement), KeyCorp Real Estate Capital Markets, Inc., as general master
servicer (in such capacity, the "General Master Servicer", which term includes
any successor entity under the Agreement), ARCap Servicing, Inc., as general
special servicer (in such capacity, the "General Special Servicer", which term
includes any successor entity under the Agreement), NCB, FSB, as NCBFSB master
servicer (in such capacity, the "NCBFSB Master Servicer", which term includes
any successor entity under the Agreement), National Consumer Cooperative Bank,
as co-op special servicer (in such capacity, the "Co-op Special Servicer", which
term includes any successor entity under the Agreement), and Xxxxx Fargo Bank
Minnesota, N.A., as trustee (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, capitalized
terms used herein have the respective meanings assigned thereto 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 its acceptance hereof assents and by which such
Holder is bound.
Pursuant to the terms of the Agreement, beginning on the First
Distribution Date specified above, distributions will be made on that date (the
"Distribution Date") each month that is the fourth Business Day following the
Determination Date in such month, to the Person in whose name this Certificate
is registered at the close of business on the last Business Day of the month
immediately preceding the month of such distribution (the "Record Date"), in an
amount equal to the product of the Percentage Interest evidenced by this
Certificate and the amount required to be distributed to all the Holders of the
Class R Certificates on the applicable Distribution Date pursuant to the
Agreement. All distributions made under the Agreement on this Certificate will
be made by the Trustee by wire transfer of immediately available funds to the
account of the Person entitled thereto at a bank or other entity having
appropriate facilities therefor, if such Certificateholder shall have provided
the Trustee with wiring instructions no later than 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 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.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Distribution Account, the Collection Accounts
and, if established, the REO Accounts 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.
This Certificate is issuable in fully registered form only without
coupons. As provided in the Agreement and subject to certain limitations therein
set forth, this Certificate is exchangeable for new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest, as requested by the Holder surrendering the same.
No transfer, sale, pledge or other disposition of this Certificate
or any interest herein shall be made unless that transfer, sale, pledge or other
disposition is exempt from the registration and/or qualification requirements of
the Securities Act and any applicable state securities laws, or is otherwise
made in accordance with the Securities Act and such state securities laws. If a
transfer of this Certificate is to be made without registration under the
Securities Act, then (except under the limited circumstances specified in the
Agreement) the Certificate Registrar shall refuse to register such transfer
unless it receives (and, upon receipt, may conclusively rely upon) either: (i) a
certificate from the Certificateholder desiring to effect such transfer
substantially in the form attached as Exhibit F-1A to the Agreement; or (ii) a
certificate from the Certificateholder desiring to effect such transfer
substantially in the form attached as Exhibit F-1B to the Agreement and a
certificate from such Certificateholder's prospective Transferee substantially
in the form attached either as Exhibit F-2A or as Exhibit F-2B to the Agreement;
or (iii) an Opinion of Counsel satisfactory to the Trustee to the effect that
such transfer may be made without registration under the Securities Act (which
Opinion of Counsel shall not be an expense of the Trust or of the Depositor, the
General Master Servicer, the NCBFSB Master Servicer, the General Special
Servicer, the Co-op Special Servicer, the Trustee, any Fiscal Agent 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. Any Certificateholder desiring to effect a transfer, sale, pledge or
other disposition of this Certificate or any interest herein shall, and does
hereby agree to, indemnify the Depositor, Credit Suisse First Boston
Corporation, the Trustee, any Fiscal Agent, the General Master Servicer, the
NCBFSB Master Servicer, the General Special Servicer, the Co-op Special
Servicer, and the Certificate Registrar against any liability that may result if
such transfer, sale, pledge or other disposition is not exempt from the
registration and/or qualification requirements of the Securities Act and any
applicable state securities laws or is not made in accordance with such federal
and state laws.
No transfer of this Certificate or any interest herein shall be made
(A) to any retirement plan or other employee benefit plan or arrangement,
including individual retirement accounts and annuities, Xxxxx plans and
collective investment funds and separate accounts in which such plans, accounts
or arrangements are invested, including insurance company general accounts, that
is subject to ERISA or Section 4975 of the Code (each, a "Plan"), or (B) to any
Person who is directly or indirectly purchasing this Certificate or any interest
herein on behalf of, as named fiduciary of, as trustee of, or with assets of a
Plan, if the purchase and holding of this Certificate or such interest herein by
the prospective Transferee would result in a violation of Section 406 or 407 of
ERISA or Section 4975 of the Code or would result in the imposition of an excise
tax under Section 4975 of the Code. Except in limited circumstances, the
Certificate Registrar shall refuse to register the transfer of this Certificate
unless it has received from the prospective Transferee either: (i) a
certification to the effect that such prospective Transferee is not a Plan and
is not directly or indirectly purchasing this Certificate on behalf of, as named
fiduciary of, as trustee of, or with assets of a Plan; or (ii) a certification
of facts and an Opinion of Counsel which otherwise establish to the reasonable
satisfaction of the Trustee that such transfer will not result in a violation of
Section 406 or 407 of ERISA or Section 4975 of the Code or result in the
imposition of an excise tax under Section 4975 of the Code.
Each Person who has or who acquires any Ownership Interest in this
Certificate shall be deemed by its acceptance or acquisition of such Ownership
Interest to have agreed to be bound by the provisions of Section 5.02(d) of the
Agreement and, if any purported Transferee shall become a Holder of this
Certificate in violation of the provisions of such Section 5.02(d), to have
irrevocably authorized the Trustee (i) to deliver payments to a Person other
than such Person and (ii) to negotiate the terms of any mandatory disposition,
to execute all instruments of Transfer and to do all other things necessary in
connection with any such disposition. Each Person holding or acquiring any
Ownership Interest in this Certificate must be a Permitted Transferee and shall
promptly notify the Trustee of any change or impending change in its status as a
Permitted Transferee. In connection with any proposed Transfer of any Ownership
Interest in this Certificate, the Certificate Registrar shall require delivery
to it, and shall not register the Transfer of this Certificate until its receipt
of, an affidavit and agreement substantially in the form attached as Exhibit H-1
to the Agreement (a "Transfer Affidavit and Agreement") from the proposed
Transferee, representing and warranting, among other things, that such
Transferee is a Permitted Transferee, that it is not acquiring its Ownership
Interest in this Certificate as a nominee, trustee or agent for any Person that
is not a Permitted Transferee, that for so long as it retains its Ownership
Interest in this Certificate, it will endeavor to remain a Permitted Transferee,
and that it has reviewed the provisions of Section 5.02(d) of the Agreement and
agrees to be bound by them. Notwithstanding the delivery of a Transfer Affidavit
and Agreement by a proposed Transferee, if a Responsible Officer of either the
Certificate Registrar or Trustee has actual knowledge that the proposed
Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest
in this Certificate to such proposed Transferee shall be effected. In connection
therewith, the Certificate Registrar shall not register the transfer of an
Ownership Interest in this Certificate to any entity classified as a partnership
under the Code unless at the time of transfer, all of its beneficial owners are
United States Persons.
Each Person holding or acquiring any Ownership Interest in this
Certificate shall agree (x) to require a Transfer Affidavit and Agreement from
any other Person to whom such Person attempts to transfer its Ownership Interest
herein and (y) not to transfer its Ownership Interest herein unless it provides
to the Certificate Registrar a certificate substantially in the form attached as
Exhibit H-2 to the Agreement stating that, among other things, it has no actual
knowledge that such other Person is not a Permitted Transferee. Each Person
holding or acquiring an Ownership Interest in this Certificate, by purchasing
such Ownership Interest herein, agrees to give the Trustee written notice that
it is a "pass-through interest holder" within the meaning of temporary Treasury
regulation Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring such Ownership
Interest, if it is, or is holding such Ownership Interest on behalf of, a
"pass-through interest holder".
The provisions of Section 5.02(d) of the Agreement may be modified,
added to or eliminated, provided that there shall have been delivered to the
Trustee 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 result in an Adverse Rating Event with respect to any Class of Rated
Certificates; and (b) an Opinion of Counsel, in form and substance satisfactory
to the Trustee, to the effect that such modification of, addition to or
elimination of such provisions will not cause any REMIC Pool to cease to qualify
as a REMIC or be subject to an entity-level tax caused by the Transfer of a
Class R Certificate to a Person that is not a Permitted Transferee, or cause a
Person other than the prospective Transferee to be subject to a REMIC-related
tax caused by the Transfer of a Class R Certificate to a Person that is not a
Permitted Transferee.
A "Permitted Transferee" is any Transferee other than a
"Disqualified Organization" and a "Non-United States Tax Person". In addition,
if such Transferee is classified as a partnership under the Code, such
Transferee can only be a "Permitted Transferee" if, among other things, all of
its beneficial owners are United States Tax Persons.
A "Disqualified Organization" is any of (i) the United States or a
possession thereof, any State or 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
Xxxxxxx Mac, a majority of its board of directors is not selected by such
governmental unit), (ii) a foreign government, international organization, or
any agency or instrumentality of any of the foregoing, (iii) any organization
(other than certain farmers' cooperatives described in Section 521 of the Code)
which is exempt from the tax imposed by Chapter 1 of the Code (unless such
organization is subject to the tax imposed by Section 511 of the Code on
unrelated business taxable income), (iv) rural electric and telephone
cooperatives described in Section 1381 of the Code and (v) any other Person so
designated by the Trustee based upon an Opinion of Counsel that the holding of
an Ownership Interest in a Class R Certificate by such Person may cause the
Trust or any Person having an Ownership Interest in any Class of Certificates
(other than such Person) to incur a liability for any federal tax imposed under
the Code that would not otherwise be imposed but for the Transfer of an
Ownership Interest in a Class R Certificate to such Person. The terms "United
States", "State" and "international organization" shall have the meanings set
forth in Section 7701 of the Code or successor provisions.
A "Non-United States Tax Person" is any Person (i) other than a
United States Tax Person or (ii) a United States Tax Person with respect to whom
income from this Certificate is attributable 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 Tax Person. A "United States
Tax Person" is a citizen or resident of the United States, a corporation,
partnership or other entity created or organized in, or under the laws of, the
United States or any State thereof or the District of Columbia, or an estate
whose income from sources without the United States is includible in gross
income for United States federal income tax purposes regardless of its
connection with the conduct of a trade or business within the United States, 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.
If a Person is acquiring this Certificate as a fiduciary or agent
for one or more accounts, such Person shall be required to deliver to the
Certificate Registrar a certification to the effect that, and such other
evidence as may be reasonably required by the Trustee to confirm that, it has
(i) sole investment discretion with respect to each such account and (ii) full
power to make the acknowledgments, representations, warranties, certifications
and/or agreements with respect to each such account described above in this
Certificate.
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 Certificates of the same
Class 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 this Certificate, but the Trustee or the Certificate Registrar
may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of this
Certificate.
The Depositor, the General Master Servicer, the NCBFSB Master
Servicer, the General Special Servicer, the Co-op Special Servicer, the Trustee,
any Fiscal Agent, the Certificate Registrar and any agent of the Depositor, the
General Master Servicer, the NCBFSB Master Servicer, the General Special
Servicer, the Co-op Special Servicer, the Trustee, any Fiscal Agent or the
Certificate Registrar may treat the Person in whose name this Certificate is
registered as the owner hereof for all purposes, and none of the Depositor, the
General Master Servicer, the NCBFSB Master Servicer, the General Special
Servicer, the Co-op Special Servicer, the Trustee, any Fiscal Agent, the
Certificate Registrar or any such agent shall be affected by notice to the
contrary.
Subject to certain terms and conditions set forth in the Agreement,
the Trust Fund and the obligations created by the Agreement shall terminate upon
distribution (or provision for distribution) to the Certificateholders of all
amounts held by or on behalf of the Trustee and required to be distributed to
them pursuant to the Agreement following the earlier of (i) the final payment or
other liquidation (or any advance with respect thereto) of the last Mortgage
Loan or REO Property remaining in the Trust Fund, (ii) the purchase by the
NCBFSB Master Servicer, the Co-op Special Servicer, the General Master Servicer,
the General Special Servicer, or any single Controlling Class Certificateholder
or group of Controlling Class Certificateholders, at a price determined as
provided in the Agreement, of all the Mortgage Loans and each REO Property
remaining in the Trust Fund and (iii) the acquisition by the Sole
Certificateholder(s) of all the Mortgage Loans and each REO Property remaining
in the Trust Fund in exchange for all of the Certificates. The Agreement
permits, but does not require, the NCBFSB Master Servicer, the Co-op Special
Servicer, the General Master Servicer, the General Special Servicer, or any
single Controlling Class Certificateholder or group of Controlling Class
Certificateholders to purchase from the Trust Fund all the Mortgage Loans and
each REO Property remaining therein. The exercise of such right will effect
early retirement of the 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 1.0% of the Initial Net Pool Balance.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Depositor, the General Master Servicer, the NCBFSB Master Servicer, the General
Special Servicer, the Co-op Special Servicer, the Trustee and any Fiscal Agent
and the rights of the Certificateholders under the Agreement at any time by the
Depositor, the General Master Servicer, the NCBFSB Master Servicer, the General
Special Servicer, the Co-op Special Servicer, the Trustee and any Fiscal Agent
with the consent of the Holders of Certificates entitled to not less than 51% of
the Voting Rights allocated to all of the Classes materially affected by the
amendment. 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 any REMIC Pool as a REMIC, without the consent of the Holders of any
of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust Fund (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the laws of
the State of New York applicable to agreements negotiated, made and to be
performed entirely in said State, and the obligations, rights and remedies of
the Holder hereof shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
XXXXX FARGO BANK MINNESOTA, N.A.
as Trustee
By:
-----------------------------------------
Authorized Representative
CERTIFICATE OF AUTHENTICATION
This is one of the Class R Certificates referred to in the
within-mentioned Agreement.
Dated:
XXXXX FARGO BANK MINNESOTA, N.A.
as Certificate Registrar
By:
-----------------------------------------
Authorized Representative
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
________________________________________________________________________________
(please print or typewrite name and address including postal zip code of
assignee)
the beneficial ownership interest in the Trust Fund evidenced by the within
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 Mortgage Pass-Through
Certificate to the following address:___________________________________________
________________________________________________________________________________
Dated:
_____________________________________
Signature by or on behalf of Assignor
_____________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds,
to_______________________________________ for the account
of__________________________________________________________________.
Distributions made by check (such check to be made payable to
___________________________) and all applicable statements and notices should be
mailed to
_______________________________________________________________________________.
This information is provided by____________________________________,
the Assignee named above, or___________________________________________________,
as its agent.
EXHIBIT A-6
FORM OF CLASS 622[-A][-B][-C][-D][-E][-F] PARTICIPATION CERTIFICATE
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2003-C3
Class 622[-A][-B][-C][-D][-E][-F] Participation Certificate
Pass-Through Rate Class: Variable [Initial Certificate Principal
Balance:
[622-A: $2,534,000]
[622-B: $6,010,000]
[622-C: $6,009,000]
[622-D: $6,010,000]
[622-E: $17,836,000]
[622-F: $1,601,000]
[CUSIP No. [622-A]]
[CUSIP No. [622-B]]
[CUSIP No. [622-C]]
[CUSIP No. [622-D]]
[CUSIP No. [622-E]]
[CUSIP No. [622-F]]
Denomination of this Certificate:
$[------]
No. 622[-A][-B][-C][-D][-E][-F]
THIS CERTIFICATE'S RIGHT TO PAYMENT FROM THE 000 XXXXX XXXXXX NON-POOLED PORTION
IS SUBORDINATED TO THE RIGHT OF PAYMENT OF THE CLASS A-1, CLASS A-2, CLASS A-3,
CLASS A-4, CLASS A-5, CLASS A-X, CLASS A-SP, CLASS A-Y, 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 AND CLASS P CERTIFICATES, WITH RESPECT TO PAYMENTS FROM THE 000 XXXXX
XXXXXX NON-POOLED PORTION AS DESCRIBED IN THE POOLING AND SERVICING AGREEMENT
REFERRED TO HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
CERTIFICATE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION UNDER THE SECURITIES ACT.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES NOT TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH CERTIFICATE EXCEPT IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS AND (A) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (B) FOR SO LONG AS
THIS CERTIFICATE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE HOLDER REASONABLY BELIEVES IS
A QUALIFIED INSTITUTIONAL BUYER AS DEFINED IN RULE 144A IN A TRANSACTION MEETING
THE REQUIREMENTS OF RULE 144A, OR (C) PURSUANT TO ANOTHER AVAILABLE EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT IN EACH OF THE
FOREGOING CASES TO THE COMPLETION AND DELIVERY BY THE TRANSFEROR TO THE
CERTIFICATE REGISTRAR OF A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE
LAST PAGE OF THIS CERTIFICATE.
THE HOLDER OF THIS CERTIFICATE, AND EACH SUBSEQUENT PURCHASER OF THIS
CERTIFICATE, BY PURCHASING THIS CERTIFICATE OR AN INTEREST HEREIN, IS DEEMED TO
HAVE AGREED TO COMPLY WITH CERTAIN TRANSFER REQUIREMENTS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT, AND SUCH HOLDER SHALL, AND EACH SUBSEQUENT
PURCHASER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THIS CERTIFICATE FROM IT OF
THE RESALE RESTRICTIONS REFERRED TO IN THE PREVIOUS PARAGRAPH. A TRANSFEREE IS
ALSO REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY IN
THE FORM OF AN EXHIBIT TO THE POOLING AND SERVICING AGREEMENT AND SHALL ALSO BE
REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH TRANSFEREE IS NOT A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A AND IT IS NOT A U.S. PERSON
WITHIN THE MEANING OF RLE 90Z UNDER REG S.
FOR FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT," AS THOSE TERMS ARE
DEFINED, RESPECTIVELY, IN SECTION 860G(a)(1) AND 860D OF THE CODE.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN THE
DEPOSITOR, THE MORTGAGE LOAN SELLER, THE SERVICER, THE SPECIAL SERVICER, THE
TRUSTEE OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THE CERTIFICATES NOR THE
UNDERLYING LOANS ARE INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR
INSTRUMENTALITY.
This certifies that Cede & Co. (the "Certificateholder") is the registered owner
of a beneficial ownership interest in a trust (the "Trust") created pursuant to
a Pooling and Servicing Agreement, dated as of June 1, 2003 (the "Pooling and
Servicing Agreement"), by and among KeyCorp Real Estate Capital Markets, Inc.,
as general master servicer (in such capacity, the "General Master Servicer",
which term includes any successor entity under the Agreement), ARCap Servicing,
Inc., as general special servicer of the mortgage loans that are not residential
cooperative mortgage loans (in such capacity, the "General Special Servicer",
which term includes any successor entity under the Agreement), NCB, FSB as
NCBFSB master servicer (in such capacity, the "NCBFSB Master Servicer", which
term includes any successor entity under the Agreement), National Consumer
Cooperative Bank, as co-op special servicer (in such capacity, the "Co-op
Special Servicer", which term includes any successor entity under the
Agreement), the Xxxxx Fargo Bank Minnesota, N.A., as trustee (the "Trustee"),
and Credit Suisse First Boston Mortgage Securities Corp., as depositor (the
"Depositor"). All capitalized terms used herein and not otherwise defined herein
shall have the meanings ascribed thereto in the Pooling and Servicing Agreement.
This Certificate is described in the Pooling and Servicing Agreement and is
issued pursuant to and subject to the Pooling and Servicing Agreement. By
acceptance of this Certificate, each Certificateholder assents to and becomes
bound by the Pooling and Servicing Agreement.
On each Distribution Date, the Trustee shall distribute to the Person in whose
name this Certificate is registered on the last Business Day of the month
immediately preceding the month in which such Distribution Date occurs (or with
respect to the first Distribution Date, the Closing Date), an amount equal to
the Percentage Interest represented by this Certificate of the amount required
to be distributed to the Certificateholders of this Class on such Distribution
Date pursuant to Section 4.01 of the Pooling and Servicing Agreement.
All distributions (other than the final distribution) shall be made to the
Persons in whose name the Certificates are registered at the close of business
on each Record Date by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor if such Certificateholder shall have so notified the Trustee
in writing prior to the Record Date immediately prior to such Distribution Date;
and in all other cases by check mailed to each such Certificateholder at such
Certificateholder's address appearing in the Certificate Register, in either
case without presentation or surrender of any Certificate held by such
Certificateholder or the making of any notation thereon. Distributions on the
final Distribution Date with respect to this Certificate, however, shall require
presentment and surrender of this Certificate at the offices of the Certificate
Registrar or such other location specified in the notice to Certificateholders
of such final distribution.
The Pooling and Servicing Agreement permits, with certain exceptions therein
provided, the amendment thereof, and the modification of the rights and
obligations of the Depositor, the Servicer, the Special Servicer and the Trustee
thereunder and the rights of the Certificateholders thereunder, at any time by
the Depositor, the Servicer, the Special Servicer and the Trustee with the
consent of the Holders of Certificates entitled to at least 66 2/3% of the
Percentage Interests of each Class affected thereby. 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 Pooling and
Servicing Agreement also permits the amendment thereof, in certain
circumstances, including any amendment necessary to maintain the status of
designated portions of the Trust Fund as a REMIC, without the consent of the
Holders of any of the Certificates.
No sale, transfer or other disposition of this Certificate shall be permitted
other than in accordance with the provisions of Section 5.02 of the Pooling and
Servicing Agreement.
This Certificate does not represent an obligation of, or an interest in the
Servicer, the Special Servicer, the Depositor or the Trustee, except to the
extent described in the Pooling and Servicing Agreement, or any Affiliate
thereof, nor will this Certificate be insured or guaranteed by any governmental
agency. This Certificate is limited in right of payment to certain collections
on the Mortgage Loans, as more specifically set forth in the Pooling and
Servicing Agreement.
The Holder hereof, by its acceptance of this Certificate, agrees to look solely
to the assets of the Trust Fund, as provided in the Pooling and Servicing
Agreement, for payment hereunder and that the Trustee in its individual capacity
is not liable to the Holder hereof for any amounts payable under this
Certificate or the Pooling and Servicing Agreement.
This Certificate does not purport to summarize the Pooling and Servicing
Agreement and is qualified in its entirety by the Pooling and Servicing
Agreement. Reference is made to the Pooling and Servicing Agreement for
information with respect to the interests, rights, benefits, obligations,
proceeds and duties evidenced hereby and the rights, duties and immunities of
the Trustee. Copies of the Pooling and Servicing Agreement and all amendments
thereto may be obtained via the Trustee's internet website located at
xxx.xxxxxxx.xxx/xxxx.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly executed
by the manual or facsimile signature of the duly authorized signatory of the
Trustee.
Xxxxx Fargo Bank Minnesota, N.A.
not in its individual capacity,
but solely as Trustee
By:
--------------------------------------
Authorized Signatory
CERTIFICATE OF AUTHENTICATION
This is one of the Class 622[-A][-B][-C][-D][-E][-F] Participation Certificates
referred to in the within mentioned Pooling and Servicing Agreement.
Xxxxx Fargo Bank Minnesota, N.A.
not in its individual capacity,
but solely as Trustee
By:
--------------------------------------
Authorized Signatory
Dated: June 27, 2003
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
_______________________________ the within Credit Suisse First Boston Mortgage
Securities Corp. Commercial Mortgage Pass Through Certificate, Series 2003-C3,
and does hereby irrevocably constitute and appoint
______________________________ Attorney to transfer the said Certificate on the
Certificate Register maintained by the Certificate Registrar, with full power of
substitution in the premises.
Dated: By:
------------ --------------------------------------
Signature
EXHIBIT B-1A
SCHEDULE OF COLUMN MORTGAGE LOANS
[See Attached Schedule]
Mortgage Loan Schedule
Credit Suisse First Boston Mortgage Securities Corp.
Commercial Mortgage Pass-Through Certificates Series 2003-C3
Combined Collateral
------------------------------ -------------------------------------------------
(i) (viii) (xix) (ii)
------------------------------ -------------------------------------------------
------------------------------ -------------------------------------------------
Credit Suisse First Boston Mortgage Securities Corp.
Commercial Mortgage Pass-Through Certificates Series 2003-C3
"A" Loan
# Crossed Yes/No Property Name Address
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
1 Yes 000 Xxxxx Xxxxxx 000 Xxxxx Xxxxxx
2 Yes Washington Center Portfolio
3 Columbiana Centre 000 Xxxxxxxxxx Xxxxxx
4 The Crossings 0000 Xxxxx 000
0 Xxxxx Xxxxx Xxxxxxxx 0000 Xxxxxxx Xxxx
6 One Penn Center 0000-00 Xxxx X Xxxxxxx Xxxxxxxxx
7 Alliance CH Portfolio
8 Xxxxxxx Educational Headquarters 000 Xxxxxxxx Xxxxxx Xxxx
9 Westin Savannah Harbor Resort Xxx Xxxxxx Xxxxx
00 Xxxxxx Xxxx Center 0000 Xxxxxx Xxxxxx
13 000 Xxxx Xxxxxx 000 Xxxx Xxxxxx
16 The Xxxxx Apartments 00000 Xxxxxxxxx Xxxxxx
18 Elk Grove Industrial II
19 Country Xxxx Apartments 000 Xxxxxxxx Xxxxxx
20 Colonial Promenade 2760-2810 Xxxx Xxxxxxx Parkway
21 Oakridge Office Park 6201 South Rio Grande Avenue
26 Builders FirstSource Portfolio
00 Xx Xxxxxx Xxxxxxx 165 South El Camino Real
29 La Mesa Crossroads 7900-7968 El Cajon Boulevard, and 5020, 5120 and
0000 Xxxxxxxxx Xxxxx
30 000 Xxxxxxxxx Xxx 000 Xxxxxxxxx Xxx
00 Xxxxxxxx Xxxxx Apartments 000 Xxxxxxxx Xxxxxx
34 Polar Plastics 000 Xxxxxxxxxxx Xxxxxxxxx
35 Park Ten and Broadfield Office Portfolio
36 Yes 000 Xxxx Xxxx Xxxxxx 000 Xxxx Xxxx Xxxxxx
38 Shops at Boca 21065-21073 Powerline Road
39 Rock Shadows 000 Xxxxx Xxxxx Xxxx
40 Xxxxx Xxxx Apartments 0000 0xx Xxxxxx Xxxxxxxxx
00 Xxxxxxx Xxxxxx Shops 00 Xxxxxxx Xxxxxx
45 Midland Place II 901 and 000 Xxxxxx Xxxxxxxxx
49 Xxxxx'x Xxxxxx Xxxxxxxx Xxxxxx XX Xxxxx Xxxxx 00 at Xxxxxxxx Xxxxx
00 Xxxxxxxxx Xxxxx 000 Xxxxxxxxx Xxxxx Xxxxxx
57 Ramada Inn - Kill Xxxxx Xxxxx, XX 0000 Xxxxx Xxxxxxxx Xxxx Trail
58 Staples Shopping Center 000 Xxxx Xxxxxxx Xxxx
00 Xxxxx Club Apartments 0000 Xxxxx Xxxxx Xxxxxx
60 Whisper Creek II 0000 Xxxxxxxx Xxxxxx
61 The Crossroads 00 Xxxx Xxxx Xxxxxx
64 New Hope/Park Place Mobile Home Park 000 Xxxxx Xxxxxx Xxxx
66 Parkleigh North Apartments 0000 Xxxxxxx Xxxx
69 Home Depot Plaza 3434 and 0000 Xxxxx 00
00 XxxxxXxxxx Xxxxxx - Xxxxxx, XX 0000 Xxxxxxxxx Xxxxx
00 XxxxxXxxxx Xxxxxx - Xxxxxxxxxx, XX 5047 Xxxxxxxxxx Xxxx
00 Xxxxxx Xxxxxxxxxxx 000-000 Xxxxxxxxxx Xxxx & 0000-0000 Xxxxxx Xxxx
79 Timberland Apartments 10612 Xxxxxxxx Xxxxxxxxx
00 Xxxx Xxxxxxx Xxxxxxxxxx Shopping Center 12803-12899 Xxxxxxxxxx Xxxx
00 Westaff Campus 210, 230 & 000 Xxxxx Xxxxx Xxxx
85 Briarcliffe Apartments 000-X Xxxxxxx Xxxxxx
87 Blue Heron Center 0000 Xxxx Xxxx Xxxxx Xxxxxxxxx
92 Prairie Xxxxxxx 0000-0000 Xxxxxxx Xxxx
93 Alhambra Apartments 0000 Xxxx Xxxxxxx Xxxxx
94 North Huntington Hills Apartments 0000 Xxxxx Xxxxxxx Xxxx
00 0000 Xxxx Xxxxxxxxxxx 0000 Xxxx Xxxxxxxxxxx Xxxx
96 Fairway Crossing Apartments 0000 Xxxxxxxx Xxxxx
97 A Xxxxxx Xxxx Xxxxxxxxxx 0000 Xxxx 0xx Xxxxxx
98 A Maquoketa Park Apartments 0000 Xxxxxx Xxxxxx
99 A Strawberry Hill Apartments 0000 Xxxxxxx 00 Xxxx
106 Xxxxxx Xxxx Xxxxxxxxx 0000 Xxxxxxx Xxxxx
108 Windsor Place Apartments 0000 Xxxxxxxxxxxx Xxxxxx XX
000 Xxxxxxxx Xxxxxx Townhomes 0000 Xxxxxxxxx Xxxx
000 Xxx Xxxxxx Xxxxxx 0000 Xxxxx Xxxxxxx Xxxx
000 Xxxx Xxxx Apartments 0000 Xxx Xxxxxxxx Xxxx
119 La Joya Apartments 0000 Xxx Xxxx Xxxxxx
122 7451 Xxxxxxx Building 7451, 7455, 7461 & 0000 Xxxxxxx Xxxxxxxxx
000 Xxx Xxxxxxx Shopping Center 000 Xxxx 0xx Xxxxxx
000 Xxxxx xxx Xxxxxxx Xxxxxxx Apartments 0000 Xxxxx Xxxxxxx Xxxxxxx
138 Country Breeze Mobile Home Park 00000 Xxxxxxxxxxx Xxxx
000 Xxxxxxxxx Xxxxxxxx 000 Xxxxxxxxx Avenue
147 B Woodlawn Manor Apartments 0000 Xxxxxxx Xxxxxx
000 X Xxxxxxx Apartments 000 Xxx Xxxxxx & 000 Xxxxxxx Xxxxxx
150 Eckerd's - San Antonio, TX 8602 Xxxxxxx Xxxx
000 Xxxxxxxxx Self Storage 0000 Xxxx Xxxxx Xxxxxx
155 Hide-A-Way Mini Storage 00000 Xxxxxx-Xxxxxxx Xxxx
156 Valley Forge Office Colony 1 and 0 Xxxxx Xxxx
158 Pine Forest Mobile Home Park 00 Xxxx Xxxx Xxxxx
160 Senate Manor Apartments I & II 545-551 & 000 Xxxxx Xxxxxx Xxxxxx
162 000-000 Xxxx Xxxxxx 000-000 Xxxx Xxxxxx
163 Greentree Square Shopping Center 0000 Xxxxx Xxxxxxx Xxxx
164 Woodscape Apartments 0000 Xxxxxxxxx Xxxxxx
167 Casita Verde 0000 Xxxxx Xxxxxxx Xxxx
170 Pratton Arms Apartments 00 Xxxxx Xxxxxx and 00 Xxxxx Xxxxxx
171 Shoppes of Oakland Park 0000 Xxxx Xxxxxxx Xxxx Xxxxxxxxx
172 000 Xxxx Xxxxxxxxxx Xxxxxxx 000 Xxxx Xxxxxxxxxx Xxxxxxx
173 Seguin Corners 000 Xxxxx Xxxxxxx 000 Xxxxxx
000 00 Xxxxxxxxx Xxxxxx Xxxxxxxxxx 00 Xxxxxxxxx Xxxxxx
180 Charlestown Place Apartments 000 Xxxxx Xxxxxxxx Xxxxxx
000 Xxxxxx'x - Xxxxxx, XX 00000 Xxxxxxxx Road
182 Boardwalk Apartments 0000 00xx Xxxxxx
186 Hickory Heights Apartments 0000-0000 Xxxxxxx Xxxxxx
187 Jefferson Apartments 000 Xxxxx Xxxxxxxxxxx Xxxx
188 000 Xxxx Xxxxxx 000 Xxxx Xxxxxx
191 Xxxxxxx Manor Apartments 17230-17261 Xxxxxxx Xxxxxx
000 Xxxxxxxxxx Xxxxx II 2541, 2545, 2549, 2553 and 0000 Xxxxxx Xxxx
193 Sunset Plaza Apartments 0000 Xxxxxx Xxxxx
194 7491 West Oakland Xxxx Xxxxxxxxx Xxxxxxxx 0000 Xxxx Xxxxxxx Xxxx Xxxxxxxxx
196 0000 Xxxx Xxxxx, Xxxxxxxxx 0000 Xxxx Xxxxx, Xxxxxxxxx
000 Xxxxx Xxxxx Duplexes 0000 Xxxxx Xxxxxxxx Xxxx
201 Sherwood Forest Apartments 0000 Xxxxxxxx Xxxxx
202 Broadway Apartments 00 Xxxxxxxx Xxxxx
000 Xxxxxxx Xxxxxxxxxx - Xxxxxx 0000 Xxxx Xxx Xxxxxx Xxxxxx
206 Lockbox Self Storage 0000 Xxxxx Xxxxxxxxxx 00X
000 Xxxxxxx Shopping Center 0000 Xxxxxxx Xxxx
211 000 Xxxx 0xx Xxxxxx 000 Xxxx 0xx Xxxxxx
000 Xxxxxx Xxx Apartments 000-000 Xxxxx Xxxxxx
213 Country Squire Gardens Mobile Home Park 00000 Xxxx Xxxxxx Xxxx
000 Xxxxxx Xxxxxxx Xxxxx 000 XX 00xx Xxxxxx
000 Xxxxxxxxx Xxxxxx Shopping Center 0000 Xxxx 00xx Xxxxxx
219 Park View Apartments - NH 000 Xxxx Xxxxxx
000 Xxxxxx Xxxx Xxxxxxxxxx 000 Xxxxxxxx Xxxxx Xxxxxxxxx
226 Cambridge Gardens Apartments 2808 and 0000 Xxxxxxxxxxxx Xxxxxx
227 Shadymist Apartments 5890, 5898, and 0000 Xxxxxxxxx Xxxx
232 Delano Apartments 0000 Xxxxxx Xxxxxx
235 Chatmoss Apartments 000 Xxxxx Xxxx Xxxxxx
241 00 Xxxx Xx. Xxxxxx 00 Xxxx Xxxxx Xxxxxx Place
--------------------------------------------------------------------------------------------------------------------
(xxiii) (ix)
--------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------
Zip Property Property Cooperative
# City County State Code Type Sub-type Yes/No
---------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------
0 Xxx Xxxx Xxx Xxxx XX 00000 Xxxxxx XXX Xx
0 Xx
0 Xxxxxxxx Xxxxxxxxx XX 00000 Retail Xxxxxxxx Xx
0 Xxxxxxxxxxxx Xxxxxx XX 00000 Retail Anchored No
0 Xxxxxx Xxxxx Xxxxxxx XX 00000 Retail Xxxxxxxx Xx
0 Xxxxxxxxxxxx Xxxxxxxxxxxx XX 00000 Xxxxxx XXX Xx
0 Xx
0 Xxxxxxxx Xxxxxxxxx XX 00000 Industrial N/A No
9 Savannah Xxxxxxx XX 00000 Hotel Full Service No
00 Xxxxxx Xxxxxxx XX 00000 Retail Anchored No
00 Xxx Xxxxxxxxx Xxx Xxxxxxxxx XX 00000 Retail Anchored No
00 Xxxxxxx Xxxxxx XX 00000 Multifamily Conventional Xx
00 Xx
00 Xxxxxx Xxx Xxxxxx XX 00000 Multifamily Conventional No
00 Xxxxxx Xxxxxxxxx XX 00000 Retail Anchored No
21 Orlando Orange FL 32809 Xxxxxx XXX Xx
00 Xx
00 Xxxxxxxxx Xxx Xxxxx XX 00000 Retail Anchored No
00 Xx Xxxx Xxx Xxxxx XX 00000 Retail Xxxxxxxx Xx
00 Xxxxx Xxxxxxx XX 00000 Xxxxxx Xxxxxxxx Xx
00 Xxxxxxxx XxXxxx XX 00000 Multifamily Conventional No
34 Xxxxxxxxxxx Xxxxxxx XX 00000 Industrial N/A No
35 No
36 Orlando Xxxxxx XX 00000 Xxxxxx XXX Xx
00 Xxxx Xxxxx Xxxx Xxxxx XX 00000 Retail Anchored No
00 Xxxxxx Xxxxxxxx Xxxxx XX 00000 Multifamily Manufactured Housing Xx
00 Xxxxxxxxxxx Xxxxxxxx XX 00000 Multifamily Conventional No
41 Atlanta Xxxxxx XX 00000 Retail Unanchored No
00 Xxxxxxx Xxxxxxx XX 00000 Retail Anchored No
00 Xxxxxxxxx Xxxxxxxxxx XX 00000 Retail Anchored No
54 Lexington Xxxxxxx XX 00000 Office Suburban No
00 Xxxx Xxxxx Xxxxx Xxxx XX 00000 Hotel Full Service No
58 Columbia Xxxxxxxxx XX 00000 Retail Xxxxxxxx Xx
00 Xxxxxxx Xxxxxx XX 00000 Multifamily Conventional No
00 Xxxxxx Xxxxxx XX 00000 Multifamily Conventional No
00 Xxxxxxxx Xxxxxxxxxxx XX 00000 Xxxxxx Xxxxxxxx Xx
00 Xxxx Xxxxxxxx XX 00000 Multifamily Manufactured Housing Xx
00 Xxxxxxxx Xxxxxxxx XX 00000 Multifamily Conventional No
69 Hazlet Xxxxxxxx XX 00000 Retail Xxxxxxxx Xx
00 Xxxxxx Xxxxxx XX 00000 Hotel Limited Service Xx
00 Xxxxxxxxxx Xxxxxxxxxx XX 00000 Hotel Limited Service No
00 Xxxxxx Xxxxx Xxxxx XX 00000 Retail Anchored No
79 Savannah Xxxxxxx XX 00000 Multifamily Conventional No
00 Xxxxxxx Xxxxxx XX 00000 Retail Unanchored No
00 Xxxxxx Xxxxx Xxxxxx Xxxxx XX 00000 Xxxxxx Xxxxxxxx Xx
00 Xxxxxxxxxxxx Xxxxxxx XX 00000 Multifamily Conventional No
00 Xxxxxxx Xxxxx Xxxx Xxxxx XX 00000 Industrial X/X Xx
00 Xxxxxxxxxxxxxxx Xxxx XX 00000 Retail Anchored No
93 Savannah Xxxxxxx XX 00000 Multifamily Conventional Xx
00 Xxxxxxxx Xxxxx XX 00000 Multifamily Conventional No
00 Xxxxxxx Xxxxx Xx Xxxx XX 00000 Xxxxxx Xxxxxxxx Xx
00 Xxxxxxxx Xxxxxxxx XX 00000 Multifamily Conventional No
00 Xxxxxx Xxxxxx XX 00000 Multifamily Conventional No
00 Xxxxxxxxx Xxxxxxx XX 00000 Multifamily Conventional Xx
00 Xxxxxxx Xxxxx XX 00000 Multifamily Conventional No
000 Xxxxxxx Xxxxxx XX 00000 Multifamily Conventional No
000 Xxxxx Xxxxxx Xxxxx XX 00000 Multifamily Conventional No
000 Xxxxxxxxxxxx Xxxxxxxxxxxx XX 00000 Multifamily Conventional No
000 Xxxxxxxx Xxxx XX 00000 Retail Unanchored No
000 Xxxx Xxxxx Xxxxxxx XX 00000 Multifamily Conventional No
000 Xxxxxxxxx Xxxxxxx XX 00000 Multifamily Conventional No
000 Xxx Xxxxxxx Xxx Xxxxxxx XX 00000 Office CBD No
000 Xxx Xxxxxxx Xxxxxxx XX 00000 Retail Anchored No
000 Xxxxxxx Xxxxxxx XX 00000 Multifamily Conventional No
138 Yuma Xxxx XX 00000 Multifamily Manufactured Housing No
000 Xxxxxxxxx Xxxxxxxxx Xxxx XX 00000 Xxxxxx Xxxxxxxx Xx
000 Xxxxxx Xxxxxxxx XX 00000 Multifamily Conventional Xx
000 Xxxxxxxxx Xxxxxxx XX 00000 Multifamily Conventional No
000 Xxx Xxxxxxx Xxxxx XX 00000 Retail Anchored No
000 Xxxxxxxxx Xxxxxxxxx XX 00000 Self Storage N/A No
000 Xxxxxxx Xxxxxx XX 00000 Self Storage N/A No
000 Xxxxxx Xxxxx Xxxxxxx XX 00000 Xxxxxx Xxxxxxxx Xx
000 Xxxxxx Xxxx Xxxxxxx XX 00000 Multifamily Manufactured Housing Xx
000 Xxxxxxxxxxxx Xxxxxx XX 00000 Multifamily Conventional No
000 Xxxxxxxxxx Xxxxxxxxxx Xxxx XX 00000 Mixed Use Multifamily/Retail No
000 Xxxxxxx Xxxxxx XX 00000 Retail Unanchored No
000 Xxxxxxx Xxxxxxx XX 00000 Multifamily Conventional No
000 Xxxx Xxxxxx Xxxxx XX 00000 Multifamily Manufactured Housing No
000 Xxxxxxxxxx Xxxxxxxxx XX 00000 Multifamily Conventional No
000 Xxxxxxxxxx Xxxxxxx XX 00000 Retail Unanchored No
000 Xxxxxxxxx Xxxxxxxxx Xxxx XX 00000 Multifamily Conventional No
000 Xxxxxx Xxxxxxxxx XX 00000 Retail Anchored No
000 Xxxxxxxxxx Xxxxxxxxxxxx XX 00000 Multifamily Conventional No
000 Xxxxxxxx XxXxxx XX 00000 Multifamily Conventional No
000 Xxxxxx Xxxxxx XX 00000 Retail Anchored No
000 Xxxxxxx Xxxxxxx XX 00000 Multifamily Conventional No
000 Xxxxxxxxx Xxxxxxxxx Xxxx XX 00000 Multifamily Conventional No
000 Xxxxxxx Xxxxxxx Xxxxxxxx XX 00000 Multifamily Conventional No
000 Xxxxxxxxxx Xxxxxxxxx XX 00000 Mixed Use Retail/Office No
000 Xxxxxxx Xxxxx XX 00000 Multifamily Conventional No
000 Xxxxxxxx Xxxxxxxx Xxxx XX 00000 Retail Anchored No
000 Xxxxxxx Xxxxx XX 00000 Multifamily Conventional No
000 Xxxxxxxxxx Xxxxxxx XX 00000 Office Suburban No
000 Xxxxxxxxxx Xxxxxxxx xx Xxxxxxxx XX 00000 Multifamily Conventional No
000 Xxxxxxxxxx Xxxxxxxxxx XX 00000 Multifamily Conventional No
000 Xxxxxxxxxx Xxxxxxxxxx XX 00000 Multifamily Conventional No
000 Xxxxxxxxxx Xxxxxxxxxx XX 00000 Multifamily Conventional No
000 Xxxxxx Xxxx XX 00000 Multifamily Conventional No
000 Xxxxxxxxxx Xxxxxx XX 00000 Self Storage N/A No
000 Xxxxxxxxx Xxxxxxx XX 00000 Retail Unanchored No
000 Xxxxxxxx Xxxxx XX 00000 Multifamily Conventional No
000 Xxxxxxxxxx Xxxxxxxxxxxx XX 00000 Multifamily Conventional No
000 Xxxxxxxxxxxx Xxxxxxx XX 00000 Multifamily Manufactured Housing No
000 Xxxx Xxxxxxxxxx Xxxxxxx XX 00000 Multifamily Manufactured Housing Xx
000 Xxxxx Xxxxxx XX 00000 Retail Unanchored No
000 Xxxxxxxxxx Xxxxxxxxxxxx XX 00000 Multifamily Conventional No
000 Xxxxxxxxxxx Xxxxxxxxxx XX 00000 Multifamily Conventional No
000 Xxxxxx Xxxxxx XX 00000 Multifamily Conventional No
000 Xxxxxxxxxx Xxxxxxxx XX 00000 Multifamily Conventional No
000 Xxxxxx Xxxxxx XX 00000 Multifamily Conventional No
000 Xxxxxxxxxx Xxxxxxxxxx XX 00000 Multifamily Conventional No
000 Xxxxxxxxx Xxxxxxxxx Xxxx XX 00000 Multifamily Conventional No
------------------------------------------------------------------------------------------------------------------------
(xiv) (xiii) (iii) (xxii)
------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------
Percentage of
Mortgage Mortgage Original Cut-off Initial
# Originator Loan Seller Balance Balance Pool Balance
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
1 Column Financial, Inc. Column $203,000,000 $203,000,000 11.77%
2 Column Financial, Inc. Column $122,000,000 $122,000,000 7.07%
3 Column Financial, Inc./Eurohypo AG Column/Eurohypo $72,000,000 $71,906,994 4.17%
4 Column Financial, Inc. Column $61,000,000 $60,748,351 3.52%
5 Column Financial, Inc. Column $60,000,000 $59,810,187 3.47%
6 Column Financial, Inc. Column $48,000,000 $47,760,939 2.77%
7 Column Financial, Inc. Column $47,000,000 $46,811,244 2.71%
8 Column Financial, Inc. Column $44,100,000 $44,100,000 2.56%
9 Column Financial, Inc. Column $30,000,000 $30,000,000 1.74%
11 Column Financial, Inc. Column $29,200,000 $29,200,000 1.69%
13 Column Financial, Inc. Column $26,000,000 $26,000,000 1.51%
16 Column Financial, Inc. Column $22,300,000 $22,300,000 1.29%
18 Column Financial, Inc. Column $21,000,000 $20,935,741 1.21%
19 Column Financial, Inc. Column $19,400,000 $19,314,287 1.12%
20 Column Financial, Inc. Column $17,775,000 $17,687,533 1.03%
21 Column Financial, Inc. Column $17,500,000 $17,417,969 1.01%
26 Column Financial, Inc. Column $10,700,000 $10,660,781 0.62%
27 Column Financial, Inc. Column $10,700,000 $10,659,024 0.62%
29 Column Financial, Inc. Column $10,500,000 $10,437,728 0.61%
30 Rait Capital Corp. Column $10,400,000 $10,354,349 0.60%
32 Column Financial, Inc. Column $9,600,000 $9,570,624 0.55%
34 Column Financial, Inc. Column $9,500,000 $9,443,654 0.55%
35 Column Financial, Inc. Column $9,350,000 $9,312,236 0.54%
36 Column Financial, Inc. Column $9,100,000 $9,056,204 0.53%
38 Column Financial, Inc. Column $8,775,000 $8,736,243 0.51%
00 Xxxxx Xxxxxxx Xxxxxxxxxxx, LLC Column $7,800,000 $7,777,800 0.45%
40 Column Financial, Inc. Column $7,600,000 $7,577,413 0.44%
41 Column Financial, Inc. Column $7,500,000 $7,448,851 0.43%
45 Column Financial, Inc. Column $7,000,000 $6,956,573 0.40%
49 Column Financial, Inc. Column $6,600,000 $6,551,842 0.38%
00 Xxxxx Xxxxxxx Xxxxxxxxxxx, LLC Column $6,160,000 $6,143,534 0.36%
57 Column Financial, Inc. Column $6,000,000 $5,929,315 0.34%
58 Column Financial, Inc. Column $5,900,000 $5,833,908 0.34%
00 Xxxxx Xxxxxxx Xxxxxxxxxxx, LLC Column $5,850,000 $5,817,492 0.34%
60 Column Financial, Inc. Column $5,800,000 $5,773,198 0.33%
61 Column Financial, Inc. Column $5,800,000 $5,771,287 0.33%
00 Xxxxx Xxxxxxx Xxxxxxxxxxx, LLC Column $5,680,000 $5,647,490 0.33%
66 Column Financial, Inc. Column $5,600,000 $5,584,244 0.32%
69 Column Financial, Inc. Column $5,250,000 $5,222,522 0.30%
00 Xxxxx Xxxxxxx Xxxxxxxxxxx, LLC Column $5,150,000 $5,131,646 0.30%
00 Xxxxx Xxxxxxx Xxxxxxxxxxx, LLC Column $4,865,000 $4,847,661 0.28%
77 Column Financial, Inc. Column $4,850,000 $4,826,421 0.28%
79 Column Financial, Inc. Column $4,800,000 $4,775,611 0.28%
80 Column Financial, Inc. Column $4,700,000 $4,682,477 0.27%
84 Column Financial, Inc. Column $4,400,000 $4,372,523 0.25%
85 Column Financial, Inc. Column $4,300,000 $4,287,134 0.25%
87 Column Financial, Inc. Column $4,300,000 $4,274,392 0.25%
92 Column Financial, Inc. Column $4,100,000 $4,080,506 0.24%
93 Column Financial, Inc. Column $4,100,000 $4,069,761 0.24%
94 Column Financial, Inc. Column $3,950,000 $3,933,494 0.23%
95 Column Financial, Inc. Column $3,900,000 $3,880,341 0.23%
96 Column Financial, Inc. Column $3,850,000 $3,839,502 0.22%
97 Column Financial, Inc. Column $1,628,680 $1,624,296 0.09%
98 Column Financial, Inc. Column $1,266,540 $1,263,131 0.07%
99 Column Financial, Inc. Column $904,780 $902,344 0.05%
106 Column Financial, Inc. Column $3,450,000 $3,435,933 0.20%
108 Column Financial, Inc. Column $3,400,000 $3,390,009 0.20%
109 Column Financial, Inc. Column $3,350,000 $3,335,922 0.19%
116 Column Financial, Inc. Column $3,050,000 $3,035,980 0.18%
117 Column Financial, Inc. Column $3,000,000 $2,986,137 0.17%
119 Column Financial, Inc. Column $2,932,000 $2,920,012 0.17%
122 Column Financial, Inc. Column $2,800,000 $2,792,881 0.16%
130 Column Financial, Inc. Column $2,500,000 $2,487,919 0.14%
135 Column Financial, Inc. Column $2,400,000 $2,390,309 0.14%
000 Xxxxx Xxxxxxx Xxxxxxxxxxx, LLC Column $2,250,000 $2,243,523 0.13%
140 Column Financial, Inc. Column $2,200,000 $2,189,153 0.13%
147 Column Financial, Inc. Column $1,280,000 $1,270,204 0.07%
148 Column Financial, Inc. Column $760,000 $754,378 0.04%
150 Column Financial, Inc. Column $2,000,000 $1,994,622 0.12%
154 Column Financial, Inc. Column $1,950,000 $1,942,350 0.11%
155 Column Financial, Inc. Column $1,900,000 $1,891,504 0.11%
156 Column Financial, Inc. Column $1,875,000 $1,867,388 0.11%
158 Column Financial, Inc. Column $1,850,000 $1,842,428 0.11%
160 Column Financial, Inc. Column $1,840,000 $1,830,082 0.11%
162 Column Financial, Inc. Column $1,775,000 $1,768,802 0.10%
163 Column Financial, Inc. Column $1,730,000 $1,719,841 0.10%
164 Column Financial, Inc. Column $1,725,000 $1,717,795 0.10%
167 Column Financial, Inc. Column $1,700,000 $1,691,851 0.10%
170 Column Financial, Inc. Column $1,680,000 $1,672,410 0.10%
171 Column Financial, Inc. Column $1,650,000 $1,643,765 0.10%
172 Column Financial, Inc. Column $1,650,000 $1,642,059 0.10%
173 Column Financial, Inc. Column $1,625,000 $1,616,600 0.09%
176 Column Financial, Inc. Column $1,592,000 $1,585,255 0.09%
180 Column Financial, Inc. Column $1,500,000 $1,495,410 0.09%
181 Column Financial, Inc. Column $1,486,000 $1,479,558 0.09%
182 Column Financial, Inc. Column $1,465,000 $1,453,827 0.08%
186 Column Financial, Inc. Column $1,375,000 $1,369,287 0.08%
187 Column Financial, Inc. Column $1,360,000 $1,349,199 0.08%
188 Column Financial, Inc. Column $1,350,000 $1,345,129 0.08%
191 Column Financial, Inc. Column $1,320,000 $1,312,549 0.08%
000 Xxxxx Xxxxxxx Xxxxxxxxxxx, LLC Column $1,300,000 $1,295,390 0.08%
193 Column Financial, Inc. Column $1,300,000 $1,291,313 0.07%
194 Column Financial, Inc. Column $1,300,000 $1,289,899 0.07%
196 Column Financial, Inc. Column $1,244,000 $1,238,380 0.07%
200 Column Financial, Inc. Column $1,200,000 $1,193,532 0.07%
201 Column Financial, Inc. Column $1,178,000 $1,173,260 0.07%
202 Column Financial, Inc. Column $1,150,000 $1,141,229 0.07%
205 Wexford Bancgroup, L.L.C. Column $1,025,000 $1,018,589 0.06%
206 Column Financial, Inc. Column $1,015,000 $1,009,235 0.06%
209 Column Financial, Inc. Column $1,000,000 $997,791 0.06%
211 Column Financial, Inc. Column $1,000,000 $994,755 0.06%
212 Column Financial, Inc. Column $950,000 $945,975 0.05%
213 Column Financial, Inc. Column $940,000 $928,996 0.05%
215 Column Financial, Inc. Column $912,000 $904,648 0.05%
216 Column Financial, Inc. Column $900,000 $897,756 0.05%
219 Column Financial, Inc. Column $850,000 $847,646 0.05%
221 Column Financial, Inc. Column $807,000 $803,832 0.05%
226 Column Financial, Inc. Column $720,000 $717,285 0.04%
227 Column Financial, Inc. Column $715,000 $711,868 0.04%
232 Column Financial, Inc. Column $670,000 $668,278 0.04%
235 Column Financial, Inc. Column $612,000 $609,537 0.04%
241 Column Financial, Inc. Column $500,000 $497,516 0.03%
------------------- ----------------------------------------------------------------------------------------
(xii) (vii) (vi) (v)
------------------- ----------------------------------------------------------------------------------------
------------------- ----------------------------------------------------------------------------------------
Initial Orig Rem. Orig Rem.
Fee/ Interest Only Amort. Amort. Term to Term to Interest
# Leasehold Term Term Term Maturity Maturity Rate
---------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------
1 Fee 24 360 360 121 119 5.9695%
2 18 360 360 84 84 5.1351%
3 Fee 0 360 359 60 59 4.1345%
4 Fee 0 300 297 120 117 5.8500%
5 Fee 0 360 357 120 117 5.2500%
6 Fee 0 360 355 120 115 5.8800%
7 0 360 356 60 56 6.0000%
8 Fee 120 Interest Only Interest Only 120 112 6.5000%
9 Fee 60 Interest Only Interest Only 60 55 5.2500%
11 Fee 18 342 342 120 116 5.7500%
13 Fee 60 Interest Only Interest Only 60 58 6.0400%
16 Fee 24 360 360 60 56 5.2400%
18 0 360 357 120 117 5.4000%
19 Fee 0 300 297 120 117 5.4600%
20 Fee 0 360 355 120 115 5.9400%
21 Fee 0 360 355 120 115 6.1800%
26 0 300 297 120 117 6.5000%
27 Fee 0 360 356 120 116 6.2500%
29 Fee 0 360 354 120 114 5.8200%
30 Fee 0 360 355 120 115 6.5000%
32 Fee 0 360 357 120 117 5.4000%
34 Fee 0 240 237 240 237 6.3200%
35 0 360 356 120 116 5.9700%
36 Fee 0 360 355 120 115 6.0500%
38 Fee 0 360 355 120 115 6.4700%
39 Fee 0 360 357 120 117 5.7200%
40 Fee 0 360 357 120 117 5.5300%
41 Fee 0 300 295 120 115 6.2700%
45 Fee 0 324 319 120 115 5.9000%
49 Fee 0 360 353 120 113 5.6100%
54 Fee 0 360 357 120 117 5.9900%
57 Fee 0 240 234 120 114 6.6700%
58 Fee 0 240 235 120 115 5.6700%
59 Fee 0 360 354 120 114 6.1300%
60 Fee 0 360 355 120 115 6.2500%
61 Fee 0 360 355 120 115 5.9100%
64 Fee 0 360 354 120 114 5.9900%
66 Fee 0 360 357 120 117 5.7700%
69 Fee/Leasehold 0 360 354 120 114 6.4100%
72 Leasehold 0 300 297 120 117 6.6500%
76 Leasehold 0 300 297 120 117 6.6500%
77 Fee 0 360 355 120 115 6.0000%
79 Fee 0 360 355 120 115 5.7800%
80 Fee 0 360 356 120 116 6.3900%
84 Fee 0 300 295 120 115 6.8100%
85 Fee 0 360 357 120 117 5.5000%
87 Fee 0 360 354 120 114 5.8000%
92 Fee 0 360 355 120 115 6.1100%
93 Fee 0 300 295 120 115 5.7800%
94 Fee 0 360 356 120 116 5.7900%
95 Fee 0 360 355 120 115 5.8200%
96 Fee 0 300 298 120 118 6.0000%
97 Fee 0 360 357 120 117 5.9600%
98 Fee 0 360 357 120 117 5.9600%
99 Fee 0 360 357 120 117 5.9600%
106 Fee 0 360 356 120 116 5.9200%
108 Fee 0 360 357 120 117 5.5800%
109 Fee 0 360 356 120 116 5.7600%
116 Fee 0 360 354 120 114 7.0000%
117 Fee 0 360 355 120 115 6.2500%
119 Fee 0 300 297 60 57 5.9000%
122 Fee 0 300 298 120 118 6.4000%
130 Fee 0 360 355 120 115 6.0300%
135 Fee 0 300 297 120 117 5.9700%
138 Fee 0 360 357 120 117 5.6700%
140 Fee 0 360 355 120 115 5.9300%
147 Fee 0 300 294 120 114 6.5800%
148 Fee 0 300 294 120 114 6.7800%
150 Fee 0 300 298 120 118 6.0800%
154 Fee 0 300 297 120 117 6.1300%
155 Fee 0 360 355 120 115 6.4100%
156 Fee 0 300 297 60 57 5.9400%
158 Fee 0 360 356 60 56 5.9000%
160 Fee 0 300 296 120 116 6.5000%
162 Fee 0 360 356 120 116 6.7300%
163 Fee 0 300 295 120 115 7.1800%
164 Fee 0 300 297 120 117 5.7800%
167 Fee 0 360 355 60 55 6.0700%
170 Fee 0 360 355 120 115 6.3600%
171 Fee 0 360 356 120 116 6.3200%
172 Fee 0 360 355 120 115 6.0500%
173 Fee 0 300 296 120 116 6.7700%
176 Fee 0 300 297 120 117 5.7000%
180 Fee 0 360 357 120 117 5.4000%
181 Fee 0 360 355 120 115 6.5600%
182 Fee 0 300 294 120 114 6.6000%
186 Fee 0 300 297 120 117 5.8100%
187 Fee 0 300 294 120 114 6.3600%
188 Fee 0 360 356 120 116 6.5600%
191 Fee 0 300 296 120 116 6.2000%
192 Fee 0 360 356 120 116 6.6500%
193 Fee 0 360 353 120 113 6.0400%
194 Fee 0 300 294 120 114 6.4900%
196 Fee 0 360 355 120 115 6.3600%
200 Fee 0 300 296 120 116 6.5000%
201 Fee 0 360 356 120 116 5.9900%
202 Fee 0 300 294 120 114 6.6000%
205 Fee 0 300 295 120 115 6.8000%
206 Fee 0 300 296 120 116 6.1600%
209 Fee 0 360 357 120 117 6.7700%
211 Fee 0 360 354 60 54 6.4000%
212 Fee 0 300 297 120 117 5.7000%
213 Fee 0 240 234 120 114 6.7200%
215 Fee 0 300 294 60 54 6.2700%
216 Fee 0 300 298 120 118 6.5100%
219 Fee 0 300 298 120 118 5.9100%
221 Fee 0 360 356 120 116 6.1200%
226 Fee 0 360 356 120 116 6.3300%
227 Fee 0 360 355 120 115 6.5100%
232 Fee 0 300 298 120 118 6.3400%
235 Fee 0 360 356 120 116 5.9900%
241 Fee 0 360 354 120 114 6.6500%
-----------------------------------------------------------------------------------------------------------------------------------
(xvii) (xv) (iv) (x) (xi)
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
First
Grace Interest Calculation Monthly Payment
# Days (30/360 / Actual/360) Payment Date ARD Defeasance
---------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------
1 0 Actual/360 $1,188,971 5/11/2003 5/11/2013 Yes
2 0 Actual/360 $665,032 7/11/2003 6/11/2010 Yes
3 0 Actual/360 $349,345 6/11/2003 N/A Yes
4 0 Actual/360 $387,450 4/11/2003 N/A Yes
5 0 Actual/360 $331,322 4/11/2003 3/11/2013 Yes
6 0 Actual/360 $284,092 2/11/2003 N/A Yes
7 0 Actual/360 $281,789 3/11/2003 N/A Yes
8 5 Actual/360 $242,193 11/11/2002 10/11/2012 Yes
9 0 Actual/360 $133,073 2/11/2003 N/A Yes
11 0 Actual/360 $173,806 3/11/2003 N/A Yes
13 0 Actual/360 $132,684 5/11/2003 4/11/2008 Yes
16 0 Actual/360 $123,003 3/11/2003 N/A Yes
18 0 Actual/360 $117,921 4/11/2003 N/A Yes
19 0 Actual/360 $118,670 4/11/2003 N/A Yes
20 0 Actual/360 $105,885 2/11/2003 N/A Yes
21 0 Actual/360 $106,955 2/11/2003 N/A Yes
26 0 Actual/360 $72,247 4/11/2003 N/A Yes
27 0 Actual/360 $65,882 3/11/2003 N/A Yes
29 0 Actual/360 $61,743 1/11/2003 N/A Yes
30 0 Actual/360 $65,735 2/11/2003 N/A Yes
32 0 Actual/360 $53,907 4/11/2003 N/A Yes
34 0 Actual/360 $69,826 4/11/2003 N/A Yes
35 0 Actual/360 $55,878 3/11/2003 N/A Yes
36 0 Actual/360 $54,852 2/11/2003 N/A Yes
38 0 Actual/360 $55,291 2/11/2003 N/A Yes
39 0 Actual/360 $45,370 4/11/2003 N/A Yes
40 0 Actual/360 $43,295 4/11/2003 N/A Yes
41 0 Actual/360 $49,568 2/11/2003 N/A Yes
45 0 Actual/360 $43,243 2/11/2003 N/A Yes
49 0 Actual/360 $37,931 12/11/2002 N/A Yes
54 0 Actual/360 $36,893 4/11/2003 N/A Yes
57 0 Actual/360 $45,337 1/11/2003 N/A Yes
58 0 Actual/360 $41,154 2/11/2003 N/A Yes
59 0 Actual/360 $35,564 1/11/2003 N/A Yes
60 0 Actual/360 $35,712 2/11/2003 N/A Yes
61 0 Actual/360 $34,439 2/11/2003 N/A Yes
64 0 Actual/360 $34,018 1/11/2003 N/A Yes
66 0 Actual/360 $32,751 4/11/2003 N/A Yes
69 0 Actual/360 $32,873 1/11/2003 N/A Yes
72 0 Actual/360 $35,257 4/11/2003 N/A Yes
76 0 Actual/360 $33,306 4/11/2003 N/A Yes
77 0 Actual/360 $29,078 2/11/2003 N/A Yes
79 0 Actual/360 $28,103 2/11/2003 N/A Yes
80 0 Actual/360 $29,368 3/11/2003 N/A Yes
84 0 Actual/360 $30,567 2/11/2003 N/A Yes
85 0 Actual/360 $24,415 4/11/2003 N/A Yes
87 0 Actual/360 $25,230 1/11/2003 N/A Yes
92 0 Actual/360 $24,872 2/11/2003 N/A Yes
93 0 Actual/360 $25,868 2/11/2003 N/A Yes
94 0 Actual/360 $23,152 3/11/2003 N/A Yes
95 0 Actual/360 $22,933 2/11/2003 N/A Yes
96 0 Actual/360 $24,806 5/11/2003 N/A Yes
97 0 Actual/360 $9,723 4/11/2003 N/A Yes
98 0 Actual/360 $7,561 4/11/2003 N/A Yes
99 0 Actual/360 $5,401 4/11/2003 N/A Yes
106 0 Actual/360 $20,507 3/11/2003 N/A Yes
108 0 Actual/360 $19,476 4/11/2003 N/A Yes
109 0 Actual/360 $19,571 3/11/2003 N/A Yes
116 0 Actual/360 $20,292 1/11/2003 N/A Yes
117 0 Actual/360 $18,472 2/11/2003 N/A Yes
119 0 Actual/360 $18,712 4/11/2003 N/A Yes
122 0 Actual/360 $18,731 5/11/2003 N/A Yes
130 0 Actual/360 $15,037 2/11/2003 N/A Yes
135 0 Actual/360 $15,419 4/11/2003 N/A Yes
138 0 Actual/360 $13,016 4/11/2003 N/A Yes
140 0 Actual/360 $13,091 2/11/2003 N/A Yes
147 0 Actual/360 $8,707 1/11/2003 N/A No
148 0 Actual/360 $5,265 1/11/2003 N/A No
150 0 Actual/360 $12,984 5/11/2003 4/11/2013 Yes
154 0 Actual/360 $12,719 4/11/2003 N/A Yes
155 0 Actual/360 $11,897 2/11/2003 N/A Yes
156 0 Actual/360 $12,012 4/11/2003 N/A Yes
158 0 Actual/360 $10,973 3/11/2003 N/A Yes
160 0 Actual/360 $12,424 3/11/2003 N/A Yes
162 0 Actual/360 $11,489 3/11/2003 N/A Yes
163 0 Actual/360 $12,427 2/11/2003 N/A No
164 0 Actual/360 $10,883 4/11/2003 N/A Yes
167 0 Actual/360 $10,269 2/11/2003 N/A Yes
170 0 Actual/360 $10,465 2/11/2003 N/A No
171 0 Actual/360 $10,235 3/11/2003 N/A Yes
172 0 Actual/360 $9,946 2/11/2003 N/A Yes
173 0 Actual/360 $11,248 3/11/2003 N/A Yes
176 0 Actual/360 $9,967 4/11/2003 N/A Yes
180 0 Actual/360 $8,423 4/11/2003 N/A Yes
181 0 Actual/360 $9,451 2/11/2003 1/11/2013 Yes
182 0 Actual/360 $9,984 1/11/2003 N/A Yes
186 0 Actual/360 $8,700 4/11/2003 N/A Yes
187 0 Actual/360 $9,064 1/11/2003 N/A Yes
188 0 Actual/360 $8,586 3/11/2003 N/A No
191 0 Actual/360 $8,667 3/11/2003 N/A Yes
192 0 Actual/360 $8,346 3/11/2003 N/A Yes
193 0 Actual/360 $7,828 12/11/2002 N/A No
194 0 Actual/360 $8,770 1/11/2003 N/A Yes
196 0 Actual/360 $7,749 2/11/2003 N/A Yes
200 0 Actual/360 $8,102 3/11/2003 N/A Yes
201 0 Actual/360 $7,055 3/11/2003 N/A Yes
202 0 Actual/360 $7,837 1/11/2003 N/A Yes
205 0 Actual/360 $7,114 2/11/2003 N/A Yes
206 0 Actual/360 $6,639 3/11/2003 N/A Yes
209 0 Actual/360 $6,499 4/11/2003 N/A Yes
211 0 Actual/360 $6,255 1/11/2003 N/A Yes
212 0 Actual/360 $5,948 4/11/2003 N/A Yes
213 0 Actual/360 $7,131 1/11/2003 N/A Yes
215 0 Actual/360 $6,027 1/11/2003 N/A No
216 0 Actual/360 $6,082 5/11/2003 N/A Yes
219 0 Actual/360 $5,430 5/11/2003 N/A Yes
221 0 Actual/360 $4,901 3/11/2003 N/A Yes
226 0 Actual/360 $4,471 3/11/2003 N/A Yes
227 0 Actual/360 $4,524 2/11/2003 N/A Yes
232 0 Actual/360 $4,457 5/11/2003 N/A Yes
235 0 Actual/360 $3,665 3/11/2003 N/A Yes
241 0 Actual/360 $3,210 1/11/2003 N/A Yes
------------------------------------------------------------------------------
(xvi) (xxi)
------------------------------------------------------------------------------
------------------------------------------------------------------------------
Servicing Contractual
and Engineering Recurring
Trustee Reserve at Replacement
# Defeasance Provision Fees Recourse Origination Reserve/FF&E
---------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------
1 Lock/26_Def/91_0.0%/4 0.03137% No $81,875 $201,125
2 Lock/24_Def/53_0.0%/7 0.03137% No $714,675 $71,144
3 Lock/25_Def/31_0.0%/4 0.03137% No N/A N/A
4 Lock/27_Def/89_0.0%/4 0.03137% No N/A $58,009
5 Lock/27_Def/89_0.0%/4 0.03137% No N/A N/A
6 Lock/29_Def/87_0.0%/4 0.03137% No $3,138,770 $134,112
7 Lock/28_Def/28_0.0%/4 0.03137% No $319,986 $381,750
8 Lock/32_Def/84_0.0%/4 0.03137% No N/A N/A
9 Lock/29_Def/27_0.0%/4 0.03137% No N/A N/A
11 Lock/28_Def/89_0.0%/3 0.03137% Yes N/A N/A
13 Lock/26_Def/29_0.0%/5 0.03137% No N/A $7,695
16 Lock/28_Def/29_0.0%/3 0.03137% No $19,250 $177,000
18 Lock/27_Def/90_0.0%/3 0.03137% No $112,954 $42,300
19 Lock/27_Def/90_0.0%/3 0.03137% No $128,937 $81,000
20 Lock/29_Def/88_0.0%/3 0.03137% No N/A N/A
21 Lock/29_Def/88_0.0%/3 0.03137% No $1,375 $63,103
26 Lock/27_Def/87_0.0%/6 0.03137% No $12,500 $39,822
27 Lock/28_Def/89_0.0%/3 0.03137% No N/A $13,386
29 Lock/30_Def/87_0.0%/3 0.03137% No N/A $25,873
30 Lock/29_Def/88_0.0%/3 0.03137% No N/A $16,208
32 Lock/27_Def/90_0.0%/3 0.03137% No N/A $22,500
34 Lock/27_Def/209_0.0%/4 0.03137% No N/A N/A
35 Lock/28_Def/89_0.0%/3 0.04137% No $31,250 $34,980
36 Lock/29_Def/88_0.0%/3 0.06137% No $3,750 N/A
38 Lock/29_Def/88_0.0%/3 0.03137% No $100,000 N/A
39 Lock/27_Def/90_0.0%/3 0.03137% No N/A N/A
40 Lock/27_Def/90_0.0%/3 0.03137% No N/A $14,748
41 Lock/29_Def/88_0.0%/3 0.03137% No N/A N/A
45 Lock/29_Def/88_0.0%/3 0.03137% No N/A N/A
49 Lock/31_Def/83_0.0%/6 0.03137% No $100,000 $18,147
54 Lock/27_Def/90_0.0%/3 0.03137% No $937 $11,348
57 Lock/30_Def/87_0.0%/3 0.03137% No $107,125 4%
58 Lock/29_Def/88_0.0%/3 0.03137% No N/A $5,442
59 Lock/30_Def/87_0.0%/3 0.03137% No N/A $31,200
60 Lock/29_Def/85_0.0%/6 0.03137% No $55,725 $62,000
61 Lock/29_Def/88_0.0%/3 0.03137% No $4,125 $9,367
64 Lock/30_Def/87_0.0%/3 0.03137% No $10,938 N/A
66 Lock/27_Def/90_0.0%/3 0.06137% No $3,125 $64,260
69 Lock/30_Def/87_0.0%/3 0.03137% No N/A $5,040
72 Lock/27_Def/89_0.0%/4 0.03137% No N/A 4%
76 Lock/27_Def/89_0.0%/4 0.03137% No N/A 4%
77 Lock/29_Def/88_0.0%/3 0.03137% No N/A N/A
79 Lock/29_Def/88_0.0%/3 0.03137% No $4,375 $51,920
80 Lock/28_Def/86_0.0%/6 0.03137% No $53,611 N/A
84 Lock/29_Def/85_0.0%/6 0.03137% No $49,875 N/A
85 Lock/27_Def/90_0.0%/3 0.03137% No N/A $36,504
87 Lock/30_Def/87_0.0%/3 0.03137% No N/A N/A
92 Lock/29_Def/88_0.0%/3 0.06137% No N/A N/A
93 Lock/29_Def/88_0.0%/3 0.03137% No $49,375 $45,000
94 Lock/28_Def/89_0.0%/3 0.03137% No $1,225 $53,000
95 Lock/29_Def/88_0.0%/3 0.03137% No $6,062 $6,180
96 Lock/26_Def/88_0.0%/6 0.03137% No $107,250 $32,250
97 Lock/27_Def/87_0.0%/6 0.03137% No $5,000 $18,000
98 Lock/27_Def/87_0.0%/6 0.03137% No $18,750 $14,000
99 Lock/27_Def/87_0.0%/6 0.03137% No $4,375 $10,000
106 Lock/28_Def/89_0.0%/3 0.03137% No $24,950 $19,250
108 Lock/27_Def/90_0.0%/3 0.03137% No $15,313 $30,000
109 Lock/28_Def/89_0.0%/3 0.03137% No $31,850 $20,456
116 Lock/30_Def/87_0.0%/3 0.03137% No $134,220 N/A
117 Lock/29_Def/85_0.0%/6 0.03137% No $17,284 $35,000
119 Lock/27_Def/27_0.0%/6 0.03137% No $9,125 $46,250
122 Lock/26_Def/88_0.0%/6 0.03137% No $49,688 N/A
130 Lock/29_Def/88_0.0%/3 0.03137% No N/A $4,044
135 Lock/27_Def/87_0.0%/6 0.03137% No $1,250 $18,250
138 Lock/27_Def/89_0.0%/4 0.03137% No $3,000 N/A
140 Lock/29_Def/88_0.0%/3 0.03137% No $12,437 $8,966
147 N/A 0.03137% No $43,000 $22,000
148 N/A 0.03137% No $11,613 $13,500
150 Lock/26_Def/88_0.0%/6 0.03137% No N/A N/A
154 Lock/27_Def/90_0.0%/3 0.03137% No N/A N/A
155 Lock/29_Def/85_0.0%/6 0.03137% No N/A N/A
156 Lock/27_Def/27_0.0%/6 0.03137% No $3,125 N/A
158 Lock/28_Def/26_0.0%/6 0.03137% No N/A N/A
160 Lock/28_Def/86_0.0%/6 0.03137% No N/A $19,250
162 Lock/28_Def/86_0.0%/6 0.03137% No $625 $1,250
163 N/A 0.03137% No $15,625 N/A
164 Lock/27_Def/90_0.0%/3 0.03137% No $13,888 $34,800
167 Lock/29_Def/25_0.0%/6 0.03137% No N/A $9,600
170 N/A 0.03137% No $9,063 $9,000
171 Lock/28_Def/86_0.0%/6 0.03137% No N/A N/A
172 Lock/29_Def/85_0.0%/6 0.03137% No $1,906 $11,250
173 Lock/28_Def/86_0.0%/6 0.03137% No N/A N/A
176 Lock/27_Def/87_0.0%/6 0.03137% No $13,187 $11,250
180 Lock/27_Def/90_0.0%/3 0.03137% No N/A $5,000
181 Lock/29_Def/88_0.0%/3 0.03137% No N/A $1,636
182 Lock/30_Def/84_0.0%/6 0.03137% No $42,381 $29,700
186 Lock/27_Def/87_0.0%/6 0.03137% No $11,050 $10,500
187 Lock/30_Def/84_0.0%/6 0.03137% No $17,215 $12,250
188 N/A 0.03137% No $4,125 N/A
191 Lock/28_Def/86_0.0%/6 0.03137% No $24,375 $18,000
192 Lock/28_Def/88_0.0%/4 0.03137% No N/A $998
193 N/A 0.03137% No $49,000 $30,000
194 Lock/30_Def/84_0.0%/6 0.03137% No $22,000 N/A
196 Lock/29_Def/85_0.0%/6 0.03137% No $1,625 $2,750
200 Lock/28_Def/86_0.0%/6 0.03137% No N/A $8,000
201 Lock/28_Def/86_0.0%/6 0.03137% No N/A $10,500
202 Lock/30_Def/84_0.0%/6 0.03137% No $8,708 $16,000
205 Lock/29_Def/85_0.0%/6 0.03137% No $18,425 $10,750
206 Lock/28_Def/86_0.0%/6 0.03137% No $1,250 N/A
209 Lock/27_Def/87_0.0%/6 0.03137% No N/A N/A
211 Lock/30_Def/24_0.0%/6 0.03137% No $14,656 $6,000
212 Lock/27_Def/87_0.0%/6 0.03137% No $67,250 $5,500
213 Lock/30_Def/84_0.0%/6 0.03137% No $18,375 $3,300
215 N/A 0.03137% No $5,000 $2,322
216 Lock/26_Def/88_0.0%/6 0.03137% No $100,530 N/A
219 Lock/26_Def/88_0.0%/6 0.03137% No $9,218 $6,000
221 Lock/28_Def/86_0.0%/6 0.03137% No $5,000 $10,500
226 Lock/28_Def/86_0.0%/6 0.03137% No $40,500 $7,250
227 Lock/29_Def/85_0.0%/6 0.03137% No $23,125 $7,000
232 Lock/26_Def/88_0.0%/6 0.03137% No $625 $4,500
235 Lock/28_Def/86_0.0%/6 0.03137% No $3,375 $7,000
241 Lock/30_Def/84_0.0%/6 0.03137% No $625 $1,250
LC & TI Contractual Tax & Initial Initial other
Reserve at Recurring Insurance Other Reserve
# Origination LC&TI Escrows Reserve Description
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
1 N/A $2,500,000 Both N/A N/A
2 N/A $1,000,000 Both $1,000,000 Liquidity Reserve
3 N/A N/A None N/A N/A
4 N/A $200,012 Tax X/X X/X
0 X/X X/X Xxxx X/X N/A
6 $560,485 $681,450 Both X/X X/X
0 X/X X/X Xxxx X/X N/A
8 N/A N/A None X/X X/X
0 X/X X/X Xxxx X/X N/A
11 $150,000 N/A Both $150,000 Indemnity Reserve
13 $285,000 $198,756 Both X/X X/X
00 X/X X/X Both $26,000 Termite Treatment Reserve
18 $298,381 $211,200 Both X/X X/X
00 X/X X/X Both N/A N/A
20 N/A $58,410 Both N/A N/A
21 N/A $250,000 Both N/A N/A
26 N/A $79,644 Both N/A N/A
27 N/A $89,243 Both N/A N/A
29 N/A $86,244 Both $4,025 Termite Repair
30 N/A $104,005 Both X/X X/X
00 X/X X/X Both N/A N/A
34 N/A N/A None $1,825 Letter of Credit Transfer Fee
35 $200,000 $255,000 Tax N/A N/A
36 N/A $105,024 Both N/A N/A
38 N/A $40,000 Both X/X X/X
00 X/X X/X Both N/A N/A
40 N/A N/A Both N/A N/A
41 N/A $66,000 None X/X X/X
00 X/X X/X Both N/A N/A
49 $100,000 N/A Both N/A N/A
54 N/A $86,183 Both X/X X/X
00 X/X X/X Both N/A N/A
58 N/A $25,000 Both X/X X/X
00 X/X X/X Both N/A N/A
60 N/A N/A Both N/A N/A
61 $140,000 $90,000 Both X/X X/X
00 X/X X/X Both $84,138 Quarterly Reserve ($83,638.00);
Termite Reserve ($500.00)
00 X/X X/X Xxxx X/X X/X
69 N/A $45,000 Both X/X X/X
00 X/X X/X Both N/A N/A
76 N/A N/A Both N/A N/A
77 N/A $23,148 Both X/X X/X
00 X/X X/X Both N/A N/A
80 $140,000 N/A Both N/A N/A
84 N/A $37,332 Both X/X X/X
00 X/X X/X Both N/A N/A
87 $125,000 $39,996 Both N/A N/A
92 N/A $29,040 Both X/X X/X
00 X/X X/X Both N/A N/A
94 N/A N/A Both N/A N/A
95 N/A N/A None N/A N/A
96 N/A N/A Both N/A N/A
97 N/A N/A Both N/A N/A
98 N/A N/A Both N/A N/A
99 N/A N/A Both X/X X/X
000 X/X X/X Both $5,000 Initial Termite Inspection Reserve
108 N/A N/A Both X/X X/X
000 X/X X/X Both $14,170 NECC Reserve
116 N/A $50,004 Both $61,761 Georgia Lease Reserve
000 X/X X/X Xxxx X/X X/X
119 N/A N/A Both N/A N/A
122 $216,000 N/A Both $50,000 Xxxxxxx Productions Reserve
130 N/A $7,200 Both X/X X/X
000 X/X X/X Both X/X X/X
000 X/X X/X Both N/A N/A
140 N/A $24,996 Both X/X X/X
000 X/X X/X Both X/X X/X
000 X/X X/X Both X/X X/X
000 X/X X/X Insurance X/X X/X
000 X/X X/X Both X/X X/X
000 X/X X/X Both N/A N/A
156 $86,000 N/A Both X/X X/X
000 X/X X/X Both X/X X/X
000 X/X X/X Both X/X X/X
000 X/X X/X Both N/A N/A
163 N/A $46,650 Both X/X X/X
000 X/X X/X Both X/X X/X
000 X/X X/X Both X/X X/X
000 X/X X/X Both N/A N/A
171 $25,000 $18,750 Both X/X X/X
000 X/X X/X Both N/A N/A
173 $102,000 N/A Both X/X X/X
000 X/X X/X Both X/X X/X
000 X/X X/X Both N/A N/A
181 N/A $15,900 None X/X X/X
000 X/X X/X Both X/X X/X
000 X/X X/X Both X/X X/X
000 X/X X/X Both N/A N/A
188 N/A $25,008 Both X/X X/X
000 X/X X/X Both N/A N/A
192 N/A $6,517 Both $7,500 EB Games Reserve
000 X/X X/X Xxxx X/X X/X
194 N/A N/A Both X/X X/X
000 X/X X/X Both X/X X/X
000 X/X X/X Both X/X X/X
000 X/X X/X Both X/X X/X
000 X/X X/X Both X/X X/X
000 X/X X/X Both X/X X/X
000 X/X X/X Both X/X X/X
000 X/X X/X Both X/X X/X
000 X/X X/X Both X/X X/X
000 X/X X/X Both X/X X/X
000 X/X X/X Both X/X X/X
000 X/X X/X Both N/A N/A
216 $52,500 N/A Both X/X X/X
000 X/X X/X Both X/X X/X
000 X/X X/X Both X/X X/X
000 X/X X/X Both X/X X/X
000 X/X X/X Both X/X X/X
000 X/X X/X Both X/X X/X
000 X/X X/X Both N/A N/A
241 N/A N/A Both N/A N/A
Contractual Contractual
Other Other Reserve
# Reserve Description
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
1 X/X X/X
0 X/X X/X
0 X/X X/X
4 N/A N/A
5 N/A N/A
6 N/A N/A
7 X/X X/X
0 X/X X/X
0 X/X X/X
11 N/A N/A
13 N/A N/A
16 N/A N/A
18 N/A N/A
19 N/A N/A
20 N/A N/A
21 N/A N/A
26 N/A N/A
27 N/A N/A
29 N/A N/A
30 N/A N/A
32 N/A N/A
34 N/A N/A
35 N/A N/A
36 N/A N/A
38 N/A N/A
39 $45,370 Additional debt service reserve on 10/15, 11/1 (2 payments), 12/1 and 12/15 of each year
40 X/X X/X
00 X/X X/X
45 N/A N/A
49 N/A N/A
54 N/A N/A
57 $15,000 Seasonality Reserve - Borrower to deposit $15,000 in March, April, May, June, July, August, September,
October and November
58 X/X X/X
00 X/X X/X
00 X/X X/X
61 N/A N/A
64 N/A N/A
66 N/A N/A
69 N/A N/A
72 N/A N/A
76 N/A N/A
77 N/A N/A
79 N/A N/A
80 N/A N/A
84 N/A N/A
85 N/A N/A
87 N/A N/A
92 N/A N/A
93 N/A N/A
94 N/A N/A
95 N/A N/A
96 N/A N/A
97 N/A N/A
98 N/A N/A
99 X/X X/X
000 X/X X/X
000 X/X X/X
000 X/X X/X
000 X/X X/X
000 X/X X/X
000 X/X X/X
000 X/X X/X
000 X/X X/X
000 X/X X/X
000 X/X X/X
000 X/X X/X
000 X/X X/X
000 X/X X/X
000 X/X X/X
000 X/X X/X
000 X/X X/X
000 X/X X/X
000 X/X X/X
000 X/X X/X
000 X/X X/X
000 X/X X/X
000 X/X X/X
000 X/X X/X
000 X/X X/X
000 X/X X/X
172 N/A N/A
000 X/X X/X
000 X/X X/X
180 N/A N/A
000 X/X X/X
000 X/X X/X
000 X/X X/X
000 X/X X/X
000 X/X X/X
000 X/X X/X
000 X/X X/X
000 X/X X/X
194 $1,427 Lease Holdback Reserve
000 X/X X/X
000 X/X X/X
000 X/X X/X
000 X/X X/X
000 X/X X/X
000 X/X X/X
209 $833 Lease Holdback Reserve
000 X/X X/X
000 X/X X/X
213 N/A N/A
000 X/X X/X
000 X/X X/X
000 X/X X/X
000 X/X X/X
000 X/X X/X
000 X/X X/X
000 X/X X/X
000 X/X X/X
241 N/A N/A
Letter Initial Recurring
Letter of of Credit Replacement Renovation/Leasing
# Credit Description Reserve Reserve
-------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------
1 N/A N/A N/A N/A
2 N/A N/A N/A N/A
3 N/A N/A N/A N/A
4 N/A N/A N/A N/A
5 N/A N/A N/A N/A
6 N/A N/A N/A N/A
7 N/A N/A N/A N/A
8 N/A N/A N/A N/A
9 N/A N/A N/A N/A
11 N/A N/A N/A N/A
13 N/A N/A N/A N/A
16 N/A N/A N/A N/A
18 N/A N/A N/A N/A
19 $500,000 LOC as additional security X/X X/X
00 X/X X/X X/X X/X
21 N/A N/A N/A N/A
26 N/A N/A N/A N/A
27 N/A N/A N/A N/A
29 N/A N/A N/A N/A
30 N/A N/A X/X X/X
00 X/X X/X X/X X/X
34 $730,100 TILC Letter of Credit X/X X/X
00 X/X X/X X/X X/X
36 N/A N/A N/A N/A
38 N/A N/A N/A N/A
39 N/A N/A N/A N/A
40 N/A N/A N/A N/A
41 N/A N/A N/A N/A
45 N/A N/A N/A N/A
49 N/A N/A N/A N/A
54 N/A N/A N/A N/A
57 N/A N/A N/A N/A
58 N/A N/A N/A N/A
59 N/A N/A N/A N/A
60 N/A N/A N/A N/A
61 N/A N/A N/A N/A
64 N/A N/A N/A N/A
66 N/A N/A N/A N/A
69 N/A N/A N/A N/A
72 N/A N/A N/A N/A
76 N/A N/A N/A N/A
77 N/A N/A N/A N/A
79 N/A N/A N/A N/A
80 N/A N/A N/A N/A
84 N/A N/A N/A N/A
85 N/A N/A N/A N/A
87 N/A N/A N/A N/A
92 N/A N/A N/A N/A
93 N/A N/A N/A N/A
94 N/A N/A N/A N/A
95 N/A N/A N/A N/A
96 N/A N/A N/A N/A
97 N/A N/A N/A N/A
98 N/A N/A X/X X/X
00 X/X X/X X/X X/X
106 N/A N/A X/X X/X
000 X/X X/X X/X X/X
109 N/A N/A X/X X/X
000 X/X X/X X/X X/X
117 N/A N/A X/X X/X
000 X/X X/X X/X X/X
122 N/A N/A X/X X/X
000 X/X X/X X/X X/X
135 N/A N/A X/X X/X
000 X/X X/X X/X X/X
140 N/A N/A X/X X/X
000 X/X X/X X/X X/X
148 N/A N/A X/X X/X
000 X/X X/X X/X X/X
154 N/A N/A X/X X/X
000 X/X X/X X/X X/X
000 X/X X/X X/X X/X
158 N/A N/A X/X X/X
000 X/X X/X X/X X/X
000 X/X X/X X/X X/X
163 N/A N/A X/X X/X
000 X/X X/X X/X X/X
167 N/A N/A X/X X/X
000 X/X X/X X/X X/X
171 N/A N/A X/X X/X
000 X/X X/X X/X X/X
000 X/X X/X X/X X/X
176 N/A N/A X/X X/X
000 X/X X/X X/X X/X
000 X/X X/X X/X X/X
182 N/A N/A X/X X/X
000 X/X X/X X/X X/X
187 N/A N/A X/X X/X
000 X/X X/X X/X X/X
191 N/A N/A X/X X/X
000 X/X X/X X/X X/X
000 X/X X/X X/X X/X
194 N/A N/A X/X X/X
000 X/X X/X X/X X/X
200 N/A N/A X/X X/X
000 X/X X/X X/X X/X
202 N/A N/A X/X X/X
000 X/X X/X X/X X/X
000 X/X X/X X/X X/X
209 N/A N/A X/X X/X
000 X/X X/X X/X X/X
000 X/X X/X X/X X/X
213 N/A N/A X/X X/X
000 X/X X/X X/X X/X
216 N/A N/A X/X X/X
000 X/X X/X X/X X/X
221 N/A N/A X/X X/X
000 X/X X/X X/X X/X
227 N/A N/A X/X X/X
000 X/X X/X X/X X/X
000 X/X X/X X/X X/X
000 X/X X/X X/X X/X
Initial Earnout
Debt Service Earnout Reserve
# Reserve Reserve Description
---------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------
1 N/A N/A N/A
2 $1,750,000 X/X X/X
0 X/X X/X X/X
0 X/X X/X N/A
5 N/A N/A N/A
6 N/A N/A N/A
7 N/A N/A N/A
8 N/A N/A N/A
9 N/A N/A N/A
11 N/A N/A N/A
13 N/A N/A N/A
16 N/A N/A N/A
18 N/A N/A N/A
19 N/A N/A N/A
20 N/A N/A N/A
21 N/A N/A N/A
26 N/A N/A N/A
27 N/A N/A N/A
29 N/A N/A N/A
30 N/A $1,000,000 Release upon: 1) Executed leases for current vacant
space, 2) Leasing Reserve Leases fully in place
32 N/A N/A N/A
34 N/A N/A N/A
35 N/A N/A N/A
36 N/A N/A N/A
38 N/A N/A N/A
39 $280,000 X/X X/X
00 X/X X/X X/X
41 N/A N/A N/A
45 N/A N/A N/A
49 N/A $400,000 Release upon: 1) First $150,000 upon one or more fully
executed leases; 2) Remaining $250,000 upon i) executed
tenant estoppel certificates, ii) evidence TI
completions, iii)DSCR>=1.30, iv)LTV<=80%
54 N/A N/A N/A
57 N/A N/A N/A
58 N/A N/A N/A
59 N/A N/A N/A
60 N/A N/A N/A
61 N/A N/A N/A
64 $40,000 X/X X/X
00 X/X X/X X/X
69 N/A N/A N/A
72 N/A N/A N/A
76 N/A N/A N/A
77 N/A N/A N/A
79 N/A N/A N/A
80 N/A N/A N/A
84 N/A N/A N/A
85 N/A N/A N/A
87 N/A N/A N/A
92 N/A N/A N/A
93 N/A N/A N/A
94 N/A N/A N/A
95 N/A N/A N/A
96 N/A N/A N/A
97 N/A N/A N/A
98 N/A N/A N/A
99 N/A N/A N/A
106 N/A N/A N/A
000 X/X X/X X/X
000 X/X X/X X/X
000 X/X X/X X/X
000 X/X X/X X/X
000 X/X X/X X/X
000 X/X X/X X/X
000 X/X X/X X/X
000 X/X X/X X/X
000 X/X X/X X/X
000 X/X X/X X/X
000 X/X X/X X/X
000 X/X X/X X/X
000 X/X X/X X/X
000 X/X X/X X/X
000 X/X X/X X/X
000 X/X X/X X/X
000 X/X X/X X/X
000 X/X X/X X/X
000 X/X X/X X/X
000 X/X X/X X/X
164 N/A N/A N/A
167 $85,600 X/X X/X
000 X/X X/X X/X
000 X/X X/X X/X
000 X/X X/X X/X
173 N/A N/A N/A
000 X/X X/X X/X
000 X/X X/X X/X
000 X/X X/X X/X
000 X/X X/X X/X
000 X/X X/X X/X
000 X/X X/X X/X
000 X/X X/X X/X
000 X/X X/X X/X
192 N/A N/A N/A
000 X/X X/X X/X
000 X/X X/X X/X
000 X/X X/X X/X
000 X/X X/X X/X
000 X/X X/X X/X
000 X/X X/X X/X
000 X/X X/X X/X
000 X/X X/X X/X
209 N/A N/A N/A
000 X/X X/X X/X
000 X/X X/X X/X
000 X/X X/X X/X
000 X/X X/X X/X
000 X/X X/X X/X
000 X/X X/X X/X
000 X/X X/X X/X
000 X/X X/X X/X
000 X/X X/X X/X
000 X/X X/X X/X
235 N/A N/A N/A
241 $14,400 N/A N/A
------------------------------------------------------------------
(xx)
------------------------------------------------------------------
------------------------------------------------------------------
Additional Additional Additional
Collateral Collateral Collateral
# Amount Event Date Description
-------------------------------------------------------------------------
-------------------------------------------------------------------------
1 N/A N/A N/A
2 N/A N/A N/A
3 N/A N/A N/A
4 N/A N/A N/A
5 N/A N/A N/A
6 N/A N/A N/A
7 N/A N/A N/A
8 N/A N/A N/A
9 N/A N/A N/A
11 N/A N/A N/A
13 N/A N/A N/A
16 N/A N/A N/A
18 N/A N/A N/A
19 N/A N/A N/A
20 N/A N/A N/A
21 N/A N/A N/A
26 N/A N/A N/A
27 N/A N/A N/A
29 N/A N/A N/A
30 N/A N/A N/A
32 N/A N/A N/A
34 N/A N/A N/A
35 N/A N/A N/A
36 N/A N/A N/A
38 N/A N/A N/A
39 N/A N/A N/A
40 N/A N/A N/A
41 N/A N/A N/A
45 N/A N/A N/A
49 N/A N/A N/A
54 N/A N/A N/A
57 N/A N/A N/A
58 N/A N/A N/A
59 N/A N/A N/A
60 N/A N/A N/A
61 N/A N/A N/A
64 N/A N/A N/A
66 N/A N/A N/A
69 N/A N/A N/A
72 N/A N/A N/A
76 N/A N/A N/A
77 N/A N/A N/A
79 N/A N/A N/A
80 N/A N/A N/A
84 N/A N/A N/A
85 N/A N/A N/A
87 N/A N/A N/A
92 N/A N/A N/A
93 N/A N/A N/A
94 N/A N/A N/A
95 N/A N/A N/A
96 N/A N/A N/A
97 N/A N/A N/A
98 N/A N/A N/A
99 N/A N/A N/A
000 X/X X/X X/X
000 X/X X/X X/X
000 X/X X/X X/X
000 X/X X/X X/X
117 N/A N/A N/A
000 X/X X/X X/X
000 X/X X/X X/X
000 X/X X/X X/X
000 X/X X/X X/X
000 X/X X/X X/X
000 X/X X/X X/X
000 X/X X/X X/X
000 X/X X/X X/X
000 X/X X/X X/X
000 X/X X/X X/X
000 X/X X/X X/X
000 X/X X/X X/X
000 X/X X/X X/X
000 X/X X/X X/X
000 X/X X/X X/X
000 X/X X/X X/X
000 X/X X/X X/X
000 X/X X/X X/X
000 X/X X/X X/X
000 X/X X/X X/X
000 X/X X/X X/X
000 X/X X/X X/X
000 X/X X/X X/X
000 X/X X/X X/X
000 X/X X/X X/X
000 X/X X/X X/X
000 X/X X/X X/X
000 X/X X/X X/X
000 X/X X/X X/X
000 X/X X/X X/X
000 X/X X/X X/X
000 X/X X/X X/X
000 X/X X/X X/X
000 X/X X/X X/X
000 X/X X/X X/X
000 X/X X/X X/X
000 X/X X/X X/X
000 X/X X/X X/X
000 X/X X/X X/X
000 X/X X/X X/X
000 X/X X/X X/X
000 X/X X/X X/X
000 X/X X/X X/X
000 X/X X/X X/X
000 X/X X/X X/X
000 X/X X/X X/X
000 X/X X/X X/X
000 X/X X/X X/X
000 X/X X/X X/X
000 X/X X/X X/X
235 N/A N/A N/A
241 N/A N/A N/A
EXHIBIT B-1B
SCHEDULE OF KEYBANK MORTGAGE LOANS
[See Attached Schedule]
Credit Suisse First Boston Mortgage Securities Corp.
Commercial Mortgage Pass-Through Certificates Series 2003-C3
"A" Loan
# Crossed Yes/No Property Name Address City
==== ======= ======= =========================== ========================== ========================
12 Chase Village Apartments 3426 Centennial Boulevard Eugene
17 Gateway Station 0000 Xxxxx Xxxxxxxx Xxxxxxxxx Xxxxxxxx
31 Elk Lakes Shopping Center 0000-0000 00xx Xxxxxx Greeley
00 Xxxxxxxxx xx Xxxxxx Xxxxxx II 2422 Banks Edge Way Reynoldsburg
50 Best Buy - Mishawaka, IN 0000 Xxxxx Xxxx Mishawaka
53 Best Buy - Xxxxxxxxx, XX 00000 Centrum Parkway Pineville
00 Xxxxxxx Xxxxxx Shopping Center 000 Xxxxx Xxxxxxx Xxxxx Xxx Xxxxx
65 XxXxx'x Crossing Shopping Center 00000 XX Xxxxxxx 000 Xxxxxx
68 Best Buy - Salt Lake City, UT 281 West 0000 Xxxxx Xxxx Xxxx Xxxx
00 Xxxxxxx Xxxx - Xxxxxxxxxxxx, XX 000 Xxxx Xxxx Xxxx Xxxxxxxxxxxx
00 Xxxxxxx Xxxx - Xxxxx, XX 0000 Xxxx Xxxxxxx Xxxxx
83 Tarrant Parkway Commons 0000 Xxxxx Xxxx Xxxxxx Keller
86 Yes Northside Villas 0000 Xxxxx Xxxx Xxxxxxxxxxx
00 Best Storage 0000 Xxxxxxx Xxxxxx Anchorage
100 American Mini Storage 0000 0xx Xxxxxx Norco
103 Xxxxx Self Storage 0000 0xx Xxxxxx Neptune
104 Walgreens - Duluth, GA 6590 Sugarloaf Parkway Duluth
105 Walgreens - Longview, TX 0000 Xxxx Xxxx 281 Longview
115 Academy Sports & Outdoors 0000 Xxxxx 000xx Xxxx Xxxxxx Xxxxx
124 Xxxxx Crossing Shopping Center 201 Xxxxx Crossing Xxxxx City
000 Xxxxxxxxxx Xxxxxxxxxx 0000 Xxxxxxx Xxxx Xxxxxx Xxxx
000 Xxxxxx Xxxxxx Xxxxxxxx Xxxxxx 0000-0000 Myrtle Avenue Eureka
000 Xxx Xxxxxxx Xxxxxxxx 00-00 Xxxxxx Xxxxxx Quincy
146 Stardust Apartments 0000 Xxxxxx Xxxxxx Xxxxxx
161 Camelot Apartments 2001 Xxxxxxx Street Brownwood
Zip Property Property Cooperative
# County State Code Type Sub-type Yes/No
==== ========================== ========= =========== =========== =========== ===========
12 Lane OR 97401 Multifamily Conventional Xx
00 Xxxxxxx XX 00000 Retail Xxxxxxxx Xx
00 Xxxx XX 00000 Retail Xxxxxxxx Xx
00 Xxxxxxxxx & Xxxxxxx XX 00000 Multifamily Conventional Xx
00 Xx. Xxxxxx XX 00000 Retail Xxxxxxxx Xx
00 Xxxxxxxxxxx XX 00000 Retail Xxxxxxxx Xx
00 Xxxxx XX 00000 Retail Xxxxxxxx Xx
00 Xxxxxxxx XX 00000 Retail Xxxxxxxx Xx
00 Xxxx Xxxx XX 00000 Retail Anchored Xx
00 Xxxxxxxxxx XX 00000 Retail Xxxxxxxx Xx
00 Xxxxxxxxxxxx XX 00000 Retail Xxxxxxxx Xx
00 Xxxxxxx XX 00000 Retail Xxxxxxxx Xx
00 Xxxx XX 00000 Multifamily Conventional Xx
00 Xxxxxxxxx XX 00000 Self Storage X/X Xx
000 Xxxxxxxxx XX 00000 Self Storage X/X Xx
000 Xxxxxxxx XX 00000 Self Storage X/X Xx
000 Xxxxxxxx XX 00000 Retail Xxxxxxxx Xx
000 Xxxxx XX 00000 Retail Xxxxxxxx Xx
000 Xxxxx XX 00000 Retail Xxxxxxxx Xx
000 Xxxxxxxx XX 00000 Retail Xxxxxxxx Xx
000 Xxxxxxx XX 00000 Multifamily Conventional Xx
000 Xxxxxxxx XX 00000 Retail Xxxxxxxx Xx
000 Xxxxxxx XX 00000 Xxxxxx Xxxxxxxx Xx
000 Xxxxxx XX 00000 Multifamily Conventional No
161 Xxxxx TX 76801 Multifamily Conventional No
Percentage of
Mortgage Mortgage Original Cut-off Initial Fee/
# Originator Loan Seller Balance Balance Pool Balance Leasehold
==== =============== ========== =========== ========= ============ =========
12 KeyBank KeyBank $28,600,000 $28,600,000 1.66% Fee
00 XxxXxxx XxxXxxx $21,360,000 $21,322,046 1.24% Fee
00 XxxXxxx XxxXxxx $10,225,000 $10,206,168 0.59% Fee
00 XxxXxxx XxxXxxx $6,700,000 $6,686,263 0.39% Fee
00 XxxXxxx XxxXxxx $6,500,000 $6,494,513 0.38% Fee
00 XxxXxxx XxxXxxx $6,205,000 $6,188,453 0.36% Fee
00 XxxXxxx XxxXxxx $5,680,000 $5,651,824 0.33% Leasehold
00 XxxXxxx XxxXxxx $5,600,000 $5,600,000 0.32% Fee
00 XxxXxxx XxxXxxx $5,400,000 $5,390,077 0.31% Fee
00 XxxXxxx XxxXxxx $5,091,750 $5,071,340 0.29% Fee
00 XxxXxxx XxxXxxx $4,800,000 $4,780,759 0.28% Fee
00 XxxXxxx XxxXxxx $4,400,000 $4,391,986 0.25% Fee
00 XxxXxxx XxxXxxx $4,300,000 $4,281,460 0.25% Fee
00 XxxXxxx XxxXxxx $4,200,000 $4,173,650 0.24% Fee
000 XxxXxxx XxxXxxx $3,675,000 $3,670,319 0.21% Fee
000 XxxXxxx XxxXxxx $3,500,000 $3,490,290 0.20% Fee
000 XxxXxxx XxxXxxx $3,475,000 $3,470,477 0.20% Fee
000 XxxXxxx XxxXxxx $3,450,000 $3,447,065 0.20% Fee
000 XxxXxxx XxxXxxx $3,050,000 $3,038,118 0.18% Fee
000 XxxXxxx XxxXxxx $2,650,000 $2,642,559 0.15% Fee
000 XxxXxxx XxxXxxx $2,580,000 $2,560,424 0.15% Fee
000 XxxXxxx XxxXxxx $2,530,000 $2,530,000 0.15% Fee
000 XxxXxxx XxxXxxx $2,400,000 $2,396,996 0.14% Fee
000 XxxXxxx XxxXxxx $2,050,000 $2,045,993 0.12% Fee
000 XxxXxxx XxxXxxx $1,800,000 $1,787,882 0.10% Fee
Initial Orig Rem. Orig Rem.
Interest Only Amort. Amort. Term to Term to Interest Grace
# Term Term Term Maturity Maturity Rate Days
==== ======== ====== ====== ======== ======== ====== ======
12 37 360 360 84 81 5.3000% 5
17 0 360 358 120 118 6.1300% 5
31 0 360 358 120 118 5.9700% 5
48 0 360 358 120 118 5.4800% 5
50 0 360 359 120 119 5.9300% 5
53 0 360 357 120 117 6.0000% 5
63 0 360 355 120 115 5.9000% 5
65 0 360 360 120 120 5.7500% 5
68 0 360 358 120 118 5.9800% 5
73 0 360 356 120 116 6.0100% 5
78 0 360 356 120 116 6.0100% 5
83 0 360 358 120 118 6.0200% 5
86 0 300 297 120 117 5.6000% 5
91 0 240 237 120 117 5.9000% 5
100 0 300 299 120 119 6.0100% 5
103 0 300 298 120 118 5.9000% 5
104 0 300 299 120 119 5.9000% 5
105 0 360 359 120 119 5.9000% 5
115 0 360 356 120 116 6.1600% 5
124 0 300 298 120 118 5.8300% 5
127 0 300 295 120 115 5.6000% 5
128 0 300 300 120 120 6.0500% 5
133 0 300 299 120 119 6.1000% 5
146 0 360 358 120 118 5.7000% 5
161 0 300 295 120 115 6.3500% 5
First
Interest Calculation Monthly Payment
# (30/360 / Actual/360) Payment Date ARD Defeasance Defeasance Provision
==== ==================== ======= ======= ====== ========== ====================
12 Actual/360 $158,817 4/1/2003 N/A Yes Lock/27_Def/53_0.0%/4
17 Actual/360 $129,855 5/1/2003 N/A Yes Lock/26_Def/90_0.0%/4
31 Actual/360 $61,107 5/1/2003 4/1/2013 Yes Lock/26_Def/89_0.0%/5
48 Actual/360 $37,958 5/1/2003 N/A Yes Lock/26_Def/90_0.0%/4
50 Actual/360 $38,679 6/1/2003 5/1/2013 Yes Lock/25_Def/91_0.0%/4
53 Actual/360 $37,202 4/1/2003 3/1/2013 Yes Lock/27_Def/89_0.0%/4
63 Actual/360 $33,690 2/1/2003 1/1/2013 Yes Lock/29_Def/86_0.0%/5
65 Actual/360 $32,680 7/1/2003 6/1/2013 Yes Lock/24_Def/92_0.0%/4
68 Actual/360 $32,306 5/1/2003 4/1/2013 No N/A
73 Actual/360 $30,560 3/1/2003 2/1/2013 Yes Lock/28_Def/88_0.0%/4
78 Actual/360 $28,809 3/1/2003 2/1/2013 Yes Lock/28_Def/88_0.0%/4
83 Actual/360 $26,437 5/1/2003 4/1/2013 Yes Lock/26_Def/89_0.0%/5
86 Actual/360 $26,663 4/1/2003 N/A Yes Lock/27_Def/89_0.0%/4
91 Actual/360 $29,848 4/1/2003 N/A Yes Lock/27_Def/89_0.0%/4
100 Actual/360 $23,701 6/1/2003 N/A Yes Lock/25_Def/91_0.0%/4
103 Actual/360 $22,337 5/1/2003 N/A Yes Lock/26_Def/90_0.0%/4
104 Actual/360 $22,178 6/1/2003 5/1/2013 Yes Lock/25_Def/91_0.0%/4
105 Actual/360 $20,463 6/1/2003 5/1/2013 Yes Lock/25_Def/91_0.0%/4
115 Actual/360 $18,601 3/1/2003 2/1/2013 Yes Lock/28_Def/88_0.0%/4
124 Actual/360 $16,800 5/1/2003 4/1/2013 Yes Lock/26_Def/90_0.0%/4
127 Actual/360 $15,998 2/1/2003 N/A Yes Lock/29_Def/88_0.0%/3
128 Actual/360 $16,378 7/1/2003 6/1/2013 Yes Lock/24_Def/92_0.0%/4
133 Actual/360 $15,610 6/1/2003 5/1/2013 Yes Lock/25_Def/91_0.0%/4
146 Actual/360 $11,898 5/1/2003 N/A Yes Lock/26_Def/90_0.0%/4
161 Actual/360 $11,986 2/1/2003 N/A Yes Lock/29_Def/88_0.0%/3
Servicing Contractual
and Engineering Recurring LC & TI Contractual
Trustee Reserve at Replacement Reserve at Recurring
# Fees Recourse Origination Reserve/FF&E Origination LC&TI
==== ======== ======== =========== ============ =========== =========
12 0.05137% No N/A $160,800 X/X X/X
00 0.00000% Xx X/X $42,048 X/X X/X
00 0.00000% Xx X/X $14,304 $60,090 N/A
48 0.10137% No N/A $19,200 N/A N/A
50 0.05137% No N/A N/A N/A N/A
53 0.05137% No X/X X/X X/X X/X
00 0.00000% Xx X/X $4,770 $1,765 $21,180
65 0.10137% No N/A $9,792 $2,218 $26,616
68 0.05137% No N/A $7,574 N/A N/A
73 0.05137% No N/A N/A N/A N/A
78 0.05137% No X/X X/X X/X X/X
00 0.00000% Xx X/X $8,496 $4,167 $50,004
86 0.05137% No $23,025 X/X X/X X/X
00 0.00000% Xx X/X $16,425 N/A N/A
100 0.05137% No N/A N/A N/A N/A
103 0.05137% No $20,250 N/A N/A N/A
104 0.12137% No N/A N/A N/A N/A
105 0.05137% No N/A $2,040 N/A N/A
115 0.10137% No N/A $10,200 N/A N/A
124 0.05137% No N/A $4,980 N/A N/A
127 0.05137% No $10,102 $24,996 X/X X/X
000 0.00000% Xx X/X $3,914 $1,333 $16,000
133 0.10137% No N/A $7,128 $2,410 $28,920
146 0.05137% No N/A $9,000 N/A N/A
161 0.05137% No $82,250 $35,340 N/A N/A
Tax & Initial Initial other
Insurance Other Reserve
# Escrows Reserve Description
==== ======= ======= =============
12 Both N/A N/A
17 Tax N/A N/A
31 Both $6,550 PetsMart Tenant Estoppel Escrow
48 Tax N/A N/A
50 None N/A N/A
53 None N/A N/A
63 Both N/A N/A
65 Both N/A N/A
68 Insurance N/A N/A
73 None $12,500 Holdback for Certificate of Good Standing
78 None $12,500 Holdback for Certificate of Good Standing
83 Both N/A N/A
86 Both $25,500 Escrow held until drainage easement obtained.
91 Both X/X X/X
000 Xxxx X/X X/X
103 Both N/A N/A
104 None X/X X/X
000 Xxxx X/X X/X
115 Both X/X X/X
000 Xxxx X/X X/X
127 Both X/X X/X
000 Xxxx X/X X/X
133 Both N/A N/A
146 Both N/A N/A
161 Both N/A N/A
Contractual Contractual Letter
Other Other Reserve Letter of of Credit
# Reserve Description Credit Description
==== ======= =========== =========== ==================================================================
12 N/A N/A N/A N/A
17 N/A N/A $380,000 Release upon: I) Border's executes lease, ii) Border's occupies
space and is paying rent, and iii) Estoppel certificate executed
31 N/A N/A N/A N/A
48 N/A N/A N/A N/A
50 N/A N/A N/A N/A
53 N/A N/A N/A N/A
63 N/A N/A X/X X/X
00 X/X X/X $350,000 Release upon: Stabilized NOI of $576,651 and EGI of $705,777
68 N/A N/A N/A N/A
73 N/A N/A N/A N/A
78 N/A N/A N/A N/A
83 N/A N/A N/A N/A
86 N/A N/A X/X X/X
00 X/X X/X X/X X/X
100 N/A N/A X/X X/X
000 X/X X/X X/X X/X
104 N/A N/A X/X X/X
000 X/X X/X X/X X/X
115 N/A N/A X/X X/X
000 X/X X/X X/X X/X
127 N/A N/A X/X X/X
000 X/X X/X X/X X/X
133 N/A N/A X/X X/X
000 X/X X/X X/X X/X
000 X/X X/X X/X X/X
Initial Recurring Initial Earnout
Replacement Renovation/Leasing Debt Service Earnout Reserve
# Reserve Reserve Reserve Reserve Description
==== =========== ========== ========== =========== ================
12 $ 13,400 N/A $70,000 N/A N/A
17 $ 3,504 X/X X/X X/X X/X
31 $ 1,192 X/X X/X X/X X/X
48 $ 1,600 X/X X/X X/X X/X
00 X/X X/X X/X N/A N/A
53 N/A N/A N/A N/A N/A
63 $ 000 X/X X/X X/X X/X
65 $ 000 X/X X/X X/X X/X
68 $ 000 X/X X/X X/X X/X
00 X/X X/X X/X X/X X/X
78 N/A N/A N/A N/A N/A
83 $ 000 X/X X/X X/X X/X
00 X/X X/X X/X X/X X/X
91 $ 1,369 X/X X/X X/X X/X
100 $ 1,057 X/X X/X X/X X/X
000 X/X X/X N/A N/A N/A
000 X/X X/X X/X X/X X/X
105 $ 000 X/X X/X X/X X/X
115 $ 000 X/X X/X X/X X/X
124 $ 000 X/X X/X X/X X/X
127 $ 2,083 X/X X/X X/X X/X
128 $ 000 X/X X/X X/X X/X
133 $ 000 X/X X/X X/X X/X
146 $ 000 X/X X/X X/X X/X
161 $ 2,945 N/A N/A N/A N/A
Additional Additional Additional
Collateral Collateral Collateral
# Amount Event Date Description
==== =========== ============ ====================================
12 N/A N/A N/A
17 $380,000 3/27/2004 Release upon: i) Border's executes lease, ii) Border's occupies space and is paying
rent, and iii) Estoppel certificate executed
31 N/A N/A N/A
48 N/A N/A N/A
50 N/A N/A N/A
53 N/A N/A N/A
63 N/A N/A N/A
65 $350,000 5/8/2005 Release upon: Stabilized NOI of $576,651 and EGI of $705,777
68 N/A N/A N/A
73 N/A N/A N/A
78 N/A N/A N/A
83 N/A N/A N/A
86 N/A N/A N/A
91 N/A N/A N/A
100 N/A N/A N/A
000 X/X X/X X/X
000 X/X X/X X/X
000 X/X X/X X/X
000 X/X X/X X/X
124 N/A N/A N/A
000 X/X X/X X/X
000 X/X X/X X/X
000 X/X X/X X/X
000 X/X X/X X/X
161 N/A N/A N/A
EXHIBIT B-1C
SCHEDULE OF NCBFSB MORTGAGE LOANS
[See Attached Schedule]
Mortgage Loan Schedule
Credit Suisse First Boston Mortgage Securities Corp.
Commercial Mortage Pass-Through Certificates Series 2003-C3
Credit Suisse First Boston Mortgage Securities Corp.
Commercial Mortgage Pass-Through Certificates Series 2003-C3
"A" Loan
# Crossed Yes/No Property Name
===== ======= ====== ==================================
24 Xxxxxxx Xxxx Association
33 Newport East Inc.
44 Scarborough Manor Owner's Corp.
00 Xxxxxx Xxxxxxx Xxxx.
00 Xxxxxxx Xxxxxxx Associates Limited Partnership
51 110-118 Riverside Tenants Corp.
55 000 Xxxxx Xxxxxx Owners, Inc.
56 130 E. 18 Owners Corp.
62 Altapo-Bellwood Building, LLC
67 Columbus 69th LLC
00 Xxxxxx Xxxxxxxxx, LLC
71 CSI Holding Company, Inc.
74 Seminole Owners Corp.
75 000 Xxxx 00xx Xxxxxx Owners, Inc.
88 000 Xxxxxxxx Xxxxxx Xxxxxxxxx Xxxx.
00 Xxxx Xxxxxxx Owners' Corp.
101 21 N. Chatsworth Owners Corp.
102 000 Xxxx 00xx Xx. Tenants Corp.
110 0000 Xxxx Xxxxxx Tenants Incorporated
111 000 X. 00xx Xx. Owners Corp.
114 00 Xxxx 00xx Xxxxxx Xxxxxxx, Inc.
000 Xxxxxxxxxxx Xxxxx Professional Center, LLC
000 00xx Xxxxxx Xxxxxxxxx Xxxx.
000 Xxxxxxxx Xxxxxxx Corp.
000 Xxxxxxx Xxxxxxxx, XXX
000 000 Xxxx Xxx Housing Corp.
126 250 North Village Owners, Inc.
129 Georgian House Owners Corp.
131 000 Xxxxx Xxxxxx, LLC
132 Park Seventy-Ninth Corp.
000 Xxxxx Xxxx Xxxx Xxxxxx Owners, LLC
136 000 Xxxx 00xx Xxxxxx, Inc.
139 221 East 78th Tenants Corp.
000 Xxxxxxx Xxxxxx Corp.
000 Xxxxxxxxx Xxxxx Owners Corp.
000 Xxxxxxxxx Xxxxxxx Owners Corp.
000 Xxxxxxxx Xxxx Owners Corp. f/k/a 000-000 Xxxx 00xx Xxxxxx Owners Corp.
151 Shore View Corporation
000 Xx. Xxxx Xxxxx Owners Corp.
000 Xxxxxxxxxxx Xxxx Apartments Corp.
157 Caribbean House, Inc.
159 00 Xxxxxx Xxxxxx Tenants Corp.
165 000 Xxxx 000xx Xxxxxx Owners Corp.
166 3515 Owners Corp.
168 45 W. 10 Tenants' Corp.
169 XxXxxx Towers Inc.
174 One Franklin Owners Corp.
175 255 Fieldston Buyers Corp.
000 Xxxxxxxxx Xxxxx Xxxxxxx Corp.
178 Spice Lofthouse Corp.
179 Belgrave Owners, Inc.
183 000 Xxxx 00xx Xx. Realty Corp.
189 3-5 Franklin Owners Corp.
000 Xxxxxxx Xxxxxxx xx Xxxxxxx Xxxxxxx Owners, Inc.
195 000 X. 00xx Xx. Owners, Inc.
197 88 Associates, Inc.
199 000 Xxxxx Xxxxxx Corporation
203 Edgebrook Cooperative, Inc.
204 27 West 67 Studio Corp.
207 620 Tenants Corp.
208 000 Xxxx 00xx Xxxxxx Owners Corp.
000 Xxxxx Xxxx Owners Inc.
214 000 Xxxxxxxx Xxxxx Housing Corporation
217 00 Xxxxxxxx Xxxxxx Owners Corporation
000 Xxxxxxxx 373 Owners Corp.
220 0 Xxxxxx Xxxxxx Owners Corporation
000 Xxxxxxxxx Xxxxxx Loft Corporation
223 2965 Decatur Owners Inc.
224 71 East 77th Inc.
225 000 Xxxx 00xx Xxxxxx Owners Corp.
000 Xxxxxxxxxx Apartments, Inc.
229 000 Xxxxxx Xxxxxx Apartments, Inc.
230 6535 Broadway Owners Corp.
231 000 Xxxx 00xx Xxxxxx Owners Corp.
233 314 Tenant Owners Corp.
234 542 Holding Corporation
000 0xx Xxxxxx Loft Corporation
237 00 Xxxx 00xx Xx. Xxxxxxxxx Xxxx.
000 Xxxxxxxxx Xxxxx Xxxxxxxxxx Xxxx.
000 0-00 Xxxxxxxx Corp.
240 000 Xxxx 00xx Xx. Owners Corp.
242 Park Slope Flats Corp.
243 Xxxxxxx Apartments, Inc.
244 Clydesdale Cooperative Inc.
245 Mix-It Studios Cooperative Corporation
000 Xxxxxxx Xxxxxx Apartments, Inc.
247 35 RSD Tenants Realty Corp.
248 000 Xxxx 00xx Xxxxxx Apartment Corp.
249 000 Xxxxxxx Xxxxxx Xxxxxxxxxxx
Xxx
# Xxxxxxx Xxxx Xxxxxx Xxxxx Code
===== ====================== ========== ========== ===== =====
24 0000 Xxxxxxx Xxxx Xxxxxxxxx Xxxxxxxxx XX 00000
33 000 Xxxx 00xx Xxxxxx Xxx Xxxx Xxx Xxxx XX 00000
44 00 Xxxxxxxxx Xxxxxx Xxxxxxxx Xxxxxxxxxxx XX 00000
46 0-00 Xxxxxx Xxxxxxxx/000-000 Xxxxxx Avenue White Plains Xxxxxxxxxxx XX 00000
47 0000 Xxx Xxxxxx Xxxxxx Xxxx Xxxxxxx Xxxxxx XX 00000
51 000-000 Xxxxxxxxx Xxxxx Xxx Xxxx Xxx Xxxx XX 00000
55 000 Xxxxx Xxxxxx Xxx Xxxx Xxx Xxxx XX 00000
56 000 Xxxx 00xx Xxxxxx Xxx Xxxx Xxx Xxxx XX 00000
62 0000-0000 Xxxxx Xxxxxx and 0000 Xxxx Xxxxxx Xxxx Xxxxxx Xxxxxxx XX 00000
67 000-000 Xxxxxxxx Xxxxxx Xxx Xxxx Xxx Xxxx XX 00000
70 0000 Xxxxxx Xxxxxxxxx Xxxxxx Xxxxxx Xxxxxx'x XX 00000
71 0000 Xxxxxxxxxxxx Xxxx Xxxxxxxxxx Xxxxxxxxx XX 00000
74 72-61 & 00-00 000xx Xxxxxx Xxxxxx Xxxxx Xxxxxx XX 00000
75 000 Xxxx 00xx Xxxxxx Xxx Xxxx Xxx Xxxx XX 00000
88 000 Xxxxxxxx Xxxxxx Xxx Xxxx Xxx Xxxx XX 00000
89 0000 Xx Xxxxxx Xxxxxx Xxxxx Xxxxx XX 00000
101 00 Xxxxx Xxxxxxxxxx Xxxxxx Xxxxxxxxxx Xxxxxxxxxxx XX 00000
102 000 Xxxx 00xx Xxxxxx Xxx Xxxx Xxx Xxxx XX 00000
110 0000 Xxxx Xxxxxx Xxx Xxxx Xxx Xxxx XX 00000
111 000 Xxxx 00xx Xxxxxx Xxx Xxxx Xxx Xxxx XX 00000
114 00 Xxxx 00xx Xxxxxx Xxx Xxxx Xxx Xxxx XX 00000
118 00000 Xxxx Xxxxxx Xxxx Xxxxxxxxxxx Xxxxxx XX 00000
120 00 Xxxx 00xx Xxxxxx Xxx Xxxx Xxx Xxxx XX 00000
121 000 Xxxxx Xxxxxxxx Xxxxx Xxxxxx Xxxxxxxxxxx XX 00000
123 0000 Xxxxxxxx Xxxx Xxxxxx Xxxxxxx XX 00000
125 000 Xxxx Xxx Xxxxxx Xxx Xxxx Xxx Xxxx XX 00000
126 000 Xxxxx Xxxxxxx Xxxxxx Xxxxxxxxx Xxxxxx Xxxxxx XX 00000
129 000-00 00xx Xxxxxx Xxx Xxxxxxx Xxxxxx XX 00000
131 000 Xxxxx Xxxxxx Xxx Xxxx Xxx Xxxx XX 00000
132 000 Xxxx Xxxxxx Xxx Xxxx Xxx Xxxx XX 00000
134 000 Xxxxx Xxxxxxx Xxxxx Xxxx Xxxx Xxxxx Xxxx Xxxxx XX 00000
136 000 Xxxx 00xx Xxxxxx Xxx Xxxx Xxx Xxxx XX 00000
139 000 Xxxx 00xx Xxxxxx Xxx Xxxx Xxx Xxxx XX 00000
000 000-000 Xxxx 00xx Xxxxxx Xxx Xxxx Xxx Xxxx XX 00000
143 00 Xxxxx Xxxxxxxxxx Xxxxxx Xxxxxxxxx Xxxxxxxxxxx XX 00000
144 000-000 Xxxxx Xxxxxx Xxxxxxxx Xxxxxx XX 00000
145 000-000 Xxxx 00xx Xxxxxx Xxx Xxxx Xxx Xxxx XX 00000
151 0000 Xxxxx Xxxx Xxxxxxxx Xxxxx XX 00000
152 000 Xxxx 000xx Xxxxxx Xxx Xxxx Xxx Xxxx XX 00000
153 0 Xxxxx Xxxxx Xxxxx Xxxx Xxxxxx XX 00000
157 0000 Xxxxx Xxxx Xxxxxxxxx Xxxxxx XX 00000
159 00 Xxxxxx Xxxxxx Xxxxxxxx Xxxxx XX 00000
165 000 Xxxx 000xx Xxxxxx Xxx Xxxx Xxx Xxxx XX 00000
166 0000 Xxxxx Xxxxxx Xxxxxxx Xxxxxxxxx Xxxxx XX 00000
168 00 Xxxx 00xx Xxxxxx Xxx Xxxx Xxx Xxxx XX 00000
169 000 XxXxxx Xxxxxx Xxxxxxx Xxxxxxxxxxx XX 00000
174 0 Xxxxxxxx Xxxxxx Xxxxx Xxxxxx Xxxxxxxxxxx XX 00000
175 000 Xxxxxxxxx Xxxxxxx Xxxxxxxxx Xxxxx XX 00000
177 000-000 Xxxx 00xx Xxxxxx Xxx Xxxx Xxx Xxxx XX 00000
178 000 Xxxxxx Xxxxxx Xxx Xxxx Xxx Xxxx XX 00000
179 00 Xxxxxxxx Xxxx Xxxxx Xxxx Xxxxxx XX 00000
183 000 Xxxx 00xx Xxxxxx Xxx Xxxx Xxx Xxxx XX 00000
189 0-0 Xxxxxxxx Xxxxxx Xxxxx Xxxxxx Xxxxxxxxxxx XX 00000
190 000-00 Xxxxxxxx Xxxxxx Xxxxxxx Xxxxxxx Xxxxxx XX 00000
195 328, 330, 332 and 000 Xxxx 00xx Xxxxxx Xxx Xxxx Xxx Xxxx XX 00000
197 00 Xxxxxxx Xxxx Xxxx Xxx Xxxx Xxx Xxxx XX 00000
199 000 Xxxxx Xxxxxx Xxxxxxxx Xxxxx XX 00000
203 00 Xxxxxxxx Xxxxx Xxxxx Xxxxx Xxxxxx Xxxxxxxxxxx XX 00000
204 00 Xxxx 00xx Xxxxxx Xxx Xxxx Xxx Xxxx XX 00000
207 000-000 Xxxx 000xx Xxxxxx Xxxxxxxxx Xxxxx XX 00000
208 000 Xxxx 00xx Xxxxxx Xxx Xxxx Xxx Xxxx XX 00000
000 Xxxxx Xxxx Xxxx Xxxxxxxxx Xxxxx Xxxxxxxxxxx XX 00000
214 000 Xxxxxxxx Xxxxx Xxxxxxxx Xxxxx XX 00000
217 00 Xxxxxxxx Xxxxxx Xxx Xxxx Xxx Xxxx XX 00000
218 000 Xxxxxxxx Xxxxxx Xxx Xxxx Xxx Xxxx XX 00000
220 0 Xxxxxx Xxxxxx Xxxxxxxx Xxxxx XX 00000
222 00 Xxxx 00xx Xxxxxx Xxx Xxxx Xxx Xxxx XX 00000
223 0000 Xxxxxxx Xxxxxx Xxxxx Xxxxx XX 00000
224 00 Xxxx 00xx Xxxxxx Xxx Xxxx Xxx Xxxx XX 00000
225 000 Xxxx 00xx Xxxxxx Xxx Xxxx Xxx Xxxx XX 00000
000 Xxxxxxxxxx Xxxxx Xxxxxxxxxx Xxxxxxxxxxx XX 00000
229 000 Xxxxxx Xxxxxx Xxx Xxxxxxxx Xxxxxxxxxxx XX 00000
230 0000 Xxxxxxxx Xxxxxxxxx Xxxxx XX 00000
231 000 Xxxx 00xx Xxxxxx Xxx Xxxx Xxx Xxxx XX 00000
233 000 Xxxx 00xx Xxxxxx Xxx Xxxx Xxx Xxxx XX 00000
234 000 Xxxxxxxx Xxx Xxxx Xxx Xxxx XX 00000
236 00 Xxxxxx Xxxxxx Xxx Xxxx Xxx Xxxx XX 00000
237 00 Xxxx 00xx Xxxxxx Xxx Xxxx Xxx Xxxx XX 00000
238 140 South Middle Neck Road Great Neck Xxxxxx XX 00000
239 0-00 Xxxxxxxx Xxxxx Xxx Xxxx Xxx Xxxx XX 00000
240 000 Xxxx 00xx Xxxxxx Xxx Xxxx Xxx Xxxx XX 00000
242 000-000 00xx Xxxxxx Xxxxxxxx Xxxxx XX 00000
243 523 West 000xx Xxxxxx Xxx Xxxx Xxx Xxxx XX 00000
244 0000 Xxxxx Xxxx Xxxx X.X. Xxxxxxxxxx Xxxxxxxx xx Xxxxxxxx XX 00000
245 00 Xxxxxxx Xxxxxx Xxxxxxxxxx Xxxxxxxxx XX 00000
246 000 Xxxxx Xxxxxx Xxx Xxxx Xxx Xxxx XX 00000
247 00 Xxxxxxxxx Xxxxx Xxx Xxxx Xxx Xxxx XX 00000
248 000 Xxxx 00xx Xxxxxx Xxx Xxxx Xxx Xxxx XX 00000
249 000 Xxxxxxx Xxxxxx Xxxxxxxx Xxxxx XX 00000
Property Property Cooperative Mortgage Mortgage Original Cut-off
# Type Sub-type Yes/No Originator Loan Seller Balance Balance
===== ======== =========== ============ =========== =========== ======== =======
24 Multifamily Cooperative Yes NCB, FSB NCB, FSB $12,350,000 $12,339,480
33 Multifamily Cooperative Yes NCB, FSB NCB, FSB $9,500,000 $9,473,754
44 Multifamily Cooperative Yes NCB, FSB NCB, FSB $7,000,000 $7,000,000
46 Multifamily Cooperative Yes NCB, FSB NCB, FSB $7,000,000 $6,905,100
47 Retail Anchored No NCB, FSB NCB, FSB $6,900,000 $6,874,958
51 Multifamily Cooperative Yes NCB, FSB NCB, FSB $6,500,000 $6,489,830
55 Multifamily Cooperative Yes NCB, FSB NCB, FSB $6,000,000 $5,997,056
56 Multifamily Cooperative Yes NCB, FSB NCB, FSB $6,000,000 $5,996,801
62 Retail Unanchored No NCB, FSB NCB, FSB $5,700,000 $5,677,801
67 Multifamily Conventional No NCB, FSB NCB, FSB $5,500,000 $5,468,587
00 Xxxxxx Xxxxxxxx Xx XXX, XXX XXX, FSB $5,230,000 $5,199,591
71 Retail Unanchored No NCB, FSB NCB, FSB $5,200,000 $5,189,686
74 Multifamily Cooperative Yes NCB, FSB NCB, FSB $5,000,000 $4,997,219
75 Multifamily Cooperative Yes NCB, FSB NCB, FSB $5,000,000 $4,994,344
88 Multifamily Cooperative Yes NCB, FSB NCB, FSB $4,250,000 $4,250,000
89 Multifamily Cooperative Yes NCB, FSB NCB, FSB $4,250,000 $4,228,420
101 Multifamily Cooperative Yes NCB, FSB NCB, FSB $3,650,000 $3,645,973
102 Multifamily Cooperative Yes NCB, FSB NCB, FSB $3,500,000 $3,500,000
110 Multifamily Cooperative Yes NCB, FSB NCB, FSB $3,300,000 $3,300,000
111 Multifamily Cooperative Yes NCB, FSB NCB, FSB $3,300,000 $3,289,280
114 Multifamily Cooperative Yes NCB, FSB NCB, FSB $3,050,000 $3,050,000
118 Mixed Use Office/Retail No NCB, FSB NCB, FSB $2,980,000 $2,968,911
120 Multifamily Cooperative Yes NCB, FSB NCB, FSB $2,900,000 $2,893,309
121 Multifamily Cooperative Yes NCB, FSB NCB, FSB $2,850,000 $2,847,131
000 Xxxxxx Xxxxxxxx Xx XXX, XXX XXX, FSB $2,700,000 $2,697,907
125 Multifamily Cooperative Yes NCB, FSB NCB, FSB $2,600,000 $2,598,785
126 Multifamily Cooperative Yes NCB, FSB NCB, FSB $2,600,000 $2,588,579
129 Multifamily Cooperative Yes NCB, FSB NCB, FSB $2,500,000 $2,498,433
000 Xxxxxx XXX Xx XXX, XXX XXX, FSB $2,500,000 $2,486,313
132 Multifamily Cooperative Yes NCB, FSB NCB, FSB $2,450,000 $2,444,332
000 Xxxxxx XXX Xx XXX, XXX XXX, FSB $2,400,000 $2,390,914
136 Multifamily Cooperative Yes NCB, FSB NCB, FSB $2,300,000 $2,300,000
139 Multifamily Cooperative Yes NCB, FSB NCB, FSB $2,200,000 $2,200,000
142 Multifamily Cooperative Yes NCB, FSB NCB, FSB $2,100,000 $2,099,071
143 Multifamily Cooperative Yes NCB, FSB NCB, FSB $2,100,000 $2,095,720
144 Multifamily Cooperative Yes NCB, FSB NCB, FSB $2,100,000 $2,093,677
145 Multifamily Cooperative Yes NCB, FSB NCB, FSB $2,100,000 $2,091,006
151 Multifamily Cooperative Yes NCB, FSB NCB, FSB $2,000,000 $1,993,788
152 Multifamily Cooperative Yes NCB, FSB NCB, FSB $2,000,000 $1,981,837
153 Multifamily Cooperative Yes NCB, FSB NCB, FSB $1,975,000 $1,975,000
157 Multifamily Cooperative Yes NCB, FSB NCB, FSB $1,850,000 $1,844,851
159 Multifamily Cooperative Yes NCB, FSB NCB, FSB $1,850,000 $1,837,854
165 Multifamily Cooperative Yes NCB, FSB NCB, FSB $1,700,000 $1,698,288
166 Multifamily Cooperative Yes NCB, FSB NCB, FSB $1,700,000 $1,698,058
168 Multifamily Cooperative Yes NCB, FSB NCB, FSB $1,700,000 $1,688,839
169 Multifamily Cooperative Yes NCB, FSB NCB, FSB $1,675,000 $1,674,283
174 Multifamily Cooperative Yes NCB, FSB NCB, FSB $1,600,000 $1,596,664
175 Multifamily Cooperative Yes NCB, FSB NCB, FSB $1,600,000 $1,591,130
177 Multifamily Cooperative Yes NCB, FSB NCB, FSB $1,580,000 $1,578,188
178 Multifamily Cooperative Yes NCB, FSB NCB, FSB $1,536,000 $1,529,600
179 Multifamily Cooperative Yes NCB, FSB NCB, FSB $1,500,000 $1,500,000
183 Multifamily Cooperative Yes NCB, FSB NCB, FSB $1,400,000 $1,387,292
189 Multifamily Cooperative Yes NCB, FSB NCB, FSB $1,350,000 $1,337,635
190 Multifamily Cooperative Yes NCB, FSB NCB, FSB $1,325,000 $1,317,874
195 Multifamily Cooperative Yes NCB, FSB NCB, FSB $1,250,000 $1,242,069
197 Multifamily Cooperative Yes NCB, FSB NCB, FSB $1,200,000 $1,200,000
199 Multifamily Cooperative Yes NCB, FSB NCB, FSB $1,200,000 $1,194,738
203 Multifamily Cooperative Yes NCB, FSB NCB, FSB $1,135,000 $1,129,938
204 Multifamily Cooperative Yes NCB, FSB NCB, FSB $1,125,000 $1,123,933
207 Multifamily Cooperative Yes NCB, FSB NCB, FSB $1,000,000 $1,000,000
208 Multifamily Cooperative Yes NCB, FSB NCB, FSB $1,000,000 $998,837
210 Multifamily Cooperative Yes NCB, FSB NCB, FSB $1,000,000 $996,817
214 Multifamily Cooperative Yes NCB, FSB NCB, FSB $925,000 $918,814
217 Multifamily Cooperative Yes NCB, FSB NCB, FSB $870,000 $868,102
218 Multifamily Cooperative Yes NCB, FSB NCB, FSB $850,000 $848,612
220 Multifamily Cooperative Yes NCB, FSB NCB, FSB $850,000 $845,614
222 Multifamily Cooperative Yes NCB, FSB NCB, FSB $800,000 $798,333
223 Multifamily Cooperative Yes NCB, FSB NCB, FSB $800,000 $796,032
224 Multifamily Cooperative Yes NCB, FSB NCB, FSB $750,000 $750,000
225 Multifamily Cooperative Yes NCB, FSB NCB, FSB $750,000 $747,570
228 Multifamily Cooperative Yes NCB, FSB NCB, FSB $700,000 $700,000
229 Multifamily Cooperative Yes NCB, FSB NCB, FSB $700,000 $698,085
230 Multifamily Cooperative Yes NCB, FSB NCB, FSB $700,000 $690,402
231 Multifamily Cooperative Yes NCB, FSB NCB, FSB $675,000 $674,059
233 Multifamily Cooperative Yes NCB, FSB NCB, FSB $630,000 $627,645
234 Multifamily Cooperative Yes NCB, FSB NCB, FSB $625,000 $624,313
236 Multifamily Cooperative Yes NCB, FSB NCB, FSB $575,000 $573,058
237 Multifamily Cooperative Yes NCB, FSB NCB, FSB $550,000 $549,197
238 Multifamily Cooperative Yes NCB, FSB NCB, FSB $550,000 $548,317
239 Multifamily Cooperative Yes NCB, FSB NCB, FSB $550,000 $548,313
240 Multifamily Cooperative Yes NCB, FSB NCB, FSB $500,000 $499,477
242 Multifamily Cooperative Yes NCB, FSB NCB, FSB $450,000 $448,833
243 Multifamily Cooperative Yes NCB, FSB NCB, FSB $450,000 $448,553
244 Multifamily Cooperative Yes NCB, FSB NCB, FSB $450,000 $442,659
245 Multifamily Cooperative Yes NCB, FSB NCB, FSB $400,000 $394,783
246 Multifamily Cooperative Yes NCB, FSB NCB, FSB $350,000 $348,465
247 Multifamily Cooperative Yes NCB, FSB NCB, FSB $200,000 $199,162
248 Multifamily Cooperative Yes NCB, FSB NCB, FSB $175,000 $173,438
249 Multifamily Cooperative Yes NCB, FSB NCB, FSB $120,000 $119,541
Percentage of Initial Orig Rem. Orig
Initial Fee/ Interest Only Amort. Amort. Term to
# Pool Balance Leasehold Term Term Term Maturity
===== ============ ========= ============= ========= ======== ========
24 0.72% Fee 0 360 359 120
33 0.55% Fee 0 480 475 120
44 0.41% Fee 120 Interest Only Interest Only 120
46 0.40% Fee 0 216 211 120
47 0.40% Fee 0 360 356 120
51 0.38% Fee 0 300 299 120
55 0.35% Fee 0 480 479 120
56 0.35% Fee 0 720 717 120
62 0.33% Fee 0 300 297 120
67 0.32% Fee 0 360 354 120
70 0.30% Fee 0 330 325 120
71 0.30% Fee 0 240 239 120
74 0.29% Fee 0 480 479 120
75 0.29% Fee 0 480 478 120
88 0.25% Fee 120 Interest Only Interest Only 120
89 0.25% Fee 0 360 355 120
101 0.21% Fee 0 480 478 120
102 0.20% Fee 120 Interest Only Interest Only 120
110 0.19% Fee 120 Interest Only Interest Only 120
111 0.19% Fee 0 480 474 120
114 0.18% Fee 120 Interest Only Interest Only 120
118 0.17% Fee 0 360 356 120
120 0.17% Fee 0 480 476 120
121 0.17% Fee 0 480 478 120
123 0.16% Fee 0 360 359 120
125 0.15% Fee 0 720 717 120
126 0.15% Fee 0 360 356 120
129 0.14% Fee 0 480 479 120
131 0.14% Fee 0 360 354 120
132 0.14% Fee 0 480 476 120
134 0.14% Fee 0 360 356 120
136 0.13% Fee 120 Interest Only Interest Only 120
139 0.13% Fee 120 Interest Only Interest Only 120
142 0.12% Fee 0 480 479 120
143 0.12% Fee 0 420 417 120
144 0.12% Fee 0 360 357 120
145 0.12% Fee 0 360 356 120
151 0.12% Fee 0 360 357 120
152 0.11% Fee 0 270 265 120
153 0.11% Fee 120 Interest Only Interest Only 120
157 0.11% Fee 0 480 475 120
159 0.11% Fee 0 360 354 120
165 0.10% Fee 0 360 359 120
166 0.10% Fee 0 480 478 120
168 0.10% Fee 0 360 354 120
169 0.10% Fee 0 480 479 120
174 0.09% Fee 0 360 358 120
175 0.09% Fee 0 360 355 120
177 0.09% Fee 0 480 478 120
178 0.09% Fee 0 360 356 120
179 0.09% Fee 120 Interest Only Interest Only 120
183 0.08% Fee 0 300 294 120
189 0.08% Fee 0 240 236 120
190 0.08% Fee 0 360 355 120
195 0.07% Fee 0 300 296 120
197 0.07% Fee 120 Interest Only Interest Only 120
199 0.07% Fee 0 360 356 120
203 0.07% Leasehold 0 360 356 120
204 0.07% Fee 0 360 359 120
207 0.06% Fee 120 Interest Only Interest Only 120
208 0.06% Fee 0 480 478 120
210 0.06% Fee 0 360 357 120
214 0.05% Fee 0 360 354 120
217 0.05% Fee 0 360 358 120
218 0.05% Fee 0 480 477 120
220 0.05% Fee 0 360 355 120
222 0.05% Fee 0 360 358 120
223 0.05% Fee 0 360 355 120
224 0.04% Fee 120 Interest Only Interest Only 120
225 0.04% Fee 0 480 474 120
228 0.04% Fee 120 Interest Only Interest Only 120
229 0.04% Fee 0 480 475 120
230 0.04% Fee 0 180 176 180
231 0.04% Fee 0 480 477 120
233 0.04% Fee 0 480 473 120
234 0.04% Fee 0 480 478 120
236 0.03% Fee 0 480 474 120
237 0.03% Fee 0 480 477 120
238 0.03% Fee 0 360 357 120
239 0.03% Fee 0 480 474 120
240 0.03% Fee 0 480 478 120
242 0.03% Fee 0 360 357 120
243 0.03% Fee 0 180 179 180
244 0.03% Fee 0 180 175 180
245 0.02% Fee 0 180 176 180
246 0.02% Fee 0 240 238 120
247 0.01% Fee 0 360 356 120
248 0.01% Fee 0 180 177 180
249 0.01% Fee 0 360 356 120
Rem. First
Term to Interest Grace Interest Calculation Monthly Payment
# Maturity Rate Days (30/360 / Actual/360) Payment Date ARD Defeasance
===== ======== ======== ====== ===================== ======= ======= ===== ==========
24 119 6.1500% 9 Actual/360 $75,924 6/1/2003 N/A Yes
33 115 5.8500% 9 Actual/360 $51,816 2/1/2003 N/A Yes
44 119 5.7300% 9 30/360 $33,425 6/1/2003 N/A Yes
46 115 5.6200% 9 30/360 $51,586 2/1/2003 N/A No
47 116 6.5300% 5 Actual/360 $43,749 3/1/2003 N/A Yes
51 119 5.4700% 9 30/360 $39,799 6/1/2003 N/A No
55 119 5.4000% 9 Actual/360 $30,844 6/1/2003 N/A No
56 117 5.5000% 9 30/360 $28,561 4/1/2003 N/A Yes
62 117 6.1700% 0 Actual/360 $37,320 4/1/2003 N/A Yes
67 114 6.0000% 5 Actual/360 $32,975 1/1/2003 N/A No
70 115 6.0500% 10 Actual/360 $32,562 2/1/2003 N/A Yes
71 119 6.0500% 10 Actual/360 $37,405 6/1/2003 N/A Yes
74 119 5.6200% 9 30/360 $26,198 6/1/2003 N/A No
75 118 5.4100% 9 Actual/360 $25,738 5/1/2003 N/A No
88 116 5.8900% 9 30/360 $20,860 3/1/2003 N/A No
89 115 6.0600% 9 Actual/360 $25,876 2/1/2003 N/A Yes
101 118 5.6600% 9 30/360 $19,225 5/1/2003 N/A Yes
102 115 5.6500% 9 Actual/360 $16,708 2/1/2003 N/A Yes
110 118 5.5500% 9 30/360 $15,263 5/1/2003 N/A No
111 114 5.7800% 9 Actual/360 $17,837 1/1/2003 N/A No
114 116 5.5700% 9 30/360 $14,157 3/1/2003 N/A No
118 116 6.4000% 0 Actual/360 $18,640 3/1/2003 N/A Yes
120 116 5.5100% 9 30/360 $14,977 3/1/2003 N/A No
121 118 6.0000% 9 30/360 $15,681 5/1/2003 N/A Yes
123 119 6.2500% 10 Actual/360 $16,624 6/1/2003 N/A Yes
125 117 5.8000% 9 30/360 $12,970 4/1/2003 N/A No
126 116 5.7800% 9 Actual/360 $15,356 3/1/2003 N/A No
129 119 5.1700% 9 30/360 $12,338 6/1/2003 N/A No
131 114 6.2000% 10 Actual/360 $15,312 1/1/2003 N/A Yes
132 116 5.5000% 9 30/360 $12,636 3/1/2003 N/A No
134 116 6.3100% 10 Actual/360 $14,871 3/1/2003 N/A Yes
136 115 5.9300% 9 30/360 $11,366 2/1/2003 N/A No
139 114 6.1700% 9 30/360 $11,312 1/1/2003 N/A Yes
142 119 5.6900% 9 Actual/360 $11,218 6/1/2003 N/A No
143 117 5.8300% 9 Actual/360 $11,849 4/1/2003 N/A No
144 117 5.7000% 9 Actual/360 $12,294 4/1/2003 N/A No
145 116 5.9300% 9 Actual/360 $12,607 3/1/2003 N/A Yes
151 117 5.8200% 9 30/360 $11,761 4/1/2003 N/A No
152 115 5.8300% 9 30/360 $13,314 2/1/2003 N/A No
153 115 5.7700% 9 30/360 $9,496 2/1/2003 N/A No
157 115 5.8200% 9 Actual/360 $10,051 2/1/2003 N/A Yes
159 114 5.5500% 9 Actual/360 $10,652 1/1/2003 N/A No
165 119 5.9400% 9 30/360 $10,127 6/1/2003 N/A No
166 118 5.5300% 9 30/360 $8,803 5/1/2003 N/A No
168 114 5.5500% 9 Actual/360 $9,788 1/1/2003 N/A Yes
169 119 5.7800% 9 Actual/360 9,053 6/1/2003 N/A No
174 118 5.7700% 9 30/360 $9,358 5/1/2003 N/A No
175 115 5.5700% 9 Actual/360 $9,233 2/1/2003 N/A No
177 118 5.3600% 9 Actual/360 $8,079 5/1/2003 N/A Yes
178 116 5.8000% 9 30/360 $9,013 3/1/2003 N/A No
179 119 5.4700% 9 30/360 $6,838 6/1/2003 N/A No
183 114 5.7700% 9 30/360 $8,824 1/1/2003 N/A Yes
189 116 5.7600% 9 Actual/360 $9,548 3/1/2003 N/A No
190 115 5.7400% 9 Actual/360 $7,791 2/1/2003 N/A No
195 116 5.6300% 9 Actual/360 $7,832 3/1/2003 N/A No
197 117 5.7100% 9 30/360 $5,710 4/1/2003 N/A No
199 116 5.7900% 9 Actual/360 $7,095 3/1/2003 N/A No
203 116 5.6900% 9 Actual/360 $6,637 3/1/2003 N/A No
204 119 5.6900% 9 Actual/360 $6,579 6/1/2003 N/A No
207 118 5.5100% 9 Actual/360 $4,655 5/1/2003 N/A No
208 118 5.3100% 9 Actual/360 $5,079 5/1/2003 N/A No
210 117 5.6900% 9 30/360 $5,798 4/1/2003 N/A No
214 114 5.4500% 9 Actual/360 $5,267 1/1/2003 N/A No
217 118 5.5300% 9 30/360 $4,956 5/1/2003 N/A No
218 117 5.7200% 9 30/360 $4,512 4/1/2003 N/A Yes
220 115 5.9700% 9 Actual/360 $5,125 2/1/2003 N/A No
222 118 5.6300% 9 Actual/360 $4,647 5/1/2003 N/A No
223 115 6.1900% 9 Actual/360 $4,939 2/1/2003 N/A No
224 118 5.5700% 9 30/360 $3,481 5/1/2003 N/A No
225 114 5.7900% 9 Actual/360 $4,059 1/1/2003 N/A Yes
228 116 5.8800% 9 Actual/360 $3,478 3/1/2003 N/A Yes
229 115 5.8900% 9 Actual/360 $3,838 2/1/2003 N/A No
230 176 6.3000% 9 Actual/360 $6,055 3/1/2003 N/A Yes
231 117 5.9100% 9 Actual/360 $3,710 4/1/2003 N/A No
233 113 5.9000% 9 Actual/360 $3,458 12/1/2002 N/A Yes
234 118 5.5100% 9 Actual/360 $3,260 5/1/2003 N/A No
236 114 5.6300% 9 Actual/360 $3,048 1/1/2003 N/A No
237 117 5.7600% 9 Actual/360 $2,965 4/1/2003 N/A Yes
238 117 5.6200% 9 Actual/360 $3,192 4/1/2003 N/A No
239 114 6.0000% 9 Actual/360 $3,058 1/1/2003 N/A Yes
240 118 5.6900% 9 Actual/360 $2,671 5/1/2003 N/A No
242 117 6.7600% 9 30/360 $2,922 4/1/2003 N/A Yes
243 179 6.7800% 9 30/360 $3,990 6/1/2003 N/A No
244 175 6.8000% 9 Actual/360 $4,018 2/1/2003 N/A No
245 176 6.9200% 9 Actual/360 $3,599 3/1/2003 N/A No
246 118 5.9100% 9 30/360 $2,489 5/1/2003 N/A No
247 116 6.0600% 9 Actual/360 $1,218 3/1/2003 N/A No
248 177 7.4400% 9 Actual/360 $1,627 4/1/2003 N/A No
249 116 6.6000% 9 Actual/360 $774 3/1/2003 N/A No
Servicing Contractual
and Engineering Recurring LC & TI
Trustee Reserve at Replacement Reserve at
# Defeasance Provision Fees Recourse Origination Reserve/FF&E Origination
===== ==================== ======== ======== ========== ============ ============
24 Lock/48_Def/68_0.0%/4 0.08137% No N/A N/A N/A
33 Lock/48_Def/68_0.0%/4 0.08137% No N/A N/A N/A
44 Lock/48_Def/68_0.0%/4 0.08137% Xx X/X X/X X/X
00 X/X 0.08137% No N/A N/A N/A
47 Lock/28_Def/88_0.0%/4 0.08137% N/A $18,400 $34,131 $100,000
51 N/A 0.08137% No N/A N/A N/A
55 N/A 0.08137% No N/A N/A N/A
56 Lock/48_Def/68_0.0%/4 0.08137% Xx X/X X/X X/X
00 Xxxx/00_Xxx/00_0.0%/0 0.00000% X/X X/X $24,931 $80,000
67 N/A 0.08137% N/A $8,875 $15,000 N/A
70 Lock/29_Def/87_0.0%/4 0.08137% N/A N/A $10,938 N/A
71 Lock/25_Def/91_0.0%/4 0.08137% N/A $6,614 $6,369 $25,000
74 N/A 0.08137% No N/A N/A N/A
75 N/A 0.08137% Xx X/X X/X X/X
00 X/X 0.08137% No N/A N/A N/A
89 Lock/48_Def/68_0.0%/4 0.08137% No N/A N/A N/A
101 Lock/48_Def/68_0.0%/4 0.08137% No N/A N/A N/A
102 Lock/48_Def/68_0.0%/4 0.08137% Xx X/X X/X X/X
000 X/X 0.08137% Xx X/X X/X X/X
000 X/X 0.08137% Xx X/X X/X X/X
000 X/X 0.08137% Xx X/X X/X X/X
000 Xxxx/00_Xxx/00_0.0%/0 0.00000% X/X X/X $3,150 N/A
120 N/A 0.08137% No N/A N/A N/A
121 Lock/48_Def/68_0.0%/4 0.08137% Xx X/X X/X X/X
000 Xxxx/00_Xxx/00_0.0%/0 0.00000% X/X X/X $21,150 N/A
125 N/A 0.08137% Xx X/X X/X X/X
000 X/X 0.08137% Xx X/X X/X X/X
000 X/X 0.08137% Xx X/X X/X X/X
000 Xxxx/00_Xxx/00_0.0%/0 0.00000% X/X X/X $2,067 $10,000
132 N/A 0.08137% Xx X/X X/X X/X
000 Xxxx/00_Xxx/00_0.0%/0 0.00000% X/X X/X $4,461 $125,000
136 N/A 0.08137% No N/A N/A N/A
139 Lock/48_Def/68_0.0%/4 0.08137% Xx X/X X/X X/X
000 X/X 0.08137% Xx X/X X/X X/X
000 X/X 0.08137% Xx X/X X/X X/X
000 X/X 0.08137% No N/A N/A N/A
145 Lock/48_Def/68_0.0%/4 0.08137% Xx X/X X/X X/X
000 X/X 0.08137% Xx X/X X/X X/X
000 X/X 0.08137% No $25,000 X/X X/X
000 X/X 0.08137% No N/A N/A N/A
157 Lock/48_Def/68_0.0%/4 0.08137% Xx X/X X/X X/X
000 X/X 0.08137% Xx X/X X/X X/X
000 X/X 0.08137% Xx X/X X/X X/X
000 X/X 0.08137% No N/A N/A N/A
168 Lock/48_Def/68_0.0%/4 0.08137% Xx X/X X/X X/X
000 X/X 0.08137% Xx X/X X/X X/X
000 X/X 0.08137% Xx X/X X/X X/X
000 X/X 0.08137% No N/A N/A N/A
177 Lock/48_Def/68_0.0%/4 0.08137% Xx X/X X/X X/X
000 X/X 0.08137% Xx X/X X/X X/X
000 X/X 0.08137% No N/A N/A N/A
183 Lock/48_Def/68_0.0%/4 0.08137% Xx X/X X/X X/X
000 X/X 0.08137% Xx X/X X/X X/X
000 X/X 0.08137% Xx X/X X/X X/X
000 X/X 0.08137% Xx X/X X/X X/X
000 X/X 0.08137% Xx X/X X/X X/X
000 X/X 0.08137% Xx X/X X/X X/X
000 X/X 0.08137% Xx X/X X/X X/X
000 X/X 0.08137% Xx X/X X/X X/X
000 X/X 0.08137% Xx X/X X/X X/X
000 X/X 0.08137% Xx X/X X/X X/X
000 X/X 0.08137% Xx X/X X/X X/X
000 X/X 0.08137% Xx X/X X/X X/X
000 X/X 0.08137% No N/A N/A N/A
218 Lock/48_Def/68_0.0%/4 0.08137% Xx X/X X/X X/X
000 X/X 0.08137% Xx X/X X/X X/X
000 X/X 0.08137% Xx X/X X/X X/X
000 X/X 0.08137% Xx X/X X/X X/X
000 X/X 0.08137% No N/A N/A N/A
225 Lock/48_Def/68_0.0%/4 0.08137% No N/A N/A N/A
228 Lock/48_Def/68_0.0%/4 0.08137% Xx X/X X/X X/X
000 X/X 0.08137% No N/A N/A N/A
230 Lock/48_Def/128_0.0%/4 0.08137% Xx X/X X/X X/X
000 X/X 0.08137% No N/A N/A N/A
233 Lock/48_Def/68_0.0%/4 0.08137% Xx X/X X/X X/X
000 X/X 0.08137% Xx X/X X/X X/X
000 X/X 0.08137% No N/A N/A N/A
237 Lock/48_Def/68_0.0%/4 0.08137% Xx X/X X/X X/X
000 X/X 0.08137% No N/A N/A N/A
239 Lock/48_Def/68_0.0%/4 0.08137% Xx X/X X/X X/X
000 X/X 0.08137% No N/A N/A N/A
242 Lock/48_Def/68_0.0%/4 0.08137% No X/X X/X X/X
243 N/A 0.08137% Xx X/X X/X X/X
000 X/X 0.08137% Xx X/X X/X X/X
000 X/X 0.08137% Xx X/X X/X X/X
000 X/X 0.08137% Xx X/X X/X X/X
000 X/X 0.08137% Xx X/X X/X X/X
000 X/X 0.08137% Xx X/X X/X X/X
000 X/X 0.08137% No N/A N/A N/A
Contractual Tax & Initial Initial other Contractual
Recurring Insurance Other Reserve Other
# LC&TI Escrows Reserve Description Reserve
===== ========= ========= ======= ======================== ===========
24 N/A None N/A N/A N/A
33 N/A None $95,000 Estoppel Collateral Security Reserve N/A
44 N/A None N/A N/A N/A
46 N/A Tax N/A N/A N/A
47 $56,885 Both X/X X/X X/X
00 X/X Xxxx X/X N/A N/A
55 N/A None $30,000 Collateral Security for Xxxxxx X/X
00 X/X Xxxx X/X X/X X/X
00 $81,804 Both N/A N/A N/A
67 $4,275 Both X/X X/X X/X
00 X/X Xxxx X/X X/X N/A
71 N/A Both N/A N/A N/A
74 N/A Tax X/X X/X X/X
00 X/X Xxxx X/X N/A N/A
88 N/A None N/A N/A N/A
89 N/A Tax N/A N/A N/A
101 N/A None X/X X/X X/X
000 X/X Xxxx X/X N/A N/A
000 X/X Xxxx X/X X/X X/X
111 N/A Tax X/X X/X X/X
000 X/X Xxxx X/X N/A N/A
118 $20,998 Both X/X X/X X/X
000 X/X Xxxx X/X N/A N/A
000 X/X Xxxx X/X X/X X/X
123 $17,625 Both X/X X/X X/X
000 X/X Xxxx X/X N/A N/A
126 N/A Tax N/A N/A N/A
129 N/A Tax N/A N/A N/A
131 $2,067 Both X/X X/X X/X
000 X/X Xxxx X/X N/A N/A
134 $22,303 Both N/A N/A N/A
136 N/A Tax $100,000 Collateral Security for Maintenance Receivables N/A
139 N/A Tax N/A N/A N/A
142 N/A Tax N/A N/A N/A
143 N/A Tax N/A N/A N/A
144 N/A Tax X/X X/X X/X
000 X/X Xxxx X/X N/A N/A
000 X/X Xxxx X/X X/X X/X
152 N/A None X/X X/X X/X
000 X/X Xxxx X/X N/A N/A
000 X/X Xxxx X/X X/X X/X
159 N/A Tax N/A N/A N/A
165 N/A Tax X/X X/X X/X
000 X/X Xxxx X/X N/A N/A
168 N/A None X/X X/X X/X
000 X/X Xxxx X/X N/A N/A
000 X/X Xxxx X/X X/X X/X
175 N/A Tax X/X X/X X/X
000 X/X Xxxx X/X N/A N/A
178 N/A Tax X/X X/X X/X
000 X/X Xxxx X/X N/A N/A
183 N/A None X/X X/X X/X
000 X/X Xxxx X/X N/A N/A
190 N/A None N/A N/A N/A
195 N/A Tax $33,000 Negative Carry Collateral Security Reserve N/A
197 N/A None N/A N/A N/A
199 N/A Tax X/X X/X X/X
000 X/X Xxxx X/X N/A N/A
000 X/X Xxxx X/X X/X X/X
000 X/X Xxxx X/X X/X X/X
208 N/A Tax X/X X/X X/X
000 X/X Xxxx X/X N/A N/A
000 X/X Xxxx X/X X/X X/X
217 N/A Tax X/X X/X X/X
000 X/X Xxxx X/X N/A N/A
220 N/A Tax N/A N/A N/A
222 N/A Tax N/A N/A N/A
223 N/A Tax X/X X/X X/X
000 X/X Xxxx X/X N/A N/A
225 N/A Tax X/X X/X X/X
000 X/X Xxxx X/X N/A N/A
000 X/X Xxxx X/X X/X X/X
000 X/X Xxxx X/X X/X X/X
231 N/A Tax X/X X/X X/X
000 X/X Xxxx X/X N/A N/A
234 N/A Tax N/A N/A N/A
236 N/A Tax X/X X/X X/X
000 X/X Xxxx $15,000 Insurance Collateral Security Reserve N/A
238 N/A Tax N/A N/A N/A
239 N/A None X/X X/X X/X
000 X/X Xxxx X/X N/A N/A
000 X/X Xxxx X/X X/X X/X
243 N/A Tax X/X X/X X/X
000 X/X Xxxx X/X N/A N/A
000 X/X Xxxx X/X X/X X/X
246 N/A Tax N/A N/A N/A
247 N/A Tax N/A N/A N/A
248 N/A Tax N/A N/A N/A
249 N/A Tax N/A N/A N/A
Contractual Letter Initial
Other Reserve Letter of of Credit Replacement
# Description Credit Description Reserve
===== ============ ======== ========================= ===========
24 N/A N/A N/A N/A
33 N/A N/A N/A N/A
44 N/A N/A N/A N/A
46 N/A N/A X/X X/X
00 X/X X/X X/X $ 18,400
51 N/A N/A N/A N/A
55 N/A N/A N/A N/A
56 N/A N/A N/A N/A
62 N/A N/A N/A N/A
67 N/A N/A N/A N/A
70 N/A $250,000 Tenant Improvements and Leasing Commissions LOC N/A
71 N/A N/A N/A N/A
74 N/A N/A N/A N/A
75 N/A N/A N/A N/A
88 N/A N/A X/X X/X
00 X/X X/X X/X X/X
101 N/A N/A X/X X/X
000 X/X X/X X/X X/X
110 N/A N/A X/X X/X
000 X/X X/X X/X X/X
114 N/A N/A X/X X/X
000 X/X X/X X/X X/X
000 X/X X/X X/X X/X
121 N/A N/A X/X X/X
000 X/X X/X X/X X/X
125 N/A N/A X/X X/X
000 X/X X/X X/X X/X
129 N/A X/X X/X X/X
000 X/X X/X X/X $ 10,000
000 X/X X/X X/X X/X
000 X/X X/X X/X X/X
136 N/A N/A X/X X/X
000 X/X X/X X/X X/X
000 X/X X/X X/X X/X
143 N/A N/A X/X X/X
000 X/X X/X X/X X/X
145 N/A N/A X/X X/X
000 X/X X/X X/X X/X
152 N/A N/A X/X X/X
000 X/X X/X X/X X/X
157 N/A N/A X/X X/X
000 X/X X/X X/X X/X
165 N/A N/A X/X X/X
000 X/X X/X X/X X/X
168 N/A N/A X/X X/X
000 X/X X/X X/X X/X
174 N/A N/A X/X X/X
000 X/X X/X X/X X/X
000 X/X X/X X/X X/X
178 N/A N/A X/X X/X
000 X/X X/X X/X X/X
183 N/A N/A X/X X/X
000 X/X X/X X/X X/X
190 N/A N/A X/X X/X
000 X/X X/X X/X X/X
000 X/X X/X X/X X/X
199 N/A N/A X/X X/X
000 X/X X/X X/X X/X
204 N/A N/A X/X X/X
000 X/X X/X X/X X/X
208 N/A N/A X/X X/X
000 X/X X/X X/X X/X
214 N/A N/A X/X X/X
000 X/X X/X X/X X/X
218 N/A N/A X/X X/X
000 X/X X/X X/X X/X
222 N/A N/A X/X X/X
000 X/X X/X X/X X/X
224 N/A N/A X/X X/X
000 X/X X/X X/X X/X
228 N/A N/A X/X X/X
000 X/X X/X X/X X/X
230 N/A N/A X/X X/X
000 X/X X/X X/X X/X
233 N/A N/A X/X X/X
000 X/X X/X X/X X/X
236 N/A N/A X/X X/X
000 X/X X/X X/X X/X
238 N/A N/A X/X X/X
000 X/X X/X X/X X/X
240 N/A N/A X/X X/X
000 X/X X/X X/X $ 8,000
000 X/X X/X X/X X/X
244 N/A N/A X/X X/X
000 X/X X/X X/X X/X
246 N/A N/A X/X X/X
000 X/X X/X X/X X/X
000 X/X X/X X/X X/X
000 X/X X/X X/X X/X
Recurring Initial Earnout Additional
Renovation/Leasing Debt Service Earnout Reserve Collateral
# Reserve Reserve Reserve Description Amount
===== ================== ============ ======= =========== ==========
24 N/A N/A N/A N/A N/A
33 N/A N/A N/A N/A N/A
44 N/A N/A N/A N/A N/A
46 N/A N/A N/A N/A N/A
47 N/A N/A N/A N/A N/A
51 N/A N/A N/A N/A N/A
55 N/A N/A N/A N/A N/A
56 N/A N/A N/A N/A N/A
62 N/A N/A N/A N/A N/A
67 N/A N/A N/A N/A N/A
70 N/A N/A N/A N/A N/A
71 N/A N/A N/A N/A N/A
74 N/A N/A N/A N/A N/A
75 N/A N/A N/A N/A N/A
88 N/A N/A N/A N/A N/A
00 X/X X/X X/X X/X X/X
000 X/X X/X X/X X/X X/X
000 X/X X/X X/X X/X X/X
000 X/X X/X X/X X/X X/X
000 X/X X/X X/X X/X X/X
000 X/X X/X X/X X/X X/X
000 X/X X/X X/X X/X X/X
000 X/X X/X X/X X/X X/X
000 X/X X/X X/X X/X X/X
000 X/X X/X X/X X/X X/X
000 X/X X/X X/X X/X X/X
000 X/X X/X X/X X/X X/X
000 X/X X/X X/X X/X X/X
000 X/X X/X X/X X/X X/X
000 X/X X/X X/X X/X X/X
000 X/X X/X X/X X/X X/X
000 X/X X/X X/X X/X X/X
000 X/X X/X X/X X/X X/X
000 X/X X/X X/X X/X X/X
000 X/X X/X X/X X/X X/X
000 X/X X/X X/X X/X X/X
000 X/X X/X X/X X/X X/X
000 X/X X/X X/X X/X X/X
000 X/X X/X X/X X/X X/X
000 X/X X/X X/X X/X X/X
000 X/X X/X X/X X/X X/X
000 X/X X/X X/X X/X X/X
000 X/X X/X X/X X/X X/X
000 X/X X/X X/X X/X X/X
000 X/X X/X X/X X/X X/X
000 X/X X/X X/X X/X X/X
000 X/X X/X X/X X/X X/X
000 X/X X/X X/X X/X X/X
000 X/X X/X X/X X/X X/X
000 X/X X/X X/X X/X X/X
000 X/X X/X X/X X/X X/X
000 X/X X/X X/X X/X X/X
000 X/X X/X X/X X/X X/X
000 X/X X/X X/X X/X X/X
000 X/X X/X X/X X/X X/X
000 X/X X/X X/X X/X X/X
000 X/X X/X X/X X/X X/X
000 X/X X/X X/X X/X X/X
000 X/X X/X X/X X/X X/X
000 X/X X/X X/X X/X X/X
000 X/X X/X X/X X/X X/X
000 X/X X/X X/X X/X X/X
000 X/X X/X X/X X/X X/X
000 X/X X/X X/X X/X X/X
000 X/X X/X X/X X/X X/X
000 X/X X/X X/X X/X X/X
000 X/X X/X X/X X/X X/X
000 X/X X/X X/X X/X X/X
000 X/X X/X X/X X/X X/X
000 X/X X/X X/X X/X X/X
000 X/X X/X X/X X/X X/X
000 X/X X/X X/X X/X X/X
000 X/X X/X X/X X/X X/X
000 X/X X/X X/X X/X X/X
000 X/X X/X X/X X/X X/X
000 X/X X/X X/X X/X X/X
000 X/X X/X X/X X/X X/X
000 X/X X/X X/X X/X X/X
000 X/X X/X X/X X/X X/X
000 X/X X/X X/X X/X X/X
000 X/X X/X X/X X/X X/X
000 X/X X/X X/X X/X X/X
000 X/X X/X X/X X/X X/X
000 X/X X/X X/X X/X X/X
000 X/X X/X X/X X/X X/X
000 X/X X/X X/X X/X X/X
000 X/X X/X X/X X/X X/X
000 X/X X/X X/X X/X X/X
000 X/X X/X X/X X/X X/X
Additional Additional
Collateral Collateral
# Event Date Description
===== ========== ===========
24 N/A N/A
33 N/A N/A
44 N/A N/A
46 N/A N/A
47 N/A N/A
51 N/A N/A
55 N/A N/A
56 N/A N/A
62 N/A N/A
67 N/A N/A
70 N/A N/A
71 N/A N/A
74 N/A N/A
75 N/A N/A
88 X/X X/X
00 X/X X/X
000 X/X X/X
000 X/X X/X
000 X/X X/X
000 X/X X/X
000 X/X X/X
000 X/X X/X
000 X/X X/X
000 X/X X/X
123 N/A N/A
000 X/X X/X
000 X/X X/X
000 X/X X/X
000 X/X X/X
000 X/X X/X
000 X/X X/X
000 X/X X/X
000 X/X X/X
000 X/X X/X
000 X/X X/X
000 X/X X/X
000 X/X X/X
000 X/X X/X
000 X/X X/X
000 X/X X/X
000 X/X X/X
000 X/X X/X
000 X/X X/X
000 X/X X/X
000 X/X X/X
000 X/X X/X
000 X/X X/X
000 X/X X/X
000 X/X X/X
000 X/X X/X
000 X/X X/X
183 N/A N/A
000 X/X X/X
000 X/X X/X
000 X/X X/X
000 X/X X/X
000 X/X X/X
000 X/X X/X
000 X/X X/X
000 X/X X/X
208 N/A N/A
210 N/A N/A
214 N/A N/A
000 X/X X/X
000 X/X X/X
000 X/X X/X
000 X/X X/X
000 X/X X/X
000 X/X X/X
000 X/X X/X
000 X/X X/X
000 X/X X/X
000 X/X X/X
231 N/A N/A
000 X/X X/X
000 X/X X/X
236 N/A N/A
000 X/X X/X
000 X/X X/X
239 N/A N/A
000 X/X X/X
000 X/X X/X
000 X/X X/X
000 X/X X/X
245 N/A N/A
000 X/X X/X
000 X/X X/X
000 X/X X/X
000 X/X X/X
EXHIBIT B-1D
SCHEDULE OF PNC MORTGAGE LOANS
[See Attached Schedule]
Mortgage Loan Schedule
Credit Suisse First Boston Mortgage Securities Corp.
Commercial Mortgage Pass-Through Certificates Series 2003-C3
Combined Collateral
----------------- ------------------------
(i) (viii) (xix) (ii)
----------------- ------------------------
----------------- ------------------------
Credit Suisse First Boston Mortgage Securities Corp.
Commercial Mortgage Pass-Through Certificates Series 2003-C3
"A" Loan
# Crossed Yes/No Property Name Address
---------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------
10 Orchards Corporate Center 27725 and 00000 Xxxxxxxxx Xxxxxxxxx
14 Inland Empire Portfolio
15 Xxxxxxx Business Center
22 Silverado Apartments 0000 Xxxxxxxxxx Xxxxxxx
23 Stonebridge Waterfront Apartments 0000 Xxxxxxx Xxxxxx
25 Honeywell International Building 0000x Xxxxxxxx Xxxxx
28 The Seasons Apartments 6969 Hollister
37 Emerald Ridge Apartment 3400 Varsity Drive
42 6828 Xxxxx Xxxxx Drive 6828 Xxxxx Xxxxx Drive
43 Metaldyne Industrial III Portfolio
00 Xxxxxxxxxxx Xxxxx Xxxxxxx Xxxxx 0000 Xxxx Xxxxxxxxxxx Xxxx
81 The MEMEC Xxxxxxxx 000 Xxxxxxxxx Xxxxx
82 Campus View Center 0000 Xxxxxxx Xxxxxx and 0000 Xxxxxx Xxxx Xxxxxx
00 Xxxxxxx Xxxxxx Xxxxxxxxxx 0000 Xxxxx X Xxxxxx and 0000 Xxxxx X Xxxxxx
107 Whole Foods Market Phase II 0000 Xxxx 00xx Xxxxxx
112 Heritage Oaks Apartment 3506 Manchaca Road
000 Xxxxx Xxxx Xxxxxxxxxx 00-X Xxxxx Xxxxxx
000 Ralph's Grocery Store 000 Xxxxx Xx Xxxx Xxxxxx
000 Xxxxxxxxx Xxxxx Xxxxxxxxx 0000 Xxxxx Xxxxxxxxx Court
149 ParkRidge at McPherson 0000 Xxxxx Xxxx Xxxxxx
184 ParkRidge of Monticello 000 Xxxxxx Xxxxxx
000 The Veranda at Twin Creek Apartments 0000 Xxxx Xxxxx Xxxxx
198 Xxxxxx Colorado Apartments
-----------------------------------------------------------------------------------------------------------------------
(xxiii) (ix)
-----------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------
Zip Property Property Cooperative
# City County State Code Type Sub-type Yes/No
---------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------
00 Xxxxxxxxxx Xxxxx Xxxxxxx XX 00000 Xxxxxx Xxxxxxxx Xx
00 Xx
00 Xx
00 Xxxxxx Xxxxxx XX 00000 Multifamily Conventional Xx
00 Xxxxxxxxx Xxxxxxxx XX 00000 Multifamily Conventional No
00 Xxxxxxxx Xxxxxxx Xx Xxxx XX 00000 Xxxxxx Xxxxxxxx Xx
00 Xxxxxxx Xxxxxx XX 00000 Multifamily Conventional Xx
00 Xxxxx Xxxxx XX 00000 Multifamily Conventional No
00 Xxx Xxxxx Xxx Xxxxx XX 00000 Industrial X/X Xx
00 Xx
00 Xxxxxxxx Xxxxxxxx XX 00000 Xxxxxx Xxxxxxxx Xx
00 Xxxx Xxxxxx XX 00000 Industrial N/A No
82 Cypress Xxxxxx XX 00000 Retail Unanchored No
00 Xxxx Xxxxx Xxxxxxxxx XX 00000 Multifamily Conventional No
000 Xxxxxxxx Xxxx Xxxxxxx XX 00000 Retail Anchored No
000 Xxxxxx Xxxxxx XX 00000 Multifamily Conventional No
000 Xxxxxxxxxxxx Xxxxxxxxxx XX 00000 Multifamily Conventional No
000 Xxxxxxxxx Xxx Xxxxxxx XX 00000 Retail Anchored No
000 Xxxx Xxxxx Xxxxxxx XX 00000 Multifamily Conventional No
000 XxXxxxxxx XxXxxxxxx XX 00000 Multifamily Conventional No
000 Xxxxxxxxxx Xxxx XX 00000 Multifamily Conventional No
000 Xxxxxxx Xxxx XX 00000 Multifamily Conventional No
198 No
-------------------------------------------------------------------------------
(xiv) (xiii) (iii) (xxii)
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
Percentage of
Mortgage Mortgage Original Cut-off Initial
# Originator Loan Seller Balance Balance Pool Balance
-------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------
10 PNC PNC $30,000,000 $29,973,130 1.74%
14 PNC PNC $25,875,000 $25,875,000 1.50%
15 PNC PNC $24,040,000 $24,040,000 1.39%
22 PNC PNC $17,000,000 $16,963,392 0.98%
23 PNC PNC $16,000,000 $15,955,809 0.93%
25 PNC PNC $12,000,000 $11,934,999 0.69%
28 PNC PNC $10,500,000 $10,479,919 0.61%
37 PNC PNC $9,050,000 $9,012,255 0.52%
42 PNC PNC $7,175,000 $7,126,738 0.41%
43 PNC PNC $7,140,000 $7,079,489 0.41%
52 PNC PNC $6,450,000 $6,438,068 0.37%
81 PNC PNC $4,600,000 $4,579,174 0.27%
82 PNC PNC $4,500,000 $4,496,492 0.26%
90 PNC PNC $4,200,000 $4,192,091 0.24%
107 PNC PNC $3,400,000 $3,397,070 0.20%
112 PNC PNC $3,100,000 $3,087,408 0.18%
113 PNC PNC $3,050,000 $3,050,000 0.18%
137 PNC PNC $2,250,000 $2,248,135 0.13%
141 PNC PNC $2,160,000 $2,151,226 0.12%
149 PNC PNC $2,023,000 $2,019,834 0.12%
184 PNC PNC $1,385,000 $1,384,048 0.08%
185 PNC PNC $1,377,000 $1,373,542 0.08%
198 PNC PNC $1,200,000 $1,196,728 0.07%
-------------------- -------------------------------------------------------------------------------
(xii) (vii) (vi) (v) (xvii) (xv)
-------------------- -------------------------------------------------------------------------------
-------------------- -------------------------------------------------------------------------------
Initial Orig Rem. Orig Rem.
Fee/ Interest Only Amort. Amort. Term to Term to Interest Grace Interest Calculation
# Leasehold Term Term Term Maturity Maturity Rate Days (30/360 / Actual/360)
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
10 Fee 0 360 359 120 119 5.7000% 5 Actual/360
14 12 360 360 84 81 5.4000% 5 Actual/360
15 0 360 360 60 60 5.2000% 5 Actual/360
22 Fee 0 360 358 60 58 5.2500% 5 Actual/360
23 Fee/Leasehold 0 360 357 120 117 5.8500% 5 Actual/360
25 Fee 0 360 354 120 114 6.2500% 5 Actual/360
28 Fee 0 360 358 120 118 5.8000% 5 Actual/360
37 Fee 0 360 356 120 116 5.8000% 5 Actual/360
42 Fee 0 360 351 120 111 7.1500% 5 Actual/360
43 0 240 236 120 116 6.2500% 5 Actual/360
52 Fee 0 360 358 120 118 5.9500% 5 Actual/360
81 Fee 0 360 355 120 115 6.3500% 5 Actual/360
82 Fee 0 360 359 120 119 6.2300% 5 Actual/360
90 Fee 0 360 358 120 118 5.8700% 5 Actual/360
107 Fee 0 360 359 120 119 5.8500% 5 Actual/360
112 Fee 0 360 356 120 116 5.9400% 5 Actual/360
113 Fee 0 360 360 120 120 5.9000% 7 Actual/360
137 Fee/Leasehold 0 360 359 120 119 6.0000% 5 Actual/360
141 Fee 0 360 356 120 116 5.9400% 5 Actual/360
149 Fee 0 360 358 180 178 6.6800% 5 Actual/360
184 Fee 0 360 359 180 179 6.6800% 5 Actual/360
185 Fee 0 360 355 216 211 9.0200% 5 Actual/360
198 0 300 298 120 118 6.0000% 5 Actual/360
----------------------------------------------------------------------------------------------------------------------------------
(iv) (x) (xi) (xvi)
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
Servicing
First and
Monthly Payment Trustee
# Payment Date ARD Defeasance Defeasance Provision Fees
-------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------------
10 $174,120 6/1/2003 N/A Yes Lock/36_Def/80_0.0%/4 0.11137%
14 $145,296 4/1/2003 N/A Yes Lock/36_Def/44_0.0%/4 0.11137%
15 $132,006 7/1/2003 N/A Yes Lock/36_Def/20_0.0%/4 0.11137%
22 $93,875 5/1/2003 N/A Yes Lock/36_Def/20_0.0%/4 0.10137%
23 $94,391 4/1/2003 N/A Yes Lock/36_Def/80_0.0%/4 0.08137%
25 $73,886 1/1/2003 N/A Yes Lock/36_Def/77_0.0%/7 0.13137%
28 $61,609 5/1/2003 N/A Yes Lock/36_Def/80_0.0%/4 0.13137%
37 $53,101 3/1/2003 N/A No N/A 0.11137%
42 $48,460 10/1/2002 N/A Yes Lock/36_Def/80_0.0%/4 0.13137%
43 $52,188 3/1/2003 N/A Yes Lock/36_Def/80_0.0%/4 0.13137%
52 $38,464 5/1/2003 N/A Yes Lock/36_Def/80_0.0%/4 0.13137%
81 $28,623 2/1/2003 N/A Yes Lock/36_Def/80_0.0%/4 0.13137%
82 $27,649 6/1/2003 N/A Yes Lock/36_Def/80_0.0%/4 0.13137%
90 $24,831 5/1/2003 N/A Yes Lock/36_Def/80_0.0%/4 0.18137%
107 $20,058 6/1/2003 N/A Yes Lock/36_Def/80_0.0%/4 0.13137%
112 $18,467 3/1/2003 N/A No N/A 0.13137%
113 $18,091 7/1/2003 N/A Yes Lock/36_Def/80_0.0%/4 0.08137%
137 $13,490 6/1/2003 N/A Yes Lock/36_Def/80_0.0%/4 0.10137%
141 $12,867 3/1/2003 N/A No N/A 0.13137%
149 $13,027 5/1/2003 N/A Yes Lock/36_Def/140_0.0%/4 0.18137%
184 $8,919 6/1/2003 N/A Yes Lock/36_Def/140_0.0%/4 0.18137%
185 $11,099 2/1/2003 N/A Yes Lock/36_Def/176_0.0%/4 0.08137%
198 $7,732 5/1/2003 N/A Yes Lock/36_Def/80_0.0%/4 0.08137%
----------------
(xxi)
----------------
----------------
Contractual
Engineering Recurring LC & TI Contractual Tax &
Reserve at Replacement Reserve at Recurring Insurance
# Recourse Origination Reserve/FF&E Origination LC&TI Escrows
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
10 No N/A $43,215 X/X X/X Xxxx
00 Xx X/X $51,386 $500,000 $150,000 Both
15 No $31,398 $58,128 N/A $165,000 None
22 No N/A $83,000 X/X X/X Xxxx
00 Xx X/X $39,750 N/A N/A Both
25 No $33,125 $16,657 N/A $196,774 None
28 No N/A $54,000 N/A N/A Both
37 No $715,800 $121,008 X/X X/X Xxxx
00 Xx X/X $8,440 $469,075 $75,000 Both
43 No N/A N/A N/A N/A None
52 No N/A $9,460 N/A $30,000 Both
81 No N/A $9,558 $100,000 $50,000 Both
82 No $19,625 $6,068 $30,000 $18,000 Both
90 No $50,938 $38,480 X/X X/X Xxxx
000 Xx X/X $2,185 N/A $20,000 Both
112 No N/A $25,750 X/X X/X Xxxx
000 Xx X/X $12,000 X/X X/X Xxxx
000 Xx X/X X/X X/X $30,000 None
141 No N/A $12,500 X/X X/X Xxxx
000 Xx X/X $18,000 X/X X/X Xxxx
000 Xx X/X $16,000 X/X X/X Xxxx
000 Xx X/X $18,920 X/X X/X Xxxx
000 Xx X/X $10,568 N/A N/A Both
Initial Initial other Contractual Contractual
Other Reserve Other Other Reserve
# Reserve Description Reserve Description
-------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------------------
10 X/X X/X X/X X/X
00 X/X X/X X/X N/A
15 $12,925 Outstanding Issues Escrow N/A N/A
22 N/A N/A N/A N/A
23 N/A N/A N/A N/A
25 N/A N/A N/A N/A
28 N/A N/A X/X X/X
00 X/X X/X X/X X/X
42 $452,428 BioMedica Lease Escrow N/A N/A
43 N/A N/A N/A N/A
52 N/A N/A N/A N/A
81 N/A N/A N/A N/A
82 N/A N/A X/X X/X
00 X/X X/X X/X X/X
107 N/A N/A X/X X/X
000 X/X X/X X/X X/X
000 X/X X/X X/X X/X
137 $24,000 Tax and Insurance Escrow N/A N/A
141 N/A N/A X/X X/X
000 X/X X/X X/X X/X
184 N/A N/A X/X X/X
000 X/X X/X X/X X/X
198 N/A N/A N/A N/A
Letter Initial
Letter of of Credit Replacement
# Credit Description Reserve
------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------
10 $1,000,000 LOC as additional security for the Nextel West and Silicon Graphics tenants N/A
14 N/A N/A N/A
15 N/A N/A N/A
22 N/A N/A N/A
23 N/A N/A N/A
25 N/A N/A N/A
00 X/X X/X X/X
00 X/X X/X $ 24,200
42 $424,968 Arizeke Letter of Credit N/A
43 $455,772 Tenant LOC transferred to Lender as beneficiary N/A
52 N/A N/A N/A
81 N/A N/A N/A
82 N/A N/A N/A
90 N/A N/A N/A
107 N/A N/A N/A
000 X/X X/X X/X
000 X/X X/X X/X
000 X/X X/X X/X
000 X/X X/X $ 26,000
000 X/X X/X X/X
000 X/X X/X X/X
000 X/X X/X X/X
000 X/X X/X X/X
-------------------
(xx)
-------------------
-------------------
Recurring Initial Earnout Additional
Renovation/Leasing Debt Service Earnout Reserve Collateral
# Reserve Reserve Reserve Description Amount
----------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------
00 X/X X/X X/X X/X X/X
14 N/A N/A N/A N/A N/A
15 N/A N/A N/A N/A N/A
22 N/A N/A N/A N/A N/A
23 N/A N/A N/A N/A N/A
25 N/A N/A N/A N/A N/A
28 N/A N/A N/A N/A N/A
37 N/A N/A N/A N/A N/A
42 N/A N/A N/A N/A N/A
43 N/A N/A N/A N/A N/A
52 N/A N/A N/A N/A N/A
81 N/A N/A N/A N/A N/A
82 N/A N/A N/A N/A N/A
00 X/X X/X X/X X/X X/X
000 X/X X/X X/X X/X X/X
000 X/X X/X X/X X/X X/X
000 X/X X/X X/X X/X X/X
000 X/X X/X X/X X/X X/X
000 X/X X/X X/X X/X X/X
000 X/X X/X X/X X/X X/X
000 X/X X/X X/X X/X X/X
000 X/X X/X X/X X/X X/X
000 X/X X/X X/X X/X X/X
-----------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------
Additional Additional
Collateral Collateral
# Event Date Description
-------------------------------------------------
-------------------------------------------------
10 X/X X/X
00 X/X X/X
15 N/A N/A
22 N/A N/A
23 N/A N/A
25 N/A N/A
28 N/A N/A
37 N/A N/A
42 N/A N/A
43 N/A N/A
52 N/A N/A
81 N/A N/A
82 N/A N/A
90 X/X X/X
000 X/X X/X
000 X/X X/X
000 X/X X/X
000 X/X X/X
000 X/X X/X
000 X/X X/X
000 X/X X/X
000 X/X X/X
000 X/X X/X
EXHIBIT B-1E
SCHEDULE OF EUROHYPO MORTGAGE LOAN
[See Attached Schedule]
Mortgage Loan Schedule
Credit Suisse First Boston Mortgage Securities Corp.
Commercial Mortgage Pass-Through Certificates Series 2003-C3
Combined Collateral
------------------------------------ -------------------------------------------------------------------
(i) (viii) (xix) (ii)
------------------------------------ -------------------------------------------------------------------
Credit Suisse First Boston Mortgage Securities Corp.
Commercial Mortgage Pass-Through Certificates Series 2003-C3
"A" Loan Zip
# Crossed Yes/No Property Name Xxxxxxx Xxxx Xxxxxx Xxxxx Xxxx
------------------------------------------------------------------------------------------------------------------------------------
0 Xxxxxxxxxx Xxxxxx (1) 000 Xxxxxxxxxx Xxxxxx Xxxxxxxx Xxxxxxxxx XX 00000
------------------------------------ ------------------------------------------
(i) (viii) (xix) (xxiii) (ix)
------------------------------------ ------------------------------------------
Credit Suisse First Boston Mortgage Securities Corp.
Commercial Mortgage Pass-Through Certificates Series 2003-C3
"A" Loan Property Property Cooperative
# Crossed Yes/No Property Name Type Sub-type Yes/No
-----------------------------------------------------------------------------------------------------------
3 Columbiana Centre (1) Retail Anchored No
------------------------------------ -------------------------------------------------------------------
(i) (viii) (xix) (xiv) (xiii) (iii)
------------------------------------ -------------------------------------------------------------------
Credit Suisse First Boston Mortgage Securities Corp.
Commercial Mortgage Pass-Through Certificates Series 2003-C3
"A" Loan Mortgage Mortgage Original
# Crossed Yes/No Property Name Originator Loan Seller Balance
------------------------------------------------------------------------------------------------------------------------------------
3 Columbiana Centre (1) Column Financial, Inc./Eurohypo AG Column/Eurohypo $72,000,000
------------------------------------ ------------------------------------------- --------
(i) (viii) (xix) (iii) (xxii) (xii) (vii)
------------------------------------ ------------------------------------------- --------
Credit Suisse First Boston Mortgage Securities Corp.
Commercial Mortgage Pass-Through Certificates Series 2003-C3
Percentage of Initial Orig
"A" Loan Cutt-off Initial Fee/ Interest Only Amort.
# Crossed Yes/No Property Name Balance Pool Balance Leasehold Term Term
------------------------------------------------------------------------------------------------------------------------------------
3 Columbiana Centre (1) $71,906,994 4.17% Fee 0 360
------------------------------------ -------------------------------------------------------------------
(i) (viii) (xix) (vii) (vi) (v) (xvii) (xv)
------------------------------------ -------------------------------------------------------------------
Credit Suisse First Boston Mortgage Securities Corp.
Commercial Mortgage Pass-Through Certificates Series 2003-C3
Rem. Orig Rem.
"A" Loan Amort. Term to Term to Interest Grace Interest Calculation
# Crossed Yes/No Property Name Term Maturity Maturity Rate Days (30/360 / Actual
------------------------------------------------------------------------------------------------------------------------------------
3 Columbiana Centre (1) 359 60 59 4.1345% 0 Actual/360
------------------------------------ -------------------------------------------------------------------
(i) (viii) (xix) (iv) (x) (xi)
------------------------------------ -------------------------------------------------------------------
Credit Suisse First Boston Mortgage Securities Corp.
Commercial Mortgage Pass-Through Certificates Series 2003-C3
First
"A" Loan Monthly Payment
# Crossed Yes/No Property Name Payment Date ARD Defeasance
-----------------------------------------------------------------------------------------------------------------
3 Columbiana Centre (1) $349,345 6/11/2003 N/A Yes
------------------------------------
(i) (viii) (xix)
------------------------------------
Credit Suisse First Boston Mortgage Securities Corp.
Commercial Mortgage Pass-Through Certificates Series 2003-C3
Servicing
and Engineering
"A" Loan Trustee Reserve at
# Crossed Yes/No Property Name Defeasance Provision Fees Recourse Origination
------------------------------------------------------------------------------------------------------------------------------------
3 Columbiana Centre (1) Lock/25_Def/31_0.0%/4 0.03137% No N/A
------------------------------------
(i) (viii) (xix)
------------------------------------
Credit Suisse First Boston Mortgage Securities Corp.
Commercial Mortgage Pass-Through Certificates Series 2003-C3
Contractual
Recurring LC & TI Contractual Tax & Initial
"A" Loan Replacement Reserve at Recurring Insurance Other
# Crossed Yes/No Property Name Reserve/FF&E Origination LC&TI Escrows Reserve
------------------------------------------------------------------------------------------------------------------------------------
3 Columbiana Centre (1) N/A N/A N/A None N/A
------------------------------------
(i) (viii) (xix)
------------------------------------
Credit Suisse First Boston Mortgage Securities Corp.
Commercial Mortgage Pass-Through Certificates Series 2003-C3
Initial other Contractual Contractual
"A" Loan Reserve Other Other Reserve Letter of
# Crossed Yes/No Property Name Description Reserve Description Credit
------------------------------------------------------------------------------------------------------------------------------------
3 Columbiana Centre (1) N/A N/A N/A N/A
------------------------------------
(i) (viii) (xix)
------------------------------------
Credit Suisse First Boston Mortgage Securities Corp.
Commercial Mortgage Pass-Through Certificates Series 2003-C3
Letter Initial Recurring Initial
"A" Loan of Credit Replacement Renovation/Leasing Debt Service
# Crossed Yes/No Property Name Description Reserve Reserve Reserve
------------------------------------------------------------------------------------------------------------------------------------
3 Columbiana Centre (1) N/A N/A N/A N/A
------------------------------------ ----------------------------------------
(i) (viii) (xix) (xx)
------------------------------------ ----------------------------------------
Credit Suisse First Boston Mortgage Securities Corp.
Commercial Mortgage Pass-Through Certificates Series 2003-C3
Earnout Additional Additional Additional
"A" Loan Earnout Reserve Collateral Collateral Collateral
# Crossed Yes/No Property Name Reserve Description Amount Event Date Description
------------------------------------------------------------------------------------------------------------------------------------
3 Columbiana Centre (1) X/X X/X X/X X/X X/X
(1) Columbiana Centre was sold 50% by Eurohypo AG, New York Branch and has a
cut off date principal balance of $71, 906,994
EXHIBIT B-2
SCHEDULE OF EXCEPTIONS TO MORTGAGE FILE DELIVERY
Collateral ID Borrower Name Investor ID Loan Amount DocType Exception
------------- ------------- ----------- ----------- ------- ---------
702003C3 Home Depot Plaza Column 5,250,000.00 ASLR 20
782003C3 Xxxxxx Marketplace Column 4,850,000.00 ASLR 20
732003C3 TownePlace Suites - Mobile, AL Column 5,150,000.00 ASLR 68
772003C3 TownePlace Suites - Montgomery, AL Column 4,865,000.00 ASLR 68
802003C3 Timberland Apartments Column 4,800,000.00 ASLR 96
202003C3 Country Xxxx Apartments Column 19,400,000.00 LCRD 02
352003C3 Polar Plastics Column 9,500,000.00 LCRD 02
12003C3 000 Xxxxx Xxxxxx Column 203,000,000.00 MORT 20
22003C3 Washington Center Column 122,000,000.00 MORT 20
52003C3 The Crossings Column 61,000,000.00 MORT 20
72003C3 One Penn Center Column 48,000,000.00 MORT 20
82003C3 Alliance Portfolio Column 47,000,000.00 MORT 20
92003C3 Xxxxxxx Educational Headquarters Column 44,100,000.00 MORT 20
102003C3 Westin Savannah Harbor Resort Column 30,000,000.00 MORT 20
142003C3 000 Xxxx Xxxxxx Column 26,000,000.00 MORT 20
172003C3 The Xxxxx Apartments Column 22,300,000.00 MORT 20
192003C3 Elk Grove Industrial Portfolio Column 21,000,000.00 MORT 20
202003C3 Country Xxxx Apartments Column 19,400,000.00 MORT 20
222003C3 Oakridge Office Park Column 17,500,000.00 MORT 20
312003C3 000 Xxxxxxxxx Xxx Xxxxxx 10,400,000.00 MORT 20
332003C3 Elmhurst Place Apartments Column 9,600,000.00 MORT 20
352003C3 Polar Plastics Column 9,500,000.00 MORT 20
362003C3 Park Ten Place & Broadfield Parent Column 9,350,000.00 MORT 20
372003C3 000 Xxxx Xxxx Xxxxxx Column 9,100,000.00 MORT 20
402003C3 Rock Shadows Column 7,800,000.00 MORT 20
412003C3 Xxxxx Xxxx Apartments Column 7,600,000.00 MORT 20
422003C3 Xxxxxxx Street Shops Column 7,500,000.00 MORT 20
462003C3 Midland Place II Column 7,000,000.00 MORT 20
502003C3 Xxxxx'x Corner Shopping Center Column 6,600,000.00 MORT 20
582003C3 Ramada Inn - Kill Devil Hills, NC Column 6,000,000.00 MORT 20
592003C3 Staples Shopping Center Column 5,900,000.00 MORT 20
612003C3 Whisper Creek II Column 5,800,000.00 MORT 20
622003C3 The Crossroads Column 5,800,000.00 MORT 20
672003C3 Parkleigh North Apartments Column 5,600,000.00 MORT 20
702003C3 Home Depot Plaza Column 5,250,000.00 MORT 20
782003C3 Xxxxxx Marketplace Column 4,850,000.00 MORT 20
812003C3 Four Corners Westheimer Shopping Center Column 4,700,000.00 MORT 20
932003C3 Prairie Xxxxxxx Column 4,100,000.00 MORT 20
952003C3 North Huntington Hills Apartments Column 3,950,000.00 MORT 20
962003C3 0000 Xxxx Xxxxxxxxxxx Xxxxxx 3,900,000.00 MORT 20
972003C3 Fairway Crossing Apartments Column 3,850,000.00 MORT 20
982003C3 Vinton Park Apartments Column 1,628,680.00 MORT 20
992003C3 Maquoketa Park Apartments Column 1,266,540.00 MORT 20
1002003C3 Strawberry Hill Apartments Column 904,780.00 MORT 20
1072003C3 Xxxxxx Xxxx Townhomes Column 3,450,000.00 MORT 20
1092003C3 Windsor Place Apartments Column 3,400,000.00 MORT 20
1102003C3 Franklin Square Townhomes Column 3,350,000.00 MORT 20
1172003C3 New Market Center Column 3,050,000.00 MORT 20
1182003C3 West Wind Apartments Column 3,000,000.00 MORT 20
1202003C3 La Joya Apartments Column 2,932,000.00 MORT 20
1232003C3 7451 Xxxxxxx Building Column 2,800,000.00 MORT 20
1362003C3 Towne and Country Estates Apartments Column 2,400,000.00 MORT 20
1482003C3 Woodlawn Manor Apartments Column 1,280,000.00 MORT 20
1492003C3 Wynwood Apartments Column 760,000.00 MORT 20
1512003C3 Eckerd's - San Antonio, TX Column 2,000,000.00 MORT 20
1562003C3 Hide-A-Way Mini Storage Column 1,900,000.00 MORT 20
1572003C3 Valley Forge Office Colony Column 1,875,000.00 MORT 20
1592003C3 Pine Forest Mobile Home Park Column 1,850,000.00 MORT 20
1612003C3 Senate Manor Apartments I & II Column 1,840,000.00 MORT 20
1632003C3 000-000 Xxxx Xxxxxx Xxxxxx 1,775,000.00 MORT 20
1642003C3 Greentree Square Shopping Center Column 1,730,000.00 MORT 20
1652003C3 Woodscape Apartments Column 1,725,000.00 MORT 20
1682003C3 Casita Verde Column 1,700,000.00 MORT 20
1712003C3 Pratton Arms Apartments Column 1,680,000.00 MORT 20
1722003C3 Shoppes of Oakland Park Column 1,650,000.00 MORT 20
1732003C3 000 Xxxx Xxxxxxxxxx Xxxxxxx Column 1,650,000.00 MORT 20
1742003C3 Seguin Corners Column 1,625,000.00 MORT 20
1772003C3 00 Xxxxxxxxx Xxxxxx Xxxxxxxxxx Xxxxxx 1,592,000.00 MORT 20
1812003C3 Charlestown Place Apartments Column 1,500,000.00 MORT 20
1832003C3 Boardwalk Apartments Column 1,465,000.00 MORT 20
1872003C3 Hickory Heights Apartments Column 1,375,000.00 MORT 20
1882003C3 Jefferson Apartments Column 1,360,000.00 MORT 20
1892003C3 000 Xxxx Xxxxxx Xxxxxx 1,350,000.00 MORT 20
1922003C3 Xxxxxxx Manor Apartments Column 1,320,000.00 MORT 20
1932003C3 Chippenham South II Column 1,300,000.00 MORT 20
0000000X0 Sunset Plaza Apartments Column 1,300,000.00 MORT 20
1952003C3 0000 Xxxx Xxxxxxx Xxxx Xxxxxxxxx Xxxxxxxx Xxxxxx 1,300,000.00 MORT 20
1972003C3 0000 Xxxx Xxxxx, Xxxxxxxxx Xxxxxx 1,244,000.00 MORT 20
2012003C3 Paris Creek Duplexes Column 1,200,000.00 MORT 20
0000000X0 Sherwood Forest Apartments Column 1,178,000.00 MORT 20
2032003C3 Broadway Apartments Column 1,150,000.00 MORT 20
2062003C3 Village Apartments - Laredo Column 1,025,000.00 MORT 20
2072003C3 Lockbox Self Storage Column 1,015,000.00 MORT 20
0000000X0 Xxxxxxx Shopping Center Column 1,000,000.00 MORT 20
2122003C3 000 Xxxx 0xx Xxxxxx Column 1,000,000.00 MORT 20
2132003C3 Bridge Bay Apartments Column 950,000.00 MORT 20
2142003C3 Country Squire Gardens Mobile Home Park Column 940,000.00 MORT 20
2162003C3 Azalea Trailer Court Column 912,000.00 MORT 20
2172003C3 Brookwood Square Shopping Center Column 900,000.00 MORT 20
2202003C3 Park View Apartments - NH Column 850,000.00 MORT 20
2222003C3 Desert Park Apartments Column 807,000.00 MORT 20
2272003C3 Cambridge Gardens Apartments Column 720,000.00 MORT 20
0000000X0 Shadymist Apartments Column 715,000.00 MORT 20
2332003C3 Delano Apartments Column 670,000.00 MORT 20
0000000X0 Chatmoss Apartments Column 612,000.00 MORT 20
2422003C3 00 Xxxx Xx. Xxxxxx Column 500,000.00 MORT 20
27A2003C3 Builders FirstSource - College Park, GA Column 0.00 MORT 20
27B2003C3 Builders FirstSource - Lebanon, TN Column 0.00 MORT 20
27C2003C3 Builders FirstSource - Point of Rocks, MD Column 0.00 MORT 20
552003C3 Lexington Green Column 6,160,000.00 MORT 68
602003C3 Beach Club Apartments Column 5,850,000.00 MORT 68
732003C3 TownePlace Suites - Mobile, AL Column 5,150,000.00 MORT 68
772003C3 TownePlace Suites - Montgomery, AL Column 4,865,000.00 MORT 68
1392003C3 Country Breeze Mobile Home Park Column 2,250,000.00 MORT 68
122003C3 Weston Town Center Column 29,200,000.00 MORT 96
212003C3 Colonial Promenade Column 17,775,000.00 MORT 96
282003C3 El Camino Commons Column 10,700,000.00 MORT 96
302003C3 La Mesa Crossroads Column 10,500,000.00 MORT 96
392003C3 Shops at Boca Column 8,775,000.00 MORT 96
802003C3 Timberland Apartments Column 4,800,000.00 MORT 96
852003C3 Westaff Campus Column 4,400,000.00 MORT 96
862003C3 Briarcliffe Apartments Column 4,300,000.00 MORT 96
882003C3 Blue Heron Center Column 4,300,000.00 MORT 96
942003C3 Alhambra Apartments Column 4,100,000.00 MORT 96
1312003C3 Red Springs Shopping Center Column 2,500,000.00 MORT 96
1412003C3 Wyndhurst Building Column 2,200,000.00 MORT 96
1552003C3 Southwest Self Storage Column 1,950,000.00 MORT 96
1822003C3 Eckerd's - Dallas, TX Column 1,486,000.00 MORT 96
512003C3 Best Buy - Mishawaka, IN KeyBank 6,500,000.00 MORT 68
692003C3 Best Buy - Salt Lake City, UT KeyBank 5,400,000.00 MORT 68
742003C3 Circuit City - Conshohocken, PA KeyBank 5,091,750.00 MORT 68
872003C3 Northside Villas KeyBank 4,300,000.00 MORT 68
1042003C3 Xxxxx Self Storage KeyBank 3,500,000.00 MORT 96
1052003C3 Walgreens - Duluth, GA KeyBank 3,475,000.00 MORT 96
1252003C3 Xxxxx Crossing Shopping Center KeyBank 2,650,000.00 MORT 96
452003C3 Scarborough Manor Owner's Corp. NCB 7,000,000.00 MORT 20
522003C3 110-118 Riverside Tenants Corp. NCB 6,500,000.00 MORT 20
712003C3 Forbes Boulevard, LLC NCB 5,230,000.00 MORT 20
752003C3 Seminole Owners Corp. NCB 5,000,000.00 MORT 20
762003C3 000 Xxxx 00xx Xxxxxx Owners, Inc. NCB 5,000,000.00 MORT 20
1022003C3 21 N. Chatsworth Owners Corp. NCB 3,650,000.00 MORT 20
0000000X0 0000 Xxxx Xxxxxx Xxxxxxx Xxxxxxxxxxxx XXX 3,300,000.00 MORT 20
1122003C3 000 X. 00xx Xx. Owners Corp. NCB 3,300,000.00 MORT 20
1192003C3 Clarksville Ridge Professional Center, LLC NCB 2,980,000.00 MORT 20
1222003C3 Xxxxxxxx Gardens Corp. NCB 2,850,000.00 MORT 20
1262003C3 000 Xxxx Xxx Xxxxxxx Xxxx. XXX 2,600,000.00 MORT 20
1272003C3 000 Xxxxx Xxxxxxx Xxxxxx, Xxx. XXX 2,600,000.00 MORT 20
1302003C3 Georgian House Owners Corp. NCB 2,500,000.00 MORT 20
1332003C3 Park Seventy-Ninth Corp. NCB 2,450,000.00 MORT 20
1432003C3 Xxxxxxx Xxxxxx Corp. NCB 2,100,000.00 MORT 20
1442003C3 Larchmont Hills Owners Corp. NCB 2,100,000.00 MORT 20
0000000X0 Hawthorne Gardens Owners Corp. NCB 2,100,000.00 MORT 20
1532003C3 St. Xxxx Xxxxx Owners Corp. NCB 2,000,000.00 MORT 20
1542003C3 Westminster Hall Apartments Corp. NCB 1,975,000.00 MORT 20
0000000X0 00 Xxxxxx Xxxxxx Xxxxxxx Xxxx. XXX 1,850,000.00 MORT 20
1672003C3 3515 Owners Corp. NCB 1,700,000.00 MORT 20
1702003C3 XxXxxx Towers Inc. NCB 1,675,000.00 MORT 20
1752003C3 One Franklin Owners Corp. NCB 1,600,000.00 MORT 20
1762003C3 000 Xxxxxxxxx Xxxxxx Xxxx. XXX 1,600,000.00 MORT 20
1802003C3 Belgrave Owners, Inc. NCB 1,500,000.00 MORT 20
1912003C3 Windsor Terrace at Jamaica Estates Owners, Inc.NCB 1,325,000.00 MORT 20
1982003C3 88 Associates, Inc. NCB 1,200,000.00 MORT 20
2002003C3 000 Xxxxx Xxxxxx Xxxxxxxxxxx XXX 1,200,000.00 MORT 20
2042003C3 Edgebrook Cooperative, Inc. NCB 1,135,000.00 MORT 20
2082003C3 620 Tenants Corp. NCB 1,000,000.00 MORT 20
2112003C3 Cedar Pond Owners Inc. NCB 1,000,000.00 MORT 20
2242003C3 2965 Decatur Owners Inc. NCB 800,000.00 MORT 20
2392003C3 Melbourne House Apartments Corp. NCB 550,000.00 MORT 20
2412003C3 000 Xxxx 00xx Xx. Owners Corp. NCB 500,000.00 MORT 20
2432003C3 Park Slope Flats Corp. NCB 450,000.00 MORT 20
0000000X0 Xxxxxxx Apartments, Inc. NCB 450,000.00 MORT 20
2492003C3 000 Xxxx 00xx Xxxxxx Xxxxxxxxx Xxxx. XXX 175,000.00 MORT 20
562003C3 000 Xxxxx Xxxxxx Owners, Inc. NCB 6,000,000.00 MORT 96
722003C3 CSI Holding Company, Inc. NCB 5,200,000.00 MORT 96
2452003C3 Clydesdale Cooperative Inc. NCB 450,000.00 MORT 96
2462003C3 Mix-It Studios Cooperative Corporation NCB 400,000.00 MORT 96
112003C3 Orchards Corporate Center PNC 30,000,000.00 MORT 68
162003C3 Xxxxxxx Business Center PNC 24,040,000.00 MORT 68
442003C3 Metaldyne Industrial III PNC 7,140,000.00 MORT 68
Collateral ID Exception Description Notation
------------- --------------------- --------
702003C3 UNRECORDED ORIGINAL PLAZA K REALTY TO COLUMN
782003C3 UNRECORDED ORIGINAL XXXXXX MARKETPLACE TO COLUMN
732003C3 CERTIFIED TRUE COPY XXXXXXXX HOTEL GROUP TO UNION CAPITAL
772003C3 CERTIFIED TRUE COPY MC KIBBON HOTEL GROUP TO UNION CAPITAL
802003C3 DOCUMENT IS AN UNRECORDED COPY, NEED RECORDED COPY TIMBERLAND APARTMENTS TO COLUMN
202003C3 DOCUMENT IS COPY, NEED ORIGINAL #5769;$500,000.00; ORIGINAL W/CSFB FOR TRANSFER
352003C3 DOCUMENT IS COPY, NEED ORIGINAL #S547532($730,100.00) ORIGINAL W/CSFB FOR TRANSFER
12003C3 UNRECORDED ORIGINAL
22003C3 UNRECORDED ORIGINAL
52003C3 UNRECORDED ORIGINAL
72003C3 UNRECORDED ORIGINAL
82003C3 UNRECORDED ORIGINAL
92003C3 UNRECORDED ORIGINAL
102003C3 UNRECORDED ORIGINAL
142003C3 UNRECORDED ORIGINAL
172003C3 UNRECORDED ORIGINAL
192003C3 UNRECORDED ORIGINAL
202003C3 UNRECORDED ORIGINAL
222003C3 UNRECORDED ORIGINAL
312003C3 UNRECORDED ORIGINAL
332003C3 UNRECORDED ORIGINAL
352003C3 UNRECORDED ORIGINAL
362003C3 UNRECORDED ORIGINAL
372003C3 UNRECORDED ORIGINAL
402003C3 UNRECORDED ORIGINAL
412003C3 UNRECORDED ORIGINAL
422003C3 UNRECORDED ORIGINAL
462003C3 UNRECORDED ORIGINAL
502003C3 UNRECORDED ORIGINAL
582003C3 UNRECORDED ORIGINAL
592003C3 UNRECORDED ORIGINAL
612003C3 UNRECORDED ORIGINAL
622003C3 UNRECORDED ORIGINAL
672003C3 UNRECORDED ORIGINAL
702003C3 UNRECORDED ORIGINAL
782003C3 UNRECORDED ORIGINAL
812003C3 UNRECORDED ORIGINAL
932003C3 UNRECORDED ORIGINAL
952003C3 UNRECORDED ORIGINAL
962003C3 UNRECORDED ORIGINAL
972003C3 UNRECORDED ORIGINAL
982003C3 UNRECORDED ORIGINAL
992003C3 UNRECORDED ORIGINAL
1002003C3 UNRECORDED ORIGINAL
1072003C3 UNRECORDED ORIGINAL
1092003C3 UNRECORDED ORIGINAL
1102003C3 UNRECORDED ORIGINAL
1172003C3 UNRECORDED ORIGINAL
1182003C3 UNRECORDED ORIGINAL
1202003C3 UNRECORDED ORIGINAL
1232003C3 UNRECORDED ORIGINAL
1362003C3 UNRECORDED ORIGINAL
1482003C3 UNRECORDED ORIGINAL (2) FIRST PRIORITY, SECOND PRIORITY
1492003C3 UNRECORDED ORIGINAL (2) FIRST PRIORITY; SECOND PRIORITY
1512003C3 UNRECORDED ORIGINAL
1562003C3 UNRECORDED ORIGINAL
1572003C3 UNRECORDED ORIGINAL
1592003C3 UNRECORDED ORIGINAL
1612003C3 UNRECORDED ORIGINAL
1632003C3 UNRECORDED ORIGINAL
1642003C3 UNRECORDED ORIGINAL
1652003C3 UNRECORDED ORIGINAL
1682003C3 UNRECORDED ORIGINAL
1712003C3 UNRECORDED ORIGINAL
1722003C3 UNRECORDED ORIGINAL
1732003C3 UNRECORDED ORIGINAL
1742003C3 UNRECORDED ORIGINAL
1772003C3 UNRECORDED ORIGINAL
1812003C3 UNRECORDED ORIGINAL
1832003C3 UNRECORDED ORIGINAL
1872003C3 UNRECORDED ORIGINAL
1882003C3 UNRECORDED ORIGINAL
1892003C3 UNRECORDED ORIGINAL
1922003C3 UNRECORDED ORIGINAL
1932003C3 UNRECORDED ORIGINAL
0000000X0 UNRECORDED ORIGINAL
1952003C3 UNRECORDED ORIGINAL
1972003C3 UNRECORDED ORIGINAL
2012003C3 UNRECORDED ORIGINAL
0000000X0 UNRECORDED ORIGINAL
2032003C3 UNRECORDED ORIGINAL
2062003C3 UNRECORDED ORIGINAL
2072003C3 UNRECORDED ORIGINAL
0000000X0 UNRECORDED ORIGINAL
2122003C3 UNRECORDED ORIGINAL
2132003C3 UNRECORDED ORIGINAL
2142003C3 UNRECORDED ORIGINAL
2162003C3 UNRECORDED ORIGINAL
2172003C3 UNRECORDED ORIGINAL
2202003C3 UNRECORDED ORIGINAL
2222003C3 UNRECORDED ORIGINAL
2272003C3 UNRECORDED ORIGINAL
0000000X0 UNRECORDED ORIGINAL
2332003C3 UNRECORDED ORIGINAL
0000000X0 UNRECORDED ORIGINAL
2422003C3 UNRECORDED ORIGINAL
27A2003C3 UNRECORDED ORIGINAL
27B2003C3 UNRECORDED ORIGINAL
27C2003C3 UNRECORDED ORIGINAL
552003C3 CERTIFIED TRUE COPY
602003C3 CERTIFIED TRUE COPY
732003C3 CERTIFIED TRUE COPY
772003C3 CERTIFIED TRUE COPY
1392003C3 CERTIFIED TRUE COPY
122003C3 DOCUMENT IS AN UNRECORDED COPY, NEED RECORDED COPY
212003C3 DOCUMENT IS AN UNRECORDED COPY, NEED RECORDED COPY
282003C3 DOCUMENT IS AN UNRECORDED COPY, NEED RECORDED COPY
302003C3 DOCUMENT IS AN UNRECORDED COPY, NEED RECORDED COPY
392003C3 DOCUMENT IS AN UNRECORDED COPY, NEED RECORDED COPY
802003C3 DOCUMENT IS AN UNRECORDED COPY, NEED RECORDED COPY
852003C3 DOCUMENT IS AN UNRECORDED COPY, NEED RECORDED COPY
862003C3 DOCUMENT IS AN UNRECORDED COPY, NEED RECORDED COPY
882003C3 DOCUMENT IS AN UNRECORDED COPY, NEED RECORDED COPY
942003C3 DOCUMENT IS AN UNRECORDED COPY, NEED RECORDED COPY
1312003C3 DOCUMENT IS AN UNRECORDED COPY, NEED RECORDED COPY
1412003C3 DOCUMENT IS AN UNRECORDED COPY, NEED RECORDED COPY
1552003C3 DOCUMENT IS AN UNRECORDED COPY, NEED RECORDED COPY
1822003C3 DOCUMENT IS AN UNRECORDED COPY, NEED RECORDED COPY
512003C3 CERTIFIED TRUE COPY
692003C3 CERTIFIED TRUE COPY
742003C3 CERTIFIED TRUE COPY
872003C3 CERTIFIED TRUE COPY AMENDED & RESTATED
1042003C3 DOCUMENT IS AN UNRECORDED COPY, NEED RECORDED COPY
1052003C3 DOCUMENT IS AN UNRECORDED COPY, NEED RECORDED COPY PAGES 38,39,40,42 MISSING
1252003C3 DOCUMENT IS AN UNRECORDED COPY, NEED RECORDED COPY
452003C3 UNRECORDED ORIGINAL MORT CONSOLIDATION, MOD & EXTENSION AGMT
522003C3 UNRECORDED ORIGINAL
712003C3 UNRECORDED ORIGINAL
752003C3 UNRECORDED ORIGINAL
762003C3 UNRECORDED ORIGINAL MORT CONSOLIDATION, MOD & EXTENSION AGMT
1022003C3 UNRECORDED ORIGINAL MORT CONSOLDATION, MOD & EXTENSION AGMT
0000000X0 UNRECORDED ORIGINAL
1122003C3 UNRECORDED ORIGINAL
1192003C3 UNRECORDED ORIGINAL
1222003C3 UNRECORDED ORIGINAL
1262003C3 UNRECORDED ORIGINAL
1272003C3 UNRECORDED ORIGINAL
1302003C3 UNRECORDED ORIGINAL
1332003C3 UNRECORDED ORIGINAL
1432003C3 UNRECORDED ORIGINAL
1442003C3 UNRECORDED ORIGINAL
0000000X0 UNRECORDED ORIGINAL
1532003C3 UNRECORDED ORIGINAL MORT CONSOLIDATION, MOD & EXTENSION AGMT
1542003C3 UNRECORDED ORIGINAL MORTGAGE CONSOLIDATION MODIFICATION, EXTENSION
0000000X0 UNRECORDED ORIGINAL
1672003C3 UNRECORDED ORIGINAL
1702003C3 UNRECORDED ORIGINAL MORT CONSOLIDATION, MOD & EXTENSION AGMT
1752003C3 UNRECORDED ORIGINAL
1762003C3 UNRECORDED ORIGINAL
1802003C3 UNRECORDED ORIGINAL MORTGAGE CONSOLIDATION, MOD & EXTENSION AGMT
1912003C3 UNRECORDED ORIGINAL
1982003C3 UNRECORDED ORIGINAL
2002003C3 UNRECORDED ORIGINAL
2042003C3 UNRECORDED ORIGINAL
2082003C3 UNRECORDED ORIGINAL
2112003C3 UNRECORDED ORIGINAL
2242003C3 UNRECORDED ORIGINAL
2392003C3 UNRECORDED ORIGINAL MORT CONSOLIDATION MOD & EXTENSION AGMT
2412003C3 UNRECORDED ORIGINAL
2432003C3 UNRECORDED ORIGINAL MORT CONSOLIDATION, MOD & EXTENSION AGMT
0000000X0 UNRECORDED ORIGINAL
2492003C3 UNRECORDED ORIGINAL
562003C3 DOCUMENT IS AN UNRECORDED COPY, NEED RECORDED COPY
722003C3 DOCUMENT IS AN UNRECORDED COPY, NEED RECORDED COPY
2452003C3 DOCUMENT IS AN UNRECORDED COPY, NEED RECORDED COPY
2462003C3 DOCUMENT IS AN UNRECORDED COPY, NEED RECORDED COPY
112003C3 CERTIFIED TRUE COPY
162003C3 CERTIFIED TRUE COPY (3) XXXXXXX, HOPKINTON & MARLBORO
442003C3 CERTIFIED TRUE COPY (2) EDON & MINERVA, OHIO
EXHIBIT B-3
FORM OF CUSTODIAL CERTIFICATION
[date]
Credit Suisse First Boston KeyBank National Association
Mortgage Securities Corp. 000 Xxxxxx Xxxxxx
00 Xxxxxxx Xxxxxx Xxxxxxxxx, Xxxx 00000
Xxx Xxxx, Xxx Xxxx 00000
KeyCorp Real Estate Capital Markets, Inc. Column Financial, Inc.
000 Xxxx Xxxxxx, Xxxxx 0000 0000 Xxxxxxxxx Xxxx, X.X.
Xxxxxx Xxxx, Xxxxxxxx 00000 Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000-0000
National Consumer Cooperative Bank NCB, FSB
0000 Xxx Xxxxxx, X.X. 000 Xxxxx Xxxx Xxxxxx
Xxxxxxxxxx, X.X. 00000 Xxxxxxxxx, Xxxx 00000
ARCap Servicing, Inc.
0000 X. XxxXxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
[CONTROLLING CLASS REPRESENTATIVE]
Re:...Credit Suisse First Boston Mortgage Securities Corp., Commercial
Mortgage Pass-Through Certificates, Series 2003-C3
Ladies and Gentlemen:
Pursuant to Section 2.02(b) of the Pooling and Servicing Agreement
dated as of June 1, 2003 and related to the above-referenced Certificates (the
"Agreement"), Xxxxx Fargo Bank Minnesota, N.A., as trustee (the "Trustee"),
hereby certifies as to each Original Mortgage Loan subject to the Agreement
(except as to any LOC Cash Reserve and except as specifically identified in the
exception report attached hereto) that: (i) the original Mortgage Note specified
in clause (a)(i) of the definition of "Mortgage File" and all allonges thereto,
if any (or a copy of such Mortgage Note, together with a lost note affidavit and
indemnity certifying that the original of such Mortgage Note has been lost), the
original or copy of documents specified in clauses (a)(ii) through (a)(v),
(a)(vii), (a)(x), (a)(xii) and (a)(xiii) of the definition of "Mortgage File"
and, in the case of a hospitality property, the documents specified in clause
(a)(viii) of the definition of "Mortgage File" (without regard to the
parenthetical), and any other Specially Designated Mortgage Loan Documents
(without regard to modification agreements and assumption agreements), have been
received by it or a Custodian on its behalf; (ii) if such Mortgage Loan is the
Great Lakes Crossing Mortgage Loan, the original Mortgage Note specified in
clause (b)(i) of the definition of "Mortgage File" and all allonges thereto, if
any (or a copy of such Mortgage Note, together with a "lost note affidavit and
indemnity" certifying that the original of such Mortgage Note has been lost),
and the original or a copy of each document specified in clauses (b)(ii) and
(b)(iii) of the definition of "Mortgage File", have been received by the Trustee
or a Custodian on its behalf; (iii) if such report is due more than 180 days
after the Closing Date, the recordation/filing contemplated by Section 2.01(e)
of the Agreement (except in the case of the Great Lakes Crossing Mortgage Loan)
has been completed (based solely on receipt by the Trustee of the particular
recorded/filed documents or an appropriate receipt of recording/filing
therefor); (iv) all documents received by it or any Custodian with respect to
such Mortgage Loan have been reviewed by it or by such Custodian on its behalf
and (A) appear regular on their face (handwritten additions, changes or
corrections shall not constitute irregularities if initialed by the Borrower),
(B) appear to have been executed and (C) purport to relate to such Mortgage
Loan; and (v) based on the examinations referred to in Section 2.02(a) and
Section 2.02(b) of the Agreement and only as to the foregoing documents, the
information set forth in the Mortgage Loan Schedule with respect to the items
specified in clause (iii)(A) and clause (vi) of the definition of "Mortgage Loan
Schedule" accurately reflects the information set forth in the related Mortgage
File.
None of the Trustee, the General Master Servicer, the NCBFSB Master
Servicer, the General Special Servicer, the Co-op 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, binding, enforceable, sufficient or appropriate for the
represented purpose or that they are other than what they purport to be on their
face or to determine whether any of the representations and warranties made by
any Mortgage Loan Seller in their respective Mortgage Loan Purchase Agreement
are true and correct when made. Furthermore, none of the Trustee, the General
Master Servicer, the NCBFSB Master Servicer, the General Special Servicer, the
Co-op Special Servicer or any Custodian shall have any responsibility for
determining whether the text of any assignment or endorsement is in proper or
recordable form, whether the requisite recording of any document is in
accordance with the requirements of any applicable jurisdiction, or whether a
blanket assignment is permitted in any applicable jurisdiction.
In performing the reviews contemplated by Sections 2.02(a) and
2.02(b) of the Agreement, the Trustee may conclusively rely on the purported
genuineness of any such document and any signature thereon. It is understood
that the scope of the Trustee's review of the Mortgage Files is limited solely
to confirming that the documents specified in clauses (a)(i) through (a)(v),
clause (a)(vii), clause (a)(x), clause (a)(xii), clause (a)(xiii) and, in the
case of any Mortgage Loan secured by a Mortgage on a hospitality property, in
clause (a)(viii) of the definition of "Mortgage File" and any other Specially
Designated Mortgage Loan Documents (without regard to modification agreements
and assumption agreements), have been received and such additional information
as will be necessary for delivering the certifications required by the
Agreement.
With respect to the documents described in clause (iii) of the
definition of "Mortgage File", absent actual knowledge to the contrary, the
Trustee may assume, for purposes of the certifications delivered pursuant to
Section 2.02(a) of the Agreement or to be delivered pursuant to Section 2.02(b)
of the Agreement, that the Mortgage File for each Mortgage Loan includes a
separate Assignment of Leases.
Further, with respect to the documents described in clause (viii) of
the definition of "Mortgage File", absent actual knowledge to the contrary or
copies of UCC Financing Statements delivered to the Trustee as part of the
Mortgage File indicating otherwise, the Trustee may assume, for purposes of the
certification(s) to be delivered pursuant to Section 2.02(b) of the Agreement,
that the Mortgage File for each Mortgage Loan should include one state-level UCC
Financing Statement filed in the state of incorporation or organization of the
related Borrower for each Mortgaged Property (or with respect to any Mortgage
Loan that has two or more Borrowers, for each related Borrower).
Capitalized terms used herein and not otherwise defined shall have
the respective meanings assigned to them in the Agreement.
Respectfully,
XXXXX FARGO BANK MINNESOTA, N.A.
as Trustee
By:
-----------------------------------------
Name:
Title:
EXHIBIT B-4
SCHEDULE OF MORTGAGE LOANS COVERED BY
ENVIRONMENTAL INSURANCE
[Intentionally Omitted]
EXHIBIT B-5
SCHEDULE OF INITIAL LTV CO-OP BASIS
[Intentionally Omitted]
EXHIBIT B-6
SCHEDULE OF REFERENCE RATES
July 2003 7.14767
August 2003 7.36308
September 2003 7.36304
October 2003 7.14754
November 2003 7.36294
December 2003 7.14744
January 2004 7.36283
February 2004 7.14734
March 2004 7.14747
April 2004 7.36265
May 2004 7.14717
June 2004 7.36254
July 2004 7.14706
August 2004 7.36243
September 2004 7.36238
October 2004 7.14691
November 2004 7.36226
December 2004 7.14680
January 2005 7.14673
February 2005 7.14668
March 2005 7.14719
April 2005 7.36191
May 2005 7.14647
June 2005 7.36178
July 2005 7.14635
August 2005 7.36165
September 2005 7.36160
October 2005 7.14617
November 2005 7.36146
December 2005 7.14604
January 2006 7.14596
February 2006 7.14591
March 2006 7.14647
April 2006 7.36106
May 2006 7.14567
June 2006 7.36091
July 2006 7.14553
August 2006 7.36033
September 2006 7.36027
October 2006 7.14496
November 2006 7.36012
December 2006 7.14481
January 2007 7.13560
February 2007 7.13554
March 2007 7.13614
April 2007 7.34991
May 2007 7.13525
June 2007 7.34973
July 2007 7.13509
August 2007 7.34955
September 2007 7.34947
October 2007 7.13484
November 2007 7.34929
December 2007 7.13467
January 2008 7.34861
February 2008 7.13404
March 2008 7.13421
April 2008 7.34830
May 2008 7.13376
June 2008 7.34810
July 2008 7.13357
August 2008 7.34789
September 2008 7.34781
October 2008 7.13329
November 2008 7.34759
December 2008 7.13309
January 2009 7.13297
February 2009 7.13288
March 2009 7.13483
April 2009 7.34641
May 2009 7.13210
June 2009
July 2009
August 2009
September 2009
October 2009
November 2009
December 2009
January 2010
February 2010
March 2010
April 2010
May 2010
June 2010
EXHIBIT C
LETTERS OF REPRESENTATIONS AMONG DEPOSITOR,
TRUSTEE AND INITIAL DEPOSITARY
[See Attached Letters]
[LOGO] DTC
Book-Entry-Only Collateralized Morgage Obligations (CMOs)--
Without Owner Option to Redeem/Pass-Through Securities/
and Asset-Backed Securities
Letter of Representations
[To be Completed by Issuer and Agent]
_____________________________________________
[Name of Issuer]
_____________________________________________
[Name of Agent]
_________________
[Date]
Attention: General Counsel's Office
The Depository Trust Company
00 Xxxxx Xxxxxx 00xx Xxxxx
Xxx Xxxx, XX 00000-0000
Re:_________________________________________________________________
__________________________________________________________________
__________________________________________________________________
[Issue description (the "Securities")]
Ladies and Gentlemen:
This letter sets forth our understanding with respect to certain matters
relating to the Securities. Agent shall act as trustee, paying agent, fiscal
agent, or other such agent of Issuer with respect to the Securities. The
Securities have been issued pursuant to a trust indenture, trust agreement,
pooling and servicing agreement or other such document authorizing the issuance
of the Securities dated _______________ (the "Document").
_______________________________ ["Underwriter/Placement Agent"] is distributing
the Securities through The Depository Trust Company ("DTC").
To induce DTC to accept the Securities as eligible for deposit at DTC, and
to act in accordance with its Rules with respect to the Securities, Issuer and
Agent make the following representations to DTC:
1. Prior to closing on the Securities on ____________________ there shall
be deposited with DTC one or more Security certificates registered in the name
of DTC's nominee, Cede & Co., for each stated maturity of the Securities in the
face amounts set forth on Schedule A hereto, the total of which represents 100%
of the principal amount of such Securities. If, however, the aggregate principal
amount of any maturity exceeds $400 million, one certificate shall be issued
with respect to each $400 million of principal amount and an additional
certificate shall be issued with respect to any remaining principal amount. Each
Security certificate shall bear the following legend:
Unless this certificate is presented by an authorized representative
of The Depository Trust Company, a New York corporation ("DTC"), to Issuer
or its agent for registration of transfer, exchange, or payment, and any
certificate issued is registered in the name of Cede & Co. or in such
other name as is requested by an authorized representative of DTC (and any
payment is made to Cede & Co. or to such other entity as is requested by
an authorized representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as
the registered owner hereof, Cede & Co., has an interest herein.
Issuer represents: [Note: Issuer must represent one of the following, and shall
cross out the other.]
[The Security certificate(s) shall remain in Agent's custody as a "Balance
Certificate" subject to the provisions of the Balance Certificate Agreement
between Agent and DTC currently in effect.
On each day on which Agent is open for business and on which it receives
an instruction originated by a DTC participant ("Participant") through DTC's
Deposit/Withdrawal at Custodian ("DWAC") system to increase the Participant's
account by a specified number of Securities (a "Deposit Instruction"), Agent
shall, no later than 6:30 p.m. (Eastern Time) that day, either approve or cancel
the Deposit Instruction through the DWAC system.
On each day on which Agent is open for business and on which it receives
an instruction originated by Participant through the DWAC system to decrease the
Participant's account by a specified number of Securities (a "Withdrawal
Instruction"), Agent shall, no later than 6:30 p.m. (Eastern Time) that day,
either approve or cancel the Withdrawal Instruction through the DWAC system.
Agent agrees that its approval of a Deposit or Withdrawal Instruction
shall be deemed to be the receipt by DTC of a new reissued or reregistered
certificated Security on registration of transfer to the name of Cede & Co. for
the quantity of Securities evidenced by the Balance Certificate after the
Deposit or Withdrawal Instruction is effected.]
[The Security certificate(s) shall be custodied with DTC.]
2. Issuer: (a) understands that DTC has no obligation to, and will not,
communicate to its Participants or to any person having an interest in the
Securities any information contained in the Security certificate(s); and (b)
acknowledges that neither DTC's Participants nor any person having an interest
in the Securities shall be deemed to have notice of the provisions of the
Security certificates by virtue of submission of such certificate(s) to DTC.
3. In the event of any solicitation of consents from or voting by holders
of the Securities, Issuer or Agent shall establish a record date for such
purposes (with no provision for revocation of consents or votes by subsequent
holders) and shall send notice of such record date to DTC no fewer than 15
calendar days in advance of such record date. Notices to DTC pursuant to this
Paragraph by telecopy shall be directed to DTC's Reorganization Department,
Proxy Unit at (000) 000-0000 or (000) 000-0000. If the party sending the notice
does not receive a telecopy receipt from DTC confirming that the notice has been
received, such party shall telephone (000) 000-0000. Notices to DTC pursuant to
this Paragraph, by mail or by any other means, shall be sent to:
Supervisor,
Proxy Unit Reorganization Department
The Depository Trust Company
00 Xxxxx Xxxxxx 00xx Xxxxx
Xxx Xxxx, XX 00000-0000
4. In the event of a full or partial redemption, Issuer or Agent shall
send a notice to DTC specifying: (a) the amount of the redemption or refunding;
(b) in the case of a refunding, the maturity date(s) established under the
refunding; and (c) the date such notice is to be distributed to Security holders
(the "Publication Date"). Such notice shall be sent to DTC by a secure means
(e.g., legible telecopy, registered or certified mail, overnight delivery) in a
timely manner designed to assure that such notice is in DTC's possession no
later than the close of business on the business day before or, if possible, two
business days before the Publication Date. Issuer or Agent shall forward such
notice either in a separate secure transmission for each CUSIP number or in a
secure transmission for multiple CUSIP numbers (if applicable) which includes a
manifest or list of each CUSIP number submitted in that transmission. (The party
sending such notice shall have a method to verify subsequently the use of such
means and the timeliness of such notice.) The Publication Date shall be no fewer
than 30 days nor more than 60 days prior to the redemption date or, in the case
of an advance refunding, the date that the proceeds are deposited in escrow.
Notices to DTC pursuant to this Paragraph by telecopy shall be directed to DTC's
Call Notification Department at (516) 227- 4164 or (000) 000-0000. If the party
sending the notice does not receive a telecopy receipt from DTC confirming that
the notice has been received, such party shall telephone (000) 000-0000. Notices
to DTC pursuant to this Paragraph, by mail or by any other means, shall be sent
to:
Manager, Call Notification Department
The Depository Trust Company
000 Xxxxxxx Xxxxxx
Xxxxxx Xxxx, XX 00000-0000
5. In the event of an invitation to tender the Securities (including
mandatory tenders, exchanges, and capital changes), notice by Issuer or Agent to
Security holders shall be sent to DTC specifying the terms of the tender and the
Publication Date of such notice. Such notice shall be sent to DTC by a secure
means (e.g., legible telecopy, registered or certified mail, overnight delivery)
in a timely manner designed to assure that such notice is in DTC's possession no
later than the close of business on the business day before or, if possible, two
business days before the Publication Date. Issuer or Agent shall forward such
notice either in a separate secure transmission for each CUSIP number or in a
secure transmission for multiple CUSIP numbers (if applicable) which includes a
manifest or list of each CUSIP number submitted in that transmission. (The party
sending such notice shall have a method to verify subsequently the use and
timeliness of such notice.) Notices to DTC pursuant to this Paragraph and
notices of other corporate actions by telecopy shall be directed to DTC's
Reorganization Department at (000) 000-0000. If the party sending the notice
does not receive a telecopy receipt from DTC confirming that the notice has been
received, such party shall telephone (000) 000-0000. Notices to DTC pursuant to
this Paragraph, by mail or by any other means, shall be sent to:
Manager, Reorganization Department
Reorganization Window
The Depository Trust Company
00 Xxxxx Xxxxxx 00xx Xxxxx
Xxx Xxxx, XX 00000-0000
6. It is understood that if the Security holders shall at any time have
the right to tender the Securities to Issuer and require that Issuer repurchase
such holders' Securities pursuant to the Document and Cede & Co., as nominee of
DTC, or its registered assigns, as the record owner, is entitled to tender the
Securities, such tenders will be effected by means of DTC's Repayment Option
Procedures. Under the Repayment Option Procedures, DTC shall receive, during the
applicable tender period, instructions from its Participants to tender
Securities for purchase. Issuer and Agent agree that such tender for purchase
may be made by DTC by means of a book-entry credit of such Securities to the
account of Agent, provided that such credit is made on or before the final day
of the applicable tender period. DTC agrees that promptly after the recording of
any such book-entry credit, it will provide to Agent an Agent Receipt and
Confirmation or the equivalent, in accordance with the Repayment Option
Procedures, identifying the Securities and the aggregate principal amount
thereof as to which such tender for purchase has been made.
Agent shall send DTC notice regarding such optional tender by hand or by a
secure means (e.g., legible facsimile transmission, registered or certified
mail, overnight delivery) in a timely manner designed to assure that such notice
is in DTC's possession no later than the close of business two business days
before the Publication Date. The Publication Date shall be no fewer than 15 days
prior to the expiration date of the applicable tender period. Such notice shall
state whether any partial redemption of the Securities is scheduled to occur
during the applicable optional tender period. Notices to DTC pursuant to this
Paragraph by telecopy shall be directed to DTC's Put Bond Unit at (212)
855-5235. If the party sending the notice does not receive a telecopy receipt
from DTC confirming that the notice has been received, such party shall
telephone (000) 000-0000. Notices to DTC pursuant to this Paragraph, by mail or
by any other means, shall be sent to:
Supervisor, Put Bond Unit
Reorganization Department
The Depository Trust Company
00 Xxxxx Xxxxxx 00xx Xxxxx
Xxx Xxxx, XX 00000-0000
7. All notices and payment advices sent to DTC shall contain the CUSIP
number of the Securities.
8. Issuer or Agent shall send DTC written notice with respect to the
dollar amount per $1,000 original face value (or other minimum authorized
denomination if less than $1,000 face value) payable on each payment date
allocated as to the interest and principal portions thereof preferably five, but
no fewer than two, business days prior to such payment date. Such notices, which
shall also contain the current pool factor, any special adjustments to
principal/interest rates (e.g., adjustments due to deferred interest or
shortfall), and Agent contact's name and telephone number, shall be sent by
telecopy to DTC's Dividend Department at (000) 000-0000, and receipt of such
notices shall be confirmed by telephoning (000) 000-0000. Notices to DTC,
pursuant to this Paragraph, by mail or by any other means, shall be sent to:
Manager, Announcements
Dividend Department
The Depository Trust Company
00 Xxxxx Xxxxxx 00xx Xxxxx
Xxx Xxxx, XX 00000-0000
9. Issuer represents: [Note: Issuer must represent one of the following,
and shall cross out the other.] [The interest accrual period is record date to
record date.] [The interest accrual period is payment date to payment date.]
10. Issuer or Agent shall provide a written notice of interest payment
information, including the stated coupon rate information, to DTC as soon as the
information is available. Issuer or Agent shall provide such notice directly to
DTC electronically, as previously arranged by Issuer or Agent and DTC. If
electronic transmission has not been arranged, absent any other arrangements
between Issuer or Agent and DTC, such information shall be sent by telecopy to
DTC's Dividend Department at (000) 000-0000 or (000) 000-0000. If the party
sending the notice does not receive a telecopy receipt from DTC confirming that
the notice has been received, such party shall telephone (000) 000-0000. Notices
to DTC pursuant to this Paragraph, by mail or by any other means, shall be sent
to DTC's Dividend Department as indicated in Paragraph 8.
11. Interest payments and principal payments that are part of periodic
principal-andinterest payments shall be received by Cede & Co., as nominee of
DTC, or its registered assigns, in same-day funds no later than 2:30 p.m.
(Eastern Time) on each payment date. Issuer shall remit by 1:00 p.m. (Eastern
Time) on the payment date all such interest payments due Agent, or at such
earlier time as may be required by Agent to guarantee that DTC shall receive
payment in same-day funds no later than 2:30 p.m. (Eastern Time) on the payment
date. Absent any other arrangements between Issuer or Agent and DTC, such funds
shall be wired to the Dividend Deposit Account number that will be stamped on
the signature page hereof at the time DTC executes this Letter of
Representations.
12. Issuer or Agent shall provide DTC's Dividend Department, no later than
12:00 noon (Eastern Time) on the payment date, automated notification of
CUSIP-level detail. If the circumstances prevent the funds paid to DTC from
equaling the dollar amount associated with the detail payments by 12:00 noon
(Eastern Time), Issuer or Agent must provide CUSIP-level reconciliation to DTC
no later than 2:30 p.m. (Eastern Time). Reconciliation must be provided by
either automated means or written format. Such reconciliation notice, if sent by
telecopy, shall be directed to DTC Dividend Department at (000) 000-0000 and
receipt of such reconciliation notice shall be confirmed by telephoning (212)
855-4430.
13. Maturity and redemption payments allocated with respect to each CUSIP
number shall be received by Cede & Co., as nominee of DTC, or its registered
assigns, in same-day funds no later than 2:30 p.m. (Eastern Time) on the payment
date. Issuer shall remit by 1:00 p.m. (Eastern Time) on the payment date all
such maturity and redemption payments due Agent, or at such earlier time as
required by Agent to guarantee that DTC shall receive payment in same-day funds
no later than 2:30 p.m. (Eastern Time) on the payment date. Absent any other
arrangements between Issuer or Agent and DTC, such funds shall be wired to the
Redemption Deposit Account number that will be stamped on the signature page
hereof at the time DTC executes this Letter of Representations.
14. Principal payments (plus accrued interest, if any) as the result of
optional tenders for purchase effected by means of DTC's Repayment Option
Procedures shall be received by Cede & Co., as nominee of DTC, or its registered
assigns, in same-day funds no later than 2:30 p.m. (Eastern Time) on the payment
date. Issuer shall remit by 1:00 p.m. (Eastern Time) on the payment date all
such reorganization payments due Agent, or at such earlier time as required by
Agent to guarantee that DTC shall receive payment in same-day funds no later
than 2:30 p.m. (Eastern Time) on the payment date. Absent any other arrangements
between Issuer or Agent and DTC, such funds shall be wired to the Reorganization
Deposit Account number that will be stamped on the signature page hereof at the
time DTC executes this Letter of Representations.
15. Agent shall send DTC all periodic certificate holders remittance
reports with respect to the Securities. If sent by facsimile transmission, such
reports shall be sent to (212) 855- 4777. If the party sending the report does
not receive a telecopy receipt from DTC confirming that the notice has been
received, such party shall telephone (000) 000-0000.
16. DTC may direct Issuer or Agent to use any other number or address as
the number or address to which notices or payments of interest or principal may
be sent.
17. In the event of a redemption, acceleration, or any other similar
transaction (e.g., tender made and accepted in response to Issuer's or Agent's
invitation) necessitating a reduction in the aggregate principal amount of
Securities outstanding or an advance refunding of part of the Securities
outstanding, DTC, in its discretion: (a) may request Issuer or Agent to issue
and authenticate a new Security certificate; or (b) may make an appropriate
notation on the Security certificate indicating the date and amount of such
reduction in principal except in the case of final maturity, in which case the
certificate will be presented to Issuer or Agent prior to payment, if required.
18. In the event that Issuer determines that beneficial owners of
Securities shall be able to obtain certificated Securities, Issuer or Agent
shall notify DTC of the availability of certificates. In such event, Issuer or
Agent shall issue, transfer, and exchange certificates in appropriate amounts,
as required by DTC and others.
19. DTC may discontinue providing its services as securities depository
with respect to the Securities at any time by giving reasonable notice to Issuer
or Agent (at which time DTC will confirm with Issuer or Agent the aggregate
principal amount of Securities outstanding). Under such circumstances, at DTC's
request Issuer and Agent shall cooperate fully with DTC by taking appropriate
action to make available one or more separate certificates evidencing Securities
to any Participant having Securities credited to its DTC accounts.
20. Nothing herein shall be deemed to require Agent to advance funds on
behalf of Issuer.
21. This Letter of Representations may be executed in any number of
counterparts, each of which when so executed shall be deemed to be an original,
but all such counterparts together shall constitute but one and the same
instrument.
22. This Letter of Representations shall be governed by, and construed in
accordance with, the laws of the State of New York, without giving effect to
principles of conflicts of law.
23. The sender of each notice delivered to DTC pursuant to this Letter of
Representations is responsible for confirming that such notice was properly
received by DTC.
24. Issuer recognizes that DTC does not in any way undertake to, and shall
not have any responsibility to, monitor or ascertain the compliance of any
transactions in the Securities with the following, as amended from time to time:
(a) any exemptions from registration under the Securities Act of 1933; (b) the
Investment Company Act of 1940; (c) the Employee Retirement Income Security Act
of 1974; (d) the Internal Revenue Code of 1986; (e) any rules of any
selfregulatory organizations (as defined under the Securities Exchange Act of
1934); or (f) any other local, state, or federal laws or regulations thereunder.
25. Issuer hereby authorizes DTC to provide to Agent listings of
Participants' holdings, known as Securities Position Listings ("SPLs") with
respect to the Securities from time to time at the request of the Agent. DTC
charges a fee for such SPLs. This authorization, unless revoked by Issuer, shall
continue with respect to the Securities while any Securities are on deposit at
DTC, until and unless Agent shall no longer be acting. In such event, Issuer
shall provide DTC with similar evidence, satisfactory to DTC, of the
authorization of any successor thereto so to act. Requests for SPLs shall be
sent by telecopy to the Proxy Unit of DTC's Reorganization Department at (212)
855-5181 or (000) 000-0000. Receipt of such requests shall be confirmed by
telephoning (000) 000-0000. Requests for SPLs, sent by mail or by any other
means, shall be directed to the address indicated in Paragraph 3.
26. Issuer and Agent shall comply with the applicable requirements stated
in DTC's Operational Arrangements, as they may be amended from time to time.
DTC's Operational Arrangements are posted on DTC's website at "xxx.XXX.xxx."
27. The following rider(s), attached hereto, are hereby incorporated into
this Letter of Representations:
________________________________________________________________________________
________________________________________________________________________________
Notes:
A. If there is an Agent (as defined in this Letter of Representations),
Agent as well as Issuer must sign this Letter. If there is no Agent, in signing
this Letter Issuer itself undertakes to perform all of the obligations set forth
herein.
B. Schedule B contains statements that DTC believes accurately describe DTC, the
method of effecting book-entry transfers of securities distributed through DTC,
and certain related matters.
Very truly yours,
--------------------------------------------
[Issuer]
By:
-----------------------------------------
[Authorized Officer's Signature]
-----------------------------------------
[Agent]
By:
-----------------------------------------
[Authorized Officer's Signature]
Received and
Accepted: THE DEPOSITORY TRUST COMPANY
cc: Underwriter/Placement Agent
Underwriter's/Placement Agent's Counsel
SCHEDULE A
----------
___________________________________________________________
___________________________________________________________
[Describe Issue, Including Issuer's Name]
CUSIP Number Principal Amount Maturity Date Interest Rate
SCHEDULE B
----------
SAMPLE OFFERING DOCUMENT LANGUAGE
DESCRIBING BOOK-ENTRY-ONLY ISSUANCE
--------------------------------------------
(Prepared by DTC--bracketed material may be applicable only to certain issues)
1. The Depository Trust Company ("DTC"), New York, NY, will act as
securities depository for the securities (the "Securities"). The Securities will
be issued as fully-registered securities registered in the name of Cede & Co.
(DTC's partnership nominee) or such other name as may be requested by an
authorized representative of DTC. One fully-registered Security certificate will
be issued for [each issue of] the Securities, [each] in the aggregate principal
amount of such issue, and will be deposited with DTC. [If, however, the
aggregate principal amount of [any] issue exceeds $400 million, one certificate
will be issued with respect to each $400 million of principal amount and an
additional certificate will be issued with respect to any remaining principal
amount of such issue.]
2. DTC is a limited-purpose trust company organized under the New York
Banking Law, a "banking organization" within the meaning of the New York Banking
Law, a member of the Federal Reserve System, a "clearing corporation" within the
meaning of the New York Uniform Commercial Code, and a "clearing agency"
registered pursuant to the provisions of Section 17A of the Securities Exchange
Act of 1934. DTC holds securities that its participants ("Direct Participants")
deposit with DTC. DTC also facilitates the settlement among Direct Participants
of securities transactions, such as transfers and pledges, in deposited
securities through electronic computerized book-entry changes in Direct
Participants' accounts, thereby eliminating the need for physical movement of
securities certificates. Direct Participants include securities brokers and
dealers, banks, trust companies, clearing corporations, and certain other
organizations. DTC is owned by a number of its Direct Participants and by the
New York Stock Exchange, Inc., the American Stock Exchange LLC, and the National
Association of Securities Dealers, Inc. Access to the DTC system is also
available to others such as securities brokers and dealers, banks, and trust
companies that clear through or maintain a custodial relationship with a Direct
Participant, either directly or indirectly ("Indirect Participants"). The Rules
applicable to DTC and its Direct and Indirect Participants are on file with the
Securities and Exchange Commission.
3. Purchases of Securities under the DTC system must be made by or through
Direct Participants, which will receive a credit for the Securities on DTC's
records. The ownership interest of each actual purchaser of each Security
("Beneficial Owner") is in turn to be recorded on the Direct and Indirect
Participants' records. Beneficial Owners will not receive written confirmation
from DTC of their purchase, but Beneficial Owners are expected to receive
written confirmations providing details of the transaction, as well as periodic
statements of their holdings, from the Direct or Indirect Participant through
which the Beneficial Owner entered into the transaction. Transfers of ownership
interests in the Securities are to be accomplished by entries made on the books
of Direct and Indirect Participants acting on behalf of Beneficial Owners.
Beneficial Owners will not receive certificates representing their ownership
interests in Securities, except in the event that use of the book-entry system
for the Securities is discontinued.
4. To facilitate subsequent transfers, all Securities deposited by Direct
Participants with DTC are registered in the name of DTC's partnership nominee,
Cede & Co. or such other name as may be requested by an authorized
representative of DTC. The deposit of Securities with DTC and their registration
in the name of Cede & Co. or such other nominee do not effect any change in
beneficial ownership. DTC has no knowledge of the actual Beneficial Owners of
the Securities; DTC's records reflect only the identity of the Direct
Participants to whose accounts such Securities are credited, which may or may
not be the Beneficial Owners. The Direct and Indirect Participants will remain
responsible for keeping account of their holdings on behalf of their customers.
5. Conveyance of notices and other communications by DTC to Direct
Participants, by Direct Participants to Indirect Participants, and by Direct
Participants and Indirect Participants to Beneficial Owners will be governed by
arrangements among them, subject to any statutory or regulatory requirements as
may be in effect from time to time. [Beneficial Owners of Securities may wish to
take certain steps to augment transmission to them of notices of significant
events with respect to the Securities, such as redemptions, tenders, defaults,
and proposed amendments to the security documents. Beneficial Owners of
Securities may wish to ascertain that the nominee holding the Securities for
their benefit has agreed to obtain and transmit notices to Beneficial Owners, or
in the alternative, Beneficial Owners may wish to provide their names and
addresses to the registrar and request that copies of the notices be provided
directly to them.]
[6. Redemption notices shall be sent to DTC. If less than all of the
Securities within an issue are being redeemed, DTC's practice is to determine by
lot the amount of the interest of each Direct Participant in such issue to be
redeemed.]
7. Neither DTC nor Cede & Co. (nor such other DTC nominee) will consent or
vote with respect to the Securities. Under its usual procedures, DTC mails an
Omnibus Proxy to Issuer as soon as possible after the record date. The Omnibus
Proxy assigns Cede & Co.'s consenting or voting rights to those Direct
Participants to whose accounts the Securities are credited on the record date
(identified in a listing attached to the Omnibus Proxy).
8. Redemption proceeds, distributions, and dividend payments on the
Securities will be made to Cede & Co., or such other nominee as may be requested
by an authorized representative of DTC. DTC's practice is to credit Direct
Participants' accounts, upon DTC's receipt of funds and corresponding detail
information from Issuer or Agent on payable date in accordance with their
respective holdings shown on DTC's records. Payments by Participants to
Beneficial Owners will be governed by standing instructions and customary
practices, as is the case with securities held for the accounts of customers in
bearer form or registered in "street name," and will be the responsibility of
such Participant and not of DTC, Agent, or Issuer, subject to any statutory or
regulatory requirements as may be in effect from time to time. Payment of
redemption proceeds, distributions, and dividends to Cede & Co. (or such other
nominee as may be requested by an authorized representative of DTC) is the
responsibility of Issuer or Agent, disbursement of such payments to Direct
Participants shall be the responsibility of DTC, and disbursement of such
payments to the Beneficial Owners shall be the responsibility of Direct and
Indirect Participants.
[9. A Beneficial Owner shall give notice to elect to have its Securities
purchased or tendered, through its Participant, to [Tender/Remarketing] Agent,
and shall effect delivery of such Securities by causing the Direct Participant
to transfer the Participant's interest in the Securities, on DTC's records, to
[Tender/Remarketing] Agent. The requirement for physical delivery of Securities
in connection with an optional tender or a mandatory purchase will be deemed
satisfied when the ownership rights in the Securities are transferred by Direct
Participants on DTC's records and followed by a book-entry credit of tendered
Securities to [Tender/Remarketing] Agent's DTC account.]
10. DTC may discontinue providing its services as securities depository
with respect to the Securities at any time by giving reasonable notice to Issuer
or Agent. Under such circumstances, in the event that a successor securities
depository is not obtained, Security certificates are required to be printed and
delivered.
11. Issuer may decide to discontinue use of the system of book-entry
transfers through DTC (or a successor securities depository). In that event,
Security certificates will be printed and delivered.
12. The information in this section concerning DTC and DTC's book-entry
system has been obtained from sources that Issuer believes to be reliable, but
Issuer takes no responsibility for the accuracy thereof.
EXHIBIT D-1
FORM OF MASTER SERVICER REQUEST FOR RELEASE
[Date]
Xxxxx Fargo Bank Minnesota, N.A.
000 Xxxxxx Xxxxxx, Xxxxx XXX
Xxxxxxxxxxx, XX 00000
Attention: Mortgage Document Custody (CMBS)
Re: Credit Suisse First Boston Mortgage Securities Corp., Commercial
Mortgage Pass-Through Certificates, Series 2003-C3
----------------------------------------------------------------
In connection with the administration of the Mortgage Files held by
or on behalf of you as trustee under a certain Pooling and Servicing Agreement,
dated as of June 1, 2003 (the "Pooling and Servicing Agreement"), among Credit
Suisse First Boston Mortgage Securities Corp. as depositor, KeyCorp Real Estate
Capital Markets, Inc., as general master servicer (in such capacity, the
"General Master Servicer"), ARCap Servicing, Inc., as general special servicer
(in such capacity, the "General Special Servicer"), NCB, FSB, as NCBFSB master
servicer (in such capacity, the "NCBFSB Master Servicer"), National Consumer
Cooperative Bank, as co-op special servicer (in such capacity, the "Co-op
Special Servicer") and you as trustee (in such capacity, the "Trustee"), the
undersigned as [General] [NCBFSB] Master Servicer hereby requests a release of
the Mortgage File (or the portion thereof specified below) held by or on behalf
of you as Trustee with respect to the following described Mortgage Loan for the
reason indicated below.
Property Name:
Address:
Prospectus No.:
If only particular documents in the Mortgage File are requested, please specify
which:
Reason for requesting Mortgage File (or portion thereof):
______ 1. Mortgage Loan paid in full. The undersigned hereby certifies that
all amounts received in connection with the Mortgage Loan that are
required to be credited to a Collection Account pursuant to the
Pooling and Servicing Agreement, have been or will be so credited.
______ 2. Other. (Describe)____________________________________________
____________________________________________________________________
The undersigned acknowledges that the above Mortgage File (or
requested portion thereof) will be held by the undersigned in accordance with
the provisions of the Pooling and Servicing Agreement and will be returned to
you or your designee within ten days of our receipt thereof, unless the Mortgage
Loan has been paid in full, in which case the Mortgage File (or such portion
thereof) will be retained by us permanently.
Capitalized terms used but not defined herein shall have the
meanings ascribed to them in the Pooling and Servicing Agreement.
as [General] [NCBFSB] Master Servicer
By:
-----------------------------------------
Name:
Title:
EXHIBIT D-2
FORM OF SPECIAL SERVICER REQUEST FOR RELEASE
[Date]
Xxxxx Fargo Bank Minnesota, N.A.
000 Xxxxxx Xxxxxx, Xxxxx XXX
Xxxxxxxxxxx, XX 00000
Attention: Mortgage Document Custody (CMBS)
Re: Credit Suisse First Boston Mortgage Securities Corp., Commercial
Mortgage Pass-Through Certificates, Series 2003-C3
----------------------------------------------------------------
In connection with the administration of the Mortgage Files held by
or on behalf of you as trustee under a certain Pooling and Servicing Agreement,
dated as of June 1, 2003 (the "Pooling and Servicing Agreement"), among Credit
Suisse First Boston Mortgage Securities Corp. as depositor, KeyCorp Real Estate
Capital Markets, Inc., as general master servicer (in such capacity, the
"General Master Servicer"), ARCap Servicing, Inc., as general special servicer
(in such capacity, the "General Special Servicer"), NCB, FSB, as NCBFSB master
servicer (in such capacity, the "NCBFSB Master Servicer"), National Consumer
Cooperative Bank, as co-op special servicer (in such capacity, the "Co-op
Special Servicer") and you as trustee (in such capacity, the "Trustee"), the
undersigned as [General] [Co-op] Special Servicer hereby requests a release of
the Mortgage File (or the portion thereof specified below) held by or on behalf
of you as Trustee with respect to the following described Mortgage Loan for the
reason indicated below.
Property Name:
Address:
Prospectus No.:
If only particular documents in the Mortgage File are requested, please specify
which:
Reason for requesting Mortgage File (or portion thereof):
______ 1. The Mortgage Loan is being foreclosed.
______ 2. Other. (Describe)
--------------------------------------------
The undersigned acknowledges that the above Mortgage File (or
requested portion thereof) will be held by the undersigned in accordance with
the provisions of the Pooling and Servicing Agreement and will be returned to
you or your designee within ten days of our receipt thereof, unless the Mortgage
Loan is being foreclosed, in which case the Mortgage File (or such portion
thereof) will be returned when no longer required by us for such purpose.
Capitalized terms used but not defined herein shall have the
meanings ascribed to them in the Pooling and Servicing Agreement.
as [General][Co-op] Special Servicer
By:
-----------------------------------------
Name:
Title:
EXHIBIT E-1
FORM OF TRUSTEE REPORT
[See Attached Report]
Credit Suisse First Boston Mortgage Securities Corp.
Commercial Mortgage Pass-Through Certificates
Series 2003-C3
[XXXXX FARGO LOGO] For Additional Information please contact
Xxxxx Fargo Bank Minnesota, N.A. CTSLink Customer Service
Corporate Trust Services (000) 000-0000
0000 Xxx Xxxxxxxxx Xxxx Reports Available on the World Wide Web
Xxxxxxxx, XX 00000-0000 @ xxxx.xxxxxxx.xxx/xxxx
Payment Date: 07/17/2003
Record Date: 06/30/2003
DISTRIBUTION DATE STATEMENT
Table of Contents
STATEMENT SECTIONS PAGE(s)
Certificate Distribution Detail 2
Certificate Factor Detail 3
Reconciliation Detail 4
Other Required Information 5
Cash Reconciliation 6
Ratings Detail 7
Current Mortgage Loan and Property Stratification Tables 8 - 10
Mortgage Loan Detail 11
Principal Prepayment Detail 12
Historical Detail 13
Delinquency Loan Detail 14
Specially Serviced Loan Detail 15 - 16
Modified Loan Detail 17
Liquidated Loan Detail 18
Depositor
Credit Suisse First Boston Mortgage
Securities Corp.
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Contact: General Information Number
Phone Number: (000) 000-0000
Master Servicer
KeyCorp Real Estate Capital Markets, Inc.
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx Xxxx, XX 00000
Contact: Xxxxx X'Xxxxxx
Phone Number: (000) 000-0000
Master & Special Servicer
National Consumer Cooperative Bank
0000 Xxx Xxxxxx XX
Xxxxxxxxxx, XX 00000
Contact: Xxxxx Xxxxxxxx
Phone Number: (000) 000-0000
Special Servicer
ARCap Servicing, Inc.
0000 X. XxxXxxxxx Xxxx.
Xxxxxx, XX 00000
Contact: Xxxxx Xxxxxx
Phone Number: (972) 580-168
This report has been compiled from information provided to Xxxxx Fargo Bank MN,
N.A. by various third parties, which may include the Master Servicers, Special
Servicers and others. Xxxxx Fargo Bank MN, N.A. has not independently
confirmed the accuracy of information received from these third parties and
assumes no duty to do so. Xxxxx Fargo Bank MN, N.A. expressly disclaims any
responsibility for the accuracy or completeness of information furnished by
third parties.
Page 1 of 18
Credit Suisse First Boston Mortgage Securities Corp.
Commercial Mortgage Pass-Through Certificates
Series 2003-C3
[XXXXX FARGO LOGO] For Additional Information please contact
Xxxxx Fargo Bank Minnesota, N.A. CTSLink Customer Service
Corporate Trust Services (000) 000-0000
0000 Xxx Xxxxxxxxx Xxxx Reports Available on the World Wide Web
Xxxxxxxx, XX 00000-0000 @ xxxx.xxxxxxx.xxx/xxxx
Payment Date: 07/17/2003
Record Date: 06/30/2003
Certificate Distribution Detail
==================================================================================
Class CUSIP Pass-Through Original Beginning Principal Interest
Rate Balance Balance Distribution Distribution
==================================================================================
A-1 0.000000% 0.00 0.00 0.00 0.00
A-2 0.000000% 0.00 0.00 0.00 0.00
A-3 0.000000% 0.00 0.00 0.00 0.00
A-4 0.000000% 0.00 0.00 0.00 0.00
A-5 0.000000% 0.00 0.00 0.00 0.00
B 0.000000% 0.00 0.00 0.00 0.00
C 0.000000% 0.00 0.00 0.00 0.00
D 0.000000% 0.00 0.00 0.00 0.00
E 0.000000% 0.00 0.00 0.00 0.00
F 0.000000% 0.00 0.00 0.00 0.00
G 0.000000% 0.00 0.00 0.00 0.00
H 0.000000% 0.00 0.00 0.00 0.00
J 0.000000% 0.00 0.00 0.00 0.00
K 0.000000% 0.00 0.00 0.00 0.00
L 0.000000% 0.00 0.00 0.00 0.00
M 0.000000% 0.00 0.00 0.00 0.00
N 0.000000% 0.00 0.00 0.00 0.00
O 0.000000% 0.00 0.00 0.00 0.00
P 0.000000% 0.00 0.00 0.00 0.00
622-A 0.000000% 0.00 0.00 0.00 0.00
622-B 0.000000% 0.00 0.00 0.00 0.00
622-C 0.000000% 0.00 0.00 0.00 0.00
622-D 0.000000% 0.00 0.00 0.00 0.00
622-E 0.000000% 0.00 0.00 0.00 0.00
622-F 0.000000% 0.00 0.00 0.00 0.00
R 0.000000% 0.00 0.00 0.00 0.00
LR 0.000000% 0.00 0.00 0.00 0.00
V 0.000000% 0.00 0.00 0.00 0.00
==================================================================================
Totals 0.00 0.00 0.00 0.00
==================================================================================
=================================================================================
Realized Loss/ Total Ending Current
Class Prepayment Additional Trust Distribution Balance Subordination
Premium Fund Expenses Level
=================================================================================
A-1 0.00 0.00 0.00 0.00 0.00
A-2 0.00 0.00 0.00 0.00 0.00
A-3 0.00 0.00 0.00 0.00 0.00
A-4 0.00 0.00 0.00 0.00 0.00
A-5 0.00 0.00 0.00 0.00 0.00
B 0.00 0.00 0.00 0.00 0.00
C 0.00 0.00 0.00 0.00 0.00
D 0.00 0.00 0.00 0.00 0.00
E 0.00 0.00 0.00 0.00 0.00
F 0.00 0.00 0.00 0.00 0.00
G 0.00 0.00 0.00 0.00 0.00
H 0.00 0.00 0.00 0.00 0.00
J 0.00 0.00 0.00 0.00 0.00
K 0.00 0.00 0.00 0.00 0.00
L 0.00 0.00 0.00 0.00 0.00
M 0.00 0.00 0.00 0.00 0.00
N 0.00 0.00 0.00 0.00 0.00
O 0.00 0.00 0.00 0.00 0.00
P 0.00 0.00 0.00 0.00 0.00
622-A 0.00 0.00 0.00 0.00 0.00
622-B 0.00 0.00 0.00 0.00 0.00
622-C 0.00 0.00 0.00 0.00 0.00
622-D 0.00 0.00 0.00 0.00 0.00
622-E 0.00 0.00 0.00 0.00 0.00
622-F 0.00 0.00 0.00 0.00 0.00
R 0.00 0.00 0.00 0.00 0.00
LR 0.00 0.00 0.00 0.00 0.00
V 0.00 0.00 0.00 0.00 0.00
=================================================================================
Totals 0.00 0.00 0.00 0.00 0.00
=================================================================================
========================================================================================================
Original Beginning Ending
Class CUSIP Pass-Through Notional Notional Interest Prepayment Total Notional
Rate Amount Amount Distribution Premium Distribution Amount
========================================================================================================
A-X 0.000000 0.00 0.00 0.00 0.00 0.00 0.00
A-SP 0.000000 0.00 0.00 0.00 0.00 0.00 0.00
A-Y 0.000000 0.00 0.00 0.00 0.00 0.00 0.00
========================================================================================================
Page 2 of 18
Credit Suisse First Boston Mortgage Securities Corp.
Commercial Mortgage Pass-Through Certificates
Series 2003-C3
[XXXXX FARGO LOGO] For Additional Information please contact
Xxxxx Fargo Bank Minnesota, N.A. CTSLink Customer Service
Corporate Trust Services (000) 000-0000
0000 Xxx Xxxxxxxxx Xxxx Reports Available on the World Wide Web
Xxxxxxxx, XX 00000-0000 @ xxxx.xxxxxxx.xxx/xxxx
Payment Date: 07/17/2003
Record Date: 06/30/2003
Certificate Factor Detail
========================================================================================================
Beginning Principal Interest Prepayment Realized Loss/ Ending
Class CUSIP Balance Distribution Distribution Premium Additional Trust Balance
Fund Expenses
========================================================================================================
A-1 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
A-2 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
A-3 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
A-4 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
A-5 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
B 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
C 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
D 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
E 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
F 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
G 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
H 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
J 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
K 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
L 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
M 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
N 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
O 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
P 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
622-A 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
622-B 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
622-C 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
622-D 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
622-E 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
622-F 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
R 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
LR 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
V 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000 0.00000000
========================================================================================================
========================================================================
Beginning Interest Prepayment Ending
Class CUSIP Notional Distribution Premium Notional
Amount Amount
========================================================================
A-X 0.00000000 0.00000000 0.00000000 0.00000000
A-SP 0.00000000 0.00000000 0.00000000 0.00000000
A-Y 0.00000000 0.00000000 0.00000000 0.00000000
========================================================================
Page 3 of 18
Credit Suisse First Boston Mortgage Securities Corp.
Commercial Mortgage Pass-Through Certificates
Series 2003-C3
[XXXXX FARGO LOGO] For Additional Information please contact
Xxxxx Fargo Bank Minnesota, N.A. CTSLink Customer Service
Corporate Trust Services (000) 000-0000
0000 Xxx Xxxxxxxxx Xxxx Reports Available on the World Wide Web
Xxxxxxxx, XX 00000-0000 @ xxxx.xxxxxxx.xxx/xxxx
Payment Date: 07/17/2003
Record Date: 06/30/2003
Reconciliation Detail
Advance Summary Master Servicing Fee Summary
P&I Advances Outstanding 0.00 Current Period Accrued Master Servicing Fees 0.00
Servicing Advances Outstanding 0.00 Less Master Servicing Fees on Delinquent Payments 0.00
Reimbursements for Interest on P&I 0.00 Less Reductions to Master Servicing Fees 0.00
Advances paid from general collections Plus Master Servicing Fees on Delinquent Payments Received 0.00
Reimbursements for Interest on Servicing 0.00 Plus Adjustments for Prior Master Servicing Calculation 0.00
Advances paid from general collections Total Master Servicing Fees Collected 0.00
Certificate Interest Reconciliation
================================================================================
Accrued Uncovered Certificate
Class Certificate Prepayment Indemnification Deferred Interest
Interest Interest Shortfall Expenses Amount
================================================================================
X-0
X-0
X-0
X-0
X-0
A-X
A-SP
A-Y
B
C
D
E
F
G
H
J
K
L
M
N
O
P
================================================================================
Total
================================================================================
=================================================================================
Unpaid Optimal Interest Interest Appraisal
Class Interest Distribution Shortfall Interest Reduction
Shortfall Amount Amount Amount Distribution Amount
=================================================================================
X-0
X-0
X-0
X-0
X-0
A-X
A-SP
A-Y
B
C
D
E
F
G
H
J
K
L
M
N
O
P
=================================================================================
Total
=================================================================================
Page 4 of 18
Credit Suisse First Boston Mortgage Securities Corp.
Commercial Mortgage Pass-Through Certificates
Series 2003-C3
[XXXXX FARGO LOGO] For Additional Information please contact
Xxxxx Fargo Bank Minnesota, N.A. CTSLink Customer Service
Corporate Trust Services (000) 000-0000
0000 Xxx Xxxxxxxxx Xxxx Reports Available on the World Wide Web
Xxxxxxxx, XX 00000-0000 @ xxxx.xxxxxxx.xxx/xxxx
Payment Date: 07/17/2003
Record Date: 06/30/2003
Other Required Information
Available Distribution Amount 0.00
Aggregate Number of Outstanding Loans 0
Aggregate Unpaid Principal Balance of Loans 0.00
Aggregate Stated Principal Balance of Loans 0.00
Aggregate Amount of Servicing Fee 0.00
Aggregate Amount of Primary Servicing Fee 0.00
Aggregate Amount of Special Servicing Fee 0.00
Aggregate Amount of Trustee Fee 0.00
Aggregate Trust Fund Expenses 0.00
Specially Serviced Loans not Delinquent
Number of Outstanding Loans 0
Aggregate Unpaid Principal Balance 0.00
Appraisal Reduction Amount
================================================================================
Appraisal Cumulative Most Recent
Loan Reduction ASER App. Red.
Number Effected Amount Date
================================================================================
================================================================================
Total
================================================================================
Page 5 of 18
Credit Suisse First Boston Mortgage Securities Corp.
Commercial Mortgage Pass-Through Certificates
Series 2003-C3
[XXXXX FARGO LOGO] For Additional Information please contact
Xxxxx Fargo Bank Minnesota, N.A. CTSLink Customer Service
Corporate Trust Services (000) 000-0000
0000 Xxx Xxxxxxxxx Xxxx Reports Available on the World Wide Web
Xxxxxxxx, XX 00000-0000 @ xxxx.xxxxxxx.xxx/xxxx
Payment Date: 07/17/2003
Record Date: 06/30/2003
Cash Reconciliation Detail
Total Funds Collected
Interest:
Interest paid or advanced 0.00
Interest reductions due to Non-Recoverability Determinations 0.00
Interest Adjustments 0.00
Deferred Interest 0.00
Net Prepayment Interest Shortfall 0.00
Net Prepayment Interest Excess 0.00
Extension Interest 0.00
Interest Reserve Withdrawal 0.00
-----------
Total Interest Collected 0.00
Principal:
Scheduled Principal 0.00
Unscheduled Principal 0.00
Principal Prepayments 0.00
Collection of Principal after Maturity Date 0.00
Recoveries from Liquidation and Insurance Proceeds 0.00
Excess of Prior Principal Amounts paid 0.00
Curtailments 0.00
Negative Amortization 0.00
Principal Adjustments 0.00
-----------
Total Principal Collected 0.00
Other:
Prepayment Penalties/Yield Maintenance 0.00
Repayment Fees 0.00
Borrower Option Extension Fees 0.00
Equity Payments Received 0.00
Net Swap Counterparty Payments Received 0.00
-----------
Total Other Collected 0.00
-----------
Total Funds Collected 0.00
===========
Total Funds Distributed
Fees:
Master Servicing Fee 0.00
Trustee Fee 0.00
Certificate Administration Fee 0.00
Insurer Fee 0.00
Miscellaneous Fee 0.00
-----------
Total Fees 0.00
Additional Trust Fund Expenses:
Reimbursement for Interest on Advances 0.00
ASER Amount 0.00
Special Servicing Fee 0.00
Reduction of funds due to Non-Recoverability Determinations 0.00
Rating Agency Expenses 0.00
Attorney Fees & Expenses 0.00
Bankruptcy Expense 0.00
Taxes Imposed on Trust Fund 0.00
Non-Recoverable Advances 0.00
Other Expenses 0.00
-----------
Total Additional Trust Fund Expenses 0.00
Interest Reserve Deposit 0.00
Payments to Certificateholders & Others:
Interest Distribution 0.00
Principal Distribution 0.00
Prepayment Penalties/Yield Maintenance 0.00
Borrower Option Extension Fees 0.00
Equity Payments Paid 0.00
Net Swap Counterparty Payments Paid 0.00
-----------
Total Payments to Certificateholders & Others 0.00
-----------
Total Funds Distributed 0.00
===========
Page 6 of 18
Credit Suisse First Boston Mortgage Securities Corp.
Commercial Mortgage Pass-Through Certificates
Series 2003-C3
[XXXXX FARGO LOGO] For Additional Information please contact
Xxxxx Fargo Bank Minnesota, N.A. CTSLink Customer Service
Corporate Trust Services (000) 000-0000
0000 Xxx Xxxxxxxxx Xxxx Reports Available on the World Wide Web
Xxxxxxxx, XX 00000-0000 @ xxxx.xxxxxxx.xxx/xxxx
Payment Date: 07/17/2003
Record Date: 06/30/2003
Ratings Detail
================================================================================
Original Ratings Current Ratings (1)
Class CUSIP --------------------------- --------------------------
Fitch Xxxxx'x S & P Fitch Xxxxx'x S & P
================================================================================
X-0
X-0
X-0
X-0
X-0
A-X
A-SP
A-Y
B
C
D
E
F
G
H
J
K
L
M
N
O
P
================================================================================
NR - Designates that the class was not rated by the above agency at the time of
original issuance.
X - Designates that the above rating agency did not rate any classes in this
transaction at the time of original issuance.
N/A - Data not available this period.
1) For any class not rated at the time of original issuance by any particular
rating agency, no request has been made subsequent to issuance to obtain
rating information, if any, from such rating agency. The current ratings
were obtained directly from the applicable rating agency within 30 days of
the payment date listed above. The ratings may have changed since they were
obtained. Because the ratings may have changed, you may want to obtain
current ratings directly from the rating agencies.
Fitch, Inc. Xxxxx'x Investors Service Standard & Poor's Rating Services
Xxx Xxxxx Xxxxxx Xxxxx 00 Xxxxxx Xxxxxx 00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxx Xxxx, Xxx Xxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
(000) 000-0000 (000) 000-0000 (000) 000-0000
Page 7 of 18
Credit Suisse First Boston Mortgage Securities Corp.
Commercial Mortgage Pass-Through Certificates
Series 2003-C3
[XXXXX FARGO LOGO] For Additional Information please contact
Xxxxx Fargo Bank Minnesota, N.A. CTSLink Customer Service
Corporate Trust Services (000) 000-0000
0000 Xxx Xxxxxxxxx Xxxx Reports Available on the World Wide Web
Xxxxxxxx, XX 00000-0000 @ xxxx.xxxxxxx.xxx/xxxx
Payment Date: 07/17/2003
Record Date: 06/30/2003
Current Mortgage Loan and Property Stratification Tables
Scheduled Balance
================================================================================
% of
Scheduled # of Scheduled Agg. WAM WAC Weighted
Balance loans Balance Bal. (2) Avg DSCR (1)
================================================================================
================================================================================
Totals
================================================================================
State (3)
================================================================================
% of
State # of Scheduled Agg. WAM WAC Weighted
Props. Balance Bal. (2) Avg DSCR (1)
================================================================================
================================================================================
Totals
================================================================================
See footnotes on last page of this section.
Page 8 of 18
Credit Suisse First Boston Mortgage Securities Corp.
Commercial Mortgage Pass-Through Certificates
Series 2003-C3
[XXXXX FARGO LOGO] For Additional Information please contact
Xxxxx Fargo Bank Minnesota, N.A. CTSLink Customer Service
Corporate Trust Services (000) 000-0000
0000 Xxx Xxxxxxxxx Xxxx Reports Available on the World Wide Web
Xxxxxxxx, XX 00000-0000 @ xxxx.xxxxxxx.xxx/xxxx
Payment Date: 07/17/2003
Record Date: 06/30/2003
Current Mortgage Loan and Property Stratification Tables
Debt Service Coverage Ratio
================================================================================
Debt Service % of
Coverage # of Scheduled Agg. WAM WAC Weighted
Ratio loans Balance Bal. (2) Avg DSCR (1)
================================================================================
================================================================================
Totals
================================================================================
Property Type (3)
================================================================================
% of
Property # of Scheduled Agg. WAM WAC Weighted
Type Props. Balance Bal. (2) Avg DSCR (1)
================================================================================
================================================================================
Totals
================================================================================
Note Rate
================================================================================
% of
Note # of Scheduled Agg. WAM WAC Weighted
Rate loans Balance Bal. (2) Avg DSCR (1)
================================================================================
================================================================================
Totals
================================================================================
Seasoning
================================================================================
% of
Seasoning # of Scheduled Agg. WAM WAC Weighted
loans Balance Bal. (2) Avg DSCR (1)
================================================================================
================================================================================
Totals
================================================================================
See footnotes on last page of this section.
Page 9 of 18
Credit Suisse First Boston Mortgage Securities Corp.
Commercial Mortgage Pass-Through Certificates
Series 2003-C3
[XXXXX FARGO LOGO] For Additional Information please contact
Xxxxx Fargo Bank Minnesota, N.A. CTSLink Customer Service
Corporate Trust Services (000) 000-0000
0000 Xxx Xxxxxxxxx Xxxx Reports Available on the World Wide Web
Xxxxxxxx, XX 00000-0000 @ xxxx.xxxxxxx.xxx/xxxx
Payment Date: 07/17/2003
Record Date: 06/30/2003
Current Mortgage Loan and Property Stratification Tables
Anticipated Remaing Term (ARD and Balloon Loans)
================================================================================
Anticipated % of
Remaining # of Scheduled Agg. WAM WAC Weighted
Term (2) loans Balance Bal. (2) Avg DSCR (1)
================================================================================
================================================================================
Totals
================================================================================
Remaining Stated Term (Fully Amortizing Loans)
================================================================================
Remaining % of
Stated # of Scheduled Agg. WAM WAC Weighted
Term loans Balance Bal. (2) Avg DSCR (1)
================================================================================
================================================================================
Totals
================================================================================
Remaining Amortization Term (ARD and Balloon Loans)
================================================================================
Remaining % of
Amortization # of Scheduled Agg. WAM WAC Weighted
Term loans Balance Bal. (2) Avg DSCR (1)
================================================================================
================================================================================
Totals
================================================================================
Age of Most Recent NOI
================================================================================
% of
Age of Most # of Scheduled Agg. WAM WAC Weighted
Recent NOI loans Balance Bal. (2) Avg DSCR (1)
================================================================================
================================================================================
Totals
================================================================================
(1) Debt Service Coverage Ratios are updated periodically as new NOI figures
become available from borrowers on an asset level. In all cases, the most
current DSCR provided by the Servicer is used. To the extent that no DSCR
is provided by the Servicer, information from the offering document is used.
The Trustee makes no representations as to the accuracy of the data provided
by the borrower for this calculation.
(2) Anticipated Remaining Term and WAM are each calculated based upon the
term from the current month to the earlier of the Anticipated Repayment Date,
if applicable, and the maturity date.
(3) Data in this table as calculated by allocating pro-rata the current loan
information to the properties based upon the Cut-off Date Balance of the
related mortgage loan as disclosed in the offering document.
Note: (i) "Scheduled Balance" has the meaning assigned thereto in the CMSA
Standard Information Package.
Page 10 of 18
Credit Suisse First Boston Mortgage Securities Corp.
Commercial Mortgage Pass-Through Certificates
Series 2003-C3
[XXXXX FARGO LOGO] For Additional Information please contact
Xxxxx Fargo Bank Minnesota, N.A. CTSLink Customer Service
Corporate Trust Services (000) 000-0000
0000 Xxx Xxxxxxxxx Xxxx Reports Available on the World Wide Web
Xxxxxxxx, XX 00000-0000 @ xxxx.xxxxxxx.xxx/xxxx
Payment Date: 07/17/2003
Record Date: 06/30/2003
Mortgage Loan Detail
==================================================================================================
Anticipated
Loan ODCR Property City State Interest Principal Gross Repayment
Number Type (1) Payment Payment Coupon Date
==================================================================================================
==================================================================================================
Totals
==================================================================================================
================================================================================================
Neg. Beginning Ending Paid Appraisal Appraisal Res. Mod.
Loan Maturity Amort Scheduled Scheduled Thru Reduction Reduction Strat. Code
Number Date (Y/N) Balance Balance Date Date Amount (2) (3)
================================================================================================
================================================================================================
Totals
================================================================================================
(1) Property Type Code
----------------------
MF - Multi-Family OF - Office
RT - Retail MU - Mixed Use
HC - Health Care LO - Lodging
IN - Industrial SS - Self Storage
WH - Warehouse OT - Other
MH - Mobile Home Park
(2) Resolution Strategy Code
----------------------------
1 - Modification 6 - DPO 10 - Deed in Lieu Of
2 - Foreclosure 7 - REO Foreclosure
3 - Bankruptcy 8 - Resolved 11 - Full Payoff
4 - Extension 9 - Pending Return 12 - Reps and Warranties
5 - Note Sale to Master Servicer 13 - Other or TBD
(3) Modification Code
---------------------
1 - Maturity Date Extension
2 - Authorization Change
3 - Principal Write-Off
4 - Combination
Page 11 of 18
Credit Suisse First Boston Mortgage Securities Corp.
Commercial Mortgage Pass-Through Certificates
Series 2003-C3
[XXXXX FARGO LOGO] For Additional Information please contact
Xxxxx Fargo Bank Minnesota, N.A. CTSLink Customer Service
Corporate Trust Services (000) 000-0000
0000 Xxx Xxxxxxxxx Xxxx Reports Available on the World Wide Web
Xxxxxxxx, XX 00000-0000 @ xxxx.xxxxxxx.xxx/xxxx
Payment Date: 07/17/2003
Record Date: 06/30/2003
Principal Prepayment Detail
==================================================================================================================
Offering Principal Prepayment Amount Prepayment Premium
Loan Number Document ------------------------------------ ----------------------------------------------
Cross-Reference Payoff Amount Curtailment Amount Prepayment Premium Yield Maintenance Charge
==================================================================================================================
==================================================================================================================
Totals
==================================================================================================================
Page 12 of 18
Credit Suisse First Boston Mortgage Securities Corp.
Commercial Mortgage Pass-Through Certificates
Series 2003-C3
[XXXXX FARGO LOGO] For Additional Information please contact
Xxxxx Fargo Bank Minnesota, N.A. CTSLink Customer Service
Corporate Trust Services (000) 000-0000
0000 Xxx Xxxxxxxxx Xxxx Reports Available on the World Wide Web
Xxxxxxxx, XX 00000-0000 @ xxxx.xxxxxxx.xxx/xxxx
Payment Date: 07/17/2003
Record Date: 06/30/2003
Historical Detail
======================================================================================
Delinquencies
--------------------------------------------------------------------------------------
Distribution 30-59 Days 60-89 Days 90 Days of More Foreclosure REO
Date # Balance # Balance # Balance # Balance # Balance
======================================================================================
======================================================================================
======================================================================================
Prepayments Rate and Maturities
-------------------------------------------------------- ----------------------------
Distribution Modifications Curtailments Payoff Next Weighted Avg. WAM
Date # Balance # Balance # Balance Coupon Remit
======================================================================================
======================================================================================
Page 13 of 18
Credit Suisse First Boston Mortgage Securities Corp.
Commercial Mortgage Pass-Through Certificates
Series 2003-C3
[XXXXX FARGO LOGO] For Additional Information please contact
Xxxxx Fargo Bank Minnesota, N.A. CTSLink Customer Service
Corporate Trust Services (000) 000-0000
0000 Xxx Xxxxxxxxx Xxxx Reports Available on the World Wide Web
Xxxxxxxx, XX 00000-0000 @ xxxx.xxxxxxx.xxx/xxxx
Payment Date: 07/17/2003
Record Date: 06/30/2003
Delinquency Loan Detail
======================================================================================================
Offering # of Paid Through Current Outstanding Status of
Loan Number Document Months Date P&I P&I Mortgage
Cross-Reference Delinq. Advances Advances** Loan(1)
======================================================================================================
======================================================================================================
Totals
======================================================================================================
======================================================================================================
Resolution Servicing Foreclosure Current Outstanding Bankruptcy REO
Loan Number Strategy Transfer Date Date Servicing Servicing Date Date
Code(2) Advances Advances
======================================================================================================
======================================================================================================
Totals
======================================================================================================
(1) Status of Mortgage Loan
---------------------------
A - Payments Not Received 2 - Two Months Delinquent
But Still in Grace Period 3 - Three or More Months Delinquent
B - Late Payment But Less 4 - Assumed Scheduled Payment
Than 1 Month Delinquent (Performing Matured Loan)
0 - Current 7 - Foreclosure
1 - One Month Delinquent 9 - REO
(2) Resolution Strategy Code
----------------------------
1 - Modification 6 - DPO 10 - Deed in Lieu Of
2 - Foreclosure 7 - REO Foreclosure
3 - Bankruptcy 8 - Resolved 11 - Full Payoff
4 - Extension 9 - Pending Return 12 - Reps and Warranties
5 - Note Sale to Master Servicer 13 - Other or TBD
Page 14 of 18
Credit Suisse First Boston Mortgage Securities Corp.
Commercial Mortgage Pass-Through Certificates
Series 2003-C3
[XXXXX FARGO LOGO] For Additional Information please contact
Xxxxx Fargo Bank Minnesota, N.A. CTSLink Customer Service
Corporate Trust Services (000) 000-0000
0000 Xxx Xxxxxxxxx Xxxx Reports Available on the World Wide Web
Xxxxxxxx, XX 00000-0000 @ xxxx.xxxxxxx.xxx/xxxx
Payment Date: 07/17/2003
Record Date: 06/30/2003
Specially Serviced Loan Detail - Part 1
====================================================================================================
Offering Servicing Resolution Scheduled Property
Distribution Loan Document Transfer Strategy Balance Type (2)
Date Number Cross-Reference Date Code (1)
====================================================================================================
====================================================================================================
====================================================================================================
Interest Actual Net NOI Note Maturity Remaining
Distribution State Rate Balance Operating Date DSCR Date Date Amortization
Date Income Term
====================================================================================================
====================================================================================================
(1) Resolution Strategy Code
----------------------------
1 - Modification 6 - DPO 10 - Deed in Lieu Of
2 - Foreclosure 7 - REO Foreclosure
3 - Bankruptcy 8 - Resolved 11 - Full Payoff
4 - Extension 9 - Pending Return 12 - Reps and Warranties
5 - Note Sale to Master Servicer 13 - Other or TBD
(2) Property Type Code
----------------------
MF - Multi-Family OF - Office
RT - Retail MU - Mixed use
HC - Health Care LO - Lodging
IN - Industrial SS - Self Storage
WH - Warehouse OT - Other
MH - Mobile Home Park
Page 15 of 18
Credit Suisse First Boston Mortgage Securities Corp.
Commercial Mortgage Pass-Through Certificates
Series 2003-C3
[XXXXX FARGO LOGO] For Additional Information please contact
Xxxxx Fargo Bank Minnesota, N.A. CTSLink Customer Service
Corporate Trust Services (000) 000-0000
0000 Xxx Xxxxxxxxx Xxxx Reports Available on the World Wide Web
Xxxxxxxx, XX 00000-0000 @ xxxx.xxxxxxx.xxx/xxxx
Payment Date: 07/17/2003
Record Date: 06/30/2003
Specially Serviced Loan Detail - Part 2
====================================================================================================================================
Offering Resolution Site
Distribution Loan Document Strategy Inspection Phase 1 Date Appraisal Appraisal Other REO Comment
Date Number Cross-Reference Code (1) Date Date Value Property Revenue
====================================================================================================================================
====================================================================================================================================
(1) Resolution Strategy Code
----------------------------
1 - Modification 6 - DPO 10 - Deed in Lieu Of
2 - Foreclosure 7 - REO Foreclosure
3 - Bankruptcy 8 - Resolved 11 - Full Payoff
4 - Extension 9 - Pending Return 12 - Reps and Warranties
5 - Note Sale to Master Servicer 13 - Other or TBD
Page 16 of 18
Credit Suisse First Boston Mortgage Securities Corp.
Commercial Mortgage Pass-Through Certificates
Series 2003-C3
[XXXXX FARGO LOGO] For Additional Information please contact
Xxxxx Fargo Bank Minnesota, N.A. CTSLink Customer Service
Corporate Trust Services (000) 000-0000
0000 Xxx Xxxxxxxxx Xxxx Reports Available on the World Wide Web
Xxxxxxxx, XX 00000-0000 @ xxxx.xxxxxxx.xxx/xxxx
Payment Date: 07/17/2003
Record Date: 06/30/2003
Modified Loan Detail
==========================================================================================
Offering
Loan Document Pre-Modification Modification Date Modification Description
Number Cross-Reference Balance
==========================================================================================
==========================================================================================
Totals
==========================================================================================
Page 17 of 18
Credit Suisse First Boston Mortgage Securities Corp.
Commercial Mortgage Pass-Through Certificates
Series 2003-C3
[XXXXX FARGO LOGO] For Additional Information please contact
Xxxxx Fargo Bank Minnesota, N.A. CTSLink Customer Service
Corporate Trust Services (000) 000-0000
0000 Xxx Xxxxxxxxx Xxxx Reports Available on the World Wide Web
Xxxxxxxx, XX 00000-0000 @ xxxx.xxxxxxx.xxx/xxxx
Payment Date: 07/17/2003
Record Date: 06/30/2003
Liquidated Loan Detail
==========================================================================================================
Final Recovery Offering
Loan Determination Document Appraisal Appraisal Actual Gross
Number Date Cross-Reference Date Value Balance Proceeds
==========================================================================================================
==========================================================================================================
Current Total
==========================================================================================================
Cumulative Total
==========================================================================================================
==========================================================================================================
Gross Proceeds Aggregate Net Net Proceeds Repurchased
Loan as a % of Liquidation Liquidation as a % of Realized by Seller
Number Actual Balance Expenses* Proceeds Actual Balance Loss (Y/N)
==========================================================================================================
==========================================================================================================
Current Total
==========================================================================================================
Cumulative Total
==========================================================================================================
*Aggregate liquidation expenses also include outstanding P & I advances and
unpaid fees (servicing, trustee, etc.).
Page 18 of 18
EXHIBIT E-2
FORM OF CMSA SERVICER WATCH LIST CRITERIA FOR CO-OP MORTGAGE LOANS
(i) A loan that has a then current debt service coverage ratio that is
less than 0.9x;
(ii) A loan as to which any required inspection of the related property
conducted by the NCBFSB Master Servicer indicates, or the NCBFSB
Master Servicer otherwise has actual knowledge of, a problem that
the NCBFSB Master Servicer determines can reasonably be expected to
materially adversely affect the cash flow generated by such
property;
(iii) A loan as to which the NCBFSB Master Servicer has actual knowledge
of material damage or waste at the related property;
(iv) A loan as to which it has come to the NCBFSB Master Servicer's
attention in the performance of its duties that any tenant or
tenants occupying 25% or more of the space in, or responsible for
20% or more of total rental revenue from, the related property (A)
has or have vacated such space (without being replaced by a
comparable tenant and lease) or (B) has or have declared bankruptcy;
(v) A loan that is at least 30 days delinquent in payment (without
regard to any grace period);
(vi) A loan as to which the net operating income or net cash flow, as
applicable, as stated in the most recent twelve-month operating
statement has decreased 25% or more from the net operating income or
net cash flow, as the case may be, at origination;
(vii) A loan that is within 90 days of maturity;
(viii) A loan as to which the NCBFSB Master Servicer has determined,
consistent with the Servicing Standard, that a payment default is
reasonably likely to occur because the annual maintenance on the
related property is more than 5% in arrears, such arrearage has
continued for four or more months and the related borrower has less
than 10% of the annual maintenance in reserve; and
(ix) A loan as to which any material deferred maintenance is identified
by the NCBFSB Master Servicer at the related property and such
deferred maintenance is not cured within 120 days of the
identification thereof.
For purposes of item "(i)" above, debt service coverage ratio shall mean, as of
the date of any determination, the net operating income for the trailing 12
month period for the related property (based on actual receipt of maintenance
payments from tenant-shareholders less actual operating expenses for the related
period, all as set forth in the most recent annual financial statement submitted
by the borrower) divided by the actual aggregate mortgage payments for such
period.
EXHIBIT E-3
CONTROLLING CLASS REPRESENTATIVE'S REPORTS CHECKLIST
Information Format Frequency
--------------------------------------------------------------------------------
Property Operating Statement Actual PDF/TIF As received/Quarterly
---------------------------------------------------------------------------------------
Property Rent Roll Actual PDF/TIF As received/Quarterly
---------------------------------------------------------------------------------------
Other Financials as required by Actual PDF/TIF As received
loan documents
---------------------------------------------------------------------------------------
Property Inspection Actual PDF/TIF As received/Quarterly
---------------------------------------------------------------------------------------
Payments Received After Monthly Excel Master Servicer
Determination Date Report (1) Remittance Date
---------------------------------------------------------------------------------------
Mortgage Loans Delinquent Monthly Excel 30th of each month
Report (2)
---------------------------------------------------------------------------------------
Interest on Advance Monthly Excel Distribution Date
Reconciliation
---------------------------------------------------------------------------------------
CMSA Setup File CMSA IRP Access/Excel Monthly/Distribution Date
(Issuer/Trustee/Servicer)
---------------------------------------------------------------------------------------
CMSA Property File CMSA IRP Access/Excel Monthly/Distribution Date
---------------------------------------------------------------------------------------
CMSA Loan Periodic Update File CMSA IRP Access/Excel Monthly/Distribution Date
---------------------------------------------------------------------------------------
CMSA Financial File CMSA IRP Access/Excel Monthly/Distribution Date
---------------------------------------------------------------------------------------
Distribution Statement (Trustee) Monthly Excel/PDF Monthly/Distribution Date
---------------------------------------------------------------------------------------
CMSA Bond File (Trustee) CMSA IRP Access/Excel Monthly/Distribution Date
---------------------------------------------------------------------------------------
CMSA Collateral File (Trustee) CMSA IRP Access/Excel Monthly/Distribution Date
---------------------------------------------------------------------------------------
CMSA Supplemental Reports CMSA IRP Access/Excel Monthly/Distribution Date
---------------------------------------------------------------------------------------
Operating Statement Analysis CMSA IRP Access/Excel Monthly/Distribution Date
Report
---------------------------------------------------------------------------------------
NOI Adjustment Worksheet CMSA IRP Access/Excel Monthly/Distribution Date
---------------------------------------------------------------------------------------
Documentation Exceptions Report Quarterly Access/Excel Monthly/Distribution Date
(Trustee)
---------------------------------------------------------------------------------------
Footnotes:
(1) On the Master Servicer Remittance Date following the Determination Date
for the related Bond Certificateholder Distribution, a list of all mortgage
loans which are delinquent as to the applicable Distribution Period on the
Master Servicer Remittance Date. This list should represent all delinquent loans
that required a P and I Advance be made.
(2) On the last day of the month (30th), for all delinquencies reported in #1
above, a list of a) all mortgage loans which remain delinquent for such
Distribution period (along with the number of days delinquent) accompanied with
any reason, in Master Servicer's opinion, for the mortgage loans continued
delinquency, along with an explanation of Master Servicer's attempts to cure.
(3) ARCap requests that the above information be organized in ascending
Prospectus Loan I.D. order and forwarded on each of the above listed dates via
E-Mail to the following address or all reports and data files shall be available
via the Servicer's or Trustee's Website.
Xxxxx Xxxxx Xxxxx Xxxxxxx
Director Bond/Mortgage Surveillance President
ARCap REIT, Inc. ARCap REIT, Inc.
xxxxxx@xxxxx.xxx xxxxxxxx@xxxxx.xxx
(972) 580-1688 ext. 29 (972) 580-1688 ext. 11
EXHIBIT E-4
FORM OF PAYMENTS RECEIVED AFTER DETERMINATION DATE REPORT
Servicer
Deal Name EXHIBIT
For the Collection Period Ending:
Master Servicer Remittance Date:
PAYMENTS RECEIVED AFTER DETERMINATION DATE REPORT
SCHEDULED SCHEDULED CURRENT CURRENT
PRIMARY PROSPECTUS PRIMARY PRINCIPAL INTEREST PRINCIPAL INTEREST PAID TO DATE AT
SERVICER ID LOAN NUMBER LOAN NUMBER AMOUNT AMOUNT AMOUNT ADVANCE DETERMINATION
--------------- --------------- ------------ --------------- --------------- ---------------- --------------- -------------------
07 66 11 3,418.94 26,389.96 3,418.94 26,389.96 1/1/2001
Count for Servicer: 1 3,418.94 26,389.96 3,418.94 26,389.96
67 81 10 3,514.47 21,633.35 3,514.47 21,633.35 1/1/2001
Count for Servicer: 1 3,514.47 21,633.35 3,514.47 21,633.35
68 10 12 11,963.80 101,994.57 11,963.80 101,994.57 1/1/2001
Count for Servicer: 1 11,963.80 101,994.57 11,963.80 101,994.57
01 15 25 15,938.77 85,512.32 15,938.77 85,512.32 1/1/2001
01 26 26 5,613.32 62,169.85 5,613.32 62,169.85 1/1/2001
01 28 78 4,670.62 61,305.46 4,670.62 61,305.46 1/1/2001
01 32 66 3,795.11 56,680.17 3,795.11 56,680.17 1/1/2001
01 40 58 8,045.30 38,453.73 8,045.30 38,453.73 1/1/2001
01 53 51 6,682.28 34,856.39 6,682.28 19,715.89 1/1/2001
01 54 52 6,336.59 35,769.60 6,336.59 24,573.61 1/1/2001
01 56 53 4,529.09 29,973.27 4,529.09 29,973.27 1/1/2001
01 58 56 4,022.52 30,914.96 4,022.52 30,914.96 1/1/2001
01 64 45 6,101.99 31,228.53 6,101.99 31,228.53 1/1/2001
01 69 15 5,580.88 27,630.09 5,580.88 27,630.09 1/1/2001
01 95 49 6,299.93 16,815.46 6,299.93 16,815.46 1/1/2001
01 100 70 1,232.52 14,268.98 1,232.52 14,268.98 1/1/2001
01 102 39 1,097.59 13,299.82 1,097.59 13,299.82 1/1/2001
01 104 84 881.08 14,115.78 881.08 14,115.78 1/1/2001
01 115 67 808.33 11,402.47 808.33 11,402.47 1/1/2001
01 118 206 1,639.27 10,278.41 1,639.27 10,278.41 1/1/2001
Count for Servicer: 17 83,275.19 574,675.29 83,275.19 548,338.80
Grand Total: 20 102,172.40 724,693.17 102,172.40 698,356.68
(TABLE CONTINUED)
PAYMENTS RECEIVED AFTER DETERMINATION DATE REPORT
PRIMARY UNDATED PAID PRIMARY SUB SERVICER MASTER
SERVICER ID TO DATE SERVICER FEES FEES SERVICER FEES RETAINED FEES NET ADVANCE
--------------- ------------------ -------------- --------------- -------------- --------------- --------------
07 02/01/2001 0.00 193.33 225.56 0.00
Count for Servicer: 0.00 193.33 225.56 0.00 0.00
67 02/01/2001 0.00 201.64 201.64 0.00
Count for Servicer: 0.00 201.64 201.64 0.00 0.00
68 02/01/2001 0.00 912.99 912.99 0.00
Count for Servicer: 0.00 912.99 912.99 0.00 0.00
01 577.79 0.00 231.11 0.00 100,642.19
01 02/01/2001 409.01 0.00 163.60 0.00
01 02/01/2001 537.09 0.00 537.09 0.00
01 02/01/2001 345.19 0.00 138.08 0.00
01 222.28 0.00 88.91 0.00 46,187.84
01 195.82 0.00 78.33 0.00 26,124.02
01 194.61 0.00 77.84 0.00 30,637.75
01 02/01/2001 193.88 0.00 77.55 0.00
01 02/01/2001 188.51 0.00 75.40 0.00
01 176.83 0.00 70.73 0.00 37,082.96
01 02/01/2001 157.35 0.00 62.94 0.00
01 02/01/2001 101.91 0.00 40.76 0.00
01 85.34 0.00 34.14 0.00 15,382.02
01 85.26 0.00 34.10 0.00 14,278.05
01 02/01/2001 118.05 0.00 118.05 0.00
01 02/01/2001 70.47 0.00 28.19 0.00
01 02/01/2001 67.71 0.00 27.08 0.00
Count for Servicer: 3,727.10 0.00 1,883.90 0.00 270,334.83
Grand Total: 20 3,727.10 1,307.96 3,224.09 0.00 270,334.83
EXHIBIT E-5
FORM OF MORTGAGE LOANS DELINQUENT REPORT
Mortgage Loans Delinquency Report
As of Month End ______________
Deal Name
----------------- ------------- ----------- -------------- ----------------- ------------------ ------------------ -----------------
ENDING SCH. UNALLOCATED
LOAN OFFICER PRO-SUP ID PROPERTY NAME PRIN. BAL SCHEDULED PAYMENT LATE FEES SUSPENSE
------------- ----------- -------------- ----------------- ------------------ ------------------ -----------------
------------- ----------- -------------- ----------------- ------------------ ------------------ -----------------
Specially Serviced Loans
----------------- ------------- ----------- -------------- ----------------- ------------------ ------------------ -----------------
----------------- ------------- ----------- -------------- ----------------- ------------------ ------------------ -----------------
----------------- ------------- ----------- -------------- ----------------- ------------------ ------------------ -----------------
(TABLE CONTINUED)
----------------- ------------------ ----------------- ------------- --------------- ------------ ---------------------------------
OUTSTANDING
OUTSTANDING P&I SERVICING
LOAN NBR ADVANCES ADVANCES PAID TO DATE FIRST DUE DATE GRACE DAYS COMMENTS
----------------- ------------------ ----------------- ------------- --------------- ------------ ---------------------------------
----------------- ------------------ ----------------- ------------- --------------- ------------ ---------------------------------
Specially Serviced Loans
----------------- ------------------ ----------------- ------------- --------------- ------------ ---------------------------------
----------------- ------------------ ----------------- ------------- --------------- ------------ ---------------------------------
----------------- ------------------ ----------------- ------------- --------------- ------------ ---------------------------------
EXHIBIT F-1A
FORM I OF TRANSFEROR CERTIFICATE
FOR TRANSFERS OF NON-REGISTERED CERTIFICATES
[Date]
Xxxxx Fargo Bank Minnesota, X.X.
Xxxxx Fargo Center
Sixth and Xxxxxxxxx
XXX # X0000-000
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Corporate Trust Services (CMBS)
[OR OTHER CERTIFICATE REGISTRAR]
Re: Credit Suisse First Boston Mortgage Securities Corp., Commercial
Mortgage Pass-Through Certificates, Series 2003-C3, Class ______
Certificates [having an initial aggregate Certificate [Principal
Balance] [Notional Amount] as of June 27, 2003 (the "Closing Date")
of $__________] [evidencing a ____% Percentage Interest in the
related Class] (the "Transferred Certificates")
------------------------------------------------------------------
Dear Sirs:
This letter is delivered to you in connection with the transfer by
_________________ (the "Transferor") to _________________ (the "Transferee") of
the Transferred Certificates pursuant to Section 5.02 of the Pooling and
Servicing Agreement dated as of June 1, 2003 (the "Pooling and Servicing
Agreement"), among Credit Suisse First Boston Mortgage Securities Corp. as
depositor, KeyCorp Real Estate Capital Markets, Inc., as general master servicer
(in such capacity, the "General Master Servicer"), ARCap Servicing, Inc., as
general special servicer (in such capacity, the "General Special Servicer"),
NCB, FSB, as NCBFSB master servicer (in such capacity, the "NCBFSB Master
Servicer"), National Consumer Cooperative Bank, as co-op special servicer (in
such capacity, the "Co-op Special Servicer") and Xxxxx Fargo Bank Minnesota,
N.A., as trustee (in such capacity, the "Trustee"). All capitalized terms used
herein and not otherwise defined shall have the respective meanings set forth in
the Pooling and Servicing Agreement. The Transferor hereby certifies, represents
and warrants to you, as Certificate Registrar, that:
1. The Transferor is the lawful owner of the Transferred Certificates with the
full right to transfer such Certificates free from any and all claims and
encumbrances whatsoever.
2. Neither the Transferor nor anyone acting on its behalf has (a) offered,
transferred, pledged, sold or otherwise disposed of any Transferred Certificate,
any interest in a Transferred Certificate or any other similar security to any
person in any manner, (b) solicited any offer to buy or accept a transfer,
pledge or other disposition of any Transferred Certificate, any interest in a
Transferred Certificate or any other similar security from any person in any
manner, (c) otherwise approached or negotiated with respect to any Transferred
Certificate, any interest in a Transferred Certificate or any other similar
security with any person in any manner, (d) made any general solicitation with
respect to any Transferred Certificate, any interest in a Transferred
Certificate or any other similar security by means of general advertising or in
any other manner, or (e) taken any other action with respect to any Transferred
Certificate, any interest in a Transferred Certificate or any other similar
security, which (in the case of any of the acts described in clauses (a) through
(e) hereof) would constitute a distribution of the Transferred Certificates
under the Securities Act of 1933, as amended (the "Securities Act"), or would
render the disposition of the Transferred Certificates a violation of Section 5
of the Securities Act or any state securities laws, or would require
registration or qualification of the Transferred Certificates pursuant to the
Securities Act or any state securities laws.
3. The Transferor and any person acting on behalf of the Transferor in this
matter reasonably believe that the Transferee is a "qualified institutional
buyer" as that term is defined in Rule 144A ("Rule 144A") under the Securities
Act (a "Qualified Institutional Buyer") purchasing for its own account or for
the account of another person that is itself a Qualified Institutional Buyer. In
determining whether the Transferee is a Qualified Institutional Buyer, the
Transferor and any person acting on behalf of the Transferor in this matter has
relied upon the following method(s) of establishing the Transferee's ownership
and discretionary investments of securities (check one or more):
___ (a) The Transferee's most recent publicly available financial
statements, which statements present the information as of a date within
16 months preceding the date of sale of the Transferred Certificates in
the case of a U.S. purchaser and within 18 months preceding such date of
sale in the case of a foreign purchaser; or
___ (b) The most recent publicly available information appearing in
documents filed by the Transferee with the Securities and Exchange
Commission or another United States federal, state, or local governmental
agency or self-regulatory organization, or with a foreign governmental
agency or self-regulatory organization, which information is as of a date
within 16 months preceding the date of sale of the Transferred
Certificates in the case of a U.S. purchaser and within 18 months
preceding such date of sale in the case of a foreign purchaser; or
___ (c) The most recent publicly available information appearing in a
recognized securities manual, which information is as of a date within 16
months preceding the date of sale of the Transferred Certificates in the
case of a U.S. purchaser and within 18 months preceding such date of sale
in the case of a foreign purchaser; or
___ (d) A certification by the chief financial officer, a person
fulfilling an equivalent function, or other executive officer of the
Transferee, specifying the amount of securities owned and invested on a
discretionary basis by the Transferee as of a specific date on or since
the close of the Transferee's most recent fiscal year, or, in the case of
a Transferee that is a member of a "family of investment companies", as
that term is defined in Rule 144A, a certification by an executive officer
of the investment adviser specifying the amount of securities owned by the
"family of investment companies" as of a specific date on or since the
close of the Transferee's most recent fiscal year.
___ (e) Other. (Please specify brief description of method)__________
______________________________________________________________
______________________________________________________________
4. The Transferor and any person acting on behalf of the Transferor
understand that in determining the aggregate amount of securities owned
and invested on a discretionary basis by an entity for purposes of
establishing whether such entity is a Qualified Institutional Buyer:
(a) the following instruments and interests shall be excluded: securities of
issuers that are affiliated with such entity; securities that are part of
an unsold allotment to or subscription by such entity, if such entity is a
dealer; securities of issuers that are part of such entity's "family of
investment companies", if such entity is a registered investment company;
bank deposit notes and certificates of deposit; loan participations;
repurchase agreements; securities owned but subject to a repurchase
agreement; and currency, interest rate and commodity swaps;
(b) the aggregate value of the securities shall be the cost of such
securities, except where the entity reports its securities holdings in its
financial statements on the basis of their market value, and no current
information with respect to the cost of those securities has been
published, in which case the securities may be valued at market; and
(c) securities owned by subsidiaries of the entity that are consolidated with
the entity in its financial statements prepared in accordance with
generally accepted accounting principles may be included if the
investments of such subsidiaries are managed under the direction of the
entity, except that, unless the entity is a reporting company under
Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended,
securities owned by such subsidiaries may not be included if the entity
itself is a majority-owned subsidiary that would be included in the
consolidated financial statements of another enterprise.
5. The Transferor or a person acting on its behalf has taken reasonable steps
to ensure that the Transferee is aware that the Transferor is relying on
the exemption from the provisions of Section 5 of the Securities Act
provided by Rule 144A.
6. The Transferor or a person acting on its behalf has furnished, or caused
to be furnished, to the Transferee all information regarding (a) the
Depositor, (b) the Transferred Certificates and distributions thereon, (c)
the nature, performance and servicing of the Mortgage Loans, (d) the
Pooling and Servicing Agreement, and (e) all related matters, that the
Transferee has requested.
Very truly yours,
--------------------------------------------
(Transferor)
By:
-----------------------------------------
Name:
Title:
EXHIBIT F-1B
FORM II OF TRANSFEROR CERTIFICATE
FOR TRANSFERS OF NON-REGISTERED CERTIFICATES
[Date]
Xxxxx Fargo Bank Minnesota, X.X.
Xxxxx Fargo Center
Sixth and Xxxxxxxxx
XXX # X0000-000
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Corporate Trust Services (CMBS)
[OR OTHER CERTIFICATE REGISTRAR]
Re: Credit Suisse First Boston Mortgage Securities Corp., Commercial Mortgage
Pass-Through Certificates, Series 2003-C3, Class ______ Certificates
[having an initial aggregate Certificate [Principal Balance] [Notional
Amount] as of June 27, 2003 (the "Closing Date") of $__________]
[evidencing a ____% Percentage Interest in the related Class] (the
"Transferred Certificates")
--------------------------------------------------------------------------
Dear Sirs:
This letter is delivered to you in connection with the transfer by
_________________ (the "Transferor") to _________________ (the "Transferee") of
the Transferred Certificates pursuant to Section 5.02 of the Pooling and
Servicing Agreement dated as of June 1, 2003 (the "Pooling and Servicing
Agreement"), among Credit Suisse First Boston Mortgage Securities Corp. as
depositor, KeyCorp Real Estate Capital Markets, Inc., as general master servicer
(in such capacity, the "General Master Servicer"), ARCap Servicing, Inc., as
general special servicer (in such capacity, the "General Special Servicer"),
NCB, FSB, as NCBFSB master servicer (in such capacity, the "NCBFSB Master
Servicer"), National Consumer Cooperative Bank, as co-op special servicer (in
such capacity, the "Co-op Special Servicer") and Xxxxx Fargo Bank Minnesota,
N.A., as trustee (in such capacity, the "Trustee"). All capitalized terms used
herein and not otherwise defined shall have the respective meanings set forth in
the Pooling and Servicing Agreement. The Transferor hereby certifies, represents
and warrants to you, as Certificate Registrar, and for the benefit of the
Depositor and the Trustee, that:
1. The Transferor is the lawful owner of the Transferred Certificates with the
full right to transfer such Certificates free from any and all claims and
encumbrances whatsoever.
2. Neither the Transferor nor anyone acting on its behalf has (a) offered,
transferred, pledged, sold or otherwise disposed of any Transferred Certificate,
any interest in a Transferred Certificate or any other similar security to any
person in any manner, (b) solicited any offer to buy or accept a transfer,
pledge or other disposition of any Transferred Certificate, any interest in a
Transferred Certificate or any other similar security from any person in any
manner, (c) otherwise approached or negotiated with respect to any Transferred
Certificate, any interest in a Transferred Certificate or any other similar
security with any person in any manner, (d) made any general solicitation with
respect to any Transferred Certificate, any interest in a Transferred
Certificate or any other similar security by means of general advertising or in
any other manner, or (e) taken any other action with respect to any Transferred
Certificate, any interest in a Transferred Certificate or any other similar
security, which (in the case of any of the acts described in clauses (a) through
(e) hereof) would constitute a distribution of the Transferred Certificates
under the Securities Act of 1933, as amended (the "Securities Act"), would
render the disposition of the Transferred Certificates a violation of Section 5
of the Securities Act or any state securities laws, or would require
registration or qualification of the Transferred Certificates pursuant to the
Securities Act or any state securities laws.
Very truly yours,
-----------------------------------------
(Transferor)
By:
-----------------------------------------
Name:
Title:
EXHIBIT F-1C
FORM I OF TRANSFEROR CERTIFICATE
FOR CERTAIN TRANSFERS OF INTERESTS IN RULE 144A GLOBAL CERTIFICATES
[Date]
Xxxxx Fargo Bank Minnesota, X.X.
Xxxxx Fargo Center
Sixth and Xxxxxxxxx
XXX # X0000-000
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Corporate Trust Services (CMBS)
[OR OTHER CERTIFICATE REGISTRAR]
Re: Credit Suisse First Boston Mortgage Securities Corp., Commercial Mortgage
Pass-Through Certificates, Series 2003-C3, Class ____, having an initial
aggregate [Certificate Principal Balance] [Certificate Notional Amount] as
of June 27, 2003 (the "Issue Date") of $__________ (the "Transferred
Certificates")
--------------------------------------------------------------------------
Ladies and Gentlemen:
This letter is delivered to you in connection with the Transfer by
______________________ (the "Transferor") to ______________________ (the
"Transferee") through our respective Depository Participants of the Transferor's
beneficial ownership interest (currently maintained on the books and records of
The Depository Trust Company ("DTC") and the Depository Participants) in the
Transferred Certificates. The Certificates, including the Transferred
Certificates, were issued pursuant to the Pooling and Servicing Agreement dated
as of June 1, 2003 (the "Pooling and Servicing Agreement"), among Credit Suisse
First Boston Mortgage Securities Corp. as depositor, KeyCorp Real Estate Capital
Markets, Inc., as general master servicer (in such capacity, the "General Master
Servicer"), ARCap Servicing, Inc., as general special servicer (in such
capacity, the "General Special Servicer"), NCB, FSB, as NCBFSB master servicer
(in such capacity, the "NCBFSB Master Servicer"), National Consumer Cooperative
Bank, as co-op special servicer (in such capacity, the "Co-op Special Servicer")
and Xxxxx Fargo Bank Minnesota, N.A., as trustee (in such capacity, the
"Trustee"). All capitalized terms used but not otherwise defined herein shall
have the respective meanings set forth in the Pooling and Servicing Agreement.
The Transferor hereby certifies, represents and warrants to and agrees with you,
as Certificate Registrar, and for the benefit of the Depositor and the Trustee,
that:
1. The Transferor is the lawful owner of the Transferred Certificates with the
full right to transfer such Certificates free from any and all claims and
encumbrances whatsoever.
2. Neither the Transferor nor anyone acting on its behalf has (a) offered,
transferred, pledged, sold or otherwise disposed of any Transferred Certificate,
any interest in a Transferred Certificate or any other similar security to any
person in any manner, (b) solicited any offer to buy or accept a transfer,
pledge or other disposition of any Transferred Certificate, any interest in a
Transferred Certificate or any other similar security from any person in any
manner, (c) otherwise approached or negotiated with respect to any Transferred
Certificate, any interest in a Transferred Certificate or any other similar
security with any person in any manner, (d) made any general solicitation with
respect to any Transferred Certificate, any interest in a Transferred
Certificate or any other similar security by means of general advertising or in
any other manner, or (e) taken any other action with respect to any Transferred
Certificate, any interest in a Transferred Certificate or any other similar
security, which (in the case of any of the acts described in clauses (a) through
(e) hereof) would constitute a distribution of the Transferred Certificates
under the Securities Act of 1933, as amended (the "Securities Act"), would
render the disposition of the Transferred Certificates a violation of Section 5
of the Securities Act or any state securities laws, or would require
registration or qualification of the Transferred Certificates pursuant to the
Securities Act or any state securities laws.
Very truly yours,
-----------------------------------------
(Transferor)
By:
-----------------------------------------
Name:
Title:
EXHIBIT F-1D
FORM II OF TRANSFEROR CERTIFICATE
FOR CERTAIN TRANSFERS OF INTERESTS IN RULE 144A GLOBAL CERTIFICATES
[Date]
Xxxxx Fargo Bank Minnesota, X.X.
Xxxxx Fargo Center
Sixth and Marquette
MAC #N9303-121
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Corporate Trust Services (CMBS)
Re: Credit Suisse First Boston Mortgage Securities Corp., Commercial Mortgage
Pass-Through Certificates, Series 2003-C3, Class ____, having an initial
aggregate [Certificate Principal Balance] [Certificate Notional Amount] as
of June 27, 2003 (the "Issue Date") of $__________ (the "Transferred
Certificates")
--------------------------------------------------------------------------
Ladies and Gentlemen:
This letter is delivered to you in connection with the Transfer by
______________________ (the "Transferor") to ______________________ (the
"Transferee") through our respective Depository Participants of the Transferor's
beneficial ownership interest (currently maintained on the books and records of
The Depository Trust Company ("DTC") and the Depository Participants) in the
Transferred Certificates. The Certificates, including the Transferred
Certificates, were issued pursuant to the Pooling and Servicing Agreement dated
as of June 1, 2003 (the "Pooling and Servicing Agreement"), among Credit Suisse
First Boston Mortgage Securities Corp. as depositor, KeyCorp Real Estate Capital
Markets, Inc., as general master servicer (in such capacity, the "General Master
Servicer"), ARCap Servicing, Inc., as general special servicer (in such
capacity, the "General Special Servicer"), NCB, FSB, as NCBFSB master servicer
(in such capacity, the "NCBFSB Master Servicer"), National Consumer Cooperative
Bank, as co-op special servicer (in such capacity, the "Co-op Special Servicer")
and Xxxxx Fargo Bank Minnesota, N.A., as trustee (in such capacity, the
"Trustee"). All capitalized terms used but not otherwise defined herein shall
have the respective meanings set forth in the Pooling and Servicing Agreement.
The Transferor hereby certifies, represents and warrants to and agrees with you,
as Certificate Registrar, and for the benefit of the Depositor and the Trustee,
that:
1. The Transferor is the lawful owner of the Transferred Certificates with
the full right to transfer such Certificates free from any and all claims
and encumbrances whatsoever.
2. At the time the buy order was originated, the Transferor reasonably
believed that the Transferee was outside the United States, its
territories and possessions.
3. If the Transferor is a distributor (within the meaning of Rule 902(d)
under the Securities Act of 1933, as amended (the "Securities Act")) with
respect to the Transferred Certificates, or an affiliate of such a
distributor or of the Depositor, or a person acting on behalf of such a
distributor, the Depositor or any affiliate of such distributor or of the
Depositor, then:
(a) the sale of the Transferred Certificates by the Transferor to the
Transferee will be executed in, on or through a physical trading floor of
an established foreign securities exchange that is located outside the
United States, its territories and possessions;
(b) no directed selling efforts (within the meaning of Rule 902(c) under the
Securities Act) have been made in the United States, its territories and
possessions, with respect to the Transferred Certificates by the
Transferor, any of its affiliates, or any person acting on behalf of any
of the foregoing;
(c) all offers and sales, if any, of the Transferred Certificates by or on
behalf of the Transferor prior to the expiration of the distribution
compliance period specified in category 2 or 3 (paragraph (b)(2) or
(b)(3)) in Rule 903 under the Securities Act, as applicable, have been
and will be made only in accordance with the provisions of Rule 903 or
Rule 904 under the Securities Act, pursuant to registration of the
Transferred Certificates under the Securities Act, or pursuant to an
available exemption from the registration requirements of the
Securities Act;
(d) all offering materials and documents (other than press releases), if any,
used in connection with offers and sales of the Transferred Certificates
by or on behalf of the Transferor prior to the expiration of the
distribution compliance period specified in category 2 or 3 (paragraph
(b)(2) or (b)(3)) in Rule 903 under the Securities Act, as applicable,
complied with the requirements of Rule 902(g)(2) under the Securities Act;
and
(e) if the Transferee is a distributor, a dealer or a person receiving a
selling concession, a fee or other remuneration and the offer or sale of
the Transferred Certificates thereto occurs prior to the expiration of the
applicable 40-day distribution compliance period, the Transferor has sent
a confirmation or other notice to the Transferee that the Transferee is
subject to the same restrictions on offers and sales that apply to a
distributor.
4. If the Transferor is not a distributor with respect to the Transferred
Certificates or an affiliate of such a distributor or of the Depositor or
acting on behalf of such a distributor, the Depositor or any affiliate of
such a distributor or of the Depositor, then:
(a) the sale of the Transferred Certificates by the Transferor to the
Transferee will be executed in, on or through the facilities of a
designated offshore securities market described in paragraph (b) of Rule
902 under the Securities Act, and neither the Transferor nor anyone acting
on its behalf knows that such transaction has been prearranged with a
buyer in the United States, its territories and possessions;
(b) no directed selling efforts (within the meaning of Rule 902(c) under the
Securities Act) have been made in the United States, its territories and
possessions, with respect to the Transferred Certificates by the
Transferor, any of its affiliates, or any person acting on behalf of any
of the foregoing;
(c) if the Transferee is a dealer or a person receiving a selling concession,
a fee or other remuneration and the offer or sale of the Transferred
Certificates thereto occurs prior to the expiration of the applicable
40-day distribution compliance period, the Transferor has sent a
confirmation or other notice to the Transferee stating that the
Transferred Certificates may be offered and sold during the distribution
compliance period only in accordance with the provisions of Regulation S
under the Securities Act, pursuant to registration of the Transferred
Certificates under the Securities Act or pursuant to an available
exemption from the registration requirements of the Securities Act.
Very truly yours,
--------------------------------------------
(Transferor)
By:
-----------------------------------------
Name:
Title:
EXHIBIT F-2A
FORM I OF TRANSFEREE CERTIFICATE FOR TRANSFERS OF
NON-REGISTERED CERTIFICATES HELD IN PHYSICAL FORM
[Date]
Xxxxx Fargo Bank Minnesota, X.X.
Xxxxx Fargo Center
Sixth and Xxxxxxxxx
XXX # X0000-000
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Corporate Trust Services (CMBS)
[OR OTHER CERTIFICATE REGISTRAR]
Re: Credit Suisse First Boston Mortgage Securities Corp., Commercial Mortgage
Pass-Through Certificates, Series 2003-C3, Class ______ Certificates
[having an initial aggregate Certificate [Principal Balance] [Notional
Amount] as of June 27, 2003 (the "Closing Date") of $__________]
[evidencing a ____% Percentage Interest in the related Class] (the
"Transferred Certificates")
--------------------------------------------------------------------------
Dear Sirs:
This letter is delivered to you in connection with the transfer by
_________________ (the "Transferor") to _________________ (the "Transferee") of
the Transferred Certificates pursuant to Section 5.02 of the Pooling and
Servicing Agreement dated as of June 1, 2003 (the "Pooling and Servicing
Agreement"), among Credit Suisse First Boston Mortgage Securities Corp. as
depositor, KeyCorp Real Estate Capital Markets, Inc., as general master servicer
(in such capacity, the "General Master Servicer"), ARCap Servicing, Inc., as
general special servicer (in such capacity, the "General Special Servicer"),
NCB, FSB, as NCBFSB master servicer (in such capacity, the "NCBFSB Master
Servicer"), National Consumer Cooperative Bank, as co-op special servicer (in
such capacity, the "Co-op Special Servicer") and Xxxxx Fargo Bank Minnesota,
N.A., as trustee (in such capacity, the "Trustee"). All capitalized terms used
herein and not otherwise defined shall have the respective meanings set forth in
the Pooling and Servicing Agreement. The Transferee hereby certifies, represents
and warrants to you, as Certificate Registrar, and for the benefit of the
Depositor and the Trustee, that:
1. The Transferee is a "qualified institutional buyer" (a "Qualified
Institutional Buyer") as that term is defined in Rule 144A ("Rule 144A") under
the Securities Act of 1933, as amended (the "Securities Act"), and has completed
one of the forms of certification to that effect attached hereto as Annex 1 and
Annex 2. The Transferee is aware that the sale to it is being made in reliance
on Rule 144A. The Transferee is acquiring the Transferred Certificates for its
own account or for the account of another Qualified Institutional Buyer, and
understands that such Transferred Certificates may be resold, pledged or
transferred only (a) to a person reasonably believed to be a Qualified
Institutional Buyer that purchases for its own account or for the account of
another Qualified Institutional Buyer and to whom notice is given that the
resale, pledge or transfer is being made in reliance on Rule 144A, or (b)
pursuant to another exemption from registration under the Securities Act.
2. The Transferee has been furnished with all information regarding (a) the
Depositor, (b) the Transferred Certificates and distributions thereon, (c) the
nature, performance and servicing of the Mortgage Loans, (d) the Pooling and
Servicing Agreement and the Trust Fund created pursuant thereto, and (e) all
related matters, that it has requested.
3. If the Transferee proposes that the Transferred Certificates be registered in
the name of a nominee, such nominee has completed the Nominee Acknowledgment
below.
Very truly yours,
--------------------------------------------
(Transferor)
By:
-----------------------------------------
Name:
Title:
Nominee Acknowledgment
The undersigned hereby acknowledges and agrees that as to the
Transferred Certificates being registered in its name, the sole beneficial owner
thereof is and shall be the Transferee identified above, for whom the
undersigned is acting as nominee.
Very truly yours,
--------------------------------------------
(Nominee)
By:
-----------------------------------------
Name:
Title:
ANNEX 1 TO EXHIBIT F-2A
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees Other Than Registered Investment Companies]
The undersigned hereby certifies as follows to [name of Transferor] (the
"Transferor") and [name of Certificate Registrar], as Certificate Registrar,
with respect to the mortgage pass-through certificates being transferred (the
"Transferred Certificates") as described in the Transferee certificate to which
this certification relates and to which this certification is an Annex:
1. As indicated below, the undersigned is the chief financial officer, a person
fulfilling an equivalent function, or other executive officer of the entity
purchasing the Transferred Certificates (the "Transferee").
2. The Transferee is a "qualified institutional buyer" as that term is defined
in Rule 144A under the Securities Act of 1933, as amended ("Rule 144A") because
(i) the Transferee [each of the Transferee's equity owners] owned and/or
invested on a discretionary basis $__________________1 in securities (other than
the excluded securities referred to below) as of the end of the Transferee's
most recent fiscal year (such amount being calculated in accordance with Rule
144A) and (ii) the Transferee satisfies the criteria in the category marked
below.
___ Corporation, etc. The Transferee is a corporation (other than a
bank, savings and loan association or similar institution),
Massachusetts or similar business trust, partnership, or any
organization described in Section 501(c)(3) of the Internal Revenue
Code of 1986.
___ Bank. The Transferee (a) is a national bank or a banking institution
organized under the laws of any state, U.S. territory or the
District of Columbia, the business of which is substantially
confined to banking and is supervised by the state or territorial
banking commission or similar official or is a foreign bank or
equivalent institution, and (b) has an audited net worth of at least
$25,000,000 as demonstrated in its latest annual financial
statements, a copy of which is attached hereto, as of a date not
more than 16 months preceding the date of sale of the Transferred
Certificates in the case of a U.S. bank, and not more than 18 months
preceding such date of sale in the case of a foreign bank or
equivalent institution.
___ Savings and Loan. The Transferee (a) is a savings and loan
association, building and loan association, cooperative bank,
homestead association or similar institution, which is supervised
and examined by a state or federal authority having supervision over
any such institutions or is a foreign savings and loan association
or equivalent institution and (b) has an audited net worth of at
least $25,000,000 as demonstrated in its latest annual financial
statements, a copy of which is attached hereto, as of a date not
more than 16 months preceding the date of sale of the Transferred
Certificates in the case of a U.S. savings and loan association, and
not more than 18 months preceding such date of sale in the case of a
foreign savings and loan association or equivalent institution.
___ Broker-dealer. The Transferee is a dealer registered pursuant to
Section 15 of the Securities Exchange Act of 1934, as amended.
___ Insurance Company. The Transferee is an insurance company whose
primary and predominant business activity is the writing of
insurance or the reinsuring of risks underwritten by insurance
companies and which is subject to supervision by the insurance
commissioner or a similar official or agency of a State, U.S.
territory or the District of Columbia.
___ State or Local Plan. The Transferee is a plan established and
maintained by a State, its political subdivisions, or any agency or
instrumentality of the State or its political subdivisions, for the
benefit of its employees.
___ ERISA Plan. The Transferee is an employee benefit plan within the
meaning of Title I of the Employee Retirement Income Security Act of
1974.
___ Investment Advisor. The Transferee is an investment advisor
registered under the Investment Advisers Act of 1940, as amended.
___ QIB Subsidiary. All of the Transferee's equity owners are "qualified
institutional buyers" within the meaning of Rule 144A.
___ 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. For purposes of determining the aggregate amount of securities owned and/or
invested on a discretionary basis by any Person, the Transferee did not include
(i) securities of issuers that are affiliated with such Person, (ii) securities
that are part of an unsold allotment to or subscription by such Person, if such
Person 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.
4. For purposes of determining the aggregate amount of securities owned and/or
invested on a discretionary basis by any Person, the Transferee used the cost of
such securities to such Person, unless such Person 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 such Person, but only if such subsidiaries are
consolidated with such Person in its financial statements prepared in accordance
with generally accepted accounting principles and if the investments of such
subsidiaries are managed under such Person's direction. However, such securities
were not included if such Person is a majority-owned, consolidated subsidiary of
another enterprise and such Person is not itself a reporting company under the
Securities Exchange Act of 1934, as amended.
5. The Transferee is familiar with Rule 144A and understands that the Transferor
and other parties related to the Transferred Certificates are relying and will
continue to rely on the statements made herein because one or more sales to the
Transferee may be in reliance on Rule 144A.
Yes ___ or No ___ Will the Transferee be purchasing the
Transferred Certificates only for the
Transferee's own account?
6. If the answer to the foregoing question is "no", then in each case where the
Transferee is purchasing for an account other than its own, such account belongs
to a third party that is itself a "qualified institutional buyer" within the
meaning of Rule 144A, and the "qualified institutional buyer" status of such
third party has been established by the Transferee through one or more of the
appropriate methods contemplated by Rule 144A.
7. The Transferee will notify each of the parties to which this certification is
made of any changes in the information and conclusions herein. Until such notice
is given, the Transferee's purchase of the Transferred Certificates will
constitute a reaffirmation of this certification as of the date of such
purchase. In addition, if the Transferee is a bank or savings and loan as
provided above, the Transferee agrees that it will furnish to such parties any
updated annual financial statements that become available on or before the date
of such purchase, promptly after they become available.
8. Capitalized terms used but not defined herein have the respective meanings
ascribed thereto in the Pooling and Servicing Agreement pursuant to which the
Transferred Certificates were issued.
Print Name of Transferee
By:
-----------------------------------------
Name:
Title:
Date:
-------------------
1 Transferee or each of its equity owners must own and/or invest on a
discretionary basis at least $100,000,000 in securities unless Transferee or any
such equity owner, as the case may be, is a dealer, and, in that case,
Transferee or such equity owner, as the case may be, must own and/or invest on a
discretionary basis at least $10,000,000 in securities.
ANNEX 2 TO EXHIBIT F-2A
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees That Are Registered Investment Companies]
The undersigned hereby certifies as follows to [name of Transferor] (the
"Transferor") and [name of Certificate Registrar], as Certificate Registrar,
with respect to the mortgage pass-through certificates (the "Transferred
Certificates") described in the Transferee certificate to which this
certification relates and to which this certification is an Annex:
1. As indicated below, the undersigned is the chief financial officer, a person
fulfilling an equivalent function, or other executive officer of the entity
purchasing the Transferred Certificates (the "Transferee") or, if the Transferee
is a "qualified institutional buyer" as that term is defined in Rule 144A under
the Securities Act of 1933, as amended ("Rule 144A") because the Transferee is
part of a Family of Investment Companies (as defined below), is an executive
officer of the investment adviser (the "Adviser").
2. The Transferee is a "qualified institutional buyer" as defined in Rule 144A
because (i) the Transferee is an investment company registered under the
Investment Company Act of 1940, and (ii) as marked below, the Transferee alone
owned and/or invested on a discretionary basis, or the Transferee's Family of
Investment Companies owned, at least $100,000,000 in securities (other than the
excluded securities referred to below) as of the end of the Transferee's most
recent fiscal year. For purposes of determining the amount of securities owned
by the Transferee or the Transferee's Family of Investment Companies, the cost
of such securities was used, unless the Transferee or any member of the
Transferee's Family of Investment Companies, as the case may be, reports its
securities holdings in its financial statements on the basis of their market
value, and no current information with respect to the cost of those securities
has been published, in which case the securities of such entity were valued at
market.
____ The Transferee owned and/or invested on a discretionary basis
$___________________ in securities (other than the excluded
securities referred to below) as of the end of the Transferee's most
recent fiscal year (such amount being calculated in accordance with
Rule 144A).
____ The Transferee is part of a Family of Investment Companies which
owned in the aggregate $______________ in securities (other than the
excluded securities referred to below) as of the end of the
Transferee's most recent fiscal year (such amount being calculated
in accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein means two or more
registered investment companies (or series thereof) that have the same
investment adviser or investment advisers that are affiliated (by virtue of
being majority owned subsidiaries of the same parent or because one investment
adviser is a majority owned subsidiary of the other).
4. The term "securities" as used herein does not include (i) securities of
issuers that are affiliated with the Transferee or are part of the Transferee's
Family of Investment Companies, (ii) bank deposit notes and certificates of
deposit, (iii) loan participations, (iv) repurchase agreements, (v) securities
owned but subject to a repurchase agreement and (vi) currency, interest rate and
commodity swaps. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by the Transferee, or owned by
the Transferee's Family of Investment Companies, the securities referred to in
this paragraph were excluded.
5. The Transferee is familiar with Rule 144A and understands that the Transferor
and other parties related to the Transferred Certificates are relying and will
continue to rely on the statements made herein because one or more sales to the
Transferee will be in reliance on Rule 144A.
Yes ___ or No ___ Will the Transferee be purchasing the
Transferred Certificates only for the
Transferee's own account?
6. If the answer to the foregoing question is "no", then in each case where the
Transferee is purchasing for an account other than its own, such account belongs
to a third party that is itself a "qualified institutional buyer" within the
meaning of Rule 144A, and the "qualified institutional buyer" status of such
third party has been established by the Transferee through one or more of the
appropriate methods contemplated by Rule 144A.
7. The undersigned will notify the parties to which this certification is made
of any changes in the information and conclusions herein. Until such notice, the
Transferee's purchase of the Transferred Certificates will constitute a
reaffirmation of this certification by the undersigned as of the date of such
purchase.
8. Capitalized terms used but not defined herein have the respective meanings
ascribed thereto in the Pooling and Servicing Agreement pursuant to which the
Transferred Certificates were issued.
Print Name of Transferee or Adviser
By:
-----------------------------------------
Name:
Title:
IF AN ADVISER:
Print Name of Transferee
Date:
---------------------------------------
EXHIBIT F-2B
FORM II OF TRANSFEREE CERTIFICATE FOR TRANSFERS OF
NON-REGISTERED CERTIFICATES HELD IN PHYSICAL FORM
[Date]
Xxxxx Fargo Bank Minnesota, X.X.
Xxxxx Fargo Center
Sixth and Xxxxxxxxx
XXX # X0000-000
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Corporate Trust Services (CMBS)
[OR OTHER CERTIFICATE REGISTRAR]
Re: Credit Suisse First Boston Mortgage Securities Corp., Commercial Mortgage
Pass-Through Certificates, Series 2003-C3, Class ______ Certificates
[having an initial aggregate Certificate [Principal Balance] [Notional
Amount] as of June 27, 2003 (the "Closing Date") of $__________]
[evidencing a ____% Percentage Interest in the related Class] (the
"Transferred Certificates")
--------------------------------------------------------------------------
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
_______________________ (the "Transferor") to _______________________________
(the "Transferee") of the Transferred Certificates pursuant to Section 5.02 of
the Pooling and Servicing Agreement dated as of June 1, 2003 (the "Pooling and
Servicing Agreement"), among Credit Suisse First Boston Mortgage Securities
Corp. as depositor, KeyCorp Real Estate Capital Markets, Inc., as general master
servicer (in such capacity, the "General Master Servicer"), ARCap Servicing,
Inc., as general special servicer (in such capacity, the "General Special
Servicer"), NCB, FSB, as NCBFSB master servicer (in such capacity, the "NCBFSB
Master Servicer"), National Consumer Cooperative Bank, as co-op special servicer
(in such capacity, the "Co-op Special Servicer") and Xxxxx Fargo Bank Minnesota,
N.A., as trustee (in such capacity, the "Trustee"). All capitalized terms used
herein and not otherwise defined shall have the respective meanings set forth in
the Pooling and Servicing Agreement. The Transferee hereby certifies, represents
and warrants to you, as Certificate Registrar, that:
1. Transferee is acquiring the Transferred Certificates for its own account for
investment and not with a view to or for sale or transfer in connection with any
distribution thereof, in whole or in part, in any manner which would violate the
Securities Act of 1933, as amended (the "Securities Act"), or any applicable
state securities laws.
2. Transferee understands that (a) the Transferred Certificates have not been
and will not be registered under the Securities Act or registered or qualified
under any applicable state securities laws, (b) neither the Depositor nor the
Trustee is obligated so to register or qualify the Transferred Certificates, and
(c) neither the Transferred Certificates nor any security issued in exchange
therefor or in lieu thereof may be resold or transferred unless it is (i)
registered pursuant to the Securities Act and registered or qualified pursuant
to any applicable state securities laws or (ii) sold or transferred in a
transaction which is exempt from such registration and qualification and the
Certificate Registrar has received (A) a certificate from the prospective
transferor substantially in the form attached as Exhibit F-1A to the Pooling and
Servicing Agreement; (B) a certificate from the prospective transferor
substantially in the form attached as Exhibit F-1B to the Pooling and Servicing
Agreement and a certificate from the prospective transferee substantially in the
form attached either as Exhibit F-2A or as Exhibit F-2B to the Pooling and
Servicing Agreement; or (C) an Opinion of Counsel satisfactory to the
Certificate Registrar that the transfer may be made without registration under
the Securities Act, together with the written certification(s) as to the facts
surrounding the transfer from the prospective transferor and/or prospective
transferee upon which such Opinion of Counsel is based.
3. The Transferee understands that it may not sell or otherwise transfer the
Transferred Certificates, any security issued in exchange therefor or in lieu
thereof or any interest in the foregoing 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 Certificates will
bear legends substantially to the following effect:
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE
SECURITIES LAWS OF ANY STATE. ANY RESALE, PLEDGE, TRANSFER OR OTHER
DISPOSITION OF THIS CERTIFICATE WITHOUT SUCH REGISTRATION OR
QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES NOT
REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH IS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE
TO (A) ANY RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR
ARRANGEMENT THAT IS SUBJECT TO SECTION 406 OR 407 OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986 (THE "CODE"), OR
(B) TO ANY PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS
CERTIFICATE OR ANY INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY
OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH RETIREMENT PLAN OR
OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, EXCEPT IN ACCORDANCE
WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
4. Neither the Transferee nor anyone acting on its behalf has (a) offered,
transferred, pledged, sold or otherwise disposed of any Transferred Certificate,
any interest in a Transferred Certificate or any other similar security to any
person in any manner, (b) solicited any offer to buy or accept a transfer,
pledge or other disposition of any Transferred Certificate, any interest in a
Transferred Certificate or any other similar security from any person in any
manner, (c) otherwise approached or negotiated with respect to any Transferred
Certificate, any interest in a Transferred 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 the Transferred Certificates under
the Securities Act, would render the disposition of the Transferred Certificates
a violation of Section 5 of the Securities Act or any state securities law or
would require registration or qualification of the Transferred Certificates
pursuant thereto. The Transferee will not act, nor has it authorized nor will it
authorize any person to act, in any manner set forth in the foregoing sentence
with respect to the Transferred Certificates, any interest in the Transferred
Certificates or any other similar security.
5. The Transferee has been furnished with all information regarding (a) the
Depositor, (b) the Transferred Certificates and distributions thereon, (c)
nature, performance and servicing of the Mortgage Loans, (d) the Pooling and
Servicing Agreement and the Trust Fund created pursuant thereto and (e) all
related matters, that it has requested.
6. The Transferee is an "accredited investor" within the meaning of paragraph
(1), (2), (3) or (7) of Rule 501(a) under the Securities Act or an entity in
which all the equity owners come within such paragraphs 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 Transferred Certificates; the
Transferee has sought such accounting, legal and tax advice as it has considered
necessary to make an informed investment decision; and the Transferee is able to
bear the economic risks of such an investment and can afford a complete loss of
such investment.
7. If the Transferee proposes that the Transferred Certificates be registered in
the name of a nominee, such nominee has completed the Nominee Acknowledgment
below.
Very truly yours,
By:
-----------------------------------------
(Transferee)
Name:
Title:
Nominee Acknowledgment
The undersigned hereby acknowledges and agrees that as to the
Transferred Certificates being registered in its name, the sole beneficial owner
thereof is and shall be the Transferee identified above, for whom the
undersigned is acting as nominee.
--------------------------------------------
(Nominee)
By:
-----------------------------------------
Name:
Title:
EXHIBIT F-2C
FORM I OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF INTERESTS IN GLOBAL CERTIFICATES
FOR CLASSES OF NON-REGISTERED CERTIFICATES
[Date]
[TRANSFEROR]
Re: Credit Suisse First Boston Mortgage Securities Corp., Commercial Mortgage
Pass-Through Certificates, Series 2003-C3, Class ______ Certificates
[having an initial aggregate Certificate [Principal Balance] [Notional
Amount] as of June 27, 2003 (the "Closing Date") of $__________] (the
"Transferred Certificates")
--------------------------------------------------------------------------
Ladies and Gentlemen:
This letter is delivered to you in connection with the Transfer by
_________________ (the "Transferor") to _________________ (the "Transferee")
through our respective Depository Participants of the Transferor's beneficial
ownership interest (currently maintained on the books and records of The
Depository Trust Corporation ("DTC") and the Depository Participants) in the
Transferred Certificates. The Certificates, including the Transferred
Certificates, were issued pursuant to the Pooling and Servicing Agreement dated
as of June 1, 2003 (the "Pooling and Servicing Agreement"), among Credit Suisse
First Boston Mortgage Securities Corp. as depositor, KeyCorp Real Estate Capital
Markets, Inc., as general master servicer (in such capacity, the "General Master
Servicer"), ARCap Servicing, Inc., as general special servicer (in such
capacity, the "General Special Servicer"), NCB, FSB, as NCBFSB master servicer
(in such capacity, the "NCBFSB Master Servicer"), National Consumer Cooperative
Bank, as co-op special servicer (in such capacity, the "Co-op Special Servicer")
and Xxxxx Fargo Bank Minnesota, N.A., as trustee (in such capacity, the
"Trustee"). All capitalized terms used but not otherwise defined herein shall
have the respective meanings set forth in the Pooling and Servicing Agreement.
The Transferee hereby certifies, represents and warrants to and agrees with you,
and for the benefit of the Depositor, the Trustee and the Certificate Registrar,
that:
1. The Transferee is a "qualified institutional buyer" (a "Qualified
Institutional Buyer") as that term is defined in Rule 144A ("Rule 144A") under
the Securities Act of 1933, as amended (the "Securities Act") and has completed
one of the forms of certification to that effect attached hereto as Annex 1 and
Annex 2. The Transferee is aware that the Transfer to it of the Transferor's
interest in the Transferred Certificates is being made in reliance on Rule 144A.
The Transferee is acquiring such interest in the Transferred Certificates for
its own account or for the account of a Qualified Institutional Buyer.
2. The Transferee understands that (a) the Transferred Certificates have not
been and will not be registered under the Securities Act or registered or
qualified under any applicable state securities laws, (b) neither the Depositor
nor the Trustee is obligated so to register or qualify the Transferred
Certificates, and (c) neither the Transferred Certificates nor any security
issued in exchange therefor or in lieu thereof may be resold or transferred
unless it is (i) registered pursuant to the Securities Act and registered or
qualified pursuant any applicable state securities laws or (ii) sold or
transferred in transactions which are exempt from such registration and
qualification.
3. The Transferee understands that it may not sell or otherwise transfer any
Transferred Certificate, any security issued in exchange therefor or in lieu
thereof or any interest in the foregoing except in compliance with the
provisions of Section 5.02 of the Pooling and Servicing Agreement, which
provisions it has carefully reviewed, and that each Transferred Certificate will
bear the following legends:
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE
SECURITIES LAWS OF ANY STATE. ANY RESALE, PLEDGE, TRANSFER OR OTHER
DISPOSITION OF THIS CERTIFICATE OR ANY INTEREST HEREIN WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH
IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE
(A) TO ANY EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT
THAT IS SUBJECT TO SECTION 406 OR 407 OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975
OF THE INTERNAL REVENUE CODE OF 1986 (THE "CODE"), OR (B) TO ANY
PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR
SUCH INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE
OF, OR WITH ASSETS OF, ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER
RETIREMENT ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF
SECTION 5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
4. The Transferee has been furnished with all information regarding (a) The
Depositor, (b) the Transferred Certificates and distributions thereon, (c) the
nature, performance and servicing of the Mortgage Loans, (d) the Pooling and
Servicing Agreement, and (e) all related matters, that it has requested.
Very truly yours,
(Transferee)
By:
-----------------------------------------
Name:
Title:
ANNEX 1 TO EXHIBIT F-2C
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 for the benefit of Credit Suisse First Boston Mortgage
Securities Corp. with respect to the mortgage pass-through certificates being
transferred in book-entry form (the "Transferred Certificates") as described in
the Transferee Certificate to which this certification relates and to which this
certification is an Annex:
1. As indicated below, the undersigned is the chief financial officer, a person
fulfilling an equivalent function, or other executive officer of the entity
acquiring interests in the Transferred Certificates (the "Transferee").
2. The Transferee is a "qualified institutional buyer" as that term is defined
in Rule 144A under the Securities Act of 1933, as amended ("Rule 144A") because
(i) [the Transferee] [each of the Transferee's equity owners] owned and/or
invested on a discretionary basis $__________________2 in securities (other than
the excluded securities referred to below) as of the end of the Transferee's
most recent fiscal year (such amount being calculated in accordance with Rule
144A) and (ii) the Transferee satisfies the criteria in the category marked
below.
___ Corporation, etc. The Transferee is a corporation (other than a
bank, savings and loan association or similar institution),
Massachusetts or similar business trust, partnership, or any
organization described in Section 501(c)(3) of the Internal Revenue
Code of 1986.
___ Bank. The Transferee (a) is a national bank or a banking institution
organized under the laws of any State, U.S. territory or the
District of Columbia, the business of which is substantially
confined to banking and is supervised by the State or territorial
banking commission or similar official or is a foreign bank or
equivalent institution, and (b) has an audited net worth of at least
$25,000,000 as demonstrated in its latest annual financial
statements, a copy of which is attached hereto, as of a date not
more than 16 months preceding the date of sale of the Transferred
Certificates in the case of a U.S. bank, and not more than 18 months
preceding such date of sale for a foreign bank or equivalent
institution.
___ Savings and Loan. The Transferee (a) is a savings and loan
association, building and loan association, cooperative bank,
homestead association or similar institution, which is supervised
and examined by a State or Federal authority having supervision over
any such institutions or is a foreign savings and loan association
or equivalent institution and (b) has an audited net worth of at
least $25,000,000 as demonstrated in its latest annual financial
statements, a copy of which is attached hereto, as of a date not
more than 16 months preceding the date of sale of the Transferred
Certificates in the case of a U.S. savings and loan association, and
not more than 18 months preceding such date of sale in the case of a
foreign savings and loan association or equivalent institution.
___ Broker-dealer. The Transferee is a dealer registered pursuant to
Section 15 of the Securities Exchange Act of 1934, as amended.
___ Insurance Company. The Transferee is an insurance company whose
primary and predominant business activity is the writing of
insurance or the reinsuring of risks underwritten by insurance
companies and which is subject to supervision by the insurance
commissioner or a similar official or agency of a State, U.S.
territory or the District of Columbia.
___ State or Local Plan. The Transferee is a plan established and
maintained by a State, its political subdivisions, or any agency or
instrumentality of the State or its political subdivisions, for the
benefit of its employees.
___ ERISA Plan. The Transferee is an employee benefit plan within the
meaning of Title I of the Employee Retirement Income Security Act of
1974.
___ Investment Advisor. The Transferee is an investment advisor
registered under the Investment Advisers Act of 1940, as amended.
___ QIB Subsidiary. All of the Transferee's equity owners are "qualified
institutional buyers" within the meaning of Rule 144A.
___ 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. 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 (i) securities of issuers that are affiliated with such Person, (ii)
securities that are part of an unsold allotment to or subscription by such
Person, if such Person 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.
4. For purposes of determining the aggregate amount of securities owned and/or
invested on a discretionary basis by any such Person, the Transferee used the
cost of such securities to such Person, unless such Person 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 such Person, but only if such subsidiaries
are consolidated with such Person in its financial statements prepared in
accordance with generally accepted accounting principles and if the investments
of such subsidiaries are managed under such Person's direction. However, such
securities were not included if such Person is a majority-owned, consolidated
subsidiary of another enterprise and such Person is not itself a reporting
company under the Securities Exchange Act of 1934, as amended.
5. The Transferee acknowledges that it is familiar with Rule 144A and
understands that the Transferor and other parties related to the Transferred
Certificates are relying and will continue to rely on the statements made herein
because one or more Transfers to the Transferee may be in reliance on Rule 144A.
Yes ___ or No ___ Will the Transferee be acquiring the
Transferred Certificates only for the
Transferee's own account?
6. If the answer to the foregoing question is "no", then in each case where the
Transferee is acquiring any interest in the Transferred Certificates 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 acquisition of any interest in of the Transferred
Certificates will constitute a reaffirmation of this certification as of the
date of such acquisition. 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 acquisition, promptly after they become available.
8. Capitalized terms used but not defined herein have the meanings ascribed
thereto in the Pooling and Servicing Agreement pursuant to which the Transferred
Certificates were issued.
(Transferee)
By:
-----------------------------------------
Name:
Title:
Date:
ANNEX 2 TO EXHIBIT F-2C
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[for Transferees that are Registered Investment Companies]
The undersigned hereby certifies as follows to [name of Transferor] (the
"Transferor") and for the benefit of Credit Suisse First Boston Mortgage
Securities Corp. with respect to the mortgage pass-through certificates being
transferred in book-entry form (the "Transferred Certificates") as described in
the Transferee Certificate to which this certification relates and to which this
certification is an Annex:
1. As indicated below, the undersigned is the chief financial officer, a person
fulfilling an equivalent function, or other executive officer of the entity
acquiring interests in the Transferred Certificates (the "Transferee") or, if
the Transferee is a "qualified institutional buyer" as that term is defined in
Rule 144A under the Securities Act of 1933, as amended ("Rule 144A") because the
Transferee is part of a Family of Investment Companies (as defined below), is an
executive officer of the investment adviser (the "Adviser").
2. The Transferee is a "qualified institutional buyer" as defined in Rule 144A
because (i) the Transferee is an investment company registered under the
Investment Company Act of 1940, as amended, and (ii) as marked below, the
Transferee alone owned and/or invested on a discretionary basis, or the
Transferee's Family of Investment Companies owned, at least $100,000,000 in
securities (other than the excluded securities referred to below) as of the end
of the Transferee's most recent fiscal year. For purposes of determining the
amount of securities owned by the Transferee or the Transferee's Family of
Investment Companies, the cost of such securities was used, unless the
Transferee or any member of the Transferee's Family of Investment Companies, as
the case may be, reports its securities holdings in its financial statements on
the basis of their market value, and no current information with respect to the
cost of those securities has been published, in which case the securities of
such entity were valued at market.
____ The Transferee owned and/or invested on a discretionary basis
$___________________ in securities (other than the excluded
securities referred to below) as of the end of the Transferee's most
recent fiscal year (such amount being calculated in accordance with
Rule 144A).
____ The Transferee is part of a Family of Investment Companies which
owned in the aggregate $______________ in securities (other than the
excluded securities referred to below) as of the end of the
Transferee's most recent fiscal year (such amount being calculated
in accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein means two or more
registered investment companies (or series thereof) that have the same
investment adviser or investment advisers that are affiliated (by virtue of
being majority owned subsidiaries of the same parent or because one investment
adviser is a majority owned subsidiary of the other).
4. The term "securities" as used herein does not include (i) securities of
issuers that are affiliated with the Transferee or are part of the Transferee's
Family of Investment Companies, (ii) bank deposit notes and certificates of
deposit, (iii) loan participations, (iv) repurchase agreements, (v) securities
owned but subject to a repurchase agreement and (vi) currency, interest rate and
commodity swaps. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by the Transferee, or owned by
the Transferee's Family of Investment Companies, the securities referred to in
this paragraph were excluded.
5. The Transferee is familiar with Rule 144A and understands that the Transferor
and other parties related to the Transferred Certificates are relying and will
continue to rely on the statements made herein because one or more Transfers to
the Transferee will be in reliance on Rule 144A.
Yes ___ or No ___ Will the Transferee be purchasing the
Transferred Certificates only for the
Transferee's own account?
6. If the answer to the foregoing question is "no", then in each case where the
Transferee is acquiring any interest in the Transferred Certificates 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 acquisition of any interest in the Transferred Certificates will
constitute a reaffirmation of this certification by the undersigned as of the
date of such acquisition.
8. Capitalized terms used but not defined herein have the meanings ascribed
thereto in the Pooling and Servicing Agreement pursuant to which the Transferred
Certificates were issued.
(Transferee or Adviser)
By:
-----------------------------------------
Name:
Title:
IF AN ADVISER:
-----------------------------------------
Print Name of Transferee
Date:
EXHIBIT F-2D
FORM OF TRANSFEREE CERTIFICATE FOR CERTAIN
TRANSFERS OF INTERESTS IN REGULATION S GLOBAL CERTIFICATES
[Date]
[TRANSFEROR]
Re: Credit Suisse First Boston Mortgage Securities Corp., Commercial Mortgage
Pass-Through Certificates, Series 2003-C3, Class ______ Certificates
[having an initial aggregate Certificate [Principal Balance] [Notional
Amount] as of June 27, 2003 (the "Closing Date") of $_______] (the
"Transferred Certificates")
--------------------------------------------------------------------------
Ladies and Gentlemen:
This letter is delivered to you in connection with the Transfer by
_________________ (the "Transferor") to _________________ (the "Transferee")
through our respective Depository Participants of the Transferor's beneficial
ownership interest (currently maintained on the books and records of The
Depository Trust Corporation ("DTC") and the Depository Participants) in the
Transferred Certificates. The Certificates, including the Transferred
Certificates, were issued pursuant to the Pooling and Servicing Agreement dated
as of June 1, 2003 (the "Pooling and Servicing Agreement"), among Credit Suisse
First Boston Mortgage Securities Corp. as depositor, KeyCorp Real Estate Capital
Markets, Inc., as general master servicer (in such capacity, the "General Master
Servicer"), ARCap Servicing, Inc., as general special servicer (in such
capacity, the "General Special Servicer"), NCB, FSB, as NCBFSB master servicer
(in such capacity, the "NCBFSB Master Servicer"), National Consumer Cooperative
Bank, as co-op special servicer (in such capacity, the "Co-op Special Servicer")
and Xxxxx Fargo Bank Minnesota, N.A., as trustee (in such capacity, the
"Trustee"). All capitalized terms used but not otherwise defined herein shall
have the respective meanings set forth in the Pooling and Servicing Agreement.
The Transferee hereby certifies, represents and warrants to and agrees with you,
and for the benefit of the Depositor, the Trustee and the Certificate Registrar,
that:
1. The Transferee is not a United States Securities Person. For purposes of this
certification, "United States Securities Person" means (i) any natural person
resident in the United States, (ii) any partnership or corporation organized or
incorporated under the laws of the United States; (iii) any estate of which any
executor or administrator is a United States Securities Person, other than any
estate of which any professional fiduciary acting as executor or administrator
is a United States Securities Person if an executor or administrator of the
estate who is not a United States Securities Person has sole or shared
investment discretion with respect to the assets of the estate and the estate is
governed by foreign law, (iv) any trust of which any trustee is a United States
Securities Person, other than a trust of which any professional fiduciary acting
as trustee is a United States Securities Person if a trustee who is not a United
States Securities Person has sole or shared investment discretion with respect
to the trust assets and no beneficiary of the trust (and so settler if the trust
is revocable) is a United States Securities Person, (v) any agency or branch of
a foreign entity located in the United States, unless the agency or branch
operates for valid business reasons and is engaged in the business of insurance
or banking and is subject to substantive insurance or banking regulation,
respectively, in the jurisdiction where located, (vi) any non-discretionary
account or similar account (other than an estate or trust) held by a dealer or
other fiduciary for the benefit or account of a United States Securities Person,
(vii) any discretionary account or similar account (other than an estate or
trust) held by a dealer or other fiduciary organized, incorporated or (if an
individual) resident in the United States, other than one held for the benefit
or account of a non-United States Securities Person by a dealer or other
professional fiduciary organized, incorporated or (if any individual) resident
in the United States, (viii) any partnership or corporation if (a) organized or
incorporated under the laws of any foreign jurisdiction and (b) formed by a
United States Securities Person principally for the purpose of investing in
securities not registered under the Securities Act, unless it is organized or
incorporated, and owned, by "accredited investors" (as defined in Rule 501(a))
under the United States Securities Act of 1933, as amended (the "Securities
Act"), who are not natural persons, estates or trusts; provided, however, that
the International Monetary Fund, the International Bank for Reconstruction and
Development, the Inter-American Development Bank, the Asian Development Bank,
the African Development Bank, the United Nations and their agencies, affiliates
and pension plans, any other similar international organization, their agencies,
affiliates and pension plans shall not constitute United States Securities
Persons.
2. The Transferee understands that (a) the Transferred Certificates have not
been and will not be registered under the Securities Act or registered or
qualified under any applicable state securities laws, (b) neither the Depositor
nor the Trustee is obligated so to register or qualify the Transferred
Certificates, and (c) neither the Transferred Certificates nor any security
issued in exchange therefor or in lieu thereof may be resold or transferred
unless it is (i) registered pursuant to the Securities Act and registered or
qualified pursuant any applicable state securities laws, or (ii) is sold or
transferred in transactions which are exempt from such registration and
qualification.
3. The Transferee understands that it may not sell or otherwise transfer any
Transferred Certificate, any security issued in exchange therefor or in lieu
thereof or any interest in the foregoing except in compliance with the
provisions of Section 5.02 of the Pooling and Servicing Agreement, which
provisions it has carefully reviewed, and that each Transferred Certificate will
bear the following legends:
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE
SECURITIES LAWS OF ANY STATE. ANY RESALE, PLEDGE, TRANSFER OR OTHER
DISPOSITION OF THIS CERTIFICATE OR ANY INTEREST HEREIN WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH
IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE
(A) TO ANY EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT
THAT IS SUBJECT TO SECTION 406 OR 407 OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975
OF THE INTERNAL REVENUE CODE OF 1986 (THE "CODE"), OR (B) TO ANY
PERSON WHO IS DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR
SUCH INTEREST HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE
OF, OR WITH ASSETS OF, ANY SUCH EMPLOYEE BENEFIT PLAN OR OTHER
RETIREMENT ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF
SECTION 5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
We understand that this certification is required in connection with
certain securities laws of the United States. In connection therewith, if
administrative or legal proceedings are commenced or threatened in connection
with which this certification is or would be relevant, we irrevocably authorized
you to produce this certification to any interested party in such proceedings.
Dated: __________, ____
By:
-----------------------------------------
As, or agent for, the beneficial owner(s)
of the Certificates to which this
certificate relates
EXHIBIT F-3A
FORM OF TRANSFEROR CERTIFICATE FOR
TRANSFER OF THE EXCESS SERVICING FEE RIGHTS
[Date]
Credit Suisse First Boston
Mortgage Securities Corp.
00 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Credit Suisse First Boston Mortgage Securities Corp., Commercial Mortgage
Pass-Through Certificates, Series 2003-C3 (the "Certificates")
---------------------------------------------------------------------------
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
_________________ (the "Transferor") to _________________ (the "Transferee") of
the Excess Servicing Fee Rights for [the Co-op Mortgage Loans] [the Mortgage
Loans (other than the Co-op Mortgage Loans] (the "Subject Excess Servicing Fee
Rights") established under the Pooling and Servicing Agreement, dated as of June
1, 2003 (the "Pooling and Servicing Agreement"), among Credit Suisse First
Boston Mortgage Securities Corp. as depositor, KeyCorp Real Estate Capital
Markets, Inc., as general master servicer (in such capacity, the "General Master
Servicer"), ARCap Servicing, Inc., as general special servicer (in such
capacity, the "General Special Servicer"), NCB, FSB, as NCBFSB master servicer
(in such capacity, the "NCBFSB Master Servicer"), National Consumer Cooperative
Bank, as co-op special servicer (in such capacity, the "Co-op Special Servicer")
and Xxxxx Fargo Bank Minnesota, N.A., as trustee (in such capacity, the
"Trustee"). All capitalized terms used but not otherwise defined herein shall
have the respective meanings set forth in the Pooling and Servicing Agreement.
The Transferee hereby certifies, represents and warrants to you, as Depositor,
that:
1. The Transferor is the lawful owner of the Subject Excess Servicing Fee
Rights, with the full right to transfer the Subject Excess Servicing Fee Rights
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 the Subject Excess Servicing
Fee Rights, any interest in the Subject Excess Servicing Fee Rights or any other
similar security to any person in any manner, (b) solicited any offer to buy or
accept a transfer, pledge or other disposition of the Subject Excess Servicing
Fee Rights, any interest in the Subject Excess Servicing Fee Rights or any other
similar security from any person in any manner, (c) otherwise approached or
negotiated with respect to the Subject Excess Servicing Fee Rights, any interest
in the Subject Excess Servicing Fee Rights or any other similar security with
any person in any manner, (d) made any general solicitation with respect to the
Subject Excess Servicing Fee Rights, any interest in the Subject Excess
Servicing Fee Rights or any other similar security 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 the Subject Excess Servicing Fee Rights under the
Securities Act of 1933, as amended (the "Securities Act"), or would render the
disposition of the Subject Excess Servicing Fee Rights a violation of Section 5
of the Securities Act or any state securities laws, or would require
registration or qualification of the Subject Excess Servicing Fee Rights
pursuant to the Securities Act or any state securities laws.
Very truly yours,
-------------------------------------------
(Transferor)
By:
----------------------------------------
Name:
Title:
EXHIBIT F-3B
FORM OF TRANSFEREE CERTIFICATE FOR
TRANSFER OF THE EXCESS SERVICING FEE RIGHTS
[Date]
Credit Suisse First Boston
Mortgage Securities Corp.
00 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
[KeyCorp Real Estate Capital Markets, Inc.
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx Xxxx, Xxxxxxxx 00000]
[NCB, FSB
000 Xxxxx Xxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000]
Re: Credit Suisse First Boston Mortgage Securities Corp., Commercial Mortgage
Pass-Through Certificates, Series 2003-C3 (the "Certificates")
-------------------------------------------------------------------------
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
____________________ (the "Transferor") to ____________________________ (the
"Transferee") of the Excess Servicing Fee Rights for [the Co-op Mortgage Loans]
[the Mortgage Loans (other than the Co-op Mortgage Loans] (the "Subject Excess
Servicing Fee Rights") established pursuant to the Pooling and Servicing
Agreement, dated as of June 1, 2003 (the "Pooling and Servicing Agreement"),
among Credit Suisse First Boston Mortgage Securities Corp. as depositor, KeyCorp
Real Estate Capital Markets, Inc., as general master servicer (in such capacity,
the "General Master Servicer"), ARCap Servicing, Inc., as general special
servicer (in such capacity, the "General Special Servicer"), NCB, FSB, as NCBFSB
master servicer (in such capacity, the "NCBFSB Master Servicer"), National
Consumer Cooperative Bank, as co-op special servicer (in such capacity, the
"Co-op Special Servicer") and Xxxxx Fargo Bank Minnesota, N.A., as trustee (in
such capacity, the "Trustee"). All capitalized terms used but not otherwise
defined herein shall have the respective meanings set forth in the Pooling and
Servicing Agreement. The Transferee hereby certifies, represents and warrants to
you, as Depositor and initial applicable Master Servicer, respectively, that:
1. The Transferee is acquiring the Subject Excess Servicing Fee Rights 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 Subject Excess Servicing Fee Rights
have not been and will not be registered under the Securities Act or registered
or qualified under any applicable state securities laws, (b) neither the
Depositor nor the Trustee is obligated so to register or qualify the Subject
Excess Servicing Fee Rights, and (c) the Subject Excess Servicing Fee Rights may
not be resold or transferred unless they are (i) registered pursuant to the
Securities Act and registered or qualified pursuant any applicable state
securities laws or (ii) sold or transferred in transactions which are exempt
from such registration and qualification and (A) the Depositor has received a
certificate from the prospective transferor substantially in the form attached
as Exhibit F-3A to the Pooling and Servicing Agreement, and (B) the applicable
Master Servicer and the Depositor have received a certificate from the
prospective transferee substantially in the form attached as Exhibit F-3B to the
Pooling and Servicing Agreement.
3. The Transferee understands that it may not sell or otherwise transfer the
Subject Excess Servicing Fee Rights or any interest therein except in compliance
with the provisions of Section 3.11 of the Pooling and Servicing Agreement,
which provisions it has carefully reviewed.
4. Neither the Transferee nor anyone acting on its behalf has (a) offered,
pledged, sold, disposed of or otherwise transferred the Subject Excess Servicing
Fee Rights, any interest in the Subject Excess Servicing Fee Rights 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 the Subject Excess Servicing
Fee Rights, any interest in the Subject Excess Servicing Fee Rights or any other
similar security from any person in any manner, (c) otherwise approached or
negotiated with respect to the Subject Excess Servicing Fee Rights, any interest
in the Subject Excess Servicing Fee Rights or any other similar security with
any person in any manner, (d) made any general solicitation with respect to the
Subject Excess Servicing Fee Rights, any interest in the Subject Excess
Servicing Fee Rights or any other similar security by means of general
advertising or in any other manner, or (e) taken any other action with respect
to the Subject Excess Servicing Fee Rights, any interest in the Subject Excess
Servicing Fee Rights or any other similar security, which (in the case of any of
the acts described in clauses (a) through (e) above) would constitute a
distribution of the Subject Excess Servicing Fee Rights under the Securities
Act, would render the disposition of the Subject Excess Servicing Fee Rights a
violation of Section 5 of the Securities Act or any state securities law or
would require registration or qualification of the Subject Excess Servicing Fee
Rights 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 the Subject Excess Servicing Fee Rights, any interest
in the Subject Excess Servicing Fee Rights or any other similar security.
5. The Transferee has been furnished with all information regarding (a) the
Depositor, (b) the Subject Excess Servicing Fee Rights and payments thereon, (c)
the Pooling and Servicing Agreement and the Trust Fund created pursuant thereto,
(d) the nature, performance and servicing of the Mortgage Loans, and (e) all
related matters, that it has requested.
6. The Transferee is (a) a "qualified institutional buyer" within the meaning of
Rule 144A under the Securities Act or (b) an "accredited investor" as defined in
any of paragraphs (1), (2), (3) and (7) of Rule 501(a) under the Securities Act
or an entity in which all of the equity owners come within such paragraphs. The
Transferee has such knowledge and experience in financial and business matters
as to be capable of evaluating the merits and risks of an investment in the
Subject Excess Servicing Fee Rights; the Transferee has sought such accounting,
legal and tax advice as it has considered necessary to make an informed
investment decision; and the Transferee is able to bear the economic risks of
such investment and can afford a complete loss of such investment.
7. The Transferee agrees (i) to keep all information relating to the Trust and
the Trust Fund, and made available to it by the applicable Master Servicer,
confidential, (ii) not to use or disclose such information in any manner which
could result in a violation of any provision of the Securities Act or would
require registration of the Subject Excess Servicing Fee Rights or any
Certificates pursuant to the Securities Act, and (iii) not to disclose such
information, and to cause its officers, directors, partners employees, agents or
representatives not to disclose such information, in any manner whatsoever, in
whole or in part, to any other Person other than such holder's auditors, legal
counsel and regulators, except to the extent such disclosure is required by law,
court order or other legal requirement or to the extent such information is of
public knowledge at the time of disclosure by such holder or has become
generally available to the public other than as a result of disclosure by such
holder; provided, however, that such holder may provide all or any part of such
information to any other Person who is contemplating an acquisition of the
Subject Excess Servicing Fee Rights if, and only if, such Person (x) confirms in
writing such prospective acquisition and (y) agrees in writing to keep such
information confidential, not to use or disclose such information in any manner
which could result in a violation of any provision of the Securities Act or
would require registration of the Subject Excess Servicing Fee Rights or any
Certificates pursuant to the Securities Act and not to disclose such
information, and to cause its officers, directors, partners, employees, agents
or representatives not to disclose such information, in any manner whatsoever,
in whole or in part, to any other Person other than such Persons' auditors,
legal counsel and regulators.
8. The Transferee acknowledges that the holder of the Subject Excess Servicing
Fee Rights shall not have any rights under the Pooling and Servicing Agreement
except as set forth in Section 3.11(a) of the Pooling and Servicing Agreement,
and that the Excess Servicing Fee Rate may be reduced to the extent provided in
the Pooling and Servicing Agreement.
Very truly yours,
--------------------------------------------
(Transferee)
By:
-----------------------------------------
Name:
Title:
EXHIBIT G-1
FORM OF TRANSFEREE CERTIFICATE IN CONNECTION WITH ERISA
(NON-REGISTERED CERTIFICATES AND NON-INVESTMENT GRADE
CERTIFICATES HELD IN PHYSICAL FORM)
[Date]
Xxxxx Fargo Bank Minnesota, X.X.
Xxxxx Fargo Center
Sixth and Xxxxxxxxx
XXX # X0000-000
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Corporate Trust Services (CMBS)
Re: Credit Suisse First Boston Mortgage Securities Corp., Commercial Mortgage
Pass-Through Certificates, Series 2003-C3, Class ______ Certificates
[having an initial aggregate Certificate [Principal Balance] [Notional
Amount] as of June 27, 2003 (the "Closing Date") of $__________]
[evidencing a ____% Percentage Interest in the related Class] (the
"Transferred Certificates")
---------------------------------------------------------------------------
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
_________________ (the "Transferor") to _________________ (the "Transferee") of
the Transferred Certificates pursuant to Section 5.02 of the Pooling and
Servicing Agreement dated as of June 1, 2003 (the "Pooling and Servicing
Agreement"), among Credit Suisse First Boston Mortgage Securities Corp. as
depositor, KeyCorp Real Estate Capital Markets, Inc., as general master servicer
(in such capacity, the "General Master Servicer"), ARCap Servicing, Inc., as
general special servicer (in such capacity, the "General Special Servicer"),
NCB, FSB, as NCBFSB master servicer (in such capacity, the "NCBFSB Master
Servicer"), National Consumer Cooperative Bank, as co-op special servicer (in
such capacity, the "Co-op Special Servicer") and Xxxxx Fargo Bank Minnesota,
N.A., as trustee (in such capacity, the "Trustee"). All capitalized terms used
but not otherwise defined herein shall have the respective meanings set forth in
the Pooling and Servicing Agreement. The Transferee hereby certifies, represents
and warrants to you as Certificate Registrar, as follows (check the applicable
paragraph):
___ The Transferee is neither (A) a retirement plan or other employee
benefit plan or arrangement, including an individual retirement
account or annuity, a Xxxxx plan or a collective investment fund or
separate account in which such plans, accounts or arrangements are
invested, including an insurance company general account, that is
subject to ERISA or Section 4975 of the Code (each, a "Plan"), nor
(B) a Person who is directly or indirectly purchasing the
Transferred Certificates on behalf of, as named fiduciary of, as
trustee of, or with assets of a Plan; or
___ The Transferee is using funds from an insurance company general
account to acquire the Transferred Certificates, however, the
purchase and holding of such Certificates by such Person is exempt
from the prohibited transaction provisions of Section 406 of ERISA
and Section 4975 of the Code by reason of Sections I and III of
Prohibited Transaction Class Exemption 95-60.
___ The Transferred Certificates are Class ___ Certificates, an interest
in which is being acquired by or on behalf of a Plan in reliance on
the individual prohibited transaction exemption issued by the U.S.
Department of Labor to Credit Suisse First Boston Corporation (PTE
89-90), and such Plan (X) is an accredited investor as defined in
Rule 501(a)(1) of Regulation D of the Securities Act, (Y) is not
sponsored (within the meaning of Section 3(16)(B) of ERISA) by the
Trustee, the Depositor, any Fiscal Agent, any of the Mortgage Loan
Sellers, the General Master Servicer, the NCBFSB Master Servicer,
the General Special Servicer, the Co-op Special Servicer, any
Exemption-Favored Party, any Sub-Servicer or any Borrower with
respect to any Mortgage Loan or group of Mortgage Loans that
represents more than 5% of the aggregate unamortized principal
balance of the Mortgage Loans determined on the date of the initial
issuance of the Certificates, or by an Affiliate of any such Person,
and (Z) agrees that it will obtain from each of its Transferees to
which it transfers an interest in the Transferred Certificates, a
written representation that such Transferee, if a Plan, satisfies
the requirements of the immediately preceding clauses (X) and (Y),
together with a written agreement that such Transferee will obtain
from each of its Transferees that are Plans a similar written
representation regarding satisfaction of the requirements of the
immediately preceding clauses (X) and (Y).
Very truly yours,
--------------------------------------------
(Transferee)
By:
-----------------------------------------
Name:
Title:
EXHIBIT G-2
FORM OF TRANSFEREE CERTIFICATE IN CONNECTION WITH ERISA
(NON-REGISTERED CERTIFICATES HELD IN BOOK ENTRY FORM)
[Date]
[TRANSFEROR]
Re: Credit Suisse First Boston Mortgage Securities Corp., Commercial Mortgage
Pass-Through Certificates, Series 2003-C3, Class ______ Certificates
[having an initial aggregate Certificate [Principal Balance] [Notional
Amount] as of June 27, 2003 (the "Closing Date") of $__________]
[evidencing a ____% Percentage Interest in the related Class] (the
"Transferred Certificates")
--------------------------------------------------------------------------
Ladies and Gentlemen:
This letter is delivered to you in connection with the Transfer by
______________________ (the "Transferor") to _________________ (the
"Transferee") through our respective Depositary Participants of the Transferor's
beneficial ownership interest (currently maintained on the books and records of
The Depository Trust Corporation ("DTC") and the Depository Participants) in the
Transferred Certificates. The Certificates, including the Transferred
Certificates, were issued pursuant to the Pooling and Servicing Agreement dated
as of June 1, 2003 (the "Pooling and Servicing Agreement"), among Credit Suisse
First Boston Mortgage Securities Corp. as depositor, KeyCorp Real Estate Capital
Markets, Inc., as general master servicer (in such capacity, the "General Master
Servicer"), ARCap Servicing, Inc., as general special servicer (in such
capacity, the "General Special Servicer"), NCB, FSB, as NCBFSB master servicer
(in such capacity, the "NCBFSB Master Servicer"), National Consumer Cooperative
Bank, as co-op special servicer (in such capacity, the "Co-op Special Servicer")
and Xxxxx Fargo Bank Minnesota, N.A., as trustee (in such capacity, the
"Trustee"). All capitalized terms used but not otherwise defined herein shall
have the respective meanings set forth in the Pooling and Servicing Agreement.
The Transferee hereby certifies, represents and warrants to you as follows
(check the applicable paragraph):
___ The Transferee is neither (A) a retirement plan, an employee benefit
plan or other retirement arrangement, including an individual
retirement account or annuity, a Xxxxx plan or a collective
investment fund or separate account in which such plans, accounts or
arrangements are invested, including an insurance company general
account, that is subject to Section 406 of ERISA or Section 4975 of
the Code (each, a "Plan"), nor (B) a Person who is directly or
indirectly purchasing an interest in the Transferred Certificates on
behalf of, as named fiduciary of, as trustee of, or with assets of,
a Plan;
___ The Transferee is using funds from an insurance company general
account to acquire an interest in the Transferred Certificates,
however, the purchase and holding of such interest by such Person is
exempt from the prohibited transaction provisions of Section 406 of
ERISA and Section 4975 of the Code by reason of Sections I and III
of Prohibited Transaction Class Exemption 95-60; or
___ The Transferred Certificates are Class ____ Certificates, an
interest in which is being acquired by or on behalf of a Plan in
reliance on the individual prohibited transaction exemption issued
by the U.S. Department of Labor to Credit Suisse First Boston
Corporation (PTE 89-90), and such Plan (X) is an accredited investor
as defined in Rule 501(a)(1) of Regulation D of the Securities Act,
(Y) is not sponsored (within the meaning of Section 3(16)(B) of
ERISA) by the Trustee, the Depositor, any Fiscal Agent, any of the
Mortgage Loan Sellers, the General Master Servicer, the NCBFSB
Master Servicer, the General Special Servicer, the Co-op Special
Servicer, any Exemption-Favored Party, any Sub-Servicer or any
Borrower with respect to any Mortgage Loan or group of Mortgage
Loans that represents more than 5% of the aggregate unamortized
principal balance of the Mortgage Loans determined on the date of
the initial issuance of the Certificates, or by an Affiliate of any
such Person, and (Z) agrees that it will obtain from each of its
Transferees to which it transfers an interest in the Transferred
Certificates, a written representation that such Transferee, if a
Plan, satisfies the requirements of the immediately preceding
clauses (X) and (Y), together with a written agreement that such
Transferee will obtain from each of its Transferees that are Plans a
similar written representation regarding satisfaction of the
requirements of the immediately preceding clauses (X) and (Y).
--------------------------------------------
(Transferee)
By:
-----------------------------------------
Name:
Title:
EXHIBIT H-1
FORM OF TRANSFER AFFIDAVIT AND AGREEMENT
FOR TRANSFERS OF CLASS R CERTIFICATES
STATE OF )
) ss.:
COUNTY OF )
____________________, being first duly sworn, deposes
and says that:
1. He/She is the ____________________ of ____________________ (the prospective
transferee (the "Transferee") of Credit Suisse First Boston Mortgage Securities
Corp., Commercial Mortgage Pass-Through Certificates, Series 2003-C3, Class R,
evidencing a ___% Percentage Interest in such Class (the "Residual Interest
Certificates")), a _________________ duly organized and validly existing under
the laws of ____________________, on behalf of which he/she makes this
affidavit. All capitalized terms used but not otherwise defined herein shall
have the respective meanings set forth in the Pooling and Servicing Agreement
pursuant to which the Residual Interest Certificates were issued (the "Pooling
and Servicing Agreement").
2. The Transferee (i) is, and as of the date of transfer will be, a "Permitted
Transferee" and will endeavor to remain a "Permitted Transferee" for so long as
it holds the Residual Certificates, and (ii) is acquiring the Residual
Certificates for its own account or for the account of another prospective
transferee from which it has received an affidavit in substantially the same
form as this affidavit. A "Permitted Transferee" is any Person other than a
Disqualified Organization, a possession of the United States, Non-United States
Tax Person or domestic partnership whose beneficial interests are not all held
by United States Person. (For this purpose, a "Disqualified Organization" means
the United States, any state or political subdivision thereof, any agency or
instrumentality of any of the foregoing (other than an instrumentality, all of
the activities of which are subject to tax and, except for the Federal Home Loan
Mortgage Corporation, a majority of whose board of directors is not selected by
any such governmental entity) or any foreign government, international
organization or any agency or instrumentality of such foreign government or
organization, any rural electric or telephone cooperative, or any organization
(other than certain farmers' cooperatives) that is generally exempt from federal
income tax unless such organization is subject to the tax on unrelated business
taxable income).
3. The Transferee is aware (i) of the tax that would be imposed under the Code
on transfers of the Residual Interest Certificates to non-Permitted Transferees;
(ii) that such tax would be on the transferor or, if such transfer is through an
agent (which Person includes a broker, nominee or middleman) for a non-Permitted
Transferee, on the agent; (iii) that the Person otherwise liable for the tax
shall be relieved of liability for the tax if the transferee furnishes to such
Person an affidavit that the transferee is a Permitted Transferee and, at the
time of transfer, such Person does not have actual knowledge that the affidavit
is false; and (iv) that the Residual Interest Certificates may be a "noneconomic
residual interest" within the meaning of Treasury regulation Section 1.860E-1(c)
and that the transferor of a noneconomic residual interest will remain liable
for any taxes due with respect to the income on such residual interest, unless
no significant purpose of the transfer is to enable the transferor to impede the
assessment or collection of tax.
4. The Transferee is aware of the tax imposed on a "pass-through entity" holding
the Residual Interest Certificates if at any time during the taxable year of the
pass-through entity a non-Permitted Transferee is the record holder of an
interest in such entity. (For this purpose, a "pass-through entity" includes a
regulated investment company, a real estate investment trust or common trust
fund, a partnership, trust or estate, and certain cooperatives.)
5. The Transferee is aware that the Certificate Registrar will not register any
transfer of the Residual Interest Certificates by the Transferee unless the
Transferee's transferee, or such transferee's agent, delivers to the Certificate
Registrar, among other things, an affidavit and agreement in substantially the
same form as this affidavit and agreement. The Transferee expressly agrees that
it will not consummate any such transfer if it knows or believes that any
representation contained in such affidavit and agreement is false.
6. The Transferee consents to any additional restrictions or arrangements that
shall be deemed necessary upon advice of counsel to constitute a reasonable
arrangement to ensure that the Residual Interest Certificates will only be
owned, directly or indirectly, by a Permitted Transferee.
7. The Transferee's taxpayer identification number is ___________________.
8. The Transferee has reviewed the provisions of Section 5.02(d) of the Pooling
and Servicing Agreement, a description of which provisions is set forth in the
Residual Interest Certificates (in particular, clause (ii)(A) of Section 5.02(d)
which authorizes the Trustee to deliver payments on the Residual Interest
Certificates to a Person other than the Transferee and clause (ii)(B) of Section
5.02(d) which authorizes the Trustee to negotiate a mandatory sale of the
Residual Interest Certificates, in either case, in the event that the Transferee
holds such Residual Interest Certificates in violation of Section 5.02(d)); and
the Transferee expressly agrees to be bound by and to comply with such
provisions.
9. The Transferee will not cause income from the Residual Interest Certificate
to be attributable to a foreign permanent establishment or fixed base, within
the meaning of an applicable income tax treaty, of the Transferee or any other
U.S. Person.
10. No purpose of the Transferee relating to its purchase or any sale of the
Residual Certificates is or will be to impede the assessment or collection of
any tax and (check the one that applies):
[ ] The present value of the anticipated tax liabilities associated
with holding the Residual Interest Certificate does not exceed the sum of:
(i) the present value of any consideration given to the Transferee
to acquire such Residual Interest Certificate;
(ii) the present value of the expected future distributions on such
Residual Interest Certificate; and
(iii) the present value of the anticipated tax savings associated
with holding such Residual Interest Certificate as the related
REMIC generates losses.
For purposes of this calculation, (i) the Transferee 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 Transferee 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 Transferee.
[ ] The transfer of the Residual Interest Certificate complies with
U.S. Treasury Regulations Sections 1.860E-1(c)(5) and (6) and, accordingly,
(i) the Transferee is an "eligible corporation," as defined in
U.S. Treasury Regulations Section 1.860E-1(c)(6)(i), as to
which income from the Residual Interest Certificate will only
be taxed in the United States;
(ii) at the time of the transfer, and at the close of the
Transferee's two fiscal years preceding the year of the
transfer, the Transferee had gross assets for financial
reporting purposes (excluding any obligation of a person
related to the Transferee 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 Transferee will transfer the Residual Interest 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 Transferee determined the consideration paid to it to
acquire the Residual Interest 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 Transferee) that it has determined in good
faith.
[ ] None of the above.
11. The Transferee hereby represents to and for the benefit of the transferor
that the Transferee intends to pay any taxes associated with holding the
Residual Certificates as they become due, fully understanding that it may incur
tax liabilities in excess of any cash flows generated by the Residual
Certificates.
12. The Transferee is a citizen or resident of the United States, a corporation,
partnership or other entity created or organized in, or under the laws of, the
United States, State thereof and the District of Columbia, an estate whose
income from sources without the United States is includible in gross income for
United States federal income tax purposes regardless of its connection with the
conduct of a trade or business within the United States or a trust as to which
(i) a court in the United States is able to exercise primary supervision over
the administration of the trust and (ii) one or more United States fiduciaries
have the right to control all substantial decisions of the trust.
IN WITNESS WHEREOF, the Transferee has caused this instrument to
be executed on its behalf, pursuant to the authority of its Board of
Directors, by its ____________________ and its corporate seal to be hereunto
attached, attested by its [Assistant] Secretary, this ______ day of
______________.
[TRANSFEREE]
By:
-----------------------------------------
[Name of Officer]
[Title of Officer]
[Corporate Seal]
ATTEST:
---------------------------------
[Assistant] Secretary
Personally appeared before me the above-named ____________________,
known or proved to me to be the same person who executed the foregoing
instrument and to be the ____________________ of the Transferee, and
acknowledged to me that he/she executed the same as his/her free act and deed
and the free act and deed of the Transferee
Subscribed and sworn before me this ______ day of
__________________, ________.
NOTARY PUBLIC
COUNTY OF ____________________________
STATE OF ______________________________
My Commission expires the _________ day of ___________, 20__.
EXHIBIT H-2
FORM OF TRANSFEROR CERTIFICATE FOR TRANSFERS OF
CLASS R CERTIFICATES
[Date]
Xxxxx Fargo Bank Minnesota, X.X.
Xxxxx Fargo Center
Sixth and Xxxxxxxxx
XXX # X0000-000
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Corporate Trust Services (CMBS)
Re: Credit Suisse First Boston Mortgage Securities Corp., Commercial Mortgage
Pass-Through Certificates, Series 2003-C3, Class R Certificates, evidencing
a ____% Percentage Interest in such Class (the "Residual Interest
Certificates")
---------------------------------------------------------------------------
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
_________________ (the "Transferor") to _________________ (the "Transferee") of
the Residual Interest Certificates, pursuant to the Pooling and Servicing
Agreement dated as of June 1, 2003 (the "Pooling and Servicing Agreement"),
among Credit Suisse First Boston Mortgage Securities Corp. as depositor, KeyCorp
Real Estate Capital Markets, Inc., as general master servicer (in such capacity,
the "General Master Servicer"), ARCap Servicing, Inc., as general special
servicer (in such capacity, the "General Special Servicer"), NCB, FSB, as NCBFSB
master servicer (in such capacity, the "NCBFSB Master Servicer"), National
Consumer Cooperative Bank, as co-op special servicer (in such capacity, the
"Co-op Special Servicer") and Xxxxx Fargo Bank Minnesota, N.A., as trustee (in
such capacity, the "Trustee"). All capitalized terms used but not otherwise
defined herein shall have the respective meanings set forth in the Pooling and
Servicing Agreement. The Transferor hereby certifies, represents and warrants to
you, as Certificate Registrar, that:
1. No purpose of the Transferor relating to the transfer of the Residual
Interest Certificates by the Transferor to the Transferee is or will be to
impede the assessment or collection of any tax.
2. The Transferor understands that the Transferee has delivered to you a
Transfer Affidavit and Agreement in the form attached to the Pooling and
Servicing Agreement as Exhibit H-1. The Transferor does not know or believe that
any representation contained therein is false.
3. The Transferor has at the time of this transfer conducted a reasonable
investigation of the financial condition of the Transferee (or the beneficial
owners of the Transferee if the Transferee is classified as a partnership under
the Code) as contemplated by Treasury regulation Section 1.860E-1(c)(4)(i) and,
as a result of that investigation, the Transferor has determined that the
Transferee has historically paid its debts as they became due and has found no
significant evidence to indicate that the Transferee will not continue to pay
its debts as they become due in the future. The Transferor understands that the
transfer of the Residual Interest Certificates may not be respected for United
States income tax purposes (and the Transferor may continue to be liable for
United States income taxes associated therewith) unless the Transferor has
conducted such an investigation.
Very truly yours,
[TRANSFEROR]
By:
-----------------------------------------
(Transferor)
Name:
Title:
EXHIBIT I-1
FORM OF NOTICE AND ACKNOWLEDGMENT
CONCERNING REPLACEMENT OF A SPECIAL SERVICER
[Date]
Xxxxx'x Investors Service
00 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: __________________
Standard & Poor's Ratings Services,
a division of The XxXxxx-Xxxx Companies, Inc.
00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: __________________
Fitch, Inc.
Xxx Xxxxx Xxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: __________________
Re: Credit Suisse First Boston Mortgage Securities Corp., Commercial Mortgage
Pass-Through Certificates, Series 2003-C3
--------------------------------------------------------------------------
Ladies and Gentlemen:
This notice is being delivered pursuant to Section 3.25 of the
Pooling and Servicing Agreement dated as of June 1, 2003 (the "Agreement"),
among Credit Suisse First Boston Mortgage Securities Corp. as depositor, KeyCorp
Real Estate Capital Markets, Inc., as general master servicer (in such capacity,
the "General Master Servicer"), ARCap Servicing, Inc., as general special
servicer (in such capacity, the "General Special Servicer"), NCB, FSB, as NCBFSB
master servicer (in such capacity, the "NCBFSB Master Servicer"), National
Consumer Cooperative Bank, as co-op special servicer (in such capacity, the
"Co-op Special Servicer") and the undersigned as trustee (in such capacity, the
"Trustee"), and relating to Credit Suisse First Boston Mortgage Securities
Corp., Commercial Mortgage Pass-Through Certificates, Series 2003-C3 (the
"Certificates"). Capitalized terms used but not otherwise defined herein shall
have respective meanings assigned to them in the Agreement.
Notice is hereby given that the Controlling Class Representative has
designated ________________________ to serve as the [General] [Co-op] Special
Servicer under the Agreement.
The designation of ____________________________ as [General] [Co-op]
Special Servicer will become final if certain conditions are met and each Rating
Agency delivers to the Trustee written confirmation that if the person
designated to become the [General] [Co-op] Special Servicer were to serve as
such, such event would not result in an Adverse Rating Event with respect to any
Class of the Certificates. Accordingly, such confirmation is hereby requested as
soon as possible.
Please acknowledge receipt of this notice by signing the enclosed
copy of this notice where indicated below and returning it to the Trustee, in
the enclosed stamped self-addressed envelope.
Very truly yours,
--------------------------------------------,
as trustee
--------------------------------------------,
Name:
Title:
Receipt acknowledged:
XXXXX'X INVESTORS SERVICE, INC.
By: ________________________________
Name:
Title:
Date:
STANDARD & POOR'S RATINGS SERVICES,
A DIVISION OF THE XXXXXX-XXXX COMPANIES, INC.
By: ________________________________
Name:
Title:
Date:
FITCH, INC.
By: ________________________________
Name:
Title:
Date:
EXHIBIT I-2
FORM OF ACKNOWLEDGMENT OF A PROPOSED SPECIAL SERVICER
[Date]
[TRUSTEE]
[GENERAL MASTER SERVICER]
[NCBFSB MASTER SERVICER]
[GENERAL SPECIAL SERVICER]
[CO-OP SPECIAL SERVICER]
[DEPOSITOR]
Re: Credit Suisse First Boston Mortgage Securities Corp., Commercial Mortgage
Pass-Through Certificates, Series 2003-C3
Ladies and Gentlemen:
Pursuant to Section 3.25 of the Pooling and Servicing Agreement,
dated as of June 1, 2003, relating to Credit Suisse First Boston Mortgage
Securities Corp., Commercial Mortgage Pass-Through Certificates, Series 2003-C3
(the "Agreement"), the undersigned hereby agrees with all the other parties to
the Agreement that the undersigned shall serve as [General] [Co-op] Special
Servicer under, and as defined in, the Agreement. The undersigned hereby
acknowledges and agrees 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 [General] [Co-op] Special Servicer. The undersigned hereby makes, as
of the date hereof, the representations and warranties set forth in [Section
2.06] [Section 2.08] of the Agreement, with ------------- ------------ the
following corrections with respect to type of entity and jurisdiction of
organization: ____________________.
By:
-----------------------------------------
Name:
Title:
EXHIBIT J
FORM OF UCC-1 FINANCING STATEMENT
Debtor:
Credit Suisse First Boston Mortgage Securities Corp.
00 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Secured Party:
Xxxxx Fargo Bank Minnesota, N.A.*
as Trustee for the registered holders of
Credit Suisse First Boston Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates,
Series 2003-C3
000 Xxxxxx Xxxxxx, Xxxxx XXX
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Mortgage Document Custody (CMBS)
Text:
See Exhibit I Attached Hereto
----------------------------
* Notices to the Secured Party should be sent to 00000 Xxxxxx Xxxx Xxxxxxx,
Xxxxxxxx, Xxxxxxxx 00000-0000, Attention: Corporate Trust Administration (CMBS)
- Credit Suisse First Boston Mortgage Securities Corp., Series 2003-C3.
EXHIBIT I to EXHIBIT J
This Exhibit I is attached to and incorporated in a financing statement
pertaining to Credit Suisse First Boston Mortgage Securities Corp., as debtor
(referred to as the "Debtor" for the purpose of this financing statement only),
and Xxxxx Fargo Bank Minnesota, N.A., as trustee for the holders of the Series
2003-C3 Certificates (referred to as the "Secured Party" for purposes of this
financing statement only), under that certain Pooling and Servicing Agreement,
dated as of June 1, 2003 (the "Pooling and Servicing Agreement"), among the
Debtor as depositor, the Secured Party as trustee, KeyCorp Real Estate Capital
Markets, Inc., as general master servicer (in such capacity, the "General Master
Servicer"), ARCap Servicing, Inc., as general special servicer (in such
capacity, the "General Special Servicer"), NCB, FSB, as NCBFSB master servicer
(in such capacity, the "NCBFSB Master Servicer") and National Consumer
Cooperative Bank, as co-op special servicer (in such capacity, the "Co-op
Special Servicer"), relating to the issuance of the Debtor's Commercial Mortgage
Pass-Through Certificates, Series 2003-C3 (collectively, the "Series 2003-C3
Certificates"). Capitalized terms used herein and not defined shall have the
respective meanings given to them in the Pooling and Servicing Agreement. The
attached financing statement covers all of the Debtor's right (including the
power to convey title thereto), title and interest in and to the Trust Fund
created pursuant to the Pooling and Servicing Agreement, consisting of the
following:
1. The mortgage notes or other evidence of indebtedness of a borrower
(the "Mortgage Notes") with respect to the mortgage loans (the
"Mortgage Loans") listed on the Schedule of Mortgage Loans to the
Pooling and Servicing Agreement, which Schedule of Mortgage Loans is
attached hereto as Exhibit A;
2. The related mortgages, deeds of trust or other similar instruments
securing such Mortgage Notes (the "Mortgages");
3. With respect to each Mortgage Note and each Mortgage, each other
legal, credit and servicing document related to such Mortgage Note and
Mortgage (collectively, with the related Mortgage Note and Mortgage,
the "Mortgage Loan Documents");
4. (a) the respective Collection Accounts maintained by the General
Master Servicer and NCBFSB Master Servicer pursuant to the Pooling and
Servicing Agreement, (b) all funds from time to time on deposit in
such Collection Accounts, (c) the investments of any such funds
consisting of securities, instruments or other obligations, and (d)
the general intangibles consisting of the contractual right to
payment, including, without limitation, the right to payments of
principal and interest and the right to enforce the related payment
obligations, arising from or under any such investments;
5. All REO Property;
6. (a) the respective REO Accounts required to be maintained by the
General Special Servicer and Co-op Special Servicer pursuant to the
Pooling and Servicing Agreement, (b) all funds from time to time on
deposit in such REO Accounts, (c) the investments of any such funds
consisting of securities, instruments or other obligations, and (d)
the general intangibles consisting of the contractual right to
payment, including, without limitation, the right to payments of
principal and interest and the right to enforce the related payment
obligations, arising from or under any such investments;
7. (a) the respective Servicing Accounts, Custodial and Reserve Accounts
required to be maintained by the General Master Servicer and NCBFSB
Master Servicer pursuant to the Pooling and Servicing Agreement, and
(b) all funds from time to time on deposit in the Servicing Account(s)
and Reserve Account(s);
8. (a) the Distribution Account required to be maintained by the Secured
Party pursuant to the Pooling and Servicing Agreement, (b) all funds
from time to time on deposit in the Distribution Account, (c) the
investments of any such funds consisting of securities, instruments or
other obligations, and (d) the general intangibles consisting of the
contractual right to payment, including, without limitation, the right
to payments of principal and interest and the right to enforce the
related payment obligations, arising from or under any such
investments;
9. (a) the Interest Reserve Account required to be maintained by the
Secured Party pursuant to the Pooling and Servicing Agreement, (b) all
funds from time to time on deposit in the Interest Reserve Account,
(c) the investments of any such funds consisting of securities,
instruments or other obligations, and (d) the general intangibles
consisting of the contractual right to payment, including, without
limitation, the right to payments of principal and interest and the
right to enforce the related payment obligations, arising from or
under any such investments;
10. (a) the Excess Liquidation Proceeds Account required to be maintained
by the Secured Party pursuant to the Pooling and Servicing Agreement,
(b) all funds from time to time on deposit in the Excess Liquidation
Proceeds Account, (c) the investments of any such funds consisting of
securities, instruments or other obligations, and (d) the general
intangibles consisting of the contractual right to payment, including,
without limitation, the right to payments of principal and interest
and the right to enforce the related payment obligations, arising from
or under any such investments;
11. The Mortgage Loan Purchase Agreements and all rights of the Debtor
thereunder.
12. All insurance policies, including the right to payments thereunder,
with respect to the Mortgage Loans required to be maintained pursuant
to the Mortgage Loan Documents and the Pooling and Servicing
Agreement, transferred to the Trust and to be serviced by the General
Master Servicer, NCBFSB Master Servicer, General Special Servicer or
Co-op Special Servicer; and
13. All income, payments, products and proceeds of any of the foregoing,
together with any additions thereto or substitutions therefor.
THE DEBTOR AND THE SECURED PARTY INTEND THE TRANSACTIONS CONTEMPLATED BY THE
POOLING AND SERVICING AGREEMENT TO CONSTITUTE A SALE OF THE INTEREST IN THE
MORTGAGE NOTES, THE RELATED MORTGAGES AND THE OTHER MORTGAGE LOAN DOCUMENTS, AND
THIS FILING SHOULD NOT BE CONSTRUED AS A CONCLUSION THAT A SALE HAS NOT
OCCURRED. THE REFERENCES HEREIN TO MORTGAGE NOTES SHOULD NOT BE CONSTRUED AS A
CONCLUSION THAT ANY MORTGAGE NOTE IS NOT AN INSTRUMENT WITHIN THE MEANING OF THE
UNIFORM COMMERCIAL CODE OR THAT A FILING IS NECESSARY TO PERFECT THE OWNERSHIP
OR SECURITY INTEREST OF THE SECURED PARTY IN ANY MORTGAGE NOTE, MORTGAGE OR
OTHER MORTGAGE LOAN DOCUMENT. IN ADDITION, THE REFERENCES HEREIN TO SECURITIES,
INSTRUMENTS AND OTHER OBLIGATIONS SHOULD NOT BE CONSTRUED AS A CONCLUSION THAT
ANY SUCH SECURITY, INSTRUMENT OR OTHER OBLIGATION IS NOT AN INSTRUMENT, A
CERTIFICATED SECURITY OR AN UNCERTIFICATED SECURITY WITHIN THE MEANING OF THE
UNIFORM COMMERCIAL CODE, AS IN EFFECT IN ANY APPLICABLE JURISDICTION, NOR SHOULD
THIS FINANCING STATEMENT BE CONSTRUED AS A CONCLUSION THAT A FILING IS NECESSARY
TO PERFECT THE OWNERSHIP OR SECURITY INTEREST OF THE SECURED PARTY IN THE
CONTRACTUAL RIGHT TO PAYMENT, INCLUDING, WITHOUT LIMITATION, THE RIGHT TO
PAYMENTS OF PRINCIPAL AND INTEREST AND THE RIGHT TO ENFORCE THE RELATED PAYMENT
OBLIGATIONS, ARISING FROM OR UNDER ANY SUCH SECURITY, INSTRUMENT OR OTHER
OBLIGATION (INCLUDING, WITHOUT LIMITATION, ANY PERMITTED INVESTMENT). WITH
RESPECT TO THE FOREGOING, THIS FILING IS MADE ONLY IN THE EVENT OF CONTRARY
ASSERTIONS BY THIRD PARTIES.
Exhibit A to Exhibit I to Exhibit J
SCHEDULE OF MORTGAGE LOANS
[See Attached Schedule]
EXHIBIT K-1
INFORMATION REQUEST FROM CERTIFICATEHOLDER
OR CERTIFICATE OWNER
[Date]
Xxxxx Fargo Bank Minnesota, N.A.
00000 Xxxxxx Xxxx Xxxxxxx
Xxxxxxxx, XX 00000-0000
Attention: Corporate Trust Services (CMBS)
KeyCorp Real Estate Capital Markets, Inc.
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx Xxxx, XX 00000
NSB, FSB
0000 Xxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Re: Credit Suisse First Boston Mortgage Securities Corp., Commercial Mortgage
Pass-Through Certificates, Series 2003-C3
-------------------------------------------------------------------------
In accordance with the Pooling and Servicing Agreement dated as of
June 1, 2003 (the "Pooling and Servicing Agreement"), among Credit Suisse First
Boston Mortgage Securities Corp. as depositor, KeyCorp Real Estate Capital
Markets, Inc., as general master servicer (in such capacity, the "General Master
Servicer"), ARCap Servicing, Inc., as general special servicer (in such
capacity, the "General Special Servicer"), NCB, FSB, as NCBFSB master servicer
(in such capacity, the "NCBFSB Master Servicer"), National Consumer Cooperative
Bank, as co-op special servicer (in such capacity, the "Co-op Special Servicer")
and Xxxxx Fargo Bank Minnesota, N.A., as trustee (in such capacity, the
"Trustee"), with respect to the Credit Suisse First Boston Mortgage Securities
Corp., Commercial Mortgage Pass-Through Certificates, Series 2003-C3 (the
"Certificates"), the undersigned hereby certifies and agrees as follows:
1. The undersigned is a [holder] [beneficial owner] of [$___________
aggregate [Certificate Principal Balance/Certificate Notional Amount]
of] [a ___% Percentage Interest in] the Class ____ Certificates.
2. The undersigned is requesting access to the following information (the
"Information"):
___ The information on the [General] [NCBFSB] Master Servicer's
Internet Website pursuant to Section 3.12(d) of the Pooling and
Servicing Agreement.
___ The information on the Trustee's Internet Website pursuant to
Section 4.02(a) of the Pooling and Servicing Agreement.
___ The information identified on the schedule attached hereto
pursuant to Section 3.12 or 8.12(b) of the Pooling and Servicing
Agreement.
3. In consideration of the Trustee's [or Master's] disclosure to the
undersigned of the Information, the undersigned will keep the
Information confidential (except from such outside persons as are
assisting it in evaluating the Information), and such Information
will not, without the prior written consent of the Trustee, be
disclosed by the undersigned or by its officers, directors,
partners employees, agents or representatives (collectively, the
"Representatives") in any manner whatsoever, in whole or in part;
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; and provided that the undersigned
may provide all or any part of the Information to its auditors,
legal counsel and regulators.
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 Non-Registered Certificate (as defined in the
Pooling and Servicing Agreement) pursuant to Section 5 of the
Securities Act.
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.
[CERTIFICATEHOLDER] [BENEFICIAL OWNER OF A
CERTIFICATE]
By:
---------------------------------------
Name:
Title:
Telephone No.:
EXHIBIT K-2
INFORMATION REQUEST FROM PROSPECTIVE INVESTOR
[Date]
Xxxxx Fargo Bank Minnesota, N.A.
00000 Xxxxxx Xxxx Xxxxxxx
Xxxxxxxx, XX 00000-0000
Attention: Corporate Trust Services (CMBS)
KeyCorp Real Estate Capital Markets, Inc.
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx Xxxx, XX 00000
NSB, FSB
0000 Xxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Re: Credit Suisse First Boston Mortgage Securities Corp., Commercial Mortgage
Pass-Through Certificates, Series 2003-C3
-------------------------------------------------------------------------
In accordance with the Pooling and Servicing Agreement dated as of
June 1, 2003 (the "Pooling and Servicing Agreement"), among Credit Suisse First
Boston Mortgage Securities Corp. as depositor, KeyCorp Real Estate Capital
Markets, Inc., as general master servicer (in such capacity, the "General Master
Servicer"), ARCap Servicing, Inc., as general special servicer (in such
capacity, the "General Special Servicer"), NCB, FSB, as NCBFSB master servicer
(in such capacity, the "NCBFSB Master Servicer"), National Consumer Cooperative
Bank, as co-op special servicer (in such capacity, the "Co-op Special Servicer")
and Xxxxx Fargo Bank Minnesota, N.A., as trustee (in such capacity, the
"Trustee"), with respect to the Credit Suisse First Boston Mortgage Securities
Corp., Commercial Mortgage Pass-Through Certificates, Series 2003-C3 (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 following information (the
"Information") for use in evaluating such possible investment:
___ The information on the [General] [NCBFSB] Master Servicer's
Internet Website pursuant to Section 3.12(d) of the Pooling and
Servicing Agreement.
___ The information on the Trustee's Internet Website pursuant to
Section 4.02(a) of the Pooling and Servicing Agreement.
___ The information identified on the schedule attached hereto
pursuant to Section 3.12 or 8.12(b) of the Pooling and Servicing
Agreement.
3. In consideration of the Trustee's [or Master's] disclosure to the
undersigned of the Information, the undersigned will keep the
Information confidential (except from such outside persons as are
assisting it in making the investment decision described in
paragraphs 1 and 2), and such Information will not, without the
prior written consent of the Trustee, be disclosed by the
undersigned or by its officers, directors, partners employees,
agents or representatives (collectively, the "Representatives")
in any manner whatsoever, in whole or in part; provided that in
the event the undersigned purchases any Certificate or any
interest in any Certificate, 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; and provided that the
undersigned may provide all or any part of the Information to its
auditors, legal counsel and regulators.
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 Non-Registered Certificate (as defined in the
Pooling and Servicing Agreement) pursuant to Section 5 of the
Securities Act.
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:
Telephone No.:
EXHIBIT L
SCHEDULE OF DESIGNATED SUB-SERVICERS
Capstone Realty Advisors, LLC
Northmarq Capital, Inc.
Mid-North Financial Services, LLC
EXHIBIT M
FORM OF SUBORDINATION AGREEMENT FOR NCB FSB SUBORDINATE DEBT
THIS Agreement made this _____ day of ___, 20__, between [_______],
a ____________ having an address at __________ (the "Subordinate Mortgagee"),
and ___________, a ___________, having an office at ____________ (the "Superior
Mortgagee").
W I T N E S S E T H:
WHEREAS, Superior Mortgagee is the owner of a certain $__________
mortgage and note secured thereby, dated ________ __, ____, made by
__________________________________ (the "Borrower") to Subordinate Mortgagee
(the "Superior Mortgage") covering the premises located at
____________________________________________ more particularly described in the
Superior Mortgage and Schedule "A" attached hereto (the "Premises"); and
WHEREAS, Subordinate Mortgagee is the holder of a certain
$____________ mortgage and the note secured thereby, dated ________ __, ____,
made by the Borrower to Subordinate Mortgagee (the "Subordinate Mortgage")
covering the Premises; and
WHEREAS, the Superior Mortgagee has purchased the Superior Mortgage
from Subordinate Mortgagee and as a condition thereto has required that the
Subordinate Mortgage be fully subordinated to the Superior Mortgage.
NOW, THEREFORE, the parties hereto agree as follows:
The Subordinate Mortgagee hereby covenants and agrees that (i) the
Subordinate Mortgage and all of its terms and provisions and the loan it secures
are and shall remain in all respects subject and subordinate to the Superior
Mortgage, its lien and all of its terms and provisions and to the loan it
secures and to any modifications, consolidations, extension or renewals thereof
and to any increases therein resulting from advances to protect or preserve the
lien of the Superior Mortgage on the Premises encumbered thereby but not any
other increases therein; (ii) no tenant under any lease of any portion of the
Premises, other than tenant shareholders under proprietary leases, will be made
a party defendant in any foreclosure of the Subordinate Mortgage, nor will any
other action be taken in connection with such foreclosure which would have the
effect of terminating any such lease; (iii) no portion of the accounts, accounts
receivable, rents, issues and profits of the Premises shall be collected in
connection with the foreclosure of the Subordinate Mortgage or any other
enforcement action except through a receiver appointed by the court in which
such foreclosure action is brought, after due notice of the application of the
appointment of such receiver shall have been given to the Superior Mortgagee;
(iv) the accounts, accounts receivable, rents, issues and profits collected by
any such receiver (or which shall under any circumstances come into possession
of the holder of the Subordinate Mortgage at a time when Subordinate Mortgagee
has received written notice of a default under the Superior Mortgage) shall be
applied, at Superior Mortgagee's direction, to the payment of taxes, maintenance
and operating charges and disbursements incurred in connection with the
operation and maintenance of the Premises and to the payment of principal,
interest and other amounts due under the Superior Mortgage at the time of such
application, in such order and priority as Superior Mortgagee shall direct,
before any portion of such accounts, accounts receivable, rents, issues and
profits shall be applied to the Subordinate Mortgage; (v) during the pendency of
any such foreclosure action, if an action shall be brought for the foreclosure
of the Superior Mortgage and an application shall be made for an extension of
such receivership for the benefit of the Superior Mortgagee, the Subordinate
Mortgagee shall consent to the extension of such receivership and all accounts,
accounts receivable, rents, issues and profits held by such receiver as of the
date of such application shall be applied by the receiver solely for the benefit
of the Superior Mortgagee, and the Subordinate Mortgagee in their respective
order of priority; (vi) due notice of the commencement of any foreclosure of the
Subordinate Mortgage shall be given to the Superior Mortgagee and true copies of
all papers served or entered in such action will be delivered to the Superior
Mortgagee upon such service or entry; (vii) no payments shall be made to the
holder of the Subordinate Mortgage during the period in which any default exists
under the Superior Mortgage in respect of any monthly payment or balloon payment
due thereunder beyond any applicable grace period, provided that the Subordinate
Mortgagee has received written notice of such default and all payments otherwise
payable to the Subordinate Mortgagee during such period shall be paid to the
Superior Mortgagee and, if any such payments are received by the Subordinate
Mortgagee at any time after which the Subordinate Mortgagee has received written
notice of the existence of such default, they shall be held in trust for the
Superior Mortgagee and turned over to the Superior Mortgagee on demand; (viii)
any distributions made or to be made to the Subordinate Mortgagee pursuant to
any bankruptcy or insolvency proceeding of the borrower representing amounts due
under the Superior Mortgage shall be paid by the borrower, or, if such payments
are nonetheless received by the Subordinate Mortgagee, by the Subordinate
Mortgagee immediately upon their receipt, to the Superior Mortgagee for
application, at Superior Mortgagee's direction, to the payment of principal,
interest and other amounts due under the Superior Mortgage at the time of such
application, in such order and priority as Superior Mortgagee shall direct,
before any portion of such accounts, accounts receivable, rents, issues and
profits shall be applied to the Subordinate Mortgage; and (ix) all condemnation,
casualty or similar payments with respect to the premises shall be applied, for
so long as the Superior Mortgage remains outstanding, in accordance with the
Superior Mortgage.
This Agreement is governed by and is to be construed under the laws
of the state in which the Premises is located.
So long as the Superior Mortgage shall remain a lien upon the
Premises or any part thereof, Subordinate Mortgagee shall execute, acknowledge
and deliver, upon Superior Mortgagee's reasonable demand, at any time or from
time to time, any and all further subordinations, agreements or other
instruments in recordable form (and in form reasonably satisfactory to
Subordinate Mortgagee) as Superior Mortgagee may reasonably require for carrying
out the purpose and intent of the covenants contained herein; provided, however,
that no such subordinations, agreements or other instruments shall increase
Subordinate Mortgagee's obligations or decrease Subordinate Mortgagee's rights
under this Agreement or the Subordinate Mortgage.
So long as the Superior Mortgage shall remain a lien upon the
Premises or any part thereof, Subordinate Mortgagee shall not enter into any
agreement to amend or modify the Subordinate Mortgage in a manner material to
Superior Mortgagee without notice to, and the prior consent of, Superior
Mortgagee.
In order to enable Superior Mortgagee to enforce any claims by the
Subordinate Mortgagee against the Borrower in any liquidation or dissolution of
Borrower, or any execution sale, receivership, insolvency, bankruptcy,
liquidation, readjustment, reorganization, or other similar proceeding relative
to the Borrower or its property, for so long as the Superior Mortgage shall
remain outstanding, Superior Mortgagee is hereby irrevocably authorized and
empowered in its discretion to make and present, for and on behalf of the
undersigned Subordinate Mortgagee, such proofs of claims against the Borrower on
account of the Subordinate Mortgage as Superior Mortgagee may deem expedient or
proper, and to vote such proofs of claims in any such proceeding and to receive
and collect any and all dividends or other payments or disbursements made
thereon in whatever form the same may be paid or issued. Subordinate Mortgagee
further agrees to execute and deliver to Superior Mortgagee such assignments or
other instruments as may be reasonably required by Superior Mortgagee (and in
form reasonably satisfactory to Subordinate Mortgagee) in order to enable
Superior Mortgagee to enforce any and all such claims and to collect any and all
such payments or disbursements provided, however, that no such assignments or
other instruments shall increase Subordinate Mortgagee's obligations or decrease
Subordinate Mortgagee's rights under this Agreement or the Subordinate Mortgage.
This Agreement shall not be amended or modified except by an
agreement in writing, signed by the party against whom enforcement is sought.
Except for notices in a foreclosure action, which shall be given as
provided by applicable rule of court, all notices hereunder shall be given to
each party in the same manner as provided in its mortgage or, if there are no
such notice provisions, at the address set forth above by personal delivery or
first class, certified mail, return receipt requested. Notices shall be deemed
to have been given when received. Either party may change its address for
notices hereunder by written notice to the other party.
This Agreement shall be binding upon the parties hereto and their
respective heirs, successors and assigns. Any assignee of the Subordinate
Mortgage shall be deemed by acceptance thereof to have assumed the obligations
of Subordinate Mortgagee hereunder. Subordinate Mortgagee hereby agrees to have
such assignee execute a formal assumption agreement upon such assignment but no
failure of an assignee to execute an assumption agreement shall affect such
assignee's assumption of the obligations of the Subordinate Mortgagee.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Subordination Agreement the day and year first above written.
[Subordinate Mortgagee]
By:
-----------------------------------------
Name:
Title:
[Superior Mortgagee]
By:
-----------------------------------------
Name:
Title:
[PRIOR TO EXECUTION, THIS FORM SHOULD BE MODIFIED TO ADD APPROPRIATE
ACKNOWLEDGEMENTS AND INCORPORATE OTHER REVISIONS REQUIRED FOR RECORDING]
SCHEDULE "A"
(Metes and Bounds Description)
EXHIBIT N
Form of Notice Regarding Defeasance of Mortgage Loan
For loans not among ten largest and having balance of less than (a)
$20,000,000 and (b) 5% of outstanding pool balance
To: Standard & Poor's Ratings Services
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Commercial Mortgage Surveillance
From: _________, in its capacity as Servicer (the "Servicer") under the
Pooling and Servicing Agreement dated as of ________ (the "Pooling and
Servicing Agreement"), among the Servicer, _________ as Trustee, and others.
Date: _________, 20___
Re: Commercial Mortgage Pass-Through Certificates, Series Mortgage
Loan (the "Mortgage Loan") heretofore secured by real property
known as _______.
--------------------------------------------------------------
Capitalized terms used but not defined herein have the meanings
assigned to such terms in the Pooling and Servicing Agreement. [Note: all
terms in this notice should be conformed to terms used in the Pooling and
Servicing Agreement]
THE STATEMENTS SET FORTH BELOW ARE MADE (A) TO THE BEST KNOWLEDGE OF THE
UNDERSIGNED BASED UPON DUE DILIGENCE CONSISTENT WITH THE SERVICING STANDARD
SPECIFIED IN THE POOLING AND SERVICING AGREEMENT (THE "SERVICING STANDARD"), AND
(B) WITHOUT INTENDING TO WARRANT THE ACCURACY THEREOF OR UNDERTAKE ANY DUTY OR
STANDARD OF CARE GREATER THAN THE DUTIES OF SERVICER UNDER THE POOLING AND
SERVICING AGREEMENT AND THE SERVICING STANDARD
We hereby notify you and confirm that each of the following is true,
subject to those exceptions, if any, set forth on Exhibit A hereto, which
exceptions the Servicer has determined, consistent with the Servicing Standard,
will have no material adverse effect on the Mortgage Loan or the defeasance
transaction:
1. The Mortgagor has consummated a defeasance of the Mortgage Loan
of the type checked below:
____ a full defeasance of the entire outstanding principal
balance ($___________) of the Mortgage Loan; or
____ a partial defeasance of a portion ($__________) of the
Mortgage Loan that represents ___% of the entire principal
balance of the Mortgage Loan ($________);
2. The defeasance was consummated on __________, 20__.
3. The defeasance was completed in all material respects in
accordance with the conditions for defeasance specified in the
Mortgage Loan Documents and in accordance with the Servicing
Standard.
4. The defeasance collateral consists only of one or more of the
following: (i) direct debt obligations of the U.S. Treasury, (ii)
direct debt obligations of the Federal National Mortgage
Association, (iii) direct debt obligations of the Federal Home
Loan Mortgage Corporation, or (iv) interest-only direct debt
obligations of the Resolution Funding Corporation. Such
defeasance collateral consists of securities that (i) if they
include a principal obligation, the principal due at maturity
cannot vary or change, (ii) provide for interest at a fixed rate
and (iii) are not subject to prepayment, call or early
redemption.
5. After the defeasance, the defeasance collateral will be owned by
an entity (the "Defeasance Obligor") that: (i) is the original
Borrower, (ii) is a Single-Purpose Entity (as defined in the S&P
Criteria), (iii) is subject to restrictions in its organizational
documents substantially similar to those contained in the
organizational documents of the original Borrower with respect to
bankruptcy remoteness and single purpose, (iv) has been
designated as the Defeasance Obligor by the originator of the
Mortgage Loan pursuant to the terms of the Mortgage Loan
Documents, or (v) has delivered a letter from Standard & Poor's
confirming that the organizational documents of such Defeasance
Obligor were previously approved by Standard & Poor's. The
Defeasance Obligor owns no assets other than defeasance
collateral and (only in the case of the original Borrower) real
property securing one or more Mortgage Loans included in the pool
under the Pooling and Servicing Agreement (the "Pool").
6. If such Defeasance Obligor (together with its affiliates) holds
more than one defeased loan, it does not (together with its
affiliates) hold defeased loans aggregating more than $20 Million
or more than five percent (5%) of the aggregate certificate
balance of the Certificates as of the date of the most recent
Paying Agent's Monthly Certificateholder Report received by
Servicer (the "Current Report").
7. The defeasance documents require that the defeasance collateral
be credited to an eligible account (as defined in the S&P
Criteria) that must be maintained as a securities account by a
securities intermediary that is at all times an Eligible
Institution (as defined in the S&P Criteria). The securities
intermediary may reinvest proceeds of the defeasance collateral
only in Permitted Investments (as defined in the Pooling and
Servicing Agreement).
8. The securities intermediary is obligated to pay from the proceeds
of the defeasance collateral, directly to the Servicer's
collection account, all scheduled payments on the Mortgage Loan
or, in a partial defeasance, not less than 125% of the portion of
such scheduled payments attributed to the allocated loan amount
for the real property defeased (the "Scheduled Payments").
9. The Servicer received written confirmation from an independent
certified public accountant 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 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, (iii) the defeasance
collateral is not subject to prepayment, call or early
redemption, and (iv) interest income from the defeasance
collateral to the Defeasance Obligor in any tax 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, other than in the year in which the
Maturity Date or Anticipated Repayment Date will occur, when
interest income will exceed interest expense.
10. The Servicer received opinions of counsel that, subject to
customary qualifications, (i) the defeasance will not cause the
Trust to fail to qualify as a REMIC for purpose of the Internal
Revenue Code, (ii) the agreements executed by the Mortgagor and
the Defeasance Obligor in connection with the defeasance are
enforceable against them in accordance with their terms, and
(iii) the Trustee will have a perfected, first priority security
interest in the defeasance collateral.
11. The agreements executed in connection with the defeasance (i)
prohibit subordinate liens against the defeasance collateral,
(ii) provide for payment from sources other than the defeasance
collateral of all fees and expenses of the securities
intermediary for administering the defeasance and the securities
account and all fees and expenses of maintaining the existence of
the Defeasance Obligor, (iii) permit release of surplus
defeasance collateral and earnings on reinvestment to the
Defeasance Obligor only after the Mortgage Loan has been paid in
full, (iv) include representations and/or covenants of the
Mortgagor and/or securities intermediary substantially as set
forth on Exhibit B hereto, (v) provide for survival of such
representations; and (vi) do not permit waiver of such
representations and covenants.
12. The outstanding principal balance of the Mortgage Loan
immediately before the defeasance was less than $20,000,000 and
less than 5% of the aggregate certificate balance of the
Certificates as of the date of the current Report. The Mortgage
Loan is not one of the ten (10) largest loans in the pool.
13. Copies of all material agreements, instruments, organizational
documents, opinions of counsel, accountant's report and other
items delivered in connection with the defeasance will be
provided to you upon request.
14. The individual executing this notice is an authorized officer or
a servicing officer of the Servicer.
IN WITNESS WHEREOF, the Servicer has caused this notice to be
executed as of the date captioned above.
SERVICER:_________________________________
By:________________________________________
Name:
Title:
EXHIBIT B
Perfected Security Interest Representations
General:
1. [The defeasance agreements] create a valid and continuing security interest
(as defined in the applicable UCC) in the [Collateral, Securities Account and
Deposit Account] in favor of the [Secured Party], which security interest is
prior to all other [Liens], and is enforceable as such as against creditors of
and purchasers from [Debtor].
Note that "Collateral" means securities, permitted investments and other assets
credited to securities accounts.
2. The [Deposit Account], constitutes a "deposit account" within the meaning of
the applicable UCC.
3. All of the [Collateral] has been and will have been credited to a [Securities
Account]. The securities intermediary for the [Securities Account] has agreed to
treat all assets credited to the [Securities Account] as "financial assets"
within the meaning of the UCC.
Creation:
4. [Debtor] owns and has good and marketable title to the [Collateral,
Securities Account and Deposit Account] free and clear of any [Lien], claim or
encumbrance of any Person.
5. [Debtor] has received all consents and approvals required by the terms of the
[Collateral] to the transfer to the [Secured Party] of its interest and rights
in the [Collateral] hereunder.
Perfection:
6. [Debtor] has caused or will have caused, within ten (10) days, the filing of
all appropriate financing statements in the proper filing office in the
appropriate jurisdictions under applicable law in order to perfect the security
interest granted in the [Collateral, Securities Account and Deposit Account] to
the [Secured Party] hereunder.
7. [Debtor] has delivered to[Secured Party] a fully executed agreement pursuant
to which the securities intermediary or the account bank has agreed to comply
with all instructions originated by the [Secured Party] relating to the
[Securities Account] or directing disposition of the funds in the [Deposit
Account] without further consent by the [Debtor].
8. [Debtor] has taken all steps _necessary to cause the securities intermediary
to identify in its records the [Secured Party] as the person :having a security
entitlement against the securities intermediary in the [Securities Account].
9. [Debtor] has taken all steps necessary to cause [Secured Party] to become the
account holder of the [Deposit Account].
Priority:
10. Other than the security interest granted to the [Secured Party] pursuant to
this Agreement, [Debtor] has not pledged, assigned, sold, granted a security
interest in, or otherwise conveyed any of the [Collateral, Securities Account
and Deposit Account]. [Debtor] has not authorized the filing of and is not aware
of any financing statements against [Debtor] that include a description of
collateral covering the [Collateral, Securities Account and Deposit Account]
other than any financing statement relating to the security interest granted to
the [Secured Party] hereunder or that has been terminated. Debtor is not aware
of any judgment or tax lien filings against [Debtor].
11. The [Securities Account and Deposit Account] are not in the name of any
person other than the [Debtor] or the [Secured Party]. The [Debtor] has not
consented to the securities intermediary of any [Securities Account] or the
account bank of any [Deposit Account] to comply with entitlement orders or
instructions of any person other than the [Secured Party].
EXHIBIT O
ARCAP NAMING CONVENTION FOR ELECTRONIC FILE DELIVERY
ARCap Naming Convention for Electronic File Delivery
Deal Name - Prospectus Loan I.D. - Statement Type - Statement Date - Months
Covered by Statement
For Example:
JPM2000C10-00001.1-OS-12312000-12
JPM2000C10-00001.2-OS-12312000-12
JPM2000C10-00001.1-OSAR-12312000-12
JPM2000C10-00001.1-FS-12312000-12
JPM2000C10-00001.1-RR-12312000
DLJ2000CKP1-00150.1-OS-12312000-12
DLJ2000CKP1-00001.1-OSAR-12312000-12
DLJ2000CKP1-00001.1-FS-12312000-12
DLJ2000CKP1-00001.1-RR-12312000
DLJ2000CKP1-00001.1-PI-12312000
Please note there should not be any special characters in the Deal Name, i.e. no
spaces, no dashes, no underscores, etc.
The Prospectus I.D. should have five leading characters, a decimal point, and
the Property # (1,2,3,etc).
The Statement Types are: OS- Operating Statement (PDF or TIF format)
OSAR- Operating Statement Analysis Report & NOI ADJ
Worksheet (Excel Format named individually,
not rolling format)
FS- Borrower Financial Statement (PDF or TIF)
RR- Rent Roll (Excel or PDF or TIF)
PI- Property Inspection (Excel format)
HS- Healthcare Survey
FR- Franchise Annual Compliance Report
The Statement Date should be eight characters long - MODAYEAR where MO = months
from 01 to 12, DAY = day of month from 01 to 31, YEAR = year such as 1999 or
2000 or 2001.
The Months Covered by the Statement should range from 01 to 12.
EXHIBIT P
FORM OF CERTIFICATION TO BE
PROVIDED TO DEPOSITOR
Re: CSFB Commercial Mortgage Trust 2003-C3 (the "Trust"), Commercial
Mortgage Pass-Through Certificates, Series 2003-C3
----------------------------------------------------------------
I, [identify the certifying individual], a[n] [title] of [identify name of
company] on behalf of [identify name of company], as [Trustee/[General][NCBFSB]
Master Servicer] certify to [identify the individual signing the Sarbanes Oxley
Certification], Credit Suisse First Boston Mortgage Securities Corp. (the
"Depositor") and its partners, representatives, affiliates, members, managers,
directors, officers, employees and agents, to the extent that the following
information is within our normal area of responsibilities and duties under the
pooling and servicing agreement dated as of June 1, 2003 and relating to the
Trust (the "Pooling and Servicing Agreement"), and with the knowledge and intent
that they will rely upon this certification, that:
1. [To be certified by the Trustee] [I have reviewed the annual report on
Form 10-K for the fiscal year [___] (the "Annual Report"), and all
reports on Form 8-K containing statements to certificateholders filed
in respect of periods included in the year covered by that Annual
Report (collectively with the Annual Reports, the "Reports"), of the
Trust;]
2. [To be certified by the Trustee] [To the best of my knowledge, the
information in the Reports, to the extent prepared by the [Trustee]
(but not including any information provided to the [Trustee] by any
servicer or special servicer, other than to the extent that such
information has been aggregated or manipulated by [Trustee]), 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 as of the last day of the period covered by the Annual
Report;]
3. [To be certified by the Trustee] [To the best of my knowledge, the
distribution or servicing information required to be provided to the
Trustee by the master servicers and the special servicers under the
pooling and servicing agreement for inclusion in the Reports is
included in the Reports;]
4. [To be certified by the applicable Master Servicer] [I am responsible
for reviewing the activities performed by [KeyCorp Real Estate Capital
Markets, Inc., in its capacity as General Master Servicer] [NCB, FSB,
in its capacity as NCBFSB Master Servicer] under the Pooling and
Servicing Agreement and based upon the annual compliance review
required under the Pooling and Servicing Agreement and a certificate
in the form attached as Exhibit A hereto from [ARCap Servicing, Inc.,
in its capacity as General Special Servicer] [National Consumer
Cooperative Bank, in its capacity as Co-op Special Servicer], with
respect to such entity (which certificate, to our actual knowledge,
contains no inaccurate information), and except as disclosed in the
annual report on Form 10-K for the fiscal year [___], or in any
reports on Form 8-K containing statements to certificateholders of the
Trust filed in respect of periods included in the year covered by that
annual report [KeyCorp Real Estate Capital Markets, Inc., in its
capacity as General Master Servicer] [NCB, FSB, in its capacity as
NCBFSB Master Servicer], has fulfilled its obligations under the
Pooling and Servicing Agreement, including the provision of all
reports required to be submitted to the Trustee thereunder, and that,
to the knowledge of [KeyCorp Real Estate Capital Markets, Inc., in its
capacity as General Master Servicer] [NCB, FSB, in its capacity as
NCBFSB Master Servicer], based upon the review required under the
pooling and servicing agreement with respect to [KeyCorp Real Estate
Capital Markets, Inc., in its capacity as General Master Servicer]
[NCB, FSB, in its capacity as NCBFSB Master Servicer] and a
certificate in the form attached as Exhibit A hereto [ARCap Servicing,
Inc., in its capacity as General Special Servicer] [National Consumer
Cooperative Bank, in its capacity as Co-op Special Servicer], with
respect to such entity (which certificate, to our actual knowledge,
contains no inaccurate information), such reports do not contain any
material misstatements or omissions; and]
5. [To be certified by the applicable Master Servicer] [We have disclosed
to [KeyCorp Real Estate Capital Markets, Inc.'s, in its capacity as
General Master Servicer] [NCB, FSB's, in its capacity as NCBFSB Master
Servicer] certified public accountants all significant deficiencies
relating to the compliance of [KeyCorp Real Estate Capital Markets,
Inc., in its capacity as General Master Servicer] [NCB, FSB, in its
capacity as NCBFSB Master Servicer] with the minimum servicing
standards in accordance with a review conducted in compliance with the
Uniform Single Attestation Program for Mortgage Bankers or similar
procedure as set forth in the Pooling and Servicing Agreement and the
compliance of [ARCap Servicing, Inc., in its capacity as General
Special Servicer] [National Consumer Cooperative Bank, in its capacity
as Co-op Special Servicer] with the minimum servicing standards based
on a certificate in the form attached as Exhibit A hereto from each
such entity.]
Date: _________________________
[NAME OF COMPANY]
_______________________________
[Signature]
[Title]
EXHIBIT A to EXHIBIT P
FORM OF CERTIFICATION TO BE
PROVIDED TO THE MASTER SERVICER
Re: CSFB Commercial Mortgage Trust 2003-C3 (the "Trust"), Commercial Mortgage
Pass-Through Certificates, Series 2003-C3
-------------------------------------------------------------------------
I, [identify the certifying individual], a[n] [title] of [identify name of
company], on behalf of [identify name of company] as [General][Co-op][Special
Servicer] certify to the Master Servicer and their respective partners,
representatives, affiliates, members, managers, directors, officers, employees
and agents and with the knowledge and intent that they will rely upon this
certification:
6. [To be certified by the Special Servicer] [I am responsible for
reviewing the activities performed by [ARCap Servicing, Inc., in its
capacity as General Special Servicer] [National Consumer Cooperative
Bank, in its capacity as Co-op Special Servicer] under the pooling and
servicing agreement and based upon my knowledge and the annual
compliance review required under the pooling and servicing agreement,
and except as disclosed in the annual compliance statement required to
be delivered to the Trustee in accordance with the terms of the
Pooling and Servicing Agreement, [ARCap Servicing, Inc., in its
capacity as General Special Servicer] [National Consumer Cooperative
Bank, in its capacity as Co-op Special Servicer], to my knowledge, has
fulfilled its obligations under the pooling and servicing agreement,
in all material respects including the provision of all information
required under the Pooling and Servicing Agreement to be submitted by
the Special Servicer to the Trustee thereunder, and that, to the
knowledge of [ARCap Servicing, Inc., in its capacity as General
Special Servicer] [National Consumer Cooperative Bank, in its capacity
as Co-op Special Servicer], such information provided by the Special
Servicer does not contain any untrue statement of 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 as of the last day of the period covered by the Annual
Report; and
7. [To be certified by the Special Servicer] [I have disclosed to [ARCap
Servicing, Inc.'s, in its capacity as General Special Servicer]
[National Consumer Cooperative Bank's, in its capacity as Co-op
Special Servicer] certified public accountants all significant
deficiencies, to my knowledge, relating to the compliance with respect
to the relevant period covered by the Annual Report of [ARCap
Servicing, Inc., in its capacity as General Special Servicer]
[National Consumer Cooperative Bank, in its capacity as Co-op Special
Servicer] with the minimum servicing standards in accordance with a
review conducted in compliance with the Uniform Single Attestation
Program for Mortgage Bankers or similar procedure as set forth in the
pooling and servicing agreement].
Date: _________________________
[NAME OF COMPANY]
_______________________________
[Signature]
[Title]
EXHIBIT Q-1
FORM OF ASSIGNMENT OF PURCHASE OPTION
BY MAJORITY CONTROLLING CLASS CERTIFICATEHOLDER(S)
THIS ASSIGNMENT OF PURCHASE OPTION (this "Assignment") is made
effective as of [________] by and between [Majority Controlling Class
Certificateholder(s)] ("Assignor") and [_______________] ("Assignee") in
connection with (i) the Pooling and Servicing Agreement dated as of June 1, 2003
(the "PSA"), by and among Credit Suisse First Boston Mortgage Securities Corp.
as Depositor, KeyCorp Real Estate Capital Markets, Inc. as General Master
Servicer, ARCap Servicing, Inc. as General Special Servicer ("ARCap"), NCB, FSB
as NCBFSB Master Servicer, National Consumer Cooperative Bank as Co-op Special
Servicer and Xxxxx Fargo Bank Minnesota, N.A. as Trustee (the "Trustee"), with
respect to the Credit Suisse First Boston Mortgage Securities Corp., Commercial
Mortgage Pass-Through Certificates, Series 2003-C3 (the "2003-C3
Securitization"), and (ii) the transfer of the Loan (defined below) to Assignee.
Capitalized terms used but not otherwise defined in this Assignment
shall have the respective meanings assigned to them in the PSA.
A. The Trust is the owner of a Mortgage Loan in the original
principal amount of $[_______] that is included in the 2003-C3 Securitization
and is secured by the Mortgaged Property commonly known as
[___________________________] (the "Loan"). The Loan is a Specially Designated
Defaulted Mortgage Loan under the PSA and is being serviced and administered by
ARCap in its capacity as General Special Servicer.
B. Assignor (i) is the Majority Controlling Class Certificateholder
under the PSA, (ii) pursuant to PSA Section 3.18(c), holds a Purchase Option
with respect to the Loan, (iii) pursuant to PSA Section 3.18(c)(ii), has the
unconditional right to assign the Purchase Option to a third party, and (iv) has
given all notices, if any, required to be given to any Person in order to assign
the Purchase Option and for the assignee thereof to exercise the Purchase Option
and purchase the Loan pursuant thereto.
C. Assignee intends to purchase the Loan in compliance with the PSA
and has requested that Assignor assign the Purchase Option to Assignee, and
Assignor desires to assign the Purchase Option to Assignee, pursuant to the
terms and conditions of this Assignment.
NOW THEREFORE, the parties agree as follows:
For the good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, Assignor hereby assigns, transfers and conveys
to Assignee all of Assignor's right, title and interest in and to the Purchase
Option with respect to the Loan under PSA Section 3.18.
This Assignment is being executed by Assignee and Assignor and shall
be binding upon Assignee, Assignor and the respective permitted successors and
assigns of each of them, for the uses and purposes set forth above and shall be
effective as of the date set forth above. This Assignment may be executed in any
number of counterparts, each of which shall be deemed to be an original, but all
of which together shall constitute one and the same instrument. Nothing in this
Assignment shall be deemed to create or imply any right or benefit in any person
other than Assignee, Assignor or their respective permitted successors and
assigns.
IN WITNESS WHEREOF, this Assignment has been executed by the parties
as of the date first set forth above.
ASSIGNOR: [MAJORITY CONTROLLING CLASS CERTIFICATEHOLDER(S)]
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
ASSIGNEE: [ASSIGNEE]
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
EXHIBIT Q-2
FORM OF ASSIGNMENT OF PURCHASE OPTION
BY SPECIAL SERVICER
THIS ASSIGNMENT OF PURCHASE OPTION (this "Assignment") is made
effective as of [________] by and between [ARCAP SERVICING, INC.] ("Assignor")
and [_______________] ("Assignee") in connection with (i) the Pooling and
Servicing Agreement dated as of June 1, 2003 (the "PSA"), by and among Credit
Suisse First Boston Mortgage Securities Corp. as Depositor, KeyCorp Real Estate
Capital Markets, Inc. as General Master Servicer, Assignor as General Special
Servicer, NCB, FSB as NCBFSB Master Servicer, National Consumer Cooperative Bank
as Co-op Special Servicer and Xxxxx Fargo Bank Minnesota, N.A. as Trustee (the
"Trustee"), with respect to the Credit Suisse First Boston Mortgage Securities
Corp., Commercial Mortgage Pass-Through Certificates, Series 2003-C3 (the
"2003-C3 Securitization"), and (ii) the transfer of the Loan (defined below) to
Assignee.
Capitalized terms used but not otherwise defined in this Assignment
shall have the respective meanings assigned to them in the PSA.
A. The Trust is the owner of a Mortgage Loan in the original
principal amount of $[_______] that is included in the 2003-C3 Securitization
and is secured by the Mortgaged Property commonly known as
[___________________________] (the "Loan"). The Loan is a Specially Designated
Defaulted Mortgage Loan under the PSA and is being serviced and administered by
Assignor in its capacity as General Special Servicer.
B. Assignor, (i) pursuant to PSA Section 3.18(c)(iii), is the deemed
assignee of the Purchase Option with respect to the Loan for a 30-day period,
(ii) pursuant to PSA Section 3.18(c)(iv), has the unconditional right to assign
the Purchase Option to a third party, and (iii) has given all notices, if any,
required to be given to any Person in order to assign the Purchase Option and
for the assignee thereof to exercise the Purchase Option and purchase the Loan
pursuant thereto.
C. Assignee intends to purchase the Loan in compliance with the PSA
and has requested that Assignor assign the Purchase Option to Assignee, and
Assignor desires to assign the Purchase Option to Assignee, pursuant to the
terms and conditions of this Assignment.
NOW THEREFORE, the parties agree as follows:
For the good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, Assignor hereby assigns, transfers and conveys
to Assignee all of Assignor's right, title and interest in and to the Purchase
Option with respect to the Loan under PSA Section 3.18.
This Assignment is being executed by Assignee and Assignor and shall
be binding upon Assignee, Assignor and the respective permitted successors and
assigns of each of them, for the uses and purposes set forth above and shall be
effective as of the date set forth above. This Assignment may be executed in any
number of counterparts, each of which shall be deemed to be an original, but all
of which together shall constitute one and the same instrument. Nothing in this
Assignment shall be deemed to create or imply any right or benefit in any person
other than Assignee, Assignor or their respective permitted successors and
assigns.
IN WITNESS WHEREOF, this Assignment has been executed by the parties
as of the date first set forth above.
ASSIGNOR: [ARCAP SERVICING, INC.]
By:
---------------------------------------------
Name:
-------------------------------------------
Title:
------------------------------------------
ASSIGNEE: [ASSIGNEE]
By:
-------------------------------------------
Name:
-------------------------------------------
Title:
------------------------------------------
--------
2 Transferee or each of its equity owners must own and/or invest on a
discretionary basis at least $100,000,000 in securities unless Transferee or any
such equity owner, as the case may be, is a dealer, and, in that case,
Transferee or such equity owner, as the case may be, must own and/or invest on a
discretionary basis at least $10,000,000 in securities.
