------------------------------------------------------------------------------
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.,
as Depositor,
MIDLAND LOAN SERVICES, INC.,
as General Master Servicer and General Special Servicer,
NCB, FSB,
as Co-op 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 March 1, 2003
$1,006,389,300
Commercial Mortgage Pass-Through Certificates
Series 2003-CPN1
------------------------------------------------------------------------------
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..........................
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES;
ORIGINAL ISSUANCE OF UNCERTIFICATED LOWER-TIER 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 and the Column Performance
Guarantor; the Purchase Price Security Deposit Account
and the Special Reserve Account.............................
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 Co-op 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 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 Administration of the Mortgage Loans.........................
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 Account, the
Distribution Account, the Interest Reserve Account and
the Excess Liquidation Proceeds Account.....................
Section 3.06 Investment of Funds in the Collection Account, Servicing
Accounts, Reserve Accounts and the REO Account..............
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...................
Section 3.20 Modifications, Waivers, Amendments and Consents..............
Section 3.21 Transfer of Servicing Between Master Servicers and
Special Servicers; 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...............................
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.................................................
Section 4.06 Grantor Trust Reporting......................................
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 the Master Servicers or the 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.........
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..........................
ARTICLE X
ADDITIONAL TAX PROVISIONS
Section 10.01 Tax Administration..........................................
Section 10.02 Depositor, Master Servicers, Special Servicers and Fiscal
Agent to Cooperate with Trustee............................
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01 Amendment...................................................
Section 11.02 Counterparts................................................
Section 11.03 Limitation on Rights of Certificateholders and B Loan
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..........................................
EXHIBITS
EXHIBIT A-1 Form of Class A-X, Class A-SP and Class A-Y
Certificates
EXHIBIT A-2 Form of Class X-0, Xxxxx X-0, 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 and Class M Certificates
EXHIBIT A-4 Form of Class N, Class O, Class P and Class Q
Certificates
EXHIBIT A-5 Form of Class V Certificates
EXHIBIT A-6 Form of Class R and Class LR Certificates
EXHIBIT B-1A Schedule of Original Column Mortgage Loans
EXHIBIT B-1B Schedule of Original PNC Mortgage Loans
EXHIBIT B-1-C Schedule of Original NCCB Mortgage Loans
EXHIBIT B-1-D Schedule of Original NCBFSB Mortgage 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 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 Form of CMSA Servicer Watch List Criteria for Co-op
Mortgage Loans
EXHIBIT F-1A Form I of Transferor Certificate for Transfers of
Non-Registered Certificates
EXHIBIT F-1B Form II of Transferor Certificate for Transfers of
Non-Registered Certificates
EXHIBIT F-1C Form I of Transferor Certificate for Transfers of
Interests in Global Certificates for Classes of
Non-Registered Certificates
EXHIBIT F-1D Form II of Transferor Certificate for Transfers of
Interests in Global Certificates for Classes of
Non-Registered 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 I of Transferee Certificate for Transfers of
Interests in Non-Registered Certificates Held in
Book-Entry Form
EXHIBIT F-2D Form II of Transferee Certificate for Transfers of
Interests in Non-Registered Certificates Held in
Book-Entry Form
EXHIBIT F-3A Form of Transferor Certificate for Transfer of the
Excess Servicing Fee Right
EXHIBIT F-3B Form of Transferee Certificate for Transfer of the
Excess Servicing Fee Right
EXHIBIT G-1 Form of Transferee Certificate in Connection with
ERISA (Non-Registered Certificates and Non-Investment
Grade Certificates Held in Fully-Registered,
Certificated 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 Residual Transfer Affidavit for Transfers of
Class R and Class LR Certificates
EXHIBIT H-2 Form of Transferor Certificate for Transfers of
Class R and Class LR Certificates
EXHIBIT I-1 Form of Notice and Acknowledgment Concerning
Replacement of Special Servicer
EXHIBIT I-2 Form of Acknowledgment of 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 Form of Certification to be provided to Depositor
Schedule I Reference Rates
This Pooling and Servicing Agreement is dated and effective as of
March 1, 2003, among CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP. as
Depositor, MIDLAND LOAN SERVICES, INC., as General Master Servicer and General
Special Servicer, NCB, FSB, as Co-op 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 March 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").
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 March 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-1B (such mortgage loans, the "Original PNC Mortgage Loans").
National Consumer Cooperative Bank (together with its successors in
interest, "NCCB") has sold to the Depositor, pursuant to the Mortgage Loan
Purchase Agreement dated as of March 1, 2003 (as such may from time to time
hereafter be amended, modified, supplemented and/or restated, the "NCCB Mortgage
Loan Purchase Agreement"), between NCCB 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 NCCB 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 March 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-1D (such
mortgage loans, the "Original NCBFSB Mortgage Loans").
The Depositor desires, among other things, to: (i) establish a trust
fund, consisting primarily of the Original Column Mortgage Loans, the Original
NCCB Mortgage Loans, 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; Midland Loan
Services, Inc. (together with its successors in interest, "Midland") desires to
act as "General Master Servicer" and "General Special Servicer" hereunder;
NCBFSB desires to act as "Co-op Master Servicer" hereunder; and NCCB 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 and the Lower-Tier REMIC
(as defined herein) be treated for federal income tax purposes as a "real estate
mortgage investment conduit" (a "REMIC").
As provided herein, the Trustee will elect to treat the segregated
pool of assets consisting of the Mortgage Loans 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-1-4, Class LA-1-5, Class
LA-1-6, Class LA-2-1, Class LA-2-2, Class LA-2-3, Class LB, Class LC, Class LD,
Class LE, Class LF, Class LG, Class LH, Class LJ, Class LK, Class LL, Class LM,
Class LN, Class LO, Class LP, Class LQ and Class LY 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 will 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-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, Class P and Class Q
Certificates will evidence "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 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,
PASS-THROUGH ORIGINAL CLASS INITIAL RATINGS(1)
CLASS DESIGNATION RATE NOTIONAL AMOUNT) XXXXX'X/S&P
----------------- ---- ---------------- -----------
Class A-1 3.7270% $271,248,000 Aaa/AAA
Class A-2 4.5970% $533,863,000 Aaa/AAA
Class A-X 0.1748%(2) $1,006,389,300(5) Aaa/AAA
Class A-SP 1.8102%(3) $904,449,000(5) Aaa/AAA
Class A-Y 1.0406%(4) $105,510,837(5) Aaa/AAA
Class B 4.7230% $30,192,000 Aa2/AA
Class C 4.7630% $10,064,000 Aa3/AA-
Class D 4.8220% $30,191,000 A2/A
Class E 4.8910% $10,064,000 A3/A-
Class F 5.4050%(6) $10,064,000 Baa1/BBB+
Class G 5.5100%(7) $17,612,000 Baa2/BBB
Class H 5.8410%(8) $10,064,000 Baa3/BBB-
Class J 4.7500% $20,127,000 Ba1/BB+
Class K 4.7500% $15,096,000 Ba2/BB
Class L 4.7500% $7,548,000 Ba3/BB-
Class M 4.7500% $7,548,000 B1/B+
Class N 4.7500% $6,290,000 B2/B
Class O 4.7500% $5,032,000 B3/B-
Class P 4.7500% $8,806,000 Caa2/CCC
Class Q 4.7500% $12,580,300 NR/NR
Class R None(9) None(9)
------------
(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 5.4050% and the Weighted Average Net Mortgage Rate.
(7) The lesser of 5.5100% and the Weighted Average Net Mortgage Rate.
(8) The lesser of 5.8410% and the Weighted Average Net Mortgage Rate.
(9) 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:
ORIGINAL LOWER-TIER
LOWER-TIER REMIC PRINCIPAL AMOUNT OR
CLASS INTEREST RATE ORIGINAL CLASS NOTIONAL AMOUNT
----- ---- ------------------------------
Class LA-1-1 (1) $8,849,000
Class LA-1-2 (1) $45,903,000
Class LA-1-3 (1) $46,791,000
Class LA-1-4 (1) $44,208,000
Class LA-1-5 (1) $112,901,000
Class LA-1-6 (1) $12,596,000
Class LA-2-1 (1) $24,065,000
Class LA-2-2 (1) $43,559,000
Class LA-2-3 (1) $466,239,000
Class LB (1) $30,192,000
Class LC (1) $10,064,000
Class LD (1) $30,191,000
Class LE (1) $10,064,000
Class LF (1) $10,064,000
Class LG (1) $17,612,000
Class LH (1) $10,064,000
Class LJ (1) $20,127,000
Class LK (1) $15,096,000
Class LL (1) $7,548,000
Class LM (1) $7,548,000
Class LN (1) $6,290,000
Class LO (1) $5,032,000
Class LP (1) $8,806,000
Class LQ (1) $12,580,300
Class LY (2) $105,510,837(2)
Class LR None(3) (3)
------------
(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 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 interests in the Lower-Tier 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.
"A Loan" shall mean, any of the Mortgage Loans secured by the
Mortgaged Properties identified on the Mortgage Loan Schedule as Michigan
Equities C Portfolio, Taliskar Apartments, Jano Arms Apartments, Western Plaza
and East Forest Plaza, respectively.
"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 holders of the related A Loan and the B Loan Holder relating to the relative
rights of such holders of the respective A Loan and B Loan, as the same may be
further amended from time to time in accordance with the terms thereof.
"A/B Loan Pair" shall mean, any A Loan, together with the related B
Loan.
"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 B Loan Holder. 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 any A/B Loan
Pair, a "Material Default" under, and within the meaning of, the related A/B
Intercreditor Agreement.
"Acquisition Date" shall mean, with respect to any REO Property, the
first day on which such REO Property is considered to be acquired by the Trust
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 (other than
Master Servicing Fees and Trustee's Fees) 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.
"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 Section 3.11(g) or Section 4.03(d), 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 either the Upper-Tier REMIC or Lower-Tier REMIC as a REMIC; or (ii)
except as permitted by Section 3.17(a), the imposition of a tax upon either the
Upper-Tier REMIC or Lower-Tier 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.
"Anthracite" shall mean Anthracite Capital, Inc., the initial
Controlling Class Representative.
"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, unless the
Controlling Class Representative permits otherwise, either a limited appraisal,
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, unless the Controlling Class Representative permits the use of a
Qualified Appraiser, the Person performing such limited appraisal, summary
report or internal valuation shall 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, for any Distribution Date,
with respect to any Required Appraisal Loan, an amount calculated by the Special
Servicer 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 (net of Default Interest
and, in the case of an ARD Mortgage Loan after its Anticipated Repayment
Date, Post-ARD Additional Interest) accrued on such Required Appraisal
Loan through the most recent Due Date prior to such Determination Date,
(c) all accrued but 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 Master Servicer or the Special Servicer with respect to such
Required Appraisal Loan, the related Mortgaged Property or any related REO
Property (exclusive of any such Escrow Payments and Reserve Funds, the
application of which was assumed in determining the Appraised Value of the
related Mortgaged Property or REO Property, as applicable, referred to in
clause (2)(x)(i) of this definition).
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 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), within 60 days after such
Appraisal Trigger Event, 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 shall affect the calculation of the Appraisal Reduction
Amount with respect to any A/B Loan Pair.
"Appraisal Trigger Event" shall mean, with respect to any Mortgage
Loan, any of the following events:
(i) such Mortgage Loan becomes a Modified Mortgage Loan (other than
solely as a result of an extension of the maturity date for less than six
months);
(ii) any Monthly Payment with respect to such Mortgage Loan remains
unpaid for 60 days past the Due Date for such payment (or, with respect to
a Balloon Payment, 90 days past the Due Date or, if the related Borrower
has delivered to the applicable Master Servicer a refinancing commitment
reasonably acceptable to the applicable Special Servicer, for such longer
period (not to exceed 150 days past the Due Date for such Balloon Payment)
during which such refinancing would occur);
(iii) 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;
(iv) 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); or
(v) 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
applicable Appraisal and determined as if such property were operated as a
cooperatively owned multifamily residential building (rather than a multifamily
rental apartment building).
"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.
"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 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; and
(b) with respect to any 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.
"ASTM" shall mean the American Society for Testing and Materials.
"Audit Program" shall mean the Audit Program for Mortgages serviced
for FHLMC.
"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) 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 (xxvi), 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 and
during an A/B Material Default, all amounts received with
respect to the A Loan that are required to be paid to the B
Loan Holder pursuant to the terms of the related B Loan 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 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; and
(e) all funds released from the Excess Liquidation Proceeds Account
for distribution on such Distribution Date.
"B Loan" shall mean, with respect to each A Loan, the other mortgage
loan that (i) is not included in the Trust Fund, (ii) is subordinate in right of
payment to such A 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 B Loan,
CBA-Mezzanine Capital Finance, LLC, or its successors and assigns, as the holder
of such B 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 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 Yield Rate used
in calculating 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 Yield Rate (as provided by
the Servicer) used in calculating the Yield Maintenance Charge with respect to
such Principal Prepayment; provided, however, that if such Yield 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 December
2, 2002, 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.
"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-CPN1
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 REMIC
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.
"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 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 3.7270% 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 4.5970% per annum.
"Class A-P&I Certificates" shall mean, collectively, the Class A-1
and Class A-2 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-1-5, Component A-1-6, Component
A-2-1, Component A-2-2, Component A-2-3, Component B, Component C, Component D,
Component E, Component F 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 any Class of
Components (other than Component X-0-0, Xxxxxxxxx X-0-0, Xxxxxxxxx X-0-0,
Component A-1-5, Component A-1-6, Component A-2-1, Component A-2-2, Component
A-2-3, Component B, Component C, Component D, Component E, Component F and
Component G) 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 in the case of Component
X-0-0, Xxxxxxxxx X-0-0, Xxxxxxxxx X-0-0, Component A-1-5, Component A-1-6,
Component A-2-1, Component A-2-2, Component A-2-3, Component B, Component C,
Component D, Component E, Component F and Component G, (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 Loan), an annual rate equal to the excess of
(i) the Net Mortgage Rate in effect for such Mortgage Loan as of the Closing
Date, over (ii) 5.15% per annum.
"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 4.7230% 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 4.7630% 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 4.8220% 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 4.8910% 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) 5.4050% 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) 5.5100% 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) 5.8410% 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 4.7500% per annum.
"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 4.7500% per annum.
"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 4.7500% per annum.
"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-1-4 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-1-5 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-1-6 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 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 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 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 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 LQ 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 LR" shall mean, when combined with any other capitalized term
defined in this Agreement, of or relating to the Class LR Certificates.
"Class LR Certificate" shall mean any of the Certificates that
collectively constitute the Class bearing the alphabetic class designation "LR."
"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 4.7500% per annum.
"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 4.7500% per annum.
"Class Notional Amount" shall mean the aggregate hypothetical or
notional amount on which a Class of Interest Only Certificates accrues or is
deemed to accrue interest from time to time, and in the case of (i) the Class
A-X Certificates shall be the Class A-X Notional Amount, (ii) the Class A-Y
Certificates and Class LY Uncertificated Interest shall be the Class A-Y
Notional Amount and (iii) the Class A-SP Certificates shall be the Class A-SP
Notional Amount.
"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 4.7500% per annum.
"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 4.7500% per annum.
"Class Principal Balance" shall mean the aggregate principal balance
outstanding from time to time of any Class of Principal Balance Certificates.
"Class Q" shall mean, when combined with any other capitalized term
defined in this Agreement, of or relating to the Class Q Certificates.
"Class Q Certificate" shall mean any of the Certificates that
collectively constitute the Class bearing the alphabetic class designation "Q."
"Class Q Pass-Through Rate" shall mean 4.7500% per annum.
"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 Banking, societe anonyme, or
any successor.
"Closing Date" shall mean March 13, 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 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
Co-op Master Servicer, the Special Servicers and the Controlling Class
Representative.
"CMSA Bond Level File" shall mean 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
and, insofar as it requires the presentation of information in addition to that
called for by the form of the "Bond Level File" available as of the Closing Date
on the CMSA Website, is reasonably acceptable to the Trustee and the Controlling
Class Representative.
"CMSA Collateral Summary File" shall mean 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 securities transactions generally and,
insofar as it requires the presentation of information in addition to that
called for by the form of the "Collateral Summary File" available as of the
Closing Date on the CMSA Website, is reasonably acceptable to the Trustee and
the Controlling Class Representative.
"CMSA Comparative Financial Status Report" shall mean a 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 securities transactions generally and, insofar as it
requires the presentation of information in addition to that called for by the
form of the "Comparative Financial Status Report" available as of the Closing
Date on the CMSA Website, is reasonably acceptable to the Master Servicers or
the Special Servicers, as applicable, and the Controlling Class Representative,
and in any event, setting forth, among other things, (a) the occupancy and debt
service coverage ratio for each Mortgage Loan or related Mortgaged Property, as
applicable, as of the date of the latest financial information (covering no less
than twelve (12) consecutive months) available immediately preceding the
preparation of such report; and (b) the revenue, expense and net operating
income or net cash flow for each of the following periods (to the extent such
information is in the applicable Master Servicer's or the applicable Special
Servicer's possession or under its control): (i) the most current available
year-to-date, (ii) each of the previous two (2) full fiscal years stated
separately; and (iii) the "base year" (representing, in the case of any Original
Mortgage Loan, the original analysis of information used as of the Due Date for
such Mortgage Loan in March 2003). 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 March 2003, such Master Servicer
or 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 the applicable 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 the applicable Special
Servicer, by the applicable Master Servicer (if other than such Special Servicer
or an Affiliate thereof).
"CMSA Delinquent Loan Status Report" shall mean 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 securities transactions
generally and, insofar as it requires the presentation of information in
addition to that called for by the form of the "Delinquent Loan Status Report"
available as of the Closing Date on the CMSA Website, is reasonably acceptable
to the Master Servicers or the Special Servicers, as applicable, and the
Controlling Class Representative.
"CMSA Financial File" shall mean 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 securities transactions generally and, insofar as it
requires the presentation of information in addition to that called for by the
form of the "Financial File" available as of the Closing Date on the CMSA
Website, is reasonably acceptable to the Master Servicers or the Special
Servicers, as applicable, and the Controlling Class Representative.
"CMSA Historical Liquidation Report" shall mean 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 securities transactions
generally and, insofar as it requires the presentation of information in
addition to that called for by the form of the "Historical Liquidation Report"
available as of the Closing Date on the CMSA Website, is reasonably acceptable
to the Master Servicers or the Special Servicers, as applicable, and the
Controlling Class Representative.
"CMSA Historical Loan Modification and Corrected Mortgage Loan
Report" shall mean a report substantially in the form of, and containing the
information called for in, the downloadable form of the "Historical Loan
Modification Report" available as of April 1, 2003 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 securities transactions generally and, insofar as it
requires the presentation of information in addition to that called for by the
form of the "Historical Loan Modification and Corrected Mortgage Loan Report"
available as of the Closing Date on the CMSA Website, is reasonably acceptable
to the Master Servicers or the Special Servicers, as applicable, and the
Controlling Class Representative.
"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" available as of April 1, 2003 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 and,
insofar as it requires the presentation of information in addition to that
called for by the form of the "Loan Level Reserve Report" available as of the
April 1, 2003 on the CMSA Website, is reasonably acceptable to the Master
Servicers or the Special Servicers, as applicable, and the Controlling Class
Representative.
"CMSA Loan Periodic Update File" shall mean 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 securities transactions
generally and, insofar as it requires the presentation of information in
addition to that called for by the form of the "Loan Periodic Update File"
available as of the Closing Date on the CMSA Website, is reasonably acceptable
to the Master Servicers or the Special Servicers, as applicable, and the
Controlling Class Representative and the Trustee.
"CMSA Loan Setup File" shall mean 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 securities transactions generally and, insofar as it
requires the presentation of information in addition to that called for by the
form of the "Loan Setup File" available as of the Closing Date on the CMSA
Website, is reasonably acceptable to the Master Servicers or the Special
Servicers, as applicable, and the Controlling Class Representative and the
Trustee.
"CMSA NOI Adjustment Worksheet" shall mean a report substantially in
the form of, and containing the information called for in, the downloadable form
of the "NOI Adjustment Worksheet" available as of the Closing Date on the CMSA
Website, or such other form for the presentation of such information and
containing such additional information as may from time to time be recommended
by the CMSA for commercial mortgage securities transactions generally and,
insofar as it requires the presentation of information in addition to that
called for by the form of the "NOI Adjustment Worksheet" available as of the
Closing Date on the CMSA Website, is acceptable to the Master Servicers or the
Special Servicers, as applicable, and the Controlling Class Representative, 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 or net cash flow, as applicable, and debt service coverage numbers used
in the other reports required by this Agreement.
"CMSA Operating Statement Analysis Report" shall mean a report
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 and, insofar as it requires the presentation of
information in addition to that called for by the form of the "Operating
Statement Analysis Report" available as of the Closing Date on the CMSA Website,
is reasonably acceptable to the Master Servicers and the Controlling Class
Representative.
"CMSA Property File" shall mean 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 securities transactions generally and, insofar as it
requires the presentation of information in addition to that called for by the
form of the "Property File" available as of the Closing Date on the CMSA
Website, is reasonably acceptable to the Master Servicers or the Special
Servicers, as applicable, and the Controlling Class Representative.
"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 April 1, 2003 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 and,
insofar as it requires the presentation of information in addition to that
called for by the form of the "Reconciliation of Funds" available as of the
April 1, 2003 on the CMSA Website, is reasonably acceptable to the Master
Servicers or the Special Servicers, as applicable, and the Controlling Class
Representative.
"CMSA Special Servicer Defaulted 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 Defaulted Loan File" available as of
the April 1, 2003 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 and, insofar as it requires the presentation
of information in addition to that called for by the form of the "Special
Servicer Defaulted Loan File" available as of the April 1, 2003 on the CMSA
Website, is reasonably acceptable to the Master Servicers or the Special
Servicers, as applicable, and the Controlling Class Representative.
"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 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 securities transactions generally and, insofar as it
requires the presentation of information in addition to that called for by the
form of the "REO Status Report" available as of the Closing Date on the CMSA
Website, is reasonably acceptable to the Master Servicers or the Special
Servicers, as applicable, and the Controlling Class Representative.
"CMSA Servicer Watch List" shall mean (a) with respect to General
Mortgage Loans, 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 April 1, 2003 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 and, insofar as it requires the presentation
of information in addition to that called for by the form of the "Servicer Watch
List" available as of the April 1, 2003 on the CMSA Website, is reasonably
acceptable to the Master Servicers or the Special Servicers, as applicable, and
the Controlling Class Representative and (b) with respect to Co-op Mortgage
Loans, a report that identifies those Co-op Mortgage Loans that meet the
criteria set forth on Exhibit E hereto.
"CMSA Website" shall mean the CMSA's Website located at
"xxx.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, after the occurrence of an A/B Material
Default, any related B Loan Holder, which 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-CPN1, and the B Loan Holder, as
applicable, as their interest may appear, Collection Account." Any such account
or accounts shall be an Eligible Account and shall be part of the Lower-Tier
REMIC other than any funds therein allocable to a B Loan.
"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.
"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
March 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 the Master Servicer pursuant to Section
3.19(a) to cover Prepayment Interest Shortfalls incurred during the related
Collection Period.
"Component" shall mean each of Component X-0-0, Xxxxxxxxx X-0-0,
Xxxxxxxxx X-0-0, Component A-1-4, Component A-1-5, Component A-1-6, Component
A-2-1, Component A-2-2, Component A-2-3, Component B, Component C, Component D,
Component E, Component F, Component G, Component H, Component J, Component K,
Component L, Component M, Component N, Component O, Component P and Component Q.
"Component A-1-1" shall mean one of twenty-four 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-four components of the
Class A-X Certificates and one of the fourteen 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-four components of
the Class A-X Certificates and one of the fourteen 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-1-4" shall mean one of the twenty-four components of
the Class A-X Certificates and one of the fourteen 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-1-4 Uncertificated Interest as of
any date of determination.
"Component A-1-5" shall mean one of the twenty-four components of
the Class A-X Certificates and one of the fourteen 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-1-5 Uncertificated Interest as of
any date of determination.
"Component A-1-6" shall mean one of the twenty-four components of
the Class A-X Certificates and one of the fourteen 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-1-6 Uncertificated Interest as of
any date of determination.
"Component A-2-1" shall mean one of the twenty-four components of
the Class A-X Certificates and one of the fourteen 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-four components of
the Class A-X Certificates and one of the fourteen 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-four components of
the Class A-X Certificates and one of the fourteen 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 B" shall mean one of the twenty-four components of the
Class A-X Certificates and one of the fourteen 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-four components of the
Class A-X Certificates and one of the fourteen 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 March 2004, (ii) with
respect to the Class A-1-3 Component, the Distribution Date occurring in March
2005, (iii) with respect to the Class A-1-4 Component, the Distribution Date
occurring in March 2006, (iv) with respect to the Class A-1-5 Component, the
Distribution Date in March 2007; (v) with respect to the Class A-1-6 Component,
the Distribution Date in March 2008, (vi) with respect to the Class A-2-1
Component, the Distribution Date occurring in March 2008, (vii) with respect to
the Class A-2-2 Component, the Distribution Date occurring in March 2009, (viii)
with respect to the Class A-2-3 Component, the Distribution Date occurring in
March 2010, (ix) with respect to the Class B Component, the Class C Component,
the Class D Component, the Class E Component and the Class F Component, the
Distribution Date occurring in March 2010, and (x) with respect to the Class G
Component, the Distribution Date occurring in March 2009.
"Component D" shall mean one of the twenty-four components of the
Class A-X Certificates and one of the fourteen 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 Uncertificated Interest as of any
date of determination.
"Component E" shall mean one of the twenty-four components of the
Class A-X Certificates and one of the fourteen 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 Uncertificated Interest as of any
date of determination.
"Component F" shall mean one of the twenty-four components of the
Class A-X Certificates and one of the fourteen 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 Uncertificated Interest as of any
date of determination.
"Component G" shall mean one of the twenty-four components of the
Class A-X Certificates and one of the fourteen 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-four 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-four 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-four 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-four 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-four 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-four 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-four 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-four 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.
"Component Q" shall mean one of the twenty-four components of the
Class A-X Certificates having a Component Notional Amount equal to the then
current Lower-Tier Principal Amount of the Class LQ 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 February 27, 2003, relating to certain classes of the
Non-Registered Certificates delivered by the Depositor to CSFB LLC as of the
Closing Date.
"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 eligible 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 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.
"Controlling Class Certificateholder" shall mean any Holder of
Certificates of the related Controlling Class.
"Controlling Class Representative" shall have the meaning assigned
thereto in Section 3.23(a).
"Co-op Master Servicer" shall mean NCBFSB, in its capacity as master
servicer with respect to the Co-op Mortgage Loans and any related REO Properties
hereunder, or any successor master servicer with respect to the Co-op Mortgage
Loans and any related REO Properties appointed as provided herein.
"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.
"Co-op Special Servicer" shall mean NCCB, 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: (a) with respect to all matters
relating to the transfer of Certificates and payment services, the office of the
Trustee located at Xxxxx Fargo Center, Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx,
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000, Attention: Corporate Trust Services
(CMBS)--Credit Suisse First Boston Mortgage Securities Corp., Series 2003-CPN1;
and (b) with respect to all other matters, the principal corporate trust office
of the Trustee located at 0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx
00000-0000, Attention: Corporate Trust Services (CMBS)--CSFB, Series 2003-CPN1;
or the principal trust office of any successor trustee qualified and appointed
pursuant to Section 8.08.
"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 or B Loan shall be deemed a
Cross-Collateralized Mortgage Loan under this Agreement.
"Crossed Mortgage Loan Repurchase Criteria" shall mean (i) the debt
service coverage ratio for any related Cross-Collateralized Mortgage Loans that
remain in the Trust is not less than the debt service coverage ratio for such
Cross-Collateralized Mortgage Loans, including the affected Cross-Collateralized
Mortgage Loan, immediately preceding the repurchase or substitution and (ii) the
loan-to-value ratio for any related Cross-Collateralized Mortgage Loans that
remain in the Trust is not greater than the loan-to-value ratio for such
Cross-Collateralized Mortgage Loans including the affected Cross-Collateralized
Mortgage Loan immediately preceding the repurchase or substitution.
"CSFB LLC" shall mean Credit Suisse First Boston LLC or its
successor in interest.
"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 March 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 March 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.
"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 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 depositary hereafter named. 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 any Sub-Servicer set forth on
Exhibit L hereto and any successor thereto under the related Sub-Servicing
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 April 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
shall not be considered to Directly Operate an REO Property solely because such
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 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.
"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.
"Distribution Account" shall mean collectively, the Upper-Tier
Distribution Account, the Lower-Tier 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 April 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 depositary institution or trust company, the
long-term deposit or long-term unsecured debt obligations of which are rated no
less than "Aa3" by Moody's and "AA" by S&P (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 Moody's and
"A-1" by S&P (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 depositary
institution or trust company acting in its fiduciary capacity, which, in the
case of a state chartered depositary 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 PNC so
long as PNC's long-term unsecured debt rating shall be at xxxxx "X0" from
Moody's, PNC's short-term deposit or short-term unsecured debt rating shall be
at least "P-1" from Moody's and PNC either meets the requirements specified in
clause (i) with respect to S&P or S&P delivers a written confirmation with
respect to PNC in accordance with clause (iv), (iv) in the case of Reserve
Accounts and Servicing Accounts with respect to Co-op 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 (iv) 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 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 a 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" shall mean The Euroclear System.
"Event of Default" shall have the meaning assigned thereto in
Section 7.01(a).
"Excess Liquidation Proceeds" shall mean 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 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 Loan and (vi) any
other Additional Trust Fund Expenses paid or payable in respect of such Mortgage
Loan.
"Excess Liquidation Proceeds Account" shall mean the account or
sub-account of the Distribution 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. [or the name of any successor
Trustee], as Trustee, in trust for the registered holders of Credit Suisse First
Boston Mortgage Securities Corp., Commercial Mortgage Pass-Through Certificates,
Series 2003-CPN1, 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 (i) 0.005% (0.5
basis points) for the General Master Servicer or 0.02% (2 basis points) for the
Co-op Master Servicer and (ii) for the General Mortgage Loans, 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 such 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 Master Servicer (which
successor may include the Trustee) that meets the requirements of Section 7.02
and who 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 0.005% (0.5 basis points) for the General
Master Servicer or 0.02% (2 basis points) for the Co-op Master Servicer.
"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, would be realized in connection with a sale of such
Mortgage Loan if it were offered in a commercially reasonable manner and an open
bid auction were conducted.
"Xxxxxx Xxx" shall mean the Federal National Mortgage Association or
any successor.
"FDIC" shall mean the Federal Deposit Insurance Corporation or any
successor.
"FHLMC" shall mean the Federal Home Loan Mortgage 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, 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,
purchased by a Master Servicer, a Special Servicer or any Certificateholder(s)
of a Controlling Class 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.
"Xxxxxxx Mac" shall mean the Federal Home Loan Mortgage Corporation
or any successor.
"GAAP" shall mean generally accepted accounting principles in the
United States.
"GCM" shall mean Greenwich Capital Markets, Inc.
"General Master Servicer" shall mean Midland, in its capacity as
master servicer with respect to the Mortgage Pool (exclusive of the Co-op
Mortgage Loans) and any related REO Properties hereunder, or any successor
master servicer with respect to the Mortgage Pool (exclusive of the Co-op
Mortgage Loans) and any related REO Properties appointed as provided herein.
"General Mortgage Loan" shall mean any Mortgage Loan that is not a
Co-op Mortgage Loan.
"General Special Servicer" shall mean Midland, 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 Account.
"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.
"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 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 or any other applicable document.
"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, 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 or Uncertificated Lower-Tier Interests, 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 the segregated account or
sub-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. [or the name of any successor Trustee], as Trustee, in trust for
the registered holders of Credit Suisse First Boston Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 0000-XXX0, Xxxxxxxx
Xxxxxxx Account." The Interest Reserve Account shall be an asset of the
Lower-Tier 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 or 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).
"Interest Shortfall" shall mean, as to any Distribution Date and any
Class of Regular Certificates, when the amount distributed on such Distribution
Date in respect of interest is less than the Optimal Interest Distribution
Amount.
"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.
"JPM" shall mean X.X. Xxxxxx Securities Inc.
"Late Collections" shall mean: (a) with respect to any Mortgage
Loan, all amounts received by or on behalf of the Trust thereon during any
Collection Period, whether as payments, Insurance Proceeds, Condemnation
Proceeds, Liquidation Proceeds 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 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 March 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 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.
"Latest Possible Maturity Date" shall mean, with respect to any
Class of Regular Certificates or Uncertificated Lower-Tier Interests, the date
designated as the "latest possible maturity date" thereof 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 Special Servicer, any Certificateholder(s) of a Controlling Class or any
assignee of the foregoing pursuant to Section 3.18 or by the Master Servicer,
the Special Servicer or any Certificateholder(s) of the Controlling Class
pursuant to Section 3.18 or Section 9.01, (v) in the case of any 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, or (v) 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 the Master Servicer, the Special Servicer or any Certificateholder(s) of the
Controlling Class pursuant to Section 9.01, or (iii) such REO Property 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 or final payoff of a Corrected Mortgage Loan (including legal fees
and expenses, committee or referee fees and, if applicable, brokerage
commissions and conveyance taxes, any Liquidation Fee or Workout Fee associated
with a final payoff of a Corrected Mortgage Loan and any other unreimbursed
Additional Trust Fund Expenses associated with such Mortgage Loan).
"Liquidation Fee" shall mean, with respect to each Specially
Serviced Mortgage Loan or REO Property (other than any Specially Serviced
Mortgage Loan or REO Property that is (i) purchased by the Special Servicer or
any Certificateholder(s) of a Controlling Class or any assignee of the foregoing
pursuant to Section 3.18; provided that if any such party assigns its 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 of the
Certificates pursuant to Section 9.01, (iv) purchased by the related B Loan
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) 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, or (vi) the actual purchase of a Mortgage
Loan by a mezzanine lender pursuant to the terms of any related intercreditor
agreement unless the purchase price with respect thereto includes the
liquidation fee, the fee designated as such and payable to the Special Servicer
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).
"Liquidation Proceeds" shall mean all cash amounts (other than
Insurance Proceeds, Condemnation Proceeds and REO Revenues) actually received by
the Trust 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; (ii) the realization upon any deficiency judgment obtained against
a Borrower; (iii) the purchase of a Specially Designated Defaulted Mortgage Loan
by the applicable Special Servicer, any Certificateholder(s) of a Controlling
Class or any assignee of the foregoing pursuant to Section 3.18; (iv) the
repurchase of a Mortgage Loan by a Mortgage Loan Seller pursuant to the related
Mortgage Loan Purchase Agreement or the purchase of a Column Mortgage Loan by
the Column Performance Guarantor pursuant to the Column Performance Guarantee;
(v) the substitution of one or more Replacement Mortgage Loans for a Deleted
Mortgage Loan 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 (such cash amounts being any Substitution Shortfall
Amounts); (vi) the purchase of a Mortgage Loan or REO Property by a Master
Servicer, a Special Servicer or any Certificateholder(s) of the Controlling
Class pursuant to Section 9.01; (viii) 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; or (ix) the purchase of an A Loan by the
related B Loan Holder pursuant to the related A/B Intercreditor Agreement.
Except for the purposes of Section 3.11(c), "Liquidation Proceeds" shall also
include any payments to the Trust by a Mortgage Loan Seller or the Column
Performance Guarantor as contemplated by the second paragraph of Section
2.03(b), and any amounts transferred from a Purchase Price Security Deposit
Account to the Collection Account pursuant to Section 2.03(b) and from a Special
Reserve Account to the Collection Account pursuant to Section 2.03(d).
"LOC Cash Reserve" shall have the meaning assigned thereto in the
definition of "Mortgage File."
"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-XXX0, 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 $8,849,000 and
the Class Principal Balance of the Class A-1 Certificates minus $262,399,000 but
not less than zero, (B) the Lower-Tier Principal Amount of the Class LA-1-2
Uncertificated Interest shall be the lesser of $45,903,000 and the Class
Principal Balance of the Class A-1 Certificates minus $216,496,000 but not less
than zero, (C) the Lower-Tier Principal Amount of the Class LA-1-3
Uncertificated Interest shall be the lesser of $46,791,000 and the Class
Principal Balance of the Class A-1 Certificates minus $169,705,000 but not less
than zero, (D) the Lower-Tier Principal Amount of the Class LA-1-4
Uncertificated Interest shall be the lesser of $44,208,000 and the Class
Principal Balance of the Class A-1 Certificates minus $125,497,000 but not less
than zero, (E) the Lower-Tier Principal Amount of the Class LA-1-5
Uncertificated Interest shall be the lesser of $112,901,000 and the Class
Principal Balance of the Class A-1 Certificates minus $12,596,000 but not less
than zero and (F) the Lower-Tier Principal Amount of the Class LA-1-6
Uncertificated Interest shall be the lesser of $12,596,000 and the Class
Principal Balance of the Class A-1 Certificates; and (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 $24,065,000 and the Class
Principal Balance of the Class A-2 Certificates minus $509,798,000 but not less
than zero, (B) the Lower-Tier Principal Amount for the Class LA-2-2
Uncertificated Interest shall be the lesser of $43,559,000 and the Class
Principal Balance of the Class A-2 Certificates minus $466,239,000 but not less
than zero, and (C) the Lower-Tier Principal Amount for the Class LA-2-3
Uncertificated Interest shall be the lesser of $466,239,000 and the Class
Principal Balance of the Class A-2 Certificates.
"Lower-Tier REMIC" shall mean, one of two separate REMICs comprising
the Trust Fund, the assets of which consist of the Mortgage Loans (exclusive of
Post-ARD Additional Interest), any REO Property with respect thereto (exclusive
of any interest therein that a B Loan Holder may have), such amounts 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), 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 Upper-Tier REMIC.
"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 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 Master 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
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
the commencement of business on such Master Servicer Remittance Date, net of (b)
any portion of the amounts described in clause (a) of this definition that
represents one or more of the following: (i) collected Monthly Payments that are
due on a Due Date following the end of the related Collection Period, (ii) any
payments of principal (including Principal Prepayments) and interest (including
Post-ARD Additional Interest), Insurance Proceeds, Condemnation Proceeds and
Liquidation Proceeds received 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 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 (xxi) 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)
and (b)(iii) 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: (a) with respect to any Mortgage Loan,
any Breach that materially and adversely affects the value of, or the interests
of any Certificateholder in, such Mortgage Loan or the value of the related
Mortgaged Property; and (b) with respect to any REO Property, any Breach that
materially and adversely affects the value of, or the interests of any
Certificateholder in, such REO Property.
"Material Document Defect" shall mean: (a) with respect to any
Mortgage Loan, any Document Defect that materially and adversely affects the
value of, or the interests of any Certificateholder in, such Mortgage Loan or
the value of the related Mortgaged Property; and (b) with respect to any REO
Property, any Document Defect that materially and adversely affects the value
of, or the interests of any Certificateholder in, such REO Property; provided
that, without limiting the generality of the foregoing, the absence of a
Specially Designated Mortgage Loan Document shall automatically be a Material
Document Defect with respect to the affected Mortgage Loan.
"Midland" shall have the meaning assigned thereto in the Preliminary
Statement to this Agreement.
"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 or timing of any payment of
principal or interest due thereon (other than, or in addition to, bringing
Monthly Payments current with respect to such Mortgage Loan and/or
extending the maturity date for the Mortgage Loan for less than six
months);
(b) except as expressly contemplated by the related 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.
"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.
"Mortgage File" shall mean, with respect to any Mortgage 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-CPN1, 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 (iv) of this definition, 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;
(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 (v) of this definition, 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;
(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-CPN1, 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-CPN1, 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 with the
original title insurance policy delivered by September 13,
2004;
(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 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-CPN1 or in blank;
(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)
evidencing or constituting Additional Collateral and, if
applicable, the originals or copies of any amendments or
intervening assignments thereof, provided that in connection
with the delivery of the Mortgage File to the Trust, the
original of each Letter of Credit (and any related amendment
or assignment) shall be delivered to the applicable Master
Servicer and a copy thereof shall be delivered to the Trustee
or a Custodian on its behalf;
(xii) the original or a copy of any security agreement relating to
Additional Collateral and an executed assignment thereof 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-CPN1, in recordable form;
(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;
(xiv) if the related Mortgaged Property is a hospitality property,
a copy of the franchise agreement, if any, and the most
recent franchise comfort letter and the original transfer or
assignment document for such comfort letter, if any; and
(xv) a Mortgage Loan checklist;
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 item (xi) of this
definition if, in lieu thereof, the related Mortgage Loan Seller has, on behalf
of the related Borrower, either (1) 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 (2) 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 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 and
Replacement Mortgage Loans that are from time to time held in the Trust Fund,
including any such Original Mortgage Loan or Replacement Mortgage Loan that has
been wholly or partially defeased. As used herein, the term "Mortgage Loan"
includes the related Mortgage Loan Documents.
"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 PNC Mortgage Loan Purchase Agreement, the
NCCB Mortgage Loan Purchase Agreement and the NCBFSB Mortgage Loan Purchase
Agreement.
"Mortgage Loan Schedule" shall mean, collectively, the four
schedules of Mortgage Loans attached hereto as Exhibit X-0X, Xxxxxxx X-0X,
Xxxxxxx X-0X and Exhibit B-1D, respectively, as any such schedule may be
amended from time to time in accordance with this Agreement. Such list shall
set forth the following information with respect to each Mortgage Loan:
(i) the Mortgage Loan number;
(ii) the street address (including city, state and zip code) of
the related Mortgaged Property;
(iii) the (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 the Mortgage Loan is a Cross-Collateralized
Mortgage Loan and, if so, the other Mortgage Loans
contained in the related Cross-Collateralized Group;
(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;
(xii) whether the Mortgage Loan is secured by (A) a fee simple
interest in the Mortgaged Property, (B) by the Borrower's
leasehold interest, and a fee simple interest, in the
Mortgaged Property, or (C) a leasehold interest only in the
Mortgaged Property;
(xiii) whether the related Mortgaged Property is a hospitality
property;
(xiv) the name of the Mortgage Loan Seller;
(xv) the name of the originator;
(xvi) the Interest Accrual Basis;
(xvii) the Administrative Fee Rate; and
(xviii) whether such Mortgage Loan is an A Loan.
"Mortgage Loan Seller" shall mean the Column Mortgage Loan Seller,
the PNC Mortgage Loan Seller, the NCCB Mortgage Loan Seller or the NCBFSB
Mortgage Loan Seller.
"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.
"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 Master Servicer or the
Special Servicer in accordance with Section 3.20. 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.
"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.
"NCBFSB" shall mean NCB, FSB.
"NCBFSB Mortgage Loan Purchase Agreement" shall have the meaning
assigned thereto in the Preliminary Statement.
"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% or (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
Co-op Master Servicer.
"NCCB" shall mean National Consumer Cooperative Bank.
"NCCB Mortgage Loan Purchase Agreement" shall have the meaning
assigned thereto in the Preliminary Statement.
"NCCB Mortgage Loan Seller" shall mean National Consumer Cooperative
Bank, a federally chartered corporation and its successors in interest.
"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 on the Mortgage Loans during the related Collection
Period, exceeds (b) the 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 Fifth 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 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), 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 or the Trustee, 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 depositary
institution or trust company that holds such Investment Account, so long as such
depositary 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 such Master Servicer, such Special Servicer, such Trustee or
any Affiliate thereof, as applicable.
"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 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 (i) 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 (ii) Co-op Mortgage Loan (or
successor REO Mortgage Loan) the rate per annum equal to the lesser of (a) the
related Mortgage Rate minus the related Administrative Fee Rate and (b) 5.15%
per annum.
"New Lease" shall mean any lease of an REO Property entered into at
the direction of the Special Servicer, including any lease renewed, modified or
extended on behalf of the Certificateholders, if the 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 payments, Insurance Proceeds, Condemnation Proceeds, Liquidation Proceeds
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 payments, Insurance Proceeds, Condemnation
Proceeds, Liquidation Proceeds 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 Q, Class V, Class R and
Class LR 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.
"Officer's Certificate" shall mean a certificate signed by a
Servicing Officer of the Master Servicer or the 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 or the
Lower-Tier 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.
"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).
"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 and the Interest Shortfall Amount for such Class
for such Distribution Date.
"Original Certificate Balance" shall mean, with respect to any Class
of Regular Certificates (other than the Class A-X, Class A-Y and Class A-SP
Certificates), the initial aggregate principal amount thereof as of the Closing
Date, in each case as specified in the Preliminary Statement.
"Original Class Notional Amount" shall mean, with respect to any
Class A-X, Class A-SP or Class A-Y Certificate or Class LY Uncertificated
Interest, the initial class notional amount thereof as of the Closing Date, in
each case as specified in the Preliminary Statement.
"Original Column 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 NCCB 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-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 Q: Class Q Pass-Through Rate
"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 in the
highest short-term debt rating category of each of Xxxxx'x
and S&P;
(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 in the highest
short-term debt rating category of each of Xxxxx'x and S&P;
(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 in the highest
short-term debt rating category of each of Xxxxx'x and S&P;
(v) units of money market funds which maintain a constant net
asset value, provided that such units of money market funds
are rated in the highest applicable rating category of each
of Xxxxx'x and S&P; 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, 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 Bank Minnesota, N.A., as Trustee,
in trust for Holders of Credit Suisse First Boston Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 0000-XXX0, Xxxx-XXX
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 or the Upper-Tier
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 Assumption" shall mean, for purposes of determining the
accrual of original issue discount, market discount and premium, if any, on the
Mortgage Loans and the Certificates for federal income tax purposes, the
assumptions that each ARD Mortgage Loan is paid in its entirety on its
Anticipated Prepayment Date and that no Mortgage Loan is otherwise voluntarily
prepaid prior to its Stated Maturity Date.
"Prepayment Interest Excess" shall mean, with respect to any
Mortgage Loan that was subject to a Principal Prepayment in full or in part, or
any early collection of principal in the form of Insurance Proceeds or
Condemnation Proceeds received, made 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, or
any early collection of principal in the form of Insurance Proceeds or
Condemnation Proceeds received, made 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, as the case may be (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 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).
"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 a 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 Certificates" shall mean, collectively, the Class
A-P&I Certificates and the Subordinate Principal Balance 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)
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 March 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, Liquidation
Proceeds and proceeds of any purchase or repurchase of a
Mortgage Loan pursuant to this Agreement or any A/B
Intercreditor Agreement, 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 March 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 March 2003 or for which a P&I Advance was previously made
for a prior Distribution Date, and
(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; and
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.
"Principal Prepayment" shall mean any voluntary payment of principal
made by the Borrower on a Mortgage Loan that is received in advance of its
scheduled Due Date and that is not accompanied by an amount of interest (without
regard to any Prepayment Premium, 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.
"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 M, Class N,
Class O, Class P, Class Q or Class V Certificate.
"Privileged Persons" shall mean the Depositor and any designee
thereof, the General Master Servicer, the Co-op Master Servicer, the General
Special Servicer, the Co-op Special Servicer, the Underwriters, the Rating
Agencies, the Controlling Class Representative, each Certificateholder, each
Mortgage Loan Seller, to the extent that the Trustee has in accordance with
Section 5.06(b) confirmed the Ownership Interest in the Certificates held
thereby, each Certificate Owner and any prospective transferee provided such
party provides the Trustee with a certification substantially in the form of
Exhibit K-2 hereto.
"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 February 27, 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 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), 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, (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) 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, (d) all accrued and unpaid Advance Interest with respect to
any related Advances, and (e) solely in the case of a repurchase or substitution
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, (i) all related Special Servicing Fees, Workout Fees
(only if (x) such repurchase or substitution occurs after the expiration of the
applicable Initial Resolution Period and any applicable Resolution Extension
Period and (y) no Liquidation Fee is also payable in connection with such
repurchase or substitution by the Mortgage Loan Seller or the Column Performance
Guarantor, as applicable), 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 the amount described in clause (d) of this
definition) and other related Additional Trust Fund Expenses (to the extent not
otherwise included in the amount described in clause (c) or clause (d) 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 Loan) or by any
Additional Master Servicing Compensation or Additional Special Servicer
Compensation related to such Mortgage Loan (or any successor REO Loan), and (ii)
to the extent not otherwise included in the amount described in clause (c),
clause (d) 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.
"Purchase Price Security Deposit" shall have the meaning assigned
thereto in Section 2.03(b).
"Purchase Price Security Deposit Account" shall mean a segregated
custodial account or accounts created by and maintained by the applicable Master
Servicer, pursuant to Section 2.03(b), on behalf of the Trustee in trust for the
Certificateholders and the related Mortgage Loan Seller, which shall be entitled
"[name of Master Servicer], as the Master Servicer, in trust for the registered
holders of Credit Suisse First Boston Mortgage Securities Corp., Commercial
Mortgage Pass-Through Certificates, Series 2003-CPN1, and [name of the related
Mortgage Loan Seller], Purchase Price Security Deposit Account."
"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.
"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 (except in a manner that would not be adverse to the
interests of the Certificateholders (as a collective whole) in or with respect
to such mortgage loan), 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; 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 (x) of this
definition; and provided, further, that no mortgage loan shall be substituted
for a Defective Mortgage Loan unless (x) such prospective Replacement Mortgage
Loan shall be acceptable to the Controlling Class Representative (or, if there
is no such 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) absolute sole discretion, and (y) 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 the Column
Performance Guarantor effecting the substitution).
"Rated Certificate" shall mean 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 March 2035.
"Rating Agency" shall mean either of Xxxxx'x and 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, all Special
Servicing Fees, Workout Fees or other fees, expenses or items with respect
to such Mortgage Loan or REO Mortgage Loan that cause an Interest
Shortfall to occur in any prior Interest Accrual Period, minus (c) all
payments and proceeds, if any, received 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 (net of any related
Servicing Advances reimbursed therefrom and any related Liquidation
Expenses paid therefrom);
(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, 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, 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.
"Recording Omission" shall mean, with respect to any Mortgage Loan,
any Material Document Defect that exists, as of any date coinciding with or
following September 13, 2004, as a result of the omission from the Mortgage File
for such Mortgage Loan of the original or a copy of any document referred to in
clause (ii), clause (iii), clause (iv), clause (v) or, in the case of a
Mortgaged Property operated as a hospitality property, clause (viii) of the
definition of "Mortgage File," with evidence of recording or filing thereon or a
receipt or other certification evidencing recording or filing, because such
document (i) was not delivered by or on behalf of the related Mortgage Loan
Seller either as a recorded or filed document or in proper form for recording or
filing in the appropriate recording or filing office or (ii) was returned
unrecorded or unfiled as a result of an actual or purported defect therein.
"Recording Omission Credit" shall mean, with respect to any Mortgage
Loan as to which there exists a Recording Omission as of September 13, 2004, a
letter of credit in the amount of 25% of the then outstanding principal amount
of such Mortgage Loan and otherwise satisfying the criteria set forth in the
related Mortgage Loan Purchase Agreement.
"Recording Omission Reserve" shall mean, with respect to any
Mortgage Loan as to which there exists a Recording Omission as of September 13,
2004, a cash deposit in the amount of 25% of the then outstanding principal
amount of such Mortgage Loan.
"Reference Rate" shall mean, with respect to any Distribution Date
from and including the April 2003 Distribution Date to and including the March
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 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 temporary global
Certificate, in definitive, fully registered form without interest coupon, which
Certificate 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 Component" 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 COMPONENT
-------------------- ------------------------------------------ ---------------
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 LA-1-4 Uncertificated Interest Component A-1-4
Class LA-1-5 Uncertificated Interest Component A-1-5
Class LA-1-6 Uncertificated Interest Component A-1-6
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 B Certificate Class LB Uncertificated Interest Component B
Class C Certificate Class LC Uncertificated Interest Component C
Class D Certificate Class LD Uncertificated Interest Component D
Class E Certificate Class LE Uncertificated Interest Component E
Class F Certificate Class LF Uncertificated Interest Component F
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 Q Certificate Class LQ Uncertificated Interest Component Q
"Release Date" shall mean the date that is 40 days following the
Closing Date.
"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, which shall be entitled "Midland
Loan Services, Inc. or National Consumer Cooperative Bank, as applicable, [or
the name of any successor 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, Series 2003-CPN1, 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 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, 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. With
respect to an REO Property that had been security for an A Loan, the portion of
the amounts described above received with respect to such REO Property and
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 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 and no other Servicing Transfer Event or Appraisal
Trigger Event has occurred with respect thereto during the preceding three
months.
"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.
"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
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 A-1, Class
A-2, Class A-X, Class A-Y and Class A-SP Certificates.
"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, or in connection with the administration of
any REO Property, 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), (2) the reasonable and direct out-of-pocket travel expenses
incurred by the Special Servicer in connection with performing inspections
pursuant to Section 3.12(a), and (3) any other expenditure which is expressly
designated as a Servicing Advance herein; provided that, notwithstanding
anything to the contrary, "Servicing Advances" shall not include (A) allocable
overhead of a Master Servicer or a 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 a Special Servicer.
"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, the originals of any related Letter of Credit 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 tenant
subordination and non-disturbance agreements, third-party underwriting reports,
legal opinions and insurance policies relating to such Mortgage Loan or 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 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 a 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 such 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 REO Properties for which it is responsible hereunder: (a) with the
same care, skill, prudence and diligence as is normal and usual in its general
mortgage servicing and REO property management activities on behalf of third
parties or on behalf of itself, whichever is higher, with respect to mortgage
loans and REO properties that are comparable to those for which it is
responsible hereunder, giving due consideration to customary and usual standards
of practice of prudent institutional commercial mortgage loan servicers used
with respect to mortgage loans and REO properties comparable to those for which
it is responsible hereunder; (b) with a view to the timely collection of all
scheduled payments of principal and interest under the Mortgage Loans and any B
Loan, the full collection of all Prepayment Premiums and Yield Maintenance
Charges that may become payable under the Mortgage Loans and, in the case of the
applicable Special Servicer, if a Mortgage Loan or any B 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 (including payments of Prepayment Premiums
and Yield Maintenance Charges), the maximization of the recovery on such
Mortgage Loan to the Certificateholders (as a collective whole) (or in the case
of any A/B Loan Pair and its related B Loan, if any, the maximization of
recovery on the A/B Loan Pair to the Certificateholders and the B Loan Holder,
as applicable, all taken as a collective whole and taking into account the
subordination of the B Loan) on a present value basis (the relevant discounting
of anticipated collections that will be distributable to Certificateholders to
be performed at the related Net Mortgage Rate) as determined by the applicable
Special Servicer or applicable Master Servicer, as the case may be, in its
reasonable judgment; 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 obligation
that the applicable Master Servicer or applicable Special Servicer, as the case
may be, or any of its affiliates, may have to cure a Breach or a Document Defect
or to repurchase or replace a Defective Mortgage Loan; (vii) any ownership,
servicing and/or management by the applicable Master Servicer (or any Affiliate
thereof) or the applicable Special Servicer (or any Affiliate thereof), as the
case may be, of any other mortgage loans or real property; or (viii) 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.
"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) or any other payment required under
the related Mortgage Loan Documents, which failure continues, or the
applicable Master Servicer determines, in its reasonable judgment, will
continue, unremedied for the following time periods--(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 delivered to the applicable Master Servicer a
refinancing commitment reasonably acceptable to the applicable Special
Servicer, 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 has determined, in its reasonable
judgment, 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 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, or (ii) such default is likely to
remain unremedied for at least the period contemplated by clause (a) of
this definition; or
(c) the applicable Master Servicer or the Controlling Class
Representative has determined, in its reasonable judgment, 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 (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 which does not contain any carve-out 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 (a) 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 (b) 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 and such decree or order shall have remained in force
undismissed, undischarged or unstayed for a period of 60 days; 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 Reserve Account" shall mean a segregated custodial account
or accounts created and maintained by each Master Servicer, pursuant to Section
2.03(d), on behalf of the Trustee in trust for the Certificateholders and the
related Mortgage Loan Seller, which shall be entitled "[name of Master
Servicer], as the Master Servicer, in trust for the registered holders of Credit
Suisse First Boston Mortgage Securities Corp., Commercial Mortgage Pass-Through
Certificates, Series 2003-CPN1, and [name of the related Mortgage Loan Seller],
Special Reserve Account."
"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 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:
(i) the original executed Mortgage Note 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 (with or without
recording information);
(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) an original or copy of any Ground Lease; and
(v) any original Letter of Credit constituting Additional
Collateral and originals or copies of related amendment,
assignment or transfer documents; provided that in connection
with the delivery of the Mortgage File to the Trust, the
original of each Letter of Credit (and any related amendment,
assignment or transfer document) shall be delivered to the
applicable Master Servicer and a copy thereof shall be
delivered to the Trustee or a Custodian on its behalf;
provided that whenever the term "Specially Designated Mortgage Loan Documents"
is used to refer to documents actually received by the Trustee or by a Custodian
on its behalf such term shall not be deemed to include such documents and
instruments referred to in items (i) through (v) 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 (v) of this definition if, in lieu thereof, the
related Mortgage Loan Seller has, on behalf of the related Borrower, either (1)
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 (2) delivered to the applicable Master Servicer a cash
reserve in an amount equal to the amount of that Letter of Credit, which
substitute letter of credit can be drawn on, or which 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 cessation of all existing Servicing Transfer
Events with respect to such 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 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 (and any successor REO Mortgage Loan), a principal balance which (a)
initially shall equal the unpaid principal balance thereof as of the related Due
Date in March 2003 or, in the case of any Replacement Mortgage Loan, as of the
related date of substitution, 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 (or successor REO
Mortgage Loan), and (ii) the principal portion of any Realized Loss incurred in
respect of such Mortgage Loan (or successor REO Mortgage Loan) during the
related Collection Period; 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 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.
"Statement to Certificateholders" shall have the meaning assigned
thereto in Section 4.02(a).
"Subordinate Certificates" shall mean, collectively, 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 Q, Class R and Class LR Certificates.
"Subordinate Principal Balance Certificates" shall mean,
collectively, all 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
a Special Servicer has entered into a Sub-Servicing Agreement.
"Sub-Servicing Agreement" shall mean the written contract between a
Master Servicer or a 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 or
the Lower-Tier 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, respectively.
"Tax Returns" shall mean 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 and the Lower-Tier REMIC due to its
classification as a REMIC under the REMIC Provisions, together with any and all
other information, reports or returns that may be required to be furnished to
the Certificateholders or filed with the 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.
"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 and Grantor Trust, together with the
Purchase Price Security Deposit Accounts, the Special Reserve Accounts and any
Recording Omission Reserves and Recording Omission Credits 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 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'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 0.0024% 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.
"Uncertificated Lower-Tier Interests" shall mean any of the Class
LA-1-1, Class LA-1-2, Class LA-1-3, Class LA-1-4, Class LA-1-5, Class LA-1-6,
Class LA-2-1, Class LA-2-2, Class LA-2-3, Class LB, Class LC, Class LD, Class
LE, Class LF, Class LG, Class LH, Class LJ, Class LK, Class LL, Class LM, Class
LN, Class LO, Class LP, Class LQ and Class LY Uncertificated Interests.
"Underwriters" shall mean, collectively, CSFB LLC, PNCCM, JPM and
GCM.
"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, 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 0000-XXX0, Xxxxx-Xxxx 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 two 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 between the Holders of the two 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 or Class V Certificates.
"Website" shall mean the internet website maintained by the Trustee
initially located at "xxx.xxxxxxx.xxx/xxxx," the internet website of the General
Master Servicer initially located at "xxx.xxxxxxxxx.xxx" or the internet website
of the Co-op Master Servicer initially located at "xxx.xxx.xxxx."
"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 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.
"Xxxxx Fargo" shall have the meaning assigned thereto in the
Preliminary Statement to this Agreement.
"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 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.
"Yield Rate" shall mean, with respect to any Mortgage Loan, a rate
equal to a per annum rate calculated by the linear interpolation of the yields,
as reported in the most recent "Federal Reserve Statistical Release H.15 -
Selected Interest Rates" under the heading U.S. Government Securities/Treasury
constant maturities published prior to the date of the relevant prepayment of
any Loan, of U.S. Treasury constant maturities with maturity dates (one longer,
one shorter) most nearly approximating the maturity date (or, with respect to
ARD Mortgage Loans, the Anticipated Repayment Date) of the Loan being prepaid or
the monthly equivalent of such rate. If Federal Reserve Statistical Release H.15
- Selected Interest Rates is no longer published, the Master Servicer, on behalf
of the Trustee, will select a comparable publication to determine the Yield
Rate. 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 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, 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 Prepayment Premium or Yield Maintenance Charge then
due and owing under such Mortgage Loan; seventh, as a recovery of any Default
Charges then due and owing under such Mortgage Loan; eighth, as a recovery of
any assumption 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 Prepayment Premium or Yield Maintenance
Charge deemed to be due and owing in respect of the related REO Mortgage Loan;
fifth, as a recovery of any Default Charges 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) 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.
(d) 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.
(e) 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.
(f) 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.
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND
WARRANTIES; ORIGINAL ISSUANCE OF UNCERTIFICATED LOWER-TIER
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 pursuant to this Agreement and, further, that such trust be
designated as "CSFB Commercial Mortgage Trust 2003-CPN1." 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 March 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; (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 and, if established,
the REO Account, each Purchase Price Security Deposit Account and/or each
Special Reserve 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.
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, the Depositor shall, under GAAP, report:
(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 PNC Mortgage Loans from
PNC, pursuant to the PNC Mortgage Loan Purchase Agreement, as a purchase of such
Mortgage Loans from PNC; (iii) its acquisition of the Original NCCB Mortgage
Loans, pursuant to the NCCB Mortgage Loan Purchase Agreement, as a purchase of
such Mortgage Loans from NCCB; (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; and (v) its
transfer of the Original Mortgage Loans to the Trustee, pursuant to this Section
2.01(b), as a sale of such Mortgage Loans to the Trustee. In connection with the
foregoing, 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, the Depositor shall cause all of its
financial and accounting records to reflect such acquisitions as purchases and
such transfer as a sale (in each case, as opposed to a secured loan).
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 March 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 and, if established, the REO
Account, each Purchase Price Security Deposit Account and/or each Special
Reserve Account and all reinvestment 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;
provided that in connection with the delivery of the Mortgage File to the Trust,
the original of each Letter of Credit (and any related amendment or assignment)
shall be delivered to the applicable Master Servicer and copy thereof shall be
delivered to the Trustee or the Custodian appointed thereby. 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 60 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 (iv) and (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 (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 45 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,
at its sole cost and expense, to engage a third party contractor to prepare or
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 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 any of the following items are
to be retained by a Sub-Servicer that will continue to act on behalf of the
applicable Master Servicer): (i) originals or copies of all financial
statements, appraisals, environmental/engineering reports, 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 a 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, however, that such Mortgage Loan Seller
shall not be required to deliver any attorney-client privileged communication or
any other 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, the related B Loan Holder.
(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 (and, if not included in the Servicing File for the subject
Mortgage Loan, any other 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 (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. 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 and all Mortgage Note allonges are in its possession or the possession
of a Custodian on its behalf, and (ii) such Specially Designated Mortgage Loan
Documents, and all Mortgage Note allonges, 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; provided that with respect to any Letters of
Credit, the Trustee's certification shall be based upon copies of the Letters of
Credit (including related amendment, assignment and transfer documents)
delivered to the Trustee or its Custodian. To the extent that the contents of
the Mortgage File for any A Loan relate to the corresponding B Loan, the Trustee
will also hold such Mortgage File in trust for the benefit of the holder of the
related B Loan.
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
filings and certification delivered in this Section 2.02(a), that the related
Mortgage File should include one state level UCC Financing Statement filing in
the state of incorporation or organization for each Borrower and, if such state
level UCC Financing Statement was not filed on the national form, one local UCC
Financing Statement filing in the county of each related Mortgaged Property. The
UCC-2's and UCC-3's in favor of the Trustee referred to in clause (viii) of the
definition of "Mortgage File" will be delivered in form suitable for filing and
will be filed in the state of incorporation or organization of the related
Borrower or the county wherein the related Mortgaged Property is located, as so
indicated on the documents provided.
(b) On or about the 60th 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 earliest 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 (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 certifying
that the original of such Mortgage Note has been lost), the original or copy of
documents specified in clauses (ii) through (v) and (vii) of the definition of
"Mortgage File" and, in the case of a hospitality property, the documents
specified in clause (viii) of the definition of "Mortgage File" (without regard
to the parenthetical), and any other Specially Designated Mortgage Loan
Documents, have been received by it or a Custodian on its behalf; (ii) if such
report is due more than 180 days after the Closing Date, the recordation/filing
contemplated by Section 2.01(e) has been completed (based solely on receipt by
the Trustee of the particular recorded/filed documents or an appropriate receipt
of recording/filing therefor); (iii) 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.
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 earliest 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).
(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. 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 (i) through
(v), clause (vii) and, in the case of any Mortgage Loan secured by a Mortgage on
a hospitality property, clause (viii) of the definition of "Mortgage File" and
any other Specially Designated Mortgage Loan Documents, 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 and the Column
Performance Guarantor; the Purchase Price Security
Deposit Account and the Special Reserve Account
(a) If any party hereto discovers, 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, the
related Mortgage Loan Seller and the Column Performance Guarantor (if a Column
Mortgage Loan is involved).
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 becoming aware of any Material Document Defect
or Material Breach with respect to any Mortgage Loan, the applicable Master
Servicer shall (and the applicable Special Servicer may) notify the related
Mortgage Loan Seller and, if the affected Mortgage Loan is a Column Mortgage
Loan, the Column Performance Guarantor, in writing of such Material Document
Defect or Material Breach, as the case may be, and direct the related Mortgage
Loan Seller and, if the affected Mortgage Loan is a Column Mortgage Loan, the
Column Performance Guarantor, that it or they, as the case may be, must, not
later than 90 days (or, in the case of a Material Document Defect that consists
of the failure to deliver a Specially Designated Mortgage Loan Document with
respect to any Mortgage Loan, 15 days) from the receipt by the related Mortgage
Loan Seller and, if the affected Mortgage Loan is a Column Mortgage Loan, the
Column Performance Guarantor, of such notice (or any earlier discovery by the
related Mortgage Loan Seller of the subject Material Document Defect or Material
Breach, as the case may be) (such 90-day (or, if applicable, 15-day) period, the
"Initial Resolution Period"), correct or cure such Material Document Defect or
Material Breach, as the case may be, in all material respects or, subject to the
next paragraph and Section 2.03(d) below, repurchase the affected Mortgage Loan
(as, if and to the extent required by the related Mortgage Loan Purchase
Agreement or the Column Performance Guarantee, as applicable), at the applicable
Purchase Price; provided that if the related Mortgage Loan Seller or,
alternatively, if the affected Mortgage Loan is a Column Mortgage Loan, the
Column Performance Guarantor, 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, was a
"qualified mortgage" within the meaning of Section 860G(a)(3) of the Code, (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 the related Mortgage Loan Seller or, alternatively, if the affected
Mortgage Loan is a Column Mortgage Loan, the Column Performance Guarantor, has
commenced and is diligently proceeding with the cure of such Material Document
Defect or Material Breach, as the case may be, within the applicable Initial
Resolution Period, (iv) what actions the related Mortgage Loan Seller or,
alternatively, if the affected Mortgage Loan is a Column Mortgage Loan, the
Column Performance Guarantor, is pursuing in connection with the cure of such
Material Document Defect or Material Breach, as the case may be, and (v) that
the related Mortgage Loan Seller or, alternatively, if the affected Mortgage
Loan is a Column Mortgage Loan, the Column Performance Guarantor, anticipates
that such Material Document Defect or Material Breach, as the case may be, will
be cured within an additional period equal to any such applicable 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 the related Mortgage Loan Seller
and, if the affected Mortgage Loan is a Column Mortgage Loan, the Column
Performance Guarantor, 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 effecting any such
repurchase (but, in any event, no later than such repurchase would have to have
been completed), the related Mortgage Loan Seller and, if the affected Mortgage
Loan is a Column Mortgage Loan, the Column Performance Guarantor, shall be
permitted, during the three-month period following the Closing Date (or during
the two-year period following the Closing Date 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 such 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.
Notwithstanding the foregoing, if there exists a Breach of any
representation or warranty on the part of a Mortgage Loan Seller set forth in,
or made pursuant to, Section 4(b) or 4(d) of the related Mortgage Loan Purchase
Agreement that the Mortgage Loan Documents or any particular Mortgage Loan
Document requires the related Borrower to bear the costs and expenses associated
with any particular action or matter under such Mortgage Loan Document(s), then
the applicable Master Servicer shall (and the applicable Special Servicer may)
direct the related Mortgage Loan Seller in writing to wire transfer to the
Collection Account, within 90 days of such Mortgage Loan Seller's receipt of
such direction, the amount of any such costs and expenses borne by the Trust
that are the basis of such Breach and have not been reimbursed by the related
Borrower; provided, however, that in the event any such costs and expenses
exceed $10,000, the related Mortgage Loan Seller shall have the option to
repurchase such Mortgage Loan at the applicable Purchase Price, substitute for
such Mortgage Loan (subject to the criteria for substitution) and pay the
applicable Substitution Shortfall Amount or pay such costs and expenses. Except
as provided in the proviso to the immediately preceding sentence, the related
Mortgage Loan Seller shall remit the amount of such costs and expenses and upon
its making such deposit, the related Mortgage Loan Seller shall be deemed to
have cured such Breach in all respects. Provided such payment is made, this
paragraph describes the sole remedy available to the Certificateholders and the
Trustee on their behalf regarding any such Breach, regardless of whether it
constitutes a Material Breach, and neither the related Mortgage Loan Seller nor,
if the affected Mortgage Loan is a Column Mortgage Loan, the Column Performance
Guarantor, shall be obligated to repurchase or otherwise cure such Breach under
any circumstances. Amounts deposited in the Collection Account pursuant to this
paragraph shall constitute "Liquidation Proceeds" for all purposes of this
Agreement (other than Section 3.11(c)).
"Resolution Extension Period" shall mean:
(i) for purposes of remediating a Material Breach with respect to
any Mortgage Loan, 90 days;
(ii) for purposes of remediating a Material Document Defect with
respect to any Mortgage Loan that is and remains a Performing Mortgage
Loan throughout the applicable Initial Resolution Period, the period
commencing at the end of the applicable Initial Resolution Period and
ending on, and including, the earlier of (A) the 90th day following the
end of such Initial Resolution Period and (B) the 45th day following the
related Mortgage Loan Seller's receipt of written notice from the Trustee,
the applicable Master Servicer or the applicable Special Servicer of the
occurrence of any Servicing Transfer Event with respect to such Mortgage
Loan subsequent to the end of such Initial Resolution Period;
(iii) for purposes of remediating a Material Document Defect with
respect to any Mortgage Loan that is a Performing Mortgage Loan as of the
commencement of the applicable Initial Resolution Period, but as to which
a Servicing Transfer Event occurs during such Initial Resolution Period,
the period commencing at the end of the applicable Initial Resolution
Period and ending on, and including, the 90th day following the earlier of
(A) the end of such Initial Resolution Period and (B) the related Mortgage
Loan Seller's receipt of written notice from the Trustee, the applicable
Master Servicer or the applicable Special Servicer of the occurrence of
such Servicing Transfer Event; and
(iv) for purposes of remediating a Material Document Defect with
respect to any Mortgage Loan that is a Specially Serviced Mortgage Loan as
of the commencement of the applicable Initial Resolution Period, zero
(-0-) days, except that, if the related Mortgage Loan Seller did not
receive written notice from the Trustee, the applicable Master Servicer or
the applicable Special Servicer of the relevant Servicing Transfer Event
as of the commencement of the applicable Initial Resolution Period, then
such Servicing Transfer Event will be deemed to have occurred during such
Initial Resolution Period and clause (iii) of this definition will be
deemed to apply;
provided that, except as otherwise set forth in the following two provisos,
there shall be no Resolution Extension Period in respect of a Material Document
Defect involving a Specially Designated Mortgage Loan Document for any Mortgage
Loan; and provided, further, that if a Material Document Defect exists with
respect to any Mortgage Loan, and if the related Mortgage Loan Seller or the
Column Performance Guarantor, as the case may be, escrows with the applicable
Master Servicer, prior to the end of the Initial Resolution Period and any
Resolution Extension Period otherwise applicable to the remediation of such
Material Document Defect without regard to this proviso, cash in the amount of
the then Purchase Price for such Mortgage Loan and subsequently delivers to the
applicable Master Servicer, on a monthly basis, such additional cash as may be
necessary to maintain a total escrow equal to the Purchase Price for such
Mortgage Loan as such amount may increase over time (the total amount of cash
delivered to the Master Servicer with respect to any Mortgage Loan as
contemplated by this proviso or the immediately following proviso, the "Purchase
Price Security Deposit"), then the Resolution Extension Period applicable to the
remediation of such Material Document Defect shall be extended until the
earliest of (i) the second anniversary of the Closing Date, (ii) the date on
which such Mortgage Loan is no longer outstanding and part of the Trust Fund and
(iii) if such Mortgage Loan becomes a Specially Serviced Mortgage Loan, and if
the applicable Special Servicer determines in its reasonable judgment that such
Material Document Defect will materially interfere with or delay the realization
against the related Mortgaged Property or materially increase the cost thereof,
the 30th day following the related Mortgage Loan Seller's receipt of written
notice from the applicable Special Servicer of the occurrence of the related
Servicing Transfer Event and of such determination; and provided, further, that
if the Material Document Defect referred to in the preceding proviso consists of
a failure to deliver a Specially Designated Mortgage Loan Document with respect
to a Mortgage Loan, and if the related Mortgage Loan Seller or the Column
Performance Guarantor, as the case may be, delivers to the applicable Master
Servicer a Purchase Price Security Deposit equal to 25% of the outstanding
principal balance of the subject Mortgage Loan, then the Resolution Extension
Period applicable to the remediation of such Material Document Defect shall be
extended to the 15th day following the end of the applicable Initial Resolution
Period.
The applicable Master Servicer shall establish, and maintain any
Purchase Price Security Deposit delivered to it with respect to any Mortgage
Loan in, one or more accounts (individually and collectively, a "Purchase Price
Security Deposit Account"), each of which shall be an Eligible Account, and
shall be entitled to make withdrawals from the Purchase Price Security Deposit
for any Mortgage Loan maintained in such account(s) for the following purposes:
(i) to cover any costs and expenses resulting from the applicable Material
Document Defect; (ii) upon any discounted payoff or other liquidation of such
Mortgage Loan, to cover any Realized Loss related thereto; and (iii) if the
related Mortgage Loan Seller (or, if it is the party that delivered the subject
Purchase Price Security Deposit, the Column Performance Guarantor) so directs,
or if the balance on deposit in such Purchase Price Security Deposit Account
declines, and for 45 days remains, below the Purchase Price for such Mortgage
Loan (except where a Purchase Price Security Deposit equal to 25% of the
outstanding principal balance of the subject Mortgage Loan is permitted to be
delivered in order to obtain a 15-day Resolution Extension Period with respect
to the failure to deliver a Specially Designated Mortgage Loan Document), or if
such Material Document Defect is not remedied on or before the second
anniversary of the Closing Date, or if such Mortgage Loan becomes a Specially
Serviced Mortgage Loan and the applicable Special Servicer determines, in its
reasonable judgment that such Material Document Defect will materially interfere
with or delay the realization against the related Mortgaged Property or
materially increase the cost thereof and the related Mortgage Loan Seller has
received 30 days' prior written notice from the applicable Special Servicer of
the occurrence of the related Servicing Transfer Event and of such
determination, to apply the Purchase Price Security Deposit to a full or
partial, as applicable, payment of the Purchase Price for such Mortgage Loan.
Any amounts withdrawn by the applicable Master Servicer from the Purchase Price
Security Deposit Account for any Mortgage Loan shall be deposited by the
applicable Master Servicer into its Collection Account. Any withdrawals from a
Purchase Price Security Deposit Account shall be deemed to be "Liquidation
Proceeds" for the purposes of this Agreement (other than Section 3.11(c)). Any
Purchase Price Security Deposit Account, and any Purchase Price Security
Deposit, shall (a) be part of the Trust Fund but outside either Trust REMIC or
the Grantor Trust and (b) be an "outside reserve fund" within the meaning of the
REMIC Provisions, beneficially owned by the related Mortgage Loan Seller or the
Column Performance Guarantor, as applicable, for federal income tax purposes,
which shall be taxable on all reinvestment income, if any, thereon. The
investment of funds in the Purchase Price Security Deposit Accounts shall be
governed by the terms of the respective Mortgage Loan Purchase Agreements. The
related Mortgage Loan Seller (or, if it is the party that delivered such amount,
the Column Performance Guarantor) may obtain a release of the Purchase Price
Security Deposit for any Mortgage Loan (net of any amounts payable therefrom as
contemplated by the first sentence of this paragraph) upon such Mortgage Loan's
being paid in full or otherwise satisfied, liquidated or removed from the Trust
Fund or upon the subject Material Document Defect's being remedied in all
material respects. Any such repurchase or replacement of a Mortgage Loan shall
be on a whole loan, servicing released basis.
If one or more (but not all) of the Mortgage Loans constituting a
Cross-Collateralized Group are to be repurchased or replaced by a Mortgage Loan
Seller or the Column Performance Guarantor, as contemplated by this Section
2.03, then, prior to the subject repurchase or substitution, the applicable
Master 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 and until the related Mortgage Loan Seller or the
Column Performance Guarantor, as applicable, delivers to the Trustee and the
applicable Master Servicer (i) an Opinion of Counsel addressed to the Trustee
and the 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 or Lower-Tier REMIC or an Adverse Grantor Trust Event with
respect to the Grantor Trust, (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 (iii) written consent from the
Controlling Class Representative (which consent may be given or withheld in its
sole discretion); and provided, further, that the related Mortgage Loan Seller
or the Column Performance Guarantor, as applicable, may, at its option,
repurchase or replace the entire Cross-Collateralized Group without termination
of the cross-collateralization. If any Mortgage Loan Seller or the Column
Performance Guarantor repurchases one or more (but not all) of the Mortgage
Loans constituting a Cross-Collateralized Group as contemplated in this
paragraph, in addition to the satisfaction of the delivery of the items set
forth in the immediately preceding sentence, the Crossed Mortgage Loan
Repurchase Criteria shall have been satisfied. To the extent necessary and
appropriate, the Trustee shall execute (or, subject to Section 3.10, provide the
applicable Master Servicer with a limited power of attorney that enables the
applicable Master Servicer to execute) the loan documentation referred to in the
second preceding sentence; provided that the Trustee shall not be liable for any
misuse of any such power of attorney by the applicable Master 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 prior paragraph for
any reason (including, but not limited to, the failure of the related Mortgage
Loan Seller or the Column Performance Guarantor, as the case may be, to satisfy
any of the conditions set forth in the first proviso to the first sentence of
the prior paragraph), and if the related Mortgage Loan Seller or the Column
Performance Guarantor, as the case may be, has not elected to purchase the
entire affected Cross-Collateralized Group, then the affected
Cross-Collateralized Group will be treated as a single Mortgage Loan for
purposes of (i) determining whether the subject Breach or Document Defect is a
Material Breach or a Material Document Defect, as the case may be, and (ii)
applying remedies, including repurchase and substitution.
Whenever one or more mortgage loans are substituted for a Defective
Mortgage Loan by a Mortgage Loan Seller or the Column Performance Guarantor, as
contemplated by this Section 2.03, the applicable Master Servicer shall direct
the party effecting the substitution to deliver the related Mortgage File to the
Trustee, to certify that such substitute mortgage loan satisfies or such
substitute 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 March 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 Mortgage
Loan Seller or the Column Performance Guarantor, as contemplated by this Section
2.03, the applicable Master Servicer shall direct such Mortgage Loan Seller or
the Column Performance Guarantor, as the case may be, 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
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.
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 Mortgage Loan Seller or the Column Performance Guarantor or
reimbursed from a Purchase Price Security Deposit Account or a Special Reserve
Account or under a Recording Omission Credit.
(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 Mortgage Loan Seller or the Column
Performance Guarantor, as contemplated by this Section 2.03, has been deposited
in the 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 Mortgage Loan Seller or
the Column Performance Guarantor, 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 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
Mortgage Loan Seller or the Column Performance Guarantor or reimbursed from a
Purchase Price Security Deposit Account or a Special Reserve Account or under a
Recording Omission Credit, shall be reimbursable to each of them as Servicing
Advances in respect of the affected Mortgage Loan.
(d) If, on or after September 13, 2004, any Mortgage Loan Seller or
the Column Performance Guarantor receives notice of a Material Document Defect
with respect to any of its Mortgage Loans, which Material Document Defect
constitutes a Recording Omission, then such Mortgage Loan Seller or the Column
Performance Guarantor, as the case may be, may, with the written consent of the
Controlling Class Representative, which consent may be granted or withheld in
its sole discretion, and written confirmation from each Rating Agency that the
following arrangement will not result in an Adverse Rating Event with respect to
any Class of Rated Certificates, in lieu of repurchasing or replacing such
Mortgage Loan (as and to the extent contemplated by Section 2.03(b) above), but
in no event later than such repurchase would have to have been completed,
establish a Recording Omission Credit or a Recording Omission Reserve with the
applicable Master Servicer; provided that if such Mortgage Loan Seller or the
Column Performance Guarantor, as the case may be, has already established a
Purchase Price Security Deposit with respect to such Mortgage Loan in accordance
with Section 2.03(b) due to a Material Document Defect, which constitutes a
Recording Omission, the outstanding balance of such Purchase Price Security
Deposit (when, if applicable, combined with an additional amount being tendered
by such Mortgage Loan Seller or the Column Performance Guarantor) is not less
than the amount of the required Recording Omission Reserve and the establishment
of a Recording Omission Reserve will not result in an Adverse Rating event with
respect to any Class of Rated Certificates, then the existing Purchase Price
Security Deposit (when, if applicable, combined with an additional amount being
tendered by such Mortgage Loan Seller or the Column Performance Guarantor) shall
constitute the establishment of a Recording Omission Reserve with respect to
such Mortgage Loan for purposes of this Section 2.03(d). In furtherance of the
preceding sentence, (A) the applicable Master Servicer shall establish one or
more accounts (collectively, the "Special Reserve Account") with respect to the
subject Mortgage Loan, each of which shall be an Eligible Account; (B) the
applicable Master Servicer shall deposit any Recording Omission Reserve into the
Special Reserve Account within one Business Day after receipt; and (C) the
applicable Master Servicer shall administer the Special Reserve Account in
accordance with the terms of the related Mortgage Loan Purchase Agreement. In
the event that such Master Servicer is entitled to apply any related Recording
Omission Reserve or to draw upon any related Recording Omission Credit to cover
losses or expenses directly incurred by the Trust as a result of a Recording
Omission with respect to any Mortgage Loan, then prior to making a Servicing
Advance or incurring an Additional Trust Fund Expense to cover any losses or
expenses directly resulting from such Recording Omission, such Master Servicer
shall draw upon such related Recording Omission Reserve (out of the Special
Reserve Account) or upon such related Recording Omission Credit, as the case may
be, up to the amount of such losses or expenses, and shall deposit the funds
from such draw into the Collection Account, and such amounts shall be deemed to
be "Liquidation Proceeds" for all purposes of this Agreement (other than Section
3.11(c)) and shall be applied to cover such losses or expenses. The Recording
Omission Reserve or Recording Omission Credit (or any unused balance thereof)
delivered by any Mortgage Loan Seller or the Column Performance Guarantor with
respect to any Mortgage Loan shall be released to such Mortgage Loan Seller or
the Column Performance Guarantor, as the case may be, by the applicable Master
Servicer upon the earlier of (i) the curing of all Recording Omissions with
respect to such Mortgage Loan and (ii) the removal of such Mortgage Loan from
the Trust Fund. The Special Reserve Account, and any Recording Omission Reserves
and Recording Omission Credits, shall (a) be part of the Trust Fund but outside
either Trust REMIC or the Grantor Trust and (b) be an "outside reserve fund"
within the meaning of the REMIC Provisions, beneficially owned by the related
Mortgage Loan Seller or the Column Performance Guarantor, as applicable, for
federal income tax purposes, which shall be taxable on all reinvestment income,
if any, thereon. The investment of funds in the Special Reserve Account shall be
governed by the terms of the respective Mortgage Loan Purchase Agreements.
(e) If the Mortgage Loan Seller disputes that a Material Document
Defect or Material Breach exists with respect to a Mortgage Loan or otherwise
refuses (i) to effect a correction or cure of such Material Document Defect or
Material Breach, (ii) to repurchase the affected Mortgage Loan from the Trust or
(iii) to replace such Mortgage Loan with a Qualifying Substitute Mortgage Loan,
each in accordance with the related Mortgage Loan Purchase Agreement, then
provided that (i) at least the applicable Initial Resolution Period has expired
and (ii) the Mortgage Loan is then in default and is then a Specially Serviced
Mortgage Loan, the applicable Special Servicer may, subject to the Servicing
Standard, modify, work-out or foreclose, sell or otherwise liquidate (or permit
the liquidation of) the Mortgage Loan pursuant to the terms of this Agreement,
while pursuing the repurchase claim, and such action shall not be a defense to
the repurchase claim or alter the applicable Purchase Price (it being understood
and agreed that the foregoing is not intended to otherwise delay the actions of
the applicable Special Servicer with respect to a Specially Serviced Mortgage
Loan).
The related Mortgage Loan Seller shall be notified promptly and in
writing by the applicable Special Servicer of any offer that it receives to
purchase an REO Property as to which there is any alleged Material Document
Defect or Material Breach. Upon the receipt of such notice by the related
Mortgage Loan Seller, the related Mortgage Loan Seller shall then have the right
to repurchase such REO Property from the Trust at a purchase price equal to the
amount of such offer. The related Mortgage Loan Seller shall have three (3)
Business Days to purchase such REO Property from the date that it was notified
of such offer. The applicable Special Servicer shall be obligated to provide the
related Mortgage Loan Seller with the most recent appraisal or other third-party
reports relating to such REO Property within its possession to enable the
related Mortgage Loan Seller to evaluate such REO Property. Any sale of a
Mortgage Loan, or foreclosure upon such Mortgage Loan and sale of an REO
Property, to a Person other than the related Mortgage Loan Seller shall be (i)
without recourse of any kind (either expressed or implied) by such Person
against the related Mortgage Loan Seller or, if applicable, the Column
Performance Guarantor and (ii) without representation or warranty of any kind
(either expressed or implied) by the related Mortgage Loan Seller or, if
applicable, the Column Performance Guarantor to or for the benefit of such
person.
The fact that a Material Document Defect or Material Breach is not
discovered until after foreclosure (but in all instances prior to the sale of
the subject Mortgage Loan or REO Property) shall not prejudice any claim against
the related Mortgage Loan Seller for repurchase of the subject Mortgage Loan or
REO Property. The provisions of this Section 2.03 regarding remedies against the
related Mortgage Loan Seller for a Material Breach or Material Document Defect
with respect to any Mortgage Loan shall also apply to the related REO Property.
If the related Mortgage Loan Seller fails to correct or cure the
Material Document Defect or Material Breach or purchase the REO Property, then
the provisions above regarding notice of offers related to such REO Property and
the related Mortgage Loan Seller's right to purchase such REO Property shall
apply. If a court of competent jurisdiction issues a final order that the
related Mortgage Loan Seller is or was obligated to repurchase the related
Mortgage Loan or REO Property or the related Mortgage Loan Seller otherwise
accepts liability, then, after the expiration of any applicable appeal period,
but in no event later than the termination of the Trust pursuant to this
Agreement, the related Mortgage Loan Seller will be obligated to pay to the
Trust the amount, if any, by which the applicable Purchase Price exceeds any
Liquidation Proceeds received upon such liquidation (including those arising
from any sale to the related Mortgage Loan Seller); provided that the prevailing
party in such action shall be entitled to recover all costs, fees and expenses
(including reasonable attorneys' fees) related thereto.
(f) The related Mortgage Loan Purchase Agreement and, in the case of
Column Mortgage Loans, the Column Performance Guarantee, provide the sole
remedies available to the Certificateholders, or the Trustee on their behalf,
respecting any Breach or Document Defect. If, in connection with any unremedied
Material Breach or Material Document Defect, a Mortgage Loan Seller (or, in the
case of a Column Mortgage Loan, each of Column and the Column Performance
Guarantor) defaults on its obligations to repurchase or replace, to post cash or
a letter of credit with respect to, or to reimburse the Trust for certain costs
and expenses relating to, any Mortgage Loan as contemplated by this Section
2.03, the applicable Master Servicer shall (and the applicable Special Servicer
may) promptly notify the Trustee, and the Trustee shall notify the
Certificateholders. Thereafter, the applicable Master Servicer shall (and the
applicable Special Servicer may) 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 shall
(and the applicable Special Servicer may) 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(f), including, reasonable attorney's fees and expenses, to the extent not
collected from the related Mortgage Loan Seller or the Column Performance
Guarantor or reimbursed from a Purchase Price Security Deposit Account or a
Special Reserve Account or under a Recording Omission Credit, shall constitute
Servicing Advances in respect of the affected Mortgage Loan.
(g) If the applicable Mortgage Loan Seller or the Column Performance
Guarantor (in the case of a Column Mortgage Loan), incurs any expense in
connection with the curing of any Breach which also constitutes a default under
the related Mortgage Loan, such Mortgage Loan Seller or the Column Performance
Guarantor, as the case may be, shall have a right, and shall be subrogated to
the rights of the Trustee, as the holder of such Mortgage Loan, to recover the
amount of such expenses from the related Borrower; provided, however, that the
rights of such Mortgage Loan Seller or the Column Performance Guarantor, as the
case may be, pursuant to this Section 2.03(g) 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 if and to the extent that such expenses
of such Mortgage Loan Seller or the Column Performance Guarantor, as the case
may be, in connection with such Mortgage Loan exceed five percent of the then
outstanding principal balance of such Mortgage Loan, then its rights to
reimbursement pursuant to this Section 2.03(g) with respect to such Mortgage
Loan and such excess expenses shall not 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). 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 Mortgage Loan Seller or the Column Performance
Guarantor, as the case may be; 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, so long as 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 its actions to collect such amounts
will not impair the applicable Master Servicer's and/or the applicable Special
Servicer's collection and recovery of principal, interest and other sums due
with respect to the related Mortgage Loan and, if applicable, B Loan, which
would otherwise be payable to the Trust, the applicable Master Servicer, the
applicable Special Servicer, the Trustee or the Certificateholders and, if
applicable, the B Loan Holder, pursuant to the terms of this Agreement,
provided, that in no event will the failure of Borrower to pay such reimbursable
amounts result in the Borrower being called in default under the Mortgage Loan,
either the applicable Master Servicer or the applicable Special Servicer
accelerating the Mortgage Loan or taking any enforcement action beyond making
demand for such reimbursable amount but, provided, further, in the event of the
applicable Special Servicer otherwise commencing enforcement action with respect
to a default other than the Borrower's failure to pay such reimbursable amounts,
the applicable Special Servicer may include such reimbursable amounts in the
amount sought from the Borrower in such enforcement action but payment of any
such reimbursable amounts shall be subordinate to the payment of all other sums
owed by the Borrower under the Mortgage Loan and payable to the Trust, the
Master Servicers, the Special Servicers or the Trustee. Any amounts reimbursed
to a Mortgage Loan Seller or the Column Performance Guarantor from either Trust
REMIC with respect to any amounts paid from the Purchase Price Security Deposit
Account, Special Reserve Account or any Recording Omission Reserve or Recording
Omission Credits shall be treated as distributions from such Trust REMIC to such
Mortgage Loan Seller or the Column Performance Guarantor, as applicable, as
beneficial owners of such Purchase Price Security Deposit Account, Special
Reserve Account, Recording Omission Reserve or Recording Omission Credit, as
applicable.
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
Delaware, and the General Master Servicer 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 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 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 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 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 the
outcome of which, in the General Master Servicer's reasonable judgment,
would prohibit the General Master Servicer from entering into this
Agreement or that, in the General Master Servicer's 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 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 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 by which it is
bound, which default or breach, in the 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 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 the outcome of which, in the General Special Servicer's
reasonable judgment, would prohibit the Special Servicer from entering
into this Agreement or that, in the General Special Servicer's 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 Co-op Master
Servicer.
(a) The Co-op 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 Co-op Master Servicer is a federal savings bank duly
organized, validly existing and in good standing under the laws of the
United States, and the Co-op 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 Co-op Mortgage
Loan and to perform its obligations under this Agreement.
(ii) The Co-op Master Servicer's execution and delivery of,
performance under and compliance with this Agreement, will not violate the
Co-op 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 Co-op Master Servicer, is likely to affect materially and
adversely either the ability of the Co-op Master Servicer to perform its
obligations under this Agreement or the financial condition of the Co-op
Master Servicer.
(iii) The Co-op Master Servicer has the full power and authority to
enter into and consummate all transactions involving the Co-op 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 Co-op Master Servicer, enforceable against
the Co-op 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 Co-op 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 Co-op Master Servicer's good faith and reasonable
judgment, is likely to affect materially and adversely either the ability
of the Co-op Master Servicer to perform its obligations under this
Agreement or the financial condition of the Co-op 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 Co-op 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 Co-op Master Servicer to perform its obligations
under this Agreement.
(vii) No litigation is pending or, to the best of the Co-op Master
Servicer's knowledge, threatened against the Co-op Master Servicer that,
if determined adversely to the Co-op Master Servicer, would prohibit the
Co-op Master Servicer from entering into this Agreement or that, in the
Co-op Master Servicer's good faith and reasonable judgment, is likely to
materially and adversely affect either the ability of the Co-op Master
Servicer to perform its obligations under this Agreement or the financial
condition of the Co-op Master Servicer.
(viii) The Co-op 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 Co-op Master Servicer is not a
party to any Sub-Servicing Agreement providing for the performance of
duties of the Co-op Master Servicer by any Sub-Servicer with respect to
the Co-op Mortgage Loans.
(b) The representations and warranties of the Co-op 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 Co-op 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 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 and in exchange therefor, the
Trustee acknowledges the issuance of the Uncertificated Lower-Tier Interests to
the Depositor and the Class LR and Class V Certificates to or upon the order of
the Depositor, in exchange for the Mortgage Loans, receipt of which is hereby
acknowledged, 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 and (ii) 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
(a) 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 constitute a Grantor Trust for federal income
tax purposes and, further, that such segregated pool of assets be designated as
the "Grantor Trust." The Trustee, by its execution and delivery hereof,
acknowledges the assignment to it of the assets 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 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 Grantor Trust. 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 Administration of the Mortgage Loans
(a) The General Master Servicer shall be the Master 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 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 Co-op Trust Assets) as constitute Specially Serviced Mortgage
Loans and REO Properties. The Co-op Master Servicer shall be the Master 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
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 Co-op 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 (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 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 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 agent.
(d) In the event that there shall occur an A/B Material Default with
respect to any 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 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 Loan, all references herein to "Specially
Serviced Loan"), other than provisions pertaining to the making of Advances,
shall include a 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 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, 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 interest on advances or
inspection costs 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 without 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.
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 (the "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 Co-op Master Servicer shall maintain the
Servicing Accounts with respect to the Co-op 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.
Withdrawals of amounts so collected in respect of any Mortgage Loan (and
interest earned thereon) from a Servicing Account may be made only: (i) to
effect 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 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 the applicable 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 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 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
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 Co-op Mortgage Loans), and the Co-op Master
Servicer shall maintain the Reserve Accounts with respect to the Co-op Mortgage
Loans. As and to the extent consistent with the Servicing Standard 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, 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 or such Letter of Credit was delivered and, in the case of a Reserve
Account constituting debt service reserve accounts, to apply amounts on deposit
therein in respect of principal and interest on the related Mortgage Loan. In
addition, as and to the extent consistent with the Servicing Standard and the
related Mortgage Loan Documents, each Master Servicer may make withdrawals of
amounts so deposited, and draws under any Letter of Credit so delivered, to
prepay the Mortgage Loan in the event certain leasing or other economic criteria
are not satisfied at the related Mortgaged Property (but only if such prepayment
is required by the related Mortgage Loan Documents or continuing to hold such
funds or Letter of Credit as Additional Collateral is not consistent with the
Servicing Standard), to pay amounts due and owing under the Mortgage Loan
following an event of default, or to release such amounts to the related
Borrower or otherwise apply such amounts for any other appropriate purpose in
the event that such criteria are satisfied, and each Master Servicer may return
any Letter of Credit so delivered to the related Borrower; provided that,
notwithstanding the foregoing, such Master Servicer shall not 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 fifteen (15) 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)).
Subject to the terms of the related Mortgage Loan Documents, each Reserve
Account shall be an Eligible Account. Interest and other income, if any, earned
on funds on deposit in any Reserve Account held by the applicable Master
Servicer (to the extent of any Net Investment Earnings with respect to such
Reserve Account for any Collection Period), shall be for the benefit of and
payable to such Master Servicer, unless otherwise required to be paid to the
related Borrower by law or the terms of the related Mortgage Loan. 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. Any
out-of-pocket expenses incurred by the applicable Master Servicer to enable such
Master Servicer to make any draw under any Letter of Credit shall constitute a
Servicing Advance, and such Master Servicer 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 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 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 and the Controlling Class Representative. 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 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 Master Servicer 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) 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 (other than in respect of
scheduled payments of principal and interest due and payable on the Mortgage
Loans on or before their respective Due Dates in March 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,
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, 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;
(iv) all Insurance Proceeds, Condemnation Proceeds and Liquidation
Proceeds received in respect of the Mortgage Loans;
(v) any amounts required to be deposited by such Master Servicer
pursuant to Section 3.06 in connection with losses incurred with respect
to Permitted Investments of funds held in the Collection Account;
(vi) any amounts required to be deposited by the Master Servicer or
the Special Servicer pursuant to Section 3.07(b) in connection with losses
resulting from a deductible clause in a blanket or master force placed
hazard insurance policy;
(vii) any amounts required to be transferred from any REO Account
pursuant to Section 3.16(c) or from an A/B Loan Pair Custodial Account
pursuant to Section 3.04(f);
(viii) insofar as they do not constitute Escrow Payments, 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;
(ix) any amounts received pursuant to Section 3.18 in connection
with the liquidation of a Defective Mortgage Loan or pursuant to Section
3.09 in connection with the liquidation of a Defaulted Mortgage Loan;
(x) 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;
(xi) 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
(xii) any amounts paid by the B Loan 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.
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
(iv) and (viii) 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 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. In addition, each
Master Servicer shall, as and when required hereunder, deliver to the Trustee
for deposit in the Lower-Tier 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 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. 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 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. If the Trustee shall deposit in the
Lower-Tier Distribution Account any amount not required to be deposited therein,
it may at any time withdraw such amount from the Lower-Tier Distribution
Account, 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.
(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 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.
(e) Funds in a Collection Account, the Upper-Tier Distribution
Account, the Lower-Tier Distribution Account, the Interest Reserve Account and
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 the Collection Account
prior to any change thereof. The Upper-Tier Distribution Account, Lower-Tier
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, Interest Reserve Account and Excess Liquidation
Proceeds Account prior to any change thereof.
(f) If (i) any A/B Material Default occurs and is continuing (and,
as a result, the related B Loan is being serviced hereunder) or (ii) the
Mortgaged Property securing any A/B Loan Pair has become REO Property, 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 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; and
(v) any amounts required to be transferred from the REO Account
pursuant to Section 3.16(c); and
(vi) 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.
Within one Business Day of receipt of any of the amounts described
in the second preceding paragraph with respect to any Specially Serviced Loan
that is part of an 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 is being serviced hereunder, or if the Mortgaged
Property securing any 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 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 all amounts to which each
of them is entitled in respect of the subject A Loan and B 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 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 will 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 "[name of Trustee], as Trustee, in trust for the
registered holders of Credit Suisse First Boston Mortgage Securities Corp.,
Commercial Mortgage Pass Through Certificates, Series 2003-CPN1, Distribution
Account, Interest Reserve Account and Excess Liquidation Proceeds Account."
Section 3.05 Permitted Withdrawals From the Collection Account, 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 the applicable Collection Account for any of the following purposes (the
order set forth below not constituting an order of priority for such
withdrawals):
(i) to remit to the Trustee for deposit in the Lower-Tier
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 B Loan 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 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 (vii) 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 and/or Workout
Fees);
(iii) to pay to 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
collections of interest thereon or with respect thereto;
(iv) to pay the applicable Special Servicer, out of general
collections on the Mortgage Loans in, and any REO Properties relating to,
earned and unpaid Special Servicing Fees in respect of each related
Specially Serviced Mortgage Loan and related REO Mortgage Loan, but only
if and to the extent that such Special Servicing Fees relate to Mortgage
Loans and/or REO Properties as to which such Special Servicer is the
applicable Special Servicer;
(v) to pay the applicable Special Servicer (or, if applicable, any
predecessor thereto) earned and unpaid Workout Fees and Liquidation Fees
to which it is entitled pursuant to, and from the sources contemplated by,
the second and third paragraphs of 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;
(vi) 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), the applicable
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 (vi) with respect to any Servicing Advance (other
than Nonrecoverable Servicing Advances, which are reimbursable pursuant to
clause (vii) below) being limited to (A) payments made by 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;
(vii) (A) first, to reimburse itself, the applicable Special
Servicer, the Trustee or any Fiscal Agent, as applicable, out of general
collections on the Mortgage Loans and any REO Properties, for any
unreimbursed Advances made thereby that have been determined to be
Nonrecoverable Advances, and (B) second, 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, provided that the applicable Master Servicer
may reimburse itself in installments as it may choose in its sole
discretion;
(viii) to pay itself, the applicable Special Servicer, the Trustee
or any Fiscal Agent, as applicable, any Advance Interest then due and
owing to such Person, 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, as and to the extent contemplated by Section 3.26;
(ix) 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 pursuant to clause (ii), (vi) or (vii) above or
pursuant to Section 3.03(c), and insofar as payment has not already been
made, and the related Default Charges then on deposit in the Collection
Account are not sufficient to make such payment pursuant to clause (viii)
above, to pay itself, such Special Servicer, the Trustee or such Fiscal
Agent, as the case may be, out of general collections on the Mortgage
Loans and any REO Properties, any related Advance Interest accrued and
payable on the portion of such Advance so reimbursed or being reimbursed;
(x) to pay any outstanding expense, other than Advance Interest,
that was incurred with respect to any related Mortgage Loan or related REO
Property as to which such Master Servicer is the applicable Master
Servicer and that, if paid from a source other than Default Charges on
such Mortgage Loan or the related REO Mortgage Loan, as the case may be,
would constitute an Additional Trust Fund Expense, 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, that relates to such expense;
(xi) 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;
(xii) 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 in respect of such
Mortgage Loan or REO Property, as the case may be, and then, out of
general collections on other Mortgage Loans and any REO Properties;
(xiii) to pay, in accordance with Section 3.11(i), out of general
collections on the Mortgage Loans and any REO Properties relating thereto,
certain servicing expenses related to the Mortgage Loans and REO
Properties as to which such Master Servicer is the applicable Master
Servicer that would, if advanced, constitute Nonrecoverable Servicing
Advances;
(xiv) to pay, out of general collections on the Mortgage Loans and
any REO Properties, 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);
(xv) 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, out of
general collections on the Mortgage Loans and any REO Properties relating
thereto, 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;
(xvi) to pay, out of general collections on the Mortgage Loans and
any REO Properties relating thereto, 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;
(xvii) to pay to 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 any 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, a Mortgage Loan
Seller, a Certificateholder or any other particular Person, as the case
may be, with respect to each 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 thereon
subsequent to the date of purchase;
(xix) to pay amounts payable to any B Loan 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 B Loan Holder has been received, from such cure payment;
(xxi) to transfer Excess Liquidation Proceeds 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;
(xxiii) to pay, out of general collections, any and all federal,
state and local taxes imposed on either the Upper-Tier REMIC or Lower-Tier
REMIC;
(xxiv) to pay for the recording cost of this Agreement;
(xxv) to pay to the respective Mortgage Loan Sellers, amounts that
represent Monthly Payments due on the Mortgage Loans on or before their
respective Due Dates in March 2003 or, in the case of a Replacement
Mortgage Loan, on or before the date on which such loan was added to the
Trust Fund, if any, or in the case of a Deleted Mortgage Loan, amounts
collected or received by the Trust with respect to such Mortgage Loan
after the related date of replacement pursuant to Section 2.03(b);
(xxvi) to withdraw amounts deposited in such Collection Account in
error; and
(xxvii) to clear and terminate such Collection Account at the
termination of this Agreement pursuant to Section 9.01.
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 (xviii),
above, then the corresponding withdrawals from such Collection Account shall be
made in the following priority and subject to the following rules: (y) 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 (z) 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 (y)
above) such payment, reimbursement or remittance shall be made from the general
funds remaining 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 (vii) and (ix) shall be paid, pro rata,
prior to any other such payments, reimbursements or remittances; and provided,
further, that amounts payable pursuant to clause (xv) 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), (vi) and (vii) above, and
any payments of interest thereon out of a Collection Account pursuant to either
of clauses (viii) and (ix) 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 the applicable Special Servicer.
No party hereto shall be entitled to payment or reimbursement of any
amount from the Collection Account with respect to any A Loan or related REO
Property for which it can be reimbursed out of amounts then or thereafter on
deposit in the related A/B Loan Pair Custodial Account and, in the case of the B
Loans:
(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 (i), (ii), (iii), (iv), (v),
(vi), (vii), (viii), (ix), (xi) and (xiv) above, but only insofar as the payment
or reimbursement described therein arises from or is related solely to an A
Loan, is allocable to the related A Loan pursuant to this Agreement and is
allocable to the related B Note pursuant to the 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 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 is 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 to reimbursement of cure payments made by it).
Expenses incurred with respect to any B Loan 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
and B Loan 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 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 and
is permitted pursuant to the 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 to make such payment or
reimbursement to the extent the B Loan Holder is obligated to make such payment
or reimbursement pursuant to the A/B Intercreditor Agreement. If the B Loan
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 (including, if permitted by the
related A/B Intercreditor Agreement, by offset against subsequent amounts
payable to the B Loan Holder), 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 keep and maintain separate accounting
records, on a loan-by-loan and property-by-property basis when appropriate, in
connection with any withdrawal from its Collection Account pursuant to any of
clauses (ii) through (xxvi) above.
Each Master Servicer shall pay to the applicable Special Servicer
from its Collection Account amounts permitted to be paid to it therefrom
promptly upon receipt of a certificate of a Servicing Officer of the applicable
Special Servicer 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 for which it acts as 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 or be deemed to make
withdrawals from the Lower-Tier Distribution Account for each of the following
purposes (the order set forth below not constituting an order of priority for
such withdrawals):
(i) to make distributions or deemed distributions of the Lower-Tier
Distribution Amount pursuant to Section 4.01 and the amount of any
Prepayment Premium and Yield Maintenance Charges distributable pursuant to
Section 4.01(c) to the Upper-Tier Distribution Account;
(ii) to pay itself or any of its directors, officers, employees and
agents, as the case may be, any amounts payable or reimbursable to any
such Person pursuant to Section 8.05, including the Trustee's Fee;
(iii) to pay any Fiscal Agent or any of its directors, officers,
employees and agents, as the case may be, any amounts payable or
reimbursable to any such Person pursuant to Sections 8.05 and/or 8.13(a);
(iv) to pay for the cost of the Opinions of Counsel obtained by the
Trustee as contemplated by Section 11.01(a) or Section 11.01(c) in
connection with any amendment to this Agreement that is in furtherance of
the rights and interests of Certificateholders;
(v) to pay any and all federal, state and local taxes imposed the
Upper-Tier REMIC or Lower-Tier 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;
(vi) to transfer or be deemed 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); and
(vii) to clear and terminate 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 or be deemed to withdraw from the Interest Reserve
Account and deposit or be deemed to deposit in the Distribution Account all
Interest Reserve Amounts in respect of the Interest Reserve Mortgage Loans then
on deposit in the Interest Reserve Account.
(d) On the Business Day prior to each Distribution Date, the Trustee
shall withdraw or be deemed to withdraw from the Excess Liquidation Proceeds
Account and deposit or be deemed to 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
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 Distribution Account, for distribution on
such Distribution Date, any and all amounts then on deposit in the Excess
Liquidation Proceeds Account. 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 a
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 a Collection Account
or the Distribution Account pursuant to the express terms of this Agreement.
Section 3.06 Investment of Funds in the Collection Account,
Servicing Accounts, Reserve Accounts and the REO
Account
(a) Each Master Servicer may direct (pursuant to a standing order or
otherwise) any depositary 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 depositary institution maintaining an REO
Account and the Trustee may direct (pursuant to a standing order or otherwise)
any depositary institution maintaining the Distribution Account, the Interest
Reserve Account or the Excess Liquidation Proceeds Account, to invest, or if it
is such depositary institution, may itself invest, the funds held therein (each
such account, for purposes of this Section 3.06, an "Investment Account") 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, 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, its Servicing Accounts and its Reserve Accounts), each Special Servicer
(with respect to Permitted Investments of amounts in its REO Account) 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 or a Special Servicer 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 the Investment
Account.
(b) Whether or not a Master Servicer directs the investment of funds
in a 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 the 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 any 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, and if the applicable Master Servicer
(if such default is in respect of a Permitted Investment of funds in a
Collection Account or in any Reserve Account or Servicing Account) or the
applicable Special Servicer (if such default is in respect of a Permitted
Investment of funds in an REO Account), as applicable, is in default of its
obligations under Section 3.06(b), the Trustee may (and, subject to Section
8.02, upon the request of Holders of Certificates entitled to not less than 25%
of the Voting Rights allocated to any Class of Regular Certificates, 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 applicable Master Servicer if the default is in
respect of a Permitted Investment of funds in a Collection Account or in any
Reserve Account or Servicing Account or by the applicable Special Servicer if
the default is in respect of a Permitted Investment of funds in an REO Account.
This provision is in no way intended to limit any actions that each Master
Servicer or each 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 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 "A2" 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) 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 nonrecoverable
the applicable Master Servicer (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 (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 (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 "A2" 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 (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 (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 such 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 will be payable as a Servicing Advance), which does
not contain any carve-out 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 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), or (ii) such insurance is not
available at any rate.
(b) If a Master Servicer or a 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, that it is required to service and administer,
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 "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 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 appropriate,
shall, if there shall not have been maintained on the related Mortgaged Property
or REO Property a hazard insurance policy complying with the requirements of
Section 3.07(a), and there shall have been one or more losses that would have
been covered by such an individual policy, promptly deposit into the Collection
Account 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) Promptly after (but in no event more than 30 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, 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, 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. If
any other party hereto has actual knowledge of an Insured Environmental Event
with respect to any Mortgage Loan covered by an Environmental Insurance Policy
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 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 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 "A2" from Xxxxx'x, 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 "A2" from Xxxxx'x, 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, 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
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 determined,
in its reasonable judgment, that waiver of such restrictions would be in
accordance with the Servicing Standard; 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, under any related
"due-on-sale" clause or "due-on-encumbrance" clause (other than with respect to
a Co-op Mortgage Loan as to which the NCBFSB Subordinate Debt Conditions have
been satisfied) 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, if (but only if) with respect to a
"due-on-sale" clause, such "due-on-sale" clause involves any Mortgage Loan that,
individually or together with all other Mortgage Loans, if any, that are in the
same Cross-Collateralized Group as such Mortgage Loan, has a Cut-off Date
Principal Balance in excess of $15,000,000 or 5% of the Initial Pool Balance or,
with respect to the enforcement of a "due-on-encumbrance" clause, such Mortgage
Loan or group of Cross-Collateralized Mortgage Loans: (i) is greater than 2% of
the Mortgage Pool balance, (ii) has an original principal balance that is one of
the ten highest original principal balances in the Mortgage Pool, (iii) has an
aggregate debt service coverage ratio less than 1.20x or (iv) has an aggregate
loan-to-value ratio greater than 85%; and provided, further, that a Master
Servicer shall not waive any right it has, or grant any consent it is otherwise
entitled to withhold under any "due-on-sale" or "due-on-encumbrance" clause
under any Mortgage Loan for which it acts as Master Servicer until it has
received the consent of the applicable Special Servicer (the giving of which
consent shall be subject to Section 3.24; and provided, further, that, subject
to the related Mortgage Loan Documents and applicable law, neither such Master
Servicer nor such Special Servicer shall waive any right it has, or grant any
consent it is otherwise entitled to withhold, under any related "due-on-sale" or
"due-on-encumbrance" clause under any Mortgage Loan (other than with respect to
a Co-op Mortgage Loan as to which the NCBFSB Subordinate Debt Conditions have
been satisfied), 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 Special Servicer nor such Master 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.
The applicable Master Servicer and the applicable Special Servicer shall each
provide the other and the Controlling Class Representative with all such
information as each may reasonably request in order to make any determination
required under this paragraph.
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
Co-op 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 Co-op Master Servicer no later than ten 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,
calculation of the required loan-to-value ratio, a copy of any appraisal relied
on and any 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 Co-op 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 the
related Mortgage Loan Document or applicable law. 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. 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) and 3.24, 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, including pursuant to Section 3.20; 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 such 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 Master 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 Master 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 paid by, and reimbursable to, the applicable Master Servicer as a
Servicing Advance). The applicable Master Servicer shall not foreclose upon or
otherwise comparably convert, including by taking title thereto, any real
property or other collateral securing a defaulted Mortgage Loan.
(b) Notwithstanding any other provision of this Agreement, 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 for purposes of
Section 860D(a) of the Code 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
at any given time constitutes not more than a de minimis amount of the assets of
such Lower-Tier 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. 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 paid 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 or the Lower-Tier
REMIC or in an Adverse Grantor Trust Event with respect to the Grantor
Trust.
(c) Notwithstanding the foregoing provisions of this Section 3.09,
neither a Master Servicer nor a Special Servicer shall, 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 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 (x) the Mortgaged Property is
in compliance with applicable environmental laws and regulations and (y)
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, such 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 if in connection
with a B Loan, taken as a collective whole) on a present value basis (the
relevant discounting of anticipated collections that will be distributable
to Certificateholders to be performed at the related Net Mortgage Rate) 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)(y) above.
Any such determination by a Special Servicer contemplated by clause
(c)(i) or clause (c)(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, 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 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
(c)(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.
(e) Each Special Servicer shall report to the Trustee, the
applicable Master Servicer and the Controlling Class Representative 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.
(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 Mortgaged
Property is located and the terms of the Mortgage Loan permit such an action and
shall, in accordance with the Servicing Standard, seek such deficiency judgment
if it deems advisable.
(g) 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 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 Specially Serviced
Mortgage Loans and REO Properties 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) Within three Business Days from the date on which a Special
Servicer makes a Final Recovery Determination with respect to any Mortgage Loan
for which it acts as Special Servicer or related REO Property, it shall deliver
to the Trustee, the applicable Master Servicer and the Controlling Class
Representative an Officer's Certificate evidencing such determination. Each
Special Servicer shall maintain accurate records, prepared by a Servicing
Officer, of each such Final Recovery Determination (if any) and the basis
thereof.
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 pursuant to the 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 a 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, 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 such 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 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 pursuant to Section 3.04(a) have been or will be
so deposited or (ii) such Mortgage Loan has become an REO Property, a copy of
the Request for Release shall be 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, the applicable Master Servicer or the applicable Special
Servicer, 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.
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 and each REO Mortgage Loan for which it acts as Master
Servicer. As to each such Mortgage Loan and REO Mortgage Loan, for each calendar
month (commencing with March 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 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 or REO Mortgage Loan, as
the case may be. The Master Servicing Fee with respect to any Mortgage 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 or REO
Mortgage Loan shall be payable monthly from payments of interest on such
Mortgage Loan or REO Revenues allocable as interest on such REO Mortgage Loan,
as the case may be. Each Master Servicer shall be entitled to recover unpaid
Master Servicing Fees in respect of any Mortgage 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 or REO Mortgage Loan, as the case may be.
NCBFSB and any successor holder of the Excess Servicing Fee Rights
that relate to the Co-op Mortgage Loans (and any successor REO Loans with
respect to such Co-op 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 Midland and any successor holder of the
Excess Servicing Fee Right that relate to the General Mortgage Loans shall be
entitled, at any time, at its own expense, to transfer, sell, pledge or
otherwise assign the Excess Servicing Fee Right in whole (but not in part) 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 Midland 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 the 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 the Excess Servicing Fee
Right without registration or qualification. Midland, NCBFSB and each holder of
the Excess Servicing Fee Right desiring to effect a transfer, sale, pledge or
other assignment of the Excess Servicing Fee Right shall, and each of Midland
and NCBFSB hereby agrees, and each such holder of the Excess Servicing Fee Right
by its acceptance of the Excess Servicing Fee Right shall be deemed to have
agreed, in connection with any transfer of the 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 the 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 their 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 the
Excess Servicing Fee Right or any 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 the 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 the Excess Servicing Fee Right 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. From time to time following any transfer, sale, pledge or assignment
of the Excess Servicing Fee Right, the Person then acting as Master Servicer
shall pay, out of each amount paid to the applicable Master Servicer as Master
Servicing Fees, the Excess Servicing Fees to the holder of the 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 the 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 the Excess Servicing Fee or the assignment or
transfer of the Excess Servicing Fee.
The right to receive the Master Servicing Fee may not be transferred
in whole or in part except in connection with the transfer of all of a Master
Servicer's responsibilities and obligations under this Agreement and except as
otherwise expressly provided herein, including as provided in the prior
paragraph.
(b) Subject to offset as provided in Section 3.02(a), each Master
Servicer shall be entitled to receive the following items as additional
servicing compensation with respect to the Mortgage Loans for which it acts as
Master Servicer (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, waiver
fees and earn-out fees actually paid by a Borrower with respect to a
Performing Mortgage Loan;
(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 and defeasance fees
collected on the Mortgage Loans; 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
To the extent that any of the amounts described 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, 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 for
which it acts as Special Servicer. As to each such Specially Serviced Mortgage
Loan and 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, as the case may be. The
Special Servicing Fee with respect to any Specially Serviced Mortgage Loan or
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 monthly out of general collections on the
Mortgage Loans, and any REO Properties relating thereto, on deposit in the
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 requiring a written modification for which it acts as
Special Servicer. 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 and (ii) the interest (other than
Advance Interest) and principal portions of any Liquidation Proceeds received on
such Mortgage Loan while it is a Corrected Mortgage Loan in connection with the
repurchase or replacement thereof subsequent to 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 the related
Mortgage Loan Seller pursuant to the related Mortgage Loan Purchase Agreement
or, if applicable, by the Column Performance Guarantor pursuant to the Column
Performance Guarantee. The Workout Fee with respect to any Corrected Mortgage
Loan will cease to be payable if a new 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, 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 any 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 will 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 additional 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 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 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 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 or (v) 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). Notwithstanding anything to the contrary
described above, no Liquidation Fee will be payable based on, or out of,
Liquidation Proceeds received in connection with the purchase of any A Loan by
the related B Loan Holder pursuant to the related A/B Intercreditor Agreement
(within the time frame therein specified). 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 Liquidation Expenses and Default
Charges). The Liquidation Fee with respect to any such Specially Serviced
Mortgage Loan will not be payable if such Mortgage Loan becomes a Corrected
Mortgage Loan. Notwithstanding anything herein to the contrary, no Liquidation
Fee will be payable in connection with the receipt of, or out of, Liquidation
Proceeds collected as a result of the purchase 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 the Special Servicing Fee, the
Workout Fee and/or the Liquidation Fee may not be transferred in whole or in
part except in connection with the transfer of all of such Special Servicer's
responsibilities and obligations under this Agreement and except as otherwise
expressly provided herein.
(d) Subject to offset as provided in Section 3.02(a), each Special
Servicer shall be entitled to receive the following items as additional special
servicing compensation with respect to the Specially Serviced Mortgage Loans or
REO Mortgage Loans and Performing Mortgage Loans for which it acts as Special
Servicer (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;
(ii) any and all Net Assumption Fees, Net Assumption Application
Fees, modification fees, extension fees, consent fees, waiver fees,
earn-out fees and charges for beneficiary statements or demands that are
actually received on or with respect to Specially Serviced Mortgage Loans
or REO Mortgage Loans;
(iii) 50% of any and all Net Assumption Fees, Net Assumption
Application Fees, modification fees, extension fees, consent 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 the REO Account
maintained by such Special Servicer, if established, in accordance with
Section 3.06(b) (but only to the extent of the Net Investment Earnings, if
any, with respect to the REO Account for each Collection Period).
The applicable Special Servicer shall be entitled to such
compensation with respect to the B 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.
To the extent that any of the amounts described in the preceding
paragraph are collected by a Master Servicer with respect to Specially Serviced
Mortgage Loans, such Master Servicer shall promptly pay such amounts to the
applicable Special Servicer and shall not be required to deposit such amounts in
its 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 a Collection
Account, A/B Loan Pair Custodial Account, Purchase Price Security Deposit
Account, Special Reserve Account, the Servicing Accounts, the Reserve Accounts
or the 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 a Special Servicer is required under
this Agreement to make a Servicing Advance, but neither does 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 any REO
Properties relating thereto, 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
its Collection Account. A Master Servicer shall not be entitled to Advance
Interest to the extent a payment is received but is being held by a 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) and the Controlling
Class Representative 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,
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. 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, 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, 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 applicable Master Servicer and the applicable Special
Servicer.
(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 its Collection Account, but only as and to the extent
contemplated by Section 3.05(a), any servicing expense that, if paid by such
Master Servicer or the applicable Special Servicer, would constitute a
Nonrecoverable Servicing Advance; 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, 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.
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, such 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. Beginning in 2003, the applicable Master
Servicer shall at its expense perform or cause to be performed an inspection of
each Mortgaged Property at least once per calendar year (or, in the case of each
Mortgage Loan with an unpaid principal balance of under $2,000,000, once every
two years), 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 (and, promptly following preparation deliver to
the Controlling Class Representative and, with respect to a Special Servicer, to
the applicable Master Servicer; provided, that with respect to Performing Co-op
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 Co-op 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) a written report of each such inspection performed by it or on its
behalf that sets forth in detail the condition of the Mortgaged Property and
that specifies the occurrence or existence of: (i) any sale, transfer or
abandonment of the Mortgaged Property of which such Master Servicer or Special
Servicer, as applicable, is aware, (ii) any change in the condition or occupancy
of the Mortgaged Property of which such Master Servicer or Special Servicer, as
applicable, in accordance with the Servicing Standard, is aware and that it
considers material, or (iii) any waste committed on the Mortgaged Property of
which such Master Servicer or Special Servicer, as the case may be, in
accordance with the Servicing Standard, is aware and that it considers material.
Each Master Servicer and each Special Servicer shall deliver to the Trustee,
upon written request, and the Controlling Class Representative, a copy (or image
in suitable electronic media) of each such written report prepared by it
(provided, that with respect to Performing Co-op 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 Co-op 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), within 30 days following the
later of completion of the related inspection if the inspection is performed by
such 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, any Certificateholder 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 March 31,
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, shall make reasonable efforts to
collect promptly from each related Borrower quarterly and annual operating
statements, budgets and 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 pursuant to the terms of the related
Mortgage; provided that in the case of Performing Mortgage Loans that are Co-op
Mortgage Loans, the Co-op Master Servicer shall use reasonable efforts to
collect annual financial statements whether or not expressly required by the
related loan documents and, to the extent expressly required by the related loan
documents, shall use reasonable efforts to collect quarterly financial
statements and annual or quarterly operating statements. In addition, the
applicable Special Servicer shall cause quarterly and annual operating
statements, budgets and rent rolls (except with respect to Co-op Mortgage Loans)
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 copies (or images in suitable electronic media) of all of the foregoing
items so collected or obtained by it to the applicable Master Servicer, the
Trustee and the Controlling Class Representative within 30 days of its receipt
thereof.
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 a 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 a Master Servicer from the applicable Special Servicer or
otherwise, as to a Specially Serviced Mortgage Loan and REO Property for which
it acts as Master Servicer, of any annual operating statements or rent rolls
(except with respect to Co-op Mortgage Loans) with respect to any Mortgaged
Property or REO Property, such Master Servicer shall, based upon such operating
statements or rent rolls (except with respect to Co-op Mortgage Loans), 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 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 the
preceding paragraph, the underlying operating statements and rent rolls (except
with respect to Co-op Mortgage Loans), to the Trustee, the applicable Special
Servicer and the Controlling Class Representative. All CMSA Operating Statement
Analysis Reports shall be maintained by the applicable Master Servicer with
respect to each Mortgaged Property and REO Property related to a Mortgage Loan
for which it acts as Master Servicer. The Trustee shall, upon request, request
from a Master Servicer (if necessary) and, to the extent such items have been
delivered to the Trustee by such Master Servicer, deliver to the Controlling
Class Representative, 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 such CMSA Operating Statement Analysis
(or update thereof) and, if requested, the related operating statement or rent
rolls (except with respect to Co-op Mortgage Loans).
Within 60 days (or, in the case of items received from a Special
Servicer with respect to Specially Serviced Mortgage Loans and REO Properties
for which it acts as Special Servicer, 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 and the Controlling
Class Representative (in an electronic format reasonably acceptable to the
Trustee and such Special Servicer) a CMSA NOI Adjustment Worksheet for such
Mortgaged Property or REO Property, together with, if so requested, 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 4:00 p.m. (New York City time) on 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 the following reports (or data
files relating to reports of the applicable Master Servicer) with respect to the
Specially Serviced Mortgage Loans serviced by such Special Servicer and any
related REO Properties, providing the required information as of such
Determination Date: (i) a CMSA Property File; and (ii) a CMSA Loan Periodic
Update File (which, in each case, if applicable, will identify each Mortgage
Loan by loan number and property name). At or before 4:00 p.m. (New York City
time) on each Determination Date, such Special Servicer shall prepare and
deliver or cause to be delivered to the applicable Master Servicer the following
reports or the related data fields reflected in the reports reasonably requested
with respect to the Specially Serviced Mortgage Loans and any REO Properties,
providing the information required of such Special Servicer pursuant to Section
3.12(e) as of such Determination Date: (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 the 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 3:00 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), in a
computer-readable medium downloadable by the Trustee, 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 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 third
Determination Date following the Closing Date.
A Master Servicer may, but is not required to, make any of the
reports or files comprising the CMSA Investor Reporting Package (other than the
CMSA Bond Level File and the CMSA Collateral Summary File, which are prepared by
the Trustee), 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 and the Controlling Class
Representative, 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.
(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. A 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). In the case of information or
reports to be furnished by a Master Servicer to the Trustee pursuant to Section
3.12(d), to the extent that such information or reports are, in turn, based on
information or reports to be provided by a Special Servicer pursuant to Section
3.12(b) or Section 3.12(c) and to the extent that such reports are to be
prepared and delivered by a Special Servicer pursuant to Section 3.12(b) or
Section 3.12(c), such Master Servicer shall have no obligation to provide such
information or reports to the Trustee until it has received the requisite
information or reports from the applicable Special Servicer, and such Master
Servicer shall not be in default hereunder due to a delay in providing the
reports required by Section 3.12(d) caused by the applicable Special Servicer's
failure to timely provide any information or report required under Section
3.12(b) or Section 3.12(c) of this Agreement.
(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) 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 March 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 reporting obligations of the applicable Master Servicer in
connection with an A Loan shall be construed to require such Master Servicer to
provide information regarding the related A Note only, but whenever such Master
Servicer remits funds to the B Loan Holder, it shall thereupon deliver to such
holder a remittance report identifying the amounts in such remittance. The
applicable Master Servicer shall contemporaneously with any related delivery to
the Trustee or the applicable Special Servicer, as applicable, provide any such
reports which contain information related to the related Mortgaged Property or
financial information regarding the borrower to the B Loan Holder. The
applicable Master Servicer shall, with the reasonable cooperation of the other
parties hereto, deliver to each B Loan Holder all documents, statements, reports
and information with respect to the related B Loan 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, the Controlling Class Representative
and each other, on or before March 31 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 or the Lower-Tier 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 20 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, the Controlling Class
Representative and each other, 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 or the Audit
Program, as applicable, 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 or the Audit
Program, as applicable, in all material respects, except for such significant
exceptions or errors in records that, in the opinion of such firm, USAP or the
Audit Program, as applicable, 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 20 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 each 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, 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
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 shall each be entitled to 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, 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 a 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) On a monthly basis at a time mutually agreed upon by the
Controlling Class Representative and the applicable Master Servicer or the
applicable Special Servicer, each Master Servicer and each Special Servicer
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 in and/or REO Properties for which such Master Servicer or Special
Servicer, as the case may be, is responsible.
Section 3.16 Title to REO Property; REO Account
(a) If title to any REO Property is acquired, the deed or
certificate of sale shall be issued to the Trustee or its nominee, on behalf of
the Certificateholders (and on behalf of the related B Loan Holder 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 Special
Servicer at the expense of the Trust for the purpose of taking title to one or
more REO Properties 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
if such REO Property is related to an A/B Loan Pair). The Special Servicer, on
behalf of the Trust (and for the benefit of the related B Loan Holder if such
REO Property is related to an A/B Loan Pair), shall sell any REO Property in
accordance with Section 3.18(d) and, in any event, by the end of the third
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 the 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 following
the year in which such acquisition occurred will not result in an Adverse REMIC
Event with respect to either Trust REMIC or an Adverse Grantor Trust Event with
respect to the Grantor Trust. Regardless of whether the Special Servicer applies
for or is granted the REO Extension contemplated by clause (i) of the
immediately preceding sentence or obtains the Opinion of Counsel referred to in
clause (ii) of such sentence, the Special Servicer shall act in accordance with
the Servicing Standard to liquidate such REO Property on a timely basis within a
customary and normal time frame for the sale of comparable properties. If the
Special Servicer is granted such REO Extension or obtains such Opinion of
Counsel, the 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 the 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 contemplated by clause (ii) of
the third preceding sentence, and for the creation of and the operating of a
limited liability company, shall be paid by and reimbursable to the Master
Servicer as a Servicing Advance.
(b) The Special Servicer shall segregate and hold all funds
collected and received in connection with any REO Property separate and apart
from its own funds and general assets. If an REO Acquisition shall occur, the
Special Servicer shall establish and maintain one or more accounts
(collectively, the "REO Account"), to be held on behalf of the Trustee (as
holder of the Uncertificated Lower-Tier Interests) in trust for the benefit of
the Certificateholders (and on behalf of the related B Loan Holder 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 the
REO Account shall be an Eligible Account. The Special Servicer shall deposit, or
cause to be deposited, in the REO Account, within two Business Days following
receipt, all REO Revenues, Insurance Proceeds, Condemnation Proceeds and
Liquidation Proceeds received in respect of an REO Property. Funds in the REO
Account may be invested in Permitted Investments in accordance with Section
3.06. The Special Servicer shall be entitled to make withdrawals from the REO
Account to pay itself, as Additional 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
the REO Account prior to any change thereof.
(c) The Special Servicer shall withdraw from the REO Account funds
necessary for the proper operation, management, leasing, maintenance and
disposition of any REO Property, but only to the extent of amounts on deposit in
the REO Account relating to such REO Property. Within two Business Days
following the end of each Collection Period, the Special Servicer shall withdraw
from the REO Account and deposit into the 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 Master Servicer (which shall deposit such
amounts into the 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 such
Collection Period, net of any withdrawals made out of such amounts pursuant to
the preceding sentence and Section 3.17 below; provided that the Special
Servicer may retain in the REO Account such portion of such proceeds and
collections as may be necessary to maintain a reserve of sufficient funds for
the proper operation, management, leasing, maintenance and disposition of the
related REO Property (including 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).
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 (either such tax referred to herein as
an "REO Tax"), such Mortgaged Property may be Directly Operated (other than
holding such REO Property primarily for sale to customers (other than the
sale of REO Property pursuant to Section 3.18), or the performance of any
construction work thereon) by such Special Servicer as REO Property;
(ii) Directly Operating such Mortgaged Property as an REO Property
could result in income from such property that would be subject to an REO
Tax, but that a lease of such property to another party to operate such
property, or the performance of some services by an Independent Contractor
with respect to such property, or another method of operating such property
would not result in income subject to an REO Tax, then 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.
The applicable Special Servicer's decision as to how each REO
Property shall be managed and operated shall, subject to Section 3.17(b), 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). Nothing in this Section 3.17(a) is intended to prevent the
sale of an REO Property pursuant to the terms and subject to the conditions of
Section 3.18.
(b) If title to any REO Property is acquired, the 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 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 for purposes of
Section 860D(a) of the Code or, except as contemplated by Section 3.17(a),
result in the receipt by either Trust 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 any Trust 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 that causes the Trust to receive, and (unless required to do so
under any lease, contract or agreement to which such 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 a Mortgage Loan) shall not cause or allow the Trust to
receive, any "net income from foreclosure property" that is subject to taxation
under the REMIC Provisions. Furthermore, such Special Servicer may not, on
behalf of the Trust, directly or through any agents, make any significant
operating decisions with respect to such REO Property that address matters other
than those consistent with the normal course of business, complete any
significant construction on such REO Property or provide vendor financing for
the sale of such REO Property. Subject to the foregoing, however, the applicable
Special Servicer shall have full power and authority to do any and all things in
connection therewith as are consistent with the Servicing Standard and,
consistent therewith, shall withdraw from the REO Account, to the extent of
amounts on deposit therein with respect to any REO Property, funds necessary for
the proper operation, management, maintenance and disposition of such REO
Property, including:
(i) all insurance premiums due and payable in respect of such REO
Property;
(ii) all real estate taxes and assessments in respect of such REO
Property
that may result in the imposition of a lien thereon; (iii) any ground
rents in respect of such REO Property; and
(iv) all other costs and expenses necessary to maintain, lease, sell,
protect, manage, operate and restore such REO Property.
To the extent that amounts on deposit in the REO Account 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, make a
Servicing Advance of such amounts as are necessary for such purposes unless such
Master Servicer or such 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 (and be reimbursed for
such Advance as a Nonrecoverable Advance) if it is a necessary fee or expense
incurred in connection with the defense or prosecution of legal proceedings.
(c) A Special Servicer may, and if so required for any REO Property
to qualify or remain qualified as "foreclosure property" within the meaning of
Section 860G(a)(8), shall contract with any Independent Contractor for the
operation and management of any REO Property related to a Mortgage Loan for
which it acts as Special Servicer, 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.
A 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 paid by and 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 Agreement; the Column Performance Guarantee; 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 the Trustee,
the Controlling Class Representative and the applicable Master Servicer, and the
Trustee shall, in turn, notify the Holder(s) of the Controlling Class in
writing. 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 and the applicable Master
Servicer, the Fair Value of such Mortgage Loan; provided, however, in connection
with the sale of a Specially Designated Defaulted A Loan, none of the Trustee,
Master Servicers, Special Servicers or Directing Certificateholder will provide
the B Loan Holder with the Fair Value. 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
20 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 such
Special Servicer shall redetermine (in the same manner as provided above, but
taking into account such 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.
In determining the Fair Value of any Specially Designated Defaulted
Mortgage Loan, a 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 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 Default 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, a Special Servicer shall consider
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 be paid by and 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 (exclusive of
the Depositor, the related Mortgage Loan Seller, or any of their respective
Affiliates and/or agents) may, at its 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 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 to purchase the A Loan pursuant to the terms
of the related A/B Intercreditor Agreement; 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 the option with respect to an A Loan shall terminate
upon the purchase of the A Loan by the related B Loan 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 during the Option Period to a third party other
than the Depositor, the related Mortgage Loan Seller, or one of their
respective Affiliates and/or agents (provided that the parties hereto are
notified in writing of the assignment);
(iii) if the Purchase Option with respect to any Specially Designated
Defaulted Mortgage Loan is not exercised by the Majority Controlling Class
Certificateholder or any assignee thereof within 30 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 shall be deemed to have assigned 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 Special Servicer will be entitled to exercise such Purchase
Option or to assign such Purchase Option to a third party other than the
Depositor, the related Mortgage Loan Seller or one of their respective
Affiliates and/or agents (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; 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
it believes that such Special Servicer's determination of the Fair Value of
such Mortgage Loan reasonably reflects an amount no less than that which
would, in its judgment, be realized in connection with a sale of such
Mortgage Loan if it were offered in a commercially reasonable manner and an
open bid auction were conducted (although such Special Servicer may revise
any such Fair Value determination that is rejected by the General Master
Servicer (or, if applicable, the Trustee));
provided, that, if the Depositor, a Mortgage Loan Seller or any Affiliate or
agent of the Depositor or a Mortgage Loan Seller shall, as a Special Servicer or
the Majority Controlling Class Certificateholder, hold the Purchase Option with
respect to any Specially Designated Defaulted Mortgage Loan, then it may, at any
time after the commencement of the applicable Option Period, waive such Purchase
Option by delivering written notice of such waiver to the applicable Master
Servicer, the applicable Special Servicer (if the holder of such Purchase Option
is not acting in such capacity) and 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 a Special Servicer's Fair Value determination as
contemplated by such clause (vi), either such party may (at its option)
designate an Independent third party, with adequate experience in the trading of
defaulted mortgage loans, to confirm that such Special Servicer's Fair Value
determination as contemplated by such clause (vi). In the event that the General
Master Servicer or the Trustee designates such a third party to make such
determination, neither the General Master Servicer nor the Trustee will assume
any responsibility for such third party's determination, and the General Master
Servicer and the Trustee shall be entitled to conclusively rely upon such third
party's determination. The General Master Servicer may pay, or the Trustee may
direct the General Master Servicer to pay, as the case may be, to such a third
party (or, if the General Master Servicer or the Trustee makes the confirmation
of a Special Servicer's Fair Value determination as contemplated by clause (vi)
of the preceding paragraph, the General Master Servicer may pay itself or the
Trustee, as the case may be) a fee of up to $2,500 plus (subject to the next
sentence) related costs and expenses out of the Collection Account maintained by
the General Master Servicer. The reasonable costs of all appraisals, inspection
reports and broker 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 and
shall constitute, and be reimbursable as, Servicing Advances.
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, 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 20 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 of 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).
Notwithstanding the Purchase Option provided for in this Section
3.18(c), 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 and subject to Section 3.24, 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 paid by and 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. Where any Interested
Person is among those bidding with respect to any REO Property, the applicable
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 be deemed 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 cash 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 such 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 with respect to the related A Loan provided for in the related A/B
Intercreditor Agreement. The purchase price paid by any B Loan Holder 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.
Section 3.19 Additional Obligations of Master Servicers
(a) Each Master Servicer as to which such Master Servicer is the
applicable 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 lesser of (i) the
aggregate amount of Prepayment Interest Shortfalls incurred in connection with
Principal Prepayments received in respect of Performing Mortgage Loans during
the most recently ended Collection Period and as to which such Master Servicer
is the applicable Master Servicer (other than as a result of the receipt of
Insurance Proceeds and/or Condemnation Proceeds), and (ii) the aggregate of (A)
with respect to such of those Prepayment Interest Shortfalls incurred, that
portion of such Master Servicer's Master Servicing Fees for the related
Collection Period that is, in the case of each and every Mortgage Loan and REO
Mortgage Loan as to which such Master Servicer is the applicable Master Servicer
for which such Master Servicing Fees are being paid in such Collection Period,
calculated at 0.005% (one-half of one basis point) per annum for the General
Master Servicer and 0.02% per annum for the Co-op Master Servicer, and (B) all
Prepayment Interest Excesses received by such Master Servicer during the most
recently ended Collection Period; provided, however, that if 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, the amount specified in clause
(ii)(A) above shall be an amount equal to the entire Master Servicing Fee with
respect to such Collection Period.
(b) No more frequently than once per calendar month, each Special
Servicer may require the applicable Master Servicer, and such Master Servicer
shall be obligated, out of such Master Servicer's own funds, to reimburse such
Special Servicer for any Servicing Advances (other than Nonrecoverable Servicing
Advances) made by but not previously reimbursed to such Special Servicer,
together with interest thereon at the Reimbursement Rate from the date made to,
but not including, the date of reimbursement, upon such Special Servicer
providing an Officer's Certificate to the applicable Master Servicer setting
forth the details of the Servicing Advance upon which such Master Servicer shall
conclusively rely in reimbursing the Special Servicer. Such reimbursement and
any accompanying payment of interest shall be made within ten Business Days of
the written request therefor by wire transfer of immediately available funds to
an account designated by such Special Servicer. 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, if a Special Servicer is required under this
Agreement (but subject to the following paragraph), to make any Servicing
Advance but does not desire to do so, such Special Servicer may, in its sole
discretion, request that the applicable Master Servicer make such Servicing
Advance. Any such request shall be made, in writing, in a timely manner that
does not adversely affect the interests of any Certificateholder (and, in any
event, 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 such Master
Servicer may reasonably request; provided, however, that such 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 such Special Servicer to make, by
payment of such amount to such Special Servicer within five Business Days of
such Master Servicer's receipt of such request. Such Special Servicer shall then
be responsible for disbursing such amounts to the appropriate payees. Subject to
the preceding sentence, if the request is timely and properly made, such Special
Servicer shall be relieved of any obligations with respect to a Servicing
Advance that it so requests the applicable Master Servicer to make (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 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 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, good faith 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,
unless the Controlling Class Representative permits otherwise, 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 judgment
of the applicable Special Servicer, would materially affect the value of the
property in the earlier Appraisal, 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 paid by and reimbursable to the applicable Master Servicer
as a Servicing Advance. Promptly following the receipt of, and based upon, such
Appraisal, such Special Servicer shall determine and report to the Trustee and
the applicable Master Servicer and the Controlling Class Representative 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's 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 its discretion, unless the Controlling Class
Representative objects, conduct) an update of the prior Appraisal. If such
update is obtained from a Qualified Appraiser, the cost thereof shall be paid by
and 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 and the applicable Master Servicer 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, and upon receipt of such Appraisal the
applicable Special Servicer shall redetermine the Appraisal Reduction Amount.
(d) The General Master Servicer shall pay, without any right of
reimbursement therefor, the post-Closing Date fees of Xxxxx'x for ongoing
surveillance of the Rated Certificates; provided that the General Master
Servicer shall not be required to pay without reimbursement the fees charged by
any Rating Agency for a confirmation as to the lack of an Adverse Rating Event
with respect to any Class of Rated Certificates in connection with any other
particular matter, unless the General Master Servicer has failed to use efforts
consistent with the Servicing Standard to collect such fees from the Borrower,
which shall include, if it has the right to do so under the applicable Mortgage
Loan, conditioning its consent or approval on such payment by the Borrower
unless such condition would be a violation of applicable law or the Servicing
Standard.
(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, payable
under the terms of the related Mortgage Note. Promptly following its
determination thereof, such Master Servicer shall disclose to the Trustee 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 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 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 and, if the subject Mortgage Loan has a Cut-off
Date Principal Balance equal to or greater than $5,000,000, and, if the related
Mortgage Loan Documents permit the lender to require or expressly requires the
borrower to provide an opinion of Counsel to the effect that such entity will
not be consolidated with its principals; provided, that if the subject Mortgage
Loan has a Cut-off Date Principal Balance less than $5,000,000 and the related
Mortgage Loan Documents do not require the related Borrower to pay for, or do
not permit the lender to require such Opinion of Counsel, such requirement shall
be waived, (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 if either the terms of the 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. 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 if the terms of the 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 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 such
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 the Servicing Standard, notify the related Borrower of such
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, subject, however, to
Sections 3.08 and 3.24 (and, in the case of any A Loan or B 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, 3.08, 3.20(f)
and 3.20(g), the applicable Master Servicer shall not agree to any
modification, waiver or amendment of any term of, or take any of the other
acts referenced in this Section 3.20(a) with respect to, any 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 affect 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 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
ten 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 15
Business Days from such notice), such consent shall be deemed to have been
granted);
(ii) other than as provided in Sections 3.02 and 3.08, 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) 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, good faith 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 (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) 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) three years
prior to the Rated Final Distribution Date for any Class of Rated
Certificates, (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 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 either 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) the applicable Special Servicer shall not permit (or, in the case
of a Performing Mortgage Loan, consent to the applicable Master Servicer's
permitting) 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) the applicable Special Servicer shall not release (or, in the
case of a Performing Mortgage Loan, consent to the applicable Master
Servicer's releasing), 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 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 where (A) either (1) the use of the collateral to be
released will not, in the reasonable judgment of such Special Servicer,
materially and adversely affect the net operating income being generated by
or the 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 estate collateral with an appraised value at least equal to
that of the collateral to be released, is delivered), (B) with respect to
Performing Loans, the remaining Mortgaged Property (together with any
substitute collateral) is, in such Special Servicer's reasonable judgment,
adequate security for the remaining Mortgage Loan and (C) with respect to
Performing Loans, 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 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 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 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 such Master Servicer's or such Special Servicer's, as the case may be,
discretion 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. 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) shall be in
writing. Each Special Servicer and each Master Servicer shall notify the other
such applicable party, each Rating Agency, the Trustee and the Controlling Class
Representative, 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 (other than waivers of Default Charges) and the date thereof,
and shall deliver to the Trustee or the related Custodian for deposit in the
related Mortgage File (with a copy to the other such party), an original
counterpart of the agreement relating to such modification, waiver, amendment or
other action, promptly (and in any event within ten Business Days) following the
execution thereof. In addition, following the execution of any modification,
waiver or amendment agreed to by a Special Servicer, or by a Master Servicer
with any required consent of the applicable Special Servicer, 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); provided that, if such
modification, waiver or amendment involves an extension of the maturity of any
Mortgage Loan, such Officer's Certificate shall be so delivered before the
modification, waiver or amendment is agreed to. The applicable Master Servicer
shall notify the B Loan Holder of any modification of the monthly payments of
the related Loan, and such monthly payments shall be allocated in accordance
with the related A/B Intercreditor Agreements.
(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 Controlling Class Representative, 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 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 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 for which it acts as Master Servicer: (i)
waivers of minor covenant defaults (other than financial covenants), including
late financial statements; (ii) waiver of Default Charges, in accordance with
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 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 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) routine leasing activities that affect less than the greater of 20% of
the net rentable area of the Mortgaged Property or 10,000 square feet of the
Mortgaged Property and (vi) approval of annual budgets to operate the Mortgaged
Property; 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, (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 either 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) 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 ten 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
ten 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 if the Co-op Master Servicer
provides an Officer's Certificate to the Controlling Class Representative
stating that such termination or replacement is not the result of a material
adverse condition at the related Mortgaged Property.
(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 Trustee and the Controlling Class Representative audited
operating statements on a quarterly basis (or in the case of a Co-op Mortgage
Loan, on an annual basis) 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 any other
section or provision of this Agreement.
Section 3.21 Transfer of Servicing Between Master Servicers and
Special Servicers; 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, and 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
(except with respect to Co-op Mortgage Loans), 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 10 Business
Days before such 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 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, and shall return the related Servicing File within five Business Days,
to the applicable Master Servicer; and, 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 resume.
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 Loans, 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 each
furnish to the other, upon reasonable request, such reports, documents,
certifications and information in its possession, and access to such books and
records maintained thereby, as may relate to the Mortgage Loans for which it
acts as Master Servicer or Special Servicer and any related REO Properties 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,
each of Master Servicer and each Special Servicer shall be entitled to rely upon
written information provided to it by the other.
Section 3.22 Sub-Servicing Agreements
(a) Each Master Servicer and, subject to Section 3.22(f), each
Special Servicer may enter into Sub-Servicing Agreements to provide for the
performance by third parties of any or all of their respective obligations
hereunder, provided that, in each case, the Sub-Servicing Agreement, 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 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 such 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 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 3.20 hereof without the consent of such Master Servicer
or Special Servicer, as the case may be; and (vi) does not permit the
Sub-Servicer any rights of indemnification out of the Trust Fund except through
such Master Servicer or the Special Servicer, as the case may be, have 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 for which such Special Servicer acts as Special Servicer
and any related REO Properties 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 such other parties, the Trustee and the Depositor in writing
promptly of the appointment by it of any Sub-Servicer (other than a Designated
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 each 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 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 or to the Trustee, 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 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 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 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 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, 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.
(f) A Special Servicer shall not enter into any Sub-Servicing
Agreement unless: (i) the Rating Agencies have confirmed in writing that
entering into such agreement will not result in an Adverse Rating Event; and
(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; and (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 (each, a "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. Upon (i) the receipt by the Trustee of written
requests for the selection of a Controlling Class Representative from the
Holders (or, in the case of Book-Entry Certificates, the Certificate Owners) of
Certificates representing more than 50% of the Class Principal Balance of the
Controlling Class, (ii) the resignation or removal of the Person acting as
Controlling Class Representative or (iii) a determination by the Trustee that
the Controlling Class has changed, the Trustee shall promptly notify the
Depositor and the Holders (and, in the case of Book-Entry Certificates, to the
extent actually known to a Responsible Officer of the Trustee or identified
thereto by the Depository or the Depository Participants, the Certificate
Owners) of the Controlling Class that they may select a Controlling Class
Representative. Such notice shall set forth the process established by the
Trustee for selecting a Controlling Class Representative, which process may
include the designation of the Controlling Class Representative by the related
Majority Controlling Class Certificateholder by a writing delivered to the
Trustee. No appointment of any Person as a Controlling Class Representative
shall be effective until the Trustee has received confirmation that the
appointment of such Controlling Class Representative is acceptable to the
Majority Controlling Class Certificateholder and 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). Anthracite shall be the initial Controlling Class Representative
without any further notification or confirmation referred to in this paragraph.
(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 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 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) 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.
(e) Any and all expenses of the Controlling Class Representative
shall be borne by the Holders (or, if applicable, the Certificate Owners) of
Certificates of the Controlling Class, in proportion 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 Master Servicer
or the applicable Special Servicer or, if such action does not relate to a
specific Mortgage Loan, the General 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 any Controlling Class
Representative.
Section 3.24 Certain Rights and Powers of the Controlling Class
Representative
(a) The Controlling Class Representative will be entitled to advise
the Special Servicers with respect to the Special Servicers' taking, or
consenting to the Master Servicers' taking, any of the actions identified in
clauses (i) through (ix) of the following sentence. In addition, notwithstanding
anything in any other Section of this Agreement to the contrary, but in all
cases subject to Section 3.20(g) and Section 3.24(b), a 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 (ix) of this sentence,
unless and until such 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 five Business Days of having
been notified thereof in writing and having been provided with all reasonably
requested information with respect thereto:
(i) any proposed 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 Loans as come into
and continue in default;
(ii) any modification, amendment or waiver of a monetary term
(including any change in the timing of payments but excluding the waiver of
Default Charges) or any material non-monetary term (excluding any waiver of
a "due-on-sale" or "due-on-encumbrance" clause, which clauses are addressed
in clause (ix) below) of a Mortgage Loan;
(iii) any acceptance of a discounted payoff with respect to any
Specially Serviced Mortgage Loan;
(iv) any proposed sale of an REO Property for less than the Stated
Principal Balance of, and accrued interest (other than Default Interest and
Post-ARD Additional Interest) on, the related Mortgage Loan, except in
connection with a termination of the Trust Fund pursuant to Section 9.01;
(v) any determination to bring an REO Property into compliance with
applicable environmental laws or to otherwise address Hazardous Materials
located at an REO Property;
(vi) any release of collateral for any Mortgage Loan (other than in
accordance with the specific terms of, or upon satisfaction of, such
Mortgage Loan);
(vii) any acceptance of substitute or additional collateral for any
Specially Serviced Mortgage Loan (other than in accordance with the
specific terms of such Mortgage Loan);
(viii) any release of Earn-Out Reserve Funds or related Letter of
Credit with respect to a Mortgaged Property securing a Mortgage Loan; and
(ix) any waiver of a due-on-sale or due-on-encumbrance clause in any
Mortgage Loan (other than in the case of a 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 ten (10) days prior to taking such action, provide the
Controlling Class Representative with an Officer's Certificate stating such
Master Servicer's intent to take such action, which Officer's Certificate
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 including all
required calculations)).
provided that, if the applicable Special Servicer or the applicable Master
Servicer, as applicable, determines that immediate action is necessary to
protect the interests of the Certificateholders (as a whole), the applicable
Special Servicer may take any such action without waiting for the response of
the Controlling Class Representative.
In addition, subject to Section 3.24(b), the Controlling Class
Representative may direct a Special Servicer to take, or to refrain from taking,
such actions as such Controlling Class Representative may deem advisable or as
to which provision is otherwise made herein. Upon reasonable request, a 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.
The applicable Master Servicer or the applicable Special Servicer,
as applicable, shall notify the Controlling Class Representative of any release
or substitution of collateral for a Mortgage Loan even if such release or
substitution is in accordance with the related Mortgage Loan Documents.
(b) Notwithstanding anything herein to the contrary, (i) a Special
Servicer shall not have any right or obligation to consult with or to seek
and/or obtain consent or approval from the 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 such resignation or removal 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 has determined, in its reasonable 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 either 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 (and
with respect to such Controlling Class Holders shall have no liability for any
action taken or omitted which does not constitute negligence, bad faith or
willful misfeasance); (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 or for any action taken or omitted, 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 any existing Special Servicer hereunder (with or without cause)
and appoint a successor Special Servicer; provided that, if any such removal is
made without cause, then the costs of transferring the special servicing
responsibilities to a successor Special Servicer will, upon such removal or
other termination, be paid by the Certificateholders of the Controlling Class.
(b) No removal of a Special Servicer and 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 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 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 existing Special
Servicer and the appointment of the Person designated to serve as successor
Special Servicer 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 existing 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 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 Account 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 on such Mortgage Loan or REO Mortgage Loan, as the case may
be;
Third,to pay any other outstanding expense incurred with respect to
such Mortgage Loan or REO Mortgage Loan, as the case may be, that, if not
paid from Default Charges collected on such Mortgage Loan or REO Mortgage
Loan, as the case may be, will likely become an Additional Trust Fund
Expense;
Fourth, to reimburse the Trust for any other Additional Trust Fund
Expenses incurred since the Closing Date with respect to such Mortgage Loan
or REO Mortgage Loan, as the case may be, and previously paid from a source
other than Default Charges on such Mortgage Loan or REO Mortgage Loan, as
the case may be; and
Fifth,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 with respect to 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
either clause Second or clause Fourth 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 either clause Second or
clause Fourth of Section 3.26(a) shall be deemed to offset payments of Advance
Interest or 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 or other Additional Trust Fund Expenses (depending on which
clause is applicable) shall thereafter be deemed to have been paid out of
Default Charges).
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 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 in the amounts and priorities set forth in Section 4.01(b) 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:
(i) concurrently, to the Class X-0, Xxxxx X-0, 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 and Class A-2 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; and
Second, to the Class A-2 Certificates, until the Class Principal
Balance thereof has been reduced to zero.
(iii) to the Class A-1 and Class A-2 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 Q Certificates, in respect of interest, up to the
Optimal Interest Distribution Amount for such Class for such Distribution
Date;
(xlvii) to the Class Q 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;
(xlviii) to the Class Q Certificates, until all amounts of Collateral
Support Deficit previously allocated to the Class Q Certificates, but not
previously reimbursed, have been reimbursed in full; and
(xlix) 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(e).
(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-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 and
Class A-2 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 A-1 and Class A-2 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-1-4,
Class LA-1-5, Class LA-1-6, Class LA-2-1, Class LA-2-2 or Class LA-2-3
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 $262,399,000,
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
$262,399,000 or less, but greater than $216,496,000, 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 $216,496,000 or less, but
greater than $169,705,000, 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-1
Certificates is $169,705,000 or less, but greater than $125,497,000, the Class
LA-1-4 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 $125,4697,000 or less, but
greater than $12,596,000, the Class LA-1-5 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 $12,596,000 or less, but greater than zero, the Class LA-1-6
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 $509,798,000,
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-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
$509,798,000 or less, but greater than $466,239,000, 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 $466,239,000 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, the Class LA-1-1, Class LA-1-2, Class LA-1-3, Class LA-1-4,
Class LA-1-5 and Class LA-1-6 Uncertificated Interests and the Class LA-2-1,
Class LA-2-2, Class LA-2-3 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 and
Class A-2 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 Uncertificated Interest) 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. 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, Class LA-1-3, Class
LA-1-4, Class LA-1-5 and Class LA-1-6 Uncertificated Interests, pro rata based
on interest accrued; and 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) and (ii)
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, Class
LA-1-3, Class LA-1-4, Class LA-1-5 and Class LA-1-6 Uncertificated Interests, in
the case of the Class A-1 Certificates; and 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, 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.
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 the Lower-Tier Principal Amount of the Class LA-1-1 Uncertificated
Interest shall be the lesser of $8,849,000 and the excess of the Class Principal
Balance of the Class A-1 Certificates over $262,399,000, the Lower-Tier
Principal Amount of the Class LA-1-2 Uncertificated Interest shall be the lesser
of $45,903,000 and the excess of the Class Principal Balance of the Class A-1
Certificates over $216,496,000, the Lower-Tier Principal Amount of the Class
LA-1-3 Uncertificated Interest shall be the lesser of $46,791,000 and the excess
of the Class Principal Balance of the Class A-1 Certificates over $169,705,000,
the Lower-Tier Principal Amount of the Class LA-1-4 Uncertificated Interest
shall be the lesser of $44,208,000 and the excess of the Class Principal Balance
of the Class A-1 Certificates over $125,497,000, the Lower-Tier Principal Amount
of the Class LA-1-5 Uncertificated Interest shall be the lesser of $112,901,000
and the excess of the Class Principal Balance of the Class A-1 Certificates over
$12,596,000 and the Lower-Tier Principal Amount of the Class LA-1-6
Uncertificated Interest shall be the lesser of $12,596,000 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, then the Class LA-1-3 Uncertificated Interest, then the Class LA-1-4
Uncertificated Interest, then the Class LA-1-5 Uncertificated Interest and then
the Class LA-1-6 Uncertificated Interest; and the Lower-Tier Principal Amount of
the Class LA-2-1 Uncertificated Interest shall be the lesser of $24,065,000 and
the excess of the Class Principal Balance of the Class A-2 Certificates over
$509,798,000, the Lower-Tier Principal Amount of the Class LA-2-2 Uncertificated
Interest shall be the lesser of $43,559,000 and the excess of the Class
Principal Balance of the Class A-2 Certificates over $466,239,000 and the
Lower-Tier Principal Amount of the Class LA-2-3 Uncertificated Interest shall be
the lesser of $466,239,000 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. 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) will be
the Weighted Average Net Mortgage Rate.
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 A-Y 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.
(d) On each Master Servicer Remittance Date, the Master Servicers
shall remit to the Trustee all Prepayment Premiums and Yield Maintenance Charges
for deposit in the Lower-Tier Distribution Account for payment to the
Uncertificated Lower-Tier Interests. 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 Loans during the related Due Period
and shall be deemed to distribute such amount to the Uncertificated Lower-Tier
Interests, pro rata in proportion to their outstanding Lower-Tier Principal
Amounts.
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 actually collected on Loans or REO Loans
during the related Due Period and remitted in respect of the Uncertificated
Lower-Tier Interests pursuant to 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 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 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 and Class Q Certificates on such Distribution Date, (b)
25% and (c) the total amount of Prepayment Premiums 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 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 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 and Class Q 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 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 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 General
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) 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 distributing 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 then outstanding, until the Class Principal Balance thereof is
reduced to zero, and then is allocated to the next most subordinate Class of
Certificate then outstanding. Such shortfalls shall be allocated to the
Uncertificated Lower-Tier 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.
Section 4.02 Statements to Certificateholders; Certain Other Reports
(a) Based solely on information provided to the Trustee by the
Master Servicers and the Special 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 the Privileged Persons a written report (a "Statement to
Certificateholders") setting forth the following information:
(i) the aggregate amount of the distribution to be made on such
Distribution Date to the Holders of each Class of Certificates applied to
reduce the respective Certificate Principal Balance thereof;
(ii) the aggregate amount of the distribution to be made on such
Distribution Date to the Holders of each Class of Certificates allocable to
(A) such Class's Optimal Interest Distribution Amount and, separately
stated, the portion thereof representing the Net Aggregate Prepayment
Interest Shortfall Amount for such Class and (B) Prepayment Premiums and
Yield Maintenance Charges;
(iii) separately stated, the aggregate amounts of Net Aggregate
Prepayment Interest Shortfall Amounts and indemnification expenses of the
Trust Fund allocable to the Holders of each Class of Certificates on such
Distribution Date;
(iv) the aggregate Certificate Principal Balance or aggregate
Certificate Notional Amount, as the case may be, of each Class of Regular
Certificates, before and after giving effect to the distributions made on
such Distribution Date, separately identifying any reduction in the
aggregate Certificate Principal Balance (or, in the case of the Class A-X,
Class A-Y and Class A-SP Certificates, the aggregate Certificate Notional
Amount) of each such Class due to any Collateral Support Deficit;
(v) the Pass-Through Rate for each Class of Certificates applicable to
such Distribution Date;
(vi) the number of outstanding Mortgage Loans and the aggregate unpaid
principal balance of the Mortgage Loans at the close of business on the
related Determination Date;
(vii) the number and aggregate unpaid principal balance of Mortgage
Loans (A) delinquent 30 to 59 days, (B) delinquent 60 to 89 days, (C)
delinquent 90 days or more, (D) that are Specially Serviced Mortgage Loans
and not delinquent, (E) as to which foreclosure proceedings have been
commenced or (F) with respect to which the related Borrowers are in
bankruptcy;
(viii) with respect to any REO Mortgage Loan as to which the related
Mortgaged Property became an REO Property during the preceding calendar
month, the loan number, the city, state, property type, latest debt service
coverage ratio, Stated Principal Balance, the date on which it became an
REO Property and the unpaid principal balance of such Mortgage Loan,
including the amount of unreimbursed Advances for that period and in the
aggregate;
(ix) as to any Mortgage Loan repurchased by a Mortgage Loan Seller or
the Column Performance Guarantor, as applicable, or otherwise liquidated or
disposed of during the related Collection Period, the loan number of the
related Mortgage Loan, the Stated Principal Balance, the amount of any
Realized Loss, the unpaid principal balance and the amount of proceeds of
any repurchase of a Mortgage Loan, Liquidation Proceeds and/or other
amounts, if any, received thereon during the related Collection Period and
the portion thereof included in the related Available Distribution Amount
for such Distribution Date;
(x) with respect to any REO Property included in the Trust Fund at the
close of business on the related Due Date (A) the loan number of the
related Mortgage Loan, (B) the value of such REO Property based on the most
recent Appraisal or valuation, (C) the Stated Principal Balance and (D) the
unpaid principal balance;
(xi) with respect to any REO Property sold or otherwise disposed of
during the related Collection Period and for which a Final Recovery
Determination has been made, (A) the loan number of the related Mortgage
Loan, (B) the amount of sale proceeds and other amounts, if any, received
in respect of such REO Property during the related Collection Period and
the portion thereof included in the related Available Distribution Amount
for such Distribution Date, (C) the date of the Final Recovery
Determination, (D) the amount of any Liquidation Expenses, (E) the Stated
Principal Balance, (F) the unpaid principal balance and (G) the amount of
any realized losses;
(xii) the amount of principal prepayments (in the aggregate and broken
out on a loan-by-loan basis) made during the related Collection Period, the
amount of any Yield Maintenance Charges and/or Prepayment Premiums (in the
aggregate and broken out or a loan-by-loan basis) paid during the related
Collection Period and the aggregate amount of any Prepayment Interest
Shortfalls not covered by the applicable Master Servicer for such
Distribution Date;
(xiii) the amount of Servicing Advances and P&I Advances outstanding
(net of reimbursed Advances) which have been made by the applicable Master
Servicer or the Trustee in the aggregate and by Mortgaged Property or
Mortgage Loan, as the case may be;
(xiv) the aggregate amount of Servicing Fees and primary servicing
fees retained by or paid to the applicable Master Servicer or any primary
servicer and Special Servicing Fees retained by or paid to the applicable
Special Servicer during the related Collection Period;
(xv) the amount of any Appraisal Reduction Amounts allocated during
the related Collection Period on a loan-by-loan basis; the total Appraisal
Reduction Amounts allocated during the related Collection Period; and the
total Appraisal Reduction Amounts as of such Distribution Date on a
loan-by-loan basis;
(xvi) the Collateral Support Deficit, if any for such Distribution
Date;
(xvii) Trust Fund expenses incurred during the related Due
Period;
(xviii) original and current ratings of the Rating Agencies on
all applicable Classes of Certificates; and
(xix) the amounts held in the Excess Liquidation Proceeds
Account.
In the case of information furnished pursuant to subclauses (i),
(ii) and (iv) above, the amounts shall be expressed as a dollar amount in the
aggregate for all Certificates of each applicable Class and per $1,000 of
original Certificate Principal Balance or Certificate Notional Amount, as the
case may be.
The Trustee need not deliver to the Depositor, the Master Servicers,
the Special Servicers, the Underwriters, the Rating Agencies or the Controlling
Class Representative any Statement to Certificateholders that has been made
available to such Person via the Trustee's Internet Website as provided below;
provided, 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
Statement to Certificateholders shall be deemed to have agreed to keep
confidential the information therein until such Statement to Certificateholders
is filed with the Commission, and the Statement to Certificateholders or, if
presented on Trustee's Internet Website, such website, shall bear a legend to
the following effect: No recipient shall use or disclose the information
contained in this statement/report/file in any manner which could result in a
violation of any provision of the Securities Act of 1933 or the Securities
Exchange Act of 1934 or would require registration of any Non-Registered
Certificates pursuant to Section 5 of the Securities Act of 1933.
On each Distribution Date, the Trustee shall provide or make
available electronically to all Privileged Persons, each file and report
comprising the CMSA Investor Reporting Package and any other report at
Depositor's request, 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, and each such
file and report or, if presented on Trustee's Internet Website, such website,
shall bear a legend to the following effect: No recipient shall use or disclose
the information contained in this statement/report/file in any manner which
could result in a violation of any provision of the Securities Act of 1933 or
the Securities Exchange Act of 1934 or would require registration of any
Non-Registered Certificates pursuant to Section 5 of the Securities Act of 1933.
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 a
Master Servicer, a 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 any interested
party, via the Trustee's Internet Website, in a downloadable format, the
Statement to Certificateholders, Unrestricted Servicer Reports, CMSA Bond Level
File, CMSA Collateral Summary File (which, in each case, if applicable, will
identify each Mortgage Loan by loan number and property name) and, with the
consent or at the direction of the Depositor, such other information regarding
the Certificates and/or the Mortgage Loans as the Trustee may have in its
possession; provided that, unless (i) the particular report or information has
been filed with the Commission pursuant to Section 8.14 or (ii) the Depositor
has notified the Trustee that CSFB LLC has sold the Non-Registered Certificates
to unaffiliated third parties, access to such reports and information on the
Trustee's Internet Website will be protected to the same extent, and limited to
the same Persons, as the Restricted Servicer Reports. After the Trustee shall
have received the notice from the Depositor regarding the sale of the
Non-Registered Certificates, as described in the preceding sentence, the Trustee
shall make the Statement to Certificateholders available to any interested party
via its Internet Website. The Trustee shall make the Restricted Servicer Reports
available each month, via the Trustee's Internet Website only, to any Privileged
Person, upon receipt by the Trustee from such Person of a certification
substantially in the form of Exhibit K-1 or Exhibit K-2, as applicable;
provided, however, that the Trustee shall provide access to such reports to each
party hereto, the Controlling Class Representative, the Mortgage Loan Sellers,
each Underwriter and each Rating Agency without requiring such certification. In
addition, the Trustee is hereby directed and authorized to make available, as a
convenience to interested parties (and not in furtherance of the distribution of
the Prospectus or the Prospectus Supplement under the securities laws), this
Agreement, the Prospectus and the Prospectus Supplement via the Trustee's
Internet Website. The Trustee will make no representations or warranties as to
the accuracy or completeness of such documents and will assume no responsibility
therefor.
The Trustee's Internet Website shall be located at
"xxx.xxxxxxx.xxx/xxxx" or at such other address as shall be specified by the
Trustee from time to time in the Statement to Certificateholders and in one or
more written notices delivered to the other parties hereto, the Controlling
Class Representative (if any), the Certificateholders and the Rating Agencies.
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 with this
Agreement.
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 Statement to Certificateholders and may
affix thereto any disclaimer it deems appropriate in its reasonable discretion
(without suggesting liability on the part of any other party hereto).
(b) By 12:00 p.m. New York City time on the second Business Day
following each Determination Date, each Master Servicer shall deliver to the
Trustee the CMSA Loan Periodic Update File and supplemental reports reflecting
information as of the close of business on the last day of the Collection Period
with respect to the Mortgage Loans for which it acts as Master Servicer, in a
mutually agreeable electronic format. Such CMSA Loan Periodic Update File and
any written information supplemental thereto shall include such information with
respect to the Mortgage Loans for which it acts as Master Servicer that is
reasonably required by the Trustee for purposes of making the calculations and
preparing the reports for which the Trustee is responsible pursuant to Section
4.01, this Section 4.02, Section 4.04 or any other section of this Agreement, as
set forth in reasonable written specifications or guidelines issued by the
Trustee from time to time. Such information may be delivered by a Master
Servicer to the Trustee by telecopy or in such electronic or other form as may
be reasonably acceptable to the Trustee and such Master Servicer.
Notwithstanding the foregoing, because each Master Servicer will not
receive the Servicing Files until 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 in April 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 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, as may be reasonably required by the applicable Master Servicer)
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 Section 4.02(a), this Section 4.02(b) or Section 4.02(c) shall not
constitute a breach of Section 4.02(a), this Section 4.02(b) or of Section
4.02(c) to the extent such Master Servicer or such Special Servicer 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).
(c) 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
B to the Prospectus Supplement 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 Section 4.03(c), either (i) remit from
its own funds to the Trustee for deposit into the Lower-Tier Distribution
Account an amount equal to the aggregate amount of P&I Advances, if any, to be
made in respect of the related Distribution Date, (ii) apply amounts held in 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. 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 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 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 shall (not later than 12:00 noon, New York City time, on the related
Distribution Date) make, and if the Trustee fails to do so, any Fiscal Agent
shall (not later than 1:00 p.m., 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 a 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 and Workout 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) and any REO Mortgage Loans for which it acts
as Master Servicer 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 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 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 and any REO Mortgage Loans expected to be
outstanding immediately following such Distribution Date is less than (ii) the
then aggregate Class Principal Balance of the Principal Balance 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 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 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 Q Certificates;
second, to the Class P Certificates; third, to the Class O Certificates; fourth,
to the Class N Certificates; fifth, to the Class M Certificates; sixth, to the
Class L Certificates, seventh, to the Class K Certificates, eighth, to the Class
J Certificates, ninth, to the Class H Certificates, tenth, to the Class G
Certificates, eleventh, to the Class F Certificates, twelfth, to the Class E
Certificates, thirteenth, to the Class D Certificates, fourteenth, to the Class
C Certificates, and fifteenth, 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 and Class A-2 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, Class LA-1-3, Class
LA-1-4, Class LA-1-5 and Class LA-1-6 Uncertificated Interests, to each such
Uncertificated Lower-Tier Interest, in that order; and 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. 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 Realized Losses and Additional Trust
Fund Expenses to be made pursuant to Section 4.04. The Trustee shall calculate
the Available Distribution Amount for each Distribution Date and shall allocate
such 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.
Section 4.06 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 and the Lower-Tier 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 and shall file, or cause to be filed with the Internal
Revenue Service, together with Form 1041 or such other form as may be
applicable, information returns with respect to income relating to their share
of Post-ARD Additional Interest and, at the time or times and in the manner
required by the Code.
ARTICLE V
THE CERTIFICATES
Section 5.01 The Certificates
(a) The Certificates shall consist of 24 Classes with the following
respective alphabetic or alphanumeric Class designations: "A-X," "A-CP," "A-Y,"
"X-0," "X-0," "X," "X," "D," "E," "F," "G," "H," "J," "K," "L," "M," "N," "O,"
"P," "Q," "R," "LR" and "V," 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 B, Class C, Class D, Class E, Class F, Class G, Class H,
Class J, Class K and Class L 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-Y, Class A-1, Class A-2,
Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class J, Class K
and Class L 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
other Regular Interest Certificates will be issuable only in denominations
corresponding to initial Certificate Principal Balances as of the Closing Date
of not less than $100,000 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 officer. 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 Street and
Marquette Avenue, MAC# X0000-000, Xxxxxxxxxxx, Xxxxxxxxx 55479-0113) 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 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 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 or Class M 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 or Class M 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 or Class M 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 or Class M
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 or
Class M 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 or Class M
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 or Class M 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 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 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 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-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 and the Lower-Tier REMIC, 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 either 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 B, Class
C, Class D, Class E, Class F, Class G, Class H, Class J, Class K, Class L and
Class M 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
Co-op 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 to an A/B Loan Pair,
first out of amounts attributable to an A/B Loan Pair on deposit in the related
the A/B Loan Pair Custodial Account and then out of the related Collection
Account, against any loss, liability, cost or expense (including reasonable
legal 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 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.
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 a Master
Servicer or a 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 the Master Servicers or the 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.
(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 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
with respect to any of the Mortgage Loans and, at mutually agreeable times,
access to such of its officers as are responsible for such obligations
;provided, that the Controlling Class Representative shall have additional
access to information as provided in Section 3.15(c) and Section 8.12(b) hereof.
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 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 a Collection Account, or to remit to the applicable Master
Servicer for deposit into a 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 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 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 a 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, 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
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 Holders of
Certificates entitled to at least 25% of the Voting Rights or by the
Controlling Class Representative; provided, however, that with respect
to any such breach which 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 delay does not materially and adversely affect the
Certificateholders and 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 Holders of Certificates
entitled to at least 25% of the Voting Rights or by the Controlling
Class Representative; provided, however, that with respect to any such
breach which 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
delay does not materially and adversely affect the Certificateholders
and 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 a Special
Servicer and such decree or order shall have remained in force
undischarged, undismissed or unstayed for a period of 60 days; or
(ix) a Master Servicer or a 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 a 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) the Trustee shall have received written notice from Xxxxx'x
to the effect that the continuation of a Master Servicer or a Special
Servicer in such capacity would, in and of itself, result, or has
resulted, in a qualification, downgrade or withdrawal of one or more
ratings assigned by Xxxxx'x to the Certificates; or
(xii) Xxxxx'x places the rating of any Class of Certificates on
"watchlist" status for possible ratings downgrade or withdrawal citing
servicing concerns with respect to a Master Servicer or a Special
Servicer as the sole or a contributory factor in such rating action,
and Xxxxx'x has not removed such rating from "watchlist" status within
60 days thereafter or stated that servicing is no longer a
contributory factor; 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 such Special
Servicer, as the case may be, is not reinstated to that list within 60
days after its removal therefrom.
When a single entity acts as General Master Servicer, Co-op 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) through (xiii) above) in one capacity shall constitute
an Event of Default in both 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
Trustee may, and at the written direction of the Holders of Certificates
entitled to not less than 25% of the Voting Rights, 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 pursuant to Section 3.11
or Section 6.03 and other than as a Holder of any Certificate). From and after
the receipt by the Defaulting Party of such written notice, all authority and
power of the Defaulting Party under this Agreement, whether with respect to the
Certificates (other than as a Holder of any Certificate) or the Mortgage Loans
or otherwise, shall pass to and be vested in the Trustee pursuant to and under
this Section, and, without limitation, the Trustee is hereby authorized and
empowered to execute and deliver, on behalf of and at the expense of the
Defaulting Party, as attorney-in-fact or otherwise, any and all documents and
other instruments, and to do or accomplish all other acts or things necessary or
appropriate to effect the purposes of such notice of termination, whether to
complete the transfer and endorsement or assignment of the Mortgage Loans and
related documents, or otherwise. Each Master Servicer and each 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 two 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 a Collection 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, 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). Any costs or expenses (including those of any other party
hereto) incurred in connection with any actions to be taken by a 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 a 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 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
(subject to Section 3.11) 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 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 a 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). 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 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 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 a Special Servicer
pursuant to Section 6.04, any termination of such 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 the B Loan Holder.
(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 the B Loan Holder 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.
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) or Section 7.01(a)(xii) or a 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 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 a
Master Servicer or a 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 a 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.
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 March
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 March
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 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 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)
except as provided in Article X, 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 negligent
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. 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 (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 "Baa2" from Xxxxx'x and "BBB" from S&P (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
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 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 and to the B Loan Holders 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, 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, 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
and the other Master Servicer 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, with the consent of the Master Servicers, appoint
at the Trustee's own expense one or more Custodians to hold all or a portion of
the Mortgage Files as agent for the Trustee; provided that if the Custodian is
an Affiliate of the Trustee such consent of the Master Servicers need not be
obtained and the Trustee shall inform the Master Servicers of such appointment.
Each Custodian shall be a depositary 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 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, 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 Sub-Servicing Agreement delivered to the Trustee since the
Closing Date and any amendments and exhibits hereto or thereto; (iii) all
Statement to Certificateholders 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 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 Master Servicers and
the 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 (except with
respect to Co-op Mortgage Loans) 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 their 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, 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.
In addition, each Master Servicer and each Special Servicer shall,
upon reasonable prior written request and during normal business hours, make
available for review by the Controlling Class Representative, any additional
information in respect of its rights and obligations hereunder that such
Controlling Class Representative may reasonably request.
(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 (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,
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 2.07. 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
Statement to Certificateholders disseminated by the Trustee on such
Distribution Date attached as exhibits;
(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) (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;
(iii) prepare 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 Officer's Certificates and Accountant's Statements 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 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) The Form 10-K shall include any certification (the
"Xxxxxxxx-Xxxxx Certification") required to be included therewith pursuant to
the Xxxxxxxx-Xxxxx Act of 2002, and the rules and regulations of the Commission
promulgated thereunder (including any interpretations thereof by the
Commission's staff) 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 O hereto (with respect to the Master Servicers
and the Trustee) or in the form set forth on Exhibit A to Exhibit O 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 O hereto shall relate to distribution information,
and each Master Servicer's certification with respect to items 4 and 5 of
Exhibit O hereto shall relate to servicing information. 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 addition, if directed by the Depositor,
such Performing Party shall provide an identical certification to Depositor's
certified public accountants that such Performing Party provided to its own
certified public accountants to the extent such certification relates to the
performance of such Performing Party's duties pursuant to this Agreement or a
modified certificate limiting the certification therein to the performance of
such Performing Party's duties pursuant to this Agreement. 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(b) with respect to the period of
time such Performing Party was subject to this Agreement.
(c) 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.
(d) 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.
(e) 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
(e) to contribute are several in the proportions described in the preceding
sentence and not joint.
(f) 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 10 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, a 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 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 Co-op 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 each 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 Certificateholder
or group of Certificateholders with the largest Percentage Interest in the
Controlling Class. Notwithstanding the foregoing, if any party other than the
Co-op Master Servicer exercises such purchase option, then the Co-op Master
Servicer will be entitled to purchase the remaining Co-op Mortgage Loans and any
related REO Properties, in which case, such other party will purchase only the
Mortgage Loans and any REO Properties that are not being purchased by the Co-op
Master Servicer. 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 or any Controlling Class
Certificateholder(s), such Person(s) shall: deliver to the applicable Master
Servicer for deposit (or, if the applicable Master Servicer is the purchaser, it
shall deposit) in a Collection Account (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; 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 thereto on such Master Servicer Remittance Date from
the Collection Account pursuant to the first paragraph of Section 3.04(b),
together with any other amounts on deposit in the Collection Account that would
otherwise be held for future distribution. Upon confirmation that the deposit of
the Termination Price has been made to the Collection Account 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 Lower-Tier Distribution Account pursuant to Section
3.05(b), but only to the extent that such amounts are not already on deposit in
the Collection Account. In addition, the Master Servicers shall transfer to the
Trustee for deposit into the Lower-Tier Distribution Account all amounts
required to be transferred by it to such account on such Master Servicer
Remittance Date from such 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.
(c) Notice of any termination shall be given promptly by the Trustee
by letter to Certificateholders and each B Loan 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 Certificateholder(s) of the Controlling Class, 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 the Lower-Tier Distribution Amount and the
amount of any Prepayment Premiums and Yield Maintenance Charges distributable
pursuant to 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 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(a), 4.01(d) and
4.01(e)(ii) and shall be distributed in termination and liquidation of the
Uncertificated Lower-Tier Interests and the Class LR Certificates in accordance
with Sections 4.01(b), 4.01(d) and 4.01(e)(ii). 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(h).
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 REMIC Pool shall
be terminated in accordance with the following additional requirements, which
meet the definition of a "qualified liquidation" of 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 Upper-Tier
REMIC's and the Lower-Tier REMIC's 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 all of the assets of and the Lower-Tier REMIC 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 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
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 Lower-Tier REMIC and the
Upper-Tier REMIC shall terminate at that time.
ARTICLE X
ADDITIONAL TAX PROVISIONS
Section 10.01 Tax Administration
(a) The Trustee shall make or cause to be made elections to treat
each of the Lower-Tier REMIC and the Upper-Tier REMIC as a REMIC under the Code
and, if necessary, under State Tax Laws. Each such election will be made on 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 either Trust REMIC other than the
foregoing interests.
(b) The Closing Date is hereby designated as the Startup Day for the
Lower-Tier REMIC and the Upper-Tier 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 the Lower-Tier 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 it reasonably determines 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 Internal Revenue Service 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 either
Trust REMIC to fail to qualify as a REMIC or (ii) result in the imposition of a
tax under the REMIC Provisions upon either 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 either Trust REMIC, cause either 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 either 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 either
Trust REMIC, and such party shall not take any such action, or cause either
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 the Trust Fund 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.
(h) In the event that any tax is imposed on "prohibited
transactions" of either Trust REMIC as defined in Section 860F(a)(2) of the
Code, on "net income from foreclosure property" of either 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 or as otherwise may be required by the REMIC Provisions.
(j) Following the Startup Day, none of the Master Servicers, the
Special Servicers or the Trustee shall accept any contributions of assets to
either 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 either Trust REMIC will not cause either Trust REMIC to fail to
qualify as a REMIC at any time that any Certificates are outstanding or subject
either 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 either Trust REMIC will
receive a fee or other compensation for services nor, to the extent reasonably
within their control, permit either Trust REMIC to receive an 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 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, imminent 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 either Trust REMIC, nor sell or dispose of any investments in the
Collection Account for gain, nor accept any contributions to either 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 either Trust REMIC as a
REMIC or cause either 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 Article. 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 extraordinary expenses, 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 Depositor, Master Servicers, Special Servicers and
Fiscal Agent to Cooperate with Trustee
(a) The Depositor shall provide or cause to be provided to the
Trustee, within 10 days after the Closing Date, all information or data that the
Trustee reasonably determines to be relevant for tax purposes as to the
valuations and issue prices of the Certificates, including the price, yield,
prepayment assumption and projected cash flow of the Certificates.
(b) Each Master Servicer, each Special Servicer and any Fiscal Agent
shall furnish such reports, certifications and information in its possession,
and access to such books and records maintained thereby, as may relate to the
Certificates or the Trust Fund and as shall be reasonably requested by the
Trustee in order to enable it to perform its duties under this Article X.
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 either
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 either 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 or, 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.
(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,
without the consent of such B Loan Holder, (ii) adversely affect in any material
respect the interests of the Holders of any Class of Certificates or any B Loan
Holder in a manner other than as described in clause (i) above, without the
consent of the Holders of all Certificates of such Class, (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 if such modification affects the rights of such B Loan
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 or any of its Affiliates 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 either
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 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 Counterparts
This Agreement may be executed simultaneously in any number of
counterparts, each of which counterparts shall be deemed to be an original, and
such counterparts shall constitute but one and the same instrument.
Section 11.03 Limitation on Rights of Certificateholders
and B Loan Holders
(a) The death or incapacity of any Certificateholder or B Loan
Holder shall not operate to terminate this Agreement or the Trust, nor entitle
such Certificateholder's or such B Loan 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, nor otherwise affect the rights,
obligations and liabilities of the parties hereto or any of them.
(b) No Certificateholder or B Loan 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 or B Loan Holders from time to time as partners or members of
an association; nor shall any Certificateholder or B Loan 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 or B Loan Holder 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
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: (212)
326-7805; (iii) in the case of the General Master Servicer, Midland Loan
Services, Inc., 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: President, telecopy number:
(000) 000-0000; (iv) 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; (v) in the
case of the Trustee, Xxxxx Fargo Bank Minnesota, N.A., 0000 Xxx Xxxxxxxxx Xxxx,
Xxxxxxxx, Xxxxxxxx 00000-0000, Attention: Corporate Trust Services (CMBS) -
Credit Suisse First Boston Series 2003-CPN1; (vi) in the case of the CSFB
Mortgage Loan Seller, Column Financial, Inc., 0000 Xxxxxxxxx Xxxx, X.X., Xxxxx
0000, Xxxxxxx, Xxxxxxx 00000, Attention: President, telecopy number: (404)
239-0419; (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; (vii) in the case of the
Rating Agencies, (A) Xxxxx'x Investors Service Inc., 00 Xxxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: Commercial MBS Monitoring Department, telecopy number
(000) 000-0000, 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; (viii)
in the case of the Co-op Master Servicer, NCB, FSB, 0000 Xxx Xxxxxx, X.X.,
Xxxxxxxxxx, X.X. 00000, Attention: Xxxxxx Xxxxxxxx, telecopy number: (202)
336-7800; 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; (ix) in the case of any
Mortgage Loan Seller, the address for notices to such Mortgage Loan Seller under
the related Mortgage Loan Purchase Agreement; (x) in the case of the Column
Performance Guarantor, the address for notices to the Column Performance
Guarantor under the Column Performance Guarantee; (xi) 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 and
(xii) in the case of the initial Controlling Class Representative, Anthracite,
000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxx 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 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 a 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 the 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. 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 change in the identity of the anchor tenant (i.e., a
tenant representing more than 20% of the total net rentable square
feet of space) at any Mortgaged Property used for retail purposes or
any change in the term of the lease for an anchor tenant at any such
Mortgaged Property;
(iii) 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;
(iv) any defeasance of a Mortgage Loan or material damage to a
Mortgaged Property; (v) any change in a franchise held by the
related Borrower; (vi) any loan subject to bankruptcy proceedings;
and (vii) any release of a Letter of Credit or debt service reserve
with respect to any Mortgage Loan.
(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.
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.
CREDIT SUISSE FIRST BOSTON MORTGAGE
SECURITIES CORP.
Depositor
By:
-------------------------------------
Name:
Title:
MIDLAND LOAN SERVICES, INC.
General Master Servicer and General
Special Servicer
By:
-------------------------------------
Name:
Title:
NCB, FSB
Co-op Master Servicer
By:
-------------------------------------
Name:
Title:
NATIONAL CONSUMER COOPERATIVE BANK
Co-op Special Servicer
By:
-------------------------------------
Name:
Title:
XXXXX FARGO BANK MINNESOTA, N.A.
Solely in its capacity as Trustee
By:
-------------------------------------
Name:
Title:
STATE OF ___________ )
) ss.:
COUNTY OF __________ )
On the ______ day of ______________ 2003, before me, a notary public
in and for said State, personally appeared _______________________________,
personally known to me to be a ______________________________ 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.
-------------------------------
Notary Public
[Notarial Seal]
STATE OF ___________ )
) ss.:
COUNTY OF __________ )
On the ______ day of ______________ 2003, before me, a notary public
in and for said State, personally appeared _______________________________,
personally known to me to be a ______________________________ of MIDLAND LOAN
SERVICES, 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.
-------------------------------
Notary Public
[Notarial Seal]
STATE OF ___________ )
) ss.:
COUNTY OF __________ )
On the ______ day of ______________ 2003, before me, a notary public
in and for said State, personally appeared _______________________________,
personally known to me to be a ______________________________ 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.
-------------------------------
Notary Public
[Notarial Seal]
STATE OF ___________ )
) ss.:
COUNTY OF __________ )
On the ______ day of ______________ 2003, before me, a notary public
in and for said State, personally appeared _______________________________,
personally known to me to be a ______________________________ 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.
-------------------------------
Notary Public
[Notarial Seal]
STATE OF ___________ )
) ss.:
COUNTY OF __________ )
On the ______ day of ______________ 2003, before me, a notary public
in and for said State, personally appeared _______________________________,
personally known to me to be a ______________________________ 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.
-------------------------------
Notary Public
[Notarial Seal]
EXHIBIT A-1
FORM OF CLASS A-X, CLASS A-Y AND CLASS A-SP CERTIFICATES
CLASS [A-X] [A-Y] [A-SP] COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATE, SERIES 2003-CPN1
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-Y] [A-SP] Certificates as of
the Closing Date:
$__________
Closing Date: March 13, 2003 Initial Certificate Notional Amount
of this Certificate as of the Closing
Date:
$__________
First Distribution Date: Aggregate Cut-off Date Principal
April 17, 2003 Balance of the Mortgage Loans as of
the Closing Date ("Initial Pool
Balance"): $1,006,389,300
General Master Servicer and General Trustee:
Special Servicer: Xxxxx Fargo Bank Minnesota, N.A.
Midland Loan Services, Inc.
Co-op Master
Servicer:
NCB, FSB
Co-op Special Servicer:
National Consumer Cooperative Bank
Certificate No. [A-X] [A-Y] [A-SP] -__ CUSIP No.: _____________
Common Code: ___________
ISIN No.: ______________
[REMOVE FOR CLASS A-Y][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 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, (C) TO A PERSON WHO IS NOT A "U.S. PERSON" AS
DEFINED IN REGULATION S UNDER THE SECURITIES ACT, OR (D) PURSUANT TO ANOTHER
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
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 IMMEDIATELY PRECEDING 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.
A TRANSFEREE 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 A U.S. PERSON WITHIN THE MEANING OF RULE 902 UNDER REGULATION S.
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
THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986 (THE "CODE"), OR ANY
ESSENTIALLY SIMILAR PROVISION OF APPLICABLE FEDERAL, STATE OR LOCAL LAW
("SIMILAR LAW") (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, 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.,
MIDLAND LOAN SERVICES, 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").
[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) MARCH 13, 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.][NCB ENTITY] 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 March 1, 2003 (the "Agreement"), among Credit Suisse
First Boston Mortgage Securities Corp., as depositor (the "Depositor", which
term includes any successors in interest), Midland Loan Services, Inc., as
general master servicer (in such capacity, the "General Master Servicer," which
term includes any successors in interest), and general special servicer (in such
capacity, the "General Special Servicer", which term includes any successors in
interest), NCB, FSB, as co-op master servicer (in such capacity, the "Co-op
Master Servicer," which term includes any successors in interest), National
Consumer Cooperative Bank, as co-op special servicer (in such capacity, the
"Co-op Special Servicer," which term includes any successors in interest), 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 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-Y] [A-SP] 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 Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
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 (other than in connection with the
initial issuance of the Certificates or a transfer of this Certificate by the
Depositor or any Affiliate of the Depositor) 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
General Special Servicer, the Co-op Master 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 (other than in connection with the initial
issuance of the Book-Entry Certificates or a transfer of any interest therein by
the Depositor, Credit Suisse First Boston LLC ("CSFB") or any of their
respective Affiliates), then 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 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. Any interest in a Rule
144A Global Certificate shall not be transferred to any Person who takes
delivery other than in the form of an interest in a Rule 144A Global
Certificate. Notwithstanding the preceding two sentences, any interest in a Rule
144A Global Certificate may be transferred (without delivery of any certificate
or Opinion of Counsel described in the second preceding sentence) by the
Depositor or any Affiliate of the Depositor to any Person who takes delivery in
the form of a beneficial interest in the Regulation S Global Certificate of the
same Class as the Rule 144A Global Certificate, as the case may be, upon
delivery to the Certificate Registrar of (x) 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 (y)
such written orders and instructions as are required under the applicable
procedures of DTC, Clearstream and Euroclear to direct the Trustee to debit the
account of a Depository Participant by a denomination of interests in the
related Rule 144A Global Certificate, and credit the account of a Depository
Participant by a denomination of interests in the related 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
certification and orders and instructions, the Trustee, subject to and in
accordance with the applicable procedures of DTC, shall reduce the denomination
of the related 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.
If this Certificate constitutes a Regulation S Global
Certificate, then beneficial interests in this Certificate shall not be
transferred to any 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 Regulation S Certificate. 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.
The Rule 144A Global Certificates and the Regulation S Global
Certificates shall be deposited with the Trustee as custodian for DTC and
registered in the name of Cede & Co. as nominee of DTC. [Remove for A-Y]
None of the Depositor, the Trustee or the Certificate
Registrar is obligated to register or qualify the Class [A-X] [A-Y] [A-SP]
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, the Depositor, the Trustee, the General Master Servicer, the General
Special Servicer, the Co-op Master 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 four 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 or any
essentially similar provision of applicable federal, state or local law
("Similar Law") (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 Similar Law or would result in the imposition of an excise
tax under Section 4975 of the Code or Similar Law. 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 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 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 General Special Servicer, the Co-op Master Servicer, the Co-op
Special Servicer, any Sub-Servicer 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 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 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
forms of certification attached to the Agreement as Exhibit G-1 (in the case of
Definitive Certificates), and Exhibit G-2 (in the case of ownership interests in
Book-Entry Certificates) are acceptable for purposes of the preceding sentence.
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.
[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.]
[Remove for A-Y]
The Depositor, the General Master Servicer, the General
Special Servicer, the Co-op Master 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 General Special Servicer, the Co-op
Master 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
Master Servicer, the 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 any single Controlling Class Certificateholder
or group of Controlling Class Certificateholders, the Co-op Master Servicer, the
Co-op Special Servicer, the General Master Servicer or the General Special
Servicer, in that order of preference, 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
General Master Servicer, the General Special Servicer, the Co-op Master
Servicer, the Co-op 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 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 General Special
Servicer, the Co-op Master 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 General Special
Servicer, the Co-op Master 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 the Upper-Tier REMIC and the Lower-Tier REMIC 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-Y] [A-SP] 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
Mortgage Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to assignee on the Certificate Register of the Trust
Fund.
I (we) further direct the Certificate Registrar to issue a new
Mortgage Pass-Through Certificate of a like Percentage Interest and Class to the
above named assignee and deliver such Mortgage Pass-Through Certificate to the
following address: _____________________________________________________________
________________________________________________________________________________
Dated:
_____________________________________
Signature by or on behalf of Assignor
_____________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to _________________________________
for the account of ____________________________________________________________.
Distributions made by check (such check to be made payable to
___________________________), and all applicable statements and notices should
be mailed to___________________________________________________________________.
This information is provided by _____________________________,
the Assignee named above, or __________________________________________________,
as its agent.
EXHIBIT A-2
FORM OF CLASS A-1, CLASS A-2, CLASS B, CLASS C ,CLASS D AND CLASS E
CERTIFICATES
CLASS [A-1] [A-2] [B] [C] [D] [E] COMMERCIAL MORTGAGE
PASS-THROUGH CERTIFICATE, SERIES 2003-CPN1
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: ___% per annum Class Principal Balance of the Class
[A-1] [A-2] [B] [C] [D] [E]
Certificates as of the Closing Date:
$___________
Closing Date: March 13, 2003 Initial Certificate Principal Balance
of this Certificate as of the Closing
Date:
$___________
First Distribution Date: Aggregate Cut-off Date Principal
April 17, 2003 Balance of the Mortgage Loans as of
the Closing Date ("Initial Pool
Balance"):
$1,006,389,300
General Master Servicer and General Trustee:
Special Servicer: Xxxxx Fargo Bank Minnesota, N.A.
Midland Loan Services, Inc.
Co-op Master Servicer:
NCB, FSB
Co-op Special Servicer:
National Consumer Cooperative Bank
Certificate No.[A-1] [A-2] [B] [C] [D] CUSIP No.: _____________
[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.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN CREDIT
SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP., XXXXX FARGO BANK MINNESOTA, N.A.,
MIDLAND LOAN SERVICES, 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").
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
THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986 (THE "CODE"), OR ANY
ESSENTIALLY SIMILAR PROVISION OF APPLICABLE FEDERAL, STATE OR LOCAL LAW
("SIMILAR LAW") (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, EXCEPT IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
[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]
[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] [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 March 1, 2003 (the "Agreement"), among Credit Suisse
First Boston Mortgage Securities Corp., as depositor (the "Depositor", which
term includes successors in interest), Midland Loan Services, Inc., as general
master servicer (in such capacity, the "General Master Servicer," which term
includes any successors in interest), and general special servicer (in such
capacity, the "General Special Servicer", which term includes any successors in
interest), NCB, FSB, as co-op master servicer (in such capacity, the "Co-op
Master Servicer," which term includes any successors in interest), National
Consumer Cooperative Bank, as co-op special servicer (in such capacity, the
"Co-op Special Servicer," which term includes any successors in interest) 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] [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 Collateral Support Deficit 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 Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
Any distribution to the Holder of this Certificate in
reduction of the Certificate Principal Balance hereof is binding on such Holder
and all future Holders of this Certificate and any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such distribution is made upon this Certificate.
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 or any
essentially similar provision of applicable federal, state or local law
("Similar Law") (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 Similar Law or would result in the imposition of an excise
tax under Section 4975 of the Code or Similar Law. 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 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 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 General Special Servicer, the Co-op Master Servicer, the Co-op
Special Servicer, any Sub-Servicer 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 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 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
forms of certification attached to the Agreement as Exhibit G-1 (in the case of
Definitive Certificates), and Exhibit G-2 (in the case of ownership interests in
Book-Entry Certificates) are acceptable for purposes of the preceding sentence.
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.
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 General
Special Servicer, the Co-op Master 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 General Special Servicer, the Co-op
Master 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 General Special Servicer, the Co-op Master
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 any single Controlling Class Certificateholder
or group of Controlling Class Certificateholders, the Co-op Master Servicer, the
Co-op Special Servicer, the General Master Servicer or the General Special
Servicer, in that order of preference, 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, any single
Controlling Class Certificateholder or group of Controlling Class
Certificateholders, the Co-op Master Servicer, the Co-op Special Servicer, the
General Master Servicer or the General Special Servicer 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
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 General Special
Servicer, the Co-op Master 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 General Special
Servicer, the Co-op Master 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 the Upper-Tier REMIC or the Lower-Tier REMIC 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] [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
Mortgage Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to assignee on the Certificate Register of the Trust
Fund.
I (we) further direct the Certificate Registrar to issue a new
Mortgage Pass-Through Certificate of a like Percentage Interest and Class to the
above named assignee and deliver such Mortgage Pass-Through Certificate to the
following address: _____________________________________________________________
________________________________________________________________________________
Dated:
_____________________________________
Signature by or on behalf of Assignor
_____________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to _________________________________
for the account of ____________________________________________________________.
Distributions made by check (such check to be made payable to
___________________________), and all applicable statements and notices should
be mailed to___________________________________________________________________.
This information is provided by _____________________________,
the Assignee named above, or __________________________________________________,
as its agent.
EXHIBIT A-3
FORM OF CLASS F, CLASS G AND CLASS H CERTIFICATES
CLASS [F] [G] [H] COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2003-CPN1
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: ____% per annum Class Principal Balance of the Class
[F] [G] [H] Certificates as of the
Closing Date:
$_________
Closing Date: March 13, 2003 Initial Certificate Principal Balance
of this Certificate as of the Closing
Date:
$_________
First Distribution Date: Aggregate Cut-off Date Principal
April 17, 2003 Balance of the Mortgage Loans as of
the Closing Date ("Initial Pool
Balance"):
$1,006,389,300
General Master Servicer and General Trustee:
Special Servicer: Xxxxx Fargo Bank Minnesota, N.A.
Midland Loan Services, Inc.
Co-op Master Servicer:
NCB, FSB
Co-op Special Servicer:
National Consumer Cooperative Bank
Certificate No. [F] [G] [H] CUSIP No.: _____________
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 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, (C) TO A PERSON WHO IS NOT A "U.S. PERSON" AS
DEFINED IN REGULATION S UNDER THE SECURITIES ACT, OR (D) PURSUANT TO ANOTHER
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
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 IMMEDIATELY PRECEDING 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.
A TRANSFEREE 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 A U.S. PERSON WITHIN THE MEANING OF RULE 902 UNDER REGULATION S.
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
THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986 (THE "CODE"), OR ANY
ESSENTIALLY SIMILAR PROVISION OF APPLICABLE FEDERAL, STATE OR LOCAL LAW
("SIMILAR LAW") (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, 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.,
MIDLAND LOAN SERVICES, 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.
[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) MARCH 13, 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 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.
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]
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] Certificates. The Trust Fund was created and the Certificates
were issued pursuant to a Pooling and Servicing Agreement, dated as of March 1,
2003 (the "Agreement"), among Credit Suisse First Boston Mortgage Securities
Corp., as depositor (the "Depositor", which term includes successors in
interest), Midland Loan Services, Inc., as general master servicer (in such
capacity, the "General Master Servicer," which term includes any successors in
interest), and general special servicer (in such capacity, the "General Special
Servicer", which term includes any successors in interest), NCB, FSB, as co-op
master servicer (in such capacity, the "Co-op Master Servicer," which term
includes any successors in interest), National Consumer Cooperative Bank, as
co-op special servicer (in such capacity, the "Co-op Special Servicer," which
term includes any successors in interest), 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] 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 a Collateral Support Deficit 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 Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
Any distribution to the Holder of this Certificate in
reduction of the Certificate Principal Balance hereof is binding on such Holder
and all future Holders of this Certificate and any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such distribution is made upon this Certificate.
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 (other than in connection with the
initial issuance of the Certificates or a transfer of this Certificate by the
Depositor or any Affiliate of the Depositor) 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
General Special Servicer, the Co-op Master 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 (other than in connection with the initial
issuance of the Book-Entry Certificates or a transfer of any interest therein by
the Depositor, Credit Suisse First Boston LLC ("CSFB") or any of their
respective Affiliates), then 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 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. Any interest in a Rule
144A Global Certificate shall not be transferred to any Person who takes
delivery other than in the form of an interest in a Rule 144A Global
Certificate. Notwithstanding the preceding two sentences, any interest in a Rule
144A Global Certificate may be transferred (without delivery of any certificate
or Opinion of Counsel described in the second preceding sentence) by the
Depositor or any Affiliate of the Depositor to any Person who takes delivery in
the form of a beneficial interest in the Regulation S Global Certificate of the
same Class as the Rule 144A Global Certificate, as the case may be, upon
delivery to the Certificate Registrar of (x) 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 (y)
such written orders and instructions as are required under the applicable
procedures of DTC, Clearstream and Euroclear to direct the Trustee to debit the
account of a Depository Participant by a denomination of interests in the
related Rule 144A Global Certificate, and credit the account of a Depository
Participant by a denomination of interests in the related 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
certification and orders and instructions, the Trustee, subject to and in
accordance with the applicable procedures of DTC, shall reduce the denomination
of the related 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.
If this Certificate constitutes a Regulation S Global
Certificate, then beneficial interests in this Certificate shall not be
transferred to any 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 Regulation S Certificate. 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.
The Rule 144A Global Certificates and the Regulation S 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] 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, the Trustee the General Master Servicer, the General
Special Servicer, the Co-op Master 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 four 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 or any
essentially similar provision of applicable federal, state or local law
("Similar Law") (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 Similar Law or would result in the imposition of an excise
tax under Section 4975 of the Code or Similar Law. 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 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 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 General Special Servicer, the Co-op Master Servicer, the Co-op
Special Servicer, any Sub-Servicer 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 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 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
forms of certification attached to the Agreement as Exhibit G-1 (in the case of
Definitive Certificates), and Exhibit G-2 (in the case of ownership interests in
Book-Entry Certificates) are acceptable for purposes of the preceding sentence.
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.
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 General
Special Servicer, the Co-op Master 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 General Special Servicer, the Co-op
Master 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 General Special Servicer, the Co-op Master
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 any single Controlling Class Certificateholder
or group of Controlling Class Certificateholders, the Co-op Master Servicer, the
Co-op Special Servicer, the General Master Servicer or the General Special
Servicer, in that order of preference, 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
General Master Servicer, the General Special Servicer, the Co-op Master
Servicer, the Co-op 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 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 General Special
Servicer, the Co-op Master 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 General Special
Servicer, the Co-op Master 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 the Upper-Tier REMIC or the Lower-Tier REMIC 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] 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
Mortgage Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to assignee on the Certificate Register of the Trust
Fund.
I (we) further direct the Certificate Registrar to issue a new
Mortgage Pass-Through Certificate of a like Percentage Interest and Class to the
above named assignee and deliver such Mortgage Pass-Through Certificate to the
following address: _____________________________________________________________
________________________________________________________________________________
Dated:
_____________________________________
Signature by or on behalf of Assignor
_____________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to _________________________________
for the account of ____________________________________________________________.
Distributions made by check (such check to be made payable to
___________________________), and all applicable statements and notices should
be mailed to___________________________________________________________________.
This information is provided by _____________________________,
the Assignee named above, or __________________________________________________,
as its agent.
EXHIBIT A-4
FORM OF CLASS J, CLASS K, CLASS L, CLASS M, CLASS N, CLASS O, CLASS P
AND CLASS Q CERTIFICATES
CLASS [J] [K] [L] [M] [N] [O] [P] [Q] COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATE, SERIES 2003-CPN1
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: ___% per annum Class Principal Balance of the Class
[J][K][L][M][N][O][P][Q] Certificates
as of the Closing Date:
$__________
Closing Date: March 13, 2003 Initial Certificate Principal Balance
of this Certificate as of the Closing
Date:
$__________
First Distribution Date: Aggregate Cut-off Date Principal
Balance of the April 17, 2003
Mortgage Loans as of the Closing Date
("Initial Pool Balance"):
$1,006,389,300
General Master Servicer and General Trustee:
Special Servicer: Xxxxx Fargo Bank Minnesota, N.A.
Midland Loan Services, Inc.
Co-op Master Servicer:
NCB, FSB
Co-op Special Servicer:
National Consumer Cooperative Bank
Certificate No. [J][K][L][M][N][O][P] CUSIP No.: _____________
[Q] - ___
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 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, (C) TO A PERSON WHO IS NOT A "U.S. PERSON" AS
DEFINED IN REGULATION S UNDER THE SECURITIES ACT, OR (D) PURSUANT TO ANOTHER
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
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 IMMEDIATELY PRECEDING 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.
A TRANSFEREE 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 A U.S. PERSON WITHIN THE MEANING OF RULE 902 UNDER REGULATION S.
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
ANY ESSENTIALLY SIMILAR PROVISION OF APPLICABLE FEDERAL, STATE OR LOCAL LAW
("SIMILAR LAW") 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.,
MIDLAND LOAN SERVICES, 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.
[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) MARCH 13, 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 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.
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 [J] [K] [L]
[M] [N] [O] [P] [Q] 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 [J] [K] [L] [M] [N] [O] [P] [Q] Certificates. The
Trust Fund was created and the Certificates were issued pursuant to a Pooling
and Servicing Agreement, dated as of March 1, 2003 (the "Agreement"), among
Credit Suisse First Boston Mortgage Securities Corp., as depositor (the
"Depositor", which term includes successors in interest), Midland Loan Services,
Inc., as general master servicer (in such capacity, the "General Master
Servicer," which term includes any successors in interest), and general special
servicer (in such capacity, the "General Special Servicer", which term includes
any successors in interest), NCB, FSB, as co-op master servicer (in such
capacity, the "Co-op Master Servicer," which term includes any successors in
interest), National Consumer Cooperative Bank, as co-op special servicer (in
such capacity, the "Co-op Special Servicer," which term includes any successors
in interest), 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 [J] [K] [L] [M] [N] [O] [P] [Q] 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 Collateral Support Deficit 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 Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
Any distribution to the Holder of this Certificate in
reduction of the Certificate Principal Balance hereof is binding on such Holder
and all future Holders of this Certificate and any Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such distribution is made upon this Certificate.
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.
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 (other than in connection with the
initial issuance of the Certificates or a transfer of this Certificate by the
Depositor or any Affiliate of the Depositor) 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
General Special Servicer, the Co-op Master 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 (other than in connection with the initial
issuance of the Book-Entry Certificates or a transfer of any interest therein by
the Depositor, Credit Suisse First Boston LLC ("CSFB") or any of their
respective Affiliates), then 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 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. Any interest in a Rule
144A Global Certificate shall not be transferred to any Person who takes
delivery other than in the form of an interest in a Rule 144A Global
Certificate. Notwithstanding the preceding two sentences, any interest in a Rule
144A Global Certificate may be transferred (without delivery of any certificate
or Opinion of Counsel described in the second preceding sentence) by the
Depositor or any Affiliate of the Depositor to any Person who takes delivery in
the form of a beneficial interest in the Regulation S Global Certificate of the
same Class as the Rule 144A Global Certificate, as the case may be, upon
delivery to the Certificate Registrar of (x) 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 (y)
such written orders and instructions as are required under the applicable
procedures of DTC, Clearstream and Euroclear to direct the Trustee to debit the
account of a Depository Participant by a denomination of interests in the
related Rule 144A Global Certificate, and credit the account of a Depository
Participant by a denomination of interests in the related 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
certification and orders and instructions, the Trustee, subject to and in
accordance with the applicable procedures of DTC, shall reduce the denomination
of the related 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.
If this Certificate constitutes a Regulation S Global
Certificate, then beneficial interests in this Certificate shall not be
transferred to any 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 Regulation S Certificate. 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.
The Rule 144A Global Certificates and the Regulation S 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 [J] [K] [L] [M] [N] [O]
[P] [Q] 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, 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 LLC, the Trustee, any Fiscal Agent, the General Master Servicer,
the General Special Servicer, the Co-op Master 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 or any
essentially similar provision of applicable federal, state or local law
("Similar Law") (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 Similar Law or would result in the imposition of an excise
tax under Section 4975 of the Code or Similar Law. 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 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 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 General Special Servicer, the Co-op Master Servicer, the Co-op
Special Servicer, any Sub-Servicer 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 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 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
forms of certification attached to the Agreement as Exhibit G-1 (in the case of
Definitive Certificates), and Exhibit G-2 (in the case of ownership interests in
Book-Entry Certificates) are acceptable for purposes of the preceding sentence.
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.
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 General
Special Servicer, the Co-op Master 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 General Special Servicer, the Co-op
Master 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 General Special Servicer, the Co-op Master
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 any single Controlling Class Certificateholder
or group of Controlling Class Certificateholders, the Co-op Master Servicer, the
Co-op Special Servicer, the General Master Servicer or the General Special
Servicer, in that order of preference, 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
General Master Servicer, the General Special Servicer, the Co-op Master
Servicer, the Co-op 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 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 General Special
Servicer, the Co-op Master 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 General Special
Servicer, the Co-op Master 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 the Upper-Tier REMIC or the Lower-Tier REMIC 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 [J] [K] [L] [M] [N] [O] [P] [Q]
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
Mortgage Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to assignee on the Certificate Register of the Trust
Fund.
I (we) further direct the Certificate Registrar to issue a new
Mortgage Pass-Through Certificate of a like Percentage Interest and Class to the
above named assignee and deliver such Mortgage Pass-Through Certificate to the
following address: _____________________________________________________________
________________________________________________________________________________
Dated:
_____________________________________
Signature by or on behalf of Assignor
_____________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to _________________________________
for the account of ____________________________________________________________.
Distributions made by check (such check to be made payable to
___________________________), and all applicable statements and notices should
be mailed to___________________________________________________________________.
This information is provided by _____________________________,
the Assignee named above, or __________________________________________________,
as its agent.
EXHIBIT A-5
FORM OF CLASS V CERTIFICATES
CLASS V COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2003-CPN1
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: March 13, 2003 Percentage Interest evidenced by this
Class V Certificate:
______%
First Distribution Date: Aggregate Cut-off Date Principal
Balance of the April 17, 2003
Mortgage Loans as of the Closing Date
("Initial Pool Balance"):
$1,006,389,300
General Master Servicer and General Trustee:
Special Servicer: Xxxxx Fargo Bank Minnesota, N.A.
Midland Loan Services, Inc.
Co-op Master Servicer:
NCB, FSB
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
ANY ESSENTIALLY SIMILAR PROVISION OF APPLICABLE FEDERAL, STATE OR LOCAL LAW
("SIMILAR LAW") 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.
THE TRUST FUND IN WHICH THIS CERTIFICATE EVIDENCES AN INTEREST HAS NOT BEEN
REGISTERED AS AN "INVESTMENT COMPANY" UNDER THE INVESTMENT COMPANY ACT OF 1940,
AS AMENDED (THE "INVESTMENT COMPANY ACT"). ACCORDINGLY, THIS CERTIFICATE MAY NOT
BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT TO (1) A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT (A
"QUALIFIED INSTITUTIONAL BUYER") OR (2) AN ACCREDITED INVESTOR WITHIN THE
MEANING OF PARAGRAPH (1), (2), (3) OR (7) OF RULE 501(A) OF REGULATION D UNDER
THE SECURITIES ACT OR AN ENTITY IN WHICH ALL THE EQUITY OWNERS ARE DESCRIBED BY
SUCH PARAGRAPHS (AN "INSTITUTIONAL ACCREDITED INVESTOR").
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN CREDIT
SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP., XXXXX FARGO BANK MINNESOTA, N.A.,
MIDLAND LOAN SERVICES, 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 Anthracite Capital, Inc. 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 March 1,
2003 (the "Agreement"), among Credit Suisse First Boston Mortgage Securities
Corp., as depositor (the "Depositor", which term includes successors in
interest), Midland Loan Services, Inc., as general master servicer (in such
capacity, the "General Master Servicer," which term includes any successors in
interest), and general special servicer (in such capacity, the "General Special
Servicer", which term includes any successors in interest), NCB, FSB, as co-op
master servicer (in such capacity, the "Co-op Master Servicer," which term
includes any successors in interest), National Consumer Cooperative Bank, as
co-op special servicer (in such capacity, the "Co-op Special Servicer," which
term includes any successors in interest), 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 Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
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 (other than in connection with the
initial issuance of the Certificates or a transfer of this Certificate by the
Depositor or any Affiliate of the Depositor) 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
General Special Servicer, the Co-op Master 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 LLC, the Trustee, any Fiscal Agent, the General Master Servicer,
the General Special Servicer, the Co-op Master 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 except to a Qualified Institutional Buyer or an Institutional Accredited
Investor. The Certificate Registrar shall refuse to register the transfer of
this Certificate unless it has received from the prospective Transferee a
certification to the effect that such prospective Transferee is a Qualified
Institutional Buyer or an Institutional Accredited Investor.
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 or any
essentially similar provision of applicable federal, state or local law("Similar
Law") (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. The Certificate Registrar
shall refuse to register the transfer of this Certificate unless it has received
from the prospective Transferee 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. It is hereby acknowledged that the form of
certification attached to the Agreement as Exhibit G-1 is acceptable for
purposes of the preceding sentence.
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 General
Special Servicer, the Co-op Master 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 General Special Servicer, the Co-op
Master 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 General Special Servicer, the Co-op Master
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 any single Controlling Class Certificateholder
or group of Controlling Class Certificateholders, the Co-op Master Servicer, the
Co-op Special Servicer, the General Master Servicer or the General Special
Servicer, in that order of preference, 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
General Master Servicer, the General Special Servicer, the Co-op Master
Servicer, the Co-op 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 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 General Special
Servicer, the Co-op Master 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 Master Servicer, the 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 the Upper-Tier REMIC or the Lower-Tier REMIC
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
Mortgage Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to assignee on the Certificate Register of the Trust
Fund.
I (we) further direct the Certificate Registrar to issue a new
Mortgage Pass-Through Certificate of a like Percentage Interest and Class to the
above named assignee and deliver such Mortgage Pass-Through Certificate to the
following address: _____________________________________________________________
________________________________________________________________________________
Dated:
_____________________________________
Signature by or on behalf of Assignor
_____________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to _________________________________
for the account of ____________________________________________________________.
Distributions made by check (such check to be made payable to
___________________________), and all applicable statements and notices should
be mailed to___________________________________________________________________.
This information is provided by _____________________________,
the Assignee named above, or __________________________________________________,
as its agent.
EXHIBIT A-6
FORM OF CLASS R CERTIFICATES
CLASS [R] [LR] COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2003-CPN1
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: March 13, 2003 Percentage Interest evidenced by this
Class [R] [LR] Certificate: ___%
First Distribution Date: Aggregate Cut-off Date Principal
Balance of the April 17, 2003
Mortgage Loans as of the Closing Date
("Initial Pool Balance"):
$1,006,389,300
General Master Servicer and General Trustee:
Special Servicer: Xxxxx Fargo Bank Minnesota, N.A.
Midland Loan Services, Inc.
Co-op Master Servicer:
NCB, FSB
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
ANY ESSENTIALLY SIMILAR PROVISION OF APPLICABLE FEDERAL, STATE OR LOCAL LAW
("SIMILAR LAW") 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.
THE TRUST FUND IN WHICH THIS CERTIFICATE EVIDENCES AN INTEREST HAS NOT BEEN
REGISTERED AS AN "INVESTMENT COMPANY" UNDER THE INVESTMENT COMPANY ACT OF 1940,
AS AMENDED (THE "INVESTMENT COMPANY ACT"). ACCORDINGLY, THIS CERTIFICATE MAY NOT
BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT TO A QUALIFIED INSTITUTIONAL
BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT (A "QUALIFIED
INSTITUTIONAL BUYER").
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN CREDIT
SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP., XXXXX FARGO BANK MINNESOTA, N.A.,
MIDLAND LOAN SERVICES, 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 EVIDENCES
OWNERSHIP OF THE "RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT
CONDUIT" ("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 Credit Suisse First Boston LLC 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] [LR] Certificates. The Trust Fund was created and
the Certificates were issued pursuant to a Pooling and Servicing Agreement,
dated as of March 1, 2003 (the "Agreement"), among Credit Suisse First Boston
Mortgage Securities Corp., as depositor (the "Depositor", which term includes
successors in interest), Midland Loan Services, Inc., as general master servicer
(in such capacity, the "General Master Servicer," which term includes any
successors in interest), and general special servicer (in such capacity, the
"General Special Servicer", which term includes any successors in interest),
NCB, FSB, as co-op master servicer (in such capacity, the "Co-op Master
Servicer," which term includes any successors in interest), National Consumer
Cooperative Bank, as co-op special servicer (in such capacity, the "Co-op
Special Servicer," which term includes any successors in interest), and Xxxxx
Fargo Bank Minnesota, N.A. as trustee (the "Trustee", which term includes any
successors in interest), 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] [LR] 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 Account
and, if established, the REO Account may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
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 (other than in connection with the
initial issuance of the Certificates or a transfer of this Certificate by the
Depositor or any Affiliate of the Depositor) 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
General Special Servicer, the Co-op Master 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 LLC, the Trustee, any Fiscal Agent, the General Master Servicer,
the General Special Servicer, the Co-op Master 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 except to a Qualified Institutional Buyer. The Certificate Registrar
shall refuse to register the transfer of this Certificate unless it has received
from the prospective Transferee a certification to the effect that such
prospective Transferee is a Qualified Institutional Buyer.
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 or any
essentially similar provision of applicable federal, state or local law
("Similar Law") (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. The Certificate
Registrar shall refuse to register the transfer of this Certificate unless it
has received from the prospective Transferee 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. It is hereby acknowledged that the form of
Certification attached to the Agreement as Exhibit G-1 is acceptable for
purposes of the preceding sentence.
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 Trust REMIC to cease to
qualify as a REMIC or be subject to an entity-level tax caused by the Transfer
of a Class [R] [LR] 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] [LR] Certificate to a
Person that is not a Permitted Transferee.
A "Permitted Transferee" is any Transferee other than a
"Disqualified Organization" and a "Disqualified Non-United States Tax Person".
In addition, if such Transferee is classified as a partnership under the Code,
such Transferee can be a "Permitted Transferee" only if, among other things, all
of its beneficial owners are United States Persons and the governing documents
of the Transferee prohibit a transfer of any interest in the Transferee to any
Non-United States Tax Person.
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 "Disqualified Non-United States Tax Person," with certain
exceptions described in the Agreement, is (i) any Person other than a United
States Tax Person or (ii) a United States Tax Person with respect to whom income
on an Ownership Interest 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, 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 General
Special Servicer, the Co-op Master 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 General Special Servicer, the Co-op
Master 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 General Special Servicer, the Co-op Master
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 any single Controlling Class Certificateholder
or group of Controlling Class Certificateholders, the Co-op Master Servicer, the
Co-op Special Servicer, the General Master Servicer or the General Special
Servicer, in that order of preference, 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
General Master Servicer, the General Special Servicer, the Co-op Master
Servicer, the Co-op 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 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 General Special
Servicer, the Co-op Master 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 General Special
Servicer, the Co-op Master 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 Trust REMIC 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] [LR] 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
Mortgage Pass-Through Certificate and hereby authorize(s) the registration of
transfer of such interest to assignee on the Certificate Register of the Trust
Fund.
I (we) further direct the Certificate Registrar to issue a new
Mortgage Pass-Through Certificate of a like Percentage Interest and Class to the
above named assignee and deliver such Mortgage Pass-Through Certificate to the
following address: _____________________________________________________________
________________________________________________________________________________
Dated:
_____________________________________
Signature by or on behalf of Assignor
_____________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The Assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to _________________________________
for the account of ____________________________________________________________.
Distributions made by check (such check to be made payable to
___________________________), and all applicable statements and notices should
be mailed to___________________________________________________________________.
This information is provided by _____________________________,
the Assignee named above, or __________________________________________________,
as its agent.
EXHIBIT B-1A
SCHEDULE OF COLUMN MORTGAGE LOANS
[See Attached Schedule]
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES SERIES 2003-CPN1
COMBINED COLLATERAL
------------------------- ------------------------------------------------------------------
(i) (viii) (xviii) (ii)
------------------------- ------------------------------------------------------------------
"A"
LOAN
# CROSSED YES/NO PROPERTY NAME ADDRESS CITY
-----------------------------------------------------------------------------------------------------------------------------------
0 Xxxxxxxxx Xxxx 0000 Xxxxxxxx Xxxxxx Xxxxxxxxxx
2 Quaker Headquarters 000 Xxxx Xxxxxx Xxxxxx Xxxxxxx
3 Dallas Metroplex Portfolio
3A Highpoint Oaks 0000 Xxxxxxxxx Xxxx Xxxxx Xxxxxxxxxx
0X Xxxxxxxxx 2 0000 Xxxxxxx Xxxx Xxxxxxxxxx
0X Xxxxxxx 2 0000 Xxxxxxxxx Xxxxx Coppell
4 Yes Michigan Equities C Portfolio
4A 2436, 2438, 0000 Xxxxxxxx Xxxxxx 2436, 2438, 0000 Xxxxxxxx Xxxxxx Okemos
4B 0000 Xxxxxxxxxx Xxxxx 0000 Xxxxxxxxxx Xxxxx Lansing
4C 4440 Xxxxxxxx Xxxx 0000 Xxxxxxxx Road Okemos
4D 2311-2337, 0000 Xxxxx Xxxx 2311-2337, 0000 Xxxxx Xxxx Xxxxxx
0X 2803, 2805, 2807, 2809, 2811, 2813 2803, 2805, 2807, 2809, 2811, 2813 Okemos
Xxxxx Xxxx Xxxxx Xxxx
0X 825, 839, 915, 000 Xxxxxxxxxx Xxx 825, 839, 915, 000 Xxxxxxxxxx Xxx Xxxxxxx
0X 000 Xxxxxxxxxx Way 822 Centennial Way Lansing
4H 0000 Xxxx Xx. Xxxxxx Xxxxxxx 6607 West St. Xxxxxx Highway Lansing
4I 6412, 6500, 0000 Xxxxxxxxx Xxxxx 6412, 6500, 0000 Xxxxxxxxx Xxxxx Xxxxxxx
0X 2465, 0000 Xxxxxxxx Xxxxxx 2465, 0000 Xxxxxxxx Xxxxxx Okemos
4K 0000 Xxxxxxxx Xxxxxx 0000 Xxxxxxxx Xxxxxx Okemos
4L 906, 912, 000 Xxxxxxxxxx Xxx 906, 912, 924 Centennial Way Lansing
4M 0000 Xxxxxxxxxx Xxxxx 0000 Xxxxxxxxxx Xxxxx Xxxxxxx
0X 0000 Xxxxxxxx Xxxxx 0000 Xxxxxxxx Xxxxx Xxxxxx
0X 0000 Xxxxxxxx Xxxxxx 0000 Xxxxxxxx Xxxxxx Okemos
4P 0000 Xxxxx Xxxx 0000 Xxxxx Xxxx Okemos
6 Xxxxxxxxxx Commons 00000 Xxxxxx Xxxxxx Xxxxxxxxxx
0 Xxxx Xxxxxxx Village 00 Xxxxxxxxx-Xxxxxxxxxx Xxxx Xxxx Xxxxxxx
10 000 Xxxxxx Xxxxxx 000 Xxxxxx Xxxxxx Xxxxxxxx
12 Deep Run Mobile Home Park 0000 Xxx Xxxxxxxx Xxxx Elkridge
13 Harbour Key Apartments 00000 Xxxxx Xxxxxxx Xxxxx Xxxxx
14 Signature Place Apartments 1049 Powers Ferry Road Marietta
00 Xxxxx Xxxxxx Xxxxxxxx Shopping Center 00000-00000 Xxxxx Xxxxxx Cerritos
16 136 East South Temple Office Building 000 Xxxx Xxxxx Xxxxxx Xxxxxx Xxxx Xxxx Xxxx
18 CBL Center 0000 Xxxxxxxx Xxxxx Xxxxxxxxx Xxxxxxxxxxx
19 Indian Lookout Apartments 0000 Xxxxx Xxx Xxxxxx Xxxx Xxxxxxxxxx
20 Ashland & Roosevelt Center 0000 Xxxxx Xxxxxxx Xxxxxx, 0000 Xxxx Xxxxxxx
00xx Xxxxxx & 0000 Xxxx Xxxxxxxxx Xxxx
25 Trinity Place 0000 Xxxxxxx Xxxx Xxxx Raleigh
00 Xxxxxx Xxxxxx Shopping Center 0000-0000 Xxxx Xxxxx Xxxxxx Xxxxxxxx
30 Park Place Shopping Center 0000-0000 Xxxx Xxxxx Xxxxxx Xxx Xxxxx
00 Xxxxxxxxx Xxxxxx Xxxxxxxx Xxxxxx 000 Xxxxxxxxx 00xx Xxxxxx Ocala
00 Xxxxxxx Xxxxx Xxxxx 41, 65, & 00 Xxxxxxx Xxxxx Xxxxx Xxxxxxx
35 College Plaza 3500-3516 College Boulevard Oceanside
36 Yes Talisker Apartments 0000 Xxxxxxxxxx Xxxx Xxxxx Addison
00 Xxxxxx Xxxx Xxxx & Country Shopping 000-000 Xxxxxx Xxxx Xxxx Xxxxxxx Xxxxx Xxxxxxx
Center
[TABLE CONTINUED]
-----------------------------------------------------------------------------------------------------------------------------------
(i) (xv) (xiv) (xiii) (ix)
-----------------------------------------------------------------------------------------------------------------------------------
ZIP MORTGAGE MORTGAGE PROPERTY PROPERTY CO-OP LOAN ORIGINAL
# STATE CODE ORIGINATOR LOAN SELLER TYPE SUB-TYPE (YES/NO) BALANCE
-----------------------------------------------------------------------------------------------------------------------------------
1 OH 45251 Column Financial, Inc. Column Retail Anchored No $82,000,000
2 IL 60661 Column Financial, Inc. Column Office CBD No $72,000,000
3 Column Financial, Inc. Column No $31,200,000
3A TX 75067 Column Financial, Inc. Column Xxxxxx Xxxxxxxx Xx
0X XX 00000 Column Financial, Inc. Xxxxxx Xxxxxx Xxxxxxxx Xx
0X XX 00000 Column Financial, Inc. Column Office Suburban No
4 Column Financial, Inc. Column No $29,670,000
4A XX 00000 Column Financial, Inc. Column Xxxxxx Xxxxxxxx Xx
0X XX 00000 Column Financial, Inc. Xxxxxx Xxxxxx Xxxxxxxx Xx
0X XX 00000 Column Financial, Inc. Column Industrial X/X Xx
0X XX 00000 Column Financial, Inc. Column Retail Xxxxxxxxxx Xx
0X XX 00000 Column Financial, Inc. Column Retail Xxxxxxxxxx Xx
0X XX 00000 Column Financial, Inc. Column Xxxxxx Xxxxxxxx Xx
0X XX 00000 Column Financial, Inc. Column Xxxxxx Xxxxxxxx Xx
0X XX 00000 Column Financial, Inc. Xxxxxx Xxxxxx Xxxxxxxx Xx
0X XX 00000 Column Financial, Inc. Column Xxxxxx Xxxxxxxx Xx
0X XX 00000 Column Financial, Inc. Xxxxxx Xxxxxx Xxxxxxxx Xx
0X XX 00000 Column Financial, Inc. Xxxxxx Xxxxxx Xxxxxxxx Xx
0X XX 00000 Column Financial, Inc. Column Xxxxxx Xxxxxxxx Xx
0X XX 00000 Column Financial, Inc. Column Retail Xxxxxxxxxx Xx
0X XX 00000 Column Financial, Inc. Xxxxxx Xxxxxx Xxxxxxxx Xx
0X XX 00000 Column Financial, Inc. Column Xxxxxx Xxxxxxxx Xx
0X XX 00000 Column Financial, Inc. Xxxxxx Xxxxxx Xxxxxxxx Xx
0 XX 00000 Column Financial, Inc. Column Retail Anchored No $28,100,000
9 XX 00000 Column Financial, Inc. Column Retail Anchored No $21,400,000
10 ME 04101 Column Financial, Inc. Column Office CBD No $21,000,000
12 MD 21075 Column Financial, Inc. Column Multifamily Manufactured Housing No $20,500,000
13 FL 33176 Union Capital Investments, Column Multifamily Conventional No $19,000,000
LLC
14 GA 30067 Column Financial, Inc. Column Multifamily Conventional No $18,500,000
15 CA 90703 Column Financial, Inc. Column Retail Anchored No $18,250,000
16 UT 84111 Column Financial, Inc. Column Xxxxxx XXX Xx x00,000,000
00 XX 00000 Column Financial, Inc. Column Xxxxxx Xxxxxxxx Xx x00,000,000
00 XX 00000 Column Financial, Inc. Column Multifamily Conventional No $14,060,000
20 IL 60608 Column Financial, Inc. Column Retail Anchored No $14,000,000
25 NC 27607 Column Financial, Inc. Column Xxxxxx Xxxxxxxx Xx x00,000,000
00 XX 00000 Column Financial, Inc. Column Retail Anchored No $11,325,000
30 XX 00000 Column Financial, Inc. Column Retail Anchored No $9,600,000
32 FL 34471 Column Financial, Inc. Column Retail Anchored No $8,800,000
33 MA 02780 Column Financial, Inc. Column Retail Anchored No $8,500,000
35 CA 92056 Column Financial, Inc. Column Retail Anchored No $8,000,000
36 TX 75001 Column Financial, Inc. Column Multifamily Conventional No $7,720,000
37 CA 90274 Column Financial, Inc. Column Retail Anchored No $7,500,000
[TABLE CONTINUED]
------------------------- ------------- ----------------------------------------------------------------------------
(i) (iii) (xii) (vii) (vi)
------------------------- ------------- ----------------------------------------------------------------------------
INITIAL ORIG REM. ORIG REM.
CUT-OFF FEE/ INTEREST ONLY AMORT. AMORT. TERM TO TERM TO
# BALANCE LEASEHOLD TERM TERM TERM MATURITY MATURITY
----------------------------------------------------------------------------------------------------------------------------------
1 $81,648,125 Fee 0 360 355 121 116
2 $72,000,000 Fee 60 Interest Only Interest Only 60 56
3 $31,030,416 0 360 353 120 113
3A Fee
3B Fee
3C Fee
4 $29,632,746 0 360 359 120 119
4A Fee
4B Fee
4C Fee
4D Fee
4E Fee
4F Fee
4G Fee
4H Fee
4I Fee
4J Fee
4K Fee
4L Fee
4M Fee
4N Fee
4O Fee
4P Fee
6 $28,013,628 Fee 0 360 357 120 117
9 $21,330,121 Fee 0 360 357 120 117
10 $20,879,969 Fee 0 360 353 120 113
12 $20,500,000 Fee 12 360 360 120 116
13 $18,923,392 Fee 0 360 356 120 116
14 $18,414,825 Fee 0 360 355 120 115
15 $18,180,783 Fee 0 360 356 120 116
16 $15,925,424 Fee 0 360 355 60 55
18 $14,898,802 Fee 0 360 353 120 113
19 $13,991,051 Fee 0 360 355 120 115
20 $13,982,438 Leasehold 0 360 359 120 119
25 $11,942,332 Fee 0 360 355 120 115
27 $11,300,440 Fee 0 360 358 120 118
30 $9,586,938 Fee 0 360 359 120 119
32 $8,745,078 Fee 0 360 352 120 112
33 $8,463,863 Fee 0 360 356 120 116
35 $7,966,099 Fee 0 360 355 120 115
36 $7,682,142 Fee 0 360 355 120 115
37 $7,477,295 Fee 0 360 357 120 117
------------------------- --------------------------------------------------------------
(i) (viii) (xviii) (ii)
------------------------- --------------------------------------------------------------
"A"
LOAN
# CROSSED YES/NO PROPERTY NAME ADDRESS CITY
-------------------------------------------------------------------------------------------------------------------------------
38 Yes Jano Arms Apartments 000 Xxxxxx Xxxxxx Xxxxxxxx
00 801 and 000 Xxxxxxxx Xxxx Xxxxx 801 & 000 Xxxxxxxx Xxxx Xxxxx Xxxx Xxxxxx
00 Xxxxxxxxxx Xxxxx XX 0000 Xxxxxxxx Pearland
00 Xxxxxx Xxxxxx 0000 Xxxxx Xxxxxxx Xxxx Xxxxxxx
44 Xxxx Plaza 2800-2878 Xxxxxxxxx Xxxxx Xxxxxx Xxxxxxx
00 (A) Rancho Xxxxx 24 & 25 0000 Xxxxx Xxxxxx Xxxxx Xxx Xxxxx
49 (A) Rancho Xxxxx 28 0000 Xxxxx Xxxxxx Xxxxx Xxx Xxxxx
50 (A) Rancho Xxxxx 27 0000 Xxxxx Xxxxxx Xxxxx Xxx Xxxxx
00 Xxxx Xxxxxx 0000 Xxxx Xxxxxx Xxxxxxxxxx
54 Food 4 Less Center 000-000 Xxxxx XxXxxxxx Xxxxxx Xxxxxx
00 Yes Western Plaza 2085 US Highway 17 Jacksonville
56 Highlands Ranch Xxxx Xxxxxxx Xxxxxx 0000 Xxxxx Xxxxxx Xxxxxx Highlands Ranch
60 N.E. 820 Business Towers 000-000 Xxxxxxxxx Xxxx 820 Hurst
62 Gateway Center 0000-0000 Xxxxxxx Xxxxxx Xxxxxx Xxxxxx
65 Yes East Forest Plaza 5500 - 0000 Xxxxxx Xxxxx Xxxxxxxx
00 Xxxxxx Xxxxxxx & Vanderbilt Apts 0000 Xxxxxx Xxxx Xxxxxxxxx Xxxxxx Tallahassee
00 Xxxxxxx Xxxxxx 000 Xxxxx Xxxxxx Xxxx Xxxxxxxxxx
70 Plaza West Shopping Center 0000 Xxxxxxx Xxxxxxxxx Xxxxxxx
73 Avon Square Shopping Center 000-000 X.X. Xxxxxxx 00 Xxxxx Xxxx Park
80 Holmesburg Shopping Center 0000 Xxxxxxxxx Xxxxxx Xxxxxxxxxxxx
82 000-000 Xxxxxxx Xxxxxx 000-000 Xxxxxxx Xxxxxx Xxx Xxxxxxxxx
84 Quail Hollow Apartments 9666 Scyene Road Dallas
93 MCC Corporate Xxxxx Xxxxxx Xxxxxxxxx 000 & 000 Xxxxx Xxxxx Xxxx Xxxxxxxxx
95 Coronado Villas 0000 Xxxxxxxxx Xxxxx Xx Xxxx
96 River Oaks Mobile Home Park 0000 Xxxxxxx Xxxxx Xxxx Xxxxxx
00 Xxxxxxx Xxxxxxx Xxxxxxxx Xxxx 0000 Xxxxxx Xxxxx Xxxxxxxx
[TABLE CONTINUED]
----------------------------------------------------------------------------------------------------------------------------------
(i) (xv) (xiv) (xiii) (ix)
----------------------------------------------------------------------------------------------------------------------------------
ZIP MORTGAGE MORTGAGE PROPERTY PROPERTY CO-OP LOAN ORIGINAL
# STATE CODE ORIGINATOR LOAN SELLER TYPE SUB-TYPE (YES/NO) BALANCE
----------------------------------------------------------------------------------------------------------------------------------
38 HI 96815 Column Financial, Inc. Column Multifamily Conventional No $7,350,000
40 MD 21061 Column Financial, Inc. Column Xxxxxx Xxxxxxxx Xx x0,000,000
00 XX 00000 Column Financial, Inc. Column Mixed Use Retail/Office No $6,450,000
42 IL 60632 Column Financial, Inc. Column Retail Unanchored No $6,300,000
44 CA 95670 Column Financial, Inc. Column Retail Anchored No $5,750,000
48 XX 00000 Column Financial, Inc. Column Xxxxxx Xxxxxxxx Xx x0,000,000
00 XX 00000 Column Financial, Inc. Column Xxxxxx Xxxxxxxx Xx x0,000,000
00 XX 00000 Column Financial, Inc. Column Xxxxxx Xxxxxxxx Xx x0,000,000
00 XX 00000 Column Financial, Inc. Column Industrial N/A No $5,000,000
54 CA 92879 Column Financial, Inc. Column Retail Anchored No $5,000,000
55 NC 28546 Column Financial, Inc. Column Retail Anchored No $4,975,000
56 CO 80130 Column Financial, Inc. Column Xxxxxx Xxxxxxxx Xx x0,000,000
00 XX 00000 Column Financial, Inc. Column Office Suburban No $4,650,000
62 MD 20910 Suburban Capital Markets, Column Retail Unanchored No $4,350,000
Inc.
65 SC 29206 Column Financial, Inc. Column Retail Anchored No $4,175,000
67 FL 32304 Union Capital Investments, Column Multifamily Conventional No $4,100,000
LLC
68 PA 19081 Column Financial, Inc. Column Office Suburban No $4,050,000
70 NC 27606 Column Financial, Inc. Column Retail Anchored No $3,600,000
73 FL 33825 Column Financial, Inc. Column Retail Anchored No $3,375,000
80 PA 19136 Column Financial, Inc. Column Retail Unanchored No $3,080,000
82 CA 94133 Column Financial, Inc. Xxxxxx Xxxxxx XXX Xx x0,000,000
00 XX 00000 Column Financial, Inc. Column Multifamily Conventional No $2,820,000
93 XX 00000 Wexford Bancgroup, L.L.C. Column Xxxxxx Xxxxxxxx Xx x0,000,000
00 XX 00000 Column Financial, Inc. Column Multifamily Conventional No $2,344,000
96 TX 75172 Column Financial, Inc. Column Multifamily Manufactured Housing No $2,200,000
98 CA 92009 Column Financial, Inc. Column Industrial N/A No $2,000,000
[TABLE CONTINUED]
-------------------------- ------------- ----------------------------------------------------------------------------
(i) (iii) (xii) (vii) (vi)
-------------------------- ------------- ----------------------------------------------------------------------------
INITIAL ORIG REM. ORIG REM.
CUT-OFF FEE/ INTEREST ONLY AMORT. AMORT. TERM TO TERM TO
# BALANCE LEASEHOLD TERM TERM TERM MATURITY MATURITY
-----------------------------------------------------------------------------------------------------------------------------------
38 $7,321,638 Fee 0 360 356 120 116
40 $6,609,990 Fee 0 360 355 120 115
41 $6,414,554 Fee 0 360 353 120 113
42 $6,275,689 Fee 0 360 356 120 116
44 $5,728,066 Fee 0 360 356 120 116
48 $1,903,243 Fee 0 360 356 120 116
49 $1,723,880 Fee 0 360 356 120 116
50 $1,703,950 Fee 0 360 356 120 116
53 $4,985,571 Fee 0 360 357 120 117
54 $4,976,695 Fee 0 360 355 120 115
55 $4,975,000 Fee 12 360 360 120 116
56 $4,948,371 Fee 0 360 356 120 116
60 $4,630,664 Fee/Leasehold 0 360 355 120 115
62 $4,326,602 Fee 0 360 352 120 112
65 $4,175,000 Fee 12 360 360 120 116
67 $4,071,525 Fee 0 300 295 120 115
68 $4,027,346 Fee 0 300 296 120 116
70 $3,589,039 Fee 0 360 357 120 117
73 $3,367,584 Fee 0 360 358 120 118
80 $3,064,942 Fee 0 360 354 120 114
82 $2,986,580 Fee 0 360 355 120 115
84 $2,807,255 Fee 0 360 355 120 115
93 $2,424,220 Fee 0 360 355 120 116
95 $2,335,041 Fee 0 360 356 120 116
96 $2,190,867 Fee 0 300 297 120 117
98 $1,997,470 Fee 0 360 359 120 119
------------------------- ---------------------------------------------------------------
(i) (viii) (xviii) (ii)
------------------------- ---------------------------------------------------------------
"A"
LOAN
# CROSSED YES/NO PROPERTY NAME ADDRESS CITY
--------------------------------------------------------------------------------------------------------------------------------
000 Xxxxxxxx Xxxxxxx Xxxxxxxxxx 0000 Xxxxxxx Xxx Speedway
101 1700 Xxxxxx Drive Building 0000 Xxxxxx Xxxxx Xxxxxxxxx
102 Woodlawn Manor Mobile Home Park 000 0xx Xxxxxx Vero Beach
105 Villa Fontana Mobile Home Park 00000 Xxxxxx Xxxxxxxxx Xxxxxxx
109 Avalon Mobile Home Park 000 Xxxxx Xxxx Xxxxxxxxx
000 Xxxxxx Shopping Center 000 Xxxxx Xxxxxx Xxxxxx Ventnor
000 Xxxxxxxx Xxxxxx Xxxx Xxxx 123 XxXxxxxx Xxxxx Road Clearwater
114 West Xxxxxxx Apartments 0000 Xxxx Xxxxxxx Xxxx Xxxxxxxx
000 Xxxxxxxxx Xxxxx 00000 & 00000 Xxxxxxxxx Xxxxx Truckee
121 Shops @ Xxxxxxxx 0000 Xxxxxxxx Xxxxxx Xxxxxxx
122 Rolling Xxxxxxx Junction Shopping 000 Xxxxx Xxxxxxx Xxxxxxx Xxxxx Xxxx du Lac
Center
000 Xxxxxxxxxxx Xxxxxxxx Xxxx 0000 Xxxx 00xx Xxxxxx Xxxxxxxxxxx
000 Xxxxxx Xxxx Apartments 000 Xxxxxx Xxxx Xxxxxxxxxxx
132 Xxxxx Xxxx Apartments 000 Xxxx Xxxxx Xxxx Xxxxxx Xxxxxxxxx Xxx
137 Town & Country Mobile Home Park 4448 North Orange Blossom Trail Orlando
139 Flex II - Cross Keys Campus 000 Xxxxxxxx Xxxxxxxxx Xxxxxxxxxxxx
146 Reddingwood Mobile Home Park 0000 Xxxxxxxx Xxxx Xxxxxxx
[TABLE CONTINUED]
----------------------------------------------------------------------------------------------------------------------------------
(i) (xv) (xiv) (xiii) (ix)
----------------------------------------------------------------------------------------------------------------------------------
ZIP MORTGAGE MORTGAGE PROPERTY PROPERTY CO-OP LOAN ORIGINAL
# STATE CODE ORIGINATOR LOAN SELLER TYPE SUB-TYPE (YES/NO) BALANCE
----------------------------------------------------------------------------------------------------------------------------------
100 IN 46224 Column Financial, Inc. Column Multifamily Conventional No $2,000,000
000 XX 00000 Column Financial, Inc. Column Industrial N/A No $1,800,000
000 XX 00000 Column Financial, Inc. Column Multifamily Manufactured Housing No $1,760,000
000 XX 00000 Column Financial, Inc. Column Multifamily Manufactured Housing No $1,650,000
109 TX 76060 Column Financial, Inc. Column Multifamily Manufactured Housing No $1,500,000
110 NJ 08406 Column Financial, Inc. Column Retail Unanchored No $1,450,000
000 XX 00000 Column Financial, Inc. Column Multifamily Manufactured Housing No $1,440,000
114 PA 19008 Column Financial, Inc. Column Multifamily Conventional No $1,275,000
000 XX 00000 Column Financial, Inc. Column Retail Unanchored No $1,265,000
000 XX 00000 Column Financial, Inc. Column Retail Anchored No $1,162,500
122 WI 54937 Column Financial, Inc. Column Retail Anchored No $1,150,000
123 MN 55420 Column Financial, Inc. Column Xxxxxx Xxxxxxxx Xx x0,000,000
000 XX 00000 Column Financial, Inc. Column Multifamily Conventional No $1,080,000
132 WI 53217 Column Financial, Inc. Column Multifamily Conventional No $900,000
000 XX 00000 Column Financial, Inc. Column Multifamily Manufactured Housing No $722,500
139 NJ 08012 Column Financial, Inc. Column Industrial N/A No $700,000
000 XX 00000 Column Financial, Inc. Column Multifamily Manufactured Housing No $615,000
[TABLE CONTINUED]
-------------------------- ------------- ----------------------------------------------------------------------------
(i) (iii) (xii) (vii) (vi)
-------------------------- ------------- ----------------------------------------------------------------------------
INITIAL ORIG REM. ORIG REM.
CUT-OFF FEE/ INTEREST ONLY AMORT. AMORT. TERM TO TERM TO
# BALANCE LEASEHOLD TERM TERM TERM MATURITY MATURITY
-----------------------------------------------------------------------------------------------------------------------------------
100 $1,984,578 Fee 0 360 350 120 110
101 $1,789,854 Fee 0 300 296 120 116
102 $1,752,448 Fee 0 360 355 60 55
105 $1,641,990 Fee 0 360 355 60 55
109 $1,494,020 Fee 0 300 297 120 117
110 $1,442,471 Fee 0 300 296 120 116
111 $1,432,195 Fee 0 360 354 120 114
114 $1,269,829 Fee 0 300 297 120 117
115 $1,262,472 Fee 0 360 358 120 118
121 $1,157,137 Fee 0 360 355 120 115
122 $1,144,694 Fee 0 360 355 120 115
123 $1,118,501 Fee 0 300 296 120 116
126 $1,074,233 Fee 0 300 296 120 116
132 $896,460 Fee 0 360 356 120 116
137 $719,477 Fee 0 300 297 60 57
139 $696,649 Fee 0 360 354 120 114
146 $611,345 Fee 0 240 237 120 117
--------------------------------- ---------------------- --------------
(i) (viii) (xviii) (v) (iv)
--------------------------------- ---------------------- --------------
INTEREST
"A" CALCULATION
LOAN INTEREST GRACE (30/360 / MONTHLY
# CROSSED YES/NO PROPERTY NAME RATE DAYS ACTUAL/360) PAYMENT
-----------------------------------------------------------------------------------------------------------------------------------
0 Xxxxxxxxx Xxxx 6.600% 0 Actual/360 $523,700
2 Quaker Headquarters 5.680% 0 Actual/360 $345,533
3 Dallas Xxxxxxxxx Xxxxxxxxx
0X Xxxxxxxxx Xxxx 0
0X Xxxxxxxxx 2 0
3C Coppell 2 0
4 Yes Michigan Equities C Portfolio
4A 2436, 2438, 0000 Xxxxxxxx Xxxxxx 0
4B 6465 Xxxxxxxxxx Xxxxx 0
0X 0000 Xxxxxxxx Road 0
4D 2311-2337, 0000 Xxxxx Xxxx 0
4E 2803, 2805, 2807, 2809, 2811, 2813 Jolly 0
Road
4F 825, 839, 915, 000 Xxxxxxxxxx Xxx 0
0X 000 Xxxxxxxxxx Way 0
4H 6607 West St. Xxxxxx Highway 0
4I 6412, 6500, 0000 Xxxxxxxxx Xxxxx 0
4J 2465, 0000 Xxxxxxxx Xxxxxx 0
0X 0000 Xxxxxxxx Xxxxxx 0
4L 906, 912, 924 Centennial Way 0
4M 0000 Xxxxxxxxxx Xxxxx 0
4N 2342 Woodlake Drive 0
4O 0000 Xxxxxxxx Xxxxxx 0
4P 2395 Xxxxx Xxxx 0
0 Xxxxxxxxxx Xxxxxxx 5.870% 0 Actual/360 $166,132
0 Xxxx Xxxxxxx Xxxxxxx 5.550% 0 Actual/360 $122,179
10 000 Xxxxxx Xxxxxx 6.770% 0 Actual/360 $136,485
12 Deep Run Mobile Home Park 5.670% 0 Actual/360 $118,593
13 Harbour Key Apartments 5.970% 0 Actual/360 $113,548
14 Signature Place Apartments 6.260% 0 Actual/360 $114,028
00 Xxxxx Xxxxxx Xxxxxxxx Shopping Center 6.290% 0 Actual/360 $112,844
16 000 Xxxx Xxxxx Xxxxxx Xxxxxx Xxxxxxxx 6.200% 0 Actual/360 $97,995
18 CBL Center 6.250% 0 30/360 $92,358
19 Indian Lookout Apartments 5.950% 0 Actual/360 $83,845
20 Ashland & Roosevelt Center 6.590% 0 Actual/360 $89,320
00 Xxxxxxx Xxxxx 6.050% 0 Actual/360 $72,332
00 Xxxxxx Xxxxxx Shopping Center 5.980% 0 Actual/360 $67,754
00 Xxxx Xxxxx Shopping Center 5.770% 0 Actual/360 $56,145
00 Xxxxxxxxx Xxxxxx Shopping Center 6.890% 0 Actual/360 $57,898
00 Xxxxxxx Xxxxx Xxxxx 5.690% 0 Actual/360 $49,280
00 Xxxxxxx Xxxxx 6.660% 0 Actual/360 $51,410
36 Yes Talisker Apartments 5.950% 0 Actual/360 $46,037
00 Xxxxxx Xxxx Xxxx & Xxxxxxx Xxxxxxxx Xxxxxx 5.950% 0 Actual/360 $44,725
[TABLE CONTINUED]
------------------------------------------------------------------------------
(i) (x) (xi)
------------------------------------------------------------------------------
SERVICING CONTRACTUAL
FIRST AND ENGINEERING RECURRING
PAYMENT DEFEASANCE TRUSTEE RESERVE AT REPLACEMENT
# DATE ARD DEFEASANCE PROVISION FEES ORIGINATION RESERVE/FF&E
-----------------------------------------------------------------------------------------------------------------------------------
1 11/11/2002 11/11/2012 Yes Lock/29_Def/85_0.0%/7 0.0524% $750 $69,216
2 12/11/2002 11/11/2007 Yes Lock/28_Def/28_0.0%/4 0.0524% $28,750 $42,000
3 N/A Yes Lock/31_Def/82_0.0%/7 0.0524% $31,438 $51,586
3A Lock/31_Def/82_0.0%/7
3B Lock/31_Def/82_0.0%/7
3C Lock/31_Def/82_0.0%/7
4 N/A Yes Lock/25_Def/92_0.0%/3 0.0724% $74,273 $57,132
4A Lock/25_Def/92_0.0%/3
4B Lock/25_Def/92_0.0%/3
4C Lock/25_Def/92_0.0%/3
4D Lock/25_Def/92_0.0%/3
4E Lock/25_Def/92_0.0%/3
4F Lock/25_Def/92_0.0%/3
4G Lock/25_Def/92_0.0%/3
4H Lock/25_Def/92_0.0%/3
4I Lock/25_Def/92_0.0%/3
4J Lock/25_Def/92_0.0%/3
4K Lock/25_Def/92_0.0%/3
4L Lock/25_Def/92_0.0%/3
4M Lock/25_Def/92_0.0%/3
4N Lock/25_Def/92_0.0%/3
4O Lock/25_Def/92_0.0%/3
4P Lock/25_Def/92_0.0%/3
6 1/11/2003 N/A Yes Lock/27_Def/89_0.0%/4 0.0524% $93,750 $38,700
9 1/11/2003 N/A Yes Lock/27_Def/90_0.0%/3 0.0524% $16,250 $18,677
10 9/11/2002 8/11/2012 Yes Lock/31_Def/84_0.0%/5 0.0524% $5,063 $37,588
12 12/11/2002 N/A Yes Lock/28_Def/89_0.0%/3 0.0524% X/X X/X
00 00/00/0000 X/X Xx X/X 0.0524% N/A $75,000
14 11/11/2002 N/A Yes Lock/29_Def/88_0.0%/3 0.0524% $389,688 $109,713
15 12/11/2002 N/A Yes Lock/28_Def/89_0.0%/3 0.0524% N/A N/A
16 11/11/2002 10/11/2007 Yes Lock/29_Def/28_0.0%/3 0.0524% $17,250 $43,407
18 9/11/2002 N/A Yes Lock/35_Def/78_0.0%/7 0.0524% N/A $20,640
19 11/11/2002 N/A Yes Lock/29_Def/88_0.0%/3 0.0524% $5,000 $80,004
20 3/11/2003 N/A Yes Lock/25_Def/92_0.0%/3 0.0524% N/A N/A
25 11/11/2002 N/A Yes Lock/29_Def/88_0.0%/3 0.0524% N/A $11,196
27 2/11/2003 N/A Yes Lock/26_Def/91_0.0%/3 0.0524% N/A $19,200
30 3/11/2003 2/11/2013 Yes Lock/26_Def/91_0.0%/3 0.0524% N/A $14,594
32 8/11/2002 N/A Yes Lock/32_Def/85_0.0%/3 0.0524% X/X X/X
00 00/00/0000 X/X Xx X/X 0.0724% N/A $6,336
35 11/11/2002 N/A Yes Lock/29_Def/88_0.0%/3 0.0524% $6,500 $14,454
36 11/11/2002 N/A Yes Lock/29_Def/88_0.0%/3 0.0524% $62,500 $55,000
37 1/11/2003 N/A Yes Lock/27_Def/90_0.0%/3 0.0524% $181,954 $8,374
[TABLE CONTINUED]
--------
(i)
--------
LC & TI CONTRACTUAL TAX & INITIAL INITIAL OTHER
RESERVE AT RECURRING INSURANCE OTHER RESERVE
# ORIGINATION LC&TI ESCROWS RESERVE DESCRIPTION
-------------------------------------------------------------------------------------------------------------------------
1 N/A $504,000 Both N/A N/A
2 $500,037 N/A Both $1,655,000 Quaker Expense Recovery Gap Reserve
3 $1,214,893 $205,000 Both $590,377 Special Lease Security Deposit Reserve for Today
Realty Advisors, Inc.
3A
3B
3C
4 $130,088 $484,920 Both N/A N/A
4A
4B
4C
4D
4E
4F
4G
4H
4I
4J
4K
4L
0X
0X
0X
4P
6 N/A N/A Both N/A N/A
9 N/A $49,800 Tax $8,800 Tanning Salon TILC Escrow
10 $200,000 $150,000 Both $266,000 U.S. Attorney Reserve Fund
00 X/X X/X Xxxx X/X X/X
13 N/A N/A Both N/A N/A
14 N/A N/A Both $312,350 Fire Damage Reserve
00 X/X X/X Xxxx X/X X/X
16 $500,000 $217,032 Both X/X X/X
00 X/X X/X Both N/A N/A
19 N/A N/A Both X/X X/X
00 X/X X/X Both $657,320 Captain Hook's Reserve ($400,000), ABLA Reserve
($100,000), Ground Lease Reserve ($81,250),
Allowance Reserve ($76,070)
25 N/A $100,000 Both X/X X/X
00 X/X X/X Both $58,774 Evergreen Tax Deposit
30 N/A $28,076 Both N/A N/A
32 N/A $24,000 Both N/A N/A
33 $75,000 N/A Both N/A N/A
35 N/A $83,448 Both $500,000 Chicks Sporting Goods, Inc. Holdback
00 X/X X/X Xxxx X/X X/X
37 $120,500 $24,835 Both $20,566 Termite Repair Reserve ($16,816); Appraisal
Revisions Reserve ($3,750)
--------------------------------- ---------------------- --------------
(i) (viii) (xviii) (v) (iv)
--------------------------------- ---------------------- --------------
Interest
"A" Calculation
Loan Interest Grace (30/360 / Monthly
# Crossed Yes/No Property Name Rate Days Actual/360) Payment
-----------------------------------------------------------------------------------------------------------------------------------
38 Yes Jano Arms Apartments 6.200% 0 Actual/360 $45,016
40 801 and 000 Xxxxxxxx Xxxx Xxxxx 6.350% 0 Actual/360 $41,316
00 Xxxxxxxxxx Xxxxx II 6.950% 0 Actual/360 $42,696
00 Xxxxxx Xxxxxx 6.200% 0 Actual/360 $38,586
00 Xxxx Xxxxx 6.260% 0 Actual/360 $35,441
48 (A) Rancho Xxxxx 24 & 25 6.650% 0 Actual/360 $12,262
49 (A) Rancho Xxxxx 28 6.650% 0 Actual/360 $11,106
50 (A) Rancho Xxxxx 27 6.650% 0 Actual/360 $10,978
00 Xxxx Xxxxxx 6.200% 0 Actual/360 $30,623
54 Food 4 Less Center 6.200% 0 Actual/360 $30,623
55 Yes Western Plaza 6.000% 0 Actual/360 $29,828
56 Highlands Ranch East Medical Office 5.880% 0 Actual/360 $29,408
60 N.E. 820 Business Towers 6.750% 0 Actual/360 $30,160
62 Gateway Center 7.530% 0 Actual/360 $30,505
65 Yes East Forest Plaza 6.000% 0 Actual/360 $25,031
00 Xxxxxx Xxxxxxx & Vanderbilt Apts 6.150% 0 Actual/360 $26,794
00 Xxxxxxx Xxxxxx 6.250% 0 Actual/360 $26,717
70 Plaza West Shopping Center 5.920% 0 Actual/360 $21,399
00 Xxxx Xxxxxx Shopping Center 5.900% 0 Actual/360 $20,018
80 Holmesburg Shopping Center 6.900% 0 Actual/360 $20,285
82 000-000 Xxxxxxx Xxxxxx 6.400% 0 Actual/360 $18,765
84 Quail Hollow Apartments 6.350% 0 Actual/360 $17,547
00 XXX Xxxxxxxxx Xxxxx Office Buildings 6.450% 0 Actual/360 $15,311
95 Coronado Villas 6.250% 0 Actual/360 $14,432
00 Xxxxx Xxxx Xxxxxx Xxxx Xxxx 6.300% 0 Actual/360 $14,581
00 Xxxxxxx Xxxxxxx Xxxxxxxx Xxxx 6.500% 0 Actual/360 $12,641
[TABLE CONTINUED]
--------------------------------------------------------------------------------
(i) (x) (xi)
--------------------------------------------------------------------------------
Servicing Contractual
First and Engineering Recurring
Payment Defeasance Trustee Reserve at Replacement
# Date ARD Defeasance Provision Fees Origination Reserve/FF&E
------------------------------------------------------------------------------------------------------------------------------------
38 12/11/2002 N/A Yes Lock/28_Def/89_0.0%/3 0.0524% $4,375 $22,250
40 11/11/2002 N/A Yes Lock/29_Def/88_0.0%/3 0.0624% N/A N/A
41 9/11/2002 N/A Yes Lock/31_Def/83_0.0%/6 0.0524% N/A N/A
42 12/11/2002 N/A Yes Lock/28_Def/89_0.0%/3 0.0524% $1,875 $8,336
44 12/11/2002 N/A Yes Lock/28_Def/88_0.0%/4 0.0524% $300,000 $17,292
48 12/11/2002 N/A Yes Lock/28_Def/89_0.0%/3 0.0524% N/A $2,655
49 12/11/2002 N/A Yes Lock/28_Def/89_0.0%/3 0.0524% N/A $3,302
50 12/11/2002 N/A Yes Lock/28_Def/89_0.0%/3 0.0524% N/A $3,293
53 1/11/2003 N/A Yes Lock/27_Def/87_0.0%/6 0.0524% N/A N/A
54 11/11/2002 N/A Yes Lock/29_Def/85_0.0%/6 0.0524% $7,050 $12,096
55 12/11/2002 N/A Yes Lock/28_Def/89_0.0%/3 0.0524% $1,000 N/A
56 12/11/2002 N/A No N/A 0.0524% N/A N/A
60 11/11/2002 N/A Yes Lock/29_Def/85_0.0%/6 0.0524% $37,413 $19,016
62 8/11/2002 N/A Yes Lock/32_Def/85_0.0%/3 0.0524% $500 $6,005
65 12/11/2002 N/A Yes Lock/28_Def/89_0.0%/3 0.0524% N/A N/A
67 11/11/2002 N/A Yes Lock/29_Def/88_0.0%/3 0.0524% $98,125 $33,900
68 12/11/2002 N/A Yes Lock/28_Def/86_0.0%/6 0.0524% $11,438 $13,958
70 1/11/2003 N/A Yes Lock/27_Def/90_0.0%/3 0.0524% N/A N/A
73 2/11/2003 1/11/2013 Yes Lock/26_Def/88_0.0%/6 0.0524% $15,455 N/A
80 10/11/2002 N/A Yes Lock/30_Def/84_0.0%/6 0.0524% $13,350 N/A
82 11/11/2002 N/A Yes Lock/29_Def/88_0.0%/3 0.0524% $28,850 $4,000
84 11/11/2002 N/A Yes Lock/29_Def/85_0.0%/6 0.0524% $67,357 $30,000
93 11/11/2002 N/A Yes Lock/29_Def/85_0.0%/6 0.0524% $625 N/A
95 12/11/2002 N/A Yes Lock/28_Def/86_0.0%/6 0.0524% $19,500 $14,500
96 1/11/2003 N/A Yes Lock/27_Def/87_0.0%/6 0.0524% $13,750 $11,950
98 3/11/2003 N/A Yes Lock/25_Def/92_0.0%/3 0.0524% N/A $4,471
[TABLE CONTINUED]
---------
(i)
---------
LC & TI Contractual Tax & Initial Initial other
Reserve at Recurring Insurance Other Reserve
# Origination LC&TI Escrows Reserve Description
------------------------------------------------------------------------------------------------------------------------
38 N/A N/A Both N/A N/A
40 N/A $84,996 Both N/A N/A
41 N/A $32,580 Both $68,000 Copyright Litigation Reserve ($50,000); Xxxxxxxxx
Grill Reserve ($18,000)
42 N/A $42,000 Both $72,000 Pizza Hut Reserve ($52,000); Dress Barn Reserve
($20,000)
44 $150,000 N/A Both $6,570 Appraisal Reserve ($5,000); LC Transfer Reserve
($1,570)
48 N/A $17,700 Both N/A N/A
49 N/A $22,010 Both N/A N/A
50 N/A $21,950 Both X/X X/X
00 X/X X/X Both N/A N/A
54 N/A $28,000 Both $5,000 Signage Violation Reserve
55 N/A $40,008 Both N/A N/A
56 N/A $43,200 Both N/A N/A
60 $150,000 $64,000 Both N/A N/A
62 N/A $24,500 Both $120,000 Initial GSA/Enterprise Deposit
65 N/A $36,000 Both X/X X/X
00 X/X X/X Both N/A N/A
68 N/A $60,000 Both $80,000 Tax Litigation Reserve
70 N/A $30,000 Both N/A N/A
73 $95,000 N/A Both N/A N/A
80 N/A $51,429 Both X/X X/X
00 X/X X/X Both N/A N/A
84 N/A N/A Both N/A N/A
93 N/A N/A Both N/A N/A
95 N/A N/A Both N/A N/A
96 N/A N/A Both N/A N/A
98 N/A $13,412 Both N/A N/A
--------------------------------- ---------------------- --------------
(i) (viii) (xviii) (v) (iv)
--------------------------------- ---------------------- --------------
Interest
"A" Calculation
Loan Interest Grace (30/360 / Monthly
# Crossed Yes/No Property Name Rate Days Actual/360) Payment
-----------------------------------------------------------------------------------------------------------------------------------
100 Pinewood Village Apartments 6.940% 0 Actual/360 $13,226
101 0000 Xxxxxx Xxxxx Building 6.200% 0 Actual/360 $11,818
000 Xxxxxxxx Xxxxx Xxxxxx Xxxx Xxxx 6.600% 0 Actual/360 $11,240
000 Xxxxx Xxxxxxx Xxxxxx Xxxx Xxxx 6.000% 0 Actual/360 $9,893
109 Avalon Mobile Home Park 6.560% 0 Actual/360 $10,184
110 Dorset Shopping Center 6.730% 0 Actual/360 $10,000
000 Xxxxxxxx Xxxxxx Xxxx Xxxx 6.400% 0 Actual/360 $9,007
000 Xxxx Xxxxxxx Apartments 6.450% 0 Actual/360 $8,569
000 Xxxxxxxxx Xxxxx 6.480% 0 Actual/360 $7,979
121 Shops @ Xxxxxxxx 6.250% 0 Actual/360 $7,158
000 Xxxxxxx Xxxxxxx Xxxxxxxx Xxxxxxxx Xxxxxx 6.250% 0 Actual/360 $7,081
000 Xxxxxxxxxxx Xxxxxxxx Xxxx 6.040% 0 Actual/360 $7,276
000 Xxxxxx Xxxx Apartments 6.550% 0 Actual/360 $7,326
132 Xxxxx Xxxx Apartments 6.100% 0 Actual/360 $5,454
000 Xxxx & Xxxxxxx Xxxxxx Xxxx Xxxx 6.250% 0 Actual/360 $4,766
139 Flex II - Cross Keys Campus 7.000% 0 Actual/360 $4,657
146 Reddingwood Mobile Home Park 6.780% 0 Actual/360 $4,687
[TABLE CONTINUED]
---------------------------------------------------------------------------------
(i) (x) (xi)
---------------------------------------------------------------------------------
Servicing Contractual
First and Engineering Recurring
Payment Defeasance Trustee Reserve at Replacement
# Date ARD Defeasance Provision Fees Origination Reserve/FF&E
------------------------------------------------------------------------------------------------------------------------------------
100 6/11/2002 N/A Yes Lock/34_Def/83_0.0%/3 0.0524% $66,000 $21,240
101 12/11/2002 N/A Yes Lock/28_Def/89_0.0%/3 0.0524% $23,000 $15,253
102 11/11/2002 N/A Yes Lock/29_Def/25_0.0%/6 0.0524% $16,765 $4,800
105 11/11/2002 N/A Yes Lock/29_Def/28_0.0%/3 0.0524% N/A N/A
109 1/11/2003 N/A Yes Lock/27_Def/87_0.0%/6 0.0524% $45,625 $4,950
110 12/11/2002 N/A Yes Lock/28_Def/86_0.0%/6 0.0524% $13,125 N/A
111 10/11/2002 N/A Yes Lock/30_Def/84_0.0%/6 0.0524% $3,125 $3,500
114 1/11/2003 N/A Yes Lock/27_Def/87_0.0%/6 0.0524% $7,500 $9,000
115 2/11/2003 N/A Yes Lock/26_Def/88_0.0%/6 0.0524% N/A N/A
121 11/11/2002 N/A Yes Lock/29_Def/85_0.0%/6 0.0524% N/A N/A
122 11/11/2002 N/A Yes Lock/29_Def/88_0.0%/3 0.0524% $6,000 $2,160
123 12/11/2002 N/A Yes Lock/28_Def/86_0.0%/6 0.0524% $1,250 N/A
126 12/11/2002 N/A Yes Lock/28_Def/86_0.0%/6 0.0524% $58,862 $14,000
132 12/11/2002 N/A Yes Lock/28_Def/86_0.0%/6 0.0524% $3,000 $4,250
137 1/11/2003 N/A Yes Lock/27_Def/27_0.0%/6 0.0524% $5,625 $3,600
139 10/11/2002 N/A Yes Lock/30_Def/84_0.0%/6 0.0524% N/A N/A
146 1/11/2003 N/A Yes Lock/27_Def/87_0.0%/6 0.0524% $22,210 $3,700
[TABLE CONTINUED]
----------
(i)
----------
LC & TI Contractual Tax & Initial Initial other
Reserve at Recurring Insurance Other Reserve
# Origination LC&TI Escrows Reserve Description
--------------------------------------------------------------------------------------------------------------------------
000 X/X X/X Xxxx X/X X/X
101 $70,000 $53,385 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
121 N/A $8,005 Both N/A N/A
122 N/A $10,800 Both $33,125 Target Estoppel Reserve
000 X/X X/X Xxxx X/X X/X
126 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 N/A N/A
139 N/A $27,692 Both X/X X/X
000 X/X X/X Both N/A N/A
---------------------------------
(i) (viii) (xviii)
---------------------------------
"A" Contractual Contractual
Loan Other Other Reserve
# Crossed Yes/No Property Name Reserve Description
-----------------------------------------------------------------------------------------------------------------------------------
0 Xxxxxxxxx Xxxx X/X X/X
2 Quaker Headquarters N/A N/A
3 Dallas Xxxxxxxxx Xxxxxxxxx
0X Xxxxxxxxx Xxxx
0X Xxxxxxxxx 2
3C Coppell 2
4 Yes Michigan Equities C Portfolio
4A 2436, 2438, 2440 Xxxxxxxx Xxxxxx
0X 0000 Xxxxxxxxxx Xxxxx
0X 0000 Xxxxxxxx Road
4D 2311-2337, 0000 Xxxxx Xxxx
0X 2803, 2805, 2807, 2809, 2811, 0000 Xxxxx
Xxxx
0X 825, 839, 915, 000 Xxxxxxxxxx Xxx
0X 000 Xxxxxxxxxx Way
4H 0000 Xxxx Xx. Xxxxxx Xxxxxxx
0X 0000, 6500, 0000 Xxxxxxxxx Xxxxx
0X 0000, 0000 Xxxxxxxx Xxxxxx
4K 0000 Xxxxxxxx Xxxxxx
4L 906, 912, 924 Centennial Way
4M 0000 Xxxxxxxxxx Xxxxx
0X 0000 Xxxxxxxx Xxxxx
0X 2455 Woodlake Circle
4P 0000 Xxxxx Xxxx
6 Willoughby Commons N/A N/A
0 Xxxx Xxxxxxx Xxxxxxx X/X X/X
10 000 Xxxxxx Xxxxxx $14,262 U.S. Attorney Reserve ($11,087.00);
Xxxxx Xxxx Reserve ($3,174.60)
00 Xxxx Xxx Xxxxxx Xxxx Xxxx X/X X/X
00 Xxxxxxx Xxx Xxxxxxxxxx X/X N/A
00 Xxxxxxxxx Xxxxx Xxxxxxxxxx X/X N/A
00 Xxxxx Xxxxxx Xxxxxxxx Shopping Center N/A N/A
16 136 East South Temple Office Building $18,334 Working Capital Account ($50,000
annually, averages $4,166.67 monthly)
for TILC and Cap Ex); Earnout Reserve
($14,167.00)
00 XXX Xxxxxx X/X X/X
19 Indian Lookout Apartments N/A N/A
20 Ashland & Roosevelt Center $6,250 Ground Lease Reserve
00 Xxxxxxx Xxxxx X/X X/X
00 Xxxxxx Xxxxxx Xxxxxxxx Xxxxxx X/X X/X
00 Xxxx Xxxxx Xxxxxxxx Xxxxxx X/X X/X
00 Xxxxxxxxx Xxxxxx Shopping Center N/A N/A
00 Xxxxxxx Xxxxx Xxxxx X/X X/X
00 Xxxxxxx Xxxxx X/X X/X
36 Yes Talisker Apartments N/A N/A
37 Silver Spur Town & Country Shopping Center N/A N/A
[TABLE CONTINUED]
-------
(i)
-------
Letter Earnout
Letter of of Credit Earnout Reserve
# Credit Description Reserve Description
------------------------------------------------------------------------------------------------------------------------------------
1 N/A N/A N/A N/A
2 N/A N/A X/X X/X
0 X/X
0X
0X
0X
0 X/X
0X
4B
4C
4D
4E
4F
4G
4H
4I
4J
4K
4L
0X
0X
0X
4P
6 $240,000 TILC Reserve X/X X/X
0 X/X X/X X/X X/X
10 N/A N/A N/A N/A
12 N/A N/A N/A N/A
13 N/A N/A X/X X/X
00 X/X X/X X/X X/X
15 $1,545,000 Earnout Reserve LOC ($1,200,000); $170,429 Release upon: Execution of one or more Qualifying Leases that
OPM LOC ($295,000); Tax & cumulatively represented 8,278 SF of vacant space at origination
Insurance LOC ($50,000)
16 N/A N/A $250,000 $250,000 at closing with additional $80,000 within 60 days of
closing - Release upon: 1) Lease 8,000 sf space or portion of
12,202 sf space to Digitas, Inc.; 2) Payment of TI allowances for
Xxxxxxx Xxxxxxxxxxx and Millcreek Broadcasting
18 N/A N/A N/A N/A
19 N/A N/A N/A N/A
20 N/A N/A X/X X/X
00 X/X X/X $750,000 Release upon: 1) DSCR of 1.25; 2) For first $300,000 - Leases
covering 2,500 sf and rental inc. of $164,000 before exp.
reimbursements; 3) Final draw - Leases to achieve 88% occupancy
and rental inc. of $169,500
27 X/X X/X X/X X/X
00 X/X X/X $600,000 Release upon: 1) DSCR not less than 1.25 to 1.00, 2) NCF not less
than $950,000 and 3) Trustor has new lease with Taco Xxxx of not
less than 38$ psf
32 N/A N/A N/A N/A
33 N/A N/A N/A N/A
35 N/A N/A N/A N/A
36 N/A N/A X/X X/X
00 X/X X/X $600,000 Release upon: 1) DSCR not less than 1.30; 2) Occupancy not less
than 92.5%; 3) Renewal leases for a minimum term of 3 years for
[TABLE CONTINUED]
---------------------------------
(i) (viii) (xviii)
------ ----------------
Additional Additional Additional
Collateral Collateral Collateral Administrative
# Amount Event Date Description Fee
---------------------------------------------------------------------------------------------------------
1 N/A N/A N/A 0.0524%
2 X/X X/X X/X 0.0000%
0 X/X X/X X/X 0.0524%
3A 0.0524%
3B 0.0524%
3C 0.0524%
4 N/A N/A N/A 0.0724%
4A 0.0724%
4B 0.0724%
4C 0.0724%
4D 0.0724%
4E 0.0724%
4F 0.0724%
4G 0.0724%
4H 0.0724%
4I 0.0724%
4J 0.0724%
4K 0.0724%
4L 0.0724%
4M 0.0724%
4N 0.0724%
4O 0.0724%
4P 0.0724%
0 X/X X/X X/X 0.0000%
0 X/X X/X X/X 0.0524%
00 X/X X/X X/X 0.0000%
00 X/X X/X X/X 0.0524%
00 X/X X/X X/X 0.0000%
00 X/X X/X X/X 0.0524%
00 X/X X/X X/X 0.0000%
00 X/X X/X X/X 0.0524%
00 X/X X/X X/X 0.0000%
00 X/X X/X X/X 0.0524%
20 N/A N/A N/A 0.0524%
25 $750,000.00 3/12/2004 Release upon: 1) DSCR of 1.25; 2) For first $300,000 - 0.0524%
Leases covering 2,500 sf and rental inc. of $164,000
before exp. reimbursements; 3) Final draw - Leases to
achieve 88% occupancy and rental inc. of $169,500
27 N/A N/A N/A 0.0524%
30 $600,000.00 7/15/2003 Release upon: 1) DSCR not less than 1.25 to 1.00, 2) 0.0524%
NCF not less than $950,000 and 3) Trustor has new
lease with Taco Xxxx of not less than $38 psf
32 N/A N/A N/A 0.0524%
00 X/X X/X X/X 0.0000%
00 X/X X/X X/X 0.0524%
36 N/A N/A N/A 0.0524%
37 $600,000.00 11/15/2003 Release upon: 1) DSCR not less than 1.30; 2) Occupancy 0.0524%
not less than 92.5%; 3) Renewal leases for a minimum
---------------------------------
(i) (viii) (xviii)
---------------------------------
"A" Contractual Contractual
Loan Other Other Reserve
# Crossed Yes/No Property Name Reserve Description
------------------------------------------------------------------------------------------------------------------------------------
38 Yes Xxxx Xxxx Xxxxxxxxxx X/X X/X
00 000 and 000 Xxxxxxxx Xxxx Xxxxx X/X X/X
00 Xxxxxxxxxx Xxxxx II N/A N/A
00 Xxxxxx Xxxxxx X/X X/X
00 Xxxx Xxxxx X/X X/X
48 (A) Rancho Xxxxx 24 & 25 N/A N/A
49 (A) Rancho Xxxxx 28 N/A N/A
50 (A) Rancho Xxxxx 27 N/A N/A
00 Xxxx Xxxxxx $3,913 Lease Holdback Reserve
54 Food 4 Less Center N/A N/A
55 Yes Western Plaza N/A N/A
00 Xxxxxxxxx Xxxxx Xxxx Xxxxxxx Xxxxxx X/X X/X
60 N.E. 820 Business Towers X/X X/X
00 Xxxxxxx Xxxxxx X/X X/X
65 Yes Xxxx Xxxxxx Xxxxx X/X X/X
00 Xxxxxx Xxxxxxx & Vanderbilt Apts N/A N/A
00 Xxxxxxx Xxxxxx X/X X/X
00 Xxxxx Xxxx Xxxxxxxx Xxxxxx X/X X/X
73 Avon Square Shopping Center X/X X/X
00 Xxxxxxxxxx Xxxxxxxx Xxxxxx X/X X/X
00 000-000 Xxxxxxx Xxxxxx X/X X/X
00 Xxxxx Xxxxxx Xxxxxxxxxx X/X N/A
93 MCC Corporate Plaza Office Buildings $2,381 Lease Holdback Reserve
95 Coronado Villas N/A N/A
00 Xxxxx Xxxx Xxxxxx Xxxx Xxxx X/X X/X
00 Xxxxxxx Xxxxxxx Xxxxxxxx Xxxx X/X X/X
[TABLE CONTINUED]
------
(i)
------
Letter Earnout
Letter of of Credit Earnout Reserve
# Credit Description Reserve Description
------------------------------------------------------------------------------------------------------------------------------------
38 N/A N/A N/A N/A
40 N/A N/A X/X X/X
00 X/X X/X X/X X/X
42 $300,000 Lease-up Letter of Credit N/A N/A
44 $300,000 TILC Letter of Credit $350,000 Release upon: 1) DSCR of 1.35; 2) LTV of outstanding balance to
value of no more than 79% of stabilized value; 3) Occupancy of 94%
48 X/X X/X X/X X/X
00 X/X X/X $180,000 Release upon: 1) DSCR no less than 1.30; 2) All three properties
must have 90% occupanct
50 N/A N/A N/A N/A
53 N/A N/A N/A N/A
54 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
60 N/A N/A N/A N/A
62 N/A N/A N/A N/A
65 N/A N/A N/A N/A
67 N/A N/A X/X X/X
00 X/X X/X X/X X/X
70 $400,000 Initial Environmental LOC N/A N/A
($250,000) and Xxxxxx Xxxxxx XXX
($150,000)
73 N/A N/A N/A N/A
80 N/A N/A N/A N/A
82 N/A N/A N/A N/A
84 N/A N/A X/X X/X
00 X/X X/X $36,000 Release upon: 1) Renew Managed Care Consultants, Inc. lease as of
5/11/2006 for term until at least 12/31/2014; 2) Tenant estoppel
certificate; 3) Occupancy no less than 90%; 4) DSCR of at least
1.25; 5) No default
95 N/A N/A N/A N/A
96 N/A N/A X/X X/X
00 X/X X/X X/X X/X
[TABLE CONTINUED]
------- ----------------
(i) (xvii)
------- ----------------
Additional Additional Additional
Collateral Collateral Collateral Administrative
# Amount Event Date Description Fee
-----------------------------------------------------------------------------------------------------------
38 N/A N/A N/A 0.0524%
00 X/X X/X X/X 0.0000%
00 X/X X/X X/X 0.0524%
42 N/A N/A N/A 0.0524%
44 $350,000.00 11/7/2003 Release upon: 1) DSCR of 1.35; 2) LTV of outstanding 0.0524%
balance to value of no more than 79% of stabilized
value; 3) Occupancy of 94%
48 N/A N/A N/A 0.0524%
49 $180,000.00 1/22/2003 Release upon: 1) DSCR no less than 1.30; 2) All three 0.0524%
properties must have 90% occupancy
50 N/A N/A N/A 0.0524%
53 N/A N/A N/A 0.0524%
00 X/X X/X X/X 0.0000%
00 X/X X/X X/X 0.0524%
00 X/X X/X X/X 0.0000%
00 X/X X/X X/X 0.0524%
00 X/X X/X X/X 0.0000%
00 X/X X/X X/X 0.0524%
00 X/X X/X X/X 0.0000%
00 X/X X/X X/X 0.0524%
00 X/X X/X X/X 0.0000%
00 X/X X/X X/X 0.0524%
00 X/X X/X X/X 0.0000%
00 X/X X/X X/X 0.0524%
84 N/A N/A N/A 0.0524%
93 $36,000.00 6/1/2006 Release upon: 1) Renew Managed Care Consultants, Inc. 0.0524%
lease as of 5/11/2006 for term until at least
12/31/2014; 2) Tenant estoppel certificate; 3)
Occupancy no less than 90%; 4) DSCR of at least 1.25;
5) No default
95 N/A N/A N/A 0.0524%
96 N/A N/A N/A 0.0524%
98 N/A N/A N/A 0.0524%
---------------------------------
(i) (viii) (xviii)
---------------------------------
"A" Contractual Contractual
Loan Other Other Reserve
# Crossed Yes/No Property Name Reserve Description
------------------------------------------------------------------------------------------------------------------------------------
000 Xxxxxxxx Xxxxxxx Xxxxxxxxxx X/X X/X
101 0000 Xxxxxx Xxxxx Xxxxxxxx X/X X/X
102 Woodlawn Manor Mobile Home Park N/A N/A
105 Villa Fontana Mobile Home Park N/A N/A
109 Avalon Mobile Home Park N/A N/A
110 Dorset Shopping Center $2,000 CVS Lease Holdback Reserve
000 Xxxxxxxx Xxxxxx Xxxx Xxxx X/X X/X
000 Xxxx Xxxxxxx Xxxxxxxxxx X/X X/X
000 Xxxxxxxxx Xxxxx X/X X/X
121 Shops @ Xxxxxxxx N/A N/A
000 Xxxxxxx Xxxxxxx Xxxxxxxx Xxxxxxxx Xxxxxx X/X X/X
000 Xxxxxxxxxxx Xxxxxxxx Xxxx X/X X/X
000 Xxxxxx Xxxx Xxxxxxxxxx X/X X/X
000 Xxxxx Xxxx Xxxxxxxxxx X/X N/A
137 Town & Country Mobile Home Park N/A N/A
139 Flex II - Cross Keys Campus N/A N/A
146 Reddingwood Mobile Home Park N/A N/A
[TABLE CONTINUED]
-------
(i)
-------
Letter Earnout
Letter of of Credit Earnout Reserve
# Credit Description Reserve Description
------------------------------------------------------------------------------------------------------------------------------------
000 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
105 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
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
122 N/A N/A X/X X/X
000 X/X X/X X/X X/X
126 N/A N/A X/X X/X
000 X/X X/X X/X X/X
137 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
[TABLE CONTINUED]
-------
(i) (xvii)
------- ----------------
Additional Additional Additional
Collateral Collateral Collateral Administrative
# Amount Event Date Description Fee
-----------------------------------------------------------------------------------------------------------
100 N/A N/A N/A 0.0524%
000 X/X X/X X/X 0.0524%
000 X/X X/X X/X 0.0524%
000 X/X X/X X/X 0.0524%
000 X/X X/X X/X 0.0524%
000 X/X X/X X/X 0.0524%
000 X/X X/X X/X 0.0524%
000 X/X X/X X/X 0.0524%
000 X/X X/X X/X 0.0524%
000 X/X X/X X/X 0.0524%
000 X/X X/X X/X 0.0524%
000 X/X X/X X/X 0.0524%
000 X/X X/X X/X 0.0524%
000 X/X X/X X/X 0.0524%
000 X/X X/X X/X 0.0524%
000 X/X X/X X/X 0.0524%
000 X/X X/X X/X 0.0524%
EXHIBIT B-1B
SCHEDULE OF PNC MORTGAGE LOANS
[See Attached Schedule]
PNC MORTGAGE LOAN SCHEDULE
--------------------------------------------------------------------------------------------------------------
NUMBER PROPERTY NAME ADDRESS CITY
--------------------------------------------------------------------------------------------------------------
0 Xxxxxxx Xxxxxxxx 0000 Xxxxxxxx Xxxx Xxxxxx
7 Mooresville Consumer Square Xxxxxx Station Boulevard Mooresville
8 Flower Hill Mall 2610-2750 Xxx xx xx Xxxxx Xxx Xxxxx
00 One Montrose Metro 00000 Xxxxxxxxx Xxxx Xxxxxxxxx
00 Xxxxxx Xxxxx Xxxxxxxx Xxxxxx 000-000 Xxxxxxxxx Xxxxxx Xxxx Xxxxx Xxxxx
21 Rehoboth Bay Mobile Home Park 163 Rehoboth Bay Rehoboth Beach
22 Huntwick Apartments 5100 F. M. 0000 Xxxx Xxxxxxx
00 Xxxxx Xxxxxxx Xxxxxxxxxx 000 Xxxxx Xxx Coachman Road Clearwater
24 Southern Hills Tower 0000 Xxxx 00xx Xxxxxx Xxxxx
00 Xxxxxxxx Xxxxx Xxxxxxxx 0000 Xxxx Xxxxxx Drive Tulsa
28 50-66 Office Building 11130 & 00000 Xxxx Xxxxxx Xxxxxxx
29 Chasco Xxxxx Apartments 0000 Xxxxxx Xxxxx Xxxxxxxxx Xxxx Xxxxxx
31 Shady Grove Tech Center 00000 Xxxxx Xxxxx Xxxx Xxxxxxxxx
39 000-000 Xxxxxx Xxxx 000-000 Xxxxxx Xxxx Xxxxxxxxx
00 Xxxx Xxxxxxxxxx Xxxx Xxxx Xxxxxxxxxxxx
47 Potomac Valley Bank Building 000 Xxxxxxx Xxxxxx Xxxxxxxxxxxx
51 Stone Creek Apartment Homes 0000 Xxxxxxxxx Xxxxx Tyler
52 One Beltway North 10230 New Hampshire Avenue Silver Spring
57 The Park at Summerhill Apartments 0000 Xxxxxxxxxx Xxxx Xxxxxxxxx
58 Country Bend Apartments 0000 Xxxxx Xxxx Xxxxxxxx
00 Xxxxxx Xxxxxx Xxxxx 0-00 Xxxxxxxxx Xxxxxx Xxxxxx Xxxxxx Farms
00 Xxxxxxxxxx Xxxxxx Self Storage 0000 00xx Xxxxxx Xxx Xxxxxxxxx
63 Professional Equity Xxxxxxxx 000 Xxxxxxxxxx Xxxxxxxxx Xxxxxxxxxxxx
00 Xxxxxx Xxxx Center 00000 Xxxxxxx Xxx Xxxxxx Xxxx
69 Fairfax Apartments 0000 Xxxxxxxx Xxxxxx Xxxxxx
76 Xxxx Gardens Apartments 000 Xxxx Xxxx Xxxxxxx
78 Kickingbird Apartments 0000 Xxxx Xxxxxxxxxxx Xxxx Xxxxxx
79 Willow Tree Apartments 0000 Xxxxx Xxxxx Xxxxx Xxxxxxx
86 0 Xxxxxx Xxxxxx 0 Xxxxxx Xxxxxx Xxxx Xxxxxxxxxxx
89 Brookwood Townhomes 000 Xxxxxxxxx 0xx Xxxxxx Xxxx Xxxxxxx
91 Orangewood Place Apartments 0000 Xxxxx 00xx Xxxxxx Xxxxxxx
00 Xxxxx Xxxxxxx Xxxxxxxxxx Xxxxx Xxxxxxx Xxxxx Xxxx
-------------------------------------------------------------------------------------------------
ORIGINAL
ZIP ORIGINAL CUT-OFF MONTHLY BALLOON
STATE CODE BALANCE BALANCE PAYMENT RATE TERM
-------------------------------------------------------------------------------------------------
XX 00000 $29,000,000.00 $28,937,315.19 $173,869.65 6.00% 000
XX 00000 $24,500,000.00 $24,438,653.13 $161,848.95 6.93% 000
XX 00000 $24,000,000.00 $24,000,000.00 $151,696.33 6.50% 000
XX 00000 $20,590,000.00 $20,544,013.39 $120,812.45 5.80% 000
XX 00000 $15,000,000.00 $14,968,361.91 $91,384.22 6.15% 00
XX 00000 $13,000,000.00 $13,000,000.00 $76,277.89 5.80% 000
XX 00000 $12,300,000.00 $12,246,107.90 $77,744.37 6.50% 000
XX 00000 $12,000,000.00 $11,984,102.32 $72,177.68 6.03% 000
XX 00000 $12,000,000.00 $11,973,848.49 $71,560.77 5.95% 000
XX 00000 $11,800,000.00 $11,774,284.35 $70,368.09 5.95% 000
XX 00000 $11,040,000.00 $11,015,342.77 $64,777.54 5.80% 000
XX 00000 $10,300,000.00 $10,286,172.50 $61,093.06 5.90% 000
XX 00000 $9,120,000.00 $9,099,630.98 $53,511.88 5.80% 000
XX 00000 $6,700,000.00 $6,691,230.04 $40,818.29 6.15% 000
XX 00000 $5,880,000.00 $5,872,186.43 $35,253.57 6.00% 000
XX 00000 $5,520,000.00 $5,507,671.38 $32,388.77 5.80% 000
XX 00000 $5,200,000.00 $5,173,498.77 $33,554.45 6.70% 000
XX 00000 $5,120,000.00 $5,108,564.76 $30,041.76 5.80% 000
XX 00000 $4,800,000.00 $4,784,906.43 $28,011.50 5.75% 000
XX 00000 $4,765,000.00 $4,751,380.47 $29,338.92 6.25% 000
XX 00000 $4,737,000.00 $4,730,799.51 $28,859.14 6.15% 000
XX 00000 $4,400,000.00 $4,400,000.00 $29,709.12 6.50% 000
XX 00000 $4,336,000.00 $4,326,315.79 $25,441.61 5.80% 000
XX 00000 $4,250,000.00 $4,240,615.98 $25,126.78 5.87% 000
XX 00000 $4,000,000.00 $3,977,037.62 $25,943.92 6.75% 000
XX 00000 $3,250,000.00 $3,243,088.87 $19,694.83 6.10% 000
XX 00000 $3,150,000.00 $3,140,299.43 $20,199.33 5.95% 000
XX 00000 $3,125,000.00 $3,118,354.67 $18,937.34 6.10% 000
XX 00000 $2,715,000.00 $2,704,623.31 $16,716.72 6.25% 000
XX 00000 $2,640,000.00 $2,636,455.87 $15,658.80 5.90% 000
XX 00000 $2,550,000.00 $2,542,919.40 $15,950.40 6.40% 000
XX 00000 $2,100,000.00 $2,095,642.38 $12,930.06 6.25% 120
----------------------------------------------------------------------------
ORIGINAL REMAINING REMAINING CROSS CO-OP ARD
AMORT TERM TERM AMORT. TERM COLLATERALIZED LOAN DATE
----------------------------------------------------------------------------
360 119 359 No No N/A
360 118 358 No No N/A
360 116 356 No No N/A
360 119 359 No No N/A
360 83 359 No No N/A
360 119 359 No No N/A
360 116 356 No No N/A
360 119 359 No No N/A
360 119 359 No No N/A
360 119 359 No No N/A
360 119 359 No No N/A
360 119 359 No No N/A
360 119 359 No No N/A
360 119 359 No No N/A
360 119 359 No No N/A
360 119 359 No No N/A
360 115 355 No No N/A
360 119 359 No No N/A
360 118 358 No No N/A
360 118 358 No No N/A
360 119 359 No No N/A
300 119 359 No No N/A
360 119 359 No No N/A
360 119 359 No No N/A
360 116 356 No No N/A
360 119 359 No No N/A
300 119 299 No No N/A
360 119 359 No No N/A
360 117 357 No No N/A
360 119 359 No No N/A
360 118 358 No No N/A
360 119 359 No No N/A
MTG.
FEE SIMPLE/ LOAN INTEREST
DEFEASANCE LEASEHOLD HOSPITALITY SELLER ORIGINATOR CALCULATION
------------------------------------------------------------------------------
Yes Fee Simple No PNC PNC Actual/360
Yes Fee Simple No PNC PNC Actual/360
Yes Fee Simple No PNC PNC Actual/360
Yes Fee Simple No PNC PNC Actual/360
Yes Fee Simple No PNC PNC Actual/360
Yes Fee Simple No PNC PNC Actual/360
No Fee Simple No PNC PNC Actual/360
Yes Fee Simple No PNC PNC Actual/360
No Fee Simple No PNC PNC Actual/360
No Fee Simple No PNC PNC Actual/360
Yes Fee Simple No PNC PNC Actual/360
Yes Fee Simple No PNC PNC Actual/360
Yes Fee Simple No PNC PNC Actual/360
Yes Fee Simple No PNC PNC Actual/360
Yes Fee Simple No PNC PNC Actual/360
Yes Fee Simple No PNC PNC Actual/360
No Fee Simple No PNC PNC Actual/360
Yes Fee Simple No PNC PNC Actual/360
No Fee Simple No PNC PNC Actual/360
Yes Fee Simple No PNC PNC Actual/360
Yes Fee Simple No PNC PNC Actual/360
Yes Fee Simple No PNC PNC Actual/360
Yes Fee Simple No PNC PNC Actual/360
Yes Fee Simple No PNC PNC Actual/360
Yes Fee Simple No PNC PNC Actual/360
No Fee Simple No PNC PNC Actual/360
Yes Fee Simple No PNC PNC Actual/360
No Fee Simple No PNC PNC Actual/360
Yes Fee Simple No PNC PNC Actual/360
Yes Fee Simple No PNC PNC Actual/360
Yes Fee Simple No PNC PNC Actual/360
Yes Fee Simple No PNC PNC Actual/360
---------------------------------------------
SERVICING AND
TRUSTEE FEES "A" LOAN
---------------------------------------------
0.0974% No
0.1124% No
0.1024% No
0.1024% No
0.1324% No
0.0824% No
0.1324% No
0.1124% No
0.0824% No
0.0824% No
0.1024% No
0.1324% No
0.1024% No
0.1124% No
0.0824% No
0.1024% No
0.1324% No
0.1024% No
0.1324% No
0.0824% No
0.1324% No
0.0824% No
0.1024% No
0.0824% No
0.1324% No
0.1024% No
0.1824% No
0.1024% No
0.1124% No
0.0824% No
0.0824% No
0.0824% No
EXHIBIT B-1C
SCHEDULE OF NATIONAL CONSUMER COOPERATIVE BANK MORTGAGE LOANS
[See Attached Schedule]
Commercial Mortgage Pass-Through Certificates Series 2003-CPN1
NCBCC Collateral
------------------------- --------------------------------------------------------------
(i) (viii) (xviii) (ii)
------------------------- --------------------------------------------------------------
"A"
Loan
# Crossed Yes/No Property Name Address City
-------------------------------------------------------------------------------------------------------------------------------
83 1 Xxxxxxx Island Cooperative Housing 000 Xxxxx Xxxxxx Xxxxx Xxxxx Xxxxxxx Island
Association
168 1 154 Clinton Owners, Inc. 000 Xxxxxxx Xxxxxx Xxxxxxxx
[TABLE CONTINUED]
--------------------------------------------------------------------------------------------------------------------------------
(i) (xv) (xiv) (xiii) (ix)
--------------------------------------------------------------------------------------------------------------------------------
Zip Mortgage Mortgage Property Property Co-op Loan Original
# State Code Originator Loan Seller Type Sub-type (Yes/No) Balance
--------------------------------------------------------------------------------------------------------------------------------
83 FL 32952 NCB NCB MultifamilyCooperative No $3,000,000
168 NY 11201 NCB NCB MultifamilyCooperative No $225,000
[TABLE CONTINUED]
-------------------------- ------------- ---------------------------------------------------------------------------
(i) (iii) (xii) (vii) (vi)
-------------------------- ------------- ---------------------------------------------------------------------------
Initial Orig Rem. Orig Rem.
Cut-off Fee/ Interest Only Amort. Amort. Term to Term to
# Balance Leasehold Term Term Term Maturity Maturity
----------------------------------------------------------------------------------------------------------------------------------
83 $2,976,532 Fee 0 300 293 120 113
168 $224,225 Fee 0 480 471 120 111
--------------------------------- ---------------------- --------------
(i) (viii) (xviii) (v) (iv)
--------------------------------- ---------------------- --------------
Interest
"A" Calculation
Loan Interest Grace (30/360 / Monthly
# Crossed Yes/No Property Name Rate Days Actual/360) Payment
-----------------------------------------------------------------------------------------------------------------------------------
83 1 Xxxxxxx Island Cooperative Housing 7.790% 9 Actual/360 $22,953
Association
168 1 154 Clinton Owners, Inc. 7.120% 9 Actual/360 $1,434
[TABLE CONTINUED]
---------------------------------------------------------------------------------
(i) (x) (xi)
---------------------------------------------------------------------------------
Servicing Contractual
First and Engineering Recurring
Payment Defeasance Trustee Reserve at Replacement
# Date ARD Defeasance Provision Fees Origination Reserve/FF&E
------------------------------------------------------------------------------------------------------------------------------------
83 9/1/2002 N/A No N/A 0.0824% N/A N/A
168 7/1/2002 N/A Yes Lock/48_Def/68_0.0%/4 0.0824% N/A N/A
[TABLE CONTINUED]
----------
(i)
----------
LC & TI Contractual Tax & Initial Initial other
Reserve at Recurring Insurance Other Reserve
# Origination LC&TI Escrows Reserve Description
--------------------------------------------------------------------------------------------------------------------------
83 N/A N/A None N/A N/A
168 N/A N/A Tax N/A N/A
---------------------------------
(i) (viii) (xviii)
---------------------------------
"A" Contractual Contractual
Loan Other Other Reserve
# Crossed Yes/No Property Name Reserve Description
-----------------------------------------------------------------------------------------------------------------------------------
83 0 Xxxxxxx Xxxxxx Xxxxxxxxxxx Xxxxxxx X/X X/X
Association
168 1 154 Clinton Owners, Inc. N/A N/A
[TABLE CONTINUED]
----------
(i)
----------
Letter Earnout
Letter of of Credit Earnout Reserve
# Credit Description Reserve Description
-----------------------------------------------------------------------------------------------------------------------------------
83 N/A N/A N/A N/A
000 X/X X/X X/X X/X
[TABLE CONTINUED]
---------- ----------------
(i) (xvii)
---------- ----------------
Additional Additional Additional
Collateral Collateral Collateral Administrative
# Amount Event Date Description Fee
---------------------------------------------------------------------------------------------------------------------
83 N/A N/A N/A 0.0824%
000 X/X X/X X/X 0.0824%
EXHIBIT B-1D
SCHEDULE OF NCB, FSB MORTGAGE LOANS
[See Attached Schedule]
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES SERIES 2003-CPNI
COMBINED COLLATERAL
------------------------------------ -----------------------------------------------------
(i) (viii) (xviii) (ii)
------------------------------------ -----------------------------------------------------
"A"
LOAN
# CROSSED YES/NO PROPERTY NAME ADDRESS
----------------------------------------------------------------------------------------------------------------------------------
34 Parkview Apartments Corp. 117, 119 & 000 Xxxxx Xxxxxxxx Xxxxxx
45 425 Park-South Tower Corporation 000 Xxxx Xxxxxx Xxxxx
46 The Woodlands Apt. Corp. 000 Xxxxxxxx Xxxx
66 Sunnybrook Gardens Owners, Inc. 000-000 Xxxxxx Xxxx & 0-00 Xxxxxxxxxx Xxxx
00 00-00 Xxxxxxx Xxxx. 00-00 Xxxxxx Xxxxxx
72 Tribeca Owners Corp. 00 Xxxxxx Xxxxxx
74 230 Apartments Corp. 000 Xxxx Xxx Xxxxxx
00 Xxx Xxxxxxx Cooperative Section XII, 00-00 Xxxx Xxxxxxxxx & 000-00 00xx Xxxxxx
Inc.
77 607 Apartments Corp. 000 Xxxx Xxx Xxxxxx
81 00 Xxxx 00xx Xxxxxx, Inc. 00 Xxxx 00xx Xxxxxx
00 Xxxxxxx Xxxxxxx Owners Corp. 000 Xxxx 00xx Xxxxxx & 000 Xxxx 00xx Xxxxxx
87 14BC Apartment Corp. 000-000 Xxxx 00xx Xxxxxx
88 Colonial Apt. Corp. 0000 Xxxxxxxx Xxxx
00 00xx Xxxxxx Owners' Corp. 00-00 00xx Xxxxxx
92 000 Xxxxxx Xxxxxx Housing Corporation 000 0xx Xxxxxx
94 000 Xxxx Xxx Xxxxxx Owners, Inc. 000 Xxxx Xxx Xxxxxx
99 141 East Third Owners Corp. 000 Xxxx Xxxxx Xxxxxx
103 000 Xxxxx Xxxxxx Tenants Corp. 000 Xxxxx Xxxxxx
104 3255 Xxxxxxx Owners Corp. 0000 Xxxxxxx Xxxxxx
106 000 Xxxx 00xx Xxxxxx Corp. 000 Xxxx 00xx Xxxxxx
000 Xxxxxx Xxxxxxx Owners Corp. 0000-0000 Xxxxxx Xxxxxx
108 36 West 35th Apartment Corp. 00 Xxxx 00xx Xxxxxx
112 Xxxxxx Xxxxx Co-operative Apartments, 000-000 Xxxx Xxxxxxx Xxxxxx and 1-2 Xxxxxx Drive
Section I, Incorporated
113 000 Xxxx Xxxxxxx Xxxx Owners Corp. 000 Xxxx Xxxxxxx Xxxx
116 Edgewood, Inc. 000 Xxxxx Xxxxxxx
117 1260 Apartment Corp. 0000 Xxxxxxxxx Xxxxxx
000 00 Tenant Stockholders Inc. 00 Xxxx 00xx Xxxxxx
000 Xxxxxxxxx Xxxxxxx Owner's Corp. 515-525, 545-551, 559-565 & 000-000 Xxxxxxxxx Xxxxxx
120 59 Wooster St. Corp. 00 Xxxxxxx Xxxxxx
124 3/10 Tenants' Housing Corp. 000 Xxxx 00xx Xxxxxx
125 000 X. 00xx Xx., Inc. 000-000 Xxxx 00xx Xxxxxx
127 000 Xxxx 00xx Xxxxxx Tenants Corp. 000 Xxxx 00xx Xxxxxx
128 Grand and Xxxxxx Street Corp. 00 Xxxxxx Xxxxxx
129 000 Xxxx 000xx Xxxxxx Owners Corp. 000 Xxxx 000xx Xxxxxx
130 000 Xxxx 00xx Xxxxxx Owners Corp. 000 Xxxx 00xx Xxxxxx
131 281 West 11th Owners Corp. 000 Xxxx 00xx Xxxxxx
000 000 Xxxx 000 Owners, Inc. 000 Xxxx 000xx Xxxxxx
134 320 East 35th Owners Corp. 000 Xxxx 00xx Xxxxxx
000 Xxxxx Xxxxxxx Cooperative, Inc. 000 Xxxxx Xxxxxx
136 57 East 72nd Corporation 00 Xxxx 00xx Xxxxxx
000 307-9 Owners Corp. 000-000 Xxxx 00xx Xxxxxx
140 000 Xxxx 00xx Xxxxxx Owners, Inc. 000 Xxxx 00xx Xxxxxx
141 Tudor Court Owners Corp. 000 Xxxxx Xxxxx Xxxxxx
142 000 Xxxx Xxxxxxxx Owners Corp. 0 Xxxxxx Xxxxxx
143 51 E. 90 Apartments Corp. 00 Xxxx 00xx Xxxxxx
144 45 W. 54 Corp. 00 Xxxx 00xx Xxxxxx
145 Xxxxxxxxxx House, Inc. 00 Xxxxxxxxxx Xxxxxx
(TABLE CONTINUED)
-----------------------------------------------------------------------------------------------------------------------
(i) (xv) (xiv) (xiii)
-----------------------------------------------------------------------------------------------------------------------
ZIP MORTGAGE MORTGAGE PROPERTY PROPERTY
# CITY STATE CODE ORIGINATOR LOAN SELLER TYPE SUB-TYPE
-----------------------------------------------------------------------------------------------------------------------
34 Ossining NY 10562 NCB, FSB NCB Multifamily Cooperative
45 Xxx Xxxx XX 00000 NCB, FSB NCB Multifamily Cooperative
46 Islip NY 11751 NCB, FSB NCB Multifamily Cooperative
66 Yonkers NY 10708 NCB, FSB NCB Multifamily Cooperative
00 Xxx Xxxxxxx XX 00000 NCB, FSB NCB Multifamily Cooperative
72 Xxx Xxxx XX 00000 NCB, FSB NCB Multifamily Cooperative
74 Xxx Xxxx XX 00000 NCB, FSB NCB Multifamily Cooperative
75 Xxxxxxx XX 00000 NCB, FSB NCB Multifamily Cooperative
77 Xxx Xxxx XX 00000 NCB, FSB NCB Multifamily Cooperative
81 Xxx Xxxx XX 00000 NCB, FSB NCB Multifamily Cooperative
85 Xxx Xxxx XX 00000 NCB, FSB NCB Multifamily Cooperative
87 Xxx Xxxx XX 00000 NCB, FSB NCB Multifamily Cooperative
88 Xxxxxxxx XX 00000 NCB, FSB NCB Multifamily Cooperative
90 Xxxxxxx Xxxxxxx XX 00000 NCB, FSB NCB Multifamily Cooperative
92 Xxxxxxxx XX 00000 NCB, FSB NCB Multifamily Cooperative
94 Xxx Xxxx XX 00000 NCB, FSB NCB Multifamily Cooperative
99 Xxx Xxxx XX 00000 NCB, FSB NCB Multifamily Cooperative
000 Xxxxxxxx XX 00000 NCB, FSB NCB Multifamily Cooperative
000 Xxxxx XX 00000 NCB, FSB NCB Multifamily Cooperative
000 Xxx Xxxx XX 00000 NCB, FSB NCB Multifamily Cooperative
000 Xxx Xxxxxxxx XX 00000 NCB, FSB NCB Multifamily Cooperative
000 Xxx Xxxx XX 00000 NCB, FSB NCB Multifamily Cooperative
000 Xxxxx Xxxxxx XX 00000 NCB, FSB NCB Multifamily Cooperative
000 Xxxxxxxx XX 00000 NCB, FSB NCB Multifamily Cooperative
000 Xxxxxxxx XX 00000 NCB, FSB NCB Multifamily Cooperative
000 Xxx Xxxx XX 00000 NCB, FSB NCB Multifamily Cooperative
000 Xxx Xxxx XX 00000 NCB, FSB NCB Multifamily Cooperative
000 Xxxxxx Xxxxxx XX 00000 NCB, FSB NCB Multifamily Cooperative
000 Xxx Xxxx XX 00000 NCB, FSB NCB Multifamily Cooperative
000 Xxx Xxxx XX 00000 NCB, FSB NCB Multifamily Cooperative
000 Xxx Xxxx XX 00000 NCB, FSB NCB Multifamily Cooperative
000 Xxx Xxxx XX 00000 NCB, FSB NCB Multifamily Cooperative
000 Xxx Xxxx XX 00000 NCB, FSB NCB Multifamily Cooperative
000 Xxx Xxxx XX 00000 NCB, FSB NCB Multifamily Cooperative
000 Xxx Xxxx XX 00000 NCB, FSB NCB Multifamily Cooperative
000 Xxx Xxxx XX 00000 NCB, FSB NCB Multifamily Cooperative
000 Xxx Xxxx XX 00000 NCB, FSB NCB Multifamily Cooperative
000 Xxx Xxxx XX 00000 NCB, FSB NCB Multifamily Cooperative
000 Xxxxxx XX 00000 NCB, FSB NCB Multifamily Cooperative
000 Xxx Xxxx XX 00000 NCB, FSB NCB Multifamily Cooperative
000 Xxx Xxxx XX 00000 NCB, FSB NCB Multifamily Cooperative
000 Xxx Xxxx XX 00000 NCB, FSB NCB Multifamily Cooperative
141 Xxxxxxxxx XX 00000 NCB, FSB NCB Multifamily Cooperative
000 Xxx Xxxx XX 00000 NCB, FSB NCB Multifamily Cooperative
000 Xxx Xxxx XX 00000 NCB, FSB NCB Multifamily Cooperative
000 Xxx Xxxx XX 00000 NCB, FSB NCB Multifamily Cooperative
000 Xxx Xxxx XX 00000 NCB, FSB NCB Multifamily Cooperative
(TABLE CONTINUED)
----------------------------------------------------------------------------- ------------------------------------------
(i) (ix) (iii) (xii) (vii) (vi) (vi)
----------------------------------------------------------------------------- -------------------------------------------
INITIAL
INTEREST ORIG REM. ORIG REM
CO-OP LOAN ORIGINAL CUT-OFF FEE/ ONLY AMORT. AMORT. TERM TO TERM TO
# (YES/NO) BALANCE BALANCE LEASEHOLD TERM TERM TERM MATURITY MATURITY
------------------------------------------------------------------------------------------------------------------------------------
34 No $8,500,000 $8,462,209 Fee 0 360 356 120 116
45 No $5,600,000 $5,588,914 Fee 0 480 476 120 116
46 No $5,600,000 $5,584,244 Fee 0 480 474 120 114
66 No $4,100,000 $4,087,458 Fee 0 360 357 120 117
71 No $3,600,000 $3,588,454 Fee 0 360 357 120 117
72 No $3,400,000 $3,400,000 Fee 120 Interest Interest Only 120 116
Only
74 No $3,350,000 $3,343,973 Fee 0 480 477 120 117
75 No $3,350,000 $3,334,875 Fee 0 360 355 120 115
77 No $3,240,000 $3,237,620 Fee 0 720 716 120 116
81 No $3,025,000 $3,025,000 Fee 120 Interest Interest Only 120 117
Only
85 No $2,740,000 $2,709,236 Fee 0 240 235 120 115
87 No $2,700,000 $2,686,772 Fee 0 360 355 120 115
88 No $2,700,000 $2,671,805 Fee 0 300 292 120 112
90 No $2,600,000 $2,591,323 Fee 0 360 357 120 117
92 No $2,457,000 $2,449,322 Fee 0 480 472 120 112
94 No $2,400,000 $2,392,451 Fee 0 480 472 120 112
99 No $2,000,000 $1,995,388 Fee 0 480 476 120 116
103 No $1,750,000 $1,746,873 Fee 0 480 477 120 117
104 No $1,650,000 $1,646,261 Fee 0 360 358 121 118
106 No $1,600,000 $1,598,555 Fee 0 480 479 120 119
107 No $1,600,000 $1,593,955 Fee 0 360 356 120 116
108 No $1,500,000 $1,496,792 Fee 0 480 475 120 115
112 No $1,425,000 $1,418,501 Leasehold 0 360 356 120 116
113 No $1,350,000 $1,338,743 Fee 0 300 294 120 114
116 No $1,250,000 $1,248,232 Fee 0 360 359 120 119
117 No $1,250,000 $1,248,208 Fee 0 480 477 120 117
118 No $1,200,000 $1,200,000 Fee 120 Interest Interest Only 120 112
Only
119 No $1,200,000 $1,197,421 Fee 0 480 476 120 116
120 No $1,200,000 $1,194,759 Fee 0 360 356 120 116
124 No $1,100,000 $1,097,178 Fee 0 480 474 120 114
125 No $1,100,000 $1,096,883 Fee 0 360 357 120 117
127 No $1,000,000 $998,382 Fee 0 480 477 120 117
128 No $1,000,000 $997,981 Fee 0 360 358 120 118
129 No $985,000 $979,154 Fee 0 360 353 120 113
130 No $950,000 $939,026 Fee 0 300 291 120 111
131 No $900,000 $896,557 Fee 0 360 356 120 116
133 No $835,000 $829,008 Fee 0 180 178 120 178
134 No $825,000 $821,963 Fee 0 360 356 120 116
135 No $800,000 $790,073 Fee 0 120 118 120 118
136 No $790,000 $790,000 Fee 120 Interest Interest Only 120 112
Only
138 No $700,000 $696,937 Fee 0 240 238 120 118
140 No $700,000 $695,994 Fee 0 360 354 120 114
141 No $675,000 $670,225 Fee 0 180 178 120 178
142 No $650,000 $648,106 Fee 0 480 474 120 114
143 No $650,000 $647,413 Fee 0 480 469 120 109
144 No $650,000 $645,402 Fee 0 180 178 120 178
145 No $630,000 $628,430 Fee 0 480 476 120 116
------------------------------------------------------------------------------------------------------------------------------------
EXHIBIT A MORTGAGE LOAN SCHEDULE
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES SERIES 2003-CPNI
COMBINED COLLATERAL
------------------------------------- -----------------------------------------------------------------
(i) (viii) (xviii) (ii)
------------------------------------- ------------------------------------------------------------------
"A"
LOAN
# CROSSED YES/NO PROPERTY NAME ADDRESS CITY
------------------------------------------------------------------------------------------------------------------------------------
147 0 Xxxx 00xx Xxxxxx 0 Xxxx 00xx Xxxxxx Xxx Xxxx
Corporation
148 000 Xxxx 000xx Xxxxxx Owners 000 Xxxx 000xx Xxxxxx Xxx Xxxx
Corp.
000 Xxxxxxx Xxxxxx Owners Corp. 149 & 000 Xxxxxxx Xxxxxx Xxxxxxxx
150 000 X. 00xx Xx. Owners Corp. 000 Xxxx 00xx Xxxxxx Xxx Xxxx
151 Caton/Stratford Owners Corp. 0000 Xxxxx Xxxxxx & 0 Xxxxxxxxx Xxxx Xxxxxxxx
152 Fieldston Garden Apartments 000 Xxxx 000xx Xxxxxx Xxxxxxxxx
Inc.
153 0 Xxxx 00xx Xx. Corp. 0 Xxxx 00xx Xxxxxx Xxx Xxxx
154 000 Xxxxx Xxxxxx Corporation 000 Xxxxx Xxxxxx Xxx Xxxx
000 Xxxx 00xx Xxxxxx Tenants 000-000 Xxxx 00xx Xxxxxx Xxx Xxxx
Corp.
000 Xxxx 00xx Xxxxxx Apartment 000-000 Xxxx 00xx Xxxxxx Xxx Xxxx
Corp.
157 56 Xxxxxx Owners Corp. 00 Xxxxxx Xxxxxx Xxx Xxxx
000 Xxxxxxxxxx Xxxx Owners, Inc. 000 Xxxxx Xxxxxxx Xxxxxx Xxxxx Xxxxxx
000 Xxxx 0 Xxxxxx Development 000 Xxxx 0xx Xxxxxx Xxx Xxxx
Corp.
160 130 Flower Corp. 000 Xxxx 00xx Xxxxxx Xxx Xxxx
161 Finnish Home Building 000-000 00xx Xxxxxx Xxxxxxxx
Association "ALKU", Inc.
162 000 Xxxxxxx Xxx. Tenants 000 Xxxxxxx Xxxxxx Xxxxxxxx
Corp.
000 00 Xxxxxx Xxxxxx Owners Corp. 00 Xxxxxx Xxxxxx Xxx Xxxx
000 86-88 Owners Corporation 00-00 Xxxxxxxx Xxxx Xxxx Xxxxxxxx
165 184 Xxxxx Owners Corp. 000 Xxxxxxx Xxxxxx Xxxxxxxx
166 000 Xxxx Xxxxxxxx, Inc. 000 Xxxx Xxxxxxxx Xxx Xxxx
167 259 West Tenant Corp. 000 Xxxx 00xx Xxxxxx Xxx Xxxx
169 000 X. 00xx Xx. Tenants Corp. 000 Xxxx 00xx Xxxxxx Xxx Xxxx
170 15 Berkeley Owners Corp. 00 Xxxxxxxx Xxxxx Xxxxxxxx
171 000 Xxxxx Xxxxxx Xxxxxxxxx 000 Xxxxx Xxxxxx Xxxxxxxx
Corporation
(TABLE CONTINUED)
------------------------------------------------------------------------------------------------------------------------------------
(i) (xv) (xiv) (xiii) (ix)
------------------------------------------------------------------------------------------------------------------------------------
ZIP MORTGAGE MORTGAGE PROPERTY PROPERTY CO-OP LOAN
# STATE CODE ORIGINATOR LOAN SELLER TYPE SUB-TYPE (YES/NO)
------------------------------------------------------------------------------------------------------------------------------------
147 NY 10021 NCB, FSB NCB Multifamily Cooperative No
148 NY 10032 NCB, FSB NCB Multifamily Cooperative No
149 NY 11205 NCB, FSB NCB Multifamily Cooperative No
150 NY 10011 NCB, FSB NCB Multifamily Cooperative No
151 NY 11218 NCB, FSB NCB Multifamily Cooperative No
152 NY 10463 NCB, FSB NCB Multifamily Cooperative No
153 NY 10011 NCB, FSB NCB Multifamily Cooperative No
154 NY 10021 NCB, FSB NCB Multifamily Cooperative No
155 NY 10011 NCB, FSB NCB Multifamily Cooperative No
156 NY 10011 NCB, FSB NCB Multifamily Cooperative No
157 NY 10007 NCB, FSB NCB Multifamily Cooperative No
158 NY 10552 NCB, FSB NCB Multifamily Cooperative No
159 NY 10009 NCB, FSB NCB Multifamily Cooperative No
160 NY 10001 NCB, FSB NCB Multifamily Cooperative No
161 NY 11232 NCB, FSB NCB Multifamily Cooperative No
162 NY 11205 NCB, FSB NCB Multifamily Cooperative No
163 NY 10013 NCB, FSB NCB Multifamily Cooperative No
164 NY 11215 NCB, FSB NCB Multifamily Cooperative No
165 NY 11205 NCB, FSB NCB Multifamily Cooperative No
166 NY 10012 NCB, FSB NCB Multifamily Cooperative No
167 NY 10011 NCB, FSB NCB Multifamily Cooperative No
169 NY 10024 NCB, FSB NCB Multifamily Cooperative No
170 NY 11217 NCB, FSB NCB Multifamily Cooperative No
171 NY 11201 NCB, FSB NCB Multifamily Cooperative No
(TABLE CONTINUED)
------------------------------------------------------------- -----------------------------------------------------
(i) (iii) (xii) (vii) (vi)
------------------------------------------------------------- -----------------------------------------------------
INITIAL ORIG REM. ORIG REM
ORIGINAL CUT-OFF FEE/ INTEREST ONLY AMORT. AMORT. TERM TO TERM TO
# BALANCE BALANCE LEASEHOLD TERM TERM TERM MATURITY MATURITY
----------------------------------------------------------------------------------------------------------------------------------
147 $600,000 $600,000 Fee 120 Interest Only Interest Only 120 112
148 $600,000 $597,916 Fee 0 360 356 120 116
149 $600,000 $595,900 Fee 0 180 178 180 178
150 $575,000 $573,563 Fee 0 480 475 120 115
151 $550,000 $548,539 Fee 0 480 475 120 115
152 $550,000 $548,247 Fee 0 360 357 120 117
153 $510,000 $506,584 Fee 0 360 352 120 112
154 $500,000 $500,000 Fee 120 Interest Only Interest Only 120 115
155 $500,000 $499,643 Fee 0 720 711 120 111
156 $500,000 $487,438 Fee 0 180 172 180 172
157 $500,000 $484,814 Fee 0 120 115 120 115
158 $400,000 $397,193 Fee 0 360 352 120 112
159 $390,000 $386,172 Fee 0 180 177 180 177
160 $330,000 $322,831 Fee 0 180 173 180 173
161 $300,000 $292,672 Fee 0 180 172 180 172
162 $275,000 $274,456 Fee 0 360 358 120 118
163 $275,000 $273,452 Fee 0 360 353 120 113
164 $280,000 $272,979 Fee 0 180 172 180 172
165 $260,000 $258,585 Fee 0 360 353 120 113
166 $250,000 $249,266 Fee 0 360 357 120 117
167 $250,000 $248,830 Fee 0 360 355 120 115
169 $180,000 $179,058 Fee 0 360 354 120 114
170 $140,000 $137,418 Fee 0 180 174 120 114
171 $130,000 $128,469 Fee 0 360 347 120 107
----------------------------------------------------------------------------------------------------------------------------------
EXHIBIT A MORTGAGE LOAN SCHEDULE
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES SERIES 2003-CPNI
COMBINED COLLATERAL
--------------------------------- ------------ ---------------
(i) (viii) (xviii) (v) (iv)
--------------------------------- ------------ --------------
INTEREST
"A" CALCULATION
LOAN INTEREST GRACE (30/360 / MONTHLY
# CROSSED YES/NO PROPERTY NAME RATE DAYS ACTUAL/360) PAYMENT
-----------------------------------------------------------------------------------------------------------------------------------
34 Parkview Apartments Corp. 5.700% 9 Actual/360 $49,761
45 425 Park-South Tower Corporation 6.600% 9 Actual/360 $33,553
46 The Woodlands Apt. Corp. 6.580% 9 Actual/360 $33,472
00 Xxxxxxxxxx Xxxxxxx Owners, Inc. 5.900% 9 30/360 $24,319
71 83-33 Gardens Corp. 5.650% 9 30/360 $20,780
72 Tribeca Owners Corp. 5.640% 9 30/360 $15,980
74 230 Apartments Corp. 5.710% 9 Actual/360 $17,943
00 Xxx Xxxxxxx Cooperative Section XII, Inc. 6.700% 9 Actual/360 $21,824
77 607 Apartments Corp. 5.430% 9 30/360 $15,252
81 00 Xxxx 00xx Xxxxxx, Inc. 5.750% 9 Actual/360 $14,696
00 Xxxxxxx Xxxxxxx Owners Corp. 5.820% 9 Actual/360 $19,474
87 14BC Apartment Corp. 6.250% 9 Actual/360 $16,777
88 Colonial Apt. Corp. 6.710% 9 Actual/360 $18,745
00 00xx Xxxxxx Owners' Corp. 5.680% 9 Actual/360 $15,188
92 000 Xxxxxx Xxxxxx Housing Corporation 6.950% 9 Actual/360 $15,352
94 000 Xxxx Xxx Xxxxxx Owners, Inc. 6.960% 9 30/360 $14,845
99 141 East Third Owners Corp. 5.900% 9 Actual/360 $10,979
103 000 Xxxxx Xxxxxx Tenants Corp. 5.740% 9 Actual/360 $9,410
104 3255 Xxxxxxx Owners Corp. 6.010% 9 Actual/360 $9,992
106 000 Xxxx 00xx Xxxxxx Corp. 5.870% 9 Actual/360 $8,749
000 Xxxxxx Xxxxxxx Owners Corp. 6.660% 9 Actual/360 $10,380
108 36 West 35th Apartment Corp. 6.890% 9 Actual/360 $9,306
112 Xxxxxx Xxxxx Co-operative Apartments, 5.550% 9 Actual/360 $8,205
Section I, Incorporated
113 000 Xxxx Xxxxxxx Xxxx Owners Corp. 6.450% 9 Actual/360 $9,149
116 Edgewood, Inc. 5.750% 9 Actual/360 $7,358
117 1260 Apartment Corp. 6.200% 9 30/360 $7,053
118 15 Tenant Stockholders Inc. 6.810% 9 30/360 $6,810
000 Xxxxxxxxx Xxxxxxx Owner's Corp. 6.220% 9 Actual/360 $6,861
120 00 Xxxxxxx Xx. Corp. 5.550% 9 30/360 $6,851
124 3/10 Tenants' Housing Corp. 6.970% 9 Actual/360 $6,889
125 000 X. 00xx Xx., Inc. 6.300% 9 30/360 $6,809
127 000 Xxxx 00xx Xxxxxx Tenants Corp. 6.190% 9 Actual/360 $5,696
000 Xxxxx xxx Xxxxxx Xxxxxx Corp. 5.940% 9 30/360 $5,957
129 000 Xxxx 000xx Xxxxxx Owners Corp. 6.970% 9 Actual/360 $6,597
130 000 Xxxx 00xx Xxxxxx Owners Corp. 6.880% 9 Actual/360 $6,700
131 281 West 11th Owners Corp. 6.250% 9 30/360 $5,541
000 000 Xxxx 000 Owners, Inc. 5.950% 9 Actual/360 $7,061
134 320 East 35th Owners Corp. 6.450% 9 30/360 $5,187
135 Maple Village Cooperative, Inc. 6.120% 9 Actual/360 $8,964
136 57 East 72nd Corporation 6.950% 9 30/360 $4,575
138 307-9 Owners Corp. 5.930% 9 30/360 $4,987
140 000 Xxxx 00xx Xxxxxx Owners, Inc. 6.450% 9 Actual/360 $4,443
000 Xxxxx Xxxxx Owners Corp. 6.140% 9 Actual/360 $5,779
142 000 Xxxx Xxxxxxxx Owners Corp. 6.170% 9 30/360 $3,654
143 51 E. 90 Apartments Corp. 7.290% 9 Actual/360 $4,225
144 45 W. 54 Corp. 6.140% 9 Actual/360 $5,564
145 Xxxxxxxxxx House, Inc. 5.550% 9 Actual/360 $3,304
(TABLE CONTINUED)
--------------------------------------------------
(i) (x) (xi)
--------------------------------------------------
SERVICING CONTRACTUAL
FIRST AND ENGINEERING RECURRING
PAYMENT DEFEASANCE TRUSTEE RESERVE AT REPLACEMENT
# DATE ARD DEFEASANCE PROVISION FEES ORIGINATION RESERVE/FF&E
-------------------------------------------------------------------------------------------------------------------------------
34 12/1/2002 N/A No N/A 0.0824% X/X X/X
00 00/0/0000 X/X Xx X/X 0.0824% N/A N/A
46 10/1/2002 N/A Yes Lock/48_Def/68_0.0%/4 0.0824% $10,000 N/A
66 1/1/2003 N/A No N/A 0.0824% N/A N/A
71 1/1/2003 N/A Yes Lock/48_Def/68_0.0%/4 0.0824% X/X X/X
00 00/0/0000 X/X Xx X/X 0.0824% X/X X/X
00 0/0/0000 X/X Xx X/X 0.0824% N/A N/A
75 11/1/2002 N/A Yes Lock/48_Def/68_0.0%/4 0.0824% X/X X/X
00 00/0/0000 X/X Xx X/X 0.0824% N/A N/A
81 1/1/2003 N/A Yes Lock/48_Def/68_0.0%/4 0.0824% N/A N/A
85 11/1/2002 N/A Yes Lock/48_Def/68_0.0%/4 0.0824% X/X X/X
00 00/0/0000 X/X Xx X/X 0.0824% X/X X/X
00 0/0/0000 X/X Xx X/X 0.0824% N/A N/A
90 1/1/2003 N/A Yes Lock/48_Def/68_0.0%/4 0.0824% N/A N/A
92 8/1/2002 N/A Yes Lock/48_Def/68_0.0%/4 0.0824% N/A N/A
94 8/1/2002 N/A Yes Lock/48_Def/68_0.0%/4 0.0824% X/X X/X
00 00/0/0000 X/X Xx X/X 0.0824% N/A N/A
103 1/1/2003 N/A No N/A 0.0824% N/A N/A
104 2/1/2003 N/A No N/A 0.0824% N/A N/A
106 3/1/2003 N/A No N/A 0.0824% N/A N/A
107 12/1/2002 N/A Yes Lock/48_Def/68_0.0%/4 0.0824% N/A N/A
108 11/1/2002 N/A Yes Lock/48_Def/68_0.0%/4 0.0824% X/X X/X
000 00/0/0000 X/X Xx X/X 0.0824% N/A N/A
113 10/1/2002 N/A Yes Lock/48_Def/68_0.0%/4 0.0824% X/X X/X
000 0/0/0000 X/X Xx X/X 0.0824% N/A N/A
117 1/1/2003 N/A Yes Lock/48_Def/68_0.0%/4 0.0824% N/A N/A
118 8/1/2002 N/A Yes Lock/48_Def/68_0.0%/4 0.0824% N/A N/A
119 12/1/2002 N/A Yes Lock/48_Def/68_0.0%/4 0.0824% N/A N/A
120 12/1/2002 N/A Yes Lock/48_Def/68_0.0%/4 0.0824% N/A N/A
124 10/1/2002 N/A Yes Lock/48_Def/68_0.0%/4 0.0824% X/X X/X
000 0/0/0000 X/X Xx X/X 0.0824% N/A N/A
127 1/1/2003 N/A No N/A 0.0824% N/A N/A
128 2/1/2003 N/A No N/A 0.0824% N/A N/A
129 9/1/2002 N/A Yes Lock/48_Def/68_0.0%/4 0.0824% X/X X/X
000 0/0/0000 X/X Xx X/X 0.0824% N/A N/A
131 12/1/2002 N/A Yes Lock/48_Def/68_0.0%/4 0.0824% N/A N/A
133 2/1/2003 N/A Yes Lock/48_Def/128_0.0%/4 0.0824% N/A N/A
134 12/1/2002 N/A Yes Lock/48_Def/68_0.0%/4 0.0824% N/A N/A
135 2/1/2003 N/A Yes Lock/48_Def/68_0.0%/4 0.0824% N/A N/A
136 8/1/2002 N/A Yes Lock/48_Def/68_0.0%/4 0.0824% N/A N/A
138 2/1/2003 N/A Yes Lock/48_Def/68_0.0%/4 0.0824% X/X X/X
000 00/0/0000 X/X Xx X/X 0.0824% N/A N/A
141 2/1/2003 N/A Yes Lock/48_Def/128_0.0%/4 0.0824% N/A N/A
142 10/1/2002 N/A Yes Lock/48_Def/68_0.0%/4 0.0824% N/A N/A
143 5/1/2002 N/A Yes Lock/48_Def/65_0.0%/7 0.0824% X/X X/X
000 0/0/0000 X/X Xx X/X 0.0824% N/A N/A
145 12/1/2002 N/A No N/A 0.0824% N/A N/A
(TABLE CONTINUED)
--------
(i)
--------
LC & TI CONTRACTUAL TAX & INITIAL INITIAL OTHER
RESERVE AT RECURRING INSURANCE OTHER RESERVE
# ORIGINATION LC&TI ESCROWS RESERVE DESCRIPTION
------------------------------------------------------------------------------------------------------------
00 X/X X/X Xxxx X/X X/X
45 N/A N/A None N/A N/A
46 N/A N/A Tax X/X X/X
00 X/X X/X Xxxx X/X N/A
00 X/X X/X Xxxx X/X X/X
00 X/X X/X Xxxx X/X X/X
74 N/A N/A None N/A N/A
75 N/A N/A None $10,000.00 Survey Collateral Security
Reserve
77 N/A N/A None N/A N/A
00 X/X X/X Xxxx X/X X/X
85 N/A N/A None N/A N/A
87 N/A N/A Tax X/X X/X
00 X/X X/X Xxxx X/X N/A
00 X/X X/X Xxxx X/X X/X
00 X/X X/X Xxxx X/X X/X
94 N/A N/A None N/A N/A
99 N/A N/A Tax N/A N/A
000 X/X X/X Xxxx X/X X/X
104 N/A N/A None X/X X/X
000 X/X X/X None $25,000 Certificate of Occupancy
Reserve
000 X/X X/X Xxxx X/X X/X
108 N/A N/A Tax X/X X/X
000 X/X X/X None N/A N/A
000 X/X X/X Xxxx X/X X/X
116 N/A N/A Tax X/X X/X
000 X/X X/X None N/A N/A
000 X/X X/X Xxxx X/X X/X
119 N/A N/A Tax X/X X/X
000 X/X X/X Tax X/X X/X
000 X/X X/X Tax X/X X/X
000 X/X X/X None X/X X/X
000 X/X X/X Tax X/X X/X
000 X/X X/X None X/X X/X
000 X/X X/X Tax $60,000 Negative Carry Reserve
000 X/X X/X Xxxx X/X N/A
131 N/A N/A Tax $20,000 Existing Loan Payment Reserve
133 N/A N/A Tax X/X X/X
000 X/X X/X Tax X/X X/X
000 X/X X/X None N/A N/A
000 X/X X/X Xxxx X/X X/X
000 X/X X/X Xxxx X/X X/X
140 N/A N/A Tax X/X X/X
000 X/X X/X Tax X/X X/X
000 X/X X/X None N/A N/A
000 X/X X/X Xxxx X/X X/X
000 X/X X/X Xxxx X/X X/X
145 N/A N/A Tax N/A N/A
------------------------------------------------------------------------------------------------------------
EXHIBIT A MORTGAGE LOAN SCHEDULE
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES SERIES 2003-CPNI
COMBINED COLLATERAL
------------------------------- ---------------- ---------------------
(i) (viii) (xviii) (v) (iv)
------------------------------- ---------------- ---------------------
INTEREST
"A" CALCULATION
LOAN INTEREST GRACE (30/360 / MONTHLY
# CROSSED YES/NO PROPERTY NAME RATE DAYS ACTUAL/360) PAYMENT
---------------------------------------------------------------------------------------------------------------------------------
147 0 Xxxx 00xx Xxxxxx Corporation 6.540% 9 30/360 $3,270
148 000 Xxxx 000xx Xxxxxx Owners Corp. 6.750% 9 30/360 $3,892
000 Xxxxxxx Xxxxxx Owners Corp. 6.600% 9 Actual/360 $5,290
150 000 X. 00xx Xx. Owners Corp. 6.250% 9 Actual/360 $3,300
151 Xxxxx/Stratford Owners Corp. 6.000% 9 Actual/360 $3,058
000 Xxxxxxxxx Xxxxxx Apartments Inc. 5.950% 9 Actual/360 $3,309
153 0 Xxxx 00xx Xx. Corp. 6.940% 9 Actual/360 $3,406
154 000 Xxxxx Xxxxxx Corporation 6.080% 9 30/360 $2,533
000 Xxxx 00xx Xxxxxx Tenants Corp. 7.320% 9 30/360 $3,089
000 Xxxx 00xx Xxxxxx Xxxxxxxxx Xxxx. 7.220% 9 Actual/360 $4,584
157 56 Xxxxxx Owners Corp. 6.300% 9 Actual/360 $5,649
000 Xxxxxxxxxx Xxxx Owners, Inc. 6.700% 9 Actual/360 $2,606
000 Xxxx 0 Xxxxxx Development Corp. 6.830% 9 Actual/360 $3,489
160 130 Flower Corp. 7.400% 9 30/360 $3,040
161 Finnish Home Building Association 7.550% 9 Actual/360 $2,808
"ALKU", Inc.
162 000 Xxxxxxx Xxx. Tenants Corp. 6.970% 9 Actual/360 $1,842
000 00 Xxxxxx Xxxxxx Owners Corp. 7.250% 9 Actual/360 $1,895
164 86-88 Owners Corporation 7.320% 9 30/360 $2,567
165 184 Xxxxx Owners Corp. 7.430% 9 Actual/360 $1,824
166 000 Xxxx Xxxxxxxx, Inc. 6.430% 9 Actual/360 $1,583
167 259 West Tenant Corp. 6.500% 9 Actual/360 $1,595
169 000 X. 00xx Xx. Tenants Corp. 6.950% 9 Actual/360 $1,203
170 15 Berkeley Owners Corp. 7.570% 9 Actual/360 $1,312
171 000 Xxxxx Xxxxxx Xxxxxxxxx 6.780% 9 Actual/360 $854
Corporation
(TABLE CONTINUED)
------
(i)
-------------------------------------------------------------------------
SERVICING CONTRACTUAL
FIRST AND ENGINEERING RECURRING LC & TI
PAYMENT DEFEASANCE TRUSTEE RESERVE AT REPLACEMENT RESERVE AT
# DATE ARD DEFEASANCE PROVISION FEES ORIGINATION RESERVE/FF&E ORIGINATION
-----------------------------------------------------------------------------------------------------------------------------------
147 8/1/2002 N/A Yes Lock/48_Def/68_0.0%/4 0.0824% N/A N/A N/A
148 12/1/2002 N/A Yes Lock/48_Def/68_0.0%/4 0.0824% X/X X/X X/X
000 0/0/0000 X/X Xx X/X 0.0824% N/A N/A N/A
150 11/1/2002 N/A No N/A 0.0824% N/A N/A N/A
151 11/1/2002 N/A No N/A 0.0824% N/A N/A N/A
152 1/1/2003 N/A No N/A 0.0824% N/A N/A N/A
153 8/1/2002 N/A Yes Lock/48_Def/68_0.0%/4 0.0824% X/X X/X X/X
000 00/0/0000 X/X Xx X/X 0.0824% N/A N/A N/A
155 7/1/2002 N/A Yes Lock/48_Def/68_0.0%/4 0.0824% N/A N/A N/A
156 8/1/2002 N/A Yes Lock/48_Def/128_0.0%/4 0.0824% N/A N/A N/A
157 11/1/2002 N/A Yes Lock/48_Def/68_0.0%/4 0.0824% $100,000 N/A N/A
158 8/1/2002 N/A No N/A 0.0824% N/A N/A N/A
159 1/1/2003 N/A Yes Lock/48_Def/128_0.0%/4 0.0824% N/A N/A N/A
160 9/1/2002 N/A Yes Lock/48_Def/128_0.0%/4 0.0824% N/A N/A N/A
161 8/1/2002 N/A Yes Lock/48_Def/128_0.0%/4 0.0824% X/X X/X X/X
000 0/0/0000 X/X Xx X/X 0.0824% N/A N/A N/A
163 9/1/2002 N/A Yes Lock/48_Def/68_0.0%/4 0.0824% N/A N/A N/A
164 8/1/2002 N/A Yes Lock/48_Def/128_0.0%/4 0.0824% N/A N/A N/A
165 9/1/2002 N/A Yes Lock/48_Def/68_0.0%/4 0.0824% X/X X/X X/X
000 0/0/0000 X/X Xx X/X 0.0824% N/A N/A N/A
167 11/1/2002 N/A Yes Lock/48_Def/68_0.0%/4 0.0824% N/A N/A N/A
169 10/1/2002 N/A Yes Lock/48_Def/68_0.0%/4 0.0824% N/A N/A N/A
170 10/1/2002 N/A Yes Lock/48_Def/68_0.0%/4 0.0824% N/A N/A N/A
171 3/1/2002 N/A Yes Lock/48_Def/68_0.0%/4 0.0824% N/A N/A N/A
(TABLE CONTINUED)
------
(i)
------
CONTRACTUAL TAX & INITIAL INITIAL OTHER
RECURRING INSURANCE OTHER RESERVE
# LC&TI ESCROWS RESERVE DESCRIPTION
--------------------------------------------------------------------------------
000 X/X Xxxx X/X X/X
000 X/X Tax X/X X/X
000 X/X Xxxx X/X X/X
150 N/A Tax N/A N/A
151 N/A Tax X/X X/X
000 X/X Xxxx X/X X/X
153 N/A Tax X/X X/X
000 X/X Xxxx X/X X/X
155 N/A None N/A N/A
156 N/A Tax X/X X/X
000 X/X Xxxx X/X X/X
158 N/A Tax N/A N/A
159 N/A Tax $10,000 Negative Carry Reserve
160 N/A None X/X X/X
000 X/X Xxxx X/X X/X
162 N/A Tax N/A N/A
163 N/A Tax N/A N/A
164 N/A Tax N/A N/A
165 N/A Tax N/A N/A
166 N/A Tax N/A N/A
167 N/A Tax N/A N/A
169 N/A Tax N/A N/A
170 N/A Tax N/A N/A
171 N/A Tax N/A N/A
---------------------------------------------------------------------------------------
EXHIBIT A MORTGAGE LOAN SCHEDULE
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES SERIES 2003-CPNI
COMBINED COLLATERAL
---------------------------------------------------
(i) (viii) (xviii)
---------------------------------------------------
"A" CONTRACTUAL CONTRACTUAL
LOAN OTHER OTHER RESERVE
# CROSSED YES/NO PROPERTY NAME RESERVE DESCRIPTION
-----------------------------------------------------------------------------------------------------------------------------------
34 Parkview Apartments Corp. N/A N/A
45 425 Park-South Tower Corporation N/A N/A
46 The Woodlands Apt. Corp. N/A N/A
00 Xxxxxxxxxx Xxxxxxx Owners, Inc. X/X X/X
00 00-00 Xxxxxxx Xxxx. X/X X/X
72 Tribeca Owners Corp. N/A N/A
74 230 Apartments Corp. N/A N/A
00 Xxx Xxxxxxx Cooperative Section XII, Inc. X/X X/X
00 000 Xxxxxxxxxx Xxxx. X/X X/X
81 00 Xxxx 00xx Xxxxxx, Inc. N/A N/A
00 Xxxxxxx Xxxxxxx Owners Corp. N/A N/A
87 14BC Apartment Corp. X/X X/X
00 Xxxxxxxx Xxx. Xxxx. X/X X/X
00 00xx Xxxxxx Owners' Corp. N/A N/A
92 000 Xxxxxx Xxxxxx Housing Corporation N/A N/A
94 760 West End Avenue Owners, Inc. N/A N/A
99 141 East Third Owners Corp. N/A N/A
103 925 Union Street Tenants Corp. N/A N/A
104 3255 Xxxxxxx Owners Corp. N/A N/A
106 000 Xxxx 00xx Xxxxxx Xxxx. X/X N/A
000 Xxxxxx Xxxxxxx Owners Corp. N/A N/A
108 36 West 35th Apartment Corp. N/A N/A
112 Xxxxxx Xxxxx Co-operative Apartments, Section I, N/A N/A
Incorporated
113 000 Xxxx Xxxxxxx Xxxx Owners Corp. N/A N/A
116 Edgewood, Inc. N/A N/A
117 1260 Apartment Corp. N/A N/A
118 15 Tenant Stockholders Inc. N/A N/A
000 Xxxxxxxxx Xxxxxxx Owner's Corp. N/A N/A
120 59 Wooster St. Corp. N/A N/A
124 3/10 Tenants' Housing Corp. N/A N/A
125 000 X. 00xx Xx., Inc. N/A N/A
127 000 Xxxx 00xx Xxxxxx Tenants Corp. N/A N/A
128 Grand and Xxxxxx Street Corp. N/A N/A
129 000 Xxxx 000xx Xxxxxx Xxxxxx Xxxx. X/X X/X
130 000 Xxxx 00xx Xxxxxx Owners Corp. N/A N/A
131 281 West 11th Owners Corp. N/A N/A
133 242 West 104 Owners, Inc. N/A N/A
134 320 East 35th Owners Corp. N/A N/A
135 Maple Village Cooperative, Inc. N/A N/A
136 57 East 72nd Corporation N/A N/A
138 307-9 Owners Corp. N/A N/A
140 000 Xxxx 00xx Xxxxxx Owners, Inc. N/A N/A
141 Tudor Court Owners Corp. N/A N/A
142 000 Xxxx Xxxxxxxx Owners Corp. N/A N/A
143 51 E. 90 Apartments Corp. N/A N/A
144 45 W. 54 Corp. N/A N/A
145 Xxxxxxxxxx House, Inc. N/A N/A
(TABLE CONTINUED)
----------- ---------------
(i) (xvii)
----------- ---------------
LETTER EARNOUT ADDITIONAL ADDITIONAL ADDITIONAL
LETTER OF OF CREDIT EARNOUT RESERVE COLLATERAL COLLATERAL COLLATERAL ADMINISTRATIVE
# CREDIT DESCRIPTION RESERVE DESCRIPTION AMOUNT EVENT DATE DESCRIPTION FEE
------------------------------------------------------------------------------------------------------------------------------------
00 X/X X/X X/X X/X X/X X/X X/X 0.0824%
00 X/X X/X X/X X/X X/X X/X X/X 0.0824%
00 X/X X/X X/X X/X X/X X/X X/X 0.0824%
00 X/X X/X X/X X/X X/X X/X X/X 0.0824%
00 X/X X/X X/X X/X X/X X/X X/X 0.0824%
00 X/X X/X X/X X/X X/X X/X X/X 0.0824%
00 X/X X/X X/X X/X X/X X/X X/X 0.0824%
00 X/X X/X X/X X/X X/X X/X X/X 0.0824%
00 X/X X/X X/X X/X X/X X/X X/X 0.0824%
00 X/X X/X X/X X/X X/X X/X X/X 0.0824%
00 X/X X/X X/X X/X X/X X/X X/X 0.0824%
00 X/X X/X X/X X/X X/X X/X X/X 0.0824%
00 X/X X/X X/X X/X X/X X/X X/X 0.0824%
00 X/X X/X X/X X/X X/X X/X X/X 0.0824%
00 X/X X/X X/X X/X X/X X/X X/X 0.0824%
00 X/X X/X X/X X/X X/X X/X X/X 0.0824%
00 X/X X/X X/X X/X X/X X/X X/X 0.0824%
000 X/X X/X X/X X/X X/X X/X X/X 0.0824%
000 X/X X/X X/X X/X X/X X/X X/X 0.0824%
000 X/X X/X X/X X/X X/X X/X X/X 0.0824%
000 X/X X/X X/X X/X X/X X/X X/X 0.0824%
000 X/X X/X X/X X/X X/X X/X X/X 0.0824%
000 X/X X/X X/X X/X X/X X/X X/X 0.0824%
000 X/X X/X X/X X/X X/X X/X X/X 0.0824%
000 X/X X/X X/X X/X X/X X/X X/X 0.0824%
000 X/X X/X X/X X/X X/X X/X X/X 0.0824%
000 X/X X/X X/X X/X X/X X/X X/X 0.0824%
000 X/X X/X X/X X/X X/X X/X X/X 0.0824%
000 X/X X/X X/X X/X X/X X/X X/X 0.0824%
000 X/X X/X X/X X/X X/X X/X X/X 0.0824%
000 X/X X/X X/X X/X X/X X/X X/X 0.0824%
000 X/X X/X X/X X/X X/X X/X X/X 0.0824%
000 X/X X/X X/X X/X X/X X/X X/X 0.0824%
000 X/X X/X X/X X/X X/X X/X X/X 0.0824%
000 X/X X/X X/X X/X X/X X/X X/X 0.0824%
000 X/X X/X X/X X/X X/X X/X X/X 0.0824%
000 X/X X/X X/X X/X X/X X/X X/X 0.0824%
000 X/X X/X X/X X/X X/X X/X X/X 0.0824%
000 X/X X/X X/X X/X X/X X/X X/X 0.0824%
000 X/X X/X X/X X/X X/X X/X X/X 0.0824%
000 X/X X/X X/X X/X X/X X/X X/X 0.0824%
000 X/X X/X X/X X/X X/X X/X X/X 0.0824%
000 X/X X/X X/X X/X X/X X/X X/X 0.0824%
000 X/X X/X X/X X/X X/X X/X X/X 0.0824%
000 X/X X/X X/X X/X X/X X/X X/X 0.0824%
000 X/X X/X X/X X/X X/X X/X X/X 0.0824%
000 X/X X/X X/X X/X X/X X/X X/X 0.0824%
------------------------------------------------------------------------------------------------------------------------------------
EXHIBIT A MORTGAGE LOAN SCHEDULE
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES SERIES 2003-CPNI
COMBINED COLLATERAL
---------------------------------------
(i) (viii) (xviii)
--------------------------------------
"A" CONTRACTUAL CONTRACTUAL
LOAN OTHER OTHER RESERVE LETTER OF
# CROSSED YES/NO PROPERTY NAME RESERVE DESCRIPTION CREDIT
---------------------------------------------------------------------------------------------------------------------------------
147 0 Xxxx 00xx Xxxxxx Xxxxxxxxxxx X/X X/X X/X
148 000 Xxxx 000xx Xxxxxx Owners Corp. N/A N/A N/A
000 Xxxxxxx Xxxxxx Xxxxxx Xxxx. X/X X/X X/X
150 000 X. 00xx Xx. Owners Corp. N/A N/A N/A
151 Xxxxx/Stratford Owners Corp. N/A N/A N/A
000 Xxxxxxxxx Xxxxxx Xxxxxxxxxx Xxx. X/X X/X X/X
153 0 Xxxx 00xx Xx. Xxxx. X/X X/X X/X
154 000 Xxxxx Xxxxxx Xxxxxxxxxxx X/X X/X X/X
000 Xxxx 00xx Xxxxxx Xxxxxxx Xxxx. X/X X/X X/X
000 Xxxx 00xx Xxxxxx Xxxxxxxxx Xxxx. X/X X/X X/X
157 56 Xxxxxx Owners Corp. X/X X/X X/X
000 Xxxxxxxxxx Xxxx Owners, Inc. N/A N/A N/A
000 Xxxx 0 Xxxxxx Xxxxxxxxxxx Xxxx. X/X X/X X/X
160 130 Flower Corp. N/A N/A N/A
161 Finnish Home Building Association "ALKU", Inc. N/A N/A N/A
162 000 Xxxxxxx Xxx. Tenants Corp. X/X X/X X/X
000 00 Xxxxxx Xxxxxx Owners Corp. N/A N/A N/A
164 86-88 Owners Corporation N/A N/A N/A
165 184 Xxxxx Owners Corp. X/X X/X X/X
000 000 Xxxx Xxxxxxxx, Inc. N/A N/A N/A
167 000 Xxxx Xxxxxx Xxxx. X/X X/X X/X
169 000 X. 00xx Xx. Tenants Corp. N/A N/A N/A
170 15 Berkeley Owners Corp. N/A N/A N/A
171 000 Xxxxx Xxxxxx Xxxxxxxxx Xxxxxxxxxxx X/X X/X X/X
(TABLE CONTINUED)
---------- ---------------
(i) (xvii)
---------- ---------------
LETTER EARNOUT ADDITIONAL ADDITIONAL ADDITIONAL
OF CREDIT EARNOUT RESERVE COLLATERAL COLLATERAL COLLATERAL ADMINISTRATIVE
# DESCRIPTION RESERVE DESCRIPTION AMOUNT EVENT DATE DESCRIPTION FEE
------------------------------------------------------------------------------------------------------------------------------------
000 X/X X/X X/X X/X X/X X/X 0.0824%
000 X/X X/X X/X X/X X/X X/X 0.0824%
000 X/X X/X X/X X/X X/X X/X 0.0824%
000 X/X X/X X/X X/X X/X X/X 0.0824%
000 X/X X/X X/X X/X X/X X/X 0.0824%
000 X/X X/X X/X X/X X/X X/X 0.0824%
000 X/X X/X X/X X/X X/X X/X 0.0824%
000 X/X X/X X/X X/X X/X X/X 0.0824%
000 X/X X/X X/X X/X X/X X/X 0.0824%
000 X/X X/X X/X X/X X/X X/X 0.0824%
000 X/X X/X X/X X/X X/X X/X 0.0824%
000 X/X X/X X/X X/X X/X X/X 0.0824%
000 X/X X/X X/X X/X X/X X/X 0.0824%
000 X/X X/X X/X X/X X/X X/X 0.0824%
000 X/X X/X X/X X/X X/X X/X 0.0824%
000 X/X X/X X/X X/X X/X X/X 0.0824%
000 X/X X/X X/X X/X X/X X/X 0.0824%
000 X/X X/X X/X X/X X/X X/X 0.0824%
000 X/X X/X X/X X/X X/X X/X 0.0824%
000 X/X X/X X/X X/X X/X X/X 0.0824%
000 X/X X/X X/X X/X X/X X/X 0.0824%
000 X/X X/X X/X X/X X/X X/X 0.0824%
000 X/X X/X X/X X/X X/X X/X 0.0824%
000 X/X X/X X/X X/X X/X X/X 0.0824%
------------------------------------------------------------------------------------------------------------------------------------
EXHIBIT B-2
SCHEDULE OF EXCEPTIONS TO MORTGAGE FILE DELIVERY
EXHIBIT B-3
FORM OF CUSTODIAL CERTIFICATION
[date]
Credit Suisse First Boston
Mortgage Securities Corp. PNC Bank, National Association
00 Xxxxxxx Xxxxxx 000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000 One PNC Plaza
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Column Financial, Inc.
0000 Xxxxxxxxx Xxxx, X.X. XXX, FSB
Suite 1140 0000 Xxx Xxxxxx,
Xxxxxxx, Xxxxxxx 00000-0000 N.W., Xxxxxxxxxx, X.X. 00000
National Consumer Cooperative Bank
0000 Xxx Xxxxxx,
X.X., Xxxxxxxxxx, X.X. 00000
Re: Credit Suisse First Boston Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series
2003-CPN1
------------------------------------------------------
Ladies and Gentlemen:
Pursuant to Section 2.02(b) of the Pooling and Servicing
Agreement dated as of March 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 (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 certifying that the original of such Mortgage Note has been
lost), the original or copy of documents specified in clauses (ii) through (v),
and (vii) of the definition of "Mortgage File" and, in the case of a hospitality
property, the documents specified in clause (viii) of the definition of
"Mortgage File" (without regard to the parenthetical), and any other Specially
Designated Mortgage Loan Documents, have been received by it or a Custodian on
its behalf; (ii) 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
has been completed (based solely on receipt by the Trustee of the particular
recorded/filed documents); and (iii) 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 accurately reflects the information set forth in the
related Mortgage File 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.
None of the Trustee, the General Master Servicer, the General
Special Servicer, the Co-op Master 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. Furthermore, none of the Trustee, the General Master Servicer, the General
Special Servicer, the Co-op Master 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 (i), through (v), in
clause (vii), and, in the case of any Mortgage Loan secured by a Mortgage on a
hospitality property, in clause (viii) of the definition of "Mortgage File" and
any other Specially Designated Mortgage Loan Documents, have been received and
such additional information as will be necessary for delivering the
certifications required by the Agreement.
Further, with respect to UCC filings, absent actual knowledge
or copies of UCC filings in the Mortgage File indicating otherwise, the Trustee
shall assume for purposes of the certifications delivered pursuant to Section
2.02 of the Agreement, that one State level UCC filing and one county level UCC
filing was made for each property.
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 C
LETTERS OF REPRESENTATIONS AMONG DEPOSITOR,
TRUSTEE AND INITIAL DEPOSITARY
[GRAPHIC OMITTED]
BOOK-ENTRY-ONLY COLLAATERALIZED MORTGAGE OBLIGATIONS (CMOs)--
WITHOUT OWNER OPTION TO REDEEM/PASS-THROUGH SECURITIES/
AND ASSET-BACK SECURITIES
LETTER OF REPRESENTATIONS
[To be Completed by Issuer and Agent]
Credit Suisse First Boston Mortgage Securities Corp.
--------------------------------------------------------------------------------
[Name of Issuer]
Xxxxx Fargo Bank Minnesota, N.A.
--------------------------------------------------------------------------------
[Name of Agent]
March 13, 2003
-------------------------
[Date]
Attention: General Counsel's Office
THE DEPOSITORY TRUST COMPANY 00 Xxxxx
Xxxxxx 00xx Xxxxx
Xxx Xxxx, XX 00000-0000
Re: Credit Suiise First Boston Mortgage Securities Corp. Commercial
Mortgage Pass-Through Certificates Series 2003-CPN1, Class F,
Class G, Class H, Class J, Class K, Class L, Class M, Class N,
Class O, Class P, Class Q, Class A-X and Class A-SP
---------------------------------------------------------------
---------------------------------------------------------------
[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 March 13, 2003 (the "Document").
Credit Suisse First Boston LLC, PNC Capital Markets, Inc., X.X. Xxxxxx
Securities Inc., and Greenwich Capital Markets, Inc. ["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 March 13, 2003 there shall be
deposited with DTC one or more Security certificates registered in the name of
DTC's nominee, Cede & Co., for each Class 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.]
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 (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:
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
the calendar month preceding the month in which a distribution date (which is
the fourth business day following the eleventh calendar day of any month, or
if such eleventh calendar day is not a business day, then the next succeeding
business day) occurs. Each Interest Accrual Period shall be deemed for
purposes of this definition to consist of 30 days.
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-andinterestpayments 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,
provided that in connection with a final payment on the Securities, the
Securities are first presented and surrendered to the Trustee. 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 (000) 000-0000. 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. All duties of the Trustee and the Depositor under
this Letter of Representations with respect to the Securities shall terminate in
the event that no Securities remain outstanding or all the Securities are
transferred to a Person that is not DTC or a nominee of DTC. All obligations
hereunder of the Issuer will be performed by Credit Suisse First Boston Mortgage
Securities Corp., as Depositor, or the Depositor will cause the Issuer to
perform such obligations.
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:
28. The Depositor and the Trustee acknowledge that DTC is not a party
to the Document and that no obligations or liabilities shall be deemed to accrue
to DTC with regard to the Document.
29. Capitalized terms used and not otherwise defined herein shall have
the respective meanings given to such terms in the Document.
30. The parties agree that, without prejudice to the rights of the
parties to take any proceedings in relation hereto before any other court of
competent jurisdiction, the courts of the State of New York shall have
jurisdiction to hear and determine any suit, action or proceeding and to settle
any disputes, which may arise out of or in connection with this Letter of
Representations, and, for such purposes, each irrevocably submits to the
non-exclusive jurisdiction of such courts.
Riders 1-6; Representations for Securities Eligible for Transfer Pursuant to
Reg. S,
--------------------------------------------------------------------------------
Representations for Rule 144A Securities
--------------------------------------------------------------------------------
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,
Credit Suisse First Boston Mortgage Securities Corp.
----------------------------------------------------
[Issuer]
By:
-------------------------------------------------
[Authorized Officer's Signature]
Xxxxx Fargo Bank Minnesota, N.A.
-------------------------------------------------
[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
CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP.
------------------------------------------------------------------------
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2003-CPN1
------------------------------------------------------------------------
[Describe Issue, Including Issuer's Name]
INITIAL
PRINCIPAL ASSUMED
BALANCE OR FINAL INITIAL
NOTIONAL DISTRIBUTION PASS-THROUGH
CLASS CUSIP NUMBER AMOUNT DATE RATE
----- ------------ ------ ------------ ------------
PRIVATE CERTIFICATES
144A F 00000XX00 $10,064,000 N/A 5.4050%
Reg S X00000XX0
144A G 00000XX00 $17,612,000 N/A 5.5100%
Reg S X00000XX0
144A H 00000XX00 $10,064,000 N/A 5.8410%
Reg S X00000XX0
144A J 00000XX00 $20,127,000 N/A 4.7500%
Reg S X00000XX0
144A K 00000XX00 $15,096,000 N/A 4.7500%
Reg S X00000XX0
144A L 00000XX00 $7,548,000 N/A 4.7500%
Reg S X00000XX0
144A M 00000XX00 $7,548,000 N/A 4.7500%
Reg S X00000XX0
000X X 00000XX00 $6,290,000 N/A 4.7500%
Reg S X00000XX0
144A O 00000XX00 $5,032,000 N/A 4.7500%
Reg S X00000XX0
144A P 00000XX00 $8,806,000 N/A 4.7500%
Reg S X00000XX0
144A Q 00000XX00 $12,580,300 N/A 4.7500%
Reg S X00000XX0
144A A-X 00000XX00 1,006,389,300 N/A 0.1748%
Reg S X00000XX0
144A A-SP 00000XX00 $904,449,000 N/A 1.8102%
Reg S X00000XX0
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.
[DTC LOGO]
REPRESENTATIONS FOR RULE 144A SECURITIES -- TO
BE INCLUDED IN DTC LETTER OF REPRESENTATIONS
1. Issuer represents that at the time of initial registration in the name
of DTC's nominee, Cede & Co., the Securities were Legally or Contractually
Restricted Securities, [1] eligible for transfer under Rule 144A under the
Securities Act of 1933, as amended (the "Securities Act"), and identified by a
CUSIP or CINS number assigned to any securities of the same class that were not
Legally or Contractually Restricted Securities. Issuer shall ensure that a CUSIP
or CINS identification number is obtained for all unrestricted securities of the
same class that is different from any CUSIP or CINS identification number
assigned to a Legally or Contractually Restricted Security of such class, and
shall notify DTC promptly in the event that it is unable to do so. Issuer
represents that it has agreed to comply with all applicable information
requirements of Rule 144A.
2. Issuer represents that the Securities are: [NOTE: ISSUER MUST
REPRESENT ONE OF THE FOLLOWING, AND SHALL CROSS OUT THE OTHER.]
PORTAL and Investment Grade classes described on following page.
[An issue of nonconvertible debt securities or nonconvertible preferred stock
which is rated in one of the top four categories by a nationally recognized
statistical rating organization ("Investment Grade Securities").]
[Included within PORTAL, a Self-Regulatory Organization System approved by the
Securities and Exchange Commission for the reporting of quotation and trade
information of securities eligible for transfer pursuant to Rule 144A) an "SRO
Rule 144A System").]
3. If the Securities are not Investment-Grade Securities, Issuer and Agent
acknowledge that if such Securities cease to be included in an SRO Rule 144A
System during any period in which such Securities are Legally or Contractually
Restricted Securities, such Securities shall no longer be eligible for DTC's
services. Furthermore, 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 any of the aforementioned 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 DTC Participant ("Participant") having Securities
credited to its DTC accounts.
4. Issuer and Agent acknowledge that, so long as Cede & Co. is a record
owner of the Securities, Cede & Co. shall be entitled to all applicable voting
rights and receive the full amount of all distributions payable with respect
thereto. Issuer and Agent acknowledge that DTC shall treat any Participant
having Securities credited to its DTC accounts as entitled to the full benefits
of ownership of such Securities.
-------------------------
[1] A "Legally Restricted Security" is a security that is a restricted
security, as defined in Rule 144(a)(3). A "Contractually Restricted Security" is
a security that upon issuance and continually thereafter can only be sold
pursuant to Regulation S under the Securities Act, Rule 144A, Rule 144, or in a
transaction exempt from the registration requirements of the Securities Act
pursuant to Section 4 of the Securities Act and not involving any public
offering; provided, however, that once the security is sold pursuant to the
provisions of Rule 144, including Rule 144(k), it will thereby cease to be a
"Contractually Restricted Security." For purposes of this definition, in order
for a depositary receipt to be considered a "Legally or Contractually Restricted
Security," the underlying security must also be a "Legally or Contractually
Restricted Security."
Without limiting the generality of the preceding sentence, Issuer and Agent
acknowledge that DTC shall treat any Participant having Securities credited to
its DTC accounts as entitled to receive distributions (and voting rights, if
any) in respect of the Securities, and to receive from DTC certificates
evidencing Securities. Issuer and Agent recognize 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 any of the provisions: (a)
of Rule 144A; (b) of other exemptions from registration under the Securities Act
or any other state or federal securities laws; or (c) of the offering documents.
Investment Grade: Class A-X, Class A-SP, Class A-Y, Class F, Class G and Class H
Certificates
PORTAL: Class J, Class K, Class L, Class M, Class N, Class O, Class P and Class
Q Certificates
[DTC LOGO]
REPRESENTATIONS FOR SECURITIES ELIGIBLE FOR TRANSFER PURSUANT TO
REGULATION S WHERE ISSUER HAS REQUESTED A TEMPORARY "CHILL" ON DELIVER
ORDERS -- TO BE INCLUDED IN DTC LETTER OF REPRESENTATIONS
Issuer has requested that, with respect to the Securities that are
eligible for transfer pursuant to Regulation S, which have been identified by a
separate CUSIP number (the "Regulation S Securities"), DTC not effect book-entry
deliveries (except deliveries via DTC's Deposit/Withdrawal at Custodian DWAC
system in Participant accounts maintained by banks that act as depositaries for
Cedel and Euroclear) until April 22, 2003 [, or--if not specified--until further
notice in the manner set forth below].
In the event that Issuer desires an extension or shortening of this
"Deliver Order Chill," Issuer or Agent [1] shall send DTC a notice requesting
that the Deliver Order Chill be eliminated as of a specified 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 two
business days prior to the date specified for elimination of the Deliver Order
Chill. If sent by telecopy, such notice shall be sent to (000) 000-0000 or (212)
855-3728. Issuer or Agent shall confirm DTC's receipt of such telecopy by
telephoning DTC's Underwriting Department at (000) 000-0000. If delivered by
hand or sent by mail or overnight delivery, such notice shall be sent to:
Manager, Eligibility Section
Underwriting Department
The Depository Trust Company
00 Xxxxx Xxxxxx 00xx Xxxxx
Xxx Xxxx, XX 00000-0000
---------------------
(1) Agent shall be defined as Depositary, Trustee, Trust Company, Issuing
Agent and/or Paying Agent as such definition applies in the DTC Letter of
Representations to which this rider may be attached.
[LOGO]
BOOK-ENTRY-ONLY COLLATERALIZED MORTGAGE OBLIGATIONS (CMOS)--
WITHOUT OWNER OPTION TO REDEEM/PASS-THROUGH SECURITIES/
AND ASSET-BACKED SECURITIES
LETTER OF REPRESENTATIONS
[To be Completed by Issuer and Agent]
Credit Suisse First Boston Mortgage Securities Corp.
----------------------------------------------------------
[Name of Issuer]
Xxxxx Fargo Bank Minnesota, N.A.
----------------------------------------------------------
[Name of Agent]
March 13, 2003
----------------------
[Date]
Attention: General Counsel's Office
THE DEPOSITORY TRUST COMPANY
00 Xxxxx Xxxxxx 00xx Xxxxx
Xxx Xxxx, XX 00000-0000
Re: Credit Suiise First Boston Mortgage Securities Corp. Commercial
Mortgage Pass-Through Certificates Series 2003-CPN1, Class A-1,
Class A-2, Class B, Class C, Class D and Class E
---------------------------------------------------------------
---------------------------------------------------------------
[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 March 13, 2003 (the "Document"). Credit Suisse First
Boston LLC, PNC Capital Markets, Inc., X.X. Xxxxxx Securities Inc., and
Greenwich Capital Markets, Inc. is distributing the Securities through The
Depository Trust Company ("DTC"). ["Underwriter/Placement Agent"]
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 March 13, 2003 there shall be
deposited with DTC one or more Security certificates registered in the name of
DTC's nominee, Cede & Co., for each Class 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.]
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 (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:
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 the calendar
month preceding the month in which a distribution date (which is the fourth
business day following the eleventh calendar day of any month, or if such
eleventh calendar day is not a business day, then the next succeeding business
day) occurs. Each Interest Accrual Period shall be deemed for purposes of this
definition to consist of 30 days.]
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-andinterestpayments 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, provided that in
connection with a final payment on the Securities, the Securities are first
presented and surrendered to the Trustee. 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 (000) 000-0000. 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. All duties of the Trustee and the Depositor under
this Letter of Representations with respect to the Securities shall terminate in
the event that no Securities remain outstanding or all the Securities are
transferred to a Person that is not DTC or a nominee of DTC. All obligations
hereunder of the Issuer will be performed by Credit Suisse First Boston Mortgage
Securities Corp., as Depositor, or the Depositor will cause the Issuer to
perform such obligations.
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 Rider 5 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:
28. The Depositor and the Trustee acknowledge that DTC is not a party to
the Document and that no obligations or liabilities shall be deemed to accrue to
DTC with regard to the Document.
29. Capitalized terms used and not otherwise defined herein shall have the
respective meanings given to such terms in the Document.
30. The parties agree that, without prejudice to the rights of the parties
to take any proceedings in relation hereto before any other court of competent
jurisdiction, the courts of the State of New York shall have jurisdiction to
hear and determine any suit, action or proceeding and to settle any disputes,
which may arise out of or in connection with this Letter of Representations,
and, for such purposes, each irrevocably submits to the non-exclusive
jurisdiction of such courts.
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,
Credit Suisse First Boston Mortgage
Securities Corp.
--------------------------------------
[Issuer]
By:
Xxxxx Fargo Bank Minnesota, N.A.
--------------------------------------
[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
Credit Suisse First Boston Mortgage Securities Corp.
----------------------------------------------------
Commercial Mortgage Pass-Through Certificates, Series 2003-CPN1
---------------------------------------------------------------
Initial
Principal
Balance or Assumed Final
Notional Distribution Initial
Class CUSIP Number Amount Date Pass-Through Rate
----- ------------ ------ ---- -----------------
PUBLIC CERTIFICATES
A-1 00000XX00 $271,248,000 August 2012 3.7270%
A-2 00000XX00 $533,863,000 January 2013 4.5970%
B 00000XX00 $30,192,000 January 2013 4.7230%
C 00000XX00 $10,064,000 January 2013 4.7630%
D 00000XX00 $30,191,000 January 2013 4.8220%
E 00000XX00 $10,064,000 January 2013 4.8910%
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.
0000 00xx Xxxxxx, X.X.
Xxxxxxxxxxx, XX 00000
Attention: Mortgage Document Custody (CMBS)
Re: Credit Suisse First Boston Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series
2003-CPN1
----------------------------------------------------
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 March 1, 2003 (the "Pooling and Servicing Agreement"),
among Credit Suisse First Boston Mortgage Securities Corp., as depositor,
Midland Loan Services, Inc., as general master servicer (in such capacity, the
"General Master Servicer"), and general special servicer, NCB, FSB, as co-op
master servicer (the "Co-op Master Servicer"), National Consumer Cooperative, as
co-op special servicer, and you as trustee (in such capacity, the "Trustee"),
the undersigned as [General] [Co-op] 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 the Collection Account pursuant to the
Pooling and Servicing Agreement, have been or will be
so credited.
______ 2. Other. (Describe) __________________________________
_____________________________________________________
The undersigned acknowledges that the above Mortgage File (or
requested portion thereof) will be held by the undersigned in accordance with
the provisions of the Pooling and Servicing Agreement and will be returned to
you or your designee within ten 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.
[MIDLAND LOAN SERVICES, INC.,][NCB, FSB]
as [General] [Co-op] Master Servicer
By: _____________________________________
Name:
Title:
EXHIBIT D-2
FORM OF SPECIAL SERVICER REQUEST FOR RELEASE
[Date]
Xxxxx Fargo Bank Minnesota, N.A.
0000 00xx Xxxxxx, X.X.
Xxxxxxxxxxx, XX 00000
Attention: Mortgage Document Custody (CMBS)
Re: Credit Suisse First Boston Mortgage Securities Corp.,
Commercial Pass-Through Certificates, Series 2003-CPN1
------------------------------------------------------
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 March 1, 2003 (the "Pooling and Servicing Agreement"),
among Credit Suisse First Boston Mortgage Securities Corp., as depositor,
Midland Loan Services, Inc., as general master servicer and general special
servicer (in such capacity, the "General Special Servicer"), NCB, FSB, as co-op
master servicer, National Consumer Cooperative Bank, as co-op special servicer
(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.
[MIDLAND LOAN SERVICES, INC.,]
[NATIONAL CONSUMER COOPERATIVE BANK]
as [General] [Co-op] Special Servicer
By: ______________________________________
Name:
Title:
EXHIBIT E
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 Co-op Master Servicer indicates, or the Co-op Master
Servicer otherwise has actual knowledge of, a problem that the Co-op
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 Co-op 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 Co-op 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 60 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 60 days of maturity;
(viii) A loan as to which the Co-op 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;
(ix) A loan as to which any material litigation exists involving the
Borrower or the related Mortgaged Property;
(x) A loan as to which a lien, in excess of 5% of the unpaid principal
balance of the related loan, has been filed against the related
Mortgaged Property; and
(xi) A loan as to which any material deferred maintenance is identified by
the Co-op 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 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, XX 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-CPN1, Class ______ Certificates [having an
initial aggregate Certificate [Certificate Principal
Balance] [Certificate Notional Amount] as of March
13, 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 captioned Certificates (the "Transferred Certificates")
pursuant to Section 5.02 of the Pooling and Servicing Agreement (the "Pooling
and Servicing Agreement"), dated as of March 1, 2003 among Credit Suisse First
Boston Mortgage Securities Corp., as depositor, Midland Loan Services, Inc., as
general master servicer (the "General Master Servicer"), and general special
servicer (the "General Special Servicer"), NCB, FSB, as co-op master servicer
(the "Co-op Master Servicer"), National Consumer Cooperative Bank, as co-op
special servicer (the "Co-op Special Servicer"), and Xxxxx Fargo Bank Minnesota,
N.A. as Trustee (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, XX 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-CPN1, Class ______ Certificates [having an
initial aggregate Certificate [Certificate Principal
Balance] [Certificate Notional Amount] as of March
13, 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 captioned Certificates, (the "Transferred Certificates"),
pursuant to Section 5.02 of the Pooling and Servicing Agreement (the "Pooling
and Servicing Agreement"), dated as of March 1, 2003, among Credit Suisse First
Boston Mortgage Securities Corp., as Depositor, Midland Loan Services, Inc., as
general master servicer (the "General Master Servicer"), and general special
servicer (the "General Special Servicer"), NCB, FSB, as co-op master servicer
(the "Co-op Master Servicer"), National Consumer Cooperative Bank, as co-op
special servicer (the "Co-op Special Servicer"), and Xxxxx Fargo Bank Minnesota,
N.A. as Trustee (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"), 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,
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, XX 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-CPN1, Class ______ Certificates [having an
initial aggregate Certificate [Certificate Principal
Balance] [Certificate Notional Amount] as of March
13, 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 captioned Certificates (the "Transferred Certificates")
pursuant to Section 5.02 of the Pooling and Servicing Agreement (the "Pooling
and Servicing Agreement"), dated as of March 1, 2003, among Credit Suisse First
Boston Mortgage Securities Corp., as Depositor, Midland Loan Services, Inc., as
general master servicer (the "General Master Servicer"), and general special
servicer (the "General Special Servicer"), NCB, FSB, as co-op master servicer
(the "Co-op Master Servicer"), National Consumer Cooperative Bank, as co-op
special servicer (the "Co-op Special Servicer"), and Xxxxx Fargo Bank Minnesota,
N.A. as Trustee (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. 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,
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.
--------------------
(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.
___ 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.
___ ___ Will the Transferee be purchasing the Transferred
Yes No 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:______________________________
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.
___ ___ Will the Transferee be purchasing the Transferred
Yes No 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:____________________________
Date:_____________________________
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, XX 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-CPN1, Class ___ Certificates [having an initial
aggregate Certificate [Certificate Principal Balance]
[Certificate Notional Amount] as of March 13, 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 captioned Certificates
(the "Transferred Certificates") pursuant to Section 5.02 of the Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), dated as of March
1, 2003, among Credit Suisse First Boston Mortgage Securities Corp., as
Depositor, Midland Loan Services, Inc., as general master servicer (the "General
Master Servicer"), and general special servicer (the "General Special
Servicer"), NCB, FSB, as co-op master servicer (the "Co-op Master Servicer"),
National Consumer Cooperative Bank, as co-op special servicer (the "Co-op
Special Servicer"), and Xxxxx Fargo Bank Minnesota, N.A. as Trustee (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 ANY ESSENTIALLY SIMILAR PROVISION OF
APPLICABLE FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") 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.
[THE TRUST FUND IN WHICH THIS CERTIFICATE EVIDENCES AN
INTEREST HAS NOT BEEN REGISTERED AS AN "INVESTMENT COMPANY"
UNDER THE INVESTMENT COMPANY ACT OF 1940, AS AMENDED (THE
"INVESTMENT COMPANY ACT"). ACCORDINGLY, THIS CERTIFICATE MAY
NOT BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT TO
[(1)] A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF
RULE 144A UNDER THE SECURITIES ACT (A "QUALIFIED INSTITUTIONAL
BUYER") [OR (2) AN ACCREDITED INVESTOR WITHIN THE MEANING OF
PARAGRAPH (1), (2), (3) OR (7) OF RULE 501(a) OF REGULATION D
UNDER THE SECURITIES ACT OR AN ENTITY IN WHICH ALL THE EQUITY
OWNERS CONSTITUTE ENTITIES DESCRIBED IN SUCH PARAGRAPHS].
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 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-CPN1, Class __ Certificates [having an initial
aggregate [Certificate Principal Balance]
[Certificate Notional Amount] as of March 13, 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 March 1, 2003 (the "Pooling and Servicing Agreement"), among Credit Suisse
First Boston Mortgage Securities Corp., as depositor (the "Depositor"), Midland
Loan Services, Inc., as general master servicer (the "General Master Servicer"),
and general special servicer (the "General Special Servicer"), NCB, FSB, as
co-op master servicer (the "Co-op Master Servicer"), National Consumer
Cooperative Bank, as co-op special servicer (the "Co-op Special Servicer"), and
Xxxxx Fargo Bank Minnesota, N.A. as Trustee (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, 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 and the Transferor desiring to effect such transfer has received
either (A) a certificate from the prospective transferee substantially in the
form attached either as Exhibit F-2C to the Pooling and Servicing Agreement or
as Exhibit F-2D to the Pooling and Servicing Agreement or (B) an opinion of
counsel satisfactory to the Transferor to the effect that such transfer may be
made without registration under the Securities Act.
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 ANY ESSENTIALLY SIMILAR PROVISION OF
APPLICABLE FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") 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.
[THE TRUST FUND IN WHICH THIS CERTIFICATE EVIDENCES AN
INTEREST HAS NOT BEEN REGISTERED AS AN "INVESTMENT COMPANY"
UNDER THE INVESTMENT COMPANY ACT OF 1940, AS AMENDED (THE
"INVESTMENT COMPANY ACT"). ACCORDINGLY, NEITHER THIS
CERTIFICATE NOR ANY INTEREST HEREIN MAY BE RESOLD, PLEDGED OR
OTHERWISE TRANSFERRED EXCEPT TO (1) A QUALIFIED INSTITUTIONAL
BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT
(A "QUALIFIED INSTITUTIONAL BUYER") OR (2) AN ACCREDITED
INVESTOR WITHIN THE MEANING OF PARAGRAPH (1), (2), (3) OR (7)
OF RULE 501(a) OF REGULATION D UNDER THE SECURITIES ACT OR AN
ENTITY IN WHICH ALL THE EQUITY OWNERS ARE DESCRIBED BY SUCH
PARAGRAPHS (AN "INSTITUTIONAL ACCREDITED INVESTOR").]
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)
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.
-----------------
(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.
___ 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.
___ ___ Will the Transferee be purchasing the Transferred
Yes No 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.
___ ___ Will the Transferee be purchasing the Transferred
Yes No 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 II OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF INTERESTS IN 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-CPN1, Class __ Certificates [having an initial
aggregate [Certificate Principal Balance]
[Certificate Notional Amount] as of March 13, 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 March 1, 2003 (the "Pooling and Servicing Agreement"), among Credit Suisse
First Boston Mortgage Securities Corp., as depositor (the "Depositor"), Midland
Loan Services, Inc., as general master servicer (the "General Master Servicer"),
and general special servicer (the "General Special Servicer"), NCB, FSB, as
co-op master servicer (the "Co-op Master Servicer"), National Consumer
Cooperative Bank, as co-op special servicer (the "Co-op Special Servicer"), and
Xxxxx Fargo Bank Minnesota, N.A. as Trustee (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, that:
1. The Transferee is acquiring the Transferor's beneficial
ownership interest in the Transferred Certificates for its own account
for investment and not with a view to or for sale or transfer in
connection with any distribution thereof, in whole or in part, in any
manner which would violate the Securities Act of 1933, as amended (the
"Securities Act"), or any applicable state securities laws.
2. The Transferee understands that (a) the 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 and the Transferor desiring to effect
such transfer has received either (A) a certificate from the
prospective transferee substantially in the form attached either as
Exhibit F-2C to the Pooling and Servicing Agreement or as Exhibit F-2D
to the Pooling and Servicing Agreement or (B) an opinion of counsel
satisfactory to the Transferor to the effect that such transfer may be
made without registration under the Securities Act.
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 ANY ESSENTIALLY SIMILAR PROVISION OF
APPLICABLE FEDERAL, STATE OR LOCAL LAW ("SIMILAR LAW") 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.
[THE TRUST FUND IN WHICH THIS CERTIFICATE EVIDENCES AN
INTEREST HAS NOT BEEN REGISTERED AS AN "INVESTMENT COMPANY"
UNDER THE INVESTMENT COMPANY ACT OF 1940, AS AMENDED (THE
"INVESTMENT COMPANY ACT"). ACCORDINGLY, NEITHER THIS
CERTIFICATE NOR ANY INTEREST HEREIN MAY BE RESOLD, PLEDGED OR
OTHERWISE TRANSFERRED EXCEPT TO (1) A QUALIFIED INSTITUTIONAL
BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT
(A "QUALIFIED INSTITUTIONAL BUYER") OR (2) AN ACCREDITED
INVESTOR WITHIN THE MEANING OF PARAGRAPH (1), (2), (3) OR (7)
OF RULE 501(a) OF REGULATION D UNDER THE SECURITIES ACT OR AN
ENTITY IN WHICH ALL THE EQUITY OWNERS ARE DESCRIBED BY SUCH
PARAGRAPHS (AN "INSTITUTIONAL ACCREDITED INVESTOR").]
4. Neither the Transferee nor anyone acting on its behalf has
(a) offered, pledged, sold, disposed of or otherwise transferred any
Transferred Certificate, any interest in any Transferred Certificate or
any other similar security to any person in any manner, (b) solicited
any offer to buy or accept a pledge, disposition or other transfer of
any Transferred Certificate, any interest in any 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 any 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 any 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 any Transferred Certificate or any other similar security,
which (in the case of any of the acts described in clauses (a) through
(e) above) would constitute a distribution of the Transferred
Certificates under the Securities Act, would render the disposition of
the Transferred Certificates a violation of Section 5 of the Securities
Act or any state securities law or would require registration or
qualification of the Transferred Certificates pursuant thereto. The
Transferee will not act, nor has it authorized or will it authorize any
person to act, in any manner set forth in the foregoing sentence with
respect to any Transferred Certificate, any interest in any Transferred
Certificate or any other similar security.
5. The Transferee has been furnished with all information
regarding (a) the Depositor, (b) the Transferred Certificates and
distributions thereon, (c) the Pooling and Servicing Agreement and the
Trust Fund created pursuant thereto, (d) the nature, performance and
servicing of the Mortgage Loans, and (e) all related matters, that it
has requested.
6. The Transferee is an "accredited investor" as defined in
any of paragraphs (1), (2), (3), and (7) of Rule 501(a) under the
Securities Act or an entity in which all of the equity owners come
within such paragraphs. The Transferee has such knowledge and
experience in financial and business matters as to be capable of
evaluating the merits and risks of an investment in the Transferred
Certificates; the Transferee has sought such accounting, legal and tax
advice as it has considered necessary to make an informed investment
decision; and the Transferee is able to bear the economic risks of such
investment and can afford a complete loss of such investment.
Very truly yours,
By: __________________________________
Name:
Title:
EXHIBIT F-2E
FORM OF REGULATION S CERTIFICATE FOR
ACQUISITIONS OF INTERESTS IN REGULATION S GLOBAL CERTIFICATES
[Date]
[TRANSFEROR]
Re: Credit Suisse First Boston Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series
2003-CPN1, Class ____ (the "Certificates"), having an
initial [Certificate Principal Balance] [Certificate
Notional Amount] as of March 13, 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 _________________ of the
Transferred Certificates. The Certificates, including the Transferred
Certificates, were issued pursuant to the Pooling and Servicing Agreement, dated
as of March 1, 2003 (the "Pooling and Servicing Agreement"), among Credit Suisse
First Boston Mortgage Securities Corp., as depositor (the "Depositor"), Midland
Loan Services, Inc., as general master servicer (the "General Master Servicer"),
and general special servicer (the "General Special Servicer"), NCB, FSB, as
co-op master servicer (the "Co-op Master Servicer"), National Consumer
Cooperative Bank, as co-op special servicer (the "Co-op Special Servicer"), and
Xxxxx Fargo Bank Minnesota, N.A. as Trustee (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, that 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 settlor 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.
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
authorize you to produce this certification to any interested party in such
proceedings.
By: __________________________________________
As, or agent for, the beneficial owner(s)
of the Certificates to which
this certificate relates.
EXHIBIT G-1
FORM OF TRANSFEREE CERTIFICATE IN CONNECTION WITH ERISA
(NON-REGISTERED CERTIFICATES AND NON-INVESTMENT GRADE
CERTIFICATES HELD IN FULLY REGISTERED, CERTIFICATED FORM)
[Date]
Xxxxx Fargo Bank Minnesota, X.X.
Xxxxx Fargo Center
Sixth and Xxxxxxxxx
XXX # X0000-000
Xxxxxxxxxxx, XX 00000-0000
Attention: Corporate Trust Services (CMBS)
Re: Credit Suisse First Boston Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series
2003-CPN1, Class ______ Certificates [having an
initial Certificate [Certificate Principal Balance]
[Certificate Notional Amount] as of March 13, 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 (the "Pooling and Servicing Agreement"), dated
as of March 1, 2003 among Credit Suisse First Boston Mortgage Securities Corp.,
as depositor, Midland Loan Services, Inc., as general master servicer (the
"General Master Servicer"), and general special servicer (the "General Special
Servicer"), NCB, FSB, as co-op master servicer (the "Co-op Master Servicer"),
National Consumer Cooperative Bank, as co-op special servicer (the "Co-op
Special Servicer"), and Xxxxx Fargo Bank Minnesota, N.A. as Trustee (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 or any essentially similar provision
of applicable federal, state or local law("Similar Law") (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
___ Except in the case of the Class R, Class LR or Class V Certificates,
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 (or similar exemption under Similar
Law).
___ 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 LLC (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 Master
Servicer, any Exemption-Favored Party, the Special Servicer, 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-CPN1, Class ____ Certificates [having an initial
aggregate [Certificate Principal Balance]
[Certificate Notional Amount] as of March 13, 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 DTC Participants of the Transferor's
beneficial ownership interest (currently maintained on the books and records of
The Depository Trust Corporation ("DTC"), and the Depository Participants) in
the Transferred Certificates. The Certificates, including the Transferred
Certificates, were issued pursuant to the Pooling and Servicing Agreement, dated
as of March 1, 2003 (the "Pooling and Servicing Agreement"), among Credit Suisse
First Boston Mortgage Securities Corp., as depositor (the "Depositor"), Midland
Loan Services, Inc., as general master servicer (the "General Master Servicer"),
and general special servicer (the "General Special Servicer"), NCB, FSB, as
co-op master servicer (the "Co-op Master Servicer"), National Consumer
Cooperative Bank, as co-op special servicer (the "Co-op Special Servicer"), and
Xxxxx Fargo Bank Minnesota, N.A. as Trustee (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 or any
essentially similar provision of applicable federal, state or local
law("Similar Law") (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;
___ [Except in the case of the Class R, Class LR or Class V Certificates,]
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 LLC (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 Master
Servicer, any Exemption-Favored Party, the Special Servicer, any other
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] [LR] 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-CPN1, Class [R] [LR], 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 Interest Certificates, and (ii)
is acquiring the Residual Interest 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 Tax 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 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.
10. 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 United States Person.
11. Check the applicable paragraph:
[ ] 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 Certificates as the
related Trust 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
Certificates 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 Certificates 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
Certificates 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.
The Transferee understands that 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, any
state thereof or 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
______________.
[NAME OF TRANSFEREE]
By: _________________________________
[Name of Officer]
[Title of Officer]
[Corporate Seal]
ATTEST:
_____________________________________________
[Assistant] Secretary
Personally appeared before me the above-named
____________________, known or proved to me to be the same person who executed
the foregoing instrument and to be the ____________________ of the Transferee,
and acknowledged to me that he/she executed the same as his/her free act and
deed and the free act and deed of the Transferee
Subscribed and sworn before me this ______ day of
__________________, ________.
_____________________________________________
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] [LR] CERTIFICATES
[Date]
Xxxxx Fargo Bank Minnesota, X.X.
Xxxxx Fargo Center
Sixth and Xxxxxxxxx
XXX # X0000-000
Xxxxxxxxxxx, XX 00000-0000
Attention: Corporate Trust Services (CMBS)
Re: Credit Suisse First Boston Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series
2003-CPN1, Class [R] [LR] 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 March 1, 2003 (the "Pooling and Servicing
Agreement"), among Credit Suisse First Boston Mortgage Securities Corp., as
depositor, Midland Loan Services, Inc., as general master servicer (the "General
Master Servicer"), and general special servicer (the "General Special
Servicer"), NCB, FSB, as co-op master servicer (the "Co-op Master Servicer"),
National Consumer Cooperative Bank, as co-op special servicer (the "Co-op
Special Servicer"), and Xxxxx Fargo Bank Minnesota, N.A. as Trustee (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,
By: ________________________________
(Transferor)
Name:
Title:
EXHIBIT I-1
FORM OF NOTICE AND ACKNOWLEDGMENT
CONCERNING REPLACEMENT OF SPECIAL SERVICER
[Date]
Moody's Investor's Service
00 Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: __________________
Standard & Poor's Rating Services
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: __________________
Re: Credit Suisse First Boston Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series
2003-CPN1
-----------------------------------------------------
Ladies and Gentlemen:
This notice is being delivered pursuant to Section 3.25 of the
Pooling and Servicing Agreement, dated as of March 1, 2003 (the "Agreement"),
among Credit Suisse First Boston Mortgage Securities Corp., as depositor,
Midland Loan Services, Inc., as general master servicer (the "General Master
Servicer"), and general special servicer (the "General Special Servicer"), NCB,
FSB, as co-op master servicer (the "Co-op Master Servicer"), National Consumer
Cooperative Bank, as co-op special servicer (the "Co-op Special Servicer"), and
the undersigned as trustee, and relating to Credit Suisse First Boston Mortgage
Securities Corp., Commercial Mortgage Pass-Through Certificates, Series
2003-CPN1 (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 Xxxxx Fargo Bank Minnesota, N.A., the trustee
under the Agreement (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,
_________________________________
_________________________________
Name:
Title:
Receipt acknowledged:
XXXXX'X INVESTORS SERVICE, INC.
By:________________________________________
Name:
Title:
Date:
STANDARD & POOR'S RATINGS SERVICES
By:________________________________________
Name:
Title:
Date:
EXHIBIT I-2
FORM OF ACKNOWLEDGMENT OF PROPOSED [GENERAL] [CO-OP] SPECIAL SERVICER
[Date]
[TRUSTEE]
[General] [Co-op] [MASTER SERVICER]
[General] [Co-op] [SPECIAL SERVICER]
[DEPOSITOR]
Re: Credit Suisse First Boston Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series
2003-CPN1
-----------------------------------------------------
Ladies and Gentlemen:
Pursuant to Section 3.25 of the Pooling and Servicing
Agreement, dated as of March 1, 2003, relating to Credit Suisse First Boston
Mortgage Securities Corp., Commercial Mortgage Pass-Through Certificates, Series
2003-CPN1 (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] [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-CPN1
00 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
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-CPN1.
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 0000-XXX0 Xxxxxxxxxxxx, as secured party (referred to as the "Secured
Party" for purposes of this financing statement only), under that certain
Pooling and Servicing Agreement, dated as of March 1, 2003 (the "Pooling and
Servicing Agreement"), among the Debtor, as depositor, the Secured Party as
trustee and Midland Loan Services, Inc., as general master servicer (the
"General Master Servicer"), and general special servicer (the "General Special
Servicer"), NCB, FSB, as co-op master servicer (the "Co-op Master Servicer"),
National Consumer Cooperative Bank, as co-op special servicer (the "Co-op
Special Servicer"), and Xxxxx Fargo Bank Minnesota, N.A., as trustee, relating
to the issuance of the Debtor's Commercial Mortgage Pass-Through Certificates,
Series 0000-XXX0 (xxxxxxxxxxxx, the "Series 0000-XXX0 Xxxxxxxxxxxx").
Capitalized terms used herein and not defined shall have the respective meanings
given to them in the Pooling and Servicing Agreement. The attached financing
statement covers all of the Debtor's right (including the power to convey title
thereto), title and interest in and to the Trust Fund created pursuant to the
Pooling and Servicing Agreement, consisting of the following:
1. The mortgage notes or other evidence of indebtedness
of a borrower (the "Mortgage Notes") with respect to
the mortgage loans (the "Mortgage Loans") listed on
the Mortgage Loan Schedule to the Pooling and
Servicing Agreement;
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 such related Mortgage Note and
Mortgage, the "Mortgage Loan Documents");
4. (a) the Collection Account maintained by the
applicable Master Servicer pursuant to the Pooling
and Servicing Agreement, (b) all funds from time to
time on deposit in the 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 REO Account required to be maintained by the
applicable Special Servicer pursuant to the Pooling
and Servicing Agreement, (b) all funds from time to
time on deposit in the 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 Servicing Account(s), and Reserve Account(s)
required to be maintained by the applicable Master
Servicer or applicable Special Servicer pursuant to
the Pooling and Servicing Agreement, and (b) all
funds from time to time on deposit in the Servicing
Account(s), and Reserve Account(s);
8. (a) the Distribution Account 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. The Mortgage Loan Purchase Agreements and all rights
of the Debtor thereunder and/or acquired by the
Debtor pursuant thereto.
10. 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 applicable Master Servicer or
applicable Special Servicer; and
11. All income, payments, products and proceeds of any of
the foregoing, together with any additions thereto or
substitutions therefor.
THE DEBTOR AND THE SECURED PARTY INTEND THE TRANSACTIONS CONTEMPLATED BY THE
POOLING AND SERVICING AGREEMENT TO CONSTITUTE 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 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)
Re: Credit Suisse First Boston Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series
2003-CPN1
----------------------------------------------------
In accordance with the Pooling and Servicing Agreement, dated
as of March 1, 2003 (the "Pooling and Servicing Agreement"), among Credit Suisse
First Boston Mortgage Securities Corp., as depositor (the "Depositor"), Midland
Loan Services, Inc., as general master servicer (the "General Master Servicer"),
and general special servicer (the "General Special Servicer"), NCB, FSB, as
co-op master servicer (the "Co-op Master Servicer"), National Consumer
Cooperative Bank, as co-op special servicer (the "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-CPN1 (the "Certificates"), the
undersigned hereby certifies and agrees as follows:
1. The undersigned is a [holder] [beneficial holder] 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 applicable 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 8.12(b)
of the ---------------- Pooling and
Servicing Agreement.
3. In consideration of the Trustee's disclosure to the
undersigned of the Information, the undersigned will
keep the Information confidential (except from such
outside persons as are assisting it in 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 HOLDER 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)
Re: Credit Suisse First Boston Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series
2003-CPN1
-----------------------------------------------------
In accordance with the Pooling and Servicing Agreement, dated
as of March 1, 2003 (the "Pooling and Servicing Agreement"), among Credit Suisse
First Boston Mortgage Securities Corp., as depositor (the "Depositor"), Midland
Loan Services, Inc., as general master servicer (the "General Master Servicer"),
and general special servicer (the "General Special Servicer"), NCB, FSB, as
co-op master servicer (the "Co-op Master Servicer"), National Consumer
Cooperative Bank, as co-op special servicer (the "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-CPN1 (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 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 8.12(b)
of the Pooling and Servicing Agreement.
3. In consideration of the Trustee's disclosure to the
undersigned of the Information, the undersigned will
keep the Information confidential (except from such
outside persons as are assisting it in making the
investment decision described in paragraphs 1 and 2),
and such Information will not, without the prior
written consent of the Trustee, be disclosed by the
undersigned or by its officers, directors, partners
employees, agents or representatives (collectively,
the "Representatives") in any manner whatsoever, in
whole or in part; 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
1. Xxxxxxxx & Co, LLC
2. Capstone Realty Advisors
3. Xxxxxxx Financial
4. Xxxx Xxxxx Real Estate Services
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 first to the payment of taxes, maintenance and operating charges and
disbursements incurred in connection with the operation and maintenance of the
Premises, and next to the payment of principal and interest due under the
Superior Mortgage at the time of such application, 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 Mortgagee 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 against the principal amounts due under the Superior Mortgage in
reverse order of maturity; 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
of New York.
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:
EXHIBIT N
Form of S&P Defeasance Certification
FORM OF
NOTICE AND CERTIFICATION
REGARDING DEFEASANCE OF MORTGAGE LOAN
For loans having a Stated Principal Balance of (a) $5,000,000 or less, or
(b) less than 1% of outstanding pool balance, whichever is less
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 December 1, 2002 (the "Pooling and Servicing Agreement"),
among the Servicer, _________________ as Trustee, and others.
Date: _________, 20___
Re: Credit Suisse First Boston Mortgage Securities Corp.
Commercial Mortgage Pass Through Certificates
Series 2003-CPN1
Loan (the "Mortgage Loan") identified by loan number _____ on the
Mortgage Loan Schedule attached to the Pooling and Servicing Agreement and
heretofore secured by the Mortgaged Properties identified on the Mortgage Loan
Schedule by the following names:____________________
Reference is made to the Pooling and Servicing Agreement described
above. Capitalized terms used but not defined herein have the meanings assigned
to such terms in the Pooling and Servicing Agreement. [NOTE: ALL TERMS IN THIS
CERTIFICATION MUST BE CONFORMED TO TERMS USED IN THE POOLING AND SERVICING
AGREEMENT]
As Servicer under the Pooling and Servicing Agreement, we hereby:
1. Notify you that the mortgagor (the "Mortgagor") has
consummated a defeasance of the Mortgage Loan pursuant
to the terms of the Mortgage Loan, of the type checked
below:
____ a full defeasance of the payments scheduled to be
due in respect of the entire Stated Principal
Balance of the Mortgage Loan; or
____ a partial defeasance of the payments scheduled to
be due in respect of a portion of the Stated
Principal Balance of the Mortgage Loan that
represents ___% of the entire Stated Principal
Balance of the Mortgage Loan and, under the
Mortgage, has an allocated loan amount of
$____________ or _______% of the entire Stated
Principal Balance;
2. Certify that each of the following is true, subject to
those exceptions set forth with explanatory notes 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:
a. The Mortgage Loan Documents permit the defeasance,
and the terms and conditions for defeasance
specified therein were satisfied in all material
respects in completing the defeasance.
b. The defeasance was consummated on __________,
20__.
c. The defeasance collateral consists of securities
that (i) constitute "government securities" as
defined in Section 2(a)(16) of the Investment
Company Act of 1940 as amended (15 U.S.C. 80a1),
(ii) are listed as "Qualified Investments for
`AAA' Financings" under Paragraphs 1, 2 or 3 of
"Cash Flow Approach" in Standard & Poor's Public
Finance Criteria 2000, as amended to the date of
the defeasance, (iii) are rated `AAA' by Standard
& Poor's, (iv) if they include a principal
obligation, the principal due at maturity cannot
vary or change, and (v) are not subject to
prepayment, call or early redemption. Such
securities have the characteristics set forth
below:
CUSIP RATE MAT PAY DATES ISSUED
-------------------------------
d. The Servicer received an opinion of counsel (from
counsel approved by Servicer in accordance with
the Servicing Standard) that the defeasance will
not result in an Adverse REMIC Event.
e. The Servicer determined that the defeasance
collateral will be owned by an entity (the
"Defeasance Obligor") as to which one of the
statements checked below is true:
____ the related Mortgagor was a Single Purpose
Entity (as defined in Standard & Poor's
Structured Finance Ratings Real Estate
Finance Criteria, as amended to the date of
the defeasance (the "S&P Criteria")) as of
the date of the defeasance, and after the
defeasance owns no assets other than the
defeasance collateral and real property
securing Mortgage Loans included in the
pool.
____ the related Mortgagor designated a Single
Purpose Entity (as defined in the S&P
Criteria) to own the defeasance collateral;
or
____ the Servicer designated a Single Purpose
Entity (as defined in the S&P Criteria)
established for the benefit of the Trust to
own the defeasance collateral.
f. The Servicer received a broker or similar
confirmation of the credit, or the accountant's
letter described below contained statements that
it reviewed a broker or similar confirmation of
the credit, of the defeasance collateral to an
Eligible Account (as defined in the S&P Criteria)
in the name of the Defeasance Obligor, which
account is maintained as a securities account by
the Trustee acting as a securities intermediary.
g. As securities intermediary, Trustee is obligated
to make the scheduled payments on the Mortgage
Loan from the proceeds of the defeasance
collateral directly to the Servicer's collection
account in the amounts and on the dates specified
in the Mortgage Loan Documents or, in a partial
defeasance, the portion of such scheduled payments
attributed to the allocated loan amount for the
real property defeased, increased by any
defeasance premium specified in the Mortgage Loan
Documents (the "Scheduled Payments").
h. The Servicer received from the Mortgagor written
confirmation from a firm of independent certified
public accountants, who were approved by Servicer
in accordance with the Servicing Standard, stating
that (i) revenues from principal and interest
payments made on the defeasance collateral
(without taking into account any earnings on
reinvestment of such revenues) will be sufficient
to timely pay each of the Scheduled Payments after
the defeasance including the payment in full of
the Mortgage Loan (or the allocated portion
thereof in connection with a partial defeasance)
on its Maturity Date (or, in the case of an ARD
Loan, on its Anticipated Repayment Date), (ii) the
revenues received in any month from the defeasance
collateral will be applied to make Scheduled
Payments within four (4) months after the date of
receipt, and (iii) interest income from the
defeasance collateral to the Defeasance Obligor in
any calendar or fiscal year will not exceed such
Defeasance Obligor's interest expense for the
Mortgage Loan (or the allocated portion thereof in
a partial defeasance) for such year.
i. The Servicer received opinions from counsel, who
were approved by Servicer in accordance with the
Servicing Standard, that (i) the agreements
executed by the Mortgagor and/or the Defeasance
Obligor in connection with the defeasance are
enforceable against them in accordance with their
terms, and (ii) the Trustee will have a perfected,
first priority security interest in the defeasance
collateral described above.
j. The agreements executed in connection with the
defeasance (i) permit reinvestment of proceeds of
the defeasance collateral only in Permitted
Investments (as defined in the S&P Criteria), (ii)
permit release of surplus defeasance collateral
and earnings on reinvestment to the Defeasance
Obligor or the Mortgagor only after the Mortgage
Loan has been paid in full, if any such release is
permitted, (iii) prohibit any subordinate liens
against the defeasance collateral, and (iv)
provide for payment from sources other than the
defeasance collateral or other assets of the
Defeasance Obligor of all fees and expenses of the
securities intermediary for administering the
defeasance and the securities account and all fees
and expenses of maintaining the existence of the
Defeasance Obligor.
k. The entire Stated Principal Balance of the
Mortgage Loan as of the date of defeasance was
$___________ [$5,000,000 or less or less than one
percent of pool balance, whichever is less] which
is less than 1% of the Aggregate Certificate
Balance of the Certificates as of the date of the
most recent paying agent's monthly
certificateholder report received by us (the
"Current Report").
l. The defeasance described herein, together with all
prior and simultaneous defeasances of Mortgage
Loans, brings the total of all fully and partially
defeased Mortgage Loans to $__________________,
which is _____% of the Aggregate Certificate
Balance of the Certificates as of the date of the
Current Report.
3. Certify that, in addition to the foregoing, Servicer has
imposed such additional conditions to the defeasance,
subject to the limitations imposed by the Mortgage Loan
Documents, as are consistent with the Servicing
Standard.
4. Certify that EXHIBIT B hereto is a list of the material
agreements, instruments, organizational documents for
the Defeasance Obligor, and opinions of counsel and
independent accountants executed and delivered in
connection with the defeasance described above and that
originals or copies of such agreements, instruments and
opinions have been transmitted to the Trustee for
placement in the related Mortgage File or, to the extent
not required to be part of the related Mortgage File,
are in the possession of the Servicer as part of the
Servicer's Mortgage File.
5. Certify and confirm that the determinations and
certifications described above were rendered in
accordance with the Servicing Standard set forth in, and
the other applicable terms and conditions of, the
Pooling and Servicing Agreement.
6. Certify that the individual under whose hand the
Servicer has caused this Notice and Certification to be
executed did constitute a Servicing Officer as of the
date of the defeasance described above.
7. Agree to provide copies of all items listed in EXHIBIT B
to you upon request.
IN WITNESS WHEREOF, the Servicer has caused this Notice and
Certification to be executed as of the date captioned above.
SERVICER:________________________
By: _______________________________
Name:
Title:
EXHIBIT O
FORM OF CERTIFICATION TO BE
PROVIDED TO DEPOSITOR
Re: CSFB Commercial Mortgage Trust 2003-CPN1 (the
"Trust"), Commercial Mortgage Pass-Through
Certificates, Series 2003-CPN1
-----------------------------------------------
I, [identify the certifying individual], a[n] [title] of [identify name of
company] on behalf of [identify name of company], as [Trustee/[General][Co-op]
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, 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 [Midland
Loan Services, Inc., in its capacity as General Master
Servicer] [NCB, FSB, in its capacity as Co-op Master 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 e a certificate in the
form attached as Exhibit A hereto from [Midland Loan Services,
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 filed in respect of periods
included in the year covered by that annual report [Midland
Loan Services, Inc., in its capacity as General Master
Servicer] [NCB, FSB, in its capacity as Co-op 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 [Midland Loan Services, Inc., in its
capacity as General Master Servicer] [NCB, FSB, in its
capacity as Co-op Master Servicer], based upon the review
required under the pooling and servicing agreement with
respect to [Midland Loan Services, Inc., in its capacity as
General Master Servicer] [NCB, FSB, in its capacity as Co-op
Master Servicer] and a certificate in the form attached as
Exhibit A hereto [Midland Loan Services, 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] [I have
disclosed to [Midland Loan Services, Inc.'s, in its capacity
as General Master Servicer] [NCB, FSB's, in its capacity as
Co-op Master Servicer] certified public accountants all
significant deficiencies relating to the compliance of
[Midland Loan Services, Inc., in its capacity as General
Master Servicer] [NCB, FSB, in its capacity as Co-op 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 [Midland Loan Services, 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 O
FORM OF CERTIFICATION TO BE
PROVIDED TO THE MASTER SERVICER
Re: CSFB Commercial Mortgage Trust 2003-CPN1 (the
"Trust"), Commercial Mortgage Pass-Through
Certificates, Series 2003-CPN1
------------------------------------------------
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 [identify the individual signing Exhibit A], [Midland Loan
Services, Inc., in its capacity as general special servicer] [National Consumer
Cooperative Bank, in its capacity as co-op special servicer] (the
"[General][Co-op] Special Servicer"), Credit Suisse First Boston Mortgage
Securities Corp. ("Depositor") 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 [Midland Loan
Services, 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, [Midland Loan Services, 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, including the
provision of all Reports required to be submitted to the
Trustee thereunder, and that, to the knowledge of [Midland
Loan Services, Inc., in its capacity as General Special
Servicer] [National Consumer Cooperative Bank, in its capacity
as Co-op Special Servicer], such Reports do not contain any
material misstatements or omissions; and
7. [To be certified by the Special Servicer] [I have disclosed to
[Midland Loan Services, 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 and [Midland Loan Services, Inc.'s, in its
capacity as General Master Servicer] [NCB, FSB's, in its
capacity as General Special Servicer], certified public
accountants all significant deficiencies, to my knowledge,
relating to the compliance of [Midland Loan Services, 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]
