Exhibit 4
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X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.,
Depositor
WACHOVIA BANK, NATIONAL ASSOCIATION,
Servicer
ARCAP SPECIAL SERVICING, INC.,
Special Servicer
and
XXXXX FARGO BANK MINNESOTA, N.A.,
Trustee
POOLING AND SERVICING AGREEMENT
Dated as of
November 4, 2002
$1,004,289,338
X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.
Commercial Mortgage Pass-Through Certificates
Series 2002-CIBC5
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TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
Section 1.01 Defined Terms....................................................
Section 1.02 Certain Calculations.............................................
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01 Conveyance of Mortgage Loans.....................................
Section 2.02 Acceptance by Trustee............................................
Section 2.03 Representations, Warranties and Covenants of the Depositor;
Mortgage Loan Sellers' Repurchase or Substitution of Mortgage
Loans for Defects in Mortgage Files and Breaches of
Representations and Warranties..................................
Section 2.04 Execution of Certificates; Creation of Loan REMIC Regular
Interests.......................................................
Section 2.05 Execution of Certificates; Issuance of Uncertificated Lower-Tier
Interests.......................................................
Section 2.06 Grantor Trust Designations.......................................
ARTICLE III
ADMINISTRATION AND
SERVICING OF THE TRUST FUND
Section 3.01 Servicer to Act as Servicer; Special Servicer to Act as Special
Servicer; 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........................................................
Section 3.04 The Certificate Account, the Simon Collection Account, the Loan
REMIC, the Lower-Tier and Upper-Tier Distribution Accounts, the
Companion Distribution Account, the Gain-on-Sale Reserve Account
and the Excess Interest Distribution Account....................
Section 3.05 Permitted Withdrawals from the Certificate Account, the Simon
Collection Account, the Distribution Accounts and the Companion
Distribution Account............................................
Section 3.06 Investment of Funds in the Certificate Account, the Distribution
Account, the Simon Collection Account and the REO Account.......
Section 3.07 Maintenance of Insurance Policies; Errors and Omissions and
Fidelity Coverage...............................................
Section 3.08 Enforcement of Due-on-Sale Clauses; Assumption Agreements........
Section 3.09 Realization Upon Defaulted Mortgage Loans........................
Section 3.10 Trustee to Cooperate; Release of Mortgage Files..................
Section 3.11 Servicing Compensation...........................................
Section 3.12 Inspections; Collection of Financial Statements..................
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 Sale of Defaulted Mortgage Loans and REO Properties..............
Section 3.19 Additional Obligations of Servicer and Special Servicer..........
Section 3.20 Modifications, Waivers, Amendments and Consents..................
Section 3.21 Transfer of Servicing Between Servicer and Special Servicer;
Recordkeeping; Asset Status Report..............................
Section 3.22 Sub-Servicing Agreements.........................................
Section 3.23 [RESERVED].......................................................
Section 3.24 Representations, Warranties and Covenants of the Servicer........
Section 3.25 Representations, Warranties and Covenants of the Special
Servicer........................................................
Section 3.26 Interest Reserve Account.........................................
Section 3.27 Excess Interest Distribution Account.............................
Section 3.28 Directing Certificateholder Contact with Servicer................
Section 3.29 Controlling Class Certificateholders and Directing
Certificateholder; Certain Rights and Powers of Directing
Certificateholder...............................................
Section 3.30 Ridge Park Intercreditor Agreement...............................
Section 3.31 Xxxxxx Riverside Intercreditor Agreement.........................
Section 3.32 Companion Paying Agent...........................................
Section 3.33 Companion Register...............................................
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
Section 4.01 Distributions....................................................
Section 4.02 Statements to Certificateholders; CMSA Investor Reporting
Package (IRP)s..................................................
Section 4.03 P&I Advances.....................................................
Section 4.04 Allocation of Collateral Support Deficit.........................
Section 4.05 Appraisal Reductions.............................................
Section 4.06 Certificate Deferred Interest....................................
Section 4.07 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 Certificate Ownership Certification..............................
ARTICLE VI
THE DEPOSITOR, THE
SERVICER, THE SPECIAL SERVICER AND THE DIRECTING
CERTIFICATEHOLDER
Section 6.01 Liability of the Depositor, the Servicer and the Special
Servicer........................................................
Section 6.02 Merger, Consolidation or Conversion of the Depositor, the
Servicer or the Special Servicer................................
Section 6.03 Limitation on Liability of the Depositor, the Servicer, the
Special Servicer and Others.....................................
Section 6.04 Depositor, Servicer and Special Servicer Not to Resign...........
Section 6.05 Rights of the Depositor in Respect of the Servicer and the
Special Servicer................................................
Section 6.06 [RESERVED].......................................................
Section 6.07 The Directing Certificateholder and the Simon Representative.....
ARTICLE VII
DEFAULT
Section 7.01 Events of Default; Servicer and Special Servicer Termination.....
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 Trustee as Maker of Advances.....................................
ARTICLE VIII
CONCERNING THE TRUSTEE
Section 8.01 Duties of Trustee................................................
Section 8.02 Certain Matters Affecting the Trustee............................
Section 8.03 Trustee Not Liable for Validity or Sufficiency of Certificates
or Mortgage Loans...............................................
Section 8.04 Trustee May Own Certificates.....................................
Section 8.05 Fees and Expenses of Trustee; Indemnification of Trustee.........
Section 8.06 Eligibility Requirements for Trustee.............................
Section 8.07 Resignation and Removal of the 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 Representations and Warranties of the Trustee....................
ARTICLE IX
TERMINATION
Section 9.01 Termination upon Repurchase or Liquidation of All Mortgage Loans.
Section 9.02 Additional Termination Requirements..............................
ARTICLE X
ADDITIONAL REMIC PROVISIONS
Section 10.01 REMIC Administration.............................................
Section 10.02 Use of Agents....................................................
Section 10.03 Depositor, Servicer and Special Servicer to Cooperate with
Trustee.........................................................
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01 Amendment........................................................
Section 11.02 Recordation of Agreement; Counterparts...........................
Section 11.03 Limitation on Rights of Certificateholders.......................
Section 11.04 Governing Law....................................................
Section 11.05 Notices..........................................................
Section 11.06 Severability of Provisions.......................................
Section 11.07 Grant of a Security Interest.....................................
Section 11.08 Successors and Assigns; Beneficiaries............................
Section 11.09 Article and Section Headings.....................................
Section 11.10 Notices to the Rating Agencies...................................
EXHIBITS
Exhibit A-1 Form of Class A-1 Certificate
Exhibit A-2 Form of Class A-2 Certificate
Exhibit A-3 [Reserved]
Exhibit A-4 [Reserved]
Exhibit A-5 [Reserved]
Exhibit A-6 Form of Class X-1 Certificate
Exhibit A-7 Form of Class X-2 Certificate
Exhibit A-8 Form of Class B Certificate
Exhibit A-9 Form of Class C Certificate
Exhibit A-10 Form of Class D Certificate
Exhibit A-11 Form of Class E Certificate
Exhibit A-12 Form of Class F Certificate
Exhibit A-13 Form of Class G Certificate
Exhibit A-14 Form of Class H Certificate
Exhibit A-15 Form of Class J Certificate
Exhibit A-16 Form of Class K Certificate
Exhibit A-17 Form of Class L Certificate
Exhibit A-18 Form of Class M Certificate
Exhibit A-19 Form of Class N Certificate
Exhibit A-20 Form of Class NR Certificate
Exhibit A-21 Form of Class S-1 Certificate
Exhibit A-22 Form of Class S-2 Certificate
Exhibit A-23 Form of Class S-3 Certificates
Exhibit A-24 Form of Class R Certificate
Exhibit A-25 Form of Class LR Certificate
Exhibit B Mortgage Loan Schedule
Exhibit C Form of Investment Representation Letter
Exhibit D-1 Form of Transfer Affidavit
Exhibit D-2 Form of Transferor Letter
Exhibit E Form of Request for Release
Exhibit F Form of ERISA Representation Letter
Exhibit G Form of Statement to Certificateholders
Exhibit H Form of Omnibus Assignment
Exhibit I Form of Regulation S Transfer Certificate during Restricted
Period
Exhibit I-2 Form of Regulation S Transfer Certificate after Restricted
Period
Exhibit J Form of Purchase Option Notice
Exhibit K Form of Transfer Certificate for Rule 144A Book-Entry
Certificate to Regulation S Book-Entry Certificate during
Restricted Period
Exhibit L [Reserved]
Exhibit M Form of CMSA Investor Reporting Package
Exhibit M-1 Form of CMSA Bond Level File
Exhibit M-2 Form of CMSA Collateral Summary File
Exhibit M-3 Form of CMSA Financial File
Exhibit M-4 Form of CMSA Loan Periodic Update File
Exhibit M-5 Form of CMSA Loan Setup File
Exhibit M-6 Form of CMSA Property File
Exhibit M-7 Form of CMSA Comparative Financial Status Report
Exhibit M-8 Form of CMSA Delinquent Loan Status Report
Exhibit M-9 Form of CMSA Historical Liquidation Report
Exhibit M-10 Form of CMSA Historical Loan Modification Report
Exhibit M-11 Form of CMSA NOI Adjustment Worksheet
Exhibit M-12 Form of CMSA Operating Statement Analysis Report
Exhibit M-13 Form of CMSA REO Status Report
Exhibit M-14 CMSA Servicer Watchlist Criteria
Exhibit N Controlling Class Certificateholder Reports Checklist
Exhibit O [Reserved]
Exhibit P Form of Transfer Certificate for Rule 144A Book-Entry
Certificate to Regulation S Book-Entry Certificate after
Restricted Period
Exhibit Q Form of Transfer Certificate of Regulation S Book-Entry
Certificate to Rule 144A Global Book-Entry during Restricted
Period
Exhibit R Form of Transfer Certificate for Regulation S Book-Entry
Certificate during Restricted Period
Exhibit S Form Certification to be Provided with Form 10-K
Exhibit T Form of Certification to be Provided to Depositor
Exhibit U Initial Companion Holders
Exhibit V ARCap Naming Convention
SCHEDULES
Schedule 1 [Reserved]
Schedule 2 Mortgage Loans Containing Additional Debt
Schedule 3 [Reserved]
Schedule 4 Mortgage Loans which Initially Pay Interest Only
Schedule 5 [Reserved]
Schedule 6 Simon Mortgage Loan Amortization Schedule
This Pooling and Servicing Agreement (the "Agreement") is dated and
effective as of November 4, 2002, among X.X. Xxxxxx Xxxxx Commercial Mortgage
Securities Corp., as Depositor, Wachovia Bank, National Association, as
Servicer, ARCap Special Servicing, Inc., as Special Servicer, and Xxxxx Fargo
Bank Minnesota, N.A., as Trustee.
PRELIMINARY STATEMENT:
The Depositor intends to sell commercial mortgage pass-through
certificates (collectively, the "Certificates"), to be issued hereunder in
multiple classes (each, a "Class"), which in the aggregate will evidence the
entire beneficial ownership interest in the trust fund (the "Trust Fund") to be
created hereunder, the primary assets of which will be a pool of commercial and
multifamily mortgage loans (the "Mortgage Loans"). As provided herein, the
Trustee shall elect or shall cause an election to be made to treat the Trust
Fund (exclusive of the Excess Interest and the Excess Interest Distribution
Account) for federal income tax purposes as three separate real estate mortgage
investment conduits (the "Loan REMIC," "Upper-Tier REMIC" and "Lower-Tier REMIC"
as described herein).
The parties intend that the portions of the Trust Fund representing
the Excess Interest, the Excess Interest Distribution Account and the proceeds
thereof will be treated as a grantor trust under subpart E of Part 1 of
subchapter J of the Code and that the beneficial interest therein will be
represented by the Class NR Certificates.
LOAN REMIC
----------
An election will be made to treat the segregated pool of assets
consisting of the Simon Mortgage Loan and certain other related assets subject
to this Agreement as a REMIC for federal income tax purposes, and such
segregated pool of assets will be designated as the "Loan REMIC". The Loan REMIC
Residual Interest will represent the sole class of "residual interests" in the
Loan REMIC for purposes of the REMIC Provisions under federal income tax law,
and will be represented by the Class LR Certificates. The Loan REMIC Pooled
Regular Interest, the Class KS-1 Uncertificated Interest, the Class KS-2
Uncertificated Interest and the Class KS-3 Uncertificated Interest will not be
certificated and will be held by the Lower-Tier REMIC.
The following table sets forth the Original Loan REMIC Principal
Amounts and per annum rates of interest for the Loan REMIC Regular Interests:
Class Original Loan REMIC
Designation Interest Rate Principal Amount
----------- ------------- ----------------
Loan REMIC Pooled (1) $106,915,919
Regular Interest
Class KS-1 (1) $ 5,895,364
Class KS-2 (1) $ 6,594,814
Class KS-3 (1) $ 5,295,834
------------------
(1) The interest rate for each Class of Loan REMIC Regular Interests shall be
the related Simon Mortgage Loan Remittance Rate.
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 LB, Class LC, Class LD,
Class LE, Class LF, Class LG-1, Class LG-2, Class LH-1, Class LH-2, Class LH-3,
Class LJ-1, Class LJ-2, Class LK, Class LL, Class LM, Class LN, Class LNR, Class
LS-1, Class LS-2 and Class LS-3 Uncertificated Interests will evidence "regular
interests" in the Lower-Tier REMIC created hereunder. The sole Class of
"residual interests" in the Lower-Tier REMIC created hereunder will be evidenced
by the Class LR Certificates.
The following table sets forth the Original Lower-Tier Principal
Amounts and per annum rates of interest for the Uncertificated Lower-Tier
Interests and the Class LR Certificates:
LOWER-TIER REMIC
----------------
Class Original Lower-Tier
Designation Interest Rate Principal Amount
----------- ------------- ----------------
Class LA-1-1 (1) $ 11,328,000
Class LA-1-2 (1) $ 51,200,000
Class LA-1-3 (1) $ 52,019,000
Class LA-1-4 (1) $ 49,298,000
Class LA-1-5 (1) $104,965,000
Class LA-1-6 (1) $ 41,190,000
Class LA-2-1 (1) $ 84,320,000
Class LA-2-2 (1) $402,835,000
Class LB (1) $ 36,405,000
Class LC (1) $ 13,809,000
Class LD (1) $ 27,618,000
Class LE (1) $ 13,809,000
Class LF (1) $ 28,873,000
Class LG-1 (1) $ 6,723,000
Class LG-2 (1) $ 9,597,000
Class LH-1 (1) $ 4,890,000
Class LH-2 (1) $ 10,830,000
Class LH-3 (1) $ 3,111,000
Class LJ-1 (1) $ 4,674,000
Class LJ-2 (1) $ 7,879,000
Class LK (1) $ 5,022,000
Class LL (1) $ 5,021,000
Class LM (1) $ 8,788,000
Class LN (1) $ 2,510,000
Class LNR (1) $ 17,575,337
Class LS-1 (2) $ 5,895,364
Class LS-2 (2) $ 6,594,814
Class LS-3 (2) $ 5,295,834
Class LR None(2) None(2)
------------------
(1) The interest rate for such Class of Uncertificated Lower-Tier Interests
shall be the Weighted Average Net Mortgage Rate.
(2) The interest rate for such Class of Uncertificated Lower-Tier Interests
shall be the related Simon Mortgage Loan Remittance Rate.
(3) The Class LR Certificates do not have a Certificate Balance or Notional
Amount, do not bear interest and will not be entitled to distributions of
Yield Maintenance Charges. Any Available Distribution Amount remaining in
the Lower-Tier Distribution Account after distributing the Lower-Tier
Distribution Amount shall be distributed to the Holders of the Class LR
Certificates (but only to the extent of the Available Distribution Amount
for such Distribution Date, if any, remaining in the Lower-Tier
Distribution Account).
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 S-1,
Class S-2, Class S-3, Class NR (other than with respect to the right to receive
Excess Interest), Class X-1 and Class X-2 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 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 Amount ("Original Notional Amount"),
as applicable, and the initial ratings given each Class by the Rating Agencies
(the "Original Ratings") for each Class of Certificates comprising the interests
in the Upper-Tier REMIC created hereunder:
UPPER-TIER REMIC
----------------
Original
Related Pass-Through Rate Original Ratings
Certificate (per annum) Certificate Balance Xxxxx'x/Fitch(1)
----------- ----------- ------------------- ----------------
Class A-1 4.3720% $ 310,000,000 Aaa/AAA
Class A-2 5.1610% $ 487,155,000 Aaa/AAA
Class B 5.3080% $ 36,405,000 Aa2/AA
Class C 5.3670% $ 13,809,000 Aa3/AA-
Class D 5.4560% $ 27,618,000 A2/A
Class E 5.5540% $ 13,809,000 A3/A-
Class F 5.9227%(2) $ 28,873,000 Baa2/BBB
Class G 6.2207%(2) $ 16,320,000 Baa3/BBB-
Class H 5.5000% $ 18,831,000 Ba1/BB+
Class J 5.5000% $ 12,553,000 Ba2/BB
Class K 5.5000% $ 5,022,000 Ba3/BB-
Class L 5.5000% $ 5,021,000 B1/B+
Class M 5.5000% $ 8,788,000 B2/B-
Class N 5.5000% $ 2,510,000 B3/B-
Class NR 5.5000% $ 17,575,337 NR/NR
Class S-1 7.6750% $ 5,895,364 Ba1/NR
Class S-2 8.3690% $ 6,594,814 Ba2/NR
Class S-3 10.2083% $ 5,295,834 Ba3/NR
Class X-1 0.1172%(3) $1,004,289,337(4) Aaa/AAA
Class X-2 1.6310%(3) $ 917,471,000(4) Aaa/AAA
Class R None None (5) */*
------------------
(1) The Certificates marked with an asterisk have not been rated by the
applicable Rating Agency.
(2) The Pass-Through Rate for any Distribution Date for the Class F
Certificates will be the Weighted Average Net Mortgage Rate for the
Distribution Date minus 0.7540% per annum. The Pass-Through Rate for any
Distribution Date for the Class G Certificates will be the Weighted
Average Net Mortgage Rate for the Distribution Date minus 0.4560% per
annum.
(3) The Pass-Through Rates for each of the Class X-1 and Class X-2
Certificates will be calculated in accordance with the related definitions
of "Class X-1 Pass-Through Rate" and "Class X-2 Pass-Through Rate," as
applicable.
(4) The Class X-1 and Class X-2 Certificates will not have a Certificate
Balance; rather, each such Class of Certificates will accrue interest as
provided herein on the related Class X-1 Notional Amount and Class X-2
Notional Amount, as applicable.
(5) The Class R Certificates do not have a Certificate Balance or Notional
Amount, do not bear interest and will not be entitled to distributions of
Yield Maintenance Charges. Any Available Distribution Amount 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 of close of business on the Cut-off Date, the Mortgage Loans had
an aggregate principal balance, after application of all payments of principal
due on or before such date, whether or not received, equal to $1,004,289,338.
Two mortgage loans (the "Companion Loans") with an aggregate
original principal amount of $13,681,208 are not part of the Trust Fund but are
secured by corresponding Mortgages that secure related Mortgage Loans (each, an
"AB Mortgage Loan" and, collectively, the "AB Mortgage Loans") that are part of
the Trust Fund. As and to the extent provided herein, the Companion Loans will
be serviced and administered in accordance with this Agreement. Amounts
attributable to the Companion Loans will not be assets of the Trust Fund, and
will be owned by the Companion Holders.
In consideration of the mutual agreements herein contained, the
Depositor, the Servicer, the Special Servicer and the Trustee agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Defined Terms.
Whenever used in this Agreement, including in the Preliminary
Statement, the following capitalized terms, unless the context otherwise
requires, shall have the meanings specified in this Article.
"AB Intercreditor Agreements": The Hackberry Intercreditor Agreement
or the Super 8-Manassas Intercreditor Agreement.
"AB Mortgage Loan": Each of the Hackberry AB Mortgage Loan and the
Super 8-Manassas AB Mortgage Loan.
"Acceptable Insurance Default": With respect to any Mortgage Loan, a
default under the related Mortgage Loan documents arising by reason of any
failure on the part of the related Mortgagor to maintain with respect to the
related Mortgaged Property specific insurance coverage with respect to, or an
all-risk casualty insurance policy that does not specifically exclude, terrorist
or similar acts, and/or any failure on the part of the related Mortgagor to
maintain with respect to the related Mortgaged Property insurance coverage with
respect to terrorist or similar acts upon terms no less favorable than those in
place as of November 1, 2002, as to which default the Servicer and the Special
Servicer may forbear taking any enforcement action, provided that the Special
Servicer has determined, in its reasonable judgment, based on inquiry consistent
with the Servicing Standard and after consultation with the Directing
Certificateholder, that either (a) such insurance is not available at
commercially reasonable rates and that hazards are not at the time commonly
insured against for properties similar to the related Mortgaged Property and
located in or around the region in which such related Mortgaged Property is
located, or (b) such insurance is not available at any rate; provided, however,
the Directing Certificateholder will not have more than 30 days to respond to
the Special Servicer's request for consultation; provided, further, that upon
the Special Servicer's determination consistent with the Servicing Standard,
that exigent circumstances do not allow the Special Servicer to consult with the
Directing Certificateholder, the Special Servicer will not be required to do so.
"Accrued Certificate Interest": With respect to each Distribution
Date and each Class of Certificates (other than the Residual Certificates), an
amount equal to interest for the related Interest Accrual Period at the
Pass-Through Rate applicable to such Class of Certificates for such Distribution
Date, accrued on the related Certificate Balance (or with respect to the Class
X-1 and Class X-2 Certificates, the Notional Amount of such Class outstanding
immediately prior to such Distribution Date (provided that for interest accrual
purposes any distributions in reduction of Certificate Balance or Notional
Amount or reductions in Certificate Balance or Notional Amount as a result of
allocations of Collateral Support Deficit on the Distribution Date occurring in
an Interest Accrual Period shall be deemed to have been made on the first day of
such Interest Accrual Period). Accrued Certificate Interest shall be calculated
on the basis of a 360-day year consisting of twelve 30-day months.
"Accrued Simon Non-Pooled Component Interest": With respect to each
Loan REMIC Non-Pooled Regular Interest for any Distribution Date, one month's
interest at the related Simon Mortgage Loan Remittance Rate for such
Distribution Date, accrued for the related Interest Accrual Period on the Simon
Non-Pooled Balance outstanding immediately prior to such Distribution Date.
Accrued Simon Non-Pooled Component Interest shall be calculated on a 30/360
Basis and, for any Distribution Date, shall be deemed to accrue during the
calendar month preceding the month in which such Distribution Date occurs.
"Accrued Simon Pooled Component Interest": With respect to the Simon
Pooled Component for any Distribution Date, one month's interest at the related
Simon Mortgage Loan Remittance Rate for such Distribution Date, accrued for the
related Interest Accrual Period on the Simon Pooled Balance outstanding
immediately prior to such Distribution Date. Accrued Simon Pooled Component
Interest shall be calculated on a 30/360 Basis and, for any Distribution Date,
shall be deemed to accrue during the calendar month preceding the month in which
such Distribution Date occurs.
"Act": The Securities Act of 1933, as it may be amended from time to
time.
"Actual/360 Mortgage Loans": The Mortgage Loans indicated as such in
the Mortgage Loan Schedule.
"Additional Debt": With respect to any Mortgage Loan, any debt owed
by the related Mortgagor to a party other than the lender under such Mortgage
Loan as of the Closing Date as set forth on Schedule 2 hereto, as increased or
decreased from time to time pursuant to the terms of the related subordinate
loan documents (including any subordination agreement).
"Additional Exclusions": Exclusions in addition to those customarily
found in insurance policies for Mortgaged Properties prior to September 11,
2001.
"Administrative Cost Rate": With respect to each Mortgage Loan, the
sum of the Servicing Fee Rate and the Trustee Fee Rate, in each case computed on
the basis of the Stated Principal Balance of the related Mortgage Loan and in
the same manner as interest is calculated on such Mortgage Loan.
"Advance": Any P&I Advance or Servicing Advance.
"Adverse REMIC Event": As defined in Section 10.01(f).
"Affiliate": With respect to any specified Person, any other Person
controlling or controlled by or under common control with such specified Person.
For the purposes of this definition, "control" when used with respect to any
specified Person means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Agent": As defined in Section 5.02(c)(i)(A).
"Agreement": This Pooling and Servicing Agreement and all amendments
hereof and supplements hereto.
"Anticipated Repayment Date": With respect to any Mortgage Loan that
is indicated on the Mortgage Loan Schedule as having a Revised Rate, the date
upon which such Mortgage Loan commences accruing interest at such Revised Rate.
"Applicable Procedures": As defined in Section 5.02(b)(i).
"Applicable State and Local Tax Law": For purposes hereof, the
Applicable State and Local Tax Law shall be (a) the tax laws of the State of New
York; and (b) such other state or local tax laws whose applicability shall have
been brought to the attention of the Trustee by either (i) an opinion of counsel
delivered to it, or (ii) written notice from the appropriate taxing authority as
to the applicability of such state or local tax laws.
"Appraisal": An appraisal prepared by an Independent MAI appraiser
with at least five years experience in properties of like kind and in the same
area, prepared in accordance with 12 C.F.R. 225.64, or, in connection with an
Appraisal Reduction, a valuation meeting the requirements of clause (b)(i)(A)(2)
in the definition of Appraisal Reduction.
"Appraisal Reduction": For any Distribution Date and for any
Mortgage Loan as to which an Appraisal Reduction Event has occurred, will be an
amount calculated by the Special Servicer, in consultation with the Directing
Certificateholder, as of the first Determination Date following the date on
which the Special Servicer receives or performs such Appraisal equal to the
excess of (a) the Stated Principal Balance of such Mortgage Loan (including, if
such Mortgage Loan is the Simon Mortgage Loan, the Simon Non-Pooled Component)
over (b) the excess of (i) the sum of (A) 90% of the Appraised Value of the
related Mortgaged Property as determined (1) by one or more Appraisals with
respect to any Mortgage Loan (together with any other Mortgage Loan
cross-collateralized with such Mortgage Loan) with an outstanding principal
balance equal to or in excess of $2,000,000 (the costs of which shall be paid by
the Servicer as an Advance) or (2) by an internal valuation performed by the
Special Servicer with respect to any Mortgage Loan (together with any other
Mortgage Loan cross-collateralized with such Mortgage Loan) with an outstanding
principal balance less than $2,000,000, and (B) all escrows, letters of credit
and reserves in respect of such Mortgage Loan as of the date of calculation over
(ii) the sum of, as of the Due Date occurring in the month of the date of
determination, (A) to the extent not previously advanced by the Servicer or the
Trustee, all unpaid interest on such Mortgage Loan at a per annum rate equal to
its Mortgage Rate, (B) all unreimbursed Advances and interest thereon at the
Reimbursement Rate in respect of such Mortgage Loan and (C) all currently due
and unpaid real estate taxes, assessments, insurance premiums, ground rents,
unpaid Special Servicing Fees and all other amounts due and unpaid with respect
to such Mortgage Loan (which taxes, premiums, ground rents and other amounts
have not been the subject of an Advance by the Servicer or the Trustee, as
applicable); provided, however, without limiting the Special Servicer's
obligation to order and obtain such Appraisal, if the Special Servicer has not
obtained the Appraisal or valuation, as applicable, referred to above within 60
days of the Appraisal Reduction Event (or with respect to the reduction event
set forth in clause (i) of the definition of Appraisal Reduction Event, within
such 120 days set forth therein), the amount of the Appraisal Reduction shall be
deemed to be an amount equal to 25% of the current Stated Principal Balance of
the related Mortgage Loan (including, if such Mortgage Loan is the Simon
Mortgage Loan, the Simon Non-Pooled Component) until such time as such appraisal
or valuation referred to above is received and the Appraisal Reduction is
calculated. Within 60 days after the Appraisal Reduction Event, the Special
Servicer shall order and receive an Appraisal (the cost of which shall be paid
as a Servicing Advance); provided, however, that with respect to an Appraisal
Reduction Event as set forth in clause (i) of the definition of Appraisal
Reduction Event, the Special Servicer shall order and receive such Appraisal
within the 120 day period set forth in such clause (i), which Appraisal shall be
delivered by the Special Servicer to the Servicer, the Directing
Certificateholder and the Trustee.
With respect to each Mortgage Loan as to which an Appraisal
Reduction has occurred (unless such Mortgage Loan has become a Corrected
Mortgage Loan (for such purposes taking into account any amendment or
modification of such Mortgage Loan)), the Special Servicer shall, within 30 days
of each anniversary of the related Appraisal Reduction Event, order an Appraisal
(which may be an update of a prior Appraisal), the cost of which shall be paid
by the Servicer as a Servicing Advance or to conduct an internal valuation, as
applicable. Based upon such Appraisal, the Special Servicer shall redetermine
(in consultation with the Directing Certificateholder) and report to the
Directing Certificateholder (and, in the case of the Simon Mortgage Loan, the
Simon Portfolio Operating Advisor), the Servicer, and the Trustee the amount of
the Appraisal Reduction with respect to such Mortgage Loan, and such
redetermined Appraisal Reduction shall replace the prior Appraisal Reduction
with respect to such Mortgage Loan. The Directing Certificateholder shall have
ten (10) Business Days to review and approve each calculation of an Appraisal
Reduction; provided, however, that if the Directing Certificateholder fails to
approve any calculation of the Appraisal Reduction within 30 days of receipt of
the initial Appraisal Reduction, such consent shall be deemed given.
Notwithstanding the foregoing, the Special Servicer will not be required to
obtain an Appraisal or conduct an internal valuation, as applicable, with
respect to a Mortgage Loan which is the subject of an Appraisal Reduction Event
to the extent the Special Servicer has obtained an Appraisal or valuation, as
applicable, with respect to the related Mortgaged Property within the
twelve-month period immediately prior to the occurrence of such Appraisal
Reduction Event. Instead, the Special Servicer may use such prior Appraisal or
valuation, as applicable, in calculating any Appraisal Reduction with respect to
such Mortgage Loan; provided that the Special Servicer is not aware of any
material change to the related Mortgaged Property having occurred and affecting
the validity of such appraisal or valuation, as applicable.
Any Mortgage Loan previously subject to an Appraisal Reduction which
loan has become a Corrected Mortgage Loan (for such purposes taking into account
any amendment or modification of such Mortgage Loan), and with respect to which
no other Appraisal Reduction Event has occurred and is continuing, will no
longer be subject to an Appraisal Reduction.
Notwithstanding anything herein to the contrary, the aggregate
Appraisal Reduction related to a Mortgage Loan or the related REO Property will
be reduced to zero as of the date on which such Mortgage Loan is paid in full,
liquidated, repurchased or otherwise removed from the Trust Fund.
"Appraisal Reduction Event": With respect to any Mortgage Loan, the
earliest of (i) 120 days after an uncured delinquency (without regard to the
application of any grace period) occurs in respect of such Mortgage Loan, (ii)
the date on which a reduction in the amount of Monthly Payments on such Mortgage
Loan, or a change in any other material economic term of such Mortgage Loan
(other than an extension of the Maturity Date), becomes effective as a result of
a modification of such Mortgage Loan by the Special Servicer, (iii) the date on
which a receiver has been appointed, (iv) 60 days after a Mortgagor declares
bankruptcy, (v) 60 days after the date on which an involuntary petition of
bankruptcy is filed with respect to a Mortgagor, (vi) 90 days after an uncured
delinquency occurs in respect of a Balloon Payment with respect to a Mortgage
Loan unless the Mortgagor has delivered to the Servicer on the related Maturity
Date a written refinancing commitment reasonably satisfactory in form and
substance to the Special Servicer which provides that such refinancing will
occur within 60 days thereafter and (vii) immediately after a Mortgage Loan
becomes an REO Loan; provided, however, that an Appraisal Reduction Event shall
not occur at any time when the aggregate Certificate Balances of all Classes of
Certificates (other than the Class A Certificates) have been reduced to zero.
The Special Servicer shall notify the Servicer promptly upon the occurrence of
any of the foregoing events.
"Appraised Value": With respect to any Mortgaged Property, the
appraised value thereof as determined by an Appraisal of the Mortgaged Property
securing such Mortgage Loan.
"ARCap Naming Convention": As defined in Section 3.12(a)
"Asset Status Report": As defined in Section 3.21(d).
"Assignment of Leases": With respect to any Mortgaged Property, any
assignment of leases, rents and profits or similar instrument executed by the
Mortgagor, assigning to the mortgagee all of the income, rents and profits
derived from the ownership, operation, leasing or disposition of all or a
portion of such Mortgaged Property, in the form which was duly executed,
acknowledged and delivered, as amended, modified, renewed or extended through
the date hereof and from time to time hereafter.
"Assumed Scheduled Payment": For any Due Period and with respect to
any Mortgage Loan that is delinquent in respect of its Balloon Payment
(including any REO Loan as to which the Balloon Payment would have been past
due), an amount equal to the sum of (a) the principal portion of the Monthly
Payment that would have been due on such Mortgage Loan on the related Due Date
based on the constant payment required by the related Mortgage Note or the
original amortization schedule thereof (as calculated with interest at the
related Mortgage Rate), if applicable, assuming such Balloon Payment has not
become due, after giving effect to any modification of such Mortgage Loan, and
(b) interest on the Stated Principal Balance of such Mortgage Loan at the
applicable Mortgage Rate (net of interest at the Servicing Fee Rate).
"Authenticating Agent": Any agent of the Trustee appointed to act as
Authenticating Agent pursuant to Section 5.01.
"Available Distribution Amount": With respect to any Distribution
Date, an amount equal to the sum of (without duplication):
(a) the aggregate amount relating to the Trust Fund on deposit in
the Certificate Account, the Loan REMIC Distribution Account and the
Lower-Tier Distribution Account (in each case, exclusive of any Net
Investment Earnings contained therein) as of the close of business on the
related Determination Date, exclusive of (without duplication):
(i) all Monthly Payments paid by the Mortgagors that are due
on a Due Date following the end of the related Due Period;
(ii) all unscheduled Principal Prepayments (together with any
related payments of interest allocable to the period following the
Due Date for the related Mortgage Loan during the related Due
Period), Liquidation Proceeds or Insurance and Condemnation Proceeds
received subsequent to the related Determination Date (or, with
respect to Principal Prepayments for each Mortgage Loan with a Due
Date occurring after the related Determination Date, the related Due
Date);
(iii) all amounts payable or reimbursable to any Person from
the Certificate Account pursuant to clauses (ii) through (xvi),
inclusive, and clause (xviii) of Section 3.05(a);
(iv) all amounts payable or reimbursable to any Person from
the Loan REMIC Distribution Account pursuant to clauses (iii) -
(viii), inclusive, of Section 3.05(b), or Lower-Tier Distribution
Account pursuant to clauses (iv) through (ix), inclusive, of Section
3.05(c);
(v) Excess Interest;
(vi) all Yield Maintenance Charges;
(vii) all amounts deemed distributable pursuant to Section
4.01(j)(iv) through (x) and (k)(iv) through (xii);
(viii) all amounts deposited in the Certificate Account, the
Loan REMIC Distribution Account or the Lower-Tier Distribution
Account, as the case may be, in error; and
(ix) with respect to the Interest Reserve Loans and any
Distribution Date relating to each Interest Accrual Period ending in
(1) each January or (2) any December in a year immediately preceding
a year which is not a leap year, an amount equal to one day of
interest on the Stated Principal Balance of such Mortgage Loan as of
the Due Date in the month preceding the month in which such
Distribution Date occurs at the related Mortgage Rate to the extent
such amounts are to be deposited in the Interest Reserve Account and
held for future distribution pursuant to Section 3.26;
(b) if and to the extent not already included in clause (a) hereof,
the aggregate amount transferred from the REO Account to the Certificate
Account for such Distribution Date pursuant to Section 3.16(c);
(c) the aggregate amount of any P&I Advances made by the Servicer or
the Trustee, as applicable, for such Distribution Date pursuant to Section
4.03 or 7.05 (net of the related Trustee Fee with respect to the Mortgage
Loans for which such P&I Advances are made); and
(d) for the Distribution Date occurring in each March, the Withheld
Amounts remitted to the Lower-Tier Distribution Account or the Loan REMIC
Distribution Account pursuant to Section 3.26(b).
Notwithstanding the investment of funds held in the Certificate Account pursuant
to Section 3.06, for purposes of calculating the Available Distribution Amount,
the amounts so invested shall be deemed to remain on deposit in such account.
"Balloon Mortgage Loan": Any Mortgage Loan that by its original
terms or by virtue of any modification entered into as of the Closing Date
provides for an amortization schedule extending beyond its Maturity Date.
"Balloon Payment": With respect to any Balloon Mortgage Loan as of
any date of determination, the Monthly Payment payable on the Maturity Date of
such Mortgage Loan.
"Bankruptcy Code": The federal Bankruptcy Code, as amended from time
to time (Title 11 of the United States Code).
"Base Interest Fraction": With respect to any Principal Prepayment
on any Mortgage Loan and with respect to any Class of Regular Certificates is a
fraction (a) whose numerator is the greater of (x) zero and (y) the amount by
which (i) the Pass-Through Rate on such Class of Certificates exceeds (ii) the
discount rate used in accordance with the related Mortgage Loan documents in
calculating the Yield Maintenance Charge with respect to such Principal
Prepayment and (b) whose denominator is the amount by which (i) the Mortgage
Rate on such Mortgage Loan exceeds (ii) the discount rate used in accordance
with the related Mortgage Loan documents in calculating the Yield Maintenance
Charge with respect to such Principal Prepayment. However, under no
circumstances shall the Base Interest Fraction be greater than one. If such
discount rate is greater than the Mortgage Rate on such Mortgage Loan, then the
Base Interest Fraction will equal zero. The Servicer shall provide to the
Trustee the discount rate references above for purposes of calculating the Base
Interest Fraction.
"Bid Allocation": With respect to the Servicer and the proceeds of
any bid pursuant to Section 7.01(c), the amount of such proceeds (net of any
expenses incurred in connection with such bid and the transfer of servicing),
multiplied by a fraction equal to (a) the Servicing Fee Amount for the Servicer
as of such date of determination, over (b) the aggregate of the Servicing Fee
Amounts for the Servicer as of such date of determination.
"Book-Entry Certificate": Any Certificate registered in the name of
the Depository or its nominee.
"Breach": As defined in Section 2.03(b).
"Business Day": Any day other than a Saturday, a Sunday or a day on
which banking institutions in New York, New York, Charlotte, North Carolina,
Columbia, Maryland, Minneapolis, Minnesota, or the city and state in which the
Corporate Trust Office of the Trustee or principal place of business of the
Servicer or the Special Servicer is located, are authorized or obligated by law
or executive order to remain closed.
"CERCLA": The Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended.
"Certificate": Any one of the Depositor's Commercial Mortgage
Pass-Through Certificates, Series 2002-CIBC5, as executed and delivered by the
Certificate Registrar and authenticated and delivered hereunder by the
Authenticating Agent.
"Certificate Account": A segregated custodial account or accounts
created and maintained by the Servicer pursuant to Section 3.04(a) on behalf of
the Trustee in trust for the Certificateholders, which shall be entitled
"Wachovia Bank, National Association, as Servicer, on behalf of Xxxxx Fargo Bank
Minnesota, N.A., as Trustee, in trust for the registered holders of X.X. Xxxxxx
Xxxxx Commercial Mortgage Securities Corp., Commercial Mortgage Pass-Through
Certificates, Series 2002-CIBC5, Certificate Account." Any such account or
accounts shall be an Eligible Account.
"Certificate Balance": With respect to any Class of Certificates
(other than the Residual Certificates and the Class X Certificates), (i) on or
prior to the first Distribution Date, an amount equal to the Original
Certificate Balance of such Class as specified in the Preliminary Statement
hereto, and (ii) as of any date of determination after the first Distribution
Date, the Certificate Balance of such Class on the Distribution Date immediately
prior to such date of determination (determined as adjusted pursuant to Section
1.02(iii)).
"Certificate Deferred Interest": For any Distribution Date with
respect to any Class of Certificates, the amount of Mortgage Deferred Interest
allocated to such Class pursuant to Section 4.06(a).
"Certificate Factor": With respect to any Class of Certificates, as
of any date of determination, a fraction, expressed as a decimal carried to
eight (8) places, the numerator of which is the then related Certificate
Balance, and the denominator of which is the related Original Certificate
Balance.
"Certificate Owner": With respect to a Book-Entry Certificate, the
Person who is the beneficial owner of such Certificate as reflected on the books
of the Depository or on the books of a Depository Participant or on the books of
an indirect participating brokerage firm for which a Depository Participant acts
as agent.
"Certificate Register" and "Certificate Registrar": The register
maintained and registrar appointed pursuant to Section 5.02.
"Certificateholder" or "Holder": The Person in whose name a
Certificate is registered in the Certificate Register; provided, however, that
solely for the purposes of giving any consent, approval or waiver pursuant to
this Agreement, any Certificate registered in the name of the Servicer, the
Special Servicer, the Depositor, or 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 has been obtained, if
such consent, approval or waiver sought from such party would in any way
increase its compensation or limit its obligations as Servicer, Special Servicer
or Depositor, as applicable, hereunder; provided, however, so long as there is
no Event of Default with respect to the Servicer or the Special Servicer, the
Servicer and Special Servicer shall be entitled to exercise such Voting Rights
with respect to any issue which could reasonably be believed to adversely affect
such party's compensation or increase its obligations or liabilities hereunder;
and provided, further, however, that such restrictions shall not apply to the
exercise of the Special Servicer's rights (or the Servicer's rights, if any) or
any of their Affiliates as a member of the Controlling Class. The Trustee shall
be entitled to request and rely upon a certificate of the Servicer, the Special
Servicer or the Depositor in determining whether a Certificate is registered in
the name of an Affiliate of such Person. All references herein to "Holders" or
"Certificateholders" shall reflect the rights of Certificate Owners as they may
indirectly exercise such rights through the Depository and the Depository
Participants, except as otherwise specified herein; provided, however, that the
parties hereto shall be required to recognize as a "Holder" or
"Certificateholder" only the Person in whose name a Certificate is registered in
the Certificate Register.
"Class": With respect to any Certificates, Uncertificated Lower-Tier
Interests, Loan REMIC Regular Interest or Component, all of the Certificates
bearing the same alphabetical (and, if applicable, numerical) Class designation
and each designated Uncertificated Lower-Tier Interest, Loan REMIC Regular
Interest or Component.
"Class A Certificate": Any Class A-1 or Class A-2 Certificates.
"Class A-1 Certificate": A Certificate designated as "Class A-1" on
the face thereof, in the form of Exhibit A-1 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class A-1 Pass-Through Rate": With respect to any Distribution
Date, a fixed rate per annum equal to 4.3720%.
"Class A-2 Certificate": A Certificate designated as "Class A-2" on
the face thereof, in the form of Exhibit A-2 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class A-2 Pass-Through Rate": With respect to any Distribution
Date, a fixed rate per annum equal to 5.1610%.
"Class B Certificate": A Certificate designated as "Class B" on the
face thereof, in the form of Exhibit A-8 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class B Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to 5.3080%.
"Class C Certificate": A Certificate designated as "Class C" on the
face thereof, in the form of Exhibit A-9 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class C Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to 5.3670%.
"Class D Certificate": A Certificate designated as "Class D" on the
face thereof, in the form of Exhibit A-10 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class D Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to 5.4560%.
"Class E Certificate": A Certificate designated as "Class E" on the
face thereof, in the form of Exhibit A-11 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class E Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to 5.5540%.
"Class F Certificate": A Certificate designated as "Class F" on the
face thereof, in the form of Exhibit A-12 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class F Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to the Weighted Average Net Mortgage Rate minus 0.7540%.
"Class G Certificate": A Certificate designated as "Class G" on the
face thereof, in the form of Exhibit A-13 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class G Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to the Weighted Average Net Mortgage Rate minus 0.4560%.
"Class H Certificate": A Certificate designated as "Class H" on the
face thereof, in the form of Exhibit A-14 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class H Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to 5.500%.
"Class J Certificate": A Certificate designated as "Class J" on the
face thereof, in the form of Exhibit A-15 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class J Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to 5.500%.
"Class K Certificate": A Certificate designated as "Class K" on the
face thereof, in the form of Exhibit A-16 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class K Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to 5.500%.
"Class KS-1 Uncertificated Interest": A regular interest in the Loan
REMIC which is held as an asset of the Lower-Tier REMIC and having the Original
Loan REMIC Principal Amount and per annum rate of interest set forth in the
Preliminary Statement hereto.
"Class KS-2 Uncertificated Interest": A regular interest in the Loan
REMIC which is held as an asset of the Lower-Tier REMIC and having the Original
Loan REMIC Principal Amount and per annum rate of interest set forth in the
Preliminary Statement hereto.
"Class KS-3 Uncertificated Interest": A regular interest in the Loan
REMIC which is held as an asset of the Lower-Tier REMIC and having the Original
Loan REMIC Principal Amount and per annum rate of interest set forth in the
Preliminary Statement hereto.
"Class L Certificate": A Certificate designated as "Class L" on the
face thereof, in the form of Exhibit A-17 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class L Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to 5.500%.
"Class LA-1-1 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which 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": An uncertificated regular
interest in the Lower-Tier REMIC which 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": An uncertificated regular
interest in the Lower-Tier REMIC which 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": An uncertificated regular
interest in the Lower-Tier REMIC which 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": An uncertificated regular
interest in the Lower-Tier REMIC which 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": An uncertificated regular
interest in the Lower-Tier REMIC which 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": An uncertificated regular
interest in the Lower-Tier REMIC which 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": An uncertificated regular
interest in the Lower-Tier REMIC which 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": An uncertificated regular
interest in the Lower-Tier REMIC which 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": An uncertificated regular
interest in the Lower-Tier REMIC which 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": An uncertificated regular
interest in the Lower-Tier REMIC which 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": An uncertificated regular
interest in the Lower-Tier REMIC which 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": An uncertificated regular
interest in the Lower-Tier REMIC which 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-1 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which 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-2 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which 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-1 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which 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-2 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which 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-3 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which 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-1 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which 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-2 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which 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": An uncertificated regular
interest in the Lower-Tier REMIC which 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": An uncertificated regular
interest in the Lower-Tier REMIC which 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": An uncertificated regular
interest in the Lower-Tier REMIC which 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": An uncertificated regular
interest in the Lower-Tier REMIC which is held as an asset of the Upper-Tier
REMIC and having the Original Lower-Tier Principal Amount and a per annum rate
of interest set forth in the Preliminary Statement hereto.
"Class LNR Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which 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 Certificate": A Certificate designated as "Class LR" on
the face thereof, in the form of Exhibit A-25 hereto, evidencing the Loan REMIC
Residual Interest and the Class LR Residual Interest.
"Class LR Residual Interest": The sole class of "residual interests"
in the Lower-Tier REMIC for purposes of the REMIC Provisions and evidenced by
the Class LR Certificates.
"Class LS-1 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which 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 LS-2 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which 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 LS-3 Uncertificated Interest": An uncertificated regular
interest in the Lower-Tier REMIC which 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 M Certificate": A Certificate designated as "Class M" on the
face thereof, in the form of Exhibit A-18 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class M Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to 5.500%.
"Class Notional Amount": The Class X-1 Notional Amount or the Class
X-2 Notional Amount, as the context requires.
"Class N Certificate": A Certificate designated as "Class N" on the
face thereof, in the form of Exhibit A-19 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class N Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to 5.500%.
"Class NR Certificate": A Certificate designated as "Class NR" on
the face thereof, in the form of Exhibit A-20 hereto, and evidencing a "regular
interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class NR Pass-Through Rate": With respect to any Distribution Date,
a per annum rate equal to 5.500%.
"Class R Certificate": A Certificate designated as "Class R" on the
face thereof, in the form of Exhibit A-24 hereto.
"Class S Certificates": Any of the Class S-1, Class S-2 and Class
S-3 Certificates.
"Class S-1 Certificate": A Certificate designated as "Class S-1" on
the face thereof, in the form of Exhibit A-21 hereto.
"Class S-1 Pass-Through Rate": With respect to any Distribution
Date, a per annum rate equal to 7.675%.
"Class S-2 Certificate": A Certificate designated as "Class S-2" on
the face thereof, in the form of Exhibit A-22 hereto.
"Class S-2 Pass-Through Rate": With respect to any Distribution
Date, a per annum rate equal to 8.369%.
"Class S-3 Certificate": A Certificate designated as "Class S-3" on
the face thereof, in the form of Exhibit A-23 hereto.
"Class S-3 Pass-Through Rate": With respect to any Distribution
Date, a per annum rate equal to 10.2083%.
"Class Unpaid Interest Shortfall": As to any Distribution Date and
any Class of Certificates, the excess, if any, of (a) the sum of (i) the
Distributable Certificate Interest in respect of such Class for the immediately
preceding Distribution Date and (ii) any outstanding Class Unpaid Interest
Shortfall payable to such Class on such preceding Distribution Date over (b) the
aggregate amount in respect of interest actually distributed to such Class on
such immediately preceding Distribution Date. The Class Unpaid Interest
Shortfall with respect to any Class of Certificates as of the initial
Distribution Date is zero. No interest shall accrue on Class Unpaid Interest
Shortfalls.
"Class X Certificates": The Class X-1 Certificates and the Class X-2
Certificates.
"Class X-1 Certificate": Any one of the Certificates with a "Class
X-1" designation on the face thereof, substantially in the form of Exhibit A-6
attached hereto, and evidencing a "regular interest" in the Upper-Tier REMIC for
purposes of the REMIC Provisions.
"Class X-1 Notional Amount": As of any date of determination, the
sum of the then Component Notional Amounts of all of the Components.
"Class X-1 Pass-Through Rate": With respect to any Distribution
Date, the weighted average of the Class X-1 Strip Rates for the respective
Components for such Distribution Date (weighted on the basis of the respective
Component Notional Amounts of such Components outstanding immediately prior to
such Distribution Date).
"Class X-1 Strip Rate": (A) With respect to any Class of the
Components (other than those Components that are Class X-2 Components which are
included for purposes of calculating the Class X-2 Notional Amount for such
Distribution Date) for any Distribution Date, a rate per annum equal to (i) the
Weighted Average Net Mortgage Rate for such Distribution Date, minus (ii) the
Pass-Through Rate for the Related Certificates and (B) with respect to any
Components that are Class X-2 Components which are included for purposes of
calculating the Class X-2 Notional Amount for such Distribution Date (i) for any
Distribution Date occurring on or before the Class X-2 Termination Date, (x) the
Weighted Average Net Mortgage Rate for such Distribution Date minus (y) the sum
of the Pass-Through Rate for the Related Certificate and the Class X-2 Strip
Rate for such Component for such Distribution Date, and (ii) for any
Distribution Date occurring after the Class X-2 Termination 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 X-1 Strip Rate be less than zero.
"Class X-2 Certificate": Any one of the Certificates with a "Class
X-2" designation on the face thereof, substantially in the form of Exhibit A-7
attached hereto and evidencing a "regular interest" in the Upper-Tier REMIC for
purposes of the REMIC Provisions.
"Class X-2 Components": Each of Component XX-0-0, Xxxxxxxxx XX-0-0,
Xxxxxxxxx XX-0-0, Component XX-0-0, Xxxxxxxxx XX-0-0, Xxxxxxxxx XX-0-0,
Component XA-2-1, Component XA-2-2, Component XB, Component XC, Component XD,
Component XE, Component XF, Component XG-1, Component XG-2, Component XH-1,
Component XH-2, Component XH-3, Component XJ-1, Component XJ-2 and Component XK.
"Class X-2 Fixed Strip": With respect to each Class X-2 Component,
the rate set forth with respect to such Component below:
CLASS X-2 COMPONENT FIXED STRIP
Class XA-1-1 2.25%
Class XA-1-2 2.25%
Class XA-1-3 2.25%
Class XA-1-4 2.25%
Class XA-1-5 2.25%
Class XA-1-6 2.25%
Class XA-2-1 1.46%
Class XA-2-2 1.46%
Class XB 1.31%
Class XC 1.25%
Class XD 1.16%
Class XE 1.06%
Class XF 0.74%
Class XG-1 0.44%
Class XG-2 1.12%
Class XH-1 1.12%
Class XH-2 1.12%
Class XH-3 1.12%
Class XJ-1 1.12%
Class XJ-2 1.12%
Class XK 1.12%
"Class X-2 Notional Amount": (i) With respect to any Distribution
Date on or prior to the Distribution Date in November 2003, the sum of the then
Component Notional Amounts of Component XX-0-0, Xxxxxxxxx XX-0-0, Xxxxxxxxx
XX-0-0, Component XA-1-5, Component XA-1-6, Component XA-2-1, Component XA-2-2,
Component XB, Component XC, Component XD, Component XE, Component XF, Component
XG-1, Component XG-2, Component XH-1, Component XH-2, Component XH-3, Component
XJ-1, Component XJ-2 and Component XK.
(ii) With respect to any Distribution Date after the
Distribution Date in November 2003 through and including the
Distribution Date in November 2004, the sum of the then Component
Notional Amounts of Component XX-0-0, Xxxxxxxxx XX-0-0, Xxxxxxxxx
XX-0-0, Component XA-1-6, Component XA-2-1, Component XA-2-2,
Component XB, Component XC, Component XD, Component XE, Component
XF, Component XG-1, Component XG-2, Component XH-1, Component XH-2,
Component XH-3, Component XJ-1, Component XJ-2 and Component XK.
(iii) With respect to any Distribution Date after the
Distribution Date in November 2004 through and including the
Distribution Date in November 2005, the sum of the then Component
Notional Amounts of Component XX-0-0, Xxxxxxxxx XX-0-0, Xxxxxxxxx
XX-0-0, Component XA-2-1, Component XA-2-2, Component XB, Component
XC, Component XD, Component XE, Component XF, Component XG-1,
Component XG-2, Component XH-1, Component XH-2, Component XH-3,
Component XJ-1, Component XJ-2 and Component XK.
(iv) With respect to any Distribution Date after the
Distribution Date in November 2005 through and including the
Distribution Date in November 2006, the sum of the then Component
Notional Amounts of Component XX-0-0, Xxxxxxxxx XX-0-0, Component
XA-2-1, Component XA-2-2, Component XB, Component XC, Component XD,
Component XE, Component XF, Component XG-1, Component XG-2,
Component XH-1, Component XH-2, Component XH-3 and Component XJ-2.
(v) With respect to any Distribution Date after the
Distribution Date in November 2006 through and including the
Distribution Date in November 2007, the sum of the then Component
Notional Amounts of Component XA-1-6, Component XA-2-1, Component
XA-2-2, Component XB, Component XC, Component XD, Component XE,
Component XF, Component XG-1, Component XG-2, Component XH-2 and
Component XH-3.
(vi) With respect to any Distribution Date after the
Distribution Date in November 2007 through and including the
Distribution Date in November 2008, the sum of the then Component
Notional Amounts of Component XA-2-1, Component XA-2-2, Component
XB, Component XC, Component XD, Component XE, Component XF,
Component XG-1, Component XG-2 and Component LH-3.
(vii) With respect to any Distribution Date after the
Distribution Date in November 2008 through and including the
Distribution Date in November 2009, the sum of the then Component
Notional Amounts of Component XA-2-2, Component XB, Component XC,
Component XD, Component XE, Component XF and Component XG-2.
(viii) after the Distribution Date in November 2009, $0.
"Class X-2 Pass-Through Rate": With respect to any Distribution
Date, the weighted average of the Class X-2 Strip Rates for the respective Class
X-2 Components that are Class X-2 Components which are included for purposes of
calculating the Class X-2 Notional Amount for such Distribution Date (weighted
on the basis of the respective Component Notional Amounts of such Components
outstanding immediately prior to such Distribution Date).
"Class X-2 Strip Rate": With respect to each Class X-2 Components
for any Distribution Date, a rate per annum equal to (i) for any Distribution
Date occurring on or before the Class X-2 Termination Date, the lesser of (A)
the Weighted Average Net Mortgage Rate for such Distribution Date, minus the sum
of (y) the Pass-Through Rate for the Related Certificates and (x) 0.01% (1 basis
point) (provided that in no event shall any Class X-2 Strip Rate be less than
zero) or (B) the Class X-2 Fixed Strip and (ii) for any Distribution Date
occurring after the Class X-2 Termination Date, 0% per annum.
"Class X-2 Termination Date": The Distribution Date in November
2009.
"Closing Date": November 4, 2002.
"CMSA": The Commercial Mortgage Securities Association, or any
successor organization reasonably acceptable to the Trustee and the Servicer.
"CMSA Bond Level File": The monthly report in the "CMSA Bond Level
File" format substantially in the form of and containing the information called
for therein, a current form of which is attached hereto as Exhibit M-1, or such
other form for the presentation of such information as may be approved from time
to time by the CMSA for commercial mortgage securities transactions generally
and, insofar as it requires the presentation of information in addition to that
called for by the form of the "CMSA Bond Level File" available as of the Closing
Date on the CMSA website, as is reasonably acceptable to the Trustee.
"CMSA Collateral Summary File": The monthly report in the "CMSA
Collateral Summary File" format substantially in the form of and containing the
information called for therein, a current form of which is attached hereto as
Exhibit M-2, or such other form for the presentation of such information as may
be approved from time to time by the CMSA for commercial mortgage securities
transactions generally and, insofar as it requires the presentation of
information in addition to that called for by the form of the "CMSA Collateral
Summary File" available as of the Closing Date on the CMSA website, is
reasonably acceptable to the Trustee.
"CMSA Financial File": The monthly report in the "CMSA Financial
File" format substantially in the form of and containing the information called
for therein for the Mortgage Loans, a current form of which is attached hereto
as Exhibit M-3, or such other form for the presentation of such information as
may be approved from time to time by the CMSA for commercial mortgage securities
transactions generally and, insofar as it requires the presentation of
information in addition to that called for by the form of the "CMSA Financial
File" available as of the Closing Date on the CMSA website, is reasonably
acceptable to the Servicer or the Special Servicer, as applicable.
"CMSA Historical Liquidation Report": The monthly report in the
"Historical Liquidation File" format substantially in the form of and containing
the information called for therein for the Mortgage Loans, a current form of
which is attached hereto as Exhibit M-9, or such other form for the presentation
of such information as may be approved from time to time by the CMSA for
commercial mortgage securities transactions generally 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 Servicer or the Special
Servicer, as applicable.
"CMSA Historical Loan Modification Report": The monthly report in
the "Historical Loan Modification Report" format substantially in the form of
and containing the information called for therein for the Mortgage Loans, a
current form of which is attached hereto as Exhibit M-10, or such other form for
the presentation of such information as may be approved from time to time by the
CMSA for commercial mortgage securities transactions generally and, insofar as
it requires the presentation of information in addition to that called for by
the form of the "Historical Loan Modification Report" available as of the
Closing Date on the CMSA website, is reasonably acceptable to the Servicer or
the Special Servicer, as applicable.
"CMSA Investor Reporting Package (IRP)": The collection of reports
specified by the CMSA from time to time as the "CMSA Investor Reporting
Package." As of the Closing Date, the CMSA IRP contains six electronic files
((1) CMSA Loan Set-up File, (2) CMSA Loan Periodic Update File, (3) CMSA
Property File, (4) CMSA Bond Level File, (5) CMSA Collateral Summary File and
(6) CMSA Financial File) and eight surveillance reports ((1) Servicer Watch
List, (2) Delinquent Loan Status Report, (3) CMSA REO Status Report, (4)
Comparative Financial Status Report, (5) Historical Loan Modification Report,
(6) CMSA Historical Liquidation Report, (7) CMSA Operating Statement Analysis
Report and (8) CMSA NOI Adjustment Worksheet). The CMSA IRP shall be
substantially in the form of, and containing the information called for in, the
downloadable forms of the "CMSA IRP" available as of the Closing Date on the
CMSA website, or such other form for the presentation of such information and
containing such additional information as may from time to time be approved by
the CMSA for commercial mortgage-backed securities transaction generally and,
insofar as it requires the presentation of information in addition to that
called for by the form of the "CMSA IRP" available as of the Closing Date on the
CMSA website, as is reasonably acceptable to the Servicer, the Special Servicer
and the Trustee. For the purposes of the production of the Comparative Financial
Status Report by the Servicer or the Special Servicer of any such report that is
required to state information for any period prior to the Cut-off Date, the
Servicer or the Special Servicer, as the case may be, may conclusively rely
(without independent verification), absent manifest error, on information
provided to it by the Mortgage Loan Sellers or by the related Mortgagor or (x)
in the case of such a report produced by the Servicer, by the Special Servicer
(if other than the Servicer or an Affiliate thereof) and (y) in the case of such
a report produced by the Special Servicer, by the Servicer (if other than the
Special Servicer or an Affiliate thereof).
"CMSA Loan Periodic Update File": The monthly report in the "CMSA
Loan Periodic Update File" format substantially in the form of and containing
the information called for therein for the Mortgage Loans, a current form of
which is attached hereto as Exhibit M-4, or such other form for the presentation
of such information as may be approved from time to time by the CMSA for
commercial mortgage securities transactions generally and, insofar as it
requires the presentation of information in addition to that called for by the
form of the "CMSA Loan Periodic Update File" available as of the Closing Date on
the CMSA website, as is reasonably acceptable to the Servicer and the Trustee.
"CMSA Loan Setup File": The report in the "CMSA Loan Setup File"
format substantially in the form of and containing the information called for
therein for the Mortgage Loans, a current form of which is attached hereto as
Exhibit M-5, or such other form for the presentation of such information as may
be approved from time to time by the CMSA for commercial mortgage securities
transactions generally and, insofar as it requires the presentation of
information in addition to that called for by the form of the "CMSA Loan Setup
File" available as of the Closing Date on the CMSA website, is reasonably
acceptable to the Servicer.
"CMSA NOI Adjustment Worksheet": The monthly report in the "NOI
Adjustment Worksheet" format substantially in the form of and containing the
information called for therein for the Mortgage Loans, a current form of which
is attached hereto as Exhibit M-11, or such other form for the presentation of
such information as may be approved from time to time by the CMSA for commercial
mortgage securities transactions generally and, insofar as it requires the
presentation of information in addition to that called for by the form of the
"CMSA NOI Adjustment Worksheet" available as of the Closing Date on the CMSA
website, is reasonably acceptable to the Servicer or the Special Servicer, as
applicable.
"CMSA Operating Statement Analysis Report": The monthly report in
the "Operating Statement Analysis Report" format substantially in the form of
and containing the information called for therein for the Mortgage Loans, a
current form of which is attached hereto as Exhibit M-12, or such other form for
the presentation of such information as may be approved from time to time by the
CMSA for commercial mortgage securities transactions generally and, insofar as
it requires the presentation of information in addition to that called for by
the form of the "CMSA Operating Statement Analysis Report" available as of the
Closing Date on the CMSA website, is reasonably acceptable to the Servicer or
the Special Servicer, as applicable.
"CMSA Property File": The monthly report in the "CMSA Property File"
format substantially in the form of and containing the information called for
therein for the Mortgage Loans, a current form of which is attached hereto as
Exhibit M-6, or such other form for the presentation of such information as may
be approved from time to time by the CMSA for commercial mortgage securities
transactions generally and, insofar as it requires the presentation of
information in addition to that called for by the form of the "CMSA Property
File" available as of the Closing Date on the CMSA website, is reasonably
acceptable to the Servicer or the Special Servicer, as applicable.
"CMSA REO Status Report": The report in the "REO Status Report"
format substantially in the form of and containing the information called for
therein for the Mortgage Loans, a current form of which is attached hereto as
Exhibit M-13, or such other form for the presentation of such information as may
be approved from time to time by the CMSA for commercial mortgage securities
transactions generally and, insofar as it requires the presentation of
information in addition to that called for by the form of the "CMSA REO Status
Report" available as of the Closing Date on the CMSA website, is reasonably
acceptable to the Servicer or the Special Servicer, as applicable.
"CMSA Servicer Watch List": As of each Determination Date a report,
including and identifying each Mortgage Loan that is not a Specially Serviced
Mortgage Loan, satisfying the "CMSA Servicer Watch List" criteria approved from
time to time by the CMSA and containing the information called for therein.
Until such criteria are approved by the CMSA, such report shall satisfy the
criteria set forth on Exhibit M-14 attached hereto and such report shall be
replaced with approved criteria.
"Code": The Internal Revenue Code of 1986, as amended from time to
time, and applicable final or temporary regulations of the U.S. Department of
the Treasury issued pursuant thereto.
"Collateral Support Deficit": As defined in Section 4.04.
"Commission": The Securities and Exchange Commission.
"Companion Distribution Account": With respect to the Companion
Loans, the separate account created and maintained by the Companion Paying Agent
pursuant to Section 3.04(b) and held on behalf of the Companion Holders, which
shall be entitled "Wachovia Bank, National Association, as Companion Paying
Agent for the Companion Holders of the Companion Loans relating to the X.X.
Xxxxxx Xxxxx Commercial Mortgage Securities Corp., Commercial Mortgage
Pass-Through Certificates, Series 2002-CIBC5." The Companion Distribution
Account shall not be an asset of the Trust Fund, but instead shall be held by
the Companion Paying Agent on behalf of the applicable Companion Holder. Any
such account shall be an Eligible Account.
"Companion Holder": With respect to any Companion Loan, the owner of
the Mortgage Note representing such Companion Loan. As of the Closing Date, the
Companion Holders of the Companion Loans are JPMorgan Chase Bank with respect to
the Hackberry AB Mortgage Loan and CIBC Inc. with respect to the Super
8-Manassas AB Mortgage Loan.
"Companion Loan": As defined in the Preliminary Statement.
"Companion Paying Agent": The Servicer in its role as Companion
Paying Agent appointed pursuant to Section 3.32.
"Companion Register": The register maintained by the Companion
Paying Agent pursuant to Section 8.15.
"CMSA Comparative Financial Status Report": The monthly report in
"Comparative Financial Status Report" format substantially in the form of and
containing the information called for therein for the Mortgage Loans, a current
form of which is attached hereto as Exhibit M-7, or such other form for the
presentation of such information as may be approved from time to time by the
CMSA for commercial mortgage securities transactions generally 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 Servicer or
the Special Servicer, as applicable, setting forth, among other things, (A) the
most recent property inspection date for each Mortgaged Property to be covered
thereby and (B) in each instance based on (1) the rent roll for the
corresponding reporting period and (2) to the extent in the possession or under
the control of the Servicer (i) for year end financial reports (in descending
order of desirability), (a) trailing 12-months normalized financial information,
or (b) if the information in clause (a) is not available, normalized financial
information based on no less than nine months of operating statements
(annualized), or (c) if the information in clauses (a) and (b) is not available,
the most recent current year-to-date financial information (annualized) and (ii)
with respect to quarterly reports, the current year-to-date financial
information: (x) the occupancy and debt service coverage ratio for each Mortgage
Loan or Mortgaged Property, as applicable, to be covered thereby; and (y) the
revenue, expense, net operating income and net cash flow for each Mortgaged
Property to be covered thereby. For the purposes of the production by the
Servicer or the Special Servicer of any such report that is required to state
information with respect to any Mortgage Loan for any period prior to the
Cut-Off Date, the Servicer or the 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
Mortgagor or (x) in the case of such a report produced by the Servicer, by the
Special Servicer (if other than the Servicer or an Affiliate thereof) and (y) in
the case of such a report produced by the Special Servicer, by the Servicer (if
other than the Special Servicer or an Affiliate thereof).
"Compensating Interest Payments": With respect to each Mortgage Loan
(or REO Loan), an amount as of any Distribution Date equal to the lesser of (i)
the aggregate amount of Prepayment Interest Shortfalls, and (ii) the aggregate
of (A) that portion of Servicing Fees for such Distribution Date that is, in the
case of each and every Mortgage Loan and REO Loan for which such Servicing Fees
are being paid for such Distribution Date, calculated at 0.02% per annum, and
(B) all Prepayment Interest Excesses and, to the extent earned on Principal
Prepayments, Net Investment Earnings for such Distribution Date. However, if a
Prepayment Interest shortfall occurs as a result of the Servicer's allowing the
related Mortgagor to deviate from the terms of the related mortgage loan
documents regarding Principal Prepayments (other than (X) subsequent to a
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 Directing
Certificateholder), then, for purposes of calculating the Compensating Interest
Payment for the related Distribution Date, the amount in clause (ii) above shall
be the aggregate of (A) all Servicing Fees for such Distribution Date and (B)
all Prepayment Interest Excesses and, to the extent earned on Principal
Prepayments, Net Investment Earnings received by the Servicer for such
Distribution Date, and in no event will the rights of the Certificateholders to
offset of the aggregate Prepayment Interest Shortfalls be cumulative.
"Component": Each of Component XX-0-0, Xxxxxxxxx XX-0-0, Xxxxxxxxx
XX-0-0, Component XX-0-0, Xxxxxxxxx XX-0-0, Xxxxxxxxx XX-0-0, Component XA-2-1,
Component XA-2-2, Component XB, Component XC, Component XD, Component XE,
Component XF-1, Component XF-2, Component XG-1, Component XG-2, Component XX-0,
Xxxxxxxxx XX-0, Xxxxxxxxx XX-0, Xxxxxxxxx XX-0, Component XJ-2, Component XK,
Component XL, Component XM, Component XN and Component XNR.
"Component Notional Amount": With respect to each Component and any
date of determination, an amount equal to the then Lower-Tier Principal Amount
of its Related Uncertificated Lower-Tier Interest.
"Component XA-1-1": One of the 26 components of the Class X-1
Certificates and one of the 21 components of the Class X-2 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 XA-1-2": One of the 26 components of the Class X-1
Certificates and one of the 21 components of the Class X-2 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 XA-1-3": One of the 26 components of the Class X-1
Certificates and one of the 21 components of the Class X-2 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 XA-1-4": One of the 26 components of the Class X-1
Certificates and one of the 21 components of the Class X-2 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 XA-1-5": One of the 26 components of the Class X-1
Certificates and one of the 21 components of the Class X-2 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 XA-1-6": One of the 26 components of the Class X-1
Certificates and one of the 21 components of the Class X-2 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 XA-2-1": One of the 26 components of the Class X-1
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 XA-2-2": One of the 26 components of the Class X-1
Certificates and one of the 21 components of the Class X-2 Certificates having a
Component Notional Amount equal to the current Lower-Tier Principal Amount of
the Class LA-2-2 Uncertificated Interest as of any date of determination.
"Component XB": One of the 26 components of the Class X-1
Certificates and one of the 21 components of the Class X-2 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 XC": One of the 26 components of the Class X-1
Certificates and one of the 21 components of the Class X-2 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 XD": One of the 26 components of the Class X-1
Certificates and one of the 21 components of the Class X-2 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 XE": One of the 26 components of the Class X-1
Certificates and one of the 21 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LE-1 Uncertificated Interest as of any date of determination.
"Component XF": One of the 26 components of the Class X-1
Certificates and one of the 21 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LF-1 Uncertificated Interest as of any date of determination.
"Component XG-1": One of the 26 components of the Class X-1
Certificates and one of the 21 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LG-1 Uncertificated Interest as of any date of determination.
"Component XG-2": One of the 26 components of the Class X-1
Certificates and one of the 21 components of the Class X-2 Certificates having a
Component Notional Amount equal to the current Lower-Tier Principal Amount of
the Class LG-2 Uncertificated Interest as of any date of determination.
"Component XH-1": One of the 26 components of the Class X-1
Certificates and one of the 21 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LH-1 Uncertificated Interest as of any date of determination.
"Component XH-2": One of the 26 components of the Class X-1
Certificates and one of the 21 components of the Class X-2 Certificates having a
Component Notional Amount equal to the current Lower-Tier Principal Amount of
the Class LH-2 Uncertificated Interest as of any date of determination.
"Component XH-3": One of the 26 components of the Class X-1
Certificates and one of the 21 components of the Class X-2 Certificates having a
Component Notional Amount equal to the current Lower-Tier Principal Amount of
the Class LH-3 Uncertificated Interest as of any date of determination.
"Component XJ-1": One of the 26 components of the Class X-1
Certificates and one of the 21 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LJ-1 Uncertificated Interest as of any date of determination.
"Component XJ-2": One of the 26 components of the Class X-1
Certificates and one of the 21 components of the Class X-2 Certificates having a
Component Notional Amount equal to the then current Lower-Tier Principal Amount
of the Class LJ-2 Uncertificated Interest as of any date of determination.
"Component XK": One of the 26 components of the Class X-1
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 XL": One of the 26 components of the Class X-1
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 XM": One of the 26 components of the Class X-1
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 XN": One of the 26 components of the Class X-1
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 XNR": One of the 26 components of the Class X-1
Certificates having a Component Notional Amount equal to the then current
Lower-Tier Principal Amount of the Class LNR Uncertificated Interest as of any
date of determination.
"Controlling Class": As of any date of determination, the most
subordinate Class of Regular Certificates (other than the Class X Certificates)
then outstanding that has a then aggregate Certificate Balance at least equal to
25% of the initial Certificate Balance of such Class of Certificates. As of the
Closing Date, the Controlling Class will be the Class NR Certificates.
"Controlling Class Certificateholder's Option Period": As defined in
Section 3.18 (a)(ii).
"Controlling Class Certificateholders": Each Holder (or Certificate
Owner, if applicable) of a Certificate of the Controlling Class as certified by
the Certificate Registrar to the Trustee from time to time by such Holder (or
Certificate Owner).
"Controlling Class Option Holder": As defined in Section 3.18
(a)(i).
"Corporate Trust Office": The principal corporate trust office of
the Trustee at which at any particular time its corporate trust business with
respect to this Agreement shall be administered, which office at the date of the
execution of this Agreement is located for Certificate transfer purposes at
Xxxxx Fargo Center, Sixth and Xxxxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000,
and for all other purposes at 0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000,
Attention: Corporate Trust Services (CMBS), X.X. Xxxxxx Chase Commercial
Mortgage Securities Corp., Series 2002-CIBC5 (telecopy number (000) 000-0000).
"Corrected Mortgage Loan": Any Specially Serviced Mortgage Loan that
has become current and remained current for three consecutive Monthly Payments
(for such purposes taking into account any modification or amendment of such
Mortgage Loan), and (provided that no additional default is foreseeable in the
reasonable judgment of the Special Servicer) the servicing of which the Special
Servicer has returned to the Servicer pursuant to Section 3.21(a).
"Custodian": A Person who is at any time appointed by the Trustee
pursuant to Section 8.11 as a document custodian for the Mortgage Files, which
Person shall not be the Depositor, either of the Mortgage Loan Sellers or an
Affiliate of any of them. The Trustee shall be the initial Custodian.
"Cut-off Date": With respect to each Mortgage Loan, the related Due
Date of such Mortgage Loan in November 2002, or, with respect to those Mortgage
Loans that have their first Due Date after November 2002, November 1, 2002.
"Cut-off Date Principal Balance": With respect to any Mortgage Loan,
the outstanding principal balance of such Mortgage Loan as of the Cut-off Date,
after application of all payments of principal due on or before such date,
whether or not received.
"Xxxxxx Riverside Intercreditor Agreement": That certain
Subordination and Intercreditor Agreement, dated November 4, 2002 between
JPMorgan Chase Bank, as senior lender, and Miami-Dade County, Florida, as
subordinated lender. The Xxxxxx Riverside Intercreditor Agreement relates to the
Mortgage Loan identified on the Mortgage Loan Schedule as loan number 75.
"Xxxxxx Riverside Subordinated Lender": The "Subordinated Lender" as
defined in the Xxxxxx Riverside Intercreditor Agreement.
"Debt Service Coverage Ratio": With respect to any Mortgage Loan for
any twelve month period covered by an annual operating statement for the related
Mortgaged Property, the ratio of (i) Net Operating Income produced by the
related Mortgaged Property during such period to (ii) the aggregate amount of
Monthly Payments (other than any Balloon Payment) due under such Mortgage Loan
during such period, provided that with respect to the Mortgage Loans indicated
on Schedule 4, which pay interest only for a specified period of time set forth
in the related Mortgage Loan documents and then pay principal and interest, the
related Monthly Payment will be calculated (for purposes of this definition
only) to include interest and principal (based on the amortization schedule
indicated on Schedule 4).
"Default Interest": With respect to any Mortgage Loan or Companion
Loan, all interest accrued in respect of such Mortgage Loan or Companion Loan
during such Due Period provided for in the related Mortgage Note or Mortgage as
a result of a default (exclusive of late payment charges) that is in excess of
interest at the related Mortgage Rate accrued on the unpaid principal balance of
such Mortgage Loan or Companion Loan outstanding from time to time.
"Defaulted Mortgage Loan": A Mortgage Loan that is delinquent at
least sixty days in respect of its Monthly Payments or more than thirty days (or
sixty days with respect to the circumstances described in clause (ii) of the
definition of Servicing Transfer Event) delinquent in respect of its Balloon
Payment, if any, in either case such delinquency to be determined without giving
effect to any grace period permitted by the related Mortgage or Mortgage Note
and without regard to any acceleration of payments under the related Mortgage
and Mortgage Note.
"Defaulting Party": As defined in Section 7.01(b).
"Defect": As defined in Section 2.02(f).
"Deficient Valuation": With respect to any Mortgage Loan, a
valuation by a court of competent jurisdiction of the Mortgaged Property in an
amount less than the then outstanding principal balance of the Mortgage Loan,
which valuation results from a proceeding initiated under the Bankruptcy Code.
"Definitive Certificate": Any Certificate in definitive, fully
registered form without interest coupons.
"Delinquent Loan Status Report": The monthly report in the
"Delinquent Loan Status Report" format substantially in the form of and
containing the information called for therein for the Mortgage Loans, a current
form of which is attached hereto as Exhibit M-8, or such other form for the
presentation of such information as may be approved from time to time by the
CMSA for commercial mortgage securities transactions generally 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 Servicer or the Special
Servicer, as applicable.
"Denomination": As defined in Section 5.01(a).
"Depositor": X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.,
a Delaware corporation, or its successor in interest.
"Depository": The Depository Trust Company, or any successor
Depository 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": 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.
"Depository Rules": As defined in Section 5.02(b).
"Determination Date": With respect to any Distribution Date, the
fourth Business Day preceding such Distribution Date.
"Determination Information": As defined in Section 3.18 (a)(i).
"Directing Certificateholder": The Controlling Class
Certificateholder selected by more than 50% of the Controlling Class
Certificateholders, by Certificate Balance, as certified by the Certificate
Registrar from time to time; provided, however, that (i) absent such selection,
or (ii) until a Directing Certificateholder is so selected or (iii) upon receipt
of a notice from a majority of the Controlling Class Certificateholders, by
Certificate Balance, that a Directing Certificateholder is no longer designated,
the Controlling Class Certificateholder that owns the largest aggregate
Certificate Balance of the Controlling Class will be the Directing
Certificateholder which will initially be ARCap CMBS Fund REIT, Inc.
"Directly Operate": With respect to any REO Property, the furnishing
or rendering of services to the tenants thereof, that are not customarily
provided to tenants in connection with the rental of space "for occupancy only"
within the meaning of Treasury Regulations Section 1.512(b)-1(c)(5), the
management or operation of such REO Property, the holding of such REO Property
primarily for sale to customers, the use of such REO Property in a trade or
business conducted by the Trust Fund or the performance of any construction work
on the REO Property (other than the completion of a building or improvement,
where more than 10% of the construction of such building or improvement was
completed before default became imminent), other than through an Independent
Contractor; provided, however, that the Trustee (or the Special Servicer on
behalf of the Trustee) shall not be considered to Directly Operate an REO
Property solely because the Trustee (or the Special Servicer on behalf of the
Trustee) establishes rental terms, chooses tenants, enters into or renews
leases, deals with taxes and insurance or makes decisions as to repairs or
capital expenditures with respect to such REO Property or takes other actions
consistent with Treasury Regulations Section 1.856-4(b)(5)(ii).
"Disqualified Organization": Any of (i) the United States, any State
or political subdivision thereof, any possession of the United States or any
agency or instrumentality of any of the foregoing (other than an instrumentality
which is a corporation if all of its activities are subject to tax and a
majority of its board of directors is not selected by such governmental unit),
(ii) a foreign government, any international organization or any agency or
instrumentality of any of the foregoing, (iii) any organization (other than
certain farmers' cooperatives described in Section 521 of the Code) which is
exempt from the tax imposed by Chapter 1 of the Code (including the tax imposed
by Section 511 of the Code on unrelated business taxable income), (iv) rural
electric and telephone cooperatives described in Section 1381(a)(2)(C) of the
Code and (v) any other Person so designated by the Trustee based upon an Opinion
of Counsel as provided to the Trustee (at no expense to the Trustee) that the
holding of an Ownership Interest in a Residual Certificate by such Person may
cause the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan REMIC to fail to
qualify as a REMIC or any Person having an Ownership Interest in any Class of
Certificates (other than such Person) to incur a liability for any federal tax
imposed under the Code that would not otherwise be imposed but for the Transfer
of an Ownership Interest in a Residual Certificate to such Person. The terms
"United States," "State" and "international organization" shall have the
meanings set forth in Section 7701 of the Code or successor provisions.
"Distributable Certificate Interest": With respect to any
Distribution Date, as to any Class of Regular Certificates, the Accrued
Certificate Interest in respect of such Class of Regular Certificates for such
Distribution Date, reduced (to not less than zero) by any allocations to such
Class of Certificates (other than in the case of the Class X Certificates) of
(i) the product of (a) any Net Aggregate Prepayment Interest Shortfall for such
Distribution Date, multiplied by (b) a fraction, expressed as a decimal, the
numerator of which is the Accrued Certificate Interest in respect of such Class
of Certificates for such Distribution Date, and the denominator of which is the
aggregate Accrued Certificate Interest in respect of all the Classes of Regular
Certificates (other than the Class X Certificates) for such Distribution Date,
and (ii) any Certificate Deferred Interest for such Distribution Date allocated
to such Class pursuant to Section 4.06(a). With respect to any Class of Class S
Certificates, the Accrued Certificate Interest in respect of such Class of
Certificates for such Distribution Date, reduced (to not less than zero) by (i)
any allocations, if any, of the Net Aggregate Prepayment Interest Shortfall
related to the Simon Mortgage Loan for such Distribution Date allocated to such
Class of Class S Certificates as set forth below, and (ii) any Certificate
Deferred Interest for such Distribution Date allocated to such Class pursuant to
Section 4.06(a). The Net Aggregate Prepayment Interest Shortfall for the Simon
Mortgage Loan, if any, for each Distribution Date shall be allocated, up to an
amount equal to the lesser of (i) any such Net Aggregate Prepayment Interest
Shortfall and (ii) any Accrued Certificate Interest in respect of the particular
Class of Class S Certificates for such Distribution Date, first, to the Class
S-3 Certificates, then to the Class S-2 Certificates, and then to the Class S-1
Certificates, and, thereafter, if and to the extent that any portion of such Net
Aggregate Prepayment Interest Shortfall remains unallocated, among the Regular
Certificates as described in the second preceding sentence above.
"Distributable Simon Non-Pooled Component Interest": For any
Distribution Date, the Accrued Simon Non-Pooled Component Interest for such
Distribution Date, reduced by (i) the amount of any Prepayment Interest
Shortfall with respect to the Simon Mortgage Loan for such Distribution Date in
excess of the amount deposited by the Servicer in the Certificate Account for
such Distribution Date pursuant to Section 3.19 with respect to the Simon
Mortgage Loan, and (ii) the amount of any Certificate Deferred Interest
allocated to any Class of Class S Certificates in accordance with Section 4.06.
"Distributable Simon Pooled Component Interest": For any
Distribution Date, the Accrued Simon Pooled Component Interest for such
Distribution Date, reduced by (i) the amount described in the last sentence of
the definition of Distributable Certificate Interest for such Distribution Date
relating to the Simon Mortgage Loan, and (ii) the amount of any Certificate
Deferred Interest allocated to any Class of Regular Certificates with respect of
the Simon Mortgage Loan in accordance with Section 4.06.
"Distribution Accounts": Collectively, the Upper-Tier Distribution
Account, the Lower-Tier Distribution Account, the Excess Interest Distribution
Account and Loan REMIC Distribution Account, all of which may be subaccounts of
a single account.
"Distribution Date": The 12th day of each month, or, if such 12th
day is not a Business Day, on the next succeeding Business Day, beginning in
December 2002.
"Due Date": With respect to (i) any Mortgage Loan on or prior to its
Maturity Date, the day of the month set forth in the related Mortgage Note on
which each Monthly Payment thereon is scheduled to be first due, (ii) any
Mortgage Loan after the Maturity Date therefor, the day of the month set forth
in the related Mortgage Note on which each Monthly Payment on such Mortgage Loan
or Companion Loan had been scheduled to be first due, and (iii) any REO Loan,
the day of the month set forth in the related Mortgage Note on which each
Monthly Payment on the related Mortgage Loan had been scheduled to be first due.
"Due Period": With respect to any Distribution Date and any Mortgage
Loan, the period commencing on the day immediately succeeding the Due Date for
such Mortgage Loan occurring in the month preceding the month in which such
Distribution Date occurs and ending on and including the Due Date for such
Mortgage Loan occurring in the month in which such Distribution Date occurs.
Notwithstanding the foregoing, in the event that the last day of a Due Period
(or applicable grace period) is not a Business Day, any payments received with
respect to the Mortgage Loans relating to such Due Period on the Business Day
immediately following such day shall be deemed to have been received during such
Due Period and not during any other Due Period.
"Eligible Account": Either (i) a segregated account or accounts
maintained with a federal or state chartered depository institution or trust
company (including the Trustee), the long-term unsecured debt obligations of
which are rated at least (A) "Aa2" by Moody's or "A2" provided that the short
term obligations of which are rated "P-1" by Moody's and (B) "AA-" by Fitch, if
the deposits are to be held in such account 30 days or more or the short-term
debt obligations of which have a short-term rating of not less than "P-1" from
Moody's, and "F-1+" from Fitch, if the deposits are to be held in such account
for less than 30 days or such other account or accounts with respect to which
each of the Rating Agencies shall have confirmed in writing that the then
current rating assigned to any of the Certificates that are currently being
rated by such Rating Agency will not be qualified, downgraded or withdrawn by
reason thereof, or (ii) a segregated trust account or accounts maintained with
the corporate trust department of a federal or state chartered depository
institution or trust company that, in either case, has a combined capital and
surplus of at least $50,000,000 and has corporate trust powers, acting in its
fiduciary capacity, provided that any state chartered depository institution or
trust company is subject to regulation regarding fiduciary funds substantially
similar to 12 C.F.R. ss. 9.10(b). Eligible Accounts may bear interest. No
Eligible Account shall be evidenced by a certificate of deposit, passbook or
other similar instrument.
"Eligible Investor": Either (i) a Qualified Institutional Buyer that
is purchasing for its own account or for the account of a Qualified
Institutional Buyer to whom notice is given that the offer, sale or transfer is
being made in reliance on Rule 144A or (ii) an Institutional Accredited
Investor.
"Environmental Assessment": A "Phase I assessment" as described in,
and meeting the criteria of, the American Society of Testing Materials Standard
Sections 1527-99 or any successor thereto published by the American Society of
Testing Materials.
"Environmental Indemnity Agreement": With respect to any Mortgage
Loan, any agreement between the Mortgagor (or a guarantor thereof) and the
originator of such Mortgage Loan relating to the Mortgagor's obligation to
remediate or monitor or indemnify for any environmental problems relating to the
related Mortgaged Property.
"ERISA": The Employee Retirement Income Security Act of 1974, as
amended.
"ERISA Prohibited Holder": As defined in Section 5.02(c)(i)(A).
"ERISA Restricted Certificate": Any Class H, Class J, Class K, Class
L, Class M, Class N, Class NR, Class S-1, Class S-2 or Class S-3 Certificate;
provided that any such Certificate: (a) will cease to be considered an ERISA
Restricted Certificate and (b) will cease to be subject to the transfer
restrictions contained in Section 5.02(c) if, as of the date of a proposed
transfer of such Certificate, either (i) it is rated in one of the four highest
generic ratings categories by a Rating Agency or (ii) relevant provisions of
ERISA would permit the transfer of such Certificate to a Plan.
"Escrow Payment": Any payment received by the Servicer or the
Special Servicer for the account of any Mortgagor for application toward the
payment of real estate taxes, assessments, insurance premiums, ground lease
rents and similar items in respect of the related Mortgaged Property, including
amounts for deposit to any reserve account.
"Event of Default": One or more of the events described in Section
7.01(a).
"Excess Interest": With respect to each of the Mortgage Loans
indicated on the Mortgage Loan Schedule as having a Revised Rate, interest
accrued on such Mortgage Loan after the Anticipated Repayment Date allocable to
the Excess Rate, including all interest accrued thereon. The Excess Interest
shall not be an asset of the Loan REMIC, Lower-Tier REMIC or the Upper-Tier
REMIC formed hereunder.
"Excess Interest Distribution Account": The trust account or
accounts created and maintained as a separate account or accounts (or as a
subaccount of the Distribution Account) by the Trustee pursuant to Section
3.04(c), which shall be entitled "Xxxxx Fargo Bank Minnesota, N.A., as Trustee,
in trust for the registered Holders of X.X. Xxxxxx Chase Commercial Mortgage
Securities Corp., Commercial Mortgage Pass-Through Certificates, Series
2002-CIBC5, Excess Interest Distribution Account," and which must be an Eligible
Account (or as a subaccount of the Distribution Account). The Excess Interest
Distribution Account shall not be an asset of the Loan REMIC, Lower-Tier REMIC
or the Upper-Tier REMIC formed hereunder.
"Excess Rate": With respect to each of the Mortgage Loans indicated
on the Mortgage Loan Schedule as having a Revised Rate, the excess of (i) the
applicable Revised Rate over (ii) the applicable Mortgage Rate, each as set
forth in the Mortgage Loan Schedule.
"Exchange Act": The Securities Exchange Act of 1934, as amended from
time to time.
"Xxxxxx Xxx": Federal National Mortgage Association or any successor
thereto.
"FDIC": Federal Deposit Insurance Corporation or any successor.
"Final Recovery Determination": A reasonable determination by the
Special Servicer, in consultation with the Directing Certificateholder, with
respect to any Defaulted Mortgage Loan (and, if applicable, any defaulted
Companion Loan) or REO Property (other than a Mortgage Loan or REO Property, as
the case may be, that was purchased by any of the Mortgage Loan Sellers pursuant
to Section 3 of the applicable Mortgage Loan Purchase Agreement, the Controlling
Class Option Holder, the Companion Holder or the Special Servicer pursuant to
Section 3.18(b) or the Servicer, Special Servicer, the Holders of the
Controlling Class, or the Holders of the Class LR Certificates pursuant to
Section 9.01) that there has been a recovery of all Insurance and Condemnation
Proceeds, Liquidation Proceeds, REO Revenue and other payments or recoveries
that, in the Special Servicer's judgment, which judgment was exercised without
regard to any obligation of the Special Servicer to make payments from its own
funds pursuant to Section 3.07(b), will ultimately be recoverable.
"Fitch": Fitch, Inc., and its successors in interest. If neither
Fitch nor any successor remains in existence, "Fitch" shall be deemed to refer
to such other nationally recognized statistical rating agency or other
comparable Person designated by the Depositor, notice of which designation shall
be given to the Trustee, the Servicer and the Special Servicer, and specific
ratings of Fitch herein referenced shall be deemed to refer to the equivalent
ratings of the party so designated.
"Xxxxxxx Mac": Federal Home Loan Mortgage Corporation or any
successor thereto.
"Gain-on-Sale Proceeds": With respect to any Mortgage Loan, the
excess of (i) Liquidation Proceeds of the Mortgage Loan or related REO Property
net of any related Liquidation Expenses, P&I Advances, Liquidation Fees,
interest on Advances, Servicing Fees, Special Servicing Fees and additional
Trust Fund expenses over (ii) the Purchase Price for such Mortgage Loan on the
date on which such Liquidation Proceeds were received.
"Gain-on-Sale Reserve Account": A segregated custodial account or
accounts created and maintained by the Trustee pursuant to Section 3.04(d) in
trust for the Certificateholders, which shall be entitled "Xxxxx Fargo Bank
Minnesota, N.A., as Trustee, in trust for the registered Holders of X.X. Xxxxxx
Xxxxx Commercial Mortgage Securities Corp., Commercial Mortgage Pass-Through
Certificates, Series 2002-CIBC5, Gain-on-Sale Reserve Account." Any such account
shall be an Eligible Account.
"Grantor Trust": A segregated asset pool within the Trust Fund
consisting of the Excess Interest and amounts held from time to time in the
Excess Interest Distribution Account.
"Ground Lease": The ground lease pursuant to which any Mortgagor
holds a leasehold interest in the related Mortgaged Property and any estoppels
or other agreements executed and delivered by the ground lessor in favor of the
lender under the Mortgage Loan.
"Hackberry AB Mortgage Loan": That certain Mortgage Loan identified
on the Mortgage Loan Schedule as loan number 23.
"Hackberry Companion Holder": The holder of the Hackberry Companion
Loan.
"Hackberry Companion Loan": That certain loan evidenced by a note,
which is not an asset of the Trust Fund, secured by the Mortgaged Property
securing the Hackberry AB Mortgage Loan.
"Hackberry Intercreditor Agreement": The Intercreditor Agreement
Among Noteholders, dated as of August 23, 2002, between JPMorgan Chase Bank, as
A noteholder, and CBA-Mezzanine Capital Finance, LLC, as B noteholder. The
Hackberry Intercreditor Agreement relates to the Hackberry AB Mortgage Loan.
"Hackberry Loan Pair": The Hackberry AB Mortgage Loan, together with
the Hackberry Companion Loan.
"Hackberry Mortgaged Property": The property subject to the lien of
the Mortgage securing the Hackberry Loan Pair.
"Hazardous Materials": Any dangerous, toxic or hazardous pollutants,
chemicals, wastes or substances, including, without limitation, those so
identified pursuant to CERCLA or any other federal, state or local environmental
related laws and regulations, and specifically including, without limitation,
asbestos and asbestos-containing materials, polychlorinated biphenyls, 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": When used with respect to any specified Person, any
such Person who (i) is in fact independent of the Trustee, the Depositor, the
Servicer, the Special Servicer, the Directing Certificateholder and any and all
Affiliates thereof, (ii) does not have any material direct financial interest in
or any material indirect financial interest in any of the Trustee, the
Depositor, the Servicer, the Special Servicer, the Directing Certificateholder
or any Affiliate thereof and (iii) is not connected with the Trustee, the
Depositor, the Servicer, the Special Servicer, the Directing Certificateholder
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 Trustee, the
Depositor, the Servicer, the Special Servicer or any Affiliate thereof merely
because such Person is the beneficial owner of 1% or less of any Class of
securities issued by the Trustee, the Depositor, the Servicer, the Special
Servicer, the Directing Certificateholder or any Affiliate thereof, as the case
may be.
"Independent Contractor": Either (i) any Person that would be an
"independent contractor" with respect to the Trust within the meaning of Section
856(d)(3) of the Code if the Trust were a real estate investment trust (except
that the ownership test set forth in that Section shall be considered to be met
by any Person that owns, directly or indirectly, 35% or more of any Class of
Certificates, or such other interest in any Class of Certificates as is set
forth in an Opinion of Counsel, which shall be at no expense to the Trustee, the
Servicer or the Trust, delivered to the Trustee and the Servicer), so long as
the Trust does not receive or derive any income from such Person and provided
that 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) (except that
the Servicer or the Special Servicer shall not be considered to be an
Independent Contractor under the definition in this clause (i) unless an Opinion
of Counsel has been delivered to the Trustee to that effect) or (ii) any other
Person (including the Servicer and the Special Servicer) upon receipt by the
Trustee and the Servicer of an Opinion of Counsel, which shall be at no expense
to the Trustee, the Servicer or the Trust Fund, to the effect that the taking of
any action in respect of any REO Property by such Person, subject to any
conditions therein specified, that is otherwise herein contemplated to be taken
by an Independent Contractor will not cause such REO Property to cease to
qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of
the Code or cause any income realized in respect of such REO Property to fail to
qualify as Rents from Real Property.
"Initial Purchasers": X.X. Xxxxxx Securities Inc. and CIBC World
Markets Corp.
"Initial Sub-Servicer": With respect to each Mortgage Loan that is
subject to a Sub-Servicing Agreement with the Servicer as of the Closing Date,
the Sub-Servicer under any such Sub-Servicing Agreement.
"Institutional Accredited Investor": An entity meeting the
requirements of Rule 501(a)(1), (2), (3) or (7) of Regulation D promulgated
under the Act.
"Insurance and Condemnation Proceeds": All proceeds paid under any
Insurance Policy or in connection with the full or partial condemnation of a
Mortgaged Property, in either case, to the extent such proceeds are not applied
to the restoration of the related Mortgaged Property or released to the
Mortgagor or any tenants or ground lessors, in either case, in accordance with
the Servicing Standards.
"Insurance Policy": With respect to any Mortgage Loan, any hazard
insurance policy, flood insurance policy, title policy or other insurance policy
that is maintained from time to time in respect of such Mortgage Loan or the
related Mortgaged Property.
"Interest Accrual Period": With respect to any Class of Regular
Certificates, Class S Certificates, Uncertificated Lower-Tier Interests, or Loan
REMIC Regular Interests and any Distribution Date, the period beginning on the
first day of the calendar month preceding the calendar month in which the
related Distribution Date occurs and ending on the last day of the calendar
month preceding the calendar month in which such Distribution Date occurs,
calculated assuming that each month has 30 days and each year has 360 days.
"Interest Distribution Amount": With respect to any Class of Regular
Certificates and Class S Certificates for any Distribution Date, an amount equal
to the sum of the Distributable Certificate Interest and the Class Unpaid
Interest Shortfall with respect to such Class of Regular Certificates or Class S
Certificates for such Distribution Date.
"Interest Reserve Account": The trust account or subaccount created
and maintained by the Trustee pursuant to Section 3.26 in the name of "Xxxxx
Fargo Bank Minnesota, N.A., as Trustee, in trust for the registered holders of
X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp., Commercial Mortgage
Pass-Through Certificates, Series 2002-CIBC5, Interest Reserve Account", into
which the amounts set forth in Section 3.25 shall be deposited directly and
which must be an Eligible Account or subaccount of an Eligible Account.
"Interested Person": The Depositor, the Servicer, the Special
Servicer, any Independent Contractor engaged by the Special Servicer, any Holder
of a Certificate or any Affiliate of any such Person.
"Investment Account": As defined in Section 3.06(a).
"Investment Representation Letter": As defined in Section 5.02(b).
"Late Collections": With respect to any Mortgage Loan, all amounts
received thereon prior to the related Determination Date, whether as payments,
Insurance and Condemnation Proceeds, Liquidation Proceeds or otherwise, which
represent late payments or collections of principal or interest due in respect
of such Mortgage Loan or Companion Loan (without regard to any acceleration of
amounts due thereunder by reason of default) on a Due Date prior to the
immediately preceding Determination Date and not previously recovered. With
respect to any REO Loan, all amounts received in connection with the related REO
Property prior to the related Determination Date, whether as Insurance and
Condemnation Proceeds, Liquidation Proceeds, REO Revenues or otherwise, which
represent late collections of principal or interest due or deemed due in respect
of such REO Loan or the predecessor Mortgage Loan (without regard to any
acceleration of amounts due under the predecessor Mortgage Loan by reason of
default) on a Due Date prior to the immediately preceding Determination Date and
not previously recovered. The term "Late Collections" shall specifically exclude
Penalty Charges.
"Liquidation Event": With respect to any Mortgage Loan, any of the
following events: (i) such Mortgage Loan is paid in full; (ii) a Final Recovery
Determination is made with respect to such Mortgage Loan; (iii) such Mortgage
Loan is repurchased by the applicable Mortgage Loan Seller pursuant to Section 3
of the related Mortgage Loan Purchase Agreement; (iv) such Mortgage Loan is
purchased by the Controlling Class Option Holder or the Special Servicer
pursuant to Section 3.18(b); (v) such Mortgage Loan is purchased by the Special
Servicer, the Servicer, the Holders of the Controlling Class or the Holders of
the Class LR Certificates pursuant to Section 9.01; or (vi) such Mortgage Loan
is purchased by (a) the Companion Holder pursuant to Section 3.18(e), (b) the
Ridge Park Mezzanine Lender pursuant to Section 3.18(f) or (c) the Xxxxxx
Riverside Subordinated Lender pursuant to Section 3.18(g). With respect to any
REO Property (and the related REO Loan), any of the following events: (i) a
Final Recovery Determination is made with respect to such REO Property; (ii)
such REO Property is purchased by the Servicer, the Special Servicer, the
Holders of the Controlling Class or the Holders of the Class LR Certificates
pursuant to Section 9.01; or (iii) such REO Property is purchased by (a) the
Companion Holder pursuant to Section 3.18(e), (b) the Ridge Park Mezzanine
Lender pursuant to Section 3.18(f) or (c) the Xxxxxx Riverside Subordinated
Lender pursuant to Section 3.18(g).
"Liquidation Fee": A fee payable to the Special Servicer with
respect to each Specially Serviced Mortgage Loan as to which the Special
Servicer receives a full or discounted payoff (or an unscheduled partial payment
to the extent such prepayment is required by the Special Servicer as a condition
to a modification of the terms of the related Mortgage Loan) with respect
thereto from the related Mortgagor or any Liquidation Proceeds or Insurance and
Condemnation Proceeds with respect to the related Mortgage Loan (in any case,
other than amounts for which a Workout Fee has been paid, or will be payable),
equal to the product of the Liquidation Fee Rate and the proceeds of such full
or discounted payoff or the Liquidation Proceeds or Insurance and Condemnation
Proceeds (net of the related costs and expenses associated with the related
liquidation) related to such liquidated Specially Serviced Mortgage Loan, as the
case may be; provided, however, that no Liquidation Fee shall be payable with
respect to (x) clause (iii)(A) of the definition of "Liquidation Proceeds," (y)
clause (iv) of the definition of "Liquidation Proceeds" if such repurchase
occurs within the time parameters set forth in this Agreement and in the related
Mortgage Loan Purchase Agreement or, if such repurchase occurs after such time
period, the Mortgage Loan Seller was acting in good faith to resolve such breach
or defect or (z) clause (v) of the definition of "Liquidation Proceeds".
"Liquidation Fee Rate": A rate equal to 1.00%.
"Liquidation Proceeds": Cash amounts received by or paid to the
Servicer or the Special Servicer in connection with: (i) the liquidation of a
Mortgaged Property or other collateral constituting security for a Defaulted
Mortgage Loan, through a trustee's sale, foreclosure sale, REO Disposition or
otherwise, exclusive of any portion thereof required to be released to the
related Mortgagor in accordance with applicable law and the terms and conditions
of the related Mortgage Note and Mortgage; (ii) the realization upon any
deficiency judgment obtained against a Mortgagor; (iii) (A) the purchase of a
Defaulted Mortgage Loan by the Majority Controlling Class Certificateholder, the
Simon Representative on behalf of the Class S Controlling Holders, the Special
Servicer or the Servicer pursuant to Section 3.18(a) or (B) any other sale
thereof pursuant to Section 3.18(c), Section 3.18(e), Section 3.18(f) or Section
3.18(g); (iv) the repurchase of a Mortgage Loan by the applicable Mortgage Loan
Seller pursuant to Section 3 of the related Mortgage Loan Purchase Agreement;
(v) the purchase of a Mortgage Loan or REO Property by the Holders of the
Controlling Class, the Special Servicer, the Servicer or the Holders of the
Class LR Certificates pursuant to Section 9.01; or (vi) the purchase of an REO
Property by (a) the Companion Holder pursuant to Section 3.18(e), (b) the Ridge
Park Mezzanine Lender pursuant to Section 3.18(f) or (c) the Xxxxxx Riverside
Subordinated Lender pursuant to Section 3.18(g).
"Loan Pair": Collectively, a Companion Loan and the related AB
Mortgage Loan.
"Loan REMIC": The segregated pool of assets subject hereto
constituting a portion of the primary trust created hereby and to be
administered hereunder with respect to which a separate REMIC election is to be
made and consisting of: (i) the Simon Mortgage Loan as from time to time subject
to this Agreement and all payments under and proceeds of such Mortgage Loan
received after the Closing Date, together with all documents included in the
related Mortgage Files and any related Escrow Payments and reserves; (ii) any
REO Property acquired in respect of the Simon Mortgage Loan; (iii) Withheld
Amounts in the Interest Reserve Account with respect to the Simon Mortgage Loan;
(iv) the Simon Collection Account and the Loan REMIC Distribution Account; (v)
any amount held in the Gain-on-Sale Reserve Account with respect to the Simon
Mortgage Loan; (vi) the rights of the Depositor under Sections 2, 3, 9, 10, 11,
12, 13, 14, 16, 17 and 18 of the Mortgage Loan Purchase Agreement with respect
to the Simon Mortgage Loan; and (vii) the rights of the mortgagee under all
Insurance Policies with respect to the Simon Mortgage Loan.
"Loan REMIC Distribution Account": The segregated 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, in trust for the registered Holders of
X.X. Xxxxxx Chase Commercial Mortgage Securities Corp., Commercial Mortgage
Pass-Through Certificates, Series 2002-CIBC5, Loan REMIC Distribution Account."
Any such account, accounts or sub-accounts shall be an Eligible Account.
"Loan REMIC Non-Pooled Regular Interest": Each of the Class KS-1
Uncertificated Interest, Class KS-2 Uncertificated Interest and Class KS-3
Uncertificated Interest.
"Loan REMIC Pooled Regular Interest": The separate non-certificated
beneficial ownership interest in the Loan REMIC issued hereunder and designated
as a "regular interest" in the Loan REMIC, as described in the Preliminary
Statement hereto.
"Loan REMIC Principal Amount": The principal amount of each of the
Loan REMIC Non-Pooled Regular Interests and the Loan REMIC Pooled Regular
Interest outstanding as of any date of determination. As of the Closing Date,
the Loan REMIC Principal Amount for each of the Loan REMIC Regular Interests is
as set forth in the Preliminary Statement.
"Loan REMIC Regular Interest": Any of the Loan REMIC Pooled Regular
Interest or the Loan REMIC Non-Pooled Regular Interests.
"Loan REMIC Residual Interest": The sole class of "residual
interests" in the Loan REMIC for purposes of the REMIC Provisions and evidenced
by the Class LR Certificates.
"Lower-Tier Distribution Account": The segregated 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, in trust for the registered Holders of
X.X. Xxxxxx Chase Commercial Mortgage Securities Corp., Commercial Mortgage
Pass-Through Certificates, Series 2002-CIBC5, Lower-Tier Distribution Account."
Any such account, accounts or sub-accounts shall be an Eligible Account.
"Lower-Tier Distribution Amount": As defined in Section 4.01(b).
"Lower-Tier Principal Amount": 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
Certificate Balance of the Class of Related Certificates on the Distribution
Date immediately prior to such date of determination (determined as adjusted
pursuant to Section 1.02(iii)), and 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, Class LA-1-6, Class LA-2-1,
Class LA-2-2, Class LF, Class LG-1, Class LG-2, Class LH-1, Class LH-2, Class
LH-3, Class LJ-1 and Class LJ-2 Uncertificated Interests, as set forth in
Section 4.01(b).
"Lower-Tier REMIC": One of two separate REMICs comprising the Trust
Fund, the assets of which consist of the Majority Mortgage Loans (exclusive of
Excess Interest), any REO Property with respect thereto, the Loan REMIC Regular
Interests, such amounts as shall from time to time be held in the Certificate
Account, the REO Account, if any, the Interest Reserve Account, the Gain-on-Sale
Reserve Account and the Lower-Tier Distribution Account with respect thereto,
and all other property included in the Trust Fund that is not in the Loan REMIC
or the Upper-Tier REMIC.
"LTV Ratio": With respect to any Mortgage Loan, as of any date of
determination, a fraction, expressed as a percentage, the numerator of which is
the scheduled principal balance of such Mortgage Loan as of such date (assuming
no defaults or prepayments on such Mortgage Loan prior to that date), and the
denominator of which is the Appraised Value of the related Mortgaged Property.
"MAI": Member of the Appraisal Institute.
"Majority Controlling Class Certificateholder": As of any date, the
Controlling Class Certificateholder owning a majority of the Percentage
Interests in the Controlling Class.
"Majority Mortgage Loans": All Mortgage Loans except the Simon
Mortgage Loan.
"Maturity Date": With respect to any Mortgage Loan as of any date of
determination, the date on which the last payment of principal is due and
payable under the related Mortgage Note, after taking into account all Principal
Prepayments received prior to such date of determination, but without giving
effect to (i) any acceleration of the principal of such Mortgage Loan by reason
of default thereunder or (ii) any grace period permitted by the related Mortgage
Note.
"Monthly Payment": With respect to any Mortgage Loan, the scheduled
monthly payment of principal and/or interest on such Mortgage Loan, including
any Balloon Payment, which is payable by a Mortgagor from time to time under the
related Mortgage Note and applicable law, without regard to any acceleration of
principal of such Mortgage Loan by reason of default thereunder and without
respect to any Excess Interest.
"Moody's": Xxxxx'x Investors Service, Inc. If neither Moody's nor
any successor remains in existence, "Moody's" shall be deemed to refer to such
other nationally recognized statistical rating agency or other comparable Person
designated by the Depositor, notice of which designation shall be given to the
Trustee, the Servicer and the Special Servicer, and specific ratings of Moody's
herein referenced shall be deemed to refer to the equivalent ratings of the
party so designated.
"Mortgage": With respect to any Mortgage Loan, the mortgage, deed of
trust or other instrument securing a Mortgage Note and creating a lien on the
fee and/or leasehold interest in the related Mortgaged Property.
"Mortgage Deferred Interest": With respect to any Mortgage Loan as
of any Due Date that has been modified to reduce the rate at which interest is
paid currently below the Mortgage Rate and capitalize the amount of such
interest reduction, the excess, if any, of (a) interest accrued on the Stated
Principal Balance thereof during the one-month interest accrual period set forth
in the related Mortgage Note at the related Mortgage Rate over (b) the interest
portion of the related Monthly Payment, as so modified or reduced, or, if
applicable, Assumed Scheduled Payment due on such Due Date.
"Mortgage File": With respect to any Mortgage Loan, but subject to
Section 2.01, collectively the following documents:
(i) the original executed Mortgage Note bearing, or
accompanied by, all prior and intervening endorsements or
assignments showing a complete chain of endorsement or assignment
from the originator of the Mortgage Loan to the most recent
endorsee, and further endorsed (at the direction of the Depositor
given pursuant to the applicable Mortgage Loan Purchase Agreement),
on its face or by allonge attached thereto, without recourse, to the
order of the Trustee in the following form: "Pay to the order of
Xxxxx Fargo Bank Minnesota, N.A., as trustee for the registered
holders of X.X. Xxxxxx Chase Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2002-CIBC5,
without recourse, representation or warranty, express or implied;
(ii) the original Mortgage (or a certified or other copy
thereof from the applicable recording office) and originals (or
certified or other copies from the applicable recording office) of
any intervening assignments thereof showing a complete chain of
assignment from the originator of the Mortgage Loan to the most
recent mortgagee of record, in each case with evidence of recording
indicated thereon;
(iii) an original assignment of the Mortgage, in complete and
recordable form, executed by the most recent assignee of record
thereof prior to the Trustee, or if none, by the originator to
"Xxxxx Fargo Bank Minnesota, N.A., as trustee for the registered
holders of X.X. Xxxxxx Chase Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2002-CIBC5";
(iv) an original or copy of any related Assignment of Leases
(if such item is a document separate from the Mortgage) and the
originals or copies of any intervening assignments thereof showing a
complete chain of assignment from the originator of the Mortgage
Loan to the most recent assignee of record, in each case with
evidence of recording thereon;
(v) an original assignment of any related Assignment of Leases
(if such item is a document separate from the Mortgage), in
recordable form, executed by the applicable assignee of record to
"Xxxxx Fargo Bank Minnesota, N.A., as trustee for the registered
holders of X.X. Xxxxxx Chase Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2002-CIBC5";
(vi) an original or copy of any related Security Agreement (if
such item is a document separate from the Mortgage) and the
originals or copies of any intervening assignments thereof showing a
complete chain of assignment from the originator of the Mortgage
Loan to the applicable Mortgage Loan Seller;
(vii) an original assignment of any related Security Agreement
(if such item is a document separate from the Mortgage), in complete
form, executed by the applicable Mortgage Loan Seller to "Xxxxx
Fargo Bank Minnesota, N.A., as trustee for the registered holders of
X.X. Xxxxxx Chase Commercial Mortgage Securities Corp., Commercial
Mortgage Pass-Through Certificates, Series 2002-CIBC5";
(viii) originals or copies of all consolidation, assumption,
modification, written assurance and substitution agreements, with
evidence of recording thereon, where appropriate, in those instances
where the terms or provisions of the Mortgage, Mortgage Note or any
related security document have been consolidated or modified or the
Mortgage Loan has been assumed;
(ix) the original lender's title insurance policy or a copy
thereof, together with all endorsements or riders that were issued
with or subsequent to the issuance of such policy, insuring the
priority of the Mortgage as a first lien on the Mortgagor's fee or
leasehold interest in the Mortgaged Property, or if the policy has
not yet been issued, an original or copy of a "marked-up" written
commitment, or the pro forma or specimen title insurance policy
(marked as binding and in all cases countersigned by the title
insurer or its authorized agent) in connection with the related
Mortgage Loan;
(x) the original or copy of any guaranty of the obligations of
the Mortgagor under the Mortgage Loan and any intervening
assignments;
(xi) all UCC Financing Statements, assignments and
continuation statements or copies thereof, as filed or recorded, or
in form that is complete and suitable for filing or recording, as
appropriate, or other evidence of filing or recording sufficient to
perfect (and maintain the perfection of) the security interest held
by the originator of the Mortgage Loan (and each assignee of record
prior to the Trustee) in and to the personalty of the Mortgagor at
the Mortgaged Property (in each case with evidence of filing or
recording thereon), and to transfer such security interest to the
Trustee;
(xii) the original power of attorney or a copy thereof (with
evidence of recording thereon) granted by the Mortgagor if the
Mortgage, Mortgage Note or other document or instrument referred to
above was not signed by the Mortgagor;
(xiii) with respect to any Mortgage Loans with Additional
Debt, a co-lending agreement, a subordination agreement or
intercreditor agreement, pursuant to which such Additional Debt will
be fully subordinated to such Mortgage Loan;
(xiv) any additional documents required to be added to the
Mortgage File pursuant to this Agreement;
(xv) with respect to any Mortgage Loan secured by a ground
lease, the related ground lease or a certified copy thereof;
(xvi) a copy of any letter of credit securing such Mortgage
Loan and, within thirty (30) days of the Closing Date, a copy of the
appropriate transfer or assignment documents for such letter of
credit;
(xvii) a copy of any Environmental Indemnity Agreement,
together with a copy of any environmental insurance policy;
(xviii) a copy of any loan agreement(s);
(xix) a copy of any escrow agreement(s);
(xx) a copy of any management agreement(s);
(xxi) a copy of any franchise agreements and comfort letters
related thereto;
(xxii) a copy of the Appraisal for the related Mortgaged
Property(ies);
(xxiii) a copy of any lock-box or cash management
agreement(s);
(xxiv) a list related to such Mortgage Loan indicating the
related Mortgage Documents included in the related Mortgage File
(the "Mortgage Loan Checklist");
(xxv) a copy of all environmental reports relating to the
relevant Mortgaged property; and
(xxvi) with respect to any Companion Loan, all of the above
documents with respect to such Companion Loan and the related AB
Intercreditor Agreement; provided that a copy of each mortgage note
relating to such Companion Loan, rather than the original, shall be
provided, and no assignments shall be provided;
provided, however, that whenever the term "Mortgage File" is used to refer to
documents held by the Trustee, or a Custodian appointed thereby, such term shall
not be deemed to include such documents and instruments required to be included
therein unless they are actually received by the Trustee or a Custodian
appointed thereby.
"Mortgage Loan": Each of the mortgage loans transferred and assigned
to the Trustee pursuant to Section 2.01 and from time to time held in the Trust
Fund. As used herein, the term "Mortgage Loan" includes the related Mortgage
Note, Mortgage and other documents contained in the related Mortgage File and
any related agreements. As used in this Agreement, the term "Mortgage Loan" does
not include any Companion Loan.
"Mortgage Loan Purchase Agreement": Each of the agreements between
the Depositor and each Mortgage Loan Seller, relating to the transfer of all of
such Mortgage Loan Seller's right, title and interest in and to the related
Mortgage Loans.
"Mortgage Loan Schedule": The list of Mortgage Loans transferred on
the Closing Date to the Trustee as part of the Trust Fund, attached hereto as
Exhibit B, which list sets forth the following information with respect to each
Mortgage Loan:
(i) the loan i.d. number and loan servicing number (as
specified in Exhibit A to the Prospectus);
(ii) the Mortgagor's name;
(iii) the street address (including city, state, county and
zip code) and name of the related Mortgaged Property;
(iv) the Mortgage Rate in effect at origination;
(v) the Net Mortgage Rate in effect at the Cut-off Date;
(vi) the original principal balance;
(vii) the Cut-off Date Principal Balance;
(viii) the (a) original term to stated maturity, (b) remaining
term to stated maturity and (c) Maturity Date;
(ix) the original and remaining amortization terms;
(x) the amount of the Monthly Payment due on the first Due
Date following the Cut-off Date;
(xi) the applicable Servicing Fee Rate;
(xii) whether the Mortgage Loan is an Actual/360 Mortgage
Loan;
(xiii) whether such Mortgage Loan has an Anticipated Repayment
Date;
(xiv) the Revised Rate of such Mortgage Loan, if any;
(xv) whether such Mortgage Loan is secured by the related
Mortgagor's interest in a ground lease;
(xvi) identifying any Mortgage Loans with which such Mortgage
Loan is cross-defaulted or cross-collateralized;
(xvii) the originator of such Mortgage Loan and the Mortgage
Loan Seller;
(xviii) whether such Mortgage Loan has a guarantor;
(xix) whether such Mortgage Loan is secured by a letter of
credit;
(xx) amount of any reserve or escrowed funds;
(xxi) number of grace days;
(xxii) whether an operations & maintenance plan exists and, if
so, what repairs are required;
(xxiii) whether a cash management agreement or lock-box
agreement is in place;
(xxiv) the total square feet/units of the related Mortgaged
Property and the related units of measure;
(xxv) the general property type of the related Mortgaged
Property;
(xxvi) whether the Mortgage Loan permits defeasance;
(xxvii) the interest accrual period;
(xxviii) the Anticipated Prepayment Date, if applicable; and
(xxix) in the case of a Balloon Mortgage Loan, the remaining
amortization term.
Such Mortgage Loan Schedule shall also set forth the aggregate of
the amounts described under clause (vii) above for all of the Mortgage Loans.
Such list may be in the form of more than one list, collectively setting forth
all of the information required.
"Mortgage Loan Seller": Each of: (1) JPMorgan Chase Bank, a New York
banking corporation, or its respective successors in interest and (2) CIBC Inc.,
a Delaware corporation, or its respective successors in interest.
"Mortgage Note": The original executed note evidencing the
indebtedness of a Mortgagor under a Mortgage Loan or Companion Loan, together
with any rider, addendum or amendment thereto.
"Mortgage Rate": With respect to: (i) any Mortgage Loan on or prior
to its Maturity Date, the annual 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, exclusive of the
Excess Rate; or (ii) any Mortgage Loan after its Maturity Date, the annual rate
described in clause (i) above determined without regard to the passage of such
Maturity Date.
"Mortgaged Property": The real property subject to the lien of a
Mortgage.
"Mortgagor": The obligor or obligors on a Mortgage Note, including
without limitation, any Person that has acquired the related Mortgaged Property
and assumed the obligations of the original obligor under the Mortgage Note.
"Net Aggregate Prepayment Interest Shortfall": With respect to any
Distribution Date, the amount, if any, by which (a) the aggregate of all
Prepayment Interest Shortfalls incurred in connection with the receipt of
Principal Prepayments on the Mortgage Loans during the related Due Period,
exceeds (b) the aggregate amount deposited by the Servicer in the Certificate
Account for such Distribution Date pursuant to Section 3.19 in connection with
such Prepayment Interest Shortfalls.
"Net Investment Earnings": With respect to any of the Distribution
Accounts, Certificate Account, the Servicing Accounts or the REO Account for any
period from any Distribution Date to the immediately succeeding P&I Advance
Date, the amount, if any, by which the aggregate of all interest and other
income realized during such period on funds relating to the Trust Fund held in
such account, exceeds the aggregate of all losses, if any, incurred during such
period in connection with the investment of such funds in accordance with
Section 3.06.
"Net Investment Loss": With respect to any of the Distribution
Accounts, Certificate Account, the Servicing Accounts or the REO Account for any
period from any Distribution Date to the immediately succeeding P&I Advance
Date, the amount by which the aggregate of all losses, if any, incurred during
such period in connection with the investment of funds relating to the Trust
Fund held in such account in accordance with Section 3.06, exceeds the aggregate
of all interest and other income realized during such period on such funds.
"Net Mortgage Rate": With respect to any Mortgage Loan or REO Loan
(other than the Simon Mortgage Loan) as of any date of determination, a rate per
annum equal to the related Mortgage Rate then in effect, minus the
Administrative Cost Rate; provided, that with respect to the Simon Pooled
Component, the Net Mortgage Rate shall equal the Simon Mortgage Loan Remittance
Rate, provided, further, that for purposes of calculating Pass-Through Rates,
the Net Mortgage Rate for any Mortgage Loan will be determined without regard to
any modification, waiver or amendment of the terms of such Mortgage Loan,
whether agreed to by the Servicer or the Special Servicer or resulting from a
bankruptcy, insolvency or similar proceeding involving the Mortgagor; provided,
further, that if any Mortgage Loan does not accrue interest on the basis of a
360-day year consisting of twelve 30-day months, then, solely for purposes of
calculating Pass-Through Rates, the Net Mortgage Rate of such Mortgage Loan for
any one-month period preceding a related Due Date will be the annualized rate at
which interest would have to accrue in respect of such Mortgage Loan on the
basis of a 360-day year consisting of twelve 30-day months in order to produce
the aggregate amount of interest actually accrued (exclusive of Default Interest
or Excess Interest) in respect of such Mortgage Loan during such one-month
period at the related Net Mortgage Rate; provided, further, that with respect to
each Interest Reserve Loan, the Net Mortgage Rate for the one month period (A)
preceding the Due Dates that occur in January and February in any year which is
not a leap year or preceding the Due Date that occurs in February in any year
which is a leap year, and (B) preceding the Due Date in March, will be the per
annum rate stated in the related Mortgage Note less the related Administrative
Cost Rate. With respect to any REO Loan, the Net Mortgage Rate shall be
calculated as described above, determined as if the predecessor Mortgage Loan
had remained outstanding.
"Net Operating Income": With respect to any Mortgaged Property, for
any Mortgagor's fiscal year end, Net Operating Income will be calculated in
accordance with the standard definition of "Net Operating Income" approved from
time to time endorsed and put forth by the CMSA.
"New Lease": Any lease of REO Property entered into at the direction
of the Special Servicer on behalf of the Trust, including any lease renewed,
modified or extended on behalf of the Trust, if the Trust has the right to
renegotiate the terms of such lease.
"Nonrecoverable Advance": Any Nonrecoverable P&I Advance or
Nonrecoverable Servicing Advance.
"Nonrecoverable P&I Advance": Any P&I Advance previously made or
proposed to be made in respect of a Mortgage Loan or REO Loan which, in the
reasonable judgment of the Servicer or the Trustee, as applicable, will not be
ultimately recoverable, together with any accrued and unpaid interest thereon,
from Late Collections or any other recovery on or in respect of such Mortgage
Loan, REO Loan or Companion Loan. The determination by the Servicer or the
Trustee, as applicable, that it has made a Nonrecoverable P&I Advance or that
any proposed P&I Advance, if made, would constitute a Nonrecoverable P&I
Advance, shall be evidenced by an Officer's Certificate delivered by the
Servicer to the Trustee, the Directing Certificateholder (and in the case of the
Simon Mortgage Loan, the Simon Representative) and the Depositor, in the case of
the Servicer, and to the Depositor in the case of the Trustee. The Officer's
Certificate shall set forth such determination of nonrecoverability and the
considerations of the Servicer or the Trustee, as applicable, forming the basis
of such determination (which shall be accompanied by, to the extent available,
income and expense statements, rent rolls, occupancy status, property
inspections and any other information used by the Servicer or the Trustee, as
applicable, to make such determination and shall include any existing Appraisal
of the related Mortgage Loan or Mortgaged Property). The Trustee shall be
entitled to conclusively rely on the Servicer's determination that a P&I Advance
is or would be nonrecoverable. In the case of a cross-collateralized Mortgage
Loan, such recoverability determination shall take into account the
cross-collateralization of the related cross-collateralized Mortgage Loan.
"Nonrecoverable Servicing Advance": Any Servicing Advance previously
made or proposed to be made in respect of a Mortgage Loan or REO Property which,
in the reasonable judgment of the Servicer, the Special Servicer or the Trustee,
as the case may be, will not be ultimately recoverable, together with any
accrued and unpaid interest thereon, from Late Collections or any other recovery
on or in respect of such Mortgage Loan or REO Property. The determination by the
Servicer, the Special Servicer or the Trustee, as the case may be, that it has
made a Nonrecoverable Servicing Advance or that any proposed Servicing Advance,
if made, would constitute a Nonrecoverable Servicing Advance, shall be evidenced
by an Officer's Certificate delivered by either of the Special Servicer or
Servicer to the other and to the Trustee, the Directing Certificateholder (and
in the case of the Simon Mortgage Loan, the Simon Representative) and the
Depositor, in the case of the Servicer, and to the Depositor in the case of the
Trustee. The Officer's Certificate shall set forth such determination of
nonrecoverability and the considerations of the Servicer or the Trustee, as
applicable, forming the basis of such determination (which shall be accompanied
by, to the extent available, such as related income and expense statements, rent
rolls, occupancy status and property inspections, and shall include an Appraisal
of the related Mortgage Loan or Mortgaged Property). The Trustee will be
entitled to conclusively rely on the Servicer's or Special Servicer's, as the
case may be, determination that a Servicing Advance is or would be
nonrecoverable. In the case of a cross-collateralized Mortgage Loan, such
recoverability determination shall take into account the cross-collateralization
of the related cross-collateralized Mortgage Loan.
"Non-Registered Certificate": Unless and until registered under the
Securities Act, any Class X-1, Class X-2, Class F, Class G, Class H, Class J,
Class K, Class L, Class M, Class N, Class NR, Class S-1, Class S-2, Class S-3,
Class R or Class LR Certificate.
"Non-Specially Serviced Mortgage Loan": Any Mortgage Loan other than
a Specially Serviced Mortgage Loan.
"Non-U.S. Person": Any person other than a U.S. Person, unless, with
respect to the Transfer of a Residual Certificate, (i) such person holds such
Residual Certificate in connection with the conduct of a trade or business
within the United States and furnishes the Transferor and the Certificate
Registrar with an effective Internal Revenue Service Form W-8ECI (or successor
form) or (ii) the Transferee delivers to both the Transferor and the Certificate
Registrar an opinion of a nationally recognized tax counsel to the effect that
such Transfer is in accordance with the requirements of the Code and the
regulations promulgated thereunder and that such Transfer of the Residual
Certificate will not be disregarded for federal income tax purposes. A Person
shall be treated as a Non-U.S. Person, (A) notwithstanding clause (i) of the
preceding sentence, if it is a partnership (including any entity treated as a
partnership for U.S. federal income tax purposes) any interest in which is
owned, directly or indirectly, through one more partnerships, trusts or other
pass-through entities by a Non-U.S. Person or (B) such Person is a U.S. Person
with respect to whom income from a Residual Certificate is attributable to a
foreign permanent establishment of fixed base, within the meaning of an
applicable income treaty, of such Person or any other U.S. Person.
"Notional Amount": In the case of the Class X-1 Certificates, the
Class X-1 Notional Amount. In the case of the Class X-2 Certificates, the Class
X-2 Notional Amount. In the case of each Component, the amount set forth in the
applicable definition thereof.
"Offered Certificates": The Class A, Class B, Class C, Class D and
Class E, Certificates.
"Officer's Certificate": A certificate signed by a Servicing Officer
of the Servicer or the Special Servicer, as the case may be, or a Responsible
Officer of the Trustee, as the case may be.
"Opinion of Counsel": A written opinion of counsel, who may, without
limitation, be salaried counsel for the Depositor, the Servicer or the Special
Servicer, acceptable in form and delivered to the Trustee, except that any
opinion of counsel relating to (a) the qualification of the Upper-Tier REMIC,
Lower-Tier REMIC or Loan REMIC as a REMIC, (b) compliance with the REMIC
Provisions, (c) qualification of the Grantor Trust as a grantor trust under
subpart E, Part I of subchapter J of the Code for federal income tax purposes or
(d) the resignation of the Servicer, the Special Servicer or the Depositor
pursuant to Section 6.04, must be an opinion of counsel who is in fact
Independent of the Depositor, the Servicer or the Special Servicer, as
applicable.
"Option Price": As defined in Section 3.18(a).
"Original Certificate Balance": With respect to any Class of
Certificates (other than the Class X and the Residual Certificates), the initial
aggregate principal amount thereof as of the Closing Date, in each case as
specified in the Preliminary Statement.
"Original Loan REMIC Principal Amount": With respect to any Class of
Loan REMIC Regular Interests, the initial principal amount thereof as of the
Closing Date, in each case as specified in the Preliminary Statement.
"Original Lower-Tier Principal Amount": With respect to any Class of
Uncertificated Lower-Tier Interest, the initial principal amount thereof as of
the Closing Date, in each case as specified in the Preliminary Statement.
"Original Notional Amount": With respect to the Class X-1 Notional
Amount and Class X-2 Notional Amount, the initial Notional Amount thereof as of
the Closing Date, as specified in the Preliminary Statement.
"Original Value": The Appraised Value of a Mortgaged Property based
upon the Appraisal conducted in connection with the origination of the related
Mortgage Loan.
"OTS": The Office of Thrift Supervision or any successor thereto.
"Ownership Interest": As to any Certificate, any ownership or
security interest in such Certificate as the Holder thereof and any other
interest therein, whether direct or indirect, legal or beneficial, as owner or
as pledgee.
"P&I Advance": As to any Mortgage Loan or REO Loan, any advance made
by the Servicer or the Trustee, as applicable, pursuant to Section 4.03 or
Section 7.05.
"P&I Advance Date": The Business Day immediately prior to each
Distribution Date.
"P&I Advance Determination Date": With respect to any Distribution
Date, the Business Day prior to the P&I Advance Date.
"Pass-Through Rate": Any of the Class A-1 Pass-Through Rate, the
Class A-2 Pass-Through Rate, the Class B Pass-Through Rate, the Class C
Pass-Through Rate, the Class D Pass-Through Rate, the Class E Pass-Through Rate,
the Class F Pass-Through Rate, the Class G Pass-Through Rate, the Class H
Pass-Through Rate, the Class J Pass-Through Rate, the Class K Pass-Through Rate,
the Class L Pass-Through Rate, the Class M Pass-Through Rate, the Class N
Pass-Through Rate, the Class S-1 Pass-Through Rate, the Class S-2 Pass-Through
Rate, the Class S-3 Pass-Through Rate, the Class NR Pass-Through Rate, the Class
X-1 Pass-Through Rate or the Class X-2 Pass-Through Rate.
"Penalty Charges": With respect to any Mortgage Loan (or successor
REO Loan), any amounts actually collected thereon from the Mortgagor that
represent late payment charges or Default Interest, other than a Yield
Maintenance Charge, or Excess Interest.
"Percentage Interest": As to any Certificate, the percentage
interest evidenced thereby in distributions required to be made with respect to
the related Class. With respect to any Regular Certificate, the percentage
interest is equal to the Denomination of such Certificate divided by the initial
Certificate Balance or Notional Amount, as applicable, of such Class of
Certificates as of the Closing Date. With respect to a Residual Certificate, the
percentage interest is set forth on the face thereof.
"Permitted Investments": Any one or more of the following
obligations or securities (including obligations or securities of the Trustee if
otherwise qualifying hereunder), regardless whether issued by the Depositor, the
Servicer, the Special Servicer, the Trustee or any of their respective
Affiliates and having the required ratings, if any, provided for in this
definition and which shall not be subject to liquidation prior to maturity:
(i) direct obligations of, and obligations fully guaranteed as
to timely payment of principal and interest by, the United States of
America, Xxxxxx Xxx, Xxxxxxx Mac or any agency or instrumentality of
the United States of America, the obligations of which are backed by
the full faith and credit of the United States of America that
mature in one (1) year or less from the date of acquisition;
provided that any obligation of, or guarantee by, Xxxxxx Mae or
Xxxxxxx Mac, other than an unsecured senior debt obligation of
Xxxxxx Mae or Xxxxxxx Mac, shall be a Permitted Investment only if
such investment would not result in the downgrading, withdrawal or
qualification of the then-current rating assigned by each Rating
Agency to any Certificate as evidenced in writing;
(ii) time deposits, unsecured certificates of deposit, or
bankers' acceptances that mature in one (1) year or less after the
date of issuance and are issued or held by any depository
institution or trust company (including the Trustee) incorporated or
organized under the laws of the United States of America or any
State thereof and subject to supervision and examination by federal
or state banking authorities, so long as the commercial paper or
other short-term debt obligations of such depository institution or
trust company are rated in the highest rating categories of each of
Moody's and Fitch or such other rating as would not result in the
downgrading, withdrawal or qualification of the then-current rating
assigned by each Rating Agency to any Certificate, as evidenced in
writing;
(iii) repurchase agreements or obligations with respect to any
security described in clause (i) above where such security has a
remaining maturity of one year or less and where such repurchase
obligation has been entered into with a depository institution or
trust company (acting as principal) described in clause (ii) above;
(iv) debt obligations bearing interest or sold at a discount
issued by any corporation incorporated under the laws of the United
States of America or any state thereof which mature in one (1) year
or less from the date of acquisition, which debt obligations are
rated in the highest rating categories of each of Moody's and Fitch
or such other rating as would not result in the downgrading,
withdrawal or qualification of the then-current rating assigned by
each Rating Agency to any Certificate as specified in writing by
each of the Rating Agencies; provided, however, that securities
issued by any particular corporation will not be Permitted
Investments to the extent that investment therein will cause the
then-outstanding principal amount of securities issued by such
corporation and held in the accounts established hereunder to exceed
10% of the sum of the aggregate principal balance and the aggregate
principal amount of all Permitted Investments in such accounts;
(v) commercial paper (including both non-interest-bearing
discount obligations and interest-bearing obligations) of any
corporation or other entity organized under the laws of the United
States or any state thereof payable on demand or on a specified date
maturing in one (1) year or less from the date of acquisition
thereof and which is rated in the highest rating category of each of
Moody's and Fitch (or such lower rating as will not result in
qualification, downgrading or withdrawal of the ratings then
assigned to the Certificates, as evidenced in writing by the Rating
Agencies);
(vi) money market funds, rated in the highest rating
categories of each of Moody's and Fitch; and
(vii) any other demand, money market or time deposit,
obligation, security or investment, (a) with respect to which each
Rating Agency shall have confirmed in writing that such investment
will not result in a downgrade, qualification or withdrawal of the
then-current rating of the Certificates that are currently being
rated by such Rating Agency and (b) which qualifies as a "cash flow
investment" pursuant to Section 860G(a)(6) of the Code;
provided, however, that no such instrument shall be a Permitted Investment (a)
if such instrument evidences principal and interest payments derived from
obligations underlying such instrument and the interest payments with respect to
such instrument provide a yield to maturity at the time of acquisition of
greater than 120% of the yield to maturity at par of such underlying obligations
or (b) if such instrument may be redeemed at a price below the purchase price;
and provided, further, however, that no amount beneficially owned by the
Upper-Tier REMIC, the Lower-Tier REMIC or the Loan REMIC (even if not yet
deposited in the Trust) may be invested in investments (other than money market
funds) treated as equity interests for federal income tax purposes, unless the
Servicer receives an Opinion of Counsel, at its own expense, to the effect that
such investment will not adversely affect the status of the Upper-Tier REMIC,
the Lower-Tier REMIC or the Loan REMIC as a REMIC under the Code or result in
imposition of a tax on such Upper-Tier REMIC, the Lower-Tier REMIC or the Loan
REMIC. Permitted Investments that are subject to prepayment or call may not be
purchased at a price in excess of par.
"Permitted Transferee": Any Person who is a Qualified Institutional
Buyer.
"Person": Any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Plan": As defined in Section 5.02(c).
"Prepayment Assumption": A "constant prepayment rate" of 0% used for
determining the accrual of original issue discount and market discount, if any,
and the amortization premium, if any, on the Certificates for federal income tax
purposes; provided it is assumed that each Mortgage Loan with an Anticipated
Repayment Date prepays on such date.
"Prepayment Interest Excess": For any Distribution Date and with
respect to any Mortgage Loan that was subject to a Principal Prepayment in full
or in part during the related Due Period, which Principal Prepayment was applied
to such Mortgage Loan after the related Due Date and prior to the following
Determination Date, the amount of interest (net of the related Servicing Fees),
to the extent collected from the related Mortgagor (without regard to any
Prepayment Premium or Yield Maintenance Charge actually collected), that would
have accrued at a rate per annum equal to the sum of (x) the related Net
Mortgage Rate for such Mortgage Loan and (y) the Trustee Fee Rate, on the amount
of such Principal Prepayment from and after such Due Date and ending on the date
of such prepayment.
"Prepayment Interest Shortfall": For any Distribution Date and with
respect to any Mortgage Loan that was subject to a Principal Prepayment in full
or in part during the related Due Period, which Principal Prepayment was applied
to such Mortgage Loan after the related Determination Date (or, with respect to
each mortgage loan with a Due Date occurring after the related Determination
Date, the related Due Date)and prior to the following Due Date, the amount of
interest, to the extent not collected from the related Mortgagor (without regard
to any Prepayment Premium or Yield Maintenance Charge actually collected), that
would have accrued at a rate per annum equal to the sum of (x) the related Net
Mortgage Rate for such Mortgage Loan and (y) the Trustee Fee Rate, on the amount
of such Principal Prepayment during the period commencing on the date as of
which such Principal Prepayment was applied to such Mortgage Loan and ending on
such Due Date.
"Primary Servicing Fee": The monthly fee payable by the Servicer
from the Servicing Fee to each Initial Sub-Servicer, which monthly fee accrues
at the rate per annum specified as such in the Sub-Servicing Agreement with such
Initial Sub-Servicer.
"Prime Rate": The "Prime Rate" as published in the "Money Rates"
section of the New York city edition of The Wall Street Journal (or, if such
section or publication is no longer available, such other comparable publication
as determined by the Trustee in its reasonable discretion) as may be in effect
from time to time, or, if the "Prime Rate" no longer exists, such other
comparable rate (as determined by the Trustee in its reasonable discretion) as
may be in effect from time to time.
"Principal Distribution Amount": With respect to any Distribution
Date and any Class of Regular Certificates, an amount equal to (1) the sum of
(a) the Principal Shortfall for such Distribution Date, (b) the Scheduled
Principal Distribution Amount for such Distribution Date and (c) the Unscheduled
Principal Distribution Amount for such Distribution Date, less (2) (a) in the
event that the Simon Default Distribution Priority is not in effect, an amount
equal to the product of (x) the Simon Principal Distribution Amount for such
Distribution Date and (y) the Simon Non-Pooled Percentage for such Distribution
Date, or (b) in the event that the Simon Default Distribution Priority is in
effect, any amounts distributable to the Class S Certificates pursuant to the
Simon Default Distribution Priority set forth in Section 4.01(k) for such
Distribution Date.
"Principal Prepayment": Any payment of principal made by the
Mortgagor on a Mortgage Loan which is received in advance of its scheduled Due
Date and which is not accompanied by an amount of interest representing
scheduled interest due on any date or dates in any month or months subsequent to
the month of prepayment.
"Principal Shortfall": For any Distribution Date after the initial
Distribution Date with respect to the Mortgage Loans, the amount, if any, by
which (a) the related Principal Distribution Amount for the preceding
Distribution Date, exceeded (b) the aggregate amount distributed in respect of
principal on the Class A, Class B, Class C, Class D, Class E, Class F, Class G,
Class H, Class J, Class K, Class L, Class M, Class N and Class NR Certificates
for such preceding Distribution Date pursuant to Section 4.01(a) on such
preceding Distribution Date. The Principal Shortfall for the initial
Distribution Date will be zero.
"Privileged Person": Each Rating Agency, any of the Holders of each
Class of Certificates, each Underwriter, the Initial Purchasers, each Mortgage
Loan Seller, any Companion Holder (only with respect to its Companion Loan) and
a certain financial market publisher (which initially shall be Bloomberg, L.P.),
each party to this Agreement, the Directing Certificateholder, any designee of
the Depositor and any other Person who shall have provided the Trustee with a
certificate, using the form attached hereto as Exhibit 6, which form is
available on and may be submitted through the Trustee's website, certifying that
such Person is a Certificateholder, a beneficial owner or a prospective
purchaser of a Certificate.
"Prospectus": The Prospectus dated July 23, 2002, as supplemented by
the Prospectus Supplement dated October 28, 2002, relating to the offering of
the Offered Certificates.
"Purchase Option Notice": As defined in Section 3.18 (a)(iii).
"Purchase Price": With respect to any Mortgage Loan (or REO Loan) to
be purchased by a Mortgage Loan Seller pursuant to Section 3 of the related
Mortgage Loan Purchase Agreement, by the Majority Controlling Class
Certificateholder, the Special Servicer or the Servicer pursuant to Section
3.18(b), by the Servicer, the Special Servicer, the Holders of the Controlling
Class or the Holders of the Class LR Certificates pursuant to Section 9.01 or to
be otherwise sold pursuant to Section 3.18(d), a price equal to:
(i) the outstanding principal balance of such Mortgage Loan
(or related REO Loan) as of the date of purchase; plus
(ii) all accrued and unpaid interest on such Mortgage Loan (or
the related REO Loan) at the related Mortgage Rate in effect from
time to time (exclusive of Excess Interest) to but not including the
Due Date immediately preceding the Determination Date for the
related to the Distribution Date in which such Purchase Price is
included in the Available Distribution Amount; plus
(iii) all related unreimbursed Servicing Advances and accrued
and unpaid interest on related Advances at the Reimbursement Rate,
and any Special Servicing Fees whether paid or then owing allocable
to such Mortgage Loan and all additional Trust Fund expenses in
respect of such Mortgage Loan; plus
(iv) if such Mortgage Loan (or REO Loan) is being purchased by
a Mortgage Loan Seller pursuant to Section 3 of the applicable
Mortgage Loan Purchase Agreement, all reasonable out-of-pocket
expenses reasonably incurred or to be incurred by the Servicer, the
Special Servicer, the Depositor and the Trustee in respect of the
Breach or Defect giving rise to the repurchase obligation, including
any expenses arising out of the enforcement of the repurchase
obligation, including, without limitation, all legal fees and
expenses and any expenses of the Trust Fund relating to such
Mortgage Loan (or REO Loan); plus
(v) Liquidation Fees payable with respect to such Mortgage
Loan.
With respect to any REO Property to be sold pursuant to Section 3.18(c), the
amount calculated in accordance with the preceding sentence in respect of the
related REO Loan.
"Qualified Bidder": As defined in Section 7.01(c).
"Qualified Institutional Buyer": A "qualified institutional buyer"
as defined in Rule 144A under the Act.
"Qualified Insurer": (i) With respect to any Mortgage Loan, REO Loan
or REO Property, an insurance company or security or bonding company qualified
to write the related Insurance Policy in the relevant jurisdiction with a
minimum claims paying ability rating of at least "A2" by Xxxxx'x and "A" by
Fitch (or, if not rated by Fitch, "A" by S&P) and (ii) with respect to the
fidelity bond and errors and omissions Insurance Policy required to be
maintained pursuant to Section 3.07(c), except as set forth in Section 3.07(c),
an insurance company that has a claims paying ability rated no lower than two
ratings below the rating assigned to the then highest rated outstanding
Certificate, but in no event lower than "A" by S&P and "A" by Fitch (or, if not
rated by Fitch, "A" by S&P) or, in the case of clauses (i) and (ii), such other
rating as each Rating Agency shall have confirmed in writing will not cause such
Rating Agency to downgrade, qualify or withdraw the then-current rating assigned
to any of the Certificates that are then currently being rated by such Rating
Agency.
"Qualified Substitute Mortgage Loan": A mortgage loan which must, on
the date of substitution: (i) have an outstanding principal balance, after
application of all scheduled payments of principal and interest due during or
prior to the month of substitution, not in excess of the Stated Principal
Balance of the deleted Mortgage Loan as of the Due Date in the calendar month
during which the substitution occurs; (ii) have a Mortgage Rate not less than
the Mortgage Rate of the deleted Mortgage Loan; (iii) have the same Due Date as
and grace period no longer than that of the deleted Mortgage Loan; (iv) accrue
interest on the same basis as the deleted Mortgage Loan (for example, on the
basis of a 360-day year consisting of twelve 30-day months); (v) have a
remaining term to stated maturity not greater than, and not more than two years
less than, the remaining term to stated maturity of the deleted Mortgage Loan;
(vi) have a then current loan-to-value ratio not higher than that of the deleted
Mortgage Loan as of the Closing Date and a current loan-to-value ratio not
higher than the then current loan-to-value ratio of the deleted Mortgage Loan,
in each case using the "value" as determined using an MAI appraisal; (vii)
comply as of the date of substitution with all of the representations and
warranties set forth in the applicable Mortgage Loan Purchase Agreement; (viii)
have an environmental report that indicates no material adverse environmental
conditions with respect to the related Mortgaged Property and which will be
delivered as a part of the related Mortgage File; (ix) have a then current debt
service coverage ratio of not less than the original debt service coverage ratio
of the deleted Mortgage Loan as of the Closing Date and a current debt service
coverage ratio of not less than the current debt service coverage ratio of the
deleted Mortgage Loan; (x) constitute a "qualified replacement mortgage" within
the meaning of Section 860G(a)(4) of the Code as evidenced by an Opinion of
Counsel (provided at the applicable Mortgage Loan Seller's expense); (xi) not
have a maturity date after the date two years prior to the Rated Final
Distribution Date; (xii) have comparable prepayment restrictions; (xiii) not be
substituted for a deleted Mortgage Loan unless the Trustee has received prior
confirmation in writing by each Rating Agency that such substitution will not
result in the withdrawal, downgrade, or qualification of the rating assigned by
the Rating Agency to any Class of Certificates then rated by the Rating Agency
(the cost, if any, of obtaining such confirmation to be paid by the applicable
Mortgage Loan Seller); (xiv) have been approved by the Directing
Certificateholder; (xv) prohibit defeasance within two years of the Closing
Date; and (xvi) not be substituted for a deleted Mortgage Loan if it would
result in the termination of the REMIC status of any of the REMICs established
under this Agreement or the imposition of tax on any of such REMICs other than a
tax on income expressly permitted or contemplated to be received by the terms of
this Agreement, as determined by an Opinion of Counsel. In the event that more
than one mortgage loan is substituted for a deleted Mortgage Loan, then the
amounts described in clause (i) shall be determined on the basis of aggregate
Stated Principal Balances and each such proposed Substitute Mortgage Loan shall
individually satisfy each of the requirements specified in (i) through (xvi) and
the rates described in clause (ii) above and the remaining term to stated
maturity referred to in clause (v) above shall be determined on a weighted
average basis. When a Qualified Substitute Mortgage Loan is substituted for a
deleted Mortgage Loan, the applicable Mortgage Loan Seller shall certify that
the Mortgage Loan meets all of the requirements of the above definition and
shall send such certification to the Trustee. A Qualified Substitute Mortgage
Loan may not be substituted for the Simon Mortgage Loan.
"Rated Final Distribution Date": As to each Class of Certificates
(other than the Class S Certificates), October 12, 2037, the first Distribution
Date after the 24th month following the end of the amortization term for the
Mortgage Loan that, as of the Cut-off Date, has the longest remaining
amortization term. As to the Class S Certificates, October 12, 2017, the first
Distribution Date after the 60th month following the Maturity Date of the Simon
Mortgage Loan.
"Rating Agency": Each of Xxxxx'x and Fitch or their successors in
interest. If neither such rating agency nor any successor remains in existence,
"Rating Agency" shall be deemed to refer to such nationally recognized
statistical rating agency or other comparable Person designated by the
Depositor, notice of which designation shall be given to the Trustee and the
Servicer, and specific ratings of Xxxxx'x and Fitch herein referenced shall be
deemed to refer to the equivalent ratings of the party so designated.
"Record Date": With respect to any Distribution Date, the last
Business Day of the month immediately preceding the month in which such
Distribution Date occurs.
"Regular Certificate": Any of the Class A, 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 NR and Class X Certificates.
"Regulation D": Regulation D under the Act.
"Regulation S": Regulation S under the Act.
"Regulation S Book-Entry Certificates": The Regular Certificates
sold in offshore transactions in reliance on Regulation S and represented by one
or more Book-Entry Certificates deposited with the Trustee as custodian for the
Depository.
"Regulation S Investor": With respect to a transferee of a
Regulation S Book-Entry Certificate, a transferee that acquires such Certificate
pursuant to Regulation S.
"Regulation S Transfer Certificate": A certificate substantially in
the form of Exhibit I-1 or Exhibit I-2 hereto, as applicable.
"Reimbursement Rate": The rate per annum applicable to the accrual
of interest on Servicing Advances in accordance with Section 3.03(d) and P&I
Advances in accordance with Section 4.03(d), which rate per annum shall equal
the Prime Rate and shall be compounded annually.
"Related Certificates," "Related Uncertificated Lower-Tier
Interests," "Related Components of Class X Certificates" and "Related Loan REMIC
Regular Interests": For each of the following Classes of Uncertificated
Lower-Tier Interests, the related Class of Certificates and the related
Component(s) of Class X Certificates and the related Class of Loan REMIC Regular
Interests, if applicable; for the following Components of the Class X
Certificates, the related Class of Uncertificated Lower-Tier Interests, the
related Class of Loan REMIC Regular Interests and the related Class of
Certificates set forth below and for the following Classes of Loan REMIC Regular
Interests, the related Class of Uncertificated Lower-Tier Interests, the related
Components of the Class X Certificates and the related Class of Certificates set
forth below:
Related
Components Related Loan
Related Uncertificated of Class X REMIC Regular
Related Certificate Lower-Tier Interest Certificates Interest
------------------- ------------------- ------------ --------
Class A-1 Certificate Class LA-1-1 XA-1-1
Uncertificated Interest
Class LA-1-2 XA-1-2
Uncertificated Interest
Class LA-1-3 XA-1-3
Uncertificated Interest
Class LA-1-4 XA-1-4
Uncertificated Interest
Class LA-1-5 XA-1-5
Uncertificated Interest
Class LA-1-6 XA-1-6
Uncertificated Interest
Class A-2 Certificate Class LA-2-1 XA-2-1
Uncertificated Interest
Class LA-2-2 XA-2-2
Uncertificated Interest
Class B Certificate Class LB Uncertificated XB
Interest
Class C Certificate Class LC Uncertificated XC
Interest
Class D Certificate Class LD Uncertificated XD
Interest
Class E Certificate Class LE Uncertificated XE
Interest
Class F Certificate Class LF-1 XF
Uncertificated Interest
Class G Certificate Class LG-1 XG-1
Uncertificated Interest
Class LG-2 XG-2
Uncertificated Interest
Class H Certificate Class LH-1 XH-1
Uncertificated Interest
Class LH-2 XH-2
Uncertificated Interest
Class LH-3 XH-3
Uncertificated Interest
Class J Certificate Class LJ-1 XJ-1
Uncertificated Interest
Class LJ-2 XJ-2
Uncertificated Interest
Class K Certificate Class LK Uncertificated XK
Interest
Class L Certificate Class LL Uncertificated XL
Interest
Class M Certificate Class LM Uncertificated XM
Interest
Class N Certificate Class LN Uncertificated XN
Interest
Class NR Certificate Class LNR Uncertificated XNR
Interest
Class S-1 Certificate Class LS-1 N/A Class KS-1
Uncertificated Interest Uncertificated
Interest
Class S-2 Certificate Class LS-2 N/A Class KS-2
Uncertificated Interest Uncertificated
Interest
Class S-3 Certificate Class LS-3 N/A Class KS-3
Uncertificated Interest Uncertificated
Interest
"REMIC": A "real estate mortgage investment conduit" as defined in
Section 860D of the Code (or any successor thereto).
"REMIC Administrator": The Trustee or any REMIC administrator
appointed pursuant to Section 10.01.
"REMIC Provisions": Provisions of the federal income tax law
relating to real estate mortgage investment conduits, which appear at Sections
860A through 860G of Subchapter M of Chapter 1 of the Code, and related
provisions, and temporary and final Treasury regulations (or proposed
regulations that would apply by reason of their proposed effective date to the
extent not inconsistent with temporary or final regulations) and any rulings
promulgated thereunder, as the foregoing may be in effect from time to time.
"Rents from Real Property": With respect to any REO Property, gross
income of the character described in Section 856(d) of the Code.
"REO Account": A segregated custodial account or accounts created
and maintained by the Special Servicer pursuant to Section 3.16 on behalf of the
Trustee in trust for the Certificateholders, which shall be entitled "ARCap
Special Servicing, Inc., or the applicable successor Special Servicer, as
Special Servicer, for the benefit of Xxxxx Fargo Bank Minnesota, N.A., as
trustee, in trust for registered Holders of X.X. Xxxxxx Chase Commercial
Mortgage Securities Corp., Commercial Mortgage Pass-Through Certificates, Series
2002-CIBC5, REO Account." Any such account or accounts shall be an Eligible
Account.
"REO Acquisition": The acquisition for federal income tax purposes
of any REO Property pursuant to Section 3.09.
"REO Disposition": The sale or other disposition of the REO Property
pursuant to Section 3.18.
"REO Extension": As defined in Section 3.16(a).
"REO Loan": The Mortgage Loan deemed for purposes hereof to be
outstanding with respect to each REO Property. Each REO Loan shall be deemed to
be outstanding for so long as the related REO Property remains part of the Trust
Fund and provides for Assumed Scheduled Payments on each Due Date therefor, and
otherwise has the same terms and conditions as its predecessor Mortgage Loan,
including, without limitation, with respect to the calculation of the Mortgage
Rate in effect from time to time (such terms and conditions to be applied
without regard to the default on such predecessor Mortgage Loan). Each REO Loan
shall be deemed to have an initial outstanding principal balance and Stated
Principal Balance equal to the outstanding principal balance and Stated
Principal Balance, respectively, of its predecessor Mortgage Loan as of the date
of the related REO Acquisition. All amounts due and owing in respect of the
predecessor Mortgage Loan as of the date of the related REO Acquisition,
including, without limitation, accrued and unpaid interest, shall continue to be
due and owing in respect of a REO Loan. All amounts payable or reimbursable to
the Servicer, the Special Servicer or the Trustee, as applicable, in respect of
the predecessor Mortgage Loan as of the date of the related REO Acquisition,
including, without limitation, any unpaid Special Servicing Fees and Servicing
Fees and any unreimbursed Advances, additional Trust Fund expenses, together
with any interest accrued and payable to the Servicer or the Trustee in respect
of such Advances in accordance with Section 3.03(d) or Section 4.03(d), shall
continue to be payable or reimbursable to the Servicer or the Trustee in respect
of an REO Loan. Collections in respect of each REO Loan (exclusive of the
amounts to be applied to the payment of, or to be reimbursed to the Servicer or
the Special Servicer for the payment of the costs of operating, managing,
selling, leasing and maintaining the related REO Property) shall be treated:
first, as a recovery of accrued and unpaid interest on such REO Loan at the
related Mortgage Rate in effect from time to time to, but not including, the Due
Date in the Due Period of receipt (exclusive of any portion that constitutes
Excess Interest); second, as a recovery of principal of such REO Loan to the
extent of its entire unpaid principal balance and third, in accordance with the
Servicing Standards of the Servicer, as a recovery of any other amounts due and
owing in respect of such REO Loan, including, without limitation, (i) Yield
Maintenance Charges and Penalty Charges and (ii) Excess Interest and other
amounts, in that order.
"REO Loan Accrual Period": With respect to any REO Loan and any Due
Date therefor, the one-month period immediately preceding such Due Date.
"REO Property": A Mortgaged Property acquired by the Special
Servicer on behalf of, and in the name of, the Trustee or a nominee thereof for
the benefit of the Certificateholders (subject to the related AB Intercreditor
Agreement with respect to a Mortgaged Property securing a Loan Pair) and the
Trustee (as holder of the Uncertificated Lower-Tier Interests) through
foreclosure, acceptance of a deed-in-lieu of foreclosure or otherwise in
accordance with applicable law in connection with the default or imminent
default of a Mortgage Loan.
"REO Revenues": All income, rents and profits derived from the
ownership, operation or leasing of any REO Property.
"Request for Release": A release signed by a Servicing Officer of
the Servicer or the Special Servicer, as applicable, in the form of Exhibit E
attached hereto.
"Residual Certificate": Any Class R Certificate or Class LR
Certificate issued, authenticated and delivered hereunder.
"Responsible Officer": When used with respect to each of the initial
Trustee, any Vice President or corporate trust officer in its corporate trust
department, and with respect to any successor Trustee, any officer or assistant
officer in the corporate trust department of the Trustee or any other officer of
the Trustee customarily performing functions similar to those performed by any
of the above designated officers to whom a particular matter is referred by the
Trustee because of such officer's knowledge of and familiarity with the
particular subject.
"Restricted Period": The 40-day period prescribed by Regulation S
commencing on the later of (a) the date upon which Certificates are first
offered to Persons other than the Initial Purchasers and any other distributor
(as such term is defined in Regulation S) of the Certificates and (b) the
Closing Date.
"Retained Fee Rate": A rate of 0.01% per annum.
"Revised Rate": With respect to those Mortgage Loans on the Mortgage
Loan Schedule indicated as having a revised rate, the increased interest rate
after the Anticipated Repayment Date (in the absence of a default) for each
applicable Mortgage Loan, as calculated and as set forth in the related Mortgage
Loan.
"Ridge Park Intercreditor Agreement": That certain Subordination and
Intercreditor Agreement, dated June 28 2002, between JPMorgan Chase Bank, as
mortgage lender, and Compass Bank, as mezzanine lender. The Ridge Park
Intercreditor Agreement relates to the Mortgage Loan identified on the Mortgage
Loan Schedule as loan number 21.
"Ridge Park Mezzanine Lender": The "Mezzanine Lender" as defined in
the Ridge Park Intercreditor Agreement.
"Rule 144A": Rule 144A under the Act.
"Rule 144A Book-Entry Certificate": With respect to any Class of
Certificates offered and sold in reliance on Rule 144A, a single, permanent
Book-Entry Certificate, in definitive, fully registered form without interest
coupons.
"S&P": Standard & Poor's Ratings Services, a division of The McGraw
Hill Companies, Inc., and its successors in interest. If neither S&P nor any
successor remains in existence, "S&P" shall be deemed to refer to such other
nationally recognized statistical rating agency or other comparable Person
designated by the Depositor, notice of which designation shall be given to the
Trustee, the Servicer and the Special Servicer, and specific ratings of S&P
herein referenced shall be deemed to refer to the equivalent ratings of the
party so designated.
"Scheduled Principal Distribution Amount": With respect to any
Distribution Date and the Mortgage Loans, the aggregate of the principal
portions of (a) all Monthly Payments (excluding Balloon Payments and Excess
Interest) due in respect of the Mortgage Loans during or, if and to the extent
not previously received or advanced pursuant to Section 4.03 in respect of a
preceding Distribution Date, on or prior to, the related Due Period, and all
Assumed Scheduled Payments for the related Due Period, in each case to the
extent either (i) paid by the Mortgagor as of the Determination Date (or, with
respect to each Mortgage Loan with a Due Date occurring or a grace period ending
after the related Determination Date, the related Due Date or last day of such
grace period, as applicable) (and not previously distributed to
Certificateholders) or (ii) advanced by the Servicer or the Trustee, as
applicable, pursuant to Section 4.03 in respect of such Distribution Date, and
(b) all Balloon Payments to the extent received during the related Due Period
(including any applicable grace periods), and to the extent not included in
clause (a) above.
"Securities Act": The Securities Act of 1933, as it may be amended
from time to time.
"Security Agreement": With respect to any Mortgage Loan, any
security agreement or equivalent instrument, whether contained in the related
Mortgage or executed separately, creating in favor of the holder of such
Mortgage a security interest in the personal property constituting security for
repayment of such Mortgage Loan.
"Servicer": Wachovia Bank, National Association, a national banking
association, and its successors in interest and assigns, or any successor
Servicer appointed as herein provided.
"Servicing Account": The account or accounts created and maintained
pursuant to Section 3.03.
"Servicing Advances": All customary, reasonable and necessary "out
of pocket" costs and expenses (including attorneys' fees and expenses and fees
of real estate brokers) incurred by the Servicer, Special Servicer or the
Trustee, as applicable, in connection with the servicing and administering of
(a) a Mortgage Loan in respect of which a default, delinquency or other
unanticipated event has occurred or as to which a default is reasonably
foreseeable or (b) an REO Property, including, but not limited to, the cost of
(i) compliance with the Servicer's obligations set forth in Section 3.03(c),
(ii) the preservation, restoration and protection of a Mortgaged Property, (iii)
obtaining any Insurance and Condemnation Proceeds or any Liquidation Proceeds of
the nature described in clauses (i)-(iv) of the definition of "Liquidation
Proceeds," (iv) any enforcement or judicial proceedings with respect to a
Mortgaged Property, including foreclosures and (v) the operation, leasing,
management, maintenance and liquidation of any REO Property. Notwithstanding
anything to the contrary, "Servicing Advances" shall not include allocable
overhead of the Servicer or the Special Servicer, such as costs for office
space, office equipment, supplies and related expenses, employee salaries and
related expenses and similar internal costs and expenses or costs and expenses
incurred by any such party in connection with its purchase of a Mortgage Loan or
REO Property.
"Servicing Fee": With respect to each Mortgage Loan, Companion
Loan]\ and REO Loan, the fee payable to the Servicer pursuant to the first
paragraph of Section 3.11(a).
"Servicing Fee Rate": A rate equal to the per annum rate set forth
on the Mortgage Loan Schedule under the heading "Servicing Fee Rate," in each
case computed on the basis of the Stated Principal Balance of the related
Mortgage Loan and ranging from 0.040% to 0.120%, with a weighted average as of
the Cut-off Date of 0.047%.
"Servicing File": Shall mean a photocopy of all items required to be
included in the Mortgage File, together with each of the following, to the
extent such items were actually delivered to the related Mortgage Loan Seller
with respect to a Mortgage Loan: (i) a copy of any engineering reports or
property condition reports; and (ii) other than with respect to a hotel
property, copies of a rent roll and, for any office, retail, industrial or
warehouse property, a copy of all leases delivered to the Mortgage Loan Seller;
and (iii) copies of related financial statements or operating statements; and
(iv) all legal opinions, Mortgagor's Certificates and certificates of hazard
insurance and/or hazard insurance policies delivered in connection with the
closing of the Mortgage Loan.
"Servicing Officer": Any officer and/or employee of the Servicer or
the Special Servicer involved in, or responsible for, the administration and
servicing of the Mortgage Loans, whose name and specimen signature appear on a
list of servicing officers furnished by the Servicer and the Special Servicer to
the Trustee and the Depositor on the Closing Date as such list may be amended
from time to time thereafter.
"Servicing-Released Bid": As defined in Section 7.01(c).
"Servicing-Retained Bid": As defined in Section 7.01(c).
"Servicing Standards": As defined in Section 3.01(a).
"Servicing Transfer Event": With respect to any Mortgage Loan, the
occurrence of any of the following events:
(i) with respect to a Mortgage Loan that is not a Balloon
Mortgage Loan, (a) a payment default shall have occurred at its
original maturity date, or (b) if the original maturity date of such
Mortgage Loan has been extended, a payment default shall have
occurred at such extended maturity date; or
(ii) with respect to each Balloon Mortgage Loan, (a) a payment
is delinquent and the related Mortgagor has not provided the
Servicer on the related maturity date with a bona fide written
commitment for refinancing, reasonably satisfactory in form and
substance to the Servicer, which provides that such refinancing will
occur within 150 days, provided that if such refinancing does not
occur, the related Mortgage Loan will become a Specially Serviced
Mortgage Loan at the end of such 150-day period (or for such shorter
period beyond the date on which that balloon payment was due within
which the refinancing is scheduled to occur); or
(iii) any Monthly Payment (other than a Balloon Payment) is
more than 60 days delinquent; or
(iv) determination by the Servicer or receipt by the Servicer
of a written determination of the Special Servicer that a payment
default is imminent and is not likely to be cured by the related
Mortgagor within 60 days; or
(v) a decree or order of a court or agency or supervisory
authority having jurisdiction in the premises in an involuntary case
under any present or future federal or state bankruptcy, insolvency
or similar law, or the appointment of a conservator, receiver or
liquidator in any insolvency, readjustment of debt, marshaling of
assets and liabilities or similar proceedings, or for the winding-up
or liquidation of its affairs, is entered against the related
Mortgagor; provided, that if such decree or order is discharged or
stayed within 60 days of being entered, or if, as to a bankruptcy,
the automatic stay is lifted within 60 days of a filing for relief
or the case is dismissed, such Mortgage Loan shall not be a
Specially Serviced Mortgage Loan (and no Special Servicing Fees,
Workout Fees or Liquidation Fees will be payable with respect
thereto); or
(vi) the related Mortgagor shall consent to the appointment of
a conservator or receiver or liquidator in any insolvency,
readjustment of debt, marshaling of assets and liabilities or
similar proceedings of or relating to such Mortgagor or of or
relating to all or substantially all of its property; or
(vii) the related Mortgagor shall admit in writing its
inability to pay its debts generally as they become due, file a
petition to take advantage of any applicable insolvency or
reorganization statute, make an assignment for the benefit of its
creditors, or voluntarily suspend payment of its obligations; or
(viii) a default of which the Servicer has notice (other than
a failure by such Mortgagor to pay principal or interest) and which
in the opinion of the Servicer materially and adversely affects the
interests of the Certificateholders has occurred and remained
unremedied for the applicable grace period specified in such
Mortgage Loan (or if no grace period is specified for those defaults
which are capable of cure, 60 days);or
(ix) the Servicer has received notice of the foreclosure or
proposed foreclosure of any lien on the related Mortgaged Property;
or
(x) if any Companion Loan becomes a Specially Serviced
Mortgage Loan, the corresponding Mortgage Loan shall also become a
Specially Serviced Mortgage Loan. If any AB Mortgage Loan becomes a
Specially Serviced Mortgage Loan, the corresponding Companion Loan
shall become a Specially Serviced Mortgage Loan.
"Similar Law": As defined in Section 5.02(c).
"Simon Available Distribution Amount": With respect to any
Distribution Date, an amount equal to the sum of (without duplication):
(a) the aggregate amount relating to the Simon Mortgage Loan on
deposit in the Simon Collection Account and the Loan REMIC Distribution
Account (exclusive of any Net Investment Earnings contained therein) as of
the close of business on the Business Day preceding the related P&I
Advance Date, exclusive of (without duplication):
(i) all Monthly Payments that are due on a Due Date following
the end of the related Due Period with respect to the Simon Mortgage
Loan;
(ii) all Principal Prepayments (together with any related
payments of interest allocable to the period following the Due Date
for the Simon Mortgage Loan during the related Due Period),
Liquidation Proceeds and Insurance and Condemnation Proceeds
received after the end of the related Due Period with respect to the
Simon Mortgage Loan;
(iii) all amounts payable or reimbursable to any Person from
the Simon Collection Account pursuant to clauses (ii) through (xvi),
inclusive, of Section 3.05(a);
(iv) all amounts payable or reimbursable to any Person from
the Loan REMIC Distribution Account pursuant to clauses (iii)
through (viii), inclusive, of Section 3.05(b);
(v) Excess Interest;
(vi) all Yield Maintenance Charges;
(vii) all amounts deposited in the Simon Collection Account or
Loan REMIC Distribution Account, as the case may be, in error; and
(viii) with respect to any Distribution Date relating to each
Interest Accrual Period ending in (1) each January or (2) any
December in a year immediately preceding a year which is not a leap
year, an amount equal to one day of interest on the Stated Principal
Balance of the Simon Mortgage Loan as of the Due Date in the month
preceding the month in which such Distribution Date occurs at the
related Mortgage Rate to the extent such amounts are to be deposited
in the Interest Reserve Account and held for future distribution
pursuant to Section 3.26;
(b) if and to the extent not already included in clause (a) hereof,
the aggregate amount transferred from the REO Account to the Simon
Collection Account for such Distribution Date pursuant to Section 3.16(c);
(c) the aggregate amount of any P&I Advances made by the Servicer or
the Trustee, as applicable, for such Distribution Date pursuant to Section
4.03 or 7.05 (net of the related Trustee Fee) with respect to the Simon
Mortgage Loan; and
(d) for the Distribution Date occurring in each March, the Withheld
Amount remitted to the Loan REMIC Distribution Account pursuant to Section
3.26(b).
"Simon Collateral Support Deficit": As defined in Section 4.04(b).
"Simon Collection Account": An account created and maintained by the
Servicer pursuant to Section 3.04(a) on behalf of the Trustee in trust for the
Certificateholders, which may be a sub-account of the Collection Account, which
shall be entitled "Wachovia Bank, National Association, as Servicer, in trust
for the registered holders of X.X. Xxxxxx Xxxxx Commercial Mortgage Securities
Corp., Commercial Mortgage Pass-Through Certificates, Series 2002-CIBC5, Simon
Collection Account." Any such account shall be an Eligible Account.
"Simon Controlling Holder": As defined in Section 3.29(j).
"Simon Default Distribution Priority": As defined in Section
4.01(k).
"Simon Mortgage Loan": The Mortgage Loan identified on the Mortgage
Loan Schedule as loan number 1.
"Simon Mortgage Loan Remittance Rate": With respect to the Loan
REMIC Pooled Regular Interest and any Distribution Date, a per annum rate equal
to 5.7370%. With respect to each of the Class KS-1 and Class LS-1 Uncertificated
Interests and any Distribution Date, a per annum rate equal to the Class S-1
Pass-Through Rate. With respect to each of the Class KS-2 and Class LS-2
Uncertificated Interests and any Distribution Date, a per annum rate equal to
the Class S-2 Pass-Through Rate. With respect to each of the Class KS-3 and
Class LS-3 Uncertificated Interests and any Distribution Date, a per annum rate
equal to the Class S-3 Pass-Through Rate.
"Simon Non-Pooled Balance": With respect to each Simon Non-Pooled
Component, the aggregate principal amount of such Simon Non-Pooled Component
outstanding from time to time which, on the Closing Date, shall equal
$17,786,013. On each Distribution Date, the Simon Non-Pooled Balance shall be
reduced by the amount of any distributions of principal allocated in respect of
the Simon Non-Pooled Component on such Distribution Date pursuant to Section
4.01(j)(vii), Sections 4.01(k)(vii), (viii) and (ix) or Section 9.01, as
applicable, and shall be further reduced by the amount of any Simon Collateral
Support Deficit and additional Trust Fund expenses incurred with respect to the
Simon Mortgage Loan allocated to the Related Class S Certificates on such
Distribution Date pursuant to Section 4.04(a). The Simon Non-Pooled Balance will
be increased on any Distribution Date by the amount of any Certificate Deferred
Interest attributable to the Simon Mortgage Loan allocated to any Class of Class
S Certificates on such Distribution Date. Distributions in respect of a
reimbursement of a Simon Collateral Support Deficit and additional Trust Fund
expenses in respect of the Simon Mortgage Loan previously allocated to any Class
of Class S Certificates shall not constitute distributions of principal and
shall not result in reduction of the Simon Non-Pooled Balance.
"Simon Non-Pooled Component": The three separate subordinate
ownership interests in the Loan REMIC represented by each of the Class KS-1,
Class KS-2 and Class KS-3 Uncertificated Interests.
"Simon Non-Pooled Percentage": For any Distribution Date, a fraction
expressed as a percentage, the numerator of which is the Simon Non-Pooled
Balance for such Distribution Date and the denominator of which is the sum of
(a) the Simon Non-Pooled Balance for such Distribution Date and (b) the Simon
Pooled Balance for such Distribution Date.
"Simon Pooled Balance": The principal balance of the Simon Pooled
Component outstanding from time to time which, as of the Closing Date is equal
to $106,915,919. On each Distribution Date, the Simon Pooled Balance shall be
reduced by the amount of any distributions of principal allocated in respect of
the Simon Pooled Component on such Distribution Date pursuant to Sections
4.01(j)(ii) or (k)(ii) or Section 9.01, as applicable, and shall be further
reduced by the amount of any Simon Collateral Support Deficit and additional
Trust Fund expenses incurred with respect to the Simon Mortgage Loan allocated
to any Class of Regular Certificates on such Distribution Date pursuant to
Section 4.04(a). The Simon Pooled Balance will be increased on any Distribution
Date by the amount of any Certificate Deferred Interest attributable to the
Simon Mortgage Loan allocated to any Class of Regular Certificates on such
Distribution Date. Distributions in respect of a reimbursement of a Simon
Collateral Support Deficit and additional Trust Fund expenses in respect of the
Simon Mortgage Loan previously allocated to any Class of Regular Certificates
shall not constitute distributions of principal and shall not result in
reduction of the Simon Pooled Balance.
"Simon Pooled Component": An undivided senior ownership interest in
the Loan REMIC represented by the Loan REMIC Pooled Regular Interest.
"Simon Pooled Percentage": For any Distribution Date, a fraction
expressed as a percentage, the numerator of which is (x) the Simon Pooled
Balance for such Distribution Date and the denominator of which is (y) the sum
of (a) the Simon Pooled Balance for such Distribution Date and (b) the Simon
Non-Pooled Balance for such Distribution Date.
"Simon Principal Distribution Amount": With respect to any
Distribution Date, an amount equal to the sum of (a) the Simon Principal
Shortfall for such Distribution Date, (b) the portion of the Scheduled Principal
Distribution Amount for such Distribution Date that relates to the Simon
Mortgage Loan and (c) the portion of the Unscheduled Principal Distribution
Amount for such Distribution Date that relates to the Simon Mortgage Loan.
"Simon Principal Shortfall": For any Distribution Date after the
initial Distribution Date, the amount, if any, by which (a) the Simon Principal
Distribution Amount for the preceding Distribution Date, exceeds (b) the
aggregate amount distributed in respect of principal on the Loan REMIC Pooled
Regular Interest and the Class S Certificates for such preceding Distribution
Date. The Simon Principal Shortfall for the initial Distribution Date will be
zero.
"Simon Representative": As defined in Section 3.29(j).
"Special Servicer": ARCap Special Servicing, Inc., a Delaware
corporation, and its successors and assigns, or any successor Special Servicer
appointed as herein provided.
"Special Servicing Fee": With respect to each Specially Serviced
Mortgage Loan and REO Loan, the fee payable to the Special Servicer pursuant to
the first paragraph of Section 3.11(b).
"Special Servicing Fee Rate": With respect to each Specially
Serviced Mortgage Loan and each REO Loan, 0.25% per annum computed on the basis
of the Stated Principal Balance of the related Mortgage Loan in the same manner
as interest is calculated on the Specially Serviced Mortgage Loans.
"Specially Serviced Mortgage Loan": As defined in Section 3.01(a).
"Startup Day": The day designated as such in Section 10.01(b).
"Stated Principal Balance": With respect to any Mortgage Loan, as of
any date of determination, an amount equal to (x) the Cut-off Date Principal
Balance of such Mortgage Loan, plus (y) any Mortgage Deferred Interest added to
the principal balance of such Mortgage Loan on or before the end of the
immediately preceding Due Period minus (z) the sum of:
(i) the principal portion of each Monthly Payment due on such
Mortgage Loan after the Cut-off Date, to the extent received from
the Mortgagor or advanced by the Servicer and distributed to
Certificateholders on or before such date of determination;
(ii) all Principal Prepayments received with respect to such
Mortgage Loan after the Cut-off Date, to the extent distributed to
Certificateholders on or before such date of determination;
(iii) the principal portion of all Insurance and Condemnation
Proceeds and Liquidation Proceeds received with respect to such
Mortgage Loan after the Cut-off Date, to the extent distributed to
Certificateholders on or before such date of determination;
(iv) Special Servicing Fees, Liquidation Fees, accrued
interest on Advances and other additional Trust Fund expenses
incurred in connection with the related Mortgage Loan on or before
such date of determination that were applied to reduce the
Unscheduled Principal Distribution Amount for the related
Distribution Date; and
(v) any reduction in the outstanding principal balance of such
Mortgage Loan resulting from a Deficient Valuation that occurred
prior to the end of the Due Period for the most recent Distribution
Date.
With respect to any REO Loan, as of any date of determination, an
amount equal to (x) the Stated Principal Balance of the predecessor Mortgage
Loan as of the date of the related REO Acquisition, minus (y) the sum of:
(i) the principal portion of any P&I Advance made with respect
to the predecessor Mortgage Loan on or after the date of the related
REO Acquisition, to the extent distributed to Certificateholders on
or before such date of determination;
(ii) the principal portion of all Insurance and Condemnation
Proceeds, Liquidation Proceeds, REO Revenues received with respect
to such REO Loan, to the extent distributed to Certificateholders on
or before such date of determination; and
(iii) Special Servicing Fees, Liquidation Fees, accrued
interest on Advances and other additional Trust Fund expenses
incurred in connection with the related Mortgage Loan on or before
such date of determination that were applied to reduce the
Unscheduled Principal Distribution Amount for the related
Distribution Date.
A Mortgage Loan or a REO Loan shall be deemed to be part of the
Trust Fund and to have an outstanding Stated Principal Balance until the
Distribution Date on which the payments or other proceeds, if any, received in
connection with a Liquidation Event in respect thereof are to be (or, if no such
payments or other proceeds are received in connection with such Liquidation
Event, would have been) distributed to Certificateholders.
With respect to any Companion Loan on any date of determination, the
Stated Principal Balance shall equal the unpaid principal balance of such
Companion Loan.
"Statement to Certificateholders": As defined in Section 4.02(a).
"Subordinate Certificate": Any Class B, Class C, Class D, Class E,
Class F, Class G, Class H, Class J, Class K, Class L, Class M, Class N or Class
NR Certificate.
"Sub-Servicer": Any Person with which the Servicer has entered into
a Sub-Servicing Agreement.
"Sub-Servicing Agreement": The written contract between the Servicer
or the Special Servicer, as the case may be, and any Sub-Servicer relating to
servicing and administration of Mortgage Loans as provided in Section 3.22.
"Substitution Shortfall Amount": With respect to a substitution
pursuant to Section 2.03(b) hereof, an amount equal to the excess, if any, of
the Purchase Price of the Mortgage Loan being replaced calculated as of the date
of substitution over the Stated Principal Balance of the related Qualified
Substitute Mortgage Loan after application of all scheduled payments of
principal and interest due during or prior to the month of substitution. In the
event that one or more Qualified Substitute Mortgage Loans are substituted (at
the same time) for one or more deleted Mortgage Loans, the Substitution
Shortfall Amount shall be determined as provided in the preceding sentence on
the basis of the aggregate Purchase Prices of the Mortgage Loan or Mortgage
Loans being replaced and the aggregate Stated Principal Balances of the related
Qualified Substitute Mortgage Loans.
"Successful Bidder": As defined in Section 7.01(c).
"Super 8-Manassas AB Mortgage Loan": That certain Mortgage Loan
identified on the Mortgage Loan Schedule as loan number 99.
"Super 8-Manassas Companion Holder": The holder of the Super
8-Manassas Companion Loan.
"Super 8-Manassas Companion Loan": That certain loan evidenced by a
note, which is not an asset of the Trust Fund, secured by the Mortgaged Property
securing the Super 8-Manassas AB Mortgage Loan.
"Super 8-Manassas Intercreditor Agreement": The Intercreditor and
Servicing Agreement, dated as of November 1, 2002, between CIBC Inc., as lead
lender, and CIBC Inc., as co-lender. The Super 8-Manassas Intercreditor
Agreement relates to the Super 8-Manassas AB Mortgage Loan.
"Super 8-Manassas Loan Pair": The Super 8-Manassas AB Mortgage Loan,
together with the Super 8-Manassas Companion Loan.
"Super 8-Manassas Mortgaged Property": The property subject to the
lien of the Mortgage securing the Super 8-Manassas Loan Pair.
"Tax Returns": The federal income tax returns on Internal Revenue
Service Form 1066, U.S. Real Estate Mortgage Investment Conduit Income Tax
Return, including Schedule Q thereto, Quarterly Notice to Residual Interest
Holders of REMIC Taxable Income or Net Loss Allocation, or any successor forms,
to be filed on behalf of the Upper-Tier REMIC, the Lower-Tier REMIC and the Loan
REMIC due to its classification as a REMIC under the REMIC Provisions, and the
applicable federal income tax returns to be filed on behalf of the Grantor
Trust, together with any and all other information, reports or returns that may
be required to be furnished to the Certificateholders or filed with the Internal
Revenue Service or any other governmental taxing authority under any applicable
provisions of federal tax law or Applicable State and Local Tax Law.
"Transfer": Any direct or indirect transfer, sale, pledge,
hypothecation, or other form of assignment of any Ownership Interest in a
Certificate.
"Transfer Affidavit": As defined in Section 5.02(d).
"Transferee": Any Person who is acquiring by Transfer any Ownership
Interest in a Certificate.
"Transferor": Any Person who is disposing by Transfer any Ownership
Interest in a Certificate.
"Transferor Letter": As defined in Section 5.02(d).
"Trust": The trust created hereby and to be administered hereunder.
"Trust Fund": The corpus of the trust created hereby and to be
administered hereunder, consisting of: (i) such Mortgage Loans as from time to
time are subject to this Agreement, together with the Mortgage Files relating
thereto; (ii) all scheduled or unscheduled payments on or collections in respect
of the Mortgage Loans due after the Cut-Off Date; (iii) any REO Property (to the
extent of the Trust Fund's interest therein); (iv) all revenues received in
respect of any REO Property (to the extent of the Trust Fund's interest
therein); (v) the Servicer's, the Special Servicer's and the Trustee's rights
under the insurance policies with respect to the Mortgage Loans required to be
maintained pursuant to this Agreement and any proceeds thereof (to the extent of
the Trust Fund's interest therein); (vi) any Assignments of Leases and any
security agreements (to the extent of the Trust Fund's interest therein); (vii)
any letters of credit, indemnities, guaranties or lease enhancement policies
given as additional security for any Mortgage Loans (to the extent of the Trust
Fund's interest therein); (viii) all assets deposited in the Servicing Accounts
(to the extent of the Trust Fund's interest therein), amounts on deposit in the
Certificate Account, the Loan REMIC Distribution Account, the Lower-Tier
Distribution Account, the Upper-Tier Distribution Account, the Excess Interest
Distribution Account, the Interest Reserve Account, the Gain-on-Sale Reserve
Account and any REO Account (to the extent of the Trust Fund's interest in such
REO Account), including any reinvestment income, as applicable; (ix) any
Environmental Indemnity Agreements (to the extent of the Trust Fund's interest
therein); (x) the rights and remedies under each Mortgage Loan Purchase
Agreement; (xi) the Uncertificated Lower-Tier Interests; and (xii) the proceeds
of the foregoing (other than any interest earned on deposits in the Lock-Box
Accounts, Cash Collateral Accounts, Escrow Accounts and any Reserve Accounts, to
the extent such interest belongs to the related Mortgagor).
"Trustee": Xxxxx Fargo Bank Minnesota, N.A., a national banking
association, in its capacity as trustee and its successors in interest, or any
successor trustee appointed as herein provided.
"Trustee Exception Report": As defined in Section 2.02(f).
"Trustee Fee": The fee to be paid to the Trustee as compensation for
the Trustee's activities under this Agreement.
"Trustee Fee Rate": A rate equal to 0.0023% per annum computed on
the basis of the Stated Principal Balance of the related Mortgage Loan (and in
the same manner as interest is calculated on the related Mortgage Loan) as of
the preceding Distribution Date.
"UCC": The Uniform Commercial Code, as enacted in each applicable
state.
"UCC Financing Statement": A financing statement executed and filed
pursuant to the UCC, as in effect in the relevant jurisdiction.
"Uncertificated Lower-Tier Interests": 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 LB, Class LC, Class LD, Class LE, Class LF, Class
LG-1, Class LG-2, Class LH-1, Class LH-2, Class LH-3, Class LJ-1, Class LJ-2,
Class LK, Class LL, Class LM, Class LN, Class LNR, Class LS-1, Class LS-2 and
Class LS-3 Uncertificated Interests.
"Underwriters": X.X. Xxxxxx Securities Inc., CIBC World Markets
Corp., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated and Xxxxxxx Xxxxx
Barney Inc.
"Underwritten Debt Service Coverage Ratio": With respect to any
Mortgage Loan, the ratio of (i) Underwritten Net Cash Flow produced by the
related Mortgaged Property to (ii) the aggregate amount of the Monthly Payments
due for the 12-month period immediately following the Cut-off Date, except with
respect to those Mortgage Loans identified on Schedule 4 where Monthly Payments
pay interest only for a specified period of time set forth in the related
Mortgage Loan documents and then pay principal and interest, but for purposes of
this definition only, shall be assumed to include interest and principal (based
upon the amortization schedule length indicated on Schedule 4).
"Underwritten Net Cash Flow": With respect to any Mortgaged
Property, the estimated annual revenue derived from the use and operation of
such Mortgaged Property, less estimated annual expenses, including operating
expenses (such as utilities, administrative expenses, repairs and maintenance,
tenant improvement costs, leasing commissions, management fees and advertising),
fixed expenses (such as insurance, real estate taxes and, if applicable, ground
lease payments) and replacement reserves and an allowance for vacancies and
credit losses. In calculating Underwritten Net Cash Flow, certain non-operating
items such as depreciation, amortization, partnership distributions, financing
fees and capital expenditures other than applicable reserves, are not included
as expenses.
"Uninsured Cause": Any cause of damage to property subject to a
Mortgage such that the complete restoration of such property is not fully
reimbursable by the hazard insurance policies or flood insurance policies
required to be maintained pursuant to Section 3.07.
"Unscheduled Principal Distribution Amount": With respect to any
Distribution Date and the Mortgage Loans, the aggregate of (a) all Principal
Prepayments received on the Mortgage Loans on or prior to the Determination Date
(or, with respect to each Mortgage Loan with a Due Date occurring after the
related Determination Date, the related Due Date) and (b) the principal portions
of all Liquidation Proceeds, Insurance and Condemnation Proceeds (net of Special
Servicing Fees, Liquidation Fees, accrued interest on Advances and other
additional Trust Fund expenses incurred in connection with the related Mortgage
Loan) and, if applicable, REO Revenues received with respect to the Mortgage
Loans and any REO Loans on or prior to the related Determination Date, but in
each case only to the extent that such principal portion represents a recovery
of principal for which no advance was previously made pursuant to Section 4.03
in respect of a preceding Distribution Date.
"Upper-Tier Distribution Account": The segregated account or
accounts (or a subaccount of the Distribution 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, in trust
for the registered Holders of X.X. Xxxxxx Chase Commercial Mortgage Securities
Corp., Commercial Mortgage Pass-Through Certificates, Series 2002-CIBC5,
Upper-Tier Distribution Account." Any such account or accounts shall be an
Eligible Account (or a subaccount of the Distribution Account).
"Upper-Tier REMIC": One of the three separate REMICs comprising the
Trust Fund, the assets of which consist of the Uncertificated Lower-Tier
Interests and such amounts as shall from time to time be held in the Upper-Tier
Distribution Account.
"U.S. Dollars": Lawful money of the United States of America.
"U.S. Person": A citizen or resident of the United States, a
corporation or partnership (except to the extent provided in applicable Treasury
Regulations) or other entity created or organized in, or under the laws of, the
United States, any State or the District of Columbia, including any entity
treated as a corporation or partnership for federal income tax purposes, an
estate whose income is subject to United States federal income tax regardless of
its source or a trust if a court within the United States is able to exercise
primary supervision over the administration of such trust, and one or more such
U.S. Persons have the authority to control all substantial decisions of such
trust (or, to the extent provided in applicable Treasury Regulations, certain
trusts in existence on August 20, 1996 which are eligible to elect to be treated
as U.S. Persons).
"Voting Rights": The portion of the voting rights of all of the
Certificates which is allocated to any Certificate. At all times during the term
of this Agreement, the Voting Rights shall be allocated among the various
Classes of Certificateholders as follows: (i) 4% in the case of the Class X
Certificates (allocated pro rata between the Class X-1 and Class X-2
Certificates based upon their Class Notional Amounts), and (ii) in the case of
any other Class of Regular Certificates a percentage equal to the product of 96%
and a fraction, the numerator of which is equal to the aggregate Certificate
Balance of such Class, in each case, determined as of the Distribution Date
immediately preceding such time, and the denominator of which is equal to the
aggregate Certificate Balance of the Regular Certificates, each determined as of
the Distribution Date immediately preceding such time. None of the Class S-1,
Class S-2, Class S-3, Class R Certificates nor the Class LR Certificates will be
entitled to any Voting Rights. Voting Rights allocated to a Class of
Certificateholders shall be allocated among such Certificateholders in
proportion to the Percentage Interests evidenced by their respective
Certificates. Appraisal Reductions shall not result in a change in the Class
Voting Rights of any Class of Regular Certificates.
"Weighted Average Net Mortgage Rate": With respect to any
Distribution Date, the weighted average of the applicable Net Mortgage Rates of
the Mortgage Loans (or in the case of the Simon Mortgage Loan, the Simon Pooled
Component) as of the first day of the related Due Period, weighted on the basis
of their respective Stated Principal Balances (or in the case of the Simon
Mortgage Loan, the Simon Pooled Balance) as of the first day of such Due Period
(after giving effect to any payments received during any applicable grace
period).
"Withheld Amounts": As defined in Section 3.26(a).
"Workout Fee": The fee paid to the Special Servicer with respect to
each Corrected Mortgage Loan.
"Workout Fee Rate": A fee of 1.00% of each collection (other than
Penalty Charges) of interest and principal (other than any amount for which a
Liquidation Fee would be paid), including (i) Monthly Payments, (ii) Balloon
Payments and (iii) payments (other than those included in clause (i) or (ii) of
this definition) at maturity, received on each Corrected Mortgage Loan for so
long as it remains a Corrected Mortgage Loan.
"Yield Maintenance Charge": With respect to any Mortgage Loan or REO
Loan, the yield maintenance charge or prepayment premium set forth in the
related Mortgage Loan documents; provided that no amounts shall be considered
Yield Maintenance Charges until there has been a full recovery of all principal,
interest and other amounts due under the related Mortgage Loan.
Section 1.02 Certain Calculations.
Unless otherwise specified herein, for purposes of determining
amounts with respect to the Certificates and the rights and obligations of the
parties hereto, the following provisions shall apply:
(i) All calculations of interest (other than as provided in the
Mortgage Loan documents) provided for herein shall be made on the basis of
a 360-day year consisting of twelve 30-day months.
(ii) Any Mortgage Loan payment is deemed to be received on the date
such payment is actually received by the Servicer, the Special Servicer or
the Trustee; provided, however, that for purposes of calculating
distributions on the Certificates, Principal Prepayments with respect to
any Mortgage Loan are deemed to be received on the date they are applied
in accordance with the Servicing Standards consistent with the terms of
the related Mortgage Note and Mortgage to reduce the outstanding principal
balance of such Mortgage Loan on which interest accrues.
(iii) Any reference to the Certificate Balance of any Class of
Certificates on or as of a Distribution Date shall refer to the
Certificate Balance of such Class of Certificates on such Distribution
Date after giving effect to (a) any distributions made on such
Distribution Date pursuant to Section 4.01(a), (b) any Collateral Support
Deficit allocated to such Class on such Distribution Date pursuant to
Section 4.04 and (c) the addition of any Certificate Deferred Interest
allocated to such Class and added to such Certificate Balance pursuant to
Section 4.06(b).
(iv) For purposes of calculations required herein, Excess Interest
shall not be added to the outstanding principal balance of the Mortgage
Loans notwithstanding that the related Loan Documents may provide
otherwise.
[End of Article I]
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01 Conveyance of Mortgage Loans.
(a) The Depositor, concurrently with the execution and delivery
hereof, does hereby establish a trust, appoint the Trustee as trustee of the
trust, assign, sell, transfer and convey to the Trustee, in trust, without
recourse, for the benefit of the Certificateholders and the Trustee (as holder
of the Uncertificated Lower-Tier Interests and the Loan REMIC Regular Interests)
all the right, title and interest of the Depositor, including any security
interest therein for the benefit of the Depositor, in, to and under (i) the
Mortgage Loans identified on the Mortgage Loan Schedule, (ii) Sections 1, 2, 3,
4, 5, 6(a), 6(c), 6(d), 6(e), 6(f), 6(g), 7, 11, 12, 14, 15, 16, 18 and 20 of
each of the Mortgage Loan Purchase Agreements, and (iii) all other assets
included or to be included in the Trust Fund. Such assignment includes all
interest and principal received or receivable on or with respect to the Mortgage
Loans (other than payments of principal and interest due and payable on the
Mortgage Loans on or before the Cut-off Date). The transfer of the Mortgage
Loans and the related rights and property accomplished hereby is absolute and,
notwithstanding Section 11.07, is intended by the parties to constitute a sale.
In connection with the assignment to the Trustee of Sections 1, 2, 3, 4, 5,
6(a), 6(c), 6(d), 6(e), 6(f), 6(g), 7, 11, 12, 14, 15, 16, 18 and 20 of each of
the Mortgage Loan Purchase Agreements, it is intended that the Trustee get the
benefit of Sections 11, 12 and 15 thereof in connection with any exercise of
rights under the assigned Sections, and the Depositor shall use its best efforts
to make available to the Trustee the benefits of Sections 11, 12 and 15 in
connection therewith.
(b) In connection with the Depositor's assignment pursuant to
subsection (a) above, the Depositor shall direct, and hereby represents and
warrants that it has directed, each of the Mortgage Loan Sellers pursuant to the
applicable Mortgage Loan Purchase Agreement to deliver to and deposit with, or
cause to be delivered to and deposited with, the Trustee or a Custodian
appointed thereby, on or before the Closing Date, the Mortgage File for each
Mortgage Loan so assigned, with copies to the Servicer. If the applicable
Mortgage Loan Seller cannot deliver, or cause to be delivered, as to any
Mortgage Loan, the original Mortgage Note, such Mortgage Loan Seller shall
deliver a copy or duplicate original of such Mortgage Note, together with an
affidavit certifying that the original thereof has been lost or destroyed and
indemnifying the Trustee. If the applicable Mortgage Loan Seller cannot deliver,
or cause to be delivered, as to any Mortgage Loan, any of the documents and/or
instruments referred to in clauses (ii), (iv), (vi), (viii), (xi), (xii) and
(xv) of the definition of "Mortgage File," with evidence of filing or recording
thereon, solely because of a delay caused by the public filing or recording
office where such document or instrument has been delivered for filing or
recordation, the delivery requirements of the applicable Mortgage Loan Purchase
Agreement and this Section 2.01(b) shall be deemed to have been satisfied on a
provisional basis as of the Closing Date as to such non-delivered document or
instrument, and such non-delivered document or instrument shall be deemed to
have been included in the Mortgage File, provided that a photocopy of such
non-delivered document or instrument (certified by the applicable public filing
or recording office, the applicable title insurance company or the applicable
Mortgage Loan Seller to be a true and complete copy of the original thereof
submitted for filing or recording) is delivered to the Trustee or a Custodian
appointed thereby on or before the Closing Date, and either the original of such
non-delivered document or instrument, or a photocopy thereof (certified by the
appropriate county recorder's office, in the case of the documents and/or
instruments referred to in clause (ii) of the definition of "Mortgage File," to
be a true and complete copy of the original thereof submitted for recording),
with evidence of filing or recording thereon, is delivered to the Trustee or
such Custodian within 180 days of the Closing Date (or within such longer
period, not to exceed 18 months, after the Closing Date as the Trustee may
consent to, which consent shall not be unreasonably withheld so long as the
applicable Mortgage Loan Seller is, as certified in writing to the Trustee no
less often than every 90 days, attempting in good faith to obtain from the
appropriate public filing office or county recorder's office such original or
photocopy). If the applicable Mortgage Loan Seller cannot deliver, or cause to
be delivered, as to any Mortgage Loan, any of the documents and/or instruments
referred to in clauses (ii), (iv), (vi), (vii), (viii), (xi) and (xv) of the
definition of "Mortgage File," with evidence of filing or recording thereon, for
any other reason, including, without limitation, that such non-delivered
document or instrument has been lost or destroyed, the delivery requirements of
the applicable Mortgage Loan Purchase Agreement and this Section 2.01(b) shall
be deemed to have been satisfied as to such non-delivered document or
instrument, and such non-delivered document or instrument shall be deemed to
have been included in the Mortgage File, provided that a photocopy of such
non-delivered document or instrument (with evidence of filing or recording
thereon and certified in the case of the documents and/or instruments referred
to in clause (ii) of the definition of "Mortgage File" by the appropriate county
recorder's office to be a true and complete copy of the original thereof
submitted for recording) is delivered to the Trustee or a Custodian appointed
thereby on or before the Closing Date. Neither the Trustee nor any Custodian
shall in any way be liable for any failure by any Mortgage Loan Seller or the
Depositor to comply with the delivery requirements of the related Mortgage Loan
Purchase Agreement and this Section 2.01(b). If, on the Closing Date as to any
Mortgage Loan, the applicable Mortgage Loan Seller cannot deliver in complete
and recordable form (or form suitable for filing, if applicable) any one of the
assignments in favor of the Trustee referred to in clause (iii), (v), (vii) or
(xi) of the definition of "Mortgage File" solely because of the unavailability
of filing or recording information as to any existing document or instrument
and/or because such assignments are assignments in blank and have not been
completed in favor of the Trustee as specified in the related clause(s) of the
definition of "Mortgage File," such Mortgage Loan Seller may provisionally
satisfy the delivery requirements of the related Mortgage Loan Purchase
Agreement and this Section 2.01(b) by delivering with respect to such Mortgage
Loan on the Closing Date an omnibus assignment of such Mortgage Loan
substantially in the form of Exhibit H; provided that all required original
assignments with respect to such Mortgage Loan, in fully complete and recordable
form (or form suitable for filing, if applicable), are delivered to the Trustee
or its Custodian within 180 days of the Closing Date (or within such longer
period, not to exceed 18 months, as the Trustee in its discretion may consent
to, which consent shall not be unreasonably withheld so long as the applicable
Mortgage Loan Seller is, as certified in writing to the Trustee no less often
than every 90 days, attempting in good faith to obtain from the appropriate
public filing office or county recorder's office the applicable filing or
recording information as to the related document or instrument). Notwithstanding
anything herein to the contrary, with respect to letters of credit, the Mortgage
Loan Seller shall deliver to the Servicer and the Servicer shall hold the
original letter(s) of credit in trust on behalf of the Trustee in order to draw
on such letter(s) of credit and the applicable Mortgage Loan Seller shall be
deemed to have satisfied the delivery requirements of the related Mortgage Loan
Purchase Agreement and this Section 2.01(b) by delivering with respect to any
letter(s) of credit a copy thereof to the Trustee together with an officer's
certificate of the Mortgage Loan Seller certifying that such document has been
delivered to the Servicer. The applicable Mortgage Loan Seller shall pay any
costs of assignment or amendment of such letter(s) of credit required in order
for the Servicer to draw on such letter(s) of credit.
(c) Pursuant to each Mortgage Loan Purchase Agreement, each Mortgage
Loan Seller is required at its sole cost and expense, to itself, or to engage a
third party to, put each Assignment of Mortgage and each assignment of each UCC
Financing Statement ("Assignments" and, individually, "Assignment") relating to
the Mortgage Loans conveyed by it under the applicable Mortgage Loan Purchase
Agreement in proper form for filing or recording, as applicable, and to submit
such Assignments for filing or recording, as the case may be, in the applicable
public filing or recording office, and on the Closing Date, such Mortgage Loan
Seller will be required to deliver the omnibus assignment of such Mortgage Loans
to the Trustee or its Custodian as provided in Section 2.01(b). Except under the
circumstances provided for in the last sentence of this subsection (c), each
Mortgage Loan Seller will itself, or a third party at such Mortgage Loan
Seller's expense will, promptly (and in any event within 120 days of the later
of the Closing Date and the Trustee's actual receipt of the related documents)
cause to be submitted for recording or filing, as the case may be, in the
appropriate public office for real property records or UCC Financing Statements,
as appropriate, each assignment to the Trustee referred to in clauses (iii) and
(v) of the definition of "Mortgage File" and each UCC assignment to the Trustee
referred to in clause (xi) of the definition of "Mortgage File." Each such
Assignment submitted for recording shall reflect that it should be returned by
the public recording office to the Trustee or its designee following recording,
and each such UCC assignment submitted for recording or filing shall reflect
that the file copy thereof should be returned to the Trustee or its designee
following recording or filing. If any such document or instrument is determined
to be incomplete or not to meet the recording or filing requirements of the
jurisdiction in which it is to be recorded or filed, or is lost by the public
office or returned unrecorded or unfiled, as the case may be, because of a
defect therein, on or about 180 days after the Closing Date, the Mortgage Loan
Seller or its designee shall prepare, at its own expense, 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,
by the first anniversary of the Closing Date, the Trustee has not received
confirmation of the recording or filing as the case may be, of any such
Assignment, it shall so advise the related Mortgage Loan Seller who may then
pursue such confirmation itself or request that the Trustee pursue such
confirmation at the related Mortgage Loan Seller's expense, and upon such a
request and provision for payment of such expenses satisfactory to the Trustee,
the Trustee, at the expense of the applicable Mortgage Loan Seller, shall cause
a search of the land records of each jurisdiction and of the records of the
offices of the applicable Secretary of State for confirmation that the
Assignment appears in such records and retain a copy of such confirmation in the
related Mortgage File. In the event that confirmation of the recording or filing
of an Assignment cannot be obtained, the Trustee or the related Mortgage Loan
Seller, as applicable, shall promptly inform the other and the Trustee shall
provide such Mortgage Loan Seller with a copy of the Assignment and request the
preparation of a new Assignment. A Mortgage Loan Seller shall pay the expenses
for the preparation of replacement Assignments for any Assignments which, having
been properly submitted for filing or recording to the appropriate governmental
office by the Trustee, fail to appear of record and must be resubmitted.
Notwithstanding the foregoing, there shall be no requirement to record any
assignment to the Trustee referred to in clauses (iii) or (v) of the definition
of "Mortgage File," or to file any UCC-3 to the Trustee referred to in clause
(xi) of the definition of "Mortgage File," in those jurisdictions where, in the
written opinion of local counsel (which opinion shall be an expense of the
related Mortgage Loan Seller) acceptable to the Depositor and the Trustee, such
recordation and/or filing is not required to protect the Trustee's interest in
the related Mortgage Loans against sale, further assignment, satisfaction or
discharge by the related Mortgage Loan Seller, the Servicer, the Special
Servicer, any Sub-Servicer or the Depositor.
(d) All documents and records in the Depositor's or the applicable
Mortgage Loan Seller's possession relating to the Mortgage Loans (including
financial statements, operating statements and any other information provided by
the respective Mortgagor from time to time, but excluding documents prepared by
the Mortgage Loan Seller or any of its Affiliates solely for internal
communication) that are not required to be a part of a Mortgage File in
accordance with the definition thereof, together with copies of all documents in
each Mortgage File, shall be delivered by the Depositor or the applicable
Mortgage Loan Seller to the Servicer on or before the Closing Date and shall be
held by the Servicer on behalf of the Trustee in trust for the benefit of the
Certificateholders (and as holder of the Uncertificated Lower-Tier Interests).
(e) In connection with the Depositor's assignment pursuant to
subsection (a) above, the Depositor shall deliver, and hereby represents and
warrants that it has delivered, to the Trustee and the Servicer, on or before
the Closing Date, a fully executed original counterpart of each of the Mortgage
Loan Purchase Agreements, as in full force and effect, without amendment or
modification, on the Closing Date.
(f) [RESERVED].
(g) The Depositor shall use its best efforts to require that,
promptly after the Closing Date, but in all events within three Business Days
after the Closing Date, each of the Mortgage Loan Sellers shall cause all funds
on deposit in escrow accounts maintained with respect to the Mortgage Loans in
the name of the applicable Mortgage Loan Seller or any other name to be
transferred to the Servicer (or a Sub-Servicer) for deposit into Servicing
Accounts.
Section 2.02 Acceptance by Trustee.
(a) The Trustee, by the execution and delivery of this Agreement (1)
acknowledges receipt by it or a Custodian on its behalf, subject to the
provisions of Section 2.01 and the further review provided for in this Section
2.02 and to any exceptions noted on the Trustee Exception Report, in good faith
and without notice of any adverse claim, of the applicable documents specified
in clause (i) of the definition of "Mortgage File" with respect to each Mortgage
Loan, of a fully executed original counterpart of each of the Mortgage Loan
Purchase Agreements, and of all other assets included in the Trust Fund and (2)
declares (a) that it or a Custodian on its behalf holds and will hold such
documents and the other documents delivered or caused to be delivered by the
Mortgage Loan Sellers that constitute the Mortgage Files, and (b) that it holds
and will hold such other assets included in the Trust Fund, in trust for the
exclusive use and benefit of all present and future Certificateholders and, with
respect to any original document in the Mortgage File for a Loan Pair, any
present or future Companion Holder (and as holder of the Uncertificated
Lower-Tier Interests).
(b) Within 90 days of the Closing Date, the Trustee or a Custodian
on its behalf, shall review the Mortgage Loan documents delivered or caused to
be delivered by the Mortgage Loan Sellers constituting the Mortgage Files; and,
promptly following such review (but in no event later than 90 days after the
Closing Date), the Trustee shall certify in writing to each of the Rating
Agencies, the Depositor, the Servicer, the Special Servicer, the Directing
Certificateholder and the Mortgage Loan Sellers that, as to each Mortgage Loan
listed in the Mortgage Loan Schedule (other than any Mortgage Loan paid in full)
and except as specifically identified in any exception report annexed to such
writing (the "Trustee Exception Report"), (i) all documents specified in clauses
(i) through (v), (ix) through (xii) and (xvi) (or, with respect to clause (xvi),
a copy of such letter of credit and an officer's certificate as contemplated by
the penultimate sentence of Section 2.01(b) hereof), if any, of the definition
of "Mortgage File," as applicable, are in its possession, (ii) the foregoing
documents delivered or caused to be delivered by the Mortgage Loan Sellers have
been reviewed by it or by a Custodian on its behalf and appear regular on their
face and appear to be executed and to relate to such Mortgage Loan, and (iii)
based on such examination and only as to the foregoing documents, the
information set forth in the Mortgage Loan Schedule with respect to the items
specified in clauses (iv), (vi) and (viii)(c) in the definition of "Mortgage
Loan Schedule" is correct. With respect to each Mortgage Loan listed on the
Trustee Exception Report, the Trustee shall specifically identify such Mortgage
Loan together with the nature of such exception (in the form reasonably
acceptable to the Trustee and the Mortgage Loan Seller and separating items
required to be in the Mortgage File but never delivered from items which were
delivered by the Mortgage Loan Seller but are out for recording and have not
been returned by the recorder's office).
(c) The Trustee, or a Custodian on its behalf, shall review the
Mortgage Loan documents received thereby subsequent to the Closing Date; and, on
or about the first anniversary of the Closing Date, the Trustee shall certify in
writing to each of the Depositor, the Servicer, the Special Servicer, the
Directing Certificateholder and the applicable Mortgage Loan Seller that, as to
each Mortgage Loan listed on the Mortgage Loan Schedule (other than any Mortgage
Loan as to which a Liquidation Event has occurred) or any Mortgage Loan
specifically identified in any exception report annexed to such writing (i) all
documents specified in clauses (i) through (v), (ix) through (xii) and (xvi)
(or, with respect to clause (xvi), a copy of such letter of credit and an
officer's certificate as contemplated by the penultimate sentence of Section
2.01(b) hereof), if any, of the definition of "Mortgage File," as applicable,
are in its possession, (ii) the foregoing documents delivered or caused to be
delivered by the Mortgage Loan Sellers have been reviewed by it or by a
Custodian on its behalf and appear regular on their face; appear to be executed
and relate to such Mortgage Loan, and (iii) based on such examination and only
as to the foregoing documents, the information set forth in the Mortgage Loan
Schedule with respect to the items specified in clauses (iv), (vi) and (viii)(c)
in the definition of "Mortgage Loan Schedule" is correct.
(d) Notwithstanding anything contained in this Section 2.02 and
Section 2.03(b) to the contrary, in the case of a deficiency in any of the
documents specified in clauses (ii) through (iv), (ix) and (xi) in the
definition of "Mortgage File," resulting solely from a delay in the return of
the related documents from the applicable recording office, which deficiency (i)
is continuing for (a) in the case of any Mortgage Loan that is not a Specially
Serviced Mortgage Loan, more than eighteen (18) months following the Closing
Date or (b) in the case of any Specially Serviced Mortgage Loan, thirty (30)
days following a Servicing Transfer Event, and (ii) impairs or prohibits in any
material way the Servicer's or Special Servicer's ability to act upon, or
enforce, any of the Trust Fund's rights and remedies under the related Mortgage
Loan, or Specially Serviced Mortgage Loan, as applicable, at the time the
Servicer or Special Servicer attempts to act upon, or enforce, any such right or
remedy, the Directing Certificateholder, in its sole judgment, may permit the
related Mortgage Loan Seller, in lieu of repurchasing or substituting for the
related Mortgage Loan, to deposit with the Trustee an amount, to be held in
trust in a segregated Eligible Account, equal to 25% of the Stated Principal
Balance of the related Mortgage Loan (in the alternative, the related Mortgage
Loan Seller may deliver to the Trustee a letter of credit in such amount). Such
funds or letter of credit, as applicable, shall be held by the Trustee (i) until
the date on which the Servicer certifies to the Trustee that such document
deficiency has been cured, at which time the Trustee shall return such funds (or
letter of credit) to the related Mortgage Loan Seller, or (ii) if such document
deficiency has not been cured by the date which is eighteen (18) months
following the Closing Date, the related Mortgage Loan Seller shall be required
to repurchase or substitute for the related Mortgage Loan in accordance with the
terms and conditions of Section 2.03(b) or Section 3 of the related Mortgage
Loan Purchase Agreement. In the event of a repurchase or substitution, upon such
date, the Trustee shall deposit, or cause the Servicer to deposit, such funds,
or shall draw upon the letter of credit and deposit the proceeds of such draw,
into the Certificate Account to be applied to the Purchase Price (or the
Substitution Shortfall Amount, if applicable) in accordance with Section
2.03(b). All such funds deposited with the Trustee shall be invested in
Permitted Investments, at the direction and for the benefit of the related
Mortgage Loan Seller. Such funds shall be treated as an "outside reserve fund"
under the REMIC Provisions, beneficially owned by the Mortgage Loan Seller for
federal income tax purposes, which Mortgage Loan Seller shall be taxable on all
income or gain with respect thereto.
(e) It is herein acknowledged that neither the Trustee nor any
Custodian is under any duty or obligation (i) to determine whether any of the
documents specified in clauses (vi), (vii), (viii), (xiii), (xiv) and (xv)
through (xxvii) of the definition of "Mortgage File" exist or are required to be
delivered by the Depositor, the Mortgage Loan Sellers or any other Person
(unless identified on the Mortgage Loan Checklist) or (ii) 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 genuine,
enforceable, sufficient to perfect and maintain the perfection of a security
interest or appropriate for the represented purpose or that they are other than
what they purport to be on their face and, with respect to the documents
specified in clause (ix), whether the insurance is effective as of the date of
the recordation, whether all endorsements or riders issued are included in the
file or if the policy has not been issued whether any acceptable replacement
document has been dated the date of the related Mortgage Loan funding. Further,
with respect to the UCC financing statements referenced in the 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 the purposes of the filings and the certification to be
delivered in accordance with this Section 2.02 that the related Mortgage File
should include one state level UCC financing statement filing for each Mortgaged
Property (or with respect to any Mortgage Loan that has two or more Mortgagors,
for each Mortgagor), or if the Trustee has received notice that a particular UCC
financing statement was filed as a fixture filing, that the related Mortgage
File should include only a local UCC financing statement filing for each
Mortgaged Property (or with respect to any Mortgage Loan that has two or more
Mortgagors, for each Mortgagor). The assignments of the UCC's to be assigned to
the Trust will be delivered on the new national forms (or on such other form as
may be acceptable for filing in the applicable jurisdiction) and in recordable
format and will be filed in the jurisdiction(s) where such UCC financing
statements were originally filed, as indicated in the documents provided, and in
accordance with then current laws.
(f) If, in the process of reviewing the Mortgage Files or at any
time thereafter, the Trustee or any Custodian finds any document or documents
constituting a part of a Mortgage File (1) not to have been properly executed or
(2) subject to Section 2.01(b), not to have been delivered, (3) to contain
information that does not conform in any material respect with the corresponding
information set forth in the Mortgage Loan Schedule or (4) to be defective on
its face (each, a "Defect" in the related Mortgage File), the Trustee shall
promptly so notify the Depositor, the Servicer, the Special Servicer, the
Directing Certificateholder (and in the case of the Simon Mortgage Loan, the
Simon Representative) and the applicable Mortgage Loan Seller (and in no event
later than 90 days after the Closing Date and every quarter thereafter,
commencing with the quarter ending March 31, 2003 until March 31, 2005, by
providing a written report (the "Trustee Exception Report") setting forth for
each affected Mortgage Loan, with particularity, the nature of such Defect (in a
form reasonably acceptable to the Trustee and the Mortgage Loan Seller and
separating items required to be in the Mortgage File but never delivered from
items which were delivered by the Mortgage Loan Seller but are out for recording
and have not been returned by the recorder's office).
Section 2.03 Representations, Warranties and Covenants of the
Depositor; Mortgage Loan Sellers' Repurchase or Substitution of Mortgage Loans
for Defects in Mortgage Files and Breaches of Representations and Warranties.
(a) The Depositor hereby represents and warrants that:
(i) The Depositor is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware, and the
Depositor has taken all necessary corporate action to authorize the
execution, delivery and performance of this Agreement by it, and has the
power and authority to execute, deliver and perform this Agreement and all
the transactions contemplated hereby, including, but not limited to, the
power and authority to sell, assign and transfer the Mortgage Loans in
accordance with this Agreement;
(ii) Assuming the due authorization, execution and delivery of this
Agreement by each other party hereto, this Agreement and all of the
obligations of the Depositor hereunder are the legal, valid and binding
obligations of the Depositor, enforceable against the Depositor in
accordance with the terms of this Agreement, except as such enforcement
may be limited by bankruptcy, insolvency, reorganization or other similar
laws affecting the enforcement of creditors' rights generally, and by
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law);
(iii) The execution and delivery of this Agreement and the
performance of its obligations hereunder by the Depositor will not
conflict with any provisions of any law or regulations to which the
Depositor is subject, or conflict with, result in a breach of or
constitute a default under any of the terms, conditions or provisions of
the certificate of incorporation or the by-laws of the Depositor or any
indenture, agreement or instrument to which the Depositor is a party or by
which it is bound, or any order or decree applicable to the Depositor, or
result in the creation or imposition of any lien on any of the Depositor's
assets or property, which would materially and adversely affect the
ability of the Depositor to carry out the transactions contemplated by
this Agreement; the Depositor has obtained any consent, approval,
authorization or order of any court or governmental agency or body
required for the execution, delivery and performance by the Depositor of
this Agreement;
(iv) There is no action, suit or proceeding pending or, to the
Depositor's knowledge, threatened against the Depositor in any court or by
or before any other governmental agency or instrumentality which would
materially and adversely affect the validity of the Mortgage Loans or the
ability of the Depositor to carry out the transactions contemplated by
this Agreement; and
(v) The Depositor is the lawful owner of the Mortgage Loans with the
full right to transfer the Mortgage Loans to the Trust and the Mortgage
Loans have been validly transferred to the Trust.
(b) If any Certificateholder, the Servicer, the Special Servicer or
the Trustee discovers or receives notice of a Defect in any Mortgage File or a
breach of any representation or warranty with respect to a Mortgage Loan set
forth in, or required to be made with respect to, a Mortgage Loan by the
applicable Mortgage Loan Seller pursuant to the related Mortgage Loan Purchase
Agreement (a "Breach"), which Defect or Breach, as the case may be, materially
and adversely affects the value of any Mortgage Loan, the related Mortgaged
Property or the interests of the Trustee or any Certificateholder therein, such
Certificateholder, the Servicer, the Special Servicer, the Trustee or the
Directing Certificateholder, as applicable, shall give prompt written notice of
such Defect or Breach, as the case may be, to the Depositor, the Servicer, the
Special Servicer, the Mortgage Loan Sellers, the Trustee and the Directing
Certificateholder, and shall request that the applicable Mortgage Loan Seller,
not later than the earlier of 90 days from the applicable Mortgage Loan Seller's
receipt of such notice or the Mortgage Loan Seller's discovery of such Defect or
Breach, (i) cure such Defect or Breach, as the case may be, in all material
respects, (ii) repurchase the affected Mortgage Loan or REO Loan at the
applicable Purchase Price and in conformity with the applicable Mortgage Loan
Purchase Agreement or (iii) substitute a Qualified Substitute Mortgage Loan for
such affected Mortgage Loan or REO Loan (provided that in no event shall any
such substitution occur later than the second anniversary of the Closing Date)
and pay the Servicer for deposit into the Certificate Account, any Substitution
Shortfall Amount in connection therewith and in conformity with the applicable
Mortgage Loan Purchase Agreement; provided, however, that if such Breach and
Defect is capable of being cured but is not cured within such 90-day period, and
the Mortgage Loan Seller has commenced and is diligently proceeding with the
cure of such Breach or Defect within such 90-day period, the Mortgage Loan
Seller shall have an additional 90 days to complete such cure (or, failing such
cure, to repurchase the related Mortgage Loan or REO Loan or substitute a
Qualified Substitute Mortgage Loan (other than with respect to the Simon
Mortgage Loan, for which no substitution will be permitted)) and provided,
further, that with respect to such additional 90-day period the Mortgage Loan
Seller shall have delivered an officer's certificate to the Rating Agencies, the
Servicer, the Trustee and the Directing Certificateholder, setting forth the
reason such Breach or Defect is not capable of being cured within the initial
90-day period and what actions the Mortgage Loan Seller is pursuing in
connection with the cure thereof and stating that the Mortgage Loan Seller
anticipates that such Breach or Defect will be cured within the additional
90-day period. Notwithstanding the foregoing, any Defect or Breach which causes
any Mortgage Loan not to be a "qualified mortgage" (within the meaning of
Section 860G(a)(3) of the Code, but without regard to the rule of Treasury
Regulations Section 1.860G-2(f)(2) which causes a defective Mortgage Loan to be
treated as a qualified mortgage) shall be deemed to materially and adversely
affect the interest of Certificateholders therein, and such Mortgage Loan shall
be repurchased or substituted for without regard to the extended cure period
described in the preceding sentence. If the affected Mortgage Loan is to be
repurchased, the funds in the amount of the Purchase Price are to be deposited
by wire transfer in the Certificate Account.
Any of the following will cause a document in the Mortgage File to
be deemed to have a "Defect" and to be conclusively presumed to materially and
adversely affect the interests of Certificateholders in a Mortgage Loan and to
be deemed to materially and adversely affect the interest of the
Certificateholders in and the value of a Mortgage Loan: (a) the absence from the
Mortgage File of the original signed Mortgage Note, unless the Mortgage File
contains a signed lost note affidavit and indemnity that appears to be regular
on its face; (b) the absence from the Mortgage File of the original signed
Mortgage that appears to be regular on its face, unless there is included in the
Mortgage File a certified copy of the Mortgage and a certificate stating that
the original signed Mortgage was sent for recordation; (c) the absence from the
Mortgage File of the item called for by paragraph (ix) of the definition of
Mortgage File; (d) the absence from the Mortgage File of any intervening
assignments required to create a complete chain of assignment to the Trustee on
behalf of the Trust, unless there is included in the Mortgage File a certified
copy of the intervening assignment and a certificate stating that the original
intervening assignments were sent for recordation; (e) the absence from the
Mortgage File of any required letter of credit; or (f) with respect to any
leasehold mortgage loan, the absence from the related Mortgage File of the
related Ground Lease.
(c) In connection with any repurchase of, or substitution of a
Qualified Substitute Mortgage Loan for, a Mortgage Loan contemplated by this
Section 2.03, the Trustee, the Servicer and the Special Servicer shall each
tender to the applicable Mortgage Loan Seller, upon delivery to each of the
Trustee, the Servicer and the Special Servicer of a trust receipt executed by
the applicable Mortgage Loan Seller evidencing such repurchase or substitution,
all portions of the Mortgage File and other documents pertaining to such
Mortgage Loan possessed by each of the Trustee, the Servicer and the Special
Servicer, and each document that constitutes a part of the Mortgage File that
was endorsed or assigned to the Trustee shall be endorsed or assigned, as the
case may be, to the applicable Mortgage Loan Seller in the same manner as
provided in Section 3 of the related Mortgage Loan Purchase Agreement, so as to
vest in such Mortgage Loan Seller the legal and beneficial ownership of such
repurchased or substituted for Mortgage Loan (including property acquired in
respect thereof or proceeds of any insurance policy with respect thereto) and
the related Mortgage Loan documents.
(d) Section 6(e) of each of the Mortgage Loan Purchase Agreements
provides the sole remedy available to the Certificateholders (subject to the
limitations on the rights of the Certificateholders under this Agreement), or
the Trustee on behalf of the Certificateholders, with respect to any Defect in a
Mortgage File or any Breach of any representation or warranty with respect to a
Mortgage Loan set forth in or required to be made pursuant to Section 6 of each
of the Mortgage Loan Purchase Agreements.
(e) The Servicer and the Special Servicer (in the case of Specially
Serviced Mortgage Loans) shall, for the benefit of the Certificateholders and
the Trustee (as holder of the Uncertificated Lower-Tier Interests), enforce the
obligations of the applicable Mortgage Loan Seller under the applicable Mortgage
Loan Purchase Agreement. Such enforcement, including, without limitation, the
legal prosecution of claims, shall be carried out in such form, to such extent
and at such time as the Servicer or the Special Servicer, as the case may be,
would require were it, in its individual capacity, the owner of the affected
Mortgage Loan(s). The Servicer and the Special Servicer, as the case may be,
shall be reimbursed for the reasonable costs of such enforcement: first, from a
specific recovery of costs, expenses or attorneys' fees against the applicable
Mortgage Loan Seller; second, pursuant to Section 3.05(a)(vii) herein out of the
related Purchase Price, to the extent that such expenses are a specific
component thereof; and third, if at the conclusion of such enforcement action it
is determined that the amounts described in clauses first and second are
insufficient, then pursuant to Section 3.05(a)(viii) herein out of general
collections on the Mortgage Loans on deposit in the Certificate Account.
(f) The Depositor shall cause a Mortgage Loan Seller to repurchase
any Mortgage Loan that is cross-collateralized with any Mortgage Loan
repurchased pursuant to clause (b), (c) or (d) of this Section 2.03.
Notwithstanding the foregoing, if the related Mortgage provides for the partial
release of one or more of the cross-collateralized Mortgage Loans, the Depositor
may cause the related Mortgage Loan Seller to repurchase only that Mortgage Loan
required to be repurchased pursuant to this Section 2.03, pursuant to the
partial release provisions of the related Mortgage; provided, however, that (i)
the remaining Mortgage Loan(s) fully comply with the terms and conditions of the
related Mortgage, this Agreement and the related Mortgage Loan Purchase
Agreement, (ii) in connection with such partial release, the related Mortgage
Loan Seller obtains an Opinion of Counsel (at such Mortgage Loan Seller's
expense) to the effect that the contemplated action will not, with respect to
the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan REMIC created hereunder,
endanger such status or, unless such party determines in its sole discretion to
indemnify the Trust Fund against any resultant tax, result in the imposition of
any tax and (iii) in connection with such partial release, the related Mortgage
Loan Seller delivers or causes to be delivered to the Custodian original
modifications to the Mortgage prepared and executed in connection with such
partial release.
Section 2.04 Execution of Certificates; Creation of Loan REMIC
Regular Interests.
Concurrently with the assignment and in exchange for the Simon
Mortgage Loan, (a) the Trustee agrees to hold the Simon Mortgage Loan included
in the Loan REMIC, and (b) the Trustee acknowledges the issuance of the Loan
REMIC Pooled Regular Interest, the Loan REMIC Non-Pooled Regular Interests and
the Loan REMIC Residual Interest to the Depositor. The interests evidenced by
the Loan REMIC Residual Interest, together with the Loan REMIC Pooled Regular
Interest and the Loan REMIC Non-Pooled Regular Interests, constitute the entire
beneficial ownership of the Loan REMIC. The rights of the Holders of the Class
LR Certificates, as owners of the Loan REMIC Residual Interest, and the rights
of the Lower-Tier REMIC (as holder of the Loan REMIC Pooled Regular Interest and
Loan REMIC Non-Pooled Regular Interests) to receive distributions from the
proceeds of the Loan REMIC in respect of the Loan REMIC Residual Interest and
the Loan REMIC Regular Interests shall be as set forth in this Agreement.
Section 2.05 Execution of Certificates; Issuance of Uncertificated
Lower-Tier Interests.
The Trustee hereby acknowledges the assignment to it of the Majority
Mortgage Loans and the Loan REMIC Regular Interests and, subject to Sections
2.01 and 2.02, the delivery to it, or a Custodian on its behalf, of the Mortgage
Files and a fully executed original counterpart of each of the Mortgage Loan
Purchase Agreements, together with the assignment to it of all of the other
assets included in the Trust Fund. Concurrently with such assignment and
delivery, and in exchange therefor, the Trustee (i) acknowledges the issuance of
the Uncertificated Lower-Tier Interests by the Trustee to the Depositor and (ii)
acknowledges the authentication and delivery of the Class LR Certificates (in
respect of the residual interest in the Lower-Tier REMIC) to or upon the order
of the Depositor, in exchange for the Majority Mortgage Loans (other than Excess
Interest) and the Loan REMIC Regular Interests, receipt of which is hereby
acknowledged, and immediately thereafter, the Trustee acknowledges that it has
caused the Certificate Registrar to execute and caused the Authenticating Agent
to authenticate and to deliver to or upon the order of the Depositor, in
exchange for the Uncertificated Lower-Tier Interests, the Regular Certificates,
the Class S Certificates and the Class R Certificates, and the Depositor hereby
acknowledges the receipt by it or its designees, of such Certificates in
authorized Denominations evidencing the entire beneficial ownership of the
Upper-Tier REMIC.
Section 2.06 Grantor Trust Designations. The Class NR Certificates,
exclusive of the portion thereof representing a "regular interest" in the
Upper-Tier REMIC, are hereby designated as undivided beneficial interests in the
portion of the Trust Fund consisting of Excess Interest and the Excess Interest
Distribution Account, which portion shall be treated as part of a grantor trust
within the meaning of subpart E, Part I of subchapter J of the Code.
[End of Article II]
ARTICLE III
ADMINISTRATION AND
SERVICING OF THE TRUST FUND
Section 3.01 Servicer to Act as Servicer; Special Servicer to Act as
Special Servicer; Administration of the Mortgage Loans.
(a) Each of the Servicer and the Special Servicer shall diligently
service and administer the Mortgage Loans and the Companion Loans it is
obligated to service pursuant to this Agreement on behalf of the Trust and in
the best interests of and for the benefit of the Certificateholders and, in the
case of the Companion Loans, the Companion Holder and the Trustee (as holder of
the Uncertificated Lower-Tier Interests and the Loan REMIC Regular Interests)
(as determined by the Servicer or the Special Servicer, as the case may be, in
its reasonable judgment) in accordance with applicable law, the terms of this
Agreement (and, with respect to a Loan Pair, the related AB Intercreditor
Agreement) and the terms of the respective Mortgage Loans, and, if applicable,
the related Companion Loan. With respect to any Loan Pair, in the event of a
conflict between this Agreement and the related AB Intercreditor Agreement, the
AB Intercreditor Agreement shall control; provided, in no event shall the
Servicer or Special Servicer take any action or omit to take any action in
accordance with the terms of any AB Intercreditor Agreement that would cause
such servicer to violate the Servicing Standard. To the extent consistent with
the foregoing, in accordance with the higher of the following standards of care:
(1) in the same manner in which, and with the same care, skill, prudence and
diligence with which the Servicer or the Special Servicer, as the case may be,
services and administers similar mortgage loans for other third-party portfolios
and (2) the same care, skill, prudence and diligence with which the Servicer or
the Special Servicer, as the case may be, services and administers similar
mortgage loans owned by the Servicer or the Special Servicer, as the case may
be, with a view to the maximization of timely recovery of principal and interest
on a net present value basis on the Mortgage Loans, Companion Loans or Specially
Serviced Mortgage Loans, as applicable, and the best interests of the Trust and
the Certificateholders (and, in connection with the AB Mortgage Loans, the
Companion Holders), as determined by the Servicer or the Special Servicer, as
the case may be, in its reasonable judgment, in either case, giving due
consideration to the customary and usual standards of practice of prudent
institutional, multifamily and commercial mortgage lenders, loan servicers and
asset managers and giving due consideration that each Companion Loan is
subordinate to that of the corresponding Mortgage Loan, but without regard to:
(i) any relationship that the Servicer, the Special Servicer or any Affiliate of
the Servicer or the Special Servicer may have with any Mortgagor, any Mortgage
Loan Seller, or any other parties to this Agreement; (ii) the ownership of any
Certificate by the Servicer, the Special Servicer or any Affiliate of the
Servicer or Special Servicer, as applicable; (iii) the Servicer's or Special
Servicer's (at its option) obligation to make Advances; (iv) the adequacy of the
Servicer's or Special Servicer's, as the case may be, right to receive
compensation for its services and reimbursement for its costs hereunder or with
respect to any particular transaction; (v) the ownership, servicing or
management for others of any other mortgage loans or mortgaged properties by the
Servicer or Special Servicer; (vi) any obligation of the Servicer or any of its
affiliates (in their capacity as a Mortgage Loan Seller) to cure a breach of a
representation or warranty or repurchase the Mortgage Loan or Companion Loan;
and (vii) any other debt the Servicer or any of its Affiliates has extended to
any Mortgagor or any of its Affiliates (the foregoing, collectively, referred to
as the "Servicing Standards"). Without limiting the foregoing, subject to
Section 3.21, the Special Servicer shall be obligated to service and administer
(i) any Mortgage Loans or Companion Loan as to which a Servicing Transfer Event
has occurred and is continuing (the "Specially Serviced Mortgage Loans") and
(ii) any REO Properties; provided that the Servicer shall continue to receive
payments and make all calculations, and prepare, or cause to be prepared, all
reports, required hereunder with respect to the Specially Serviced Mortgage
Loans, except for the reports specified herein as prepared by the Special
Servicer, as if no Servicing Transfer Event had occurred and with respect to the
REO Properties (and the related REO Loans) as if no REO Acquisition had
occurred, and to render such services with respect to such Specially Serviced
Mortgage Loans and REO Properties as are specifically provided for herein;
provided, further, however, that the Servicer shall not be liable for failure to
comply with such duties insofar as such failure results from a failure of the
Special Servicer to provide sufficient information to the Servicer to comply
with such duties or failure by the Special Servicer to otherwise comply with its
obligations hereunder. Each Mortgage Loan or Companion Loan that becomes a
Specially Serviced Mortgage Loan shall continue as such until satisfaction of
the conditions specified in Section 3.21(a). Without limiting the foregoing,
subject to Section 3.21, the Servicer shall be obligated to service and
administer all Mortgage Loans or Companion Loans which are not Specially
Serviced Mortgage Loans; provided that the Special Servicer shall make the
inspections, use its reasonable efforts to collect the statements and forward to
the Servicer to prepare the reports in respect of the related Mortgaged
Properties with respect to Specially Serviced Mortgage Loans in accordance with
Section 3.12; and provided further, that after notification to the Servicer, the
Special Servicer may contact the Mortgagor of any Non-Specially Serviced
Mortgage Loan if efforts by the Servicer to collect required financial
information have been unsuccessful or any other issues remain unresolved. Such
contact to be coordinated through and with the cooperation of the Servicer.
(b) Subject only to the Servicing Standards and the terms of this
Agreement and of the respective Mortgage Loans and, if applicable, Companion
Loans, and applicable law, the Servicer and the Special Servicer each shall have
full power and authority, acting alone, to do or cause to be done any and all
things in connection with such servicing and administration for which it is
responsible which it may deem necessary or desirable. Without limiting the
generality of the foregoing, each of the Servicer and the Special Servicer, in
its own name, is hereby authorized and empowered by the Trustee and obligated to
execute and deliver, on behalf of the Certificateholders and the Trustee or any
of them, with respect to each Mortgage Loan (and, with respect to a Companion
Loan, the Companion Holder) it is obligated to service under this Agreement: (i)
any and all financing statements, continuation statements and other documents or
instruments necessary to maintain the lien created by the related Mortgage or
other security document in the related Mortgage File on the related Mortgaged
Property and related collateral; (ii) subject to Section 3.20, any and all
modifications, waivers, amendments or consents to or with respect to any
documents contained in the related Mortgage File; and (iii) any and all
instruments of satisfaction or cancellation, or of partial or full release or
discharge, and all other comparable instruments. Subject to Section 3.10, the
Trustee shall furnish, or cause to be furnished, to the Servicer or the Special
Servicer any powers of attorney and other documents necessary or appropriate to
enable the Servicer or the Special Servicer, as the case may be, to carry out
its servicing and administrative duties hereunder; provided, however, that the
Trustee shall not be held liable for any negligence with respect to, or misuse
of, any such power of attorney by the Servicer or the Special Servicer.
(c) To the extent the Servicer is permitted pursuant to the terms of
the related Mortgage Loan documents or Companion Loan documents to exercise its
discretion with respect to any action which requires a confirmation of the
Rating Agencies that such action will not result in the downgrade, withdrawal or
qualification of the ratings of any Class of Certificates, the Servicer shall
require the costs of such written confirmation to be borne by the related
Mortgagor. To the extent the terms of the related Mortgage Loan documents or
Companion Loan documents require the Mortgagor to bear the costs of any
confirmation of the Rating Agencies that an action will not result in the
downgrade, withdrawal or qualification of the ratings of any Class of
Certificates, the Servicer shall not waive the requirement that such costs and
expenses be borne by the related Mortgagor. To the extent that the terms of the
related Mortgage Loan documents or Companion Loan documents are silent as to who
bears the costs of any confirmation of the Rating Agencies that an action will
not result in the downgrade, withdrawal or qualification of the ratings of any
Class of Certificates, the Servicer shall use reasonable efforts to have the
mortgagor bear such costs and expenses. The Servicer shall not be responsible
for the payment of such costs and expenses out of pocket.
(d) The relationship of each of the Servicer and the Special
Servicer to the Trustee under this Agreement is intended by the parties to be
that of an independent contractor and not that of a joint venturer, partner or
agent.
(e) The Servicer shall, to the extent permitted by the related
Mortgage Loan documents or Companion Loan documents and consistent with the
Servicing Standards, permit Escrow Payments to be invested only in Permitted
Investments.
(f) Within 60 days after the later of (i) the receipt thereof and
(ii) the Closing Date, the Servicer shall notify (i) each provider of a letter
of credit for each Mortgage Loan identified as having a letter of credit on the
Mortgage Loan Schedule, that the Servicer or the Special Servicer on behalf of
the Trustee for the benefit of the Certificateholders shall be the beneficiary
under each such letter of credit and (ii) each lessor under a Ground Lease for
each Mortgage Loan identified as subject to a leasehold interest on the Mortgage
Loan Schedule, that the Servicer or the Special Servicer shall service such
Mortgage Loan for the benefit of the Certificateholders. If the mortgage loan
documents do not require the related Mortgagor to pay any costs and expenses
relating to any modifications to the related letter of credit, then the
applicable Mortgage Loan Seller shall pay such costs and expenses. If the
mortgage loan documents require the related Mortgagor to pay any costs and
expenses relating to any modifications to the related letter of credit, and such
Mortgagor fails to pay such costs and expenses after the Servicer has exercised
reasonable efforts to collect such costs and expenses from such Mortgagor, then
the Servicer shall give the applicable Mortgage Loan Seller notice of such
failure and the amount of costs and expenses, and such Mortgage Loan Seller
shall pay such costs and expenses. The costs and expenses of any modifications
to Ground Leases shall be paid by the related Mortgagor.
(g) Notwithstanding anything herein to the contrary, in no event
shall the Servicer make a Servicing Advance with respect to any Companion Loan
to the extent the related AB Mortgage Loan has been paid in full or is no longer
included in the Trust Fund.
(h) Servicing and administration of each Companion Loan shall
continue hereunder for so long as the corresponding AB Mortgage Loan or any
related REO Property is part of the Trust Fund or for such longer period as any
amounts payable by the related Companion Holder to or for the benefit of the
Trust or any party hereto in accordance with the related AB Intercreditor
Agreement remain due and owing.
Section 3.02 Collection of Mortgage Loan Payments.
(a) Each of the Servicer and the Special Servicer shall make
reasonable efforts to collect all payments called for under the terms and
provisions of the Mortgage Loans and Companion Loans it is obligated to service
hereunder, and shall follow such collection procedures as are consistent with
this Agreement (including, without limitation, the Servicing Standards),
provided that with respect to the Mortgage Loans that have Anticipated Repayment
Dates, so long as the related Mortgagor is in compliance with each provision of
the related Mortgage Loan documents, the Servicer and Special Servicer, shall
not take any enforcement action with respect to the failure of the related
Mortgagor to make any payment of Excess Interest, other than requests for
collection, until the maturity date of the related Mortgage Loan or the
outstanding principal balance of such Mortgage Loan has been paid in full;
provided that the Servicer or Special Servicer, as the case may be, may take
action to enforce the Trust Fund's right to apply excess cash flow to principal
in accordance with the terms of the Mortgage Loan documents. The Servicer or the
Special Servicer each may in its discretion waive any Penalty Charge in
connection with any delinquent payment on a Mortgage Loan or Companion Loan it
is obligated to service hereunder three times during any period of twenty-four
consecutive months with respect to any Mortgage Loan or Companion Loan. Any
additional waivers during such 24-month period with respect to such Mortgage
Loan may be made only after the applicable Servicer or Special Servicer has
given notice of a proposed waiver to the Directing Certificateholder, and the
Directing Certificateholder has consented to such additional waiver (provided
that if the applicable Servicer or Special Servicer fails to receive a response
to such notice from the Directing Certificateholder in writing within five (5)
days of giving such notice, then the Directing Certificateholder shall be deemed
to have consented to such proposed waiver).
(b) All amounts collected on any Mortgage Loan or Companion Loan in
the form of payments from Mortgagors, Insurance and Condemnation Proceeds or
Liquidation Proceeds shall be applied to amounts due and owing under the related
Mortgage Note and Mortgage (including, without limitation, for principal and
accrued and unpaid interest) in accordance with the express provisions of the
related Mortgage Note and Mortgage (and, with respect to a Loan Pair, the
related AB Intercreditor Agreement) and, in the absence of such express
provisions, shall be applied (after reimbursement first to the Trustee and
second to the Servicer or Special Servicer, as applicable, for any related
Servicing Advances and interest thereon as provided herein and unpaid servicing
compensation and other related additional Trust Fund expenses): first, as a
recovery of accrued and unpaid interest on such Mortgage Loan or Companion Loan,
as applicable, at the related Mortgage Rate in effect from time to time to but
not including the Due Date in the Due Period of receipt; second, as a recovery
of principal of such Mortgage Loan then due and owing; third, in accordance with
the Servicing Standards, as a recovery of any other amounts due and owing on
such Mortgage Loan or Companion Loan, as applicable, including, without
limitation, Penalty Charges, Yield Maintenance Charges and Excess Interest; and
fourth, as a recovery of principal of such Mortgage Loan or Companion Loan, as
applicable, to the extent of its entire unpaid principal balance.
Notwithstanding the preceding, such provisions shall not be deemed to affect the
priority of distributions of payments. To the extent that such amounts are paid
by a party other than a Mortgagor, such amounts shall be deemed to have been
paid in respect of a purchase of all or part of the Mortgaged Property (in the
case of Insurance and Condemnation Proceeds or Liquidation Proceeds) and then
paid by the Mortgagor under the Mortgage Loan and Companion Loan, as applicable,
in accordance with the preceding sentence. Amounts collected on any REO Loan
shall be deemed to be applied in accordance with the definition thereof.
(c) To the extent consistent with the terms of the Mortgage Loans
and applicable law, the Servicer shall apply all Insurance and Condemnation
Proceeds it receives on a day other than the Due Date to amounts due and owing
under the related Mortgage Loan as if such Insurance and Condemnation Proceeds
were received on the Due Date immediately succeeding the month in which such
Insurance and Condemnation Proceeds were received.
(d) In the event that the Servicer or Special Servicer receives
Excess Interest prior to the Determination Date for any Due Period, or receives
notice from the related Mortgagor that the Servicer or Special Servicer will be
receiving Excess Interest prior to the Determination Date for any Due Period,
the Servicer or Special Servicer, as applicable, will promptly notify the
Trustee. Subject to the provisions of Section 3.02(a) hereof, none of the
Servicer, the Special Servicer or the Trustee shall be responsible for any such
Excess Interest not collected after notice from the related Mortgagor.
Section 3.03 Collection of Taxes, Assessments and Similar Items;
Servicing Accounts.
(a) The Servicer shall establish and maintain one or more accounts
(the "Servicing Accounts"), into which all Escrow Payments shall be deposited
and retained, and shall administer such Servicing Accounts in accordance with
the Mortgage Loan documents and Companion Loan documents. Amounts on deposit in
Servicing Accounts may only be invested in accordance with the terms of the
related Mortgage Loan documents or in Permitted Investments in accordance with
the provisions of Section 3.06. Servicing Accounts shall be Eligible Accounts.
Withdrawals of amounts so deposited from a Servicing Account may be made only
to: (i) effect payment of items for which Escrow Payments were collected and
comparable items; (ii) reimburse the Trustee and then the Servicer or Special
Servicer for any Servicing Advances; (iii) refund to Mortgagors any sums as may
be determined to be overages; (iv) pay interest to Mortgagors on balances in the
Servicing Account, if required by applicable law or the terms of the related
Mortgage Loan and as described below or, if not so required, to the Servicer;
(v) withdraw amounts deposited in error; or (vi) clear and terminate the
Servicing Account at the termination of this Agreement in accordance with
Section 9.01. As part of its servicing duties, the Servicer shall pay or cause
to be paid to the Mortgagors interest on funds in Servicing Accounts, to the
extent required by law or the terms of the related Mortgage Loan; provided,
however, that in no event shall the Servicer be required to remit to any
Mortgagor any amounts in excess of actual net investment income or funds in the
related Servicing Account. If allowed by the related Mortgage Loan documents and
applicable law, the Servicer may charge the related Mortgagor an administrative
fee for maintenance of the Servicing Accounts.
(b) The Special Servicer, in the case of REO Loans, and the
Servicer, in the case of all other Mortgage Loans, shall maintain accurate
records with respect to each 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. The Special Servicer, in the case of REO Loans, and the
Servicer, in the case of all other Mortgage Loans, shall 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 shall effect
payment thereof from the REO Account or by the Servicer as Servicing Advances
prior to the applicable penalty or termination date and, in any event, prior to
the institution of foreclosure or similar proceedings with respect to the
related Mortgaged Property for nonpayment of such items, employing for such
purpose Escrow Payments (which shall be so applied by the Servicer at the
written direction of the Special Servicer in the case of REO Loans) as allowed
under the terms of the related Mortgage Loan or Companion Loan. The Servicer or,
with respect to any Mortgage Loan that is a Specially Serviced Mortgage Loan,
the Special Servicer shall service and administer any reserve accounts
(including monitoring, maintaining or changing the amounts of required escrows)
in accordance with the terms of such Mortgage Loan and the Servicing Standards.
To the extent that a Mortgage Loan does not require a Mortgagor to escrow for
the payment of real estate taxes, assessments, insurance premiums, ground rents
(if applicable) and similar items, the Special Servicer, in the case of REO
Loans, and the Servicer, in the case of all other Mortgage Loans or Companion
Loans, shall use reasonable efforts consistent with the Servicing Standard to
enforce the requirement of the related Mortgage that the Mortgagor make payments
in respect of such items at the time they first become due and, in any event,
prior to the institution of foreclosure or similar proceedings with respect to
the related Mortgaged Property for nonpayment of such items.
(c) In accordance with the Servicing Standards and for all Mortgage
Loans, the Servicer or, with respect to Specially Serviced Mortgage Loans, the
Special Servicer (at its option) shall advance (which Servicing Advances by the
Special Servicer shall be reimbursed by the Servicer monthly on the P&I Advance
Date, which reimbursement shall constitute a Servicing Advance by the Servicer
in a like amount for which the Servicer may rely conclusively on the Special
Servicer's determination that such Servicing Advance shall not constitute a
Nonrecoverable Servicing Advance) with respect to each related Mortgaged
Property (including any REO Property) all such funds as are necessary for the
purpose of effecting the payment of (i) real estate taxes, assessments and other
similar items that are or may become a lien thereon, (ii) ground rents (if
applicable) and (iii) premiums on Insurance Policies, in each instance if and to
the extent Escrow Payments collected from the related Mortgagor (or related REO
Revenues, if applicable) are insufficient to pay such item when due and the
related Mortgagor has failed to pay such item on a timely basis, and provided,
however, that the particular advance would not, if made, constitute a
Nonrecoverable Servicing Advance and provided, further, however, that with
respect to the payment of taxes and assessments, the Servicer shall not be
required to make such advance until the later of five Business Days after the
Servicer, the Special Servicer or the Trustee, as applicable, has received
confirmation that such item has not been paid or the date prior to the date
after which any penalty or interest would accrue in respect of such taxes or
assessments. The Special Servicer shall give the Servicer and the Trustee no
less than five Business Days' written (facsimile) notice before the date on
which the Servicer is requested to make any Servicing Advance with respect to a
given Mortgage Loan or REO Property; provided, however, that only two Business
Day's written (facsimile) notice shall be required in respect of Servicing
Advances required to be made on an emergency or urgent basis; provided, further,
that the Special Servicer shall not be entitled to make such a request (other
than for Servicing Advances required to be made on an urgent or emergency basis)
more frequently than once per calendar month (although such request may relate
to more than one Servicing Advance). The Servicer may pay the aggregate amount
of such Servicing Advances listed on a monthly request to the Special Servicer,
in which case the Special Servicer shall remit such Servicing Advances to the
ultimate payees. In addition, the Special Servicer shall provide the Servicer
and the Trustee with such information in its possession as the Servicer or the
Trustee, as applicable, may reasonably request to enable the Servicer or the
Trustee, as applicable, to determine whether a requested Servicing Advance would
constitute a Nonrecoverable Advance. Any request by the Special Servicer that
the Servicer make a Servicing Advance shall be deemed to be a determination by
the Special Servicer that such requested Servicing Advance is not a
Nonrecoverable Servicing Advance, and the Servicer shall be entitled to
conclusively rely on such determination, provided that such determination shall
not be binding upon the Servicer. On the first business day after the
Determination Date for each Distribution Date, the Special Servicer shall report
to the Servicer if the Special Servicer determines any Servicing Advance
previously made with respect to a Specially Serviced Loan or REO Loan is a
Nonrecoverable Servicing Advance. The Servicer shall be entitled to conclusively
rely on such a determination, provided that such determination shall not be
binding upon the Servicer. All such Advances shall be reimbursable in the first
instance from related collections from the Mortgagors and further as provided in
Section 3.05. No costs incurred by the Servicer or the Special Servicer in
effecting the payment of real estate taxes, assessments and, if applicable,
ground rents on or in respect of the Mortgaged Properties shall, for purposes
hereof, including, without limitation, the Trustee's (calculation) calculating
monthly distributions to Certificateholders, be added to the unpaid principal
balances of the related Mortgage Loans or Companion Loans, notwithstanding that
the terms of such Mortgage Loans or Companion Loans so permit. The failure by
the Servicer to make any required Servicing Advance as and when due shall
constitute an Event of Default under Section 7.01(a)(iii) and, to the extent the
Trustee has actual knowledge of such failure, the Trustee shall make such
Servicing Advance pursuant to Section 7.05. Notwithstanding anything herein to
the contrary, no Servicing Advance shall be required hereunder if such Servicing
Advance would, if made, constitute a Nonrecoverable Servicing Advance.
(d) In connection with its recovery of any Servicing Advance out of
the Certificate Account pursuant to Section 3.05(a), the Trustee and then the
Servicer and the Special Servicer, as the case may be, shall be entitled to
receive, out of any amounts then on deposit in the Certificate Account, interest
at the Reimbursement Rate in effect from time to time, accrued on the amount of
such Servicing Advance from the date made to, but not including, the date of
reimbursement. The Servicer shall reimburse itself or the Trustee, as the case
may be, for any outstanding Servicing Advance as soon as practically possible
after funds available for such purpose are deposited in the Certificate Account.
(e) To the extent an operations and maintenance plan is required to
be established and executed pursuant to the terms of a Mortgage Loan, the
Servicer shall request from the Mortgagor written confirmation thereof within a
reasonable time after the later of the Closing Date and the date as of which
such plan is required to be established or completed. To the extent any repairs,
capital improvements, actions or remediations are required to have been taken or
completed pursuant to the terms of the Mortgage Loan, the Servicer shall request
from the Mortgagor written confirmation of such actions and remediations within
a reasonable time after the later of the Closing Date and the date as of which
such action or remediations are required to be or to have been taken or
completed. To the extent a Mortgagor shall fail to promptly respond to any
inquiry described in this Section 3.03(e), the Servicer shall, in accordance
with the Servicing Standards, determine whether the related Mortgagor has failed
to perform its obligations under the related Mortgage Loan and report any such
failure to the Special Servicer within a reasonable time after the later of June
15, 2003 and the date as of which such actions or remediations are required to
be or to have been taken or completed.
Section 3.04 The Certificate Account, the Simon Collection Account,
the Loan REMIC, the Lower-Tier and Upper-Tier Distribution Accounts, the
Companion Distribution Account, the Gain-on-Sale Reserve Account and the Excess
Interest Distribution Account.
(a) The Servicer shall establish and maintain, or cause to be
established and maintained, a Certificate Account and the Simon Collection
Account (which may be a sub-account of the Certificate Account) in which the
Servicer shall deposit or cause to be deposited on a daily basis and in no event
later than the Business Day following receipt of available funds (in the case of
payments by Mortgagors or other collections on the Mortgage Loans or Companion
Loans), except as otherwise specifically provided herein, the following payments
and collections received or made by or on behalf of it subsequent to the Cut-off
Date (other than in respect of principal and interest on the Mortgage Loans or
Companion Loans due and payable on or before the Cut-off Date, which payments
shall be delivered promptly to the appropriate Mortgage Loan Seller or its
designee and other than any amounts received from Mortgagors which are received
in connection with the purchase of defeasance collateral), or payments (other
than Principal Prepayments) received by it on or prior to the Cut-off Date but
allocable to a period subsequent thereto:
(i) all payments on account of principal, including Principal
Prepayments, on the Mortgage Loans or Companion Loans;
(ii) all payments on account of interest on the Mortgage Loans or
Companion Loans, including Excess Interest, Yield Maintenance Charges and
Default Interest;
(iii) late charges and other Penalty Charges other than those
allocable to interest to the extent required to offset interest on
Advances and additional Trust Fund expenses (other than Special Servicing
Fees);
(iv) all Insurance and Condemnation Proceeds and Liquidation
Proceeds (other than Gain-on-Sale Proceeds) received in respect of any
Mortgage Loan, Companion Loan or REO Property (other than Liquidation
Proceeds that are received in connection with the purchase by the
Servicer, the Special Servicer, the Holders of the Controlling Class, or
the Holders of the Class LR Certificates of all the Mortgage Loans and any
REO Properties in the Trust Fund and that are to be deposited in the
Lower-Tier Distribution Account (or, in respect of the Simon Mortgage
Loan, the Loan REMIC Distribution Account) pursuant to Section 9.01);
(v) any amounts required to be transferred from the REO Account
pursuant to Section 3.16(c);
(vi) any amounts required to be deposited by the Servicer pursuant
to Section 3.06 in connection with losses incurred with respect to
Permitted Investments of funds held in the Certificate Account; and
(vii) any amounts required to be deposited by the Servicer or the
Special Servicer pursuant to Section 3.07(b) in connection with losses
resulting from a deductible clause in a blanket hazard or master single
interest policy.
However, the Servicer shall deposit or cause to be deposited any payments
described in the preceding sentence collected or received with respect to the
Simon Mortgage Loan (or any REO Property related thereto) in the Simon
Collection Account.
The foregoing requirements for deposit in the Certificate Account
and the Simon Collection Account shall be exclusive, it being understood and
agreed that, without limiting the generality of the foregoing, actual payments
from Mortgagors in the nature of Escrow Payments, charges for beneficiary
statements or demands, assumption fees, modification fees, extension fees or
amounts collected for Mortgagor checks returned for insufficient funds need not
be deposited by the Servicer in the Certificate Account or, if applicable, the
Simon Collection Account. If the Servicer shall deposit in the Certificate
Account or Simon Collection Account, as applicable, any amount not required to
be deposited therein, it may at any time withdraw such amount from the
Certificate Account or Simon Collection Account, any provision herein to the
contrary notwithstanding. Assumption, extension and modification fees actually
received from Mortgagors on Specially Serviced Mortgage Loans shall be promptly
delivered to the Special Servicer as additional servicing compensation.
Upon receipt of any of the foregoing amounts in clauses (i)-(iii)
above with respect to any Specially Serviced Mortgage Loans, the Special
Servicer shall remit within one (1) Business Day such amounts to the Servicer
for deposit into the Certificate Account or, if applicable, the Simon Collection
Account, in accordance with the first two paragraphs of this Section 3.04(a).
Any such amounts received by the Special Servicer with respect to an REO
Property shall be deposited by the Special Servicer into the REO Account and
remitted to the Servicer for deposit into the Certificate Account or, if
applicable, the Simon Collection Account, pursuant to Section 3.16(c). With
respect to any such amounts paid by check to the order of the Special Servicer,
the Special Servicer shall endorse without recourse or warranty such check to
the order of the Servicer and shall promptly deliver any such check to the
Servicer by overnight courier.
Funds in the Certificate Account or Simon Collection Account may
only be invested in Permitted Investments in accordance with the provisions of
Section 3.06. As of the Closing Date, the Certificate Account and the Simon
Collection Account shall be located at the offices of Wachovia Bank, National
Association. The Servicer shall give notice to the Trustee, the Special Servicer
and the Depositor of the new location of the Certificate Account or Simon
Collection Account prior to or promptly after any change thereof.
(b) The Trustee (as holder of the Loan REMIC Regular Interests and
Uncertificated Lower-Tier Interests), shall establish and maintain the Loan
REMIC Distribution Account, Lower-Tier Distribution Account, the Upper-Tier
Distribution Account, the Excess Interest Distribution Account, the Interest
Reserve Account and the Gain-on-Sale Reserve Account in trust for the benefit of
the Certificateholders (and the Trustee as holder of the Loan REMIC Regular
Interests and the Uncertificated Lower-Tier Interests). The Companion Paying
Agent shall establish and maintain an account for distributions to the Companion
Loans (the "Companion Distribution Account") to be held for the benefit of the
Companion Holder. The Servicer shall deliver to the Trustee each month on or
before the P&I Advance Date therein, (i) for deposit in the Loan REMIC
Distribution Account, that portion of the Simon Available Distribution Amount
attributable to the Simon Pooled Component and the Simon Non-Pooled Components
and (ii) for deposit in the Lower-Tier Distribution Account, that portion of the
Available Distribution Amount attributable to the Mortgage Loans (in each case,
calculated without regard to clauses (a)(iv), (a)(vii) and (c) and (d) of the
definition of Available Distribution Amount) for the related Distribution Date
then on deposit in the Certificate Account.
The Servicer shall deliver to the Companion Paying Agent each month
on the P&I Advance Date therein, for deposit in the Companion Distribution
Account, an aggregate amount of immediately available funds equal to the amount
available to be distributed to the related Companion Holder pursuant to the
related AB Intercreditor Agreement and Section 4.01(m).
The Loan REMIC Distribution Account, the Lower-Tier Distribution
Account, the Upper-Tier Distribution Account, the Excess Interest Distribution
Account, the Gain-on-Sale Reserve Account and the Interest Reserve may be
subaccounts of a single account, which shall be maintained as a segregated
account separate from other accounts. The Gain-on-Sale Reserve Account shall be
maintained as segregated accounts separate from other accounts.
In addition to the amounts required to be deposited in the
Lower-Tier Distribution Account (or the Loan REMIC Distribution Account in the
case of the Simon Mortgage Loan) pursuant to the second preceding paragraph, the
Servicer shall, as and when required hereunder, deliver to the Trustee for
deposit in the Lower-Tier Distribution Account (or the Loan REMIC Distribution
Account in the case of the Simon Mortgage Loan):
(i) any amounts required to be deposited by the Servicer pursuant to
Section 3.19 in connection with Prepayment Interest Shortfalls;
(ii) any P&I Advances required to be made by the Servicer in
accordance with Section 4.03;
(iii) any Liquidation Proceeds paid by the Servicer, the Special
Servicer, the Holders of the Controlling Class or the Holders of the Class
LR Certificates in connection with the purchase of all of the Mortgage
Loans and any REO Properties in the Trust Fund pursuant to Section 9.01
(exclusive of that portion thereof required to be deposited in the
Certificate Account pursuant to Section 9.01);
(iv) any Yield Maintenance Charges actually collected; and
(v) any other amounts required to be so delivered for deposit in the
Lower-Tier Distribution Account (or the Loan REMIC Distribution Account in
the case of the Simon Mortgage Loan) pursuant to any provision of this
Agreement.
If, as of the close of business, on any P&I Advance Date or on such
other date as any amount referred to in the foregoing clauses (i) through (v)
are required to be delivered hereunder, the Servicer shall not have delivered to
the Trustee for deposit in the Loan REMIC Distribution Account, the Lower-Tier
Distribution Account and the Excess Interest Distribution Account the amounts
required to be deposited therein pursuant to the provisions of this Agreement
(including any P&I Advance pursuant to Section 4.03(a) hereof), the Servicer
shall pay the Trustee interest on such late payment at the Prime Rate from the
time such payment was required to be made (without regards to any grace period)
until such late payment is received by the Trustee.
The Trustee shall, upon receipt, deposit in the Loan REMIC
Distribution Account or the Lower-Tier Distribution Account any and all amounts
received by the Trustee that are required by the terms of this Agreement to be
deposited therein.
Promptly on each Distribution Date, the Trustee shall (i) withdraw
from the Loan REMIC Distribution Account and deposit in the Lower-Tier
Distribution Account an aggregate amount of immediately available funds equal to
(A) the Simon Available Distribution Amount distributable pursuant to Section
4.01(j)(i)-(ix) and Section 4.01(k)(i)-(ix) and (B) Yield Maintenance Charges
for such Distribution Date in respect of the Simon Mortgage Loan distributable
pursuant to Section 4.01(d) and (ii) withdraw from the Lower-Tier Distribution
Account and deposit 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 Yield Maintenance Charges for such Distribution Date allocated
in payment of the Uncertificated Lower-Tier Interests as specified in Sections
4.01(b) and 4.01(d), respectively.
Funds on deposit in the Certificate Account and the Simon Collection
Account may only be invested in Permitted Investments in accordance with the
provisions of Section 3.06. The Servicer shall give notice to the Trustee, the
Special Servicer and the Depositor of the location of the Certificate Account
and of any new location of the Certificate Account prior to any change thereof.
Funds on deposit in the Gain-on-Sale Reserve Account, the Interest Reserve
Account, the Excess Interest Distribution Account, shall be held uninvested.
Funds on deposit in the Upper-Tier Distribution Account, the Lower-Tier
Distribution Account and the Loan REMIC Distribution Account may only be
invested in Permitted Investments in accordance with the provisions of Section
3.06. As of the Closing Date, the Excess Interest Distribution Account, the
Interest Reserve Account, the Upper-Tier Distribution Account, the Lower-Tier
Distribution Account and the Loan REMIC Distribution Account shall be located at
the offices of the Trustee. The Trustee shall give notice to the Servicer and
the Depositor of the location of the Interest Reserve Account, the Excess
Interest Distribution Account, the Loan REMIC Distribution Account, the
Upper-Tier Distribution Account and the Lower-Tier Distribution Account and of
the new location of the Distribution Accounts prior to any change thereof.
(c) Prior to any Determination Date during which Excess Interest is
received, and upon notification from the Servicer or Special Servicer pursuant
to Section 3.02(d), the Trustee, on behalf of the Certificateholders, shall
establish and maintain the Excess Interest Distribution Account in the name of
the Trustee in trust for the benefit of the Class NR Certificateholders. The
Excess Interest Distribution Account shall be established and maintained as an
Eligible Account. Prior to the applicable Distribution Date, the Servicer shall
remit to the Trustee for deposit in the Excess Interest Distribution Account an
amount equal to the Excess Interest received prior to the Determination Date for
the applicable Due Period.
Following the distribution of Excess Interest to Class NR
Certificateholders on the first Distribution Date after which there are no
longer any Mortgage Loans outstanding which pursuant to their terms could pay
Excess Interest, the Trustee shall terminate the Excess Interest Distribution
Account.
(d) The Trustee shall establish (upon notice from the Special
Servicer of an event occurring that generates Gain-on-Sale Proceeds) and
maintain the Gain-on-Sale Reserve Account in trust for the benefit of the
Certificateholders. The Gain-on-Sale Reserve Account shall be maintained as a
segregated account, separate and apart from trust funds for mortgage
pass-through certificates of other series administered by the Trustee and other
accounts of the Trustee. Funds in the Gain-on-Sale Reserve Account shall be held
uninvested.
Upon the disposition of any REO Property in accordance with Section
3.09 or Section 3.18, the Special Servicer will calculate the Gain-on-Sale
Proceeds, if any, realized in connection with such sale and remit such funds to
the Trustee for deposit into the Gain-on-Sale Reserve Account; provided, that
any Gain-on-Sale Proceeds with respect to the Simon Mortgage Loan shall be
deemed to be distributed by the Loan REMIC in respect of the Loan REMIC Residual
Interest and then deposited in the Gain-on-Sale Reserve Account held by the
Lower-Tier REMIC Account to cover losses or shortfalls on the Majority Mortgage
Loans in accordance with Section 4.01(e).
Section 3.05 Permitted Withdrawals from the Certificate Account, the
Simon Collection Account, the Distribution Accounts and the Companion
Distribution Account.
(a) The Servicer may, from time to time, make withdrawals from the
Certificate Account, or with respect to the Simon Mortgage Loan, the Simon
Collection Account, for any of the following purposes:
(i) no later than 12:00 noon on each P&I Advance Date, to remit to
the Trustee for deposit in the Loan REMIC Distribution Account, the
Lower-Tier Distribution Account and the Excess Interest Distribution
Account the amounts required to be remitted pursuant to the first
paragraph of Section 3.04(b) and Section 3.04(c) or that may be applied to
make P&I Advances pursuant to Section 4.03(a);
(ii) to pay (A) itself unpaid Servicing Fees in respect of each
Mortgage Loan, Specially Serviced Mortgage Loan and REO Loan, as
applicable, the Servicer or Special Servicer's, as applicable, rights to
payment of Servicing Fees and Special Servicing Fees, Liquidation Fees and
Workout Fees pursuant to this clause (ii)(A) with respect to any Mortgage
Loan, Specially Serviced Mortgage Loan or REO Loan, as applicable, being
limited to amounts received on or in respect of such Mortgage Loan
(whether in the form of payments, Liquidation Proceeds or Insurance and
Condemnation Proceeds) or such REO Loan (whether in the form of REO
Revenues, Liquidation Proceeds or Insurance and Condemnation Proceeds),
that are allocable as recovery of interest thereon, (B) to pay the Special
Servicer any unpaid Special Servicing Fees, Liquidation Fees and Workout
Fees in respect of each Specially Serviced Loan or REO Loan, as
applicable, and any fees incurred by the Special Servicer in connection
with performing any inspections pursuant to Section 3.12(a), remaining
unpaid first, out of REO Revenues, Liquidation Proceeds and Insurance and
Condemnation Proceeds, and then out of general collections on the Mortgage
Loans and REO Properties and (C) to remit to the Companion Paying Agent
for deposit in each Companion Distribution Account the amounts required to
be so deposited pursuant to the second paragraph of Section 3.04(b);
(iii) to reimburse the Trustee and itself, as applicable (in that
order), for xxxxxxxxxxxx X&X Advances, the Servicer's or the Trustee's
right to reimbursement pursuant to this clause (iii) being limited to
amounts received which represent Late Collections of interest (net of the
related Servicing Fees) on and principal of the particular Mortgage Loans
and REO Loans with respect to which such P&I Advances were made;
(iv) to reimburse the Trustee, the Special Servicer and itself, as
applicable (in that order), for unreimbursed Servicing Advances, the
Servicer's, or the Trustee's respective rights to receive payment pursuant
to this clause (iv) with respect to any Mortgage Loan or REO Property
being limited to, as applicable, related payments, Liquidation Proceeds,
Insurance and Condemnation Proceeds and REO Revenues;
(v) to reimburse the Trustee and itself, as applicable (in that
order), for Nonrecoverable Advances first, out of REO Revenues,
Liquidation Proceeds and Insurance and Condemnation Proceeds, then out of
general collections on the Mortgage Loans and REO Properties or to pay
itself, with respect to any Mortgage Loan or REO Property any related
earned Servicing Fee that remained unpaid in accordance with clause (ii)
above following a Final Recovery Determination made with respect to such
Mortgage Loan or REO Property and the deposit into the Certificate Account
of all amounts received in connection therewith;
(vi) at such time as it reimburses the Trustee and itself, as
applicable (in that order), for (a) any xxxxxxxxxxxx X&X Advance pursuant
to clause (iii) above, to pay itself or the Trustee, as applicable, any
interest accrued and payable thereon in accordance with Sections 4.03(d)
and 3.11(c), (b) any unreimbursed Servicing Advances pursuant to clause
(iv) above, to pay itself, the Special Servicer or the Trustee, as the
case may be, any interest accrued and payable thereon in accordance with
Sections 3.03(d) and 3.11(c) or (c) any Nonrecoverable Advances pursuant
to clause (v) above, to pay itself, the Special Servicer or the Trustee,
as the case may be, any interest accrued and payable thereon;
(vii) to reimburse itself, the Special Servicer, the Depositor or
the Trustee, as the case may be, for any unreimbursed expenses reasonably
incurred by such Person in respect of any Breach or Defect giving rise to
a repurchase or substitution obligation of the applicable Mortgage Loan
Seller under Section 3 of the applicable Mortgage Loan Purchase Agreement,
including, without limitation, any expenses arising out of the enforcement
of the repurchase or substitution obligation, each such Person's right to
reimbursement pursuant to this clause (vii) with respect to any Mortgage
Loan being limited to that portion of the Purchase Price or Substitution
Shortfall Amount paid with respect to such Mortgage Loan that represents
such expense in accordance with clause (iv) of the definition of Purchase
Price;
(viii) in accordance with Section 2.03(e), to reimburse itself or
the Special Servicer, as the case may be, first, out of Liquidation
Proceeds, Insurance and Condemnation Proceeds, and then out of general
collections on the Mortgage Loans and REO Properties for any unreimbursed
expense reasonably incurred by such Person in connection with the
enforcement of the applicable Mortgage Loan Seller's obligations under
Section 3 of the applicable Mortgage Loan Purchase Agreement, but only to
the extent that such expenses are not reimbursable pursuant to clause
(vii) above or otherwise;
(ix) to pay for costs and expenses incurred by the Trust Fund
pursuant to Section 3.09(c) first, out of REO Revenues, Liquidation
Proceeds, Insurance and Condemnation Proceeds, and then out of general
collections on the Mortgage Loans and REO Properties;
(x) to pay itself, as additional servicing compensation in
accordance with Section 3.11(a), (a) (A) interest and investment income
earned in respect of amounts relating to the Trust Fund held in the
Certificate Account as provided in Section 3.06(b) (but only to the extent
of the Net Investment Earnings with respect to the Certificate Account for
the period from the prior P&I Advance Date to the P&I Advance Date related
to such Distribution Date) and (B) Penalty Charges on Mortgage Loans
(other than Specially Serviced Mortgage Loans), but only to the extent
collected from the related Mortgagor and to the extent that all amounts
then due and payable with respect to the related Mortgage Loan have been
paid and such Penalty Charges are not needed to pay interest on Advances
or costs and expenses incurred by the Trust Fund (other than Special
Servicing Fees) in accordance with Section 3.11(c); and (b) to pay the
Special Servicer, as additional servicing compensation in accordance with
the second paragraph of Section 3.11(b), Penalty Charges on Specially
Serviced Mortgage Loans (but only to the extent collected from the related
Mortgagor and to the extent that all amounts then due and payable with
respect to the related Specially Serviced Mortgage Loan have been paid and
such Penalty Charges are not needed to pay interest on Advances or costs
and expenses incurred by the Trust Fund in accordance with Section
3.11(c));
(xi) to recoup any amounts deposited in the Certificate Account in
error;
(xii) to pay itself, the Special Servicer, the Depositor or any of
their respective directors, officers, members, managers, employees and
agents, as the case may be, any amounts payable to any such Person
pursuant to Section 6.03(a) or 6.03(b);
(xiii) to pay for (a) the cost of the Opinions of Counsel
contemplated by Sections 3.09(b), 3.16(a), 3.17(b), 3.20(a), 3.20(d) and
10.01(f) to the extent payable out of the Trust Fund, (b) the cost of any
Opinion of Counsel contemplated by Section 11.01(a) or 11.01(c) in
connection with an amendment to this Agreement requested by the Trustee or
the Servicer, which amendment is in furtherance of the rights and
interests of Certificateholders and (c) the cost of obtaining the REO
Extension contemplated by Section 3.16(a);
(xiv) to pay out of general collections on the Mortgage Loans and
REO Properties any and all federal, state and local taxes imposed on the
Upper-Tier REMIC, the Lower-Tier REMIC, the Loan REMIC or any of their
assets or transactions, together with all incidental costs and expenses,
to the extent that none of the Servicer, the Special Servicer or the
Trustee is liable therefor pursuant to Section 10.01(g);
(xv) to reimburse the Trustee out of general collections on the
Mortgage Loans and REO Properties for expenses incurred by and
reimbursable to it by the Trust Fund pursuant to Section 10.01(c);
(xvi) to pay itself, the Special Servicer or the Mortgage Loan
Sellers, as the case may be, with respect to each Mortgage Loan, if any,
previously purchased by such Person pursuant to this Agreement, all
amounts received thereon subsequent to the date of purchase relating to
periods after the date of purchase;
(xvii) to remit to the Trustee for deposit in the Interest Reserve
Account the amounts required to be deposited in the Interest Reserve
Account pursuant to Section 3.26;
(xviii) to clear and terminate the Certificate Account at the
termination of this Agreement pursuant to Section 9.01; and
(xix) to remit to the Companion Paying Agent for deposit into the
Companion Distribution Account the amounts required to be deposited
pursuant to Section 3.04(b).
Any amounts specified in clauses (ii)-(xviii) above which do not
relate to a specific Mortgage Loan, but rather are payable from general
collections on the Mortgage Loans and REO Properties shall be withdrawn from the
Simon Collection Account and the Certificate Account, pro rata, based on the
Stated Principal Balance of the Mortgage Loans. The Servicer shall keep and
maintain separate accounting records, on a loan-by-loan and property-by-property
basis when appropriate, for the purpose of justifying any withdrawal from the
Certificate Account and the Simon Collection Account.
The Servicer shall pay to the Special Servicer or the Trustee from
the Certificate Account (or the Simon Collection Account, as applicable) amounts
permitted to be paid to it therefrom monthly upon receipt of a certificate of a
responsible officer of the Special Servicer or the Trustee describing the item
and amount to which the Special Servicer or the Trustee is entitled. The
Servicer may rely conclusively on any such certificate and shall have no duty to
re-calculate the amounts stated therein. The Special Servicer shall keep and
maintain separate accounting for each Specially Serviced Mortgage Loan and REO
Loan, on a loan-by-loan and property-by-property basis, for the purpose of
justifying any request for withdrawal from the Certificate Account (or the Simon
Collection Account, as applicable).
(b) The Trustee, may, from time to time, make withdrawals from the
Loan REMIC Distribution Account for any of the following purposes:
(i) to make deposits to the Lower-Tier Distribution Account and
distributions in respect of the Class LR Certificates pursuant to Section
4.01(j) and (k) and to make deposits in respect of Yield Maintenance
Charges in respect of the Simon Mortgage Loan to the Lower-Tier
Distribution Account pursuant to Section 4.01(d);
(ii) [RESERVED];
(iii) with respect to the Simon Mortgage Loan, to pay to the Trustee
or any of its directors, officers, employees and agents, as the case may
be, any amounts payable or reimbursable to any such Person pursuant to
Section 8.05(b);
(iv) with respect to the Simon Mortgage Loan, to pay the Trustee its
portion of the Trustee Fee as contemplated by Section 8.05(a) hereof;
(v) with respect to the Simon Mortgage Loan, to pay for the cost of
the Opinions of Counsel sought by the Trustee (A) as provided in clause
(v) of the definition of "Disqualified Organization," (B) as contemplated
by Section 3.20(d), 9.02(a)(i) or 10.01(h), or (C) as contemplated by
Section 11.01(a) or 11.01(c) in connection with any amendment to this
Agreement requested by the Trustee which amendment is in furtherance of
the rights and interests of Certificateholders, in each case, to the
extent not paid pursuant to Section 4.01(j) or (k);
(vi) to pay any and all Federal, state and local taxes imposed on
the Loan REMIC or on the assets or transactions of such REMIC, together
with all incidental costs and expenses except to the extent the Trustee is
liable therefore pursuant to Section 10.01(g); provided that, to the
extent any of the REMIC Administrator, the Servicer or the Special
Servicer is liable therefor pursuant to Section 10.01(g), such payment
shall not prejudice the rights of the Trustee on behalf of the Loan REMIC
to collect such amounts;
(vii) with respect to the Simon Mortgage Loan, to pay the REMIC
Administrator any amounts reimbursable to it pursuant to Section 10.01(e);
(viii) to pay to the Servicer any amounts deposited by the Servicer
in the Loan REMIC Distribution Account not required to be deposited
therein; and
(ix) to clear and terminate the Loan REMIC Distribution Account at
the termination of this Agreement pursuant to Section 9.01.
(c) The Trustee may, from time to time, make withdrawals from the
Lower-Tier Distribution Account for any of the following purposes:
(i) to make deposits of the Lower-Tier Distribution Amount pursuant
to Section 4.01(b) and the amount of any Yield Maintenance Charges
distributable pursuant to Section 4.01(d) in the Upper-Tier Distribution
Account and to make distributions on the Class LR Certificates pursuant to
Section 4.01(b);
(ii) [RESERVED];
(iii) [RESERVED];
(iv) to pay to the Trustee, or any of its directors, officers,
employees and agents, as the case may be, any amounts payable or
reimbursable to any such Person pursuant to Section 8.05(b);
(v) to pay the Trustee its portion of the Trustee Fee as
contemplated by Section 8.05(a) hereof with respect to the Mortgage Loans;
(vi) to pay for the cost of the Opinions of Counsel sought by the
Trustee (A) as provided in clause (v) of the definition of "Disqualified
Organization," (B) as contemplated by Section 3.20(d), 8.02(ii) and
10.01(f), or (C) as contemplated by Section 11.01(a) or 11.01(c) in
connection with any amendment to this Agreement requested by the Trustee
which amendment is in furtherance of the rights and interests of
Certificateholders, in each case, to the extent not paid pursuant to
Section 4.01(i);
(vii) to pay any and all federal, state and local taxes imposed on
any of the REMICs created hereunder or on the assets or transactions of
any such REMIC, together with all incidental costs and expenses, to the
extent none of the Trustee, the REMIC Administrator, the Servicer or the
Special Servicer is liable therefor pursuant to Section 10.01(i);
(viii) to pay the REMIC Administrator any amounts reimbursable to it
pursuant to Section 10.01(e);
(ix) to pay to the Servicer any amounts deposited by the Servicer in
the Distribution Account not required to be deposited therein; and
(x) to clear and terminate the Lower-Tier Distribution Account at
the termination of this Agreement pursuant to Section 9.01.
(d) The Trustee shall, on any Distribution Date, make withdrawals
from the Excess Interest Distribution Account to the extent required to make the
distributions of Excess Interest required by Section 4.01(i).
(e) The Trustee may make withdrawals from the Upper-Tier
Distribution Account for any of the following purposes:
(i) to make distributions to Certificateholders (other than Holders
of the Class LR Certificates) on each Distribution Date pursuant to
Section 4.01 or 9.01, as applicable;
(ii) [RESERVED]; and
(iii) to clear and terminate the Upper-Tier Distribution Account at
the termination of this Agreement pursuant to Section 9.01.
(f) Notwithstanding anything herein to the contrary, with respect to
any Mortgage Loan, (i) if amounts on deposit in the Certificate Account, the
Simon Collection Account, the Loan REMIC Distribution Account and the Lower-Tier
Distribution Account are not sufficient to pay the full amount of the Servicing
Fee listed in Section 3.05(a)(ii) and the Trustee Fee listed in Section
3.05(b)(iv), then the Trustee Fee shall be paid in full prior to the payment of
any Servicing Fees payable under Section 3.05(a)(ii) and (ii) if amounts on
deposit in the Certificate Account or the Simon Collection Account are not
sufficient to reimburse the full amount of Advances and interest thereon listed
in Sections 3.05(a)(iii), (iv), (v) and (vi), then reimbursements shall be paid
first to the Trustee and second to the Servicer.
(g) The Companion Paying Agent may, from time to time, make
withdrawals from the Companion Distribution Account to make distributions on
each Distribution Date pursuant to Section 4.01(m).
Section 3.06 Investment of Funds in the Certificate Account, the
Distribution Account, the Simon Collection Account and the REO Account.
(a) The Servicer may direct any depository institution maintaining
the Certificate Account, the Simon Collection Account or any Servicing Account
(for purposes of this Section 3.06, an "Investment Account"), the Special
Servicer may direct any depository institution maintaining the REO Account (for
purposes of this Section 3.06, an "Investment Account") and the Trustee may
invest funds in the Distribution Accounts, except for the Excess Interest
Distribution Account, or may direct any depository institution maintaining such
Distribution Accounts, except for the Excess Interest Distribution Account (also
for purposes of this Section 3.06, an "Investment Account"), to invest or if it
is such depository institution, may itself invest, the funds held therein, only
in one or more Permitted Investments bearing interest or sold at a discount, and
maturing, unless payable on demand, (i) 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, if a Person other
than the depository institution maintaining such account is the obligor thereon
and (ii) no later than the date on which such funds are required to be withdrawn
from such account pursuant to this Agreement, if the depository institution
maintaining such account is the obligor thereon. All such Permitted Investments
shall be held to maturity, unless payable on demand. Any investment of funds in
an Investment Account shall be made in the name of the Trustee (in its capacity
as such). The Servicer (in the case of the Certificate Account or the Simon
Collection Account or any Servicing Account maintained by or for the Servicer)
or the Special Servicer (in the case of the REO Account or any Servicing Account
maintained by or for the Special Servicer), on behalf of the Trustee, or the
Trustee, in the case of such Distribution Accounts, shall maintain continuous
physical possession of any Permitted Investment of amounts in the Certificate
Account, the Simon Collection Account, the Servicing Accounts, REO Account or
such Distribution Accounts, as applicable, that is either (i) a "certificated
security," as such term is defined in the UCC (such that the Trustee shall have
control pursuant to Section 8-106 of the UCC) or (ii) other property in which a
secured party may perfect its security interest by physical possession under the
UCC or any other applicable law. In the case of any Permitted Investment held in
the form of a "security entitlement" (within the meaning of Section 8-102(a)(17)
of the UCC), the Servicer or the Special Servicer, as applicable, shall take or
cause to be taken such action as the Trustee deems reasonably necessary to cause
the Trustee to have control over such security entitlement. In the event amounts
on deposit in an Investment Account are at any time invested in a Permitted
Investment payable on demand, the Servicer (in the case of the Certificate
Account, Simon Collection Account or any Servicing Account maintained by or for
the Servicer), the Special Servicer (in the case of the REO Account or any
Servicing Account maintained by or for the Special Servicer or the Trustee, in
the case of the Distribution Accounts) shall:
(i) consistent with any notice required to be given thereunder,
demand that payment thereon be made on the last day such Permitted
Investment may otherwise mature hereunder in an amount equal to the lesser
of (a) all amounts then payable thereunder and (b) the amount required to
be withdrawn on such date; and
(ii) demand payment of all amounts due thereunder promptly upon
determination by the Servicer, the Special Servicer or the Trustee, as the
case may be, that such Permitted Investment would not constitute a
Permitted Investment in respect of funds thereafter on deposit in the
Investment Account.
(b) Interest and investment income realized on funds deposited in
the Certificate Account, the Simon Collection Account or any Servicing Account
maintained by or for the Servicer, to the extent of the Net Investment Earnings,
if any, with respect to such account for the period from the prior P&I Advance
Date to the P&I Advance Date related to such Distribution Date, shall be for the
sole and exclusive benefit of the Servicer to the extent not required to be paid
to the related Mortgagor and shall be subject to its withdrawal, or withdrawal
at its direction, in accordance with Sections 3.03 or Section 3.05(a), as the
case may be. Interest and investment income realized on funds deposited in the
Distribution Accounts (other than the Excess Interest Distribution Account)
maintained by or for the Trustee, to the extent of the Net Investment Earnings,
if any, with respect to such account for the period from the prior P&I Advance
Date to the P&I Advance Date related to such Distribution Date, shall be for the
sole and exclusive benefit of the Trustee to the extent not required to be paid
to the related Mortgagor and shall be subject to its withdrawal, or withdrawal
at its direction, in accordance with Sections 3.03 or Section 3.05(a), as the
case may be. Interest and investment income realized on funds deposited in the
REO Account or any Servicing Account maintained by or for the Special Servicer,
to the extent of the Net Investment Earnings, if any, with respect to such
account for each period from any Distribution Date to the immediately succeeding
P&I Advance Date, shall be for the sole and exclusive benefit of the Special
Servicer and shall be subject to its withdrawal in accordance with Section
3.16(c). In the event that any loss shall be incurred in respect of any
Permitted Investment directed to be made by the Servicer, Special Servicer or
Trustee, as applicable, and on deposit in any of the Certificate Account, the
Simon Collection Account, the Servicing Account, the REO Account, or the
Distribution Accounts (other than the Excess Interest Distribution Account), the
Servicer (in the case of the Certificate Account, Simon Collection Account or
any Servicing Account maintained by or for the Servicer), the Special Servicer
(in the case of the REO Account or any Servicing Account maintained by or for
the Special Servicer) and the Trustee (in the case of such Distribution Accounts
maintained by or for the Trustee) shall deposit therein, no later than the P&I
Advance Date, without right of reimbursement, the amount of Net Investment Loss,
if any, with respect to such account for the period from the prior P&I Advance
Date to the P&I Advance Date related to such Distribution Date, provided that
neither the Servicer nor the Special Servicer shall be required to deposit any
loss on an investment of funds in an Investment Account if such loss is incurred
solely as a result of the insolvency of the federal or state chartered
depository institution or trust company that holds such Investment Account, so
long as such depository institution or trust company satisfied the
qualifications set forth in the definition of Eligible Account at the time such
investment was made.
(c) Except as otherwise expressly provided in this Agreement, if any
default occurs in the making of a payment due under any Permitted Investment, or
if a default occurs in any other performance required under any Permitted
Investment, the Servicer may and, upon the request of Holders of Certificates
entitled to a majority of the Voting Rights allocated to any Class shall, take
such action as may be appropriate to enforce such payment or performance,
including the institution and prosecution of appropriate proceedings.
Section 3.07 Maintenance of Insurance Policies; Errors and Omissions
and Fidelity Coverage.
(a) The Servicer shall use its reasonable efforts to cause the
Mortgagor to maintain, to the extent required by the terms of the related
Mortgage Note, or if the Mortgagor does not so maintain, shall itself maintain,
for each Mortgage Loan all insurance coverage as is required under the related
Mortgage, except to the extent that the failure of the related Mortgagor to do
so is an Acceptable Insurance Default; provided, however, that if any Mortgage
permits the holder thereof to dictate to the Mortgagor the insurance coverage to
be maintained on such Mortgaged Property, the Servicer shall impose such
insurance requirements as are consistent with the Servicing Standards, provided
that the Servicer will be obligated to maintain insurance against property
damage resulting from terrorist or similar acts unless the Mortgagor's failure
is an Acceptable Insurance Default. Subject to Section 3.17(a), the Special
Servicer shall maintain for each REO Property no less insurance coverage than
was previously required of the Mortgagor under the related Mortgage Loan. All
Insurance Policies maintained by the Servicer or the Special Servicer shall (i)
contain a "standard" mortgagee clause, with loss payable to the Servicer on
behalf of the Trustee (in the case of insurance maintained in respect of
Mortgage Loans other than REO Properties), (ii) be in the name of the Trustee
(in the case of insurance maintained in respect of REO Properties), (iii)
include coverage in an amount not less than the lesser of (x) the full
replacement cost of the improvements securing Mortgaged Property or the REO
Property, as applicable, or (y) the outstanding principal balance owing on the
related Mortgage Loan or REO Loan, as applicable, and in any event, the amount
necessary to avoid the operation of any co-insurance provisions, (iv) include a
replacement cost endorsement providing no deduction for depreciation (unless
such endorsement is not permitted under the related Mortgage Loan documents),
(v) be noncancellable without 30 days prior written notice to the insured party
(except in the case of nonpayment, in which case such policy shall not be
cancelled without 10 days prior notice) and (vi) be issued by a Qualified
Insurer authorized under applicable law to issue such Insurance Policies. Any
amounts collected by the Servicer or the Special Servicer under any such
Insurance Policies (other than amounts to be applied to the restoration or
repair of the related Mortgaged Property or REO Property or amounts to be
released to the related Mortgagor, in each case in accordance with the Servicing
Standards and the provisions of the related Mortgage Loan) shall be deposited in
the Certificate Account, subject to withdrawal pursuant to Section 3.05(a). Any
costs incurred by the Servicer in maintaining any such Insurance Policies in
respect of Mortgage Loans (other than REO Properties) (i) if the Mortgagor
defaults on its obligation to do so, shall be advanced by the Servicer as a
Servicing Advance and will be charged to the related Mortgagor and (ii) shall
not, for purposes of calculating monthly distributions to Certificateholders, be
added to the unpaid principal balance of the related Mortgage Loan,
notwithstanding that the terms of such Mortgage Loan or Companion Loan so
permit. Any cost incurred by the Special Servicer in maintaining any such
Insurance Policies with respect to REO Properties shall be an expense of the
Trust payable out of the related REO Account pursuant to Section 3.16(c) or, if
the amount on deposit therein is insufficient therefor, advanced by the Servicer
as a Servicing Advance.
Notwithstanding the foregoing, with respect to the Mortgage Loans
which either (x) require the Mortgagor to maintain "all risk" property insurance
(and do not expressly permit an exclusion for terrorism) or (y) contain
provisions generally requiring the applicable Mortgagor to maintain insurance in
types and against such risks as the holder of such Mortgage Loan reasonably
requires from time to time in order to protect its interests, the Servicer will
be required to (A) actively monitor whether the insurance policies for the
related Mortgaged Property contain Additional Exclusions, (B) request the
Mortgagor to either purchase insurance against the risks specified in the
Additional Exclusions or provide an explanation as to its reasons for failing to
purchase such insurance and (C) notify the Special Servicer if any insurance
policy contains Additional Exclusions or if any borrower fails to purchase the
insurance requested to be purchased by the Servicer pursuant to clause (B)
above. If the Special Servicer determines that such failure is not an Acceptable
Insurance Default, the Special Servicer shall notify the Servicer and the
Servicer shall cause such insurance to be maintained. Furthermore, the Special
Servicer shall inform the Rating Agencies as to such conclusions for those
Mortgage Loans that have one of the ten (10) highest outstanding Stated
Principal Balances of all of the Mortgage Loans then included in the Trust.
During the period that the Special Servicer is evaluating the availability of
such insurance, the Servicer will not be liable for any loss related to its
failure to require the Mortgagor to maintain such insurance and will not be in
default of its obligations as a result of such failure.
(b) (i) If the Servicer or the Special Servicer shall obtain and
maintain a blanket Insurance Policy with a Qualified Insurer insuring against
fire and hazard losses on all of the Mortgage Loans or REO Properties, as the
case may be, required to be serviced and administered hereunder, then, to the
extent such Insurance Policy provides protection equivalent to the individual
policies otherwise required, the Servicer or the Special Servicer shall
conclusively be deemed to have satisfied its obligation to cause fire and hazard
insurance to be maintained on the related Mortgaged Properties or REO
Properties. Such Insurance Policy may contain a deductible clause, in which case
the Servicer or the Special Servicer shall, if there shall not have been
maintained on the related Mortgaged Property or REO Property a fire and hazard
Insurance Policy complying with the requirements of Section 3.07(a), and there
shall have been one or more losses which would have been covered by such
Insurance Policy, promptly deposit into the Certificate Account from its own
funds the amount of such loss or losses that would have been covered under the
individual policy but are not covered under the blanket Insurance Policy because
of such deductible clause to the extent that any such deductible exceeds the
deductible limitation that pertained to the related Mortgage Loan, or in the
absence of such deductible limitation, the deductible limitation which is
consistent with the Servicing Standard. In connection with its activities as
administrator and Servicer of the Mortgage Loans, the Servicer agrees to prepare
and present, on behalf of itself, the Trustee and Certificateholders, claims
under any such blanket Insurance Policy in a timely fashion in accordance with
the terms of such policy. The Special Servicer, to the extent consistent with
the Servicing Standards, may maintain, earthquake insurance on REO Properties,
provided coverage is available at commercially reasonable rates, the cost of
which shall be a Servicing Advance.
(ii)If the Servicer or the Special Servicer shall cause any
Mortgaged Property or REO Property to be covered by a master single
interest or force-placed insurance policy with a Qualified Insurer naming
the Servicer or the Special Servicer on behalf of the Trustee as the loss
payee, then to the extent such Insurance Policy provides protection
equivalent to the individual policies otherwise required, the Servicer or
the Special Servicer shall conclusively be deemed to have satisfied its
obligation to cause such insurance to be maintained on the related
Mortgage Properties and REO Properties. In the event the Servicer or the
Special Servicer shall cause any Mortgaged Property or REO Property to be
covered by such master single interest or force-placed insurance policy,
the incremental costs of such insurance applicable to such Mortgaged
Property or REO Property (i.e., other than any minimum or standby premium
payable for such policy whether or not any Mortgaged Property or REO
Property is covered thereby) shall be paid by the Servicer as a Servicing
Advance. Such master single interest or force-placed policy may contain a
deductible clause, in which case the Servicer or the Special Servicer
shall, in the event that there shall not have been maintained on the
related Mortgaged Property or REO Property a policy otherwise complying
with the provisions of Section 3.07(a), and there shall have been one or
more losses which would have been covered by such policy had it been
maintained, deposit into the Certificate Account from its own funds the
amount not otherwise payable under the master single or force-placed
interest policy because of such deductible clause, to the extent that any
such deductible exceeds the deductible limitation that pertained to the
related Mortgage Loan, or, in the absence of any such deductible
limitation, the deductible limitation which is consistent with the
Servicing Standard.
(c) Each of the Servicer and the Special Servicer shall obtain and
maintain at its own expense and keep in full force and effect throughout the
term of this Agreement a blanket fidelity bond and an errors and omissions
Insurance Policy with a Qualified Insurer covering the Servicer's and the
Special Servicer's, as applicable, officers and employees acting on behalf of
the Servicer and the Special Servicer in connection with its activities under
this Agreement. Notwithstanding the foregoing, so long as the long term debt or
the deposit obligations or claims-paying ability of the Servicer is rated at
least "A" by Xxxxx'x and Fitch, the Servicer shall be allowed to provide
self-insurance with respect to a fidelity bond and an Errors and Omissions
Insurance Policy. The amount of coverage shall be at least equal to the coverage
that would be required by Xxxxxx Mae or Xxxxxxx Mac, whichever is greater, with
respect to the Servicer or the Special Servicer if the Servicer or the Special
Servicer, as applicable, were servicing and administering the Mortgage Loans or
Specially Serviced Mortgage Loans, as applicable, for Xxxxxx Mae or Xxxxxxx Mac.
Coverage of the Servicer or the Special Servicer under a policy or bond obtained
by an Affiliate of the Servicer or the Special Servicer and providing the
coverage required by this Section 3.07(c) shall satisfy the requirements of this
Section 3.07(c). The Special Servicer and the Servicer will promptly report in
writing to the Trustee any material changes that may occur in their respective
fidelity bonds, if any, and/or their respective errors and omissions Insurance
Policies, as the case may be, and will furnish to the Trustee copies of all
binders and policies or certificates evidencing that such bonds, if any, and
insurance policies are in full force and effect. The Servicer and the Special
Servicer shall each cause the Trustee to be an additional loss payee on any
policy currently in place or procured pursuant to the requirements of this
Section 3.07(c).
(d) At the time the Servicer determines in accordance with the
Servicing Standard that any Mortgaged Property shall be in a federally
designated special flood hazard area (and such flood insurance has been made
available), the Servicer will use reasonable efforts to cause the related
Mortgagor (in accordance with applicable law and the terms of the Mortgage Loan
documents) to maintain, and, if the related Mortgagor shall default in its
obligation to so maintain, shall itself maintain to the extent available at
commercially reasonable rates (as determined by the Servicer in accordance with
the Servicing Standards and to the extent the Trustee, as mortgagee, has an
insurable interest therein), flood insurance in respect thereof, but only to the
extent the related Mortgage Loan permits the mortgagee to require such coverage
and the maintenance of such coverage is consistent with the Servicing Standards.
Such flood insurance shall be in an amount equal to the lesser of (i) the unpaid
principal balance of the related Mortgage Loan, and (ii) the maximum amount of
insurance which is available under the National Flood Insurance Act of 1968, as
amended. If the cost of any insurance described above is not borne by the
Mortgagor, the Servicer shall promptly make a Servicing Advance for such costs.
(e) During all such times as any REO Property shall be located in a
federally designated special flood hazard area, the Special Servicer will cause
to be maintained, to the extent available at commercially reasonable rates (as
determined by the Special Servicer in accordance with the Servicing Standards),
a flood insurance policy meeting the requirements of the current guidelines of
the Federal Insurance Administration in an amount representing coverage not less
than the maximum amount of insurance which is available under the National Flood
Insurance Act of 1968, as amended. The cost of any such flood insurance with
respect to an REO Property shall be an expense of the Trust payable out of the
related REO Account pursuant to Section 3.16(c) or, if the amount on deposit
therein is insufficient therefor, paid by the Servicer as a Servicing Advance.
Section 3.08 Enforcement of Due-on-Sale Clauses; Assumption
Agreements.
(a) As to each Mortgage Loan which contains a provision in the
nature of a "due-on-sale" clause, which by its terms:
(i) provides that such Mortgage Loan shall (or may at the
mortgagee's option) become due and payable upon the sale or other transfer
of an interest in the related Mortgaged Property; or
(ii) provides that such Mortgage Loan may not be assumed without the
consent of the mortgagee in connection with any such sale or other
transfer,
then, for so long as such Mortgage Loan is included in the Trust Fund, the
Special Servicer or, with respect to all Non-Specially Serviced Mortgage Loans,
the Servicer, on behalf of the Trustee as the mortgagee of record, shall
exercise (or waive its right to exercise provided that it has, (i) with respect
to all Non-Specially Serviced Mortgage Loans, the Servicer has obtained the
prior written consent of the Special Servicer, which consent shall be deemed
given 10 Business Days after receipt by the Special Servicer from the Servicer
of the Servicer's analysis and recommendation with respect to such waiver
together with such other information reasonably required by the Special
Servicer, (ii) with respect to all Specially Serviced Mortgage Loans, and
Non-Specially Serviced Mortgage Loans having a Stated Principal Balance greater
than or equal to $2,500,000, the Servicer or Special Servicer, as applicable,
has obtained the prior written consent of the Directing Certificateholder, which
consent shall be deemed given 10 Business Days after receipt by the Directing
Certificateholder from the Servicer of the Servicer's analysis and
recommendation with respect to such waiver together with such other information
reasonably required by the Directing Certificateholder and (iii) with respect to
any Mortgage Loan with a Stated Principal Balance greater than or equal to
$20,000,000, confirmation from Xxxxx'x that such waiver or consent would not
result in the downgrade, withdrawal or qualification of the then-current ratings
on any class of outstanding certificates has been obtained from Xxxxx'x with
respect to certain Mortgage Loans if the related Mortgage Loan, together with
any other Mortgage Loans cross-collateralized therewith, or together with all
other Mortgage Loans with the same or an affiliated mortgagor, is one of the ten
largest of the then outstanding Mortgage Loans, by Stated Principal Balance,
then the Servicer or the Special Servicer, as applicable, shall obtain written
confirmation from Fitch stating that none of the then-current rating or ratings
of all outstanding Classes of the Certificates would be downgraded or withdrawn
by Fitch, as a result of such waiver) any right it may have with respect to such
Mortgage Loan (x) to accelerate the payments thereon or (y) to withhold its
consent to any such sale or transfer, in a manner consistent with the Servicing
Standards.
(b) As to each Mortgage Loan which contains a provision in the
nature of a "due-on-encumbrance" clause, which by its terms:
(i) provides that such Mortgage Loan shall (or may at the
mortgagee's option) become due and payable upon the creation of any
additional lien or other encumbrance on the related Mortgaged Property; or
(ii) requires the consent of the mortgagee to the creation of any
such additional lien or other encumbrance on the related Mortgaged
Property;
then, for so long as such Mortgage Loan is included in the Trust Fund, the
Servicer shall provide notice to the Special Servicer of any request for a
waiver thereof, and the Special Servicer, on behalf of the Trustee as the
mortgagee of record, shall exercise (or waive its right to exercise provided
that the Special Servicer has, (i) (a) with respect to all Specially Serviced
Mortgage Loans and (b) all Non-Specially Serviced Mortgage Loans having a Stated
Principal Balance greater than or equal to $2,500,000, obtained the consent of
the Directing Certificateholder, (iii) with respect to Mortgage Loans with a
Stated Principal Balance greater than or equal to $20,000,000, obtained from
Xxxxx'x confirmation that such waiver would not result in the downgrade,
withdrawal or qualification of the then-current ratings on any class of
outstanding certificates and (iv) if the related Mortgage Loan, together with
any other Mortgage Loans cross-collateralized therewith, or together with all
other Mortgage Loans with the same or an affiliated mortgagor, is one of the ten
largest of the then-outstanding Mortgage Loans, by Stated Principal Balance,
then the Special Servicer shall obtain written confirmation from Fitch stating
that none of the then-current rating or ratings of all outstanding Classes of
the Certificates would be downgraded or withdrawn by Fitch, as a result of such
waiver) any right it may have with respect to such Mortgage Loan (x) to
accelerate the payments thereon or (y) to withhold its consent to the creation
of any such additional lien or other encumbrance, in a manner consistent with
the Servicing Standards.
(c) Nothing in this Section 3.08 shall constitute a waiver of the
Trustee's right, as the mortgagee of record, to receive notice of any assumption
of a Mortgage Loan, any sale or other transfer of the related Mortgaged Property
or the creation of any additional lien or other encumbrance with respect to such
Mortgaged Property.
(d) Except as otherwise permitted by Sections 3.20 and 3.08(f),
neither the Servicer nor the Special Servicer shall agree to modify, waive or
amend any term of any Mortgage Loan in connection with the taking of, or the
failure to take, any action pursuant to this Section 3.08.
(e) Notwithstanding the foregoing, the Special Servicer shall not
waive any rights under a "due-on-encumbrance" clause with respect to any
Mortgage Loan which (together with any Mortgaged Loans cross-collateralized with
such Mortgage Loans) represent over 2% of the outstanding principal balance of
the pool of Mortgage Loans unless it obtains from each Rating Agency, a written
confirmation that such waiver will not cause a downgrading, qualification or
withdrawal of the then current rating assigned to any of the Certificates. The
Special Servicer shall provide copies of any such waivers to the Servicer and
each Rating Agency with respect to each Mortgage Loan. To the extent any fee
charged by each Rating Agency in connection with rendering such written
confirmation is not paid by the related Mortgagor, such fee is to be an expense
of the Trust. Notwithstanding the foregoing, the Special Servicer shall not
waive any rights under a "due-on-sale" clause with respect to any of the
Mortgage Loans unless it obtains from each Rating Agency a written confirmation
that such waiver would not cause a downgrading, qualification or withdrawal of
the then current rating assigned to any of the Certificates; provided, however,
that (x) no such confirmation shall be required for any Mortgage Loan which
(together with any Mortgaged Loans cross-collateralized with such Mortgage
Loans) represent less than 2% of the outstanding principal balance of the pool
of Mortgage Loans and which has an LTV Ratio less than 85% (determined based
upon the aggregate of the Stated Principal Balance of the Mortgage Loan and the
principal amount of the proposed additional loan) and (y) if such Mortgage Loan
is one of the ten largest Mortgage Loans (by outstanding principal balance),
then the confirmation of Fitch shall be required. To the extent any fee charged
by each Rating Agency in connection with rendering such written confirmation is
not paid by the related Mortgagor, such fee is to be an expense of the Trust.
The Special Servicer shall provide copies of any such waivers to the Servicer
and each Rating Agency with respect to each Mortgage Loan.
(f) Notwithstanding any other provisions of this Section 3.08 or
Section 3.20, the Servicer may, without any Rating Agency confirmation as
provided in clause (e) above or any Directing Certificateholder approval
(provided the Servicer delivers notice thereof to the Special Servicer and
Directing Certificateholder), (i) grant waivers of non-material covenant
defaults (other than financial covenants), including late financial statements;
(ii) grant releases of non-material, non-income producing parcels of a Mortgaged
Property that do not materially affect the use or value of the Mortgaged
Property or the ability of the related Mortgagor to pay amounts due in respect
of the Mortgage Loan as and when due; (iii) approve or consent to grants of
easements or right of way for utilities, access, parking, public improvements or
another purpose or subordinations of the lien of Mortgage Loans to easements
that do not materially affect the use or value of a Mortgaged Property or a
Mortgagor's ability to make any payments with respect to the related Mortgage
Loan; (iv) grant other routine approvals, including the granting of
subordination, non-disturbance and attornment agreements and leasing consents
that affect less than the lesser of (a) 30% of the net rentable area of the
Mortgaged Property, or (b) 30,000 square feet; (v) consents to actions related
to condemnation of non-material, non-income producing parcels of the Mortgaged
Property that do not materially affect the use or value of the Mortgaged
Property or the ability of the related Mortgagor to pay amounts due in respect
of the Mortgage Loan as and when due; (vi) consents to a change in property
management relating to any Mortgage Loan with respect to Mortgage Loans with an
outstanding principal balance of less than $10,000,000; and (vii) approve of
annual operating budgets; provided that 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
cause any of the Upper-Tier REMIC, Lower-Tier REMIC or Loan REMIC to fail to
qualify as a REMIC or cause the Grantor Trust to fail to qualify as a Grantor
Trust, (y) agreeing to such modification, waiver or amendment would be
consistent with the Servicing Standard, and (z) agreeing to such modification,
waiver or amendment shall not violate the terms, provisions or limitations of
this Agreement or any other document contemplated hereby.
(g) Notwithstanding any other provision of this Agreement, the
Servicer may not waive its rights or grant its consent under any "due-on-sale"
or "due-on-encumbrance" clause without the consent of the Special Servicer and
the Special Servicer may not waive its rights or grant its consent under any
"due-on-sale" or "due-on-encumbrance" clause relating to a Non-Specially
Serviced Mortgage Loan having a Stated Principal Balance greater than or equal
to $2,500,000 or relating to any Specially Serviced Mortgage Loan without the
consent of the Directing Certificateholder. The Directing Certificateholder
shall have 10 Business Days after receipt of notice together with the
recommendation and analysis with respect to such waiver from the Special
Servicer of a proposed waiver or consent under any "due-on-sale" or
"due-on-encumbrance" clause in which to grant or withhold its consent (provided
that if the Special Servicer fails to receive a response to such notice from the
Directing Certificateholder in writing within such period, then the Directing
Certificateholder shall be deemed to have consented to such proposed waiver or
consent).
Section 3.09 Realization Upon Defaulted Mortgage Loans.
(a) The Special Servicer shall, subject to subsections (b) through
(d) of this Section 3.09, exercise reasonable efforts, consistent with the
Servicing Standards, to foreclose upon or otherwise comparably convert (which
may include an REO Acquisition) the ownership of property securing such Mortgage
Loans or Companion Loans, as come into and continue in default as to which no
satisfactory arrangements can be made for collection of delinquent payments, and
which are not released from the Trust Fund pursuant to any other provision
hereof. The foregoing is subject to the provision that, in any case in which a
Mortgaged Property shall have suffered damage from an Uninsured Cause, the
Servicer or Special Servicer shall not be required to make a Servicing Advance
and expend funds toward the restoration of such property unless the Special
Servicer has determined in its reasonable discretion that such restoration will
increase the net proceeds of liquidation of such Mortgaged Property to
Certificateholders after reimbursement to the Servicer for such Servicing
Advance, and the Servicer or Special Servicer has determined that such Servicing
Advance together with accrued and unpaid interest thereon will be recoverable by
the Servicer or Special Servicer out of the proceeds of liquidation of such
Mortgaged Property, as contemplated in Section 3.05(a)(iv). The Special Servicer
shall be responsible for all other costs and expenses incurred by it in any such
proceedings (such costs and expenses to be advanced by the Servicer or upon
request of the Special Servicer, to the Special Servicer), provided that, in
each case, such cost or expense would not, if incurred, constitute a
Nonrecoverable Servicing Advance. Nothing contained in this Section 3.09 shall
be construed so as to require the Servicer or the 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 the Servicer or the Special Servicer in its reasonable judgment
taking into account the factors described in Section 3.18(b) and the results of
any Appraisal obtained pursuant to the following sentence, all such bids to be
made in a manner consistent with the Servicing Standards. If and when the
Special Servicer or the Servicer deems it necessary and prudent for purposes of
establishing the fair market value of any Mortgaged Property securing a
Defaulted Mortgage Loan or defaulted Companion Loan, whether for purposes of
bidding at foreclosure or otherwise, the Special Servicer or the Servicer, as
the case may be, is authorized to have an Appraisal performed with respect to
such property by an Independent MAI-designated appraiser the cost of which shall
be paid by the Servicer as a Servicing Advance.
(b) The Special Servicer shall not acquire any personal property
pursuant to this Section 3.09 unless either:
(i) such personal property is incidental to real property (within
the meaning of Section 856(e)(1) of the Code) so acquired by the Special
Servicer; or
(ii) the Special Servicer shall have obtained an Opinion of Counsel
(the cost of which shall be paid by the Servicer as a Servicing Advance)
to the effect that the holding of such personal property by the Trust Fund
(to the extent not allocable to a Companion Loan) will not cause the
imposition of a tax on the Upper-Tier REMIC, the Lower-Tier REMIC or the
Loan REMIC under the REMIC Provisions or cause the Upper-Tier REMIC, the
Lower-Tier REMIC or the Loan REMIC to fail to qualify as a REMIC at any
time that any Uncertificated Lower-Tier Interest, Loan REMIC Regular
Interest or Certificate is outstanding.
(c) Notwithstanding the foregoing provisions of this Section 3.09,
neither the Special Servicer nor the Servicer shall, on behalf of the Trustee,
obtain title to a Mortgaged Property 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, would be
considered to hold title to, to be a "mortgagee-in-possession" of, or to be an
"owner" or "operator" of such Mortgaged Property within the meaning of CERCLA or
any comparable law, unless (as evidenced by an Officer's Certificate to such
effect delivered to the Trustee) the Special Servicer has previously determined
in accordance with the Servicing Standards, based on an Environmental Assessment
of such Mortgaged Property performed by an Independent Person who regularly
conducts Environmental Assessments and performed within six months prior to any
such acquisition of title or other action, that:
(i) the Mortgaged Property is in compliance with applicable
environmental laws and regulations or, if not, that taking such actions as
are necessary to bring the Mortgaged Property in compliance therewith is
reasonably likely to produce a greater recovery on a net present value
basis than not taking such actions, for such purposes taking into account
any insurance coverage provided pursuant to any environmental insurance
polices in effect and obtained on behalf of the Mortgagee with respect to
the related Mortgaged Property; and
(ii) there are no circumstances or conditions present at the
Mortgaged Property relating to the use, management or disposal of
Hazardous Materials for which investigation, testing, monitoring,
containment, clean-up or remediation could be required under any
applicable environmental laws and regulations or, if such circumstances or
conditions are present for which any such action could be required, that
taking such actions with respect to such Mortgaged Property is reasonably
likely to produce a greater recovery on a net present value basis than not
taking such actions.
The cost of any such Environmental Assessment shall be paid by the
Servicer or the Special Servicer as a Servicing Advance and the cost of any
remedial, corrective or other further action contemplated by clause (i) and/or
clause (ii) of the preceding sentence shall be paid by the Servicer as a
Servicing Advance, unless it is a Nonrecoverable Servicing Advance (in which
case it shall be an expense of the Trust Fund and may be withdrawn by the
Servicer from the Certificate Account or the Simon Collection Account, as
applicable, at the direction of the Special Servicer); and if any such
Environmental Assessment so warrants, the Special Servicer shall, at the expense
of the Trust Fund (except with respect to any Companion Loan and any
Environmental Assessment ordered after the related AB Mortgage Loan has been
paid in full), perform such additional environmental testing as it deems
necessary and prudent to determine whether the conditions described in clauses
(i) and (ii) of the preceding sentence have been satisfied. The Special Servicer
shall review and be familiar with the terms and conditions relating to enforcing
claims and shall monitor the dates by which any claim or action must be taken
(including delivering any notices to the insurer and using reasonable efforts to
perform any actions required under such policy) under each environmental
insurance policy in effect and obtained on behalf of the mortgagee to receive
the maximum proceeds available under such policy for the benefit of the
Certificateholders and the Trustee (as holder of the Uncertificated Lower-Tier
Interests and Loan REMIC Regular Interests).
(d) If (i) the environmental testing contemplated by subsection (c)
above establishes that either of the conditions set forth in clauses (i) and
(ii) of the first sentence thereof has not been satisfied with respect to any
Mortgaged Property securing a Defaulted Mortgage Loan and (ii) there has been no
breach of any of the representations and warranties set forth in or required to
be made pursuant to Section 2 of each of the Mortgage Loan Purchase Agreements
for which the applicable Mortgage Loan Seller could be required to repurchase
such Defaulted Mortgage Loan pursuant to Section 3 of the applicable Mortgage
Loan Purchase Agreement, then the Special Servicer shall take such action as it
deems to be in the best economic interest of the Trust Fund (other than
proceeding to acquire title to the Mortgaged Property) and is hereby authorized
at such time as it deems appropriate to release such Mortgaged Property from the
lien of the related Mortgage, provided that, if such Mortgage Loan has a then
outstanding principal balance of greater than $1,000,000, then prior to the
release of the related Mortgaged Property from the lien of the related Mortgage,
(i) the Special Servicer shall have notified the Rating Agencies, the Trustee,
the Servicer and the Directing Certificateholder in writing of its intention to
so release such Mortgaged Property and the bases for such intention, (ii) the
Trustee shall have notified the Certificateholders in writing of the Special
Servicer's intention to so release such Mortgaged Property, (iii) the Holders of
Certificates entitled to a majority of the Voting Rights shall have consented to
such release within 30 days of the Trustee's distributing such notice (failure
to respond by the end of such 30-day period being deemed consent) and (iv) the
Special Servicer shall have received written confirmation from each Rating
Agency that such release will not cause the downgrade, withdrawal or
qualification of any of the then-current ratings of any Class of Certificates.
To the extent any fee charged by each Rating Agency in connection with rendering
such written confirmation is not paid by the related Mortgagor, such fee is to
be an expense of the Trust.
(e) The Special Servicer shall provide written reports and a copy of
any Environmental Assessments to the Trustee, the Directing Certificateholder
and the Servicer monthly regarding any actions taken by the Special Servicer
with respect to any Mortgaged Property securing a Defaulted Mortgage Loan as to
which the environmental testing contemplated in subsection (c) above has
revealed that either of the conditions set forth in clauses (i) and (ii) of the
first sentence thereof has not been satisfied, in each case until the earlier to
occur of satisfaction of both such conditions, repurchase of the related
Mortgage Loan by the applicable Mortgage Loan Seller or release of the lien of
the related Mortgage on such Mortgaged Property. The Servicer shall forward, or
cause to be forwarded all such reports to the Trustee. The Trustee shall forward
all such reports to each Rating Agency and the Certificateholders upon request.
(f) The Special Servicer shall provide the Servicer with all
information regarding forgiveness of indebtedness and required to be reported
with respect to any Mortgage Loan which is abandoned or foreclosed and the
Servicer shall report to the Internal Revenue Service and the related Mortgagor,
in the manner required by applicable law, such information and the Servicer
shall report, via Form 1099C, all forgiveness of indebtedness to the extent such
information has been provided to the Servicer by the Special Servicer. The
Servicer shall deliver a copy of any such report to the Trustee.
(g) The Special Servicer shall have the right to determine, in
accordance with the Servicing Standards, the advisability of the maintenance of
an action to obtain a deficiency judgment if the state in which the Mortgaged
Property is located and the terms of the Mortgage Loan and applicable Companion
Loan permit such an action.
(h) The Special Servicer shall maintain accurate records, prepared
by one of its Servicing Officers, of each Final Recovery Determination in
respect of a Defaulted Mortgage Loan, defaulted Companion Loan or REO Property
and the basis thereof. Each Final Recovery Determination shall be evidenced by
an Officer's Certificate promptly delivered to the Trustee, the Directing
Certificateholder and the Servicer and in no event later than the next
succeeding P&I Advance Determination Date.
Section 3.10 Trustee to Cooperate; Release of Mortgage Files.
(a) Upon the payment in full of any Mortgage Loan, or the receipt by
the Servicer or the Special Servicer, as the case may be, of a notification that
payment in full shall be escrowed in a manner customary for such purposes, the
Servicer or Special Servicer, as the case may be, will immediately notify the
Trustee and request delivery of the related Mortgage File. Any such notice and
request shall be in the form of a Request for Release signed by a Servicing
Officer and shall include a statement to the effect that all amounts received or
to be received in connection with such payment which are required to be
deposited in the Certificate Account pursuant to Section 3.04(a) or remitted to
the Servicer to enable such deposit, have been or will be so deposited. Within
seven Business Days (or within such shorter period as release can reasonably be
accomplished if the Servicer notifies the Trustee of an exigency) of receipt of
such notice and request, the Trustee shall release, or cause any related
Custodian to release, the related Mortgage File to the Servicer or Special
Servicer, as the case may be. No expenses incurred in connection with any
instrument of satisfaction or deed of reconveyance shall be chargeable to the
Certificate Account or Simon Collection Account.
(b) From time to time as is appropriate for servicing or foreclosure
of any Mortgage Loan, the Servicer or the Special Servicer shall deliver to the
Trustee a Request for Release signed by a Servicing Officer. Upon receipt of the
foregoing, the Trustee shall deliver or cause the related Custodian to deliver,
the Mortgage File or any document therein to the Servicer or the Special
Servicer (or a designee), as the case may be. Upon return of such Mortgage File
or such document to the Trustee or the related Custodian, or the delivery to the
Trustee of a certificate of a Servicing Officer of the Servicer or the Special
Servicer, as the case may be, stating that such Mortgage Loan was liquidated and
that all amounts received or to be received in connection with such liquidation
which are required to be deposited into the Certificate Account or the Simon
Collection Account pursuant to Section 3.04(a) have been or will be so
deposited, or that such Mortgage Loan has become an REO Property, a copy of the
Request for Release shall be released by the Trustee to the Servicer or the
Special Servicer (or a designee), as the case may be, with the original being
released upon termination of the Trust.
(c) Within seven Business Days (or within such shorter period as
delivery can reasonably be accomplished if the Special Servicer notifies the
Trustee of an exigency) of receipt thereof, the Trustee shall execute and
deliver to the Special Servicer any court pleadings, requests for trustee's sale
or other documents necessary to the foreclosure or trustee's sale in respect of
a Mortgaged Property or to any legal action brought to obtain judgment against
any Mortgagor on the Mortgage Note or Mortgage or to obtain a deficiency
judgment, or to enforce any other remedies or rights provided by the Mortgage
Note or Mortgage or otherwise available at law or in equity. The Special
Servicer shall be responsible for the preparation of all such documents and
pleadings. When submitted to the Trustee for signature, such documents or
pleadings shall be accompanied by a certificate of a Servicing Officer
requesting that such pleadings or documents be executed by the Trustee and
certifying as to the reason such documents or pleadings are required and that
the execution and delivery thereof by the Trustee will not invalidate or
otherwise affect the lien of the Mortgage, except for the termination of such a
lien upon completion of the foreclosure or trustee's sale.
Section 3.11 Servicing Compensation.
(a) As compensation for its activities hereunder, the Servicer shall
be entitled to receive the Servicing Fee with respect to each Mortgage Loan,
each Companion Loan and REO Loan (including Specially Serviced Mortgage Loans).
As to each Mortgage Loan, Companion Loan and REO Loan, the Servicing Fee shall
accrue from time to time at the Servicing Fee Rate and shall be computed on the
basis of the Stated Principal Balance of such Mortgage Loan or Companion Loan,
as the case may be, and in the same manner as interest is calculated on the
Mortgage Loans or Companion Loan, as the case may be, and, in connection with
any partial month interest payment, for the same period respecting which any
related interest payment due on such Mortgage Loan or deemed to be due on such
REO Loan is computed. The Servicing Fee with respect to any Mortgage Loan,
Companion Loan or REO Loan shall cease to accrue if a Liquidation Event occurs
in respect thereof. The Servicing Fee shall be payable monthly, on a
loan-by-loan basis, from payments of interest on each Mortgage Loan, Companion
Loan and REO Revenues allocable as interest on each REO Loan, and as otherwise
provided by Section 3.05(a). The Servicer shall be entitled to recover unpaid
Servicing Fees in respect of any Mortgage Loan, Companion Loan or REO Loan out
of that portion of related payments, Insurance and Condemnation Proceeds,
Liquidation Proceeds and REO Revenues (in the case of an REO Loan) allocable as
recoveries of interest, to the extent permitted by Section 3.05(a). The right to
receive the Servicing Fee may not be transferred in whole or in part.
The Servicer shall be entitled to retain, and shall not be required
to deposit in the Certificate Account or the Simon Collection Account pursuant
to Section 3.04(a), additional servicing compensation in the form of (i) 100% of
modification, waiver, consent and defeasance fees pursuant to Section 3.08(f),
provided the consent of the Special Servicer is not required to take such action
(other than with respect to defeasances) and (ii) 50% of all application,
assumption, waiver and consent fees pursuant to Section 3.08(a) on the
Non-Specially Serviced Mortgage Loans, to the extent that such fees are paid by
the Mortgagor and for which the Special Servicer's consent or approval is
required on the Non-Specially Serviced Mortgage Loans and only to the extent
that all amounts then due and payable with respect to the related Mortgage Loan
have been paid. In addition, the Servicer shall be entitled to retain as
additional servicing compensation any charges for processing Mortgagor requests,
beneficiary statements or demands reasonable and customary consent fees, fees in
connection with defeasance, if any, and other customary charges, and amounts
collected for checks returned for insufficient funds, in each case only to the
extent actually paid by the related Mortgagor and shall not be required to
deposit such amounts in the Certificate Account or the Simon Collection Account
pursuant to Section 3.04(a). Subject to Section 3.11(c), the Servicer shall also
be entitled to additional servicing compensation in the form of: (i) Penalty
Charges accrued on Mortgage Loans during the period said Mortgage Loans were
Non-Specially Serviced Mortgage Loans, but only to the extent actually paid by
the related Mortgagor and to the extent that all interest on related Advances
and all additional Trust Fund expenses (other than Special Servicing Fees)
payable with respect to such Mortgage Loan have been paid since the Closing
Date, (ii) interest or other income earned on deposits relating to the Trust
Fund in the Certificate Account and the Simon Collection Account in accordance
with Section 3.06(b) (but only to the extent of the Net Investment Earnings, if
any, with respect to such account for the period from the prior P&I Advance Date
to the P&I Advance Date related to such Distribution Date), (iii) interest or
other income earned on deposits in the Servicing Account which are not required
by applicable law or the related Mortgage Loan to be paid to the Mortgagor and
(iv) the difference, if positive, between Prepayment Interest Excess and
Prepayment Shortfalls collected on the Mortgage Loans during the related Due
Period. The Servicer shall be required to pay out of its own funds all expenses
incurred by it in connection with its servicing activities hereunder (including,
without limitation, payment of any amounts due and owing to any of its
Sub-Servicers and the premiums for any blanket Insurance Policy insuring against
hazard losses pursuant to Section 3.07), if and to the extent such expenses are
not payable directly out of the Certificate Account or the Simon Collection
Account, and the Servicer shall not be entitled to reimbursement therefor except
as expressly provided in this Agreement.
(b) As compensation for its activities hereunder, the Special
Servicer shall be entitled to receive the Special Servicing Fee with respect to
each Specially Serviced Mortgage Loan and REO Loan. As to each Specially
Serviced Mortgage Loan and REO Loan, the Special Servicing Fee shall accrue from
time to time at the Special Servicing Fee Rate and shall be computed on the
basis of the Stated Principal Balance of such Specially Serviced Mortgage Loan
and in the same manner as interest is calculated on the Specially Serviced
Mortgage Loans and, in connection with any partial month interest payment, for
the same period respecting which any related interest payment due on such
Specially Serviced Mortgage Loan or deemed to be due on such REO Loan is
computed. The Special Servicing Fee with respect to any Specially Serviced
Mortgage Loan or REO Loan shall cease to accrue if a Liquidation Event occurs in
respect thereof. The Special Servicing Fee shall be payable monthly, on a
loan-by-loan basis, to the extent permitted by Section 3.05(a). The right to
receive the Special Servicing Fee may not be transferred in whole or in part
except in connection with the transfer of all of the Special Servicer's
responsibilities and obligations under this Agreement.
Additional servicing compensation in the form of (i) 100% of all
fees with respect to application, assumption, extension, modification, waiver,
consent, earnout and defeasance fees, in each case, received on any Specially
Serviced Mortgage Loans to the extent such fees are paid by the Mortgagor (ii)
100% of all application, extension, waiver, consent, earnout and modification
fees (not including defeasance fees) on each Non-Specially Serviced Mortgage
Loans (other than pursuant to Section 3.08(a) and (iii) 50% of all application,
assumption, waiver and consent fees pursuant to Section 3.08(a) received with
respect to all Non-Specially Serviced Mortgage Loans and for which the Special
Servicer's consent or approval is required, shall be promptly paid to the
Special Servicer by the Servicer to the extent such fees are paid by the
Mortgagor and shall not be required to be deposited in the Certificate Account
or the Simon Collection Account pursuant to Section 3.04(a). The Special
Servicer shall also be entitled to additional servicing compensation in the form
of a Workout Fee with respect to each Corrected Mortgage Loan at the Workout Fee
Rate on such Mortgage Loan for so long as it remains a Corrected Mortgage Loan.
The Workout Fee with respect to any Corrected Mortgage Loan will cease to be
payable if such loan again becomes a Specially Serviced Mortgage Loan; provided
that a new Workout Fee will become payable if and when such Specially Serviced
Mortgage Loan again becomes a Corrected Mortgage Loan. If the Special Servicer
is terminated (other than for cause) or resigns, it shall retain the right to
receive any and all Workout Fees payable in respect of Mortgage Loans that
became Corrected Mortgage Loans prior to the time of that termination or
resignation except the Workout Fees will no longer be payable if the Mortgage
Loan subsequently becomes a Specially Serviced Loan. If the Special Servicer
resigns or is terminated (other than for cause), it will receive any Workout
Fees payable on Specially Serviced Mortgage Loans for which the resigning or
terminated Special Servicer had cured the event of default through a
modification, restructuring or workout negotiated by the Special Servicer and
evidenced by a signed writing with respect to which one (1) scheduled payment
has been made, but which had not as of the time the Special Servicer resigned or
was terminated become a Corrected Mortgage Loan solely because the Mortgagor had
not had sufficient time to make three consecutive timely Monthly Payments and
which subsequently becomes a Corrected Mortgage Loan as a result of the
Mortgagor making such three consecutive timely Monthly Payments. The successor
special servicer will not be entitled to any portion of such Workout Fees. A
Liquidation Fee will be payable with respect to each Specially Serviced Mortgage
Loan as to which the Special Servicer receives any Liquidation Proceeds or
Insurance and Condemnation Proceeds subject to the exceptions set forth in the
definition of Liquidation Fee. Notwithstanding anything to the contrary
described above, no Liquidation Fee will be payable based on, or out of,
Liquidation Proceeds or Insurance and Condemnation Proceeds received in
connection with the repurchase of any Mortgage Loan by a Mortgage Loan Seller
for a breach of representation or warranty or for defective or deficient
Mortgage Loan documentation so long as such repurchase is completed within the
90 day period or such other additional period provided for such repurchase in
this Agreement and the Mortgage Loan Purchase Agreement, the purchase of any
Specially Serviced Mortgage Loan by the Majority Controlling Class
Certificateholder pursuant to Section 3.18(a), the Servicer or the Special
Servicer or the purchase of all of the Mortgage Loans and REO Properties in
connection with an optional termination of the Trust Fund pursuant to Section
9.01. If, however, Liquidation Proceeds or Insurance and Condemnation Proceeds
are received with respect to any Corrected Mortgage Loan and the Special
Servicer is properly entitled to a Workout Fee, such Workout Fee will be payable
based on and out of the portion of such Liquidation Proceeds and Insurance and
Condemnation Proceeds that constitute principal and/or interest on such Mortgage
Loan. Notwithstanding anything herein to the contrary, the Special Servicer
shall only be entitled to receive a Liquidation Fee or a Workout Fee, but not
both, with respect to proceeds on any Mortgage Loan. Subject to clause (c)
below, The Special Servicer will also be entitled to additional fees in the form
of Penalty Charges on Specially Serviced Mortgage Loans which have accrued
during such time as such Mortgage Loan was a Specially Serviced Mortgage Loan,
but only to the extent actually collected from the related Mortgagor and to the
extent that all interest on Advances and additional Trust Fund expenses payable
with respect to the related Mortgage Loan have been paid since the Closing Date.
The Special Servicer shall be required to pay out of its own funds all expenses
incurred by it in connection with its servicing activities hereunder (including,
without limitation, payment of any amounts, other than management fees in
respect of REO Properties, due and owing to any of its Sub-Servicers and the
premiums for any blanket Insurance Policy obtained by it insuring against hazard
losses pursuant to Section 3.07), if and to the extent such expenses are not
expressly payable directly out of the Certificate Account or the REO Account,
and the Special Servicer shall not be entitled to reimbursement therefor except
as expressly provided in this Agreement.
(c) In determining the compensation of the Servicer or Special
Servicer, as applicable, with respect to Penalty Charges, on any Distribution
Date, the aggregate Penalty Charges collected on any Mortgage Loan since the
prior Distribution Date shall be applied (in such order) to reimburse (i) the
Servicer, the Special Servicer or the Trustee for interest on Advances on such
Mortgage Loan due on such Distribution Date, (ii) the Trust Fund for all
interest on Advances previously paid to the Servicer, the Special Servicer or
the Trustee pursuant to Section 3.05(a)(vi) hereof and (iii) the Trust Fund for
costs of inspections by the Special Servicer, all unpaid Advances and additional
Trust Fund expenses (other than Special Servicing Fees) incurred since the
Closing Date, Penalty Charges remaining thereafter shall be distributed on a pro
rata basis to the Servicer, if and to the extent accrued while the Mortgage Loan
was a Non-Specially Serviced Mortgage Loan and the Special Servicer if and to
the extent accrued on such Mortgage Loan during the period such Mortgage Loan
was a Specially Serviced Mortgage Loan.
Section 3.12 Inspections; Collection of Financial Statements.
(a) The Servicer shall perform (at its own expense), or shall cause
to be performed (at its own expense), a physical inspection of each Mortgaged
Property at least once every 12 months commencing in the calendar year 2003;
provided, however, that if a physical inspection has been performed by the
Special Servicer in the previous 12 months, the Servicer will not be required to
perform or cause to be performed, such physical inspection; provided, further,
that if any scheduled payment becomes more than 60 days delinquent on the
related Mortgage Loan, the Special Servicer shall inspect the related Mortgaged
Property as soon as practicable after such Mortgage Loan becomes a Specially
Serviced Mortgage Loan and annually thereafter for so long as such Mortgage Loan
remains a Specially Serviced Mortgage Loan. The cost of such inspection by the
Special Servicer shall be an expense of the Trust Fund, reimbursed first from
Penalty Charges actually received from the related Mortgagor and then from the
Certificate Account pursuant to Section 3.05(a)(ii). The Special Servicer or the
Servicer, as applicable, shall prepare or cause to be prepared a written report
of each such inspection detailing the condition of the Mortgaged Property and
specifying the existence of (i) any vacancy in the Mortgaged Property that the
preparer of such report deems material, (ii) any sale, transfer or abandonment
of the Mortgaged Property of which it has knowledge, (iii) any adverse change in
the condition of the Mortgaged Property that the preparer of such report deems
material, (iv) any visible material waste committed on the Mortgaged Property
and (v) photographs of each inspected Mortgaged Property. The Special Servicer
and the Servicer shall deliver a copy of each such report prepared by the
Special Servicer and the Servicer, respectively, to the other, and to the
Directing Certificateholder electronically using the ARCap naming convention the
form of which is attached hereto as Exhibit V (the "ARCap Naming Convention"),
to the Trustee and the Rating Agencies within five (5) Business Days after
request (or if such request is received before such report is completed, within
five (5) Business Days after completion of such report). The Trustee shall
deliver a copy of each such report to the Controlling Class Certificateholder
(and with respect to the Simon Mortgage Loan, the Simon Representative) upon
request and to each Holder of a Class F, Class G, Class H, Class J, Class K,
Class L, Class M, Class N and Class NR Certificate, upon request (which such
request may state that such items be delivered until further notice).
(b) The Special Servicer or Servicer, as applicable, shall make
reasonable efforts to collect promptly from each Mortgagor annual operating
statements and rent rolls of the related Mortgaged Property, financial
statements of such Mortgagor and any other reports required to be delivered
under the terms of the Mortgage Loans, if delivery of such items is required
pursuant to the terms of the related Mortgage.
(c) The Special Servicer, in the case of any Specially Serviced
Mortgage Loan, and the Servicer, in the case of any non-Specially Serviced
Mortgage Loan shall make reasonable efforts to collect promptly from each
related Mortgagor quarterly and annual operating statements, budgets and rent
rolls of the related Mortgaged Property, and the quarterly and annual financial
statements of such Mortgagor, whether or not delivery of such items is required
pursuant to the terms of the related Mortgage. In addition, the Special Servicer
shall cause quarterly and annual operating statements, budgets and rent rolls to
be regularly prepared in respect of each REO Property and shall collect all such
items promptly following their preparation. The Special Servicer shall deliver
all such items to the Servicer within five (5) days of receipt and the Servicer
and the Special Servicer shall each deliver copies of all the foregoing items so
collected thereby to the Trustee and the Directing Certificateholder
(electronically using the ARCap Naming Convention) and, upon request, to the
Depositor and each other, in each case within 60 days of its receipt thereof,
but in no event, the case of annual statements, later than June 30th of each
year. The Trustee shall, upon request, deliver copies (in hard copy, electronic
format or make available on its Internet website) of the foregoing items to the
Underwriters, the Rating Agencies, the Controlling Class Certificateholders, the
Mortgage Loan Sellers or, to the extent the Certificate Registrar has confirmed
the Ownership Interest in Certificates held thereby, any Certificate Owner, a
copy (or image in suitable electronic media) of each such report prepared by the
Servicer or the Special Servicer.
Within 45 days after receipt by the Servicer, with respect to
Non-Specially Serviced Mortgage Loans, or the Special Servicer with respect to
Specially Serviced Mortgage Loans of any annual operating statements or rent
rolls with respect to any Mortgaged Property or REO Property, or if such date
would be after June 30th of any year, then within 30 days after receipt, the
Servicer shall, based upon such operating statements or rent rolls received,
prepare (or, if previously prepared, update) the analysis of operations and the
NOI Adjustment Worksheet and the Operating Statement Analysis Report. Upon the
occurrence and continuation of a Servicing Transfer Event, the Servicer shall
provide the Special Servicer with all prior Operating Statement Analysis Reports
and NOI Adjusted Worksheets for the related Mortgage Loan (including
underwritten figures), and the Special Servicer's obligations hereunder shall be
subject to its having received all such reports. The Servicer and Special
Servicer shall forward to the other and the Directing Certificateholder monthly
all operating statements and rent rolls received from any Mortgagor from the
prior month. All Operating Statement Analysis Reports shall be maintained by the
Servicer with respect to each Mortgaged Property and REO Property, and the
Servicer shall forward copies (in hard copy, electronic format or make available
on its Internet website) thereof (in each case, promptly following the initial
preparation and each material revision thereof) to the Trustee, the Directing
Certificateholder (and with respect to the Simon Mortgage Loan, the Simon
Representative) and the Special Servicer and the related operating statements or
rent rolls. The Trustee shall, upon request and to the extent such items have
been delivered to the Trustee by the Servicer, deliver to the Underwriters, the
Rating Agencies, the Mortgage Loan Sellers, any Certificateholder or, to the
extent the Certificate Registrar has confirmed the Ownership Interest in the
Certificates held thereby, any Certificate Owner, a copy of such Operating
Statement Analysis (or update thereof) and the related operating statement or
rent rolls. The Servicer shall maintain an Operating Statement Analysis Report
with respect to each Mortgaged Property and REO Property. Each Operating
Statement Analysis Report shall be substantially in the form of Exhibit M-12
attached hereto (or, at the discretion of the Servicer, or the Special Servicer,
as applicable, provided that no less information is provided than is set forth
in Exhibit M-12 in a CMSA format.
(d) At or before 12:00 p.m. (New York City time) on the first
Business Day following each Determination Date, the Special Servicer shall
prepare and deliver or cause to be delivered to the Servicer the following
reports with respect to the Specially Serviced Mortgage Loans and any REO
Properties, providing the information required of the Special Servicer in an
electronic format, reasonably acceptable to the Servicer as of such
Determination Date: (i) a CMSA Delinquent Loan Status Report, (ii) a CMSA
Property File, (iii) a CMSA Historical Liquidation Report, (iv) a CMSA
Historical Loan Modification Report (v) a CMSA REO Status Report and (vi) a CMSA
Comparative Financial Status Report.
(e) Not later than 11:00 a.m. (New York City time) on the Business
Day prior to the Distribution Date, the Servicer shall prepare (if and to the
extent necessary) and deliver or cause to be delivered to the Trustee data files
relating to the following reports: (i) to the extent received at the time
required, the most recent Delinquent Loan Status Report, CMSA Historical
Liquidation Report, CMSA Historical Loan Modification Report and CMSA REO Status
Report received from the Special Servicer pursuant to Section 3.12(d), (ii) the
most recent CMSA Property File Report, and CMSA Comparative Financial Status
Report (in each case combining the reports required in Section 3.12(d) by the
Special Servicer and Servicer), and (iii) a Servicer Watch List Report with
information that is current as of such Determination Date. Not later than 2:00
p.m. (New York City time) two (2) Business Days prior to the Distribution Date,
the Servicer shall deliver or cause to be delivered to the Trustee via
electronic format the CMSA Loan Periodic Update File.
(f) The Special Servicer shall deliver to the Servicer the reports
set forth in Section 3.12(c) and Section 3.12(d), and the Servicer shall deliver
to the Trustee the reports set forth in Section 3.12(e). The Servicer may,
absent manifest error, conclusively rely on the reports to be provided by the
Special Servicer pursuant to Section 3.12(d). The Trustee may, absent manifest
error, conclusively rely on the reports to be provided by the Servicer pursuant
to Section 3.12(e). In the case of information or reports to be furnished by the
Servicer to the Trustee pursuant to Section 3.12(e), to the extent that such
information or reports are, in turn, based on information or reports to be
provided by the Special Servicer pursuant to Section 3.12(c) or Section 3.12(d)
and to the extent that such reports are to be prepared and delivered by the
Special Servicer pursuant to Section 3.12(c) or Section 3.12(d), the 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 Special
Servicer, and the Servicer shall not be in default hereunder due to a delay in
providing the reports required by Section 3.12(e) caused by the Special
Servicer's failure to timely provide any information or report required under
Section 3.12(c) or Section 3.12(d) of this Agreement.
(g) Notwithstanding the foregoing, however, the failure of the
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 the Servicer or Special Servicer so fails because such
disclosure, in the reasonable belief of the Servicer or the 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. The Servicer and Special Servicer may disclose
any such information or any additional information to any Person so long as such
disclosure is consistent with applicable law and the Servicing Standards. The
Servicer or the 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).
(h) If the Servicer or the Special Servicer is required to deliver
any statement, report or information under any provisions of this Agreement, the
Servicer or the 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 the Servicer's Internet website, unless this Agreement
expressly specifies a particular method of delivery.
The Servicer and the Trustee, as applicable, shall prepare and
deliver or make available on their respective websites, to the Directing
Certificateholder, the reports and information described in Exhibit N in the
forms and formats and within the timeframes set forth therein.
Section 3.13 Annual Statement as to Compliance.
Each of the Servicer and the Special Servicer will deliver to the
Trustee and the Rating Agencies, with a copy to the Depositor, on or before
March 15th of each year, beginning March 15, 2003, an Officer's Certificate
stating, as to each signer thereof, that (i) a review of the activities of the
Servicer or the Special Servicer, as the case may be, during the preceding
calendar year and of its performance under this Agreement has been made under
such officer's supervision, (ii) to the best of such officer's knowledge, based
on such review, the Servicer or the Special Servicer, as the case may be, has
maintained an effective internal control system relating to its servicing of the
Mortgage Loans serviced by it and has fulfilled in all material respects its
obligations under this Agreement throughout such year, or, if there has been a
material default in the fulfillment of any such obligation, specifying each such
default known to such officer and the nature and status thereof and (iii) the
Servicer or the Special Servicer, as the case may be, has received no notice
regarding qualification, or challenging the status of either the Lower-Tier
REMIC or the Upper-Tier REMIC as a REMIC from the Internal Revenue Service or
any other governmental agency or body or, if it has received any such notice,
specifying the details thereof. A copy of such Officer's Certificate may be
obtained by Certificateholders upon written request to the Trustee pursuant to
Section 8.12 hereof. Promptly after receipt of such Officer's Certificates, the
Depositor shall review such Officer's Certificates and, if applicable, consult
with the Servicer or the Special Servicer, as applicable, as to the nature of
any defaults by the Servicer or the Special Servicer, as applicable, in the
fulfillment of any of the Servicer's or the Special Servicer's obligations.
Section 3.14 Reports by Independent Public Accountants.
Each of the Servicer and the Special Servicer at their own expense
shall cause a nationally recognized firm of independent certified public
accountants to furnish to the Trustee, and each Rating Agency, with a copy to
the Depositor on or before March 15th of each year, commencing with March 15,
2003, a report stating that (i) it has obtained from the Servicer or the Special
Servicer, as the case may be, a letter of representation regarding certain
matters from the management of the Servicer or the Special Servicer, as the case
may be, which includes an assertion that the Servicer or the Special Servicer,
as the case may be, has maintained an effective internal control system with
respect to the servicing of the Mortgage Loans and has complied with certain
minimum mortgage loan servicing standards (to the extent applicable to
commercial and multifamily mortgage loans), identified in the Uniform Single
Attestation Program for Mortgage Bankers established by the Mortgage Bankers
Association of America, with respect to the Servicer's or the Special
Servicer's, as the case may be, servicing of commercial and multifamily mortgage
loans during the most recently completed calendar year and (ii) on the basis of
an examination conducted by such firm in accordance with standards established
by the American Institute of Certified Public Accountants, such assertion is
fairly stated in all material respects, subject to such exceptions and other
qualifications that, in the opinion of such firm, such standards require it to
report. In rendering its report such firm may rely, as to the matters relating
to the direct servicing of commercial and multifamily mortgage loans by
Sub-Servicers, upon comparable reports of firms of independent certified public
accountants rendered on the basis of examinations conducted in accordance with
the same standards (rendered with respect to such Sub-Servicer's previous fiscal
year) with respect to those Sub-Servicers. Promptly after receipt of such
reports, the Depositor shall review such reports and, if applicable, consult
with the Servicer or the Special Servicer, as applicable, as to the nature of
any defaults by the Servicer or the Special Servicer, as applicable, in the
fulfillment of any of the Servicer's or the Special Servicer's obligations.
Section 3.15 Access to Certain Information.
Each of the Servicer and the Special Servicer shall provide or cause
to be provided to any Certificateholder or Certificate Owner that is, or is
affiliated with, a federally insured financial institution, the Trustee, the
Depositor, each Mortgage Loan Seller, each Rating Agency, to the Servicer, or to
the Special Servicer, as applicable, and to the OTS, the FDIC, the Federal
Reserve Board and the supervisory agents and examiners of such boards and such
corporations, and any other federal or state banking or insurance regulatory
authority that may exercise authority over any Certificateholder, and to each
Holder of a Class G, Class H, Class J, Class K, Class L, Class M or Class NR
Certificate access to any documentation or information regarding the Mortgage
Loans and the Trust Fund within its control which may be required by this
Agreement or by applicable law, and the Special Servicer shall provide such
access and information to the Trustee, the Servicer and the Directing
Certificateholder (and with respect to the Simon Mortgage Loan, to the Simon
Representative). Such access shall be afforded without charge but only upon
reasonable prior written request and during normal business hours at the offices
of the Servicer or the Special Servicer, as the case may be, designated by it;
provided, however, that Certificateholders and Certificate Owners shall be
required to pay their own photocopying costs and execute a reasonable and
customary confidentiality agreement with respect to such information. The
failure of the Servicer or the Special Servicer to provide access as provided in
this Section 3.15 as a result of a confidentiality obligation shall not
constitute a breach of this Section 3.15. The Servicer and the Special Servicer
may each deny any of the foregoing persons access to confidential information or
any intellectual property which the Servicer or the Special Servicer is
restricted by license or contract from disclosing.
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 a nominee thereof on
behalf of the Certificateholders and, if applicable, the Companion Holder. The
Special Servicer, on behalf of the Trust Fund, shall sell any REO Property prior
to the close of the third calendar year following the year in which the Trust
Fund acquires ownership of such REO Property, within the meaning of Treasury
Regulations Section 1.856-6(b)(1), for purposes of Section 860G(a)(8) of the
Code, unless the Special Servicer either (i) is granted an extension of time (an
"REO Extension") by the Internal Revenue Service to sell such REO Property or
(ii) obtains for the Trustee and the Servicer an Opinion of Counsel, addressed
to the Trustee and the Servicer, to the effect that the holding by the Trust
Fund of such REO Property subsequent to the close of the third calendar year
following the year in which such acquisition occurred will not result in the
imposition of taxes on "prohibited transactions" of the Trust Fund, the Loan
REMIC, the Lower-Tier REMIC or the Upper-Tier REMIC constituted thereby as
defined in Section 860F of the Code or cause the Loan REMIC, the Lower-Tier
REMIC or the Upper-Tier REMIC to fail to qualify as a REMIC at any time that any
Loan REMIC Regular Interests, Uncertificated Lower-Tier Interests or
Certificates are outstanding. If the Special Servicer is granted the REO
Extension contemplated by clause (i) of the immediately preceding sentence or
obtains the Opinion of Counsel contemplated by clause (ii) of the immediately
preceding sentence, the Special Servicer shall sell such REO Property within
such longer period as is permitted by such REO Extension or such Opinion of
Counsel, as the case may be. Any expense incurred by the Special Servicer in
connection with its being granted the REO Extension contemplated by clause (i)
of the second preceding sentence or its obtaining the Opinion of Counsel
contemplated by clause (ii) of the second preceding sentence, shall be an
expense of the Trust Fund payable out of the Certificate Account pursuant to
Section 3.05(a).
(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 REO Accounts, held on
behalf of the Trustee in trust for the benefit of the Certificateholders and, if
applicable, the Companion Holder, as their interest shall appear, and the
Trustee (as holder of the Uncertificated Lower-Tier Interests and Loan REMIC
Regular Interests), for the retention of revenues and other proceeds derived
from each REO Property. The REO Account shall be an Eligible Account. The
Special Servicer shall deposit, or cause to be deposited, in the REO Account,
within 1 Business Day after receipt, all REO Revenues, Insurance and
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 give notice to the
Trustee and the Servicer of the location of the REO Account when first
established and of the new location of the REO Account prior to any change
thereof.
(c) The Special Servicer shall withdraw from the REO Account funds
necessary for the proper operation, management, insuring, 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. On or prior to each
Determination Date, the Special Servicer shall withdraw from the REO Account and
remit to the Servicer, which shall deposit into the Certificate Account or the
Simon Collection Account, as applicable, the aggregate of all amounts received
in respect of each REO Property during the most recently ended Due Period, net
of (i) any withdrawals made out of such amounts pursuant to the preceding
sentence and (ii) Net Investment Earnings on amounts on deposit in the REO
Account; provided, however, that the Special Servicer may retain in such REO
Account, in accordance with the Servicing Standards, such portion of such
balance as may be necessary to maintain a reasonable reserve for repairs,
replacements, leasing, management and tenant improvements and other related
expenses for the related REO Property. In addition, on or prior to each
Determination Date, the Special Servicer shall provide the Servicer with a
written accounting of amounts remitted to the Servicer for deposit in the
Certificate Account and the Simon Collection Account on such date. The Servicer
shall apply all such amounts as instructed by the Special Servicer on the
Determination Date for the related Distribution Date.
(d) The Special Servicer shall keep and maintain separate records,
on a property-by-property basis, for the purpose of accounting for all deposits
to, and withdrawals from, the REO Account pursuant to Section 3.16(b) or (c).
Section 3.17 Management of REO Property.
(a) If title to any REO Property is acquired, the Special Servicer
shall manage, consent, protect, operate and lease such REO Property for the
benefit of the Certificateholders and the Companion Holders, as applicable, and
the Trustee (as holder of the Loan REMIC Regular Interests and the
Uncertificated Lower-Tier Interests) solely for the purpose of its timely
disposition and sale in a manner that does not cause such REO Property to fail
to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of
the Code or result in the receipt by the Trust Fund of any "income from
non-permitted assets" within the meaning of Section 860F(a)(2)(B) of the Code or
result in an Adverse REMIC Event. Subject to the foregoing, however, the Special
Servicer shall have full power and authority to do any and all things in
connection therewith as are in the best interests of and for the benefit of the
Certificateholders and the Trustee (as holder of the Loan REMIC Regular
Interests and the Uncertificated Lower-Tier Interests) (as determined by the
Special Servicer in its reasonable judgment in accordance with the Servicing
Standards). Subject to this Section 3.17, the Special Servicer may allow the
Trust Fund to earn "net income from foreclosure property" within the meaning of
Code Section 860G(d) if it determines that earning such income is in the best
interests of Certificateholders on a net after-tax basis as compared with net
leasing such REO Property or operating such REO Property on a different basis.
In connection therewith, the Special Servicer shall deposit or cause to be
deposited on a daily basis (and in no event later than 1 Business Day following
receipt of such funds) in the applicable REO Account all revenues received by it
with respect to each REO Property and the related REO Loan, and shall withdraw
from the REO Account, to the extent of amounts on deposit therein with respect
to such REO Property, funds necessary for the proper operation, management,
leasing and maintenance of such REO Property, including, without limitation:
(i) all insurance premiums due and payable in respect of such REO
Property;
(ii) all real estate taxes and assessments in respect of such REO
Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property, if
applicable; and
(iv) all costs and expenses necessary to maintain and lease such REO
Property.
To the extent that amounts on deposit in the REO Account in respect
of any REO Property are insufficient for the purposes set forth in clauses (i) -
(iv) above with respect to such REO Property, the Servicer or Special Servicer
shall advance from its own funds such amount as is necessary for such purposes
unless (as evidenced by an Officer's Certificate delivered to the Trustee, the
Depositor and the Directing Certificateholder) such advances would, if made,
constitute Nonrecoverable Servicing Advances.
(b) Without limiting the generality of the foregoing, the Special
Servicer shall not:
(i) permit the Trust Fund to enter into, renew or extend any New
Lease with respect to any REO Property, if the New Lease by its terms will
give rise to any income that does not constitute Rents from Real Property;
(ii) permit any amount to be received or accrued under any New Lease
other than amounts that will constitute Rents from Real Property;
(iii) authorize or permit any construction on any REO Property,
other than the completion of a building or other improvement thereon, and
then only if more than 10% of the construction of such building or other
improvement was completed before default on the related Mortgage Loan
became imminent, all within the meaning of Section 856(e)(4)(B) of the
Code; or
(iv) Directly Operate, or allow any other Person, other than an
Independent Contractor, to Directly Operate, any REO Property on any date
more than 90 days after its acquisition date;
unless, in any such case, the Special Servicer has obtained an Opinion of
Counsel (the cost of which shall be paid by the Servicer or Special Servicer as
a Servicing Advance) to the effect that such action will not cause such REO
Property to fail to qualify as "foreclosure property" within the meaning of
Section 860G(a)(8) of the Code at any time that it is held by the Trust Fund, in
which case the Special Servicer may take such actions as are specified in such
Opinion of Counsel.
(c) The Special Servicer shall contract with any Independent
Contractor for the operation and management of any REO Property within 90 days
of the acquisition date thereof, 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 an
expense of the Trust Fund) shall be reasonable and customary in light of
the nature and locality of the Mortgaged Property;
(iii) any such contract shall require, or shall be administered to
require, that the Independent Contractor (A) pay all costs and expenses
incurred in connection with the operation and management of such REO
Property, including, without limitation, those listed in subsection (a)
hereof, and (B) remit all related revenues collected (net of its fees and
such costs and expenses) to the Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(c) relating to any
such contract or to actions taken through any such Independent Contractor
shall be deemed to relieve the Special Servicer of any of its duties and
obligations hereunder with respect to the operation and management of any
such REO Property; and
(v) the Special Servicer shall be obligated to manage and supervise
such Independent Contractor in accordance with the Servicing Standards.
The Special Servicer shall be entitled to enter into any agreement
with any Independent Contractor performing services for it related to its duties
and obligations hereunder for indemnification of the Special Servicer by such
Independent Contractor, and nothing in this Agreement shall be deemed to limit
or modify such indemnification.
(d) When and as necessary, the Special Servicer shall send to the
Trustee and the Servicer a statement prepared by the Special Servicer setting
forth the amount of net income or net loss, as determined for federal income tax
purposes, resulting from the operation and management of a trade or business on,
the furnishing or rendering of a non-customary service to the tenants of, or the
receipt of any other amount not constituting Rents from Real Property in respect
of, any REO Property in accordance with Sections 3.17(a) and 3.17(b).
Section 3.18 Sale of Defaulted Mortgage Loans and REO Properties.
(a) (i) Within thirty (30) days after a Mortgage Loan has become a
Specially Serviced Mortgage Loan with respect to any Defaulted Mortgage Loan,
the Special Servicer shall order an Appraisal (but shall not be required to be
received) and within thirty (30) days of receipt of the Appraisal shall
determine the fair value of such Defaulted Mortgage Loan in accordance with the
Servicing Standards; provided, however, that such determination shall be made
without taking into account any effect the restrictions on the sale of such
Mortgage Loan contained herein may have on the value of such Defaulted Mortgage
Loan; provided, further, that if the Special Servicer is then in the process of
obtaining an Appraisal with respect to the related Mortgaged Property, the
Special Servicer shall make its fair value determination as soon as reasonably
practicable (but in any event within thirty (30) days) after its receipt of such
an Appraisal. The Special Servicer will, from time to time, adjust its fair
value determination based upon changed circumstances, new information and other
relevant factors, in each instance in accordance with the Servicing Standards,
but not less often than every 90 days. The Special Servicer shall notify the
Trustee, the Servicer and the Certificateholder that owns the largest aggregate
Certificate Balance of the Controlling Class (the "Controlling Class Option
Holder") promptly upon its fair value determination and any adjustment thereto.
The Special Servicer shall also deliver to the Servicer, the Rating Agencies and
the Controlling Class Option Holder the most recent Appraisal of the related
Mortgaged Property then in the Special Servicer's possession, together with such
other third-party reports and other information then in the Special Servicer's
possession that the Special Servicer reasonably believes to be relevant to the
fair value determination with respect to such Mortgage Loan (such materials are,
collectively, the "Determination Information"). If the Special Servicer will not
be determining whether the Option Price represents fair value of the Defaulted
Mortgage Loan, pursuant to the second to last paragraph of Section 3.18(a)(iv),
the Special Servicer shall also deliver the Determination Information to the
Trustee.
In determining the fair value of any Defaulted Mortgage Loan, the
Special Servicer shall take into account, among other factors, the period and
amount of the delinquency on such Mortgage Loan, the occupancy level and
physical condition of the related Mortgaged Property, the state of the local
economy in the area where the Mortgaged Property is located, and the time and
expense associated with a purchaser's foreclosing on the related Mortgaged
Property. In addition, the Special Servicer shall refer to the Determination
Information and all other relevant information obtained by it or otherwise
contained in the Mortgage File; provided that the Special Servicer shall take
account of any change in circumstances regarding the related Mortgaged Property
known to the Special Servicer that has occurred subsequent to, and that would,
in the Special Servicer's reasonable judgment, materially affect the value of
the related Mortgaged Property reflected in, the most recent related Appraisal.
Furthermore, the Special Servicer shall consider all available objective
third-party information obtained from generally available sources, as well as
information obtained from vendors providing real estate services to the Special
Servicer, concerning the market for distressed real estate loans and the real
estate market for the subject property type in the area where the related
Mortgaged Property is located. The Special Servicer may conclusively rely on the
opinion and reports of Independent third parties in making such determination.
(ii) Subject to the terms and conditions of clauses (d), (e), (f)
and (g) of this Section 3.18, at the time a Mortgage Loan becomes a
Defaulted Mortgage Loan, the Special Servicer and Controlling Class Option
Holder (each, together with their assignees, an "Option Holder") will have
an assignable option (the "Purchase Option") to purchase such Defaulted
Mortgage Loan from the Trust Fund (with respect to the Simon Mortgage
Loan, subject to Section 3.18(d)) at a price (the "Option Price") equal to
(A) if the Special Servicer has not yet determined the fair value of such
Defaulted Mortgage Loan, the sum of (1) the Stated Principal Balance
thereof, together with all accrued and unpaid interest thereon at the
Mortgage Rate, (2) any related Yield Maintenance Charge or prepayment
premium (except if the Purchase Option is exercised by the Controlling
Class Option Holder) then payable, to the extent the Special Servicer or
the Special Servicer's assignee is identified as the Person that will
acquire the related Mortgage Loan, (3) all related Advances for which the
Trust Fund or the related Servicer has not been reimbursed, together with
all accrued and unpaid interest thereon at the Advance rate, and (4) all
accrued Special Servicing Fees and additional trust fund expenses
allocable to such Defaulted Mortgage Loan whether recovered or unrecovered
from the related Mortgagor or (B) if the Special Servicer has determined
the fair value of such Defaulted Mortgage Loan pursuant to clause (i)
above, an amount at least equal to such fair value. Notwithstanding the
foregoing, for a period of sixty (60) days after it receives notice of the
Special Servicer's fair value determination (the "Controlling Class
Certificateholder's Option Period"), only the Purchase Option held by the
Controlling Class Option Holder may be exercised.
Any Option Holder may sell, transfer, assign or otherwise convey its
Purchase Option with respect to any Defaulted Mortgage Loan to any party
at any time after the related Mortgage Loan becomes a Defaulted Mortgage
Loan. The transferor of any Purchase Option shall notify the Trustee and
the Servicer of such transfer and such notice shall include the
transferee's name, address, telephone number, facsimile number and
appropriate contact person(s) and shall be acknowledged in writing by the
transferee.
Each Option Holder's Purchase Option with respect to any Defaulted
Mortgage Loan, if not exercised, will automatically terminate (A) once the
related Defaulted Mortgage Loan is no longer a Defaulted Mortgage Loan;
provided, however, that if such Mortgage Loan subsequently becomes a
Defaulted Mortgage Loan, the related Purchase Option shall again be
exercisable, (B) upon the acquisition, by or on behalf of the Trust Fund,
of title to the related Mortgaged Property through foreclosure or deed in
lieu of foreclosure, (C) upon the modification or pay-off, in full or at a
discount, of such Defaulted Mortgage Loan in connection with a workout, or
(D) subject to the Servicer's determination set forth in clause (iv)
below, upon another Option Holder's exercise of its Purchase Option with
respect to the related Mortgage Loan becoming effective pursuant to clause
(iii) below.
(iii) Upon receipt of notice from the Special Servicer indicating
that a Mortgage Loan has become a Defaulted Mortgage Loan, and after the
expiration of the Controlling Class Certificateholder's Option Period,
each Option Holder (whether the original grantee of such option or any
subsequent transferee) may exercise its Purchase Option by providing the
Servicer and the Trustee written notice thereof (the "Purchase Option
Notice"), in the form of Exhibit J, which notice shall identify the Person
that, on its own or through an Affiliate, will acquire the related
Mortgage Loan upon closing and shall specify a cash exercise price at
least equal to the Option Price. The Purchase Option Notice shall be
delivered in the manner specified in Section 11.05. Immediately upon
receipt of such Purchase Option Notice, the Servicer shall notify the
remaining Option Holders that a Purchase Option has been exercised. Within
ten (10) days thereafter, each remaining Option Holder may submit to the
Servicer a Purchase Option Notice for the related Defaulted Mortgage Loan.
Upon the expiration of such ten (10) day period, or such sooner time as
all remaining Option Holders have submitted Purchase Option Notices, the
Servicer shall notify the Option Holder whose Purchase Option Notice
included the highest exercise price that the exercise of its Purchase
Option is effective. The Servicer shall also notify the Trustee of such
effective exercise. In the event that more than one Option Holder
exercises its Purchase Option at the same price, the Purchase Option
Notice first received by the Servicer shall be effective. The exercise of
any Purchase Option pursuant to this clause (iii) shall be irrevocable.
(iv) If the Special Servicer or any Controlling Class Option Holder,
or any of their respective Affiliates, is identified in the Purchase
Option Notice as the Person expected to acquire the related Mortgage Loan,
and the Option Price is based upon the Special Servicer's fair value
determination, the Servicer shall determine as soon as reasonably
practicable (and, in any event, within thirty (30) days) after the
Servicer has received the written notice and the Determination Information
to be provided to Servicer by Special Servicer under Section 3.18(a)(i),
whether the Option Price represents fair value for the Defaulted Mortgage
Loan; provided that, if the Special Servicer is then in the process of
obtaining a new Appraisal with respect to the related Mortgaged Property,
then the Servicer shall make its fair value determination with respect to
such Mortgage Loan as soon as reasonably practicable (but in any event
within thirty (30) days) after the Servicer's receipt of such new
Appraisal. Such fair value determination shall be made in accordance with
Servicing Standards. In determining the fair value of any Defaulted
Mortgage Loan, the Servicer shall take into account, among other factors,
the period and amount of the delinquency on such Mortgage Loan, the
occupancy level and physical condition of the related Mortgaged Property,
the state of the local economy in the area where the Mortgaged Property is
located, and the time and expense associated with a purchaser's
foreclosing on the related Mortgaged Property. In addition, the Servicer
shall refer to the Determination Information and all other relevant
information delivered to it by the Special Servicer or otherwise contained
in the Mortgage File; provided that the Servicer shall take account of any
change in circumstances regarding the related Mortgaged Property known to
the Servicer that has occurred subsequent to, and that would, in the
Servicer's reasonable judgment, materially affect the value of the related
Mortgaged Property reflected in, such appraisal. Furthermore, the Servicer
shall consider all available objective third-party information obtained
from generally available sources, as well as information obtained from
vendors providing real estate services to the Servicer, concerning the
market for distressed real estate loans and the real estate market for the
subject property type in the area where the related Mortgaged Property is
located. The Servicer may conclusively rely on the opinion and reports of
Independent third parties in making such determination. The Servicer shall
be entitled to receive out of the Certificate Account as additional
compensation a $2,500 fee for each determination made in accordance with
this clause (iv), provided, however, with respect to any Mortgage Loan,
the $2,500 fee shall be collectible once in any six-month period. The
reasonable cost of all third party consultants and related reports,
including but not limited to appraisals, inspection reports and broker
opinions of value, reasonably incurred by the Servicer pursuant to this
Section 3.18(a)(iv) shall constitute, and be reimbursable as, Servicing
Advances; provided that the Servicer may rely on the most current
Appraisal and property inspection report obtained for the related
Mortgaged Property pursuant to Section 3.12. The other parties to this
Agreement shall cooperate with all reasonable requests for information.
Notwithstanding anything contained in this clause (iv) to the
contrary, if the Special Servicer or the Controlling Class Option Holder,
or any of their respective Affiliates, is identified in the Purchase
Option Notice as the Person expected to acquire the related Mortgage Loan,
and the Option Price is based upon the Special Servicer's fair value
determination, and the Servicer and the Special Servicer are Affiliates,
the Trustee, subject to the Directing Certificateholder's reasonable prior
written consent, which consent shall not be unreasonably withheld, shall
designate an Independent third party, independent of the Directing
Certificateholder, to determine whether the Option Price represents fair
value for the Defaulted Mortgage Loan, in the manner and within the time
set forth in the first paragraph of this clause (iv). In the event that
the Trustee is called upon to designate such a third party to make such
determination, the Trustee will not assume any responsibility for such
third party's determination which determination the Trustee shall be
entitled to conclusively rely upon. The Trustee may pay such third party a
fee of up to $2,500. The reasonable costs of all appraisals, inspection
reports and broker opinions of value, reasonably incurred by the Trustee
or any such third party pursuant to this paragraph shall be advanced by
the Servicer and shall constitute, and be reimbursable as, Servicing
Advances. In connection with the Trustee's designating an Independent
third party, the Special Servicer shall deliver to the Trustee for such
Independent third party's use the Determination Information.
In the event the Servicer or any designated third party, as
applicable, determines that the Option Price is less than the fair value
of the Defaulted Mortgage Loan, such party shall provide its
determination, together with all information and reports it relied upon in
making such determination, to the Special Servicer, who may then adjust
its fair value determination and, consequently, the Option Price, pursuant
to Section 3.18(a)(i). The Special Servicer shall promptly provide written
notice of any adjustment of the Option Price to the Option Holder whose
Purchase Option has been declared effective pursuant to clause (iii)
above. Upon receipt of such notice, such Option Holder shall have three
(3) Business Days to (i) accept the Option Price as adjusted and proceed
in accordance with clause (v) below, or (ii) reject the Option Price as
adjusted, in which case such Option Holder shall not be obligated to close
the purchase of the Defaulted Mortgage Loan. Upon notice from such Option
Holder, or the Special Servicer, that such Option Holder rejects the
Option Price as adjusted, the Servicer and the Trustee shall provide the
notices described in the second paragraph of clause (v) below and
thereafter any Option Holder may exercise its purchase option in
accordance with Section 3.18(a), at the Option Price as adjusted.
(v) The Option Holder whose Purchase Option is declared effective
pursuant to clause (iii) above shall be required to pay the purchase price
specified in its Purchase Option Notice to the Servicer within ten (10)
Business Days of its receipt of the Servicer's notice confirming that the
exercise of its Purchase Option is effective. Upon receipt of an Officer's
Certificate from the Servicer specifying the date for closing the purchase
of the related Defaulted Mortgage Loan, and the purchase price to be paid
therefor, the Trustee shall deliver at such closing for release to or at
the direction of such Option Holder, the related Mortgage File, and shall
execute and deliver such instruments of transfer or assignment, in each
case without recourse, as shall be provided to it by such Option Holder
and are reasonably necessary to vest in the purchaser or any designee
thereof the ownership of such Mortgage Loan on a servicing released basis.
In connection with any such purchase by any Person other than it, the
Special Servicer shall deliver the related Mortgage File to or at the
direction of the purchaser. In any case, the Servicer shall deposit the
purchase price (except that portion of any purchase price constituting
Gain-on-Sale Proceeds which shall be deposited in the Gain-on-Sale Reserve
Account) into the Certificate Account (or, in the case of the Simon
Mortgage Loan, the Simon Collection Account) within one (1) Business Day
following the closing of the sale of the related Defaulted Mortgage Loan.
The Servicer shall immediately notify the Trustee and the Special
Servicer upon the holder of the effective Purchase Option's failure to
remit the purchase price specified in its Purchase Option Notice pursuant
to this clause (v). Thereafter, the Trustee shall notify each Option
Holder of such failure and any Option Holder may then exercise its
purchase option in accordance with this Section 3.18(a).
(vi) Unless and until the Purchase Option with respect to any
Defaulted Mortgage Loan is exercised, the Special Servicer shall pursue
such other resolution strategies with respect to such Defaulted Mortgage
Loan, including, without limitation, workout and foreclosure, as the
Special Servicer may deem appropriate, consistent with the Asset Status
Report and Servicing Standards; provided, however, the Special Servicer
shall not sell any Defaulted Mortgage Loan (other than in connection with
exercise of a related Purchase Option).
(b) (i) The Special Servicer may purchase any REO Property (at the
Purchase Price therefor). The Special Servicer may also offer to sell to any
Person any REO Property, if and when the Special Servicer determines, consistent
with Servicing Standards, that such a sale would be in the best economic
interests of the Trust Fund. The Special Servicer shall give the Trustee, the
Servicer and the Directing Certificateholder not less than five (5) Business
Days' prior written notice of the Purchase Price and its intention to (i)
purchase any REO Property at the Purchase Price therefor or (ii) sell any REO
Property, in which case the Special Servicer shall accept the highest offer
received from any Person for any REO Property in an amount at least equal to the
Purchase Price therefor. To the extent permitted by applicable law, and subject
to Servicing Standards, the Servicer, an Affiliate of the Servicer, the Special
Servicer or an Affiliate of the Special Servicer, or an employee of either of
them may act as broker in connection with the sale of any REO Property and may
retain from the proceeds of such sale a brokerage commission that does not
exceed the commission that would have been earned by an independent broker
pursuant to a brokerage agreement entered into at arm's length.
In the absence of any such offer, the Special Servicer shall accept
the highest offer received from any Person that is determined by the
Special Servicer to be a fair price for such REO Property, if the highest
bidder is a Person other than an Interested Person, or if such price is
determined to be such a price by the Trustee, if the highest bidder is an
Interested Person. Notwithstanding anything to the contrary herein,
neither the Trustee, in its individual capacity, nor any of its Affiliates
may make an offer for or purchase any REO Property pursuant hereto.
The Special Servicer shall not be obligated by either of the
foregoing paragraphs or otherwise to accept the highest offer if the
Special Servicer determines, in accordance with Servicing Standards, that
rejection of such offer would be in the best interests of the
Certificateholders. In addition, the Special Servicer may accept a lower
offer if it determines, in accordance with the servicing standard stated
in Section 3.01, that acceptance of such offer would be in the best
interests of the Certificateholders (for example, if the prospective buyer
making the lower offer is more likely to perform its obligations, or the
terms offered by the prospective buyer making the lower offer are more
favorable).
In determining whether any offer received from an Interested Person
represents a fair price for any REO Property, the Trustee and the Special
Servicer shall obtain and may conclusively rely on the opinion of an
Independent appraiser or other Independent expert in real estate matters
retained by the Trustee or the Special Servicer, as applicable, at the
expense of the Trust Fund. In determining whether any offer constitutes a
fair price for any REO Property, the Special Servicer or the Trustee (or,
if applicable, such appraiser) shall take into account, and any appraiser
or other expert in real estate matters shall be instructed to take into
account, as applicable, among other factors, the physical condition of
such REO Property, the state of the local economy and the Trust Fund's
obligation to comply with REMIC Provisions.
(ii) Subject to Servicing Standards, the Special Servicer shall act
on behalf of the Trust Fund in negotiating and taking any other action
necessary or appropriate in connection with the sale of any REO Property,
including the collection of all amounts payable in connection therewith. A
sale of any REO Property shall be without recourse to, or representation
or warranty by, the Trustee, the Depositor, any Servicer, or the Trust
Fund (except that any contract of sale and assignment and conveyance
documents may contain customary warranties of title, so long as the only
recourse for breach thereof is to the Trust Fund) and, if consummated in
accordance with the terms of this Agreement, none of the Servicers, the
Depositor nor the Trustee shall have any liability to the Trust Fund or
any Certificateholder with respect to the purchase price therefor accepted
by the Special Servicer or the Trustee.
(c) Any sale of a Defaulted Mortgage Loan or any REO Property shall
be for cash only (unless changes in the REMIC Provisions or authoritative
interpretations thereof made or issued subsequent to the Startup Day allow a
sale for other consideration).
(d) If the Simon Mortgage Loan becomes a Defaulted Mortgage Loan,
the Special Servicer shall promptly notify in writing the Servicer and the
Trustee, and the Trustee, following its receipt of such notice, shall promptly
notify the Class S Certificateholders. Upon receipt of such notice, the Simon
Representative, on behalf of the Class S Certificateholders, will have the first
option, but not the obligation, to purchase the Simon Mortgage Loan (including
the Simon Non-Pooled Component) from the Trust Fund at a price equal to the
Option Price. If the Simon Representative fails to exercise such option within
30 days after receipt of such notice, then the Simon Mortgage Loan may be sold
in accordance with this Sections 3.18.
(e) Notwithstanding anything in this Section 3.18 to the contrary,
pursuant to the terms of the related AB Intercreditor Agreement, the Companion
Holder will have the right to purchase the related AB Mortgage Loan or related
REO Property. Such right of the Companion Holder shall be given priority over
any provision described in this Section 3.18. If the AB Mortgage Loan or REO
Property is purchased by the Companion Holder, repurchased by the applicable
Mortgage Loan Seller or otherwise ceases to be subject to this Agreement, the
related Companion Loan will no longer be subject to this Agreement.
(f) Notwithstanding anything in this Section 3.18 to the contrary,
pursuant to the terms of the related Ridge Park Intercreditor Agreement, the
Ridge Park Mezzanine Lender will have the right to purchase the related Mortgage
Loan or related REO Property referred to in the Ridge Park Intercreditor
Agreement. Such right of the Ridge Park Mezzanine Lender shall be given priority
over any provision described in this Section 3.18. If the Mortgage Loan or REO
Property is purchased by the Ridge Park Mezzanine Lender, repurchased by the
applicable Mortgage Loan Seller or otherwise ceases to be subject to this
Agreement, the related Mortgage Loan will no longer be subject to this
Agreement.
(g) Notwithstanding anything in this Section 3.18 to the contrary,
pursuant to the terms of the related Xxxxxx Riverside Intercreditor Agreement,
the Xxxxxx Riverside Subordinated Lender will have the right to purchase the
Mortgage Loan or related REO Property that is referred to in the Xxxxxx
Riverside Intercreditor Agreement. Such right of the Xxxxxx Riverside
Subordinated Lender shall be given priority over any provision described in this
Section 3.18. If the Mortgage Loan or REO Property is purchased by the Xxxxxx
Riverside Subordinated Lender, repurchased by the applicable Mortgage Loan
Seller or otherwise ceases to be subject to this Agreement, the related Mortgage
Loan will no longer be subject to this Agreement.
Section 3.19 Additional Obligations of Servicer and Special
Servicer.
(a) The Servicer shall deliver all Compensating Interest Payments to
the Trustee for deposit in the Distribution Account on each P&I Advance Date,
without any right of reimbursement therefor.
(b) The Servicer shall provide to each Companion Holder any reports
or notices required to be delivered to such Companion Holder pursuant to the
related AB Intercreditor Agreement.
Section 3.20 Modifications, Waivers, Amendments and Consents.
(a) Except as set forth in (i) this Section 3.20(a), Section 3.20(j)
and Section 3.08, the Servicer shall not agree to any modification, waiver or
amendment of a Mortgage Loan and (ii) in the following paragraph, Section
3.08(e), Section 3.08(f) and Section 3.20(d), no Mortgage Loan that is not a
Specially Serviced Mortgage Loan may be modified, waived or amended, and in any
event, the Servicer shall not modify, waive or amend a Mortgage Loan without the
prior written consent of the Special Servicer except to the extent provided in
Section 3.08(f); provided that, the Servicer shall forward to the Special
Servicer requests to extend the maturity date of a Mortgage Loan that is not a
Specially Serviced Mortgage Loan, and the Special Servicer may approve such
request; provided, further, that except as provided in the following sentence,
no such extension entered into pursuant to this Section 3.20(a) shall be for a
period of more than twelve months from the original maturity date of such
Mortgage Loan or shall extend the maturity date beyond the earlier of (i) two
years prior to the Rated Final Distribution Date and (ii) in the case of a
Mortgage Loan secured by a leasehold estate and not also the related fee
interest, the date twenty years prior to the expiration of such leasehold
estate. If such extension would extend the Maturity Date of a Mortgage Loan for
more than twelve months from and after the original maturity date of such
Mortgage Loan and the Mortgage Loan is not in default or default with respect
thereto is not reasonably foreseeable, the Servicer must provide the Trustee,
the Special Servicer and the Directing Certificateholders with an opinion of
counsel (at the expense of the related Mortgagor) that such extension would not
constitute a "significant modification" of the Mortgage Loan within the meaning
of Treasury Regulations Section 1.860G-2(b). Notwithstanding the foregoing, the
Servicer, without the consent of the Special Servicer, may modify or amend the
terms of any Mortgage Loan in order to (i) cure any ambiguity or mistake therein
or (ii) correct or supplement any provisions therein which may be inconsistent
with any other provisions therein or correct any error, provided that, if the
Mortgage Loan is not in default or default with respect thereto is not
reasonably foreseeable, such modification or amendment would not be a
"significant modification" of the Mortgage Loan within the meaning of Treasury
Regulations Section 1.860G-2(b).
Neither the Servicer nor the Special Servicer shall permit the
substitution of any Mortgaged Property (or any portion thereof) for one or more
other parcels of real property at any time the Mortgage Loan is not in default
pursuant to the terms of the related Mortgage Loan documents or default with
respect thereto is not reasonably foreseeable unless either (i) the Servicer or
the Special Servicer, as applicable, obtains from Xxxxx'x and Fitch (and
delivers to the Directing Certificateholder) a written confirmation that such
substitution will not cause a downgrading, qualification or withdrawal of the
then current rating assigned to any of the Certificates and (ii) either (a) such
substitution is at the unilateral option of the Mortgagor or otherwise occurs
automatically pursuant to the terms of the Mortgage Loan in effect on the
Startup Day, within the meaning of Treasury Regulations Section 1.1001-3, or (b)
it has received an Opinion of Counsel to the effect that such substitution would
not be a "significant modification" of the Mortgage Loan within the meaning of
Treasury Regulations Section 1.860G-2(b).
(b) If the Special Servicer determines that a modification, waiver
or amendment (including, without limitation, the forgiveness or deferral of
interest or principal or the substitution of collateral pursuant to the terms of
the Mortgage Loan or otherwise, the release of collateral or the pledge of
additional collateral) of the terms of a Specially Serviced Mortgage Loan with
respect to which a payment default or other material default has occurred or a
payment default or other material default is, in the Special Servicer's
judgment, reasonably foreseeable (as evidenced by an Officer's Certificate of
the Special Servicer), is reasonably likely to produce a greater recovery on a
net present value basis (the relevant discounting to be performed at the related
Mortgage Rate) than liquidation of such Specially Serviced Mortgage Loan, then
the Special Servicer may agree to a modification, waiver or amendment of such
Specially Serviced Mortgage Loan, subject to the provisions of this Section
3.20(b) and Section 3.20(c) and subject to the approval of the Directing
Certificateholder as provided in Section 3.21.
The Special Servicer shall use its reasonable efforts to the extent
possible to cause each Specially Serviced Mortgage Loan to fully amortize prior
to the Rated Final Distribution Date and shall not agree to a modification,
waiver or amendment of any term of any Specially Serviced Mortgage Loan if such
modification, waiver or amendment would:
(i) extend the maturity date of any such Specially Serviced Mortgage
Loan to a date occurring later than the earlier of (a) two years prior to
the Rated Final Distribution Date and (b) if such Specially Serviced
Mortgage Loan is secured by a leasehold estate and not also the related
fee interest, the date occurring twenty years prior to the expiration of
such leasehold; or
(ii) provide for the deferral of interest unless (a) interest
accrues thereon, generally, at the related Mortgage Rate and (b) the
aggregate amount of such deferred interest does not exceed 10% of the
unpaid principal balance of the Specially Serviced Mortgage Loan.
(c) Any provision of this Section 3.20 to the contrary
notwithstanding, except when a Mortgage Loan is in default or default with
respect thereto is reasonably foreseeable, no fee described in this paragraph
shall be collected by any Servicer or Special Servicer from a Mortgagor (or on
behalf of the Mortgagor) in conjunction with any consent or any modification,
waiver or amendment of a Mortgage Loan (unless the amount thereof is specified
in the related Mortgage Note) if the collection of such fee would cause such
consent, modification, waiver or amendment to be a "significant modification" of
the Mortgage Note within the meaning of Treasury Regulations Section
1.860G-2(b).
(d) To the extent consistent with this Agreement, the Servicer or
the Special Servicer may agree to any waiver, modification or amendment of a
Mortgage Loan that is not in default or as to which default is not reasonably
foreseeable only if it provides the Trustee with an Opinion of Counsel (at the
expense of the related Mortgagor or such other Person requesting such
modification or, if such expense cannot be collected from the related Mortgagor
or such other Person, to be paid by the Servicer or Special Servicer as a
Servicing Advance) to the effect that the contemplated waiver, modification or
amendment (i) will not be a "significant modification" of the Mortgage Loan
within the meaning of Treasury Regulations Section 1.860G-2(b) and (ii) will not
cause (x) any of the Loan REMIC, the Lower-Tier REMIC or the Upper-Tier REMIC to
fail to qualify as a REMIC for purposes of the Code or (y) any of the Loan
REMIC, the Lower-Tier REMIC or the Upper-Tier REMIC to be subject to any tax
under the REMIC Provisions. Notwithstanding the foregoing, neither the Servicer
nor the Special Servicer may waive the payment of any Yield Maintenance Charge
or the requirement that any prepayment of a Mortgage Loan be made on a Due Date,
or if not made on a Due Date, be accompanied by all interest that would be due
on the next Due Date with respect to any Mortgage Loan that is not a Specially
Serviced Mortgage Loan.
(e) In the event of a modification which creates Mortgage Deferred
Interest, such Mortgage Deferred Interest will be allocated to reduce the
Distributable Certificate Interest of the Class or Classes of Certificates
pursuant to Section 4.06.
(f) Subject to Section 3.20(c), the Servicer and the Special
Servicer each may, as a condition to its granting any request by a Mortgagor for
consent, modification (including extensions), waiver or indulgence or any other
matter or thing, the granting of which is within the Servicer's or the Special
Servicer's, as the case may be, discretion pursuant to the terms of the
instruments evidencing or securing the related Mortgage Loan and is permitted by
the terms of this Agreement, require that such Mortgagor pay to the Servicer or
the Special Servicer, as the case may be, as additional servicing compensation,
a reasonable or customary fee, for the additional services performed in
connection with such request.
(g) All modifications (including extensions), waivers and amendments
of the Mortgage Loans entered into pursuant to this Section 3.20 shall be in
writing, signed by the Servicer or the Special Servicer, as the case may be, and
the related Mortgagor (and by any guarantor of the related Mortgage Loan, if
such guarantor's signature is required by the Special Servicer in accordance
with the Servicing Standards).
(h) Each of the Servicer and the Special Servicer shall notify the
Rating Agencies, the Trustee, the Directing Certificateholder, the Mortgage Loan
Sellers (if such Mortgage Loan Seller is not a Servicer or Sub-Servicer of such
Mortgage Loan or a Certificateholder) and each other in writing of any
modification, waiver or amendment of any term of any Mortgage Loan and the date
thereof, and shall deliver to the Trustee or the related Custodian for deposit
in the related Mortgage File, an original counterpart of the agreement relating
to such modification, waiver or amendment, promptly (and in any event within 10
Business Days) following the execution thereof. Following receipt of the
Servicer's or the Special Servicer's, as applicable, delivery of the aforesaid
modification, waiver or amendment to the Trustee, the Trustee shall forward a
copy thereof to each Holder of a Class F, Class G, Class H, Class J, Class K,
Class L, Class M, Class N and Class NR Certificate and, if such modification,
waiver or amendment is with respect to the Simon Mortgage Loan, to each Holder
of a Class S-1, Class S-2 and Class S-3 Certificates.
(i) [RESERVED]
(j) Notwithstanding the foregoing, neither the Servicer nor the
Special Servicer shall permit the substitution of any Mortgaged Property
pursuant to the defeasance provisions of any Mortgage Loan (or any portion
thereof) unless such defeasance complies with Treasury Regulations Section
1.860G-2(a)(8) and the Servicer or the Special Servicer, as applicable, has
received (i) a certificate of an Independent certified public accountant to the
effect that such substituted property will provide cash flows sufficient to meet
all payments of interest and principal (including payments at maturity) on such
Mortgage Loan in compliance with the requirements of the terms of the related
Mortgage Loan documents, (ii) one or more Opinions of Counsel (at the expense of
the related Mortgagor) to the effect that the Trustee, on behalf of the Trust
Fund, will have a first priority perfected security interest in such substituted
Mortgage Property; provided, however, that, to the extent consistent with the
related Mortgage Loan documents, the related Mortgagor shall pay the cost of any
such opinion as a condition to granting such defeasance, (iii) to the extent
consistent with the related Mortgage Loan documents, the Mortgagor shall
establish a single purpose entity to act as a successor Mortgagor, if so
required by the Rating Agencies, (iv) to the extent permissible under the
related Mortgage Loan documents, the Servicer shall use its reasonable efforts
to require the related Mortgagor to pay all costs of such defeasance, including
but not limited to the cost of maintaining any successor Mortgagor and (v) to
the extent permissible under the Mortgage Loan documents, the Servicer shall
obtain, at the expense of the related Mortgagor, written confirmation from the
Rating Agencies that such defeasance will not cause the downgrade, withdrawal or
modification of the then current ratings of the Certificates; provided, however,
that (a) the Servicer shall not be required to obtain such written confirmation
from Fitch to the extent that such Mortgagor has delivered the certificate
required pursuant to clause (i) above, delivered the opinion required pursuant
to clause (ii) above and established the single purpose entity pursuant to
clause (iii) above unless such Mortgage Loan at the time of such defeasance is
one of the ten largest Mortgage Loans by Stated Principal Balance and (b) the
Servicer shall not be required to obtain the Xxxxx'x confirmation referenced in
clause (v) above with respect to any Mortgage Loan which has a Stated Principal
Balance less than $20,000,000 and represents less than 5% of the Stated
Principal Balance of the Mortgage Pool, so long as such Mortgage Loan is not one
of the ten largest Mortgage Loans by Stated Principal Balance.
(k) Notwithstanding anything herein or in the related Mortgage Loan
Documents to the contrary, the Servicer may permit the substitution of
"government securities" within the meaning of Section 2(a)(16) of the Investment
Company Act of 1940, or any other securities that comply with Treasury
Regulations Section 1.860G-2(a)(8) for any Mortgaged Property pursuant to the
defeasance provisions of any Mortgage Loan (or any portion thereof) in lieu of
the defeasance collateral specified in the related Mortgage Loan Documents;
provided that the Servicer reasonably determines that allowing their use would
not cause a default or event of default to become reasonably foreseeable and the
Servicer receives an Opinion of Counsel (at the expense of the Mortgagor to the
extent permitted under the Mortgage Loan documents) to the effect that such use
would not be and would not constitute a "significant modification" of such
Mortgage Loan pursuant to Treasury Regulations Section 1.860G-2(b) and would not
otherwise constitute an Adverse REMIC Event with respect to any REMIC and
provided further that the requirements set forth in Section 3.20(j) are
satisfied; and further provided, that such securities are backed by the full
faith and credit of the United States government, or the Servicer shall obtain a
written confirmation of Xxxxx'x that the use of such securities will not result
in the downgrade, withdrawal or qualification of the then current ratings of any
Class of Certificates outstanding.
(l) If required under the related Mortgage Loan documents or if
otherwise consistent with the Servicing Standards, the Servicer shall establish
and maintain one or more accounts (the "Defeasance Accounts"), which shall be
Eligible Accounts, into which all payments received by the Servicer from any
defeasance collateral substituted for any Mortgaged Property shall be deposited
and retained, and shall administer such Defeasance Accounts in accordance with
the Mortgage Loan documents. Notwithstanding the foregoing, in no event shall
the Servicer permit such amounts to be maintained in the Defeasance Account for
a period in excess of 90 days, unless such amounts are reinvested by the
Servicer in "government securities" within the meaning of Section 2(a)(16) of
the Investment Company Act of 1940, or any other securities that comply with
Treasury Regulations Section 1.860G-2(a)(8). To the extent not required or
permitted to be placed in a separate account, the Servicer shall deposit all
payments received by it from defeasance collateral substituted for any Mortgaged
Property into the Collection Account and treat any such payments as payments
made on the Mortgage Loan in advance of its Due Date in accordance with clause
(a)(i) of the definition of Available Distribution Amount, and not as a
prepayment of the related Mortgage Loan. Notwithstanding anything herein to the
contrary, in no event shall the Servicer permit such amounts to be maintained in
the Collection Account for a period in excess of 365 days.
Section 3.21 Transfer of Servicing Between Servicer and Special
Servicer; Recordkeeping; Asset Status Report.
(a) Upon determining that a Servicing Transfer Event has occurred
with respect to any Mortgage Loan, the Servicer shall promptly give notice to
the Special Servicer and the Directing Certificateholder thereof, and shall
deliver the related Mortgage File and Servicing File to the Special Servicer and
shall use its reasonable efforts to provide the Special Servicer with all
information, documents and records (including records stored electronically on
computer tapes, magnetic discs and the like) relating to the Mortgage Loan and,
if applicable, the related Companion Loan, either in the Servicer's possession
or otherwise available to the Servicer without undue burden or expense, and
reasonably requested by the Special Servicer to enable it to assume its
functions hereunder with respect thereto. The Servicer shall use its reasonable
efforts to comply with the preceding sentence within 5 Business Days of the
occurrence of each related Servicing Transfer Event and in any event shall
continue to act as Servicer and administrator of such Mortgage Loan until the
Special Servicer has commenced the servicing of such Mortgage Loan and, if
applicable, the related Companion Loan. The Servicer shall deliver to the
Trustee and the Directing Certificateholder (and in the case of the Simon
Mortgage Loan, the Simon Representative) a copy of the notice of such Servicing
Transfer Event provided by the Servicer to the Special Servicer pursuant to this
Section. The Trustee shall deliver to each Controlling Class Certificateholder a
copy of the notice of such Servicing Transfer Event provided by the Servicer
pursuant to this Section.
Upon determining that a Specially Serviced Mortgage Loan (other than
an REO Loan) has become current and has remained current for three consecutive
Monthly Payments (provided that (i) no additional Servicing Transfer Event is
foreseeable in the reasonable judgment of the Special Servicer, and (ii) for
such purposes taking into account any modification or amendment of such Mortgage
Loan and, if applicable, the related Companion Loan), and that no other
Servicing Transfer Event is continuing with respect thereto, the Special
Servicer shall immediately give notice thereof to the Servicer and the Directing
Certificateholder (and in the case of the Simon Mortgage Loan, the Simon
Representative), and shall return the related Mortgage File and Servicing File
to the Servicer (or copies thereof if copies only were delivered to the Special
Servicer) and upon giving such notice, and returning such Mortgage File and
Servicing File to the Servicer, the Special Servicer's obligation to service
such Corrected Mortgage Loan shall terminate and the obligations of the Servicer
to service and administer such Mortgage Loan and, if applicable, the related
Companion Loan, shall recommence.
(b) In servicing any Specially Serviced Mortgage Loans, the Special
Servicer will provide to the Trustee originals of documents included within the
definition of "Mortgage File" for inclusion in the related Mortgage File (with a
copy of each such original to the Servicer), and provide the Servicer with
copies of any additional related Mortgage Loan information including
correspondence with the related Mortgagor.
(c) Notwithstanding the provisions of Section 3.12(d), the Servicer
shall maintain ongoing payment records with respect to each of the Specially
Serviced Mortgage Loans and REO Properties and shall provide the Special
Servicer with any information in its possession required by the Special Servicer
to perform its duties under this Agreement, provided that the Servicer shall
only be required to maintain in such records to the extent the Special Servicer
has provided such information to the Servicer.
(d) No later than 45 days after a Servicing Transfer Event for a
Mortgage Loan and, if applicable, the related Companion Loan, the Special
Servicer shall deliver to the Servicer, each Rating Agency, the Trustee and the
Directing Certificateholder, or with respect to the Simon Mortgage Loan, the
Simon Representative, a report (the "Asset Status Report") with respect to such
Mortgage Loan and the related Mortgaged Property; provided, however, the Special
Servicer shall not be required to deliver an Asset Status Report to the
Directing Certificateholder if they are the same entity. Such Asset Status
Report shall set forth the following information to the extent reasonably
determinable:
(i) summary of the status of such Specially Serviced Mortgage Loan
and any negotiations with the related Mortgagor;
(ii) a discussion of the legal and environmental considerations
reasonably known to the Special Servicer, consistent with the Servicing
Standards, that are applicable to the exercise of remedies as aforesaid
and to the enforcement of any related guaranties or other collateral for
the related Mortgage Loan and whether outside legal counsel has been
retained;
(iii) the most current rent roll and income or operating statement
available for the related Mortgaged Property;
(iv) the Special Servicer's recommendations on how such Specially
Serviced Mortgage Loan might be returned to performing status and returned
to the Servicer for regular servicing or otherwise realized upon;
(v) a copy of the last obtained Appraisal of the Mortgaged Property;
and
(vi) such other information as the Special Servicer deems relevant
in light of the Servicing Standards.
If within ten Business Days of receiving an Asset Status Report, the
Directing Certificateholder (or with respect to the Simon Mortgage Loan, the
Simon Representative) does not disapprove such Asset Status Report in writing,
the Special Servicer shall implement the recommended action as outlined in such
Asset Status Report; provided, however, that the Special Servicer may not take
any action that is contrary to applicable law, the Servicing Standards or the
terms of the applicable Mortgage Loan documents. If the Directing
Certificateholder (or with respect to the Simon Mortgage Loan, the Simon
Representative) disapproves such Asset Status Report within 10 Business Days of
receipt, the Special Servicer will revise such Asset Status Report and deliver
to the Directing Certificateholder (or with respect to the Simon Mortgage Loan,
the Simon Representative), the Rating Agencies, the Mortgage Loan Sellers and
the Servicer a new Asset Status Report as soon as practicable, but in no event
later than 30 days after such disapproval. The Special Servicer shall revise
such Asset Status Report as described above in this Section 3.21(d) until the
Directing Certificateholder (or with respect to the Simon Mortgage Loan, the
Simon Representative) shall fail to disapprove such revised Asset Status Report
in writing within ten (10) Business Days of receiving such revised Asset Status
Report or until the Special Servicer makes one of the determinations described
below. Notwithstanding the foregoing, in the event the Directing
Certificateholder (or with respect to the Simon Mortgage Loan, the Simon
Representative) and the Special Servicer have been unable to agree upon an Asset
Status Report with respect to a Specially Serviced Mortgage Loan within 90 days
of the Directing Certificateholder's (or 60 days with respect to the Simon
Mortgage Loan, the Simon Representative) receipt of the initial Asset Status
Report, the Special Servicer shall implement the actions described in the most
recent Asset Status Report submitted to the Directing Certificateholder (or with
respect to the Simon Mortgage Loan, the Simon Representative) by the Special
Servicer. The Special Servicer may, from time to time, modify any Asset Status
Report it has previously delivered and implement such report, provided such
report shall have been prepared, reviewed and not rejected pursuant to the terms
of this Section. Notwithstanding the foregoing, the Special Servicer (i) may,
following the occurrence of an extraordinary event with respect to the related
Mortgaged Property, take any action set forth in such Asset Status Report before
the expiration of a ten (10) Business Day period if the Special Servicer has
reasonably determined that failure to take such action would materially and
adversely affect the interests of the Certificateholders or, if a Loan Pair is
involved, the Companion Holder, and it has made a reasonable effort to contact
the Directing Certificateholder (or with respect to the Simon Mortgage Loan, the
Simon Representative) and (ii) in any case, shall determine whether such
affirmative disapproval is not in the best interest of all the
Certificateholders pursuant to the Servicing Standards.
The Special Servicer shall have the authority to meet with the
Mortgagor for any Specially Serviced Mortgage Loan and take such actions
consistent with the Servicing Standards and the related Asset Status Report. The
Special Servicer shall not take any action inconsistent with the related Asset
Status Report, unless such action would be required in order to act in
accordance with the Servicing Standards.
No direction of the Directing Certificateholder (or with respect to
the Simon Mortgage Loan, the Simon Representative) shall (a) require or cause
the Special Servicer to violate the terms of a Specially Serviced Mortgage Loan,
applicable law or any provision of this Agreement, including the Special
Servicer's obligation to act in accordance with the Servicing Standards and to
maintain the REMIC status of each of the Loan REMIC, the Lower-Tier REMIC and
the Upper-Tier REMIC, or (b) result in the imposition of a "prohibited
transaction" or "prohibited contribution" tax under the REMIC Provisions, or (c)
expose the Servicer, the Special Servicer, the Depositor, the Mortgage Loan
Sellers, the Trust Fund, the Trustee or their respective officers, directors,
employees or agents to any claim, suit or liability or (d) materially expand the
scope of the Special Servicer's, Trustee's or the Servicer's responsibilities
under this Agreement.
(e) Upon receiving notice of (i) the occurrence of the events
described in clause (iv) of the definition of Servicing Transfer Event (without
regard to the 60 day period set forth therein), or (ii) the request by a
Mortgagor for the amendment or modification of a Mortgage Loan which is not a
Specially Serviced Mortgage Loan for which the Special Servicer is responsible
for such amendment or modification pursuant to Section 3.08 and Section 3.20,
the Servicer shall immediately give notice thereof, and shall deliver copies of
the related Mortgage File and Servicing File to the Special Servicer and shall
use its reasonable efforts to provide the Special Servicer with all information
relating to the Mortgage Loan and reasonably requested by the Special Servicer
to enable it to negotiate with the related Mortgagor and prepare for any such
proceedings. The Servicer shall use its reasonable efforts to comply with the
preceding sentence within 5 Business Days of the occurrence of each such event.
Section 3.22 Sub-Servicing Agreements.
(a) The Servicer may enter into Sub-Servicing Agreements to provide
for the performance by third parties of any or all of its respective obligations
under Articles III and IV hereof; provided that the Sub-Servicing Agreement as
amended or modified: (i) is consistent with this Agreement in all material
respects and requires the Sub-Servicer to comply with all of the applicable
conditions of this Agreement; (ii) provides that if the Servicer shall for any
reason no longer act in such capacity hereunder (including, without limitation,
by reason of an Event of Default), the Trustee or its designee shall thereupon
assume all of the rights and, except to the extent they arose prior to the date
of assumption, obligations of the Servicer under such agreement, or,
alternatively, may act in accordance with Section 7.02 hereof under the
circumstances described therein (subject to Section 3.22(g) hereof); (iii)
provides that the Trustee for the benefit of the Certificateholders and the
Trustee (as holder of the Uncertificated Lower-Tier Interests and the Loan REMIC
Regular Interests) shall be a third party beneficiary under such Sub-Servicing
Agreement, but that (except to the extent the Trustee or its designee assumes
the obligations of the Servicer thereunder as contemplated by the immediately
preceding clause (ii)) none of the Trust Fund, the Trustee any successor
Servicer or any Certificateholder shall have any duties under such Sub-Servicing
Agreement or any liabilities arising therefrom; (iv) permits any purchaser of a
Mortgage Loan pursuant to this Agreement to terminate such Sub-Servicing
Agreement with respect to such purchased Mortgage Loan at its option and without
penalty; and (v) does not permit the Sub-Servicer any direct rights of
indemnification that may be satisfied out of assets of the Trust Fund. Any
successor Servicer hereunder shall, upon becoming successor Servicer, be
assigned and shall assume any Sub-Servicing Agreements from the predecessor
Servicer (subject to Section 3.22(g) hereof). In addition, each Sub-Servicing
Agreement entered into by the Servicer may provide that the obligations of the
Sub-Servicer thereunder shall terminate with respect to any Mortgage Loan
serviced thereunder at the time such Mortgage Loan becomes a Specially Serviced
Mortgage Loan; provided, however, that the Sub-Servicing Agreement may provide
that the Sub-Servicer will continue to make all Advances and calculations and
prepare all reports required under the Sub-Servicing Agreement with respect to
Specially Serviced Mortgage Loans and continue to collect its primary servicing
fees as if no Servicing Transfer Event had occurred and with respect to REO
Properties (and the related REO Loans) as if no REO Acquisition had occurred and
to render such incidental services with respect to such Specially Serviced
Mortgage Loans and REO Properties as are specifically provided for in such
Sub-Servicing Agreement. The 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 the Servicer
include actions taken or to be taken by a Sub-Servicer on behalf of the
Servicer; and, in connection therewith, all amounts advanced by any Sub-Servicer
to satisfy the obligations of the Servicer hereunder to make Advances shall be
deemed to have been advanced by the Servicer out of its own funds and,
accordingly, such Advances shall be recoverable by such Sub-Servicer in the same
manner and out of the same funds as if such Sub-Servicer were the Servicer, and,
for so long as they are outstanding, such Advances shall accrue interest in
accordance with Section 3.03(d), such interest to be allocable between the
Servicer and such Sub-Servicer pursuant to the terms of the Sub-Servicing
Agreement. For purposes of this Agreement, the Servicer shall be deemed to have
received any payment when a Sub-Servicer retained by it receives such payment.
The Servicer shall notify the Special Servicer, the Trustee and the Depositor in
writing promptly of the appointment by it of any Sub-Servicer. Except as
otherwise provided herein, the Special Servicer may not enter into Sub-Servicing
Agreements and may not assign any of its servicing obligations hereunder.
(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 the extent
necessary to ensure the enforceability of the related Mortgage Loans or the
compliance with its obligations under the Sub-Servicing Agreement and the
Servicer's obligations under this Agreement.
(c) As part of its servicing activities hereunder, the Servicer, for
the benefit of the Trustee and the Certificateholders, shall (at no expense to
the Trustee, the Certificateholders or the Trust Fund) monitor the performance
and enforce the obligations of each Sub-Servicer under the related Sub-Servicing
Agreement. Such enforcement, including, without limitation, the legal
prosecution of claims, termination of Sub-Servicing Agreements in accordance
with their respective terms and the pursuit of other appropriate remedies, shall
be in such form and carried out to such an extent and at such time as is in
accordance with the Servicing Standard. The Servicer shall have the right to
remove a Sub-Servicer retained by it in accordance with the terms of the related
Sub-Servicing Agreement.
(d) In the event the Trustee or its designee becomes successor
Servicer and assumes the rights and obligations of the Servicer under any
Sub-Servicing Agreement, the Servicer, at its expense, shall 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 the provisions of any Sub-Servicing Agreement
and this Section 3.22, the Servicer shall remain obligated and liable to the
Trustee and the Certificateholders for the performance of its 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 it alone were servicing and
administering the Mortgage Loans for which it is responsible, and the Servicer
shall pay the fees of any Sub-Servicer thereunder from its own funds. In no
event shall the Trust Fund bear any termination fee required to be paid to any
Sub-Servicer as a result of such Sub-Servicer's termination under any
Sub-Servicing Agreement.
(f) The Trustee shall furnish to any Sub-Servicer any powers of
attorney and other documents necessary or appropriate to enable such
Sub-Servicer to carry out its servicing and administrative duties under any
Sub-Servicing Agreement; provided, however, that the Trustee shall not be held
liable for any negligence, and shall be indemnified by the Sub-Servicer, with
respect to, or misuse of, any such power of attorney by a Sub-Servicer.
(g) Each Sub-Servicing Agreement shall provide that, in the event
the Trustee or any other Person becomes successor Servicer, the Trustee or such
successor Servicer shall have the right to terminate such Sub-Servicing
Agreement with or without cause and without a fee.
(h) The Special Servicer shall comply with the terms of each such
Sub-Servicing Agreement to the extent the terms thereof are not inconsistent
with the terms of this Agreement and the Special Servicer's obligations
hereunder. With respect to Mortgage Loans subject to a Sub-Servicing Agreement,
the Special Servicer shall, among other things, remit amounts, deliver reports
and information, and afford access to facilities and information to the related
Sub-Servicer that would be required to be remitted, delivered or afforded, as
the case may be, to the Servicer pursuant to the terms hereof within a
sufficient period of time to allow the Sub-Servicer to fulfill its obligations
under such Sub-Servicing Agreement and in no event later than 1 Business Day
prior to the applicable Determination Date (or such other date as specified
herein).
(i) Notwithstanding any other provision of this Agreement, the
Special Servicer shall not enter into any sub-servicing agreement which provides
for the performance by third parties of any or all of its obligations herein.
Section 3.23 [RESERVED]
Section 3.24 Representations, Warranties and Covenants of the
Servicer.
(a) The Servicer hereby represents and warrants to the Trustee, for
its own benefit and the benefit of the Certificateholders, and to the Depositor
and the Special Servicer, as of the Closing Date, that:
(i) The Servicer is a national banking association, duly organized,
validly existing and in good standing under the laws of the United States,
and the Servicer is in compliance with the laws of each State in which any
Mortgaged Property is located to the extent necessary to perform its
obligations under this Agreement;
(ii) The execution and delivery of this Agreement by the Servicer,
and the performance and compliance with the terms of this Agreement by the
Servicer, does not (A) violate the Servicer's organizational documents or
(B) 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 which is applicable to it or any of its assets, or (C) violate any law,
rule, regulation, order, judgment or decree to which the Servicer or its
property is subject, which, in the case of either (B) or (C), is likely to
materially and adversely affect either the ability of the Servicer to
perform its obligations under this Agreement or its financial condition;
(iii) The Servicer has the full power and authority to enter into
and consummate all transactions contemplated by this Agreement, has duly
authorized the execution, delivery and performance of this Agreement, and
has duly executed and delivered this Agreement;
(iv) This Agreement, assuming due authorization, execution and
delivery by the Trustee, the Special Servicer and the Depositor,
constitutes a valid, legal and binding obligation of the Servicer,
enforceable against the Servicer in accordance with the terms hereof,
subject to applicable bankruptcy, insolvency, reorganization,
receivership, moratorium and other laws affecting the enforcement of
creditors' rights generally, and general principles of equity, regardless
of whether such enforcement is considered in a proceeding in equity or at
law;
(v) The Servicer is not in default with respect to any law, any
order or decree of any court, or any order, regulation or demand of any
federal, state, municipal or governmental agency, which default, in the
Servicer's reasonable judgement is likely to materially and adversely
affect the financial condition or operations of the Servicer or its
properties taken as a whole or its ability to perform its duties and
obligations hereunder;
(vi) No litigation is pending or, to the best of the Servicer's
knowledge, threatened against the Servicer which would prohibit the
Servicer from entering into this Agreement or, in the Servicer's good
faith and reasonable judgment, is likely to materially and adversely
affect either the ability of the Servicer to perform its obligations under
this Agreement or the financial condition of the Servicer;
(vii) Any Sub-Servicing Agreements will comply with the provisions
of Section 3.22;
(viii) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Servicer, or compliance by the Servicer with, this
Agreement or the consummation of the transactions of the Servicer
contemplated by this Agreement, except for any consent, approval,
authorization or order which has been obtained or can be obtained prior to
the actual performance by the Servicer of its obligations under this
Agreement, or which, if not obtained would not have a materially adverse
effect on the ability of the Servicer to perform its obligations
hereunder; and
(ix) The Servicer has full power and authority to enter into and
consummate all transactions to be performed by it contemplated by this
Agreement, has duly authorized the execution, delivery and performance by
it of this Agreement, and has duly executed and delivered this Agreement.
(b) The representations and warranties set forth in paragraph (a)
above shall survive the execution and delivery of the Agreement.
Section 3.25 Representations, Warranties and Covenants of the
Special Servicer.
(a) The Special Servicer hereby represents, warrants and covenants
to the Trustee, for its own benefit and the benefit of the Certificateholders,
the Depositor and the Servicer, as of the Closing Date, that:
(i) The Special Servicer is a corporation, duly organized, validly
existing and in good standing under the laws of the State of Delaware, and
the Special Servicer is in compliance with the laws of each State in which
any Mortgaged Property is located to the extent necessary to perform its
obligations under this Agreement;
(ii) The execution and delivery of this Agreement by the Special
Servicer, and the performance and compliance with the terms of this
Agreement by the Special Servicer, does not (A) violate the Special
Servicer's articles of incorporation and by-laws or (B) 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 which is
applicable to it or any of its assets, or (C) violate any law, rule,
regulation, order, judgment or decree to which the Special Servicer or its
property is subject, which, in the case of either (B) or (C), is likely to
materially and adversely affect either the ability of the Special Servicer
to perform its obligations under this Agreement or its financial
condition;
(iii) The Special Servicer has the full power and authority to enter
into and consummate all transactions contemplated by this Agreement, has
duly authorized the execution, delivery and performance of this Agreement,
and has duly executed and delivered this Agreement;
(iv) This Agreement, assuming due authorization, execution and
delivery by the Trustee, the Servicer and the Depositor, constitutes a
valid, legal and binding obligation of the Special Servicer, enforceable
against the Special Servicer in accordance with the terms hereof, subject
to applicable bankruptcy, insolvency, reorganization, receivership,
moratorium and other laws affecting the enforcement of creditors' rights
generally, and general principles of equity, regardless of whether such
enforcement is considered in a proceeding in equity or at law;
(v) The Special Servicer is not in default with respect to any law,
any order or decree of any court, or any order, regulation or demand of
any federal, state, municipal or governmental agency, which default, in
the Special Servicer's reasonable judgement is likely to materially and
adversely affect the financial condition or operations of the Special
Servicer or its properties taken as a whole or its ability to perform its
duties and obligations hereunder;
(vi) No litigation is pending or, to the best of the Special
Servicer's knowledge, threatened against the Special Servicer which would
prohibit the Special Servicer from entering into this Agreement or, in the
Special Servicer's good faith and reasonable judgment is likely to
materially and adversely affect either the ability of the Special Servicer
to perform its obligations under this Agreement or the financial condition
of the Special Servicer;
(vii) Each officer, manager or employee of the Special Servicer that
has or, following the occurrence of a Servicing Transfer Event, would have
responsibilities concerning the servicing and administration of Mortgage
Loans is covered by errors and omissions insurance in the amounts and with
the coverage required by Section 3.07(c);
(viii) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Special Servicer, or compliance by the Special Servicer
with, this Agreement or the consummation of the transactions of the
Special Servicer contemplated by this Agreement, except for any consent,
approval, authorization or order which has been obtained or can be
obtained prior to the actual performance by the Special Servicer of its
obligations under this Agreement, and which, if not obtained would not
have a materially adverse effect on the ability of the Special Servicer to
perform its obligations hereunder; and
(ix) The Special Servicer has full power and authority to enter into
and consummate all transactions to be performed by it contemplated by this
Agreement, has duly authorized the execution, delivery and performance by
it of this Agreement, and has duly executed and delivered this Agreement.
(b) The representations and warranties set forth in paragraph (a)
above shall survive the execution and delivery of the Agreement. Such
indemnification shall survive any termination or resignation of the Special
Servicer, the termination or resignation of the Trustee and any termination of
the Agreement.
Section 3.26 Interest Reserve Account.
(a) On each P&I Advance Date relating to any Interest Accrual Period
ending in any January and on any P&I Advance Date which occurs in a year which
is not a leap year relating to any Interest Accrual Period ending in any
December, the Trustee, in respect of the Actual/360 Loans, shall deposit into
the Interest Reserve Account, an amount equal to one day's interest on the
Stated Principal Balance of the Interest Reserve Loans as of the Due Date
occurring in the month preceding the month in which such P&I Advance Date occurs
at the related Net Mortgage Rate, to the extent a full Monthly Payment or P&I
Advance is made in respect thereof (all amounts so deposited in any consecutive
February and January, "Withheld Amounts").
(b) On each P&I Advance Date occurring in March, the Trustee shall
withdraw, from the Interest Reserve Account an amount equal to the Withheld
Amounts from the preceding January (if applicable) and February, if any, and
deposit such amount into the Lower-Tier Distribution Account or, with respect to
the Simon Mortgage Loan, the Loan REMIC Distribution Account.
Section 3.27 Excess Interest Distribution Account.
Prior to the applicable Distribution Date, the Servicer is required
to remit to the Trustee for deposit into the Excess Interest Distribution
Account an amount equal to the Excess Interest received during the related Due
Period.
Section 3.28 Directing Certificateholder Contact with Servicer.
No less often than on a monthly basis, each of the Servicer and the
Special Servicer shall, without charge, make a knowledgeable Servicing Officer
available to answer questions from the Directing Certificateholder regarding the
performance and servicing of the Mortgage Loans and/or REO Properties for which
the Servicer or the Special Servicer, as the case may be, is responsible.
Section 3.29 Controlling Class Certificateholders and Directing
Certificateholder; Certain Rights and Powers of Directing Certificateholder.
(a) Each Controlling Class Certificateholder is hereby deemed to
have agreed by virtue of its purchase of a Certificate to provide its name and
address to the Trustee and to notify the Servicer and Special Servicer of the
transfer of any Certificate of a Controlling Class, the selection of a Directing
Certificateholder or the resignation or removal thereof. The Directing
Certificateholder is hereby deemed to have agreed by virtue of its purchase of a
Certificate to notify the Servicer, Special Servicer and Trustee when such
Certificateholder is appointed Directing Certificateholder and when it is
removed or resigns. To the extent there is only one Controlling Class
Certificateholder and it is also the Special Servicer, it shall be the Directing
Certificateholder.
(b) A "Controlling Class" as of any time of determination shall be
the Class outstanding with the most subordinate Class of Regular Certificates
having at least 25% of its initial Class Balance.
(c) Once a Directing Certificateholder has been selected, each of
the Servicer, the Special Servicer, the Depositor, the Trustee and each other
Certificateholder (or Certificate Owner, if applicable) shall be entitled to
rely on such selection unless a majority of the Controlling Class
Certificateholders, by Certificate Balance, or such Directing Certificateholder
shall have notified the Servicer, Special Servicer and Trustee and each other
Controlling Class Certificateholder, in writing, of the resignation of such
Directing Certificateholder or the selection of a new Directing
Certificateholder. Upon the resignation of a Directing Certificateholder, the
Trustee shall request the Controlling Class Certificateholders to select a new
Directing Certificateholder.
(d) [RESERVED]
(e) [RESERVED]
(f) Until it receives notice to the contrary each of the Servicers
and the Trustee shall be entitled to rely on the most recent notification with
respect to the identity of the Controlling Class Certificateholder, and the
Directing Certificateholder.
(g) Upon request, the Trustee shall deliver to the Special Servicer
and the Servicer a list of each Controlling Class Certificateholder and the
Directing Certificateholder, including names and addresses. In addition to the
foregoing, within two (2) Business Days of receiving notice of the selection of
a new Directing Certificateholder or the existence of a new Controlling Class
Certificateholder, the Trustee shall notify the Servicer and the Special
Servicer. Notwithstanding the foregoing, ARCap CMBS Fund REIT, Inc. shall be the
initial Directing Certificateholder and shall remain so until a successor is
appointed pursuant to the terms of this Agreement.
(h) If at any time a Book-Entry Certificate belongs to a Controlling
Class, the Trustee shall notify the related Certificateholders (through the
Depository) of such event and shall request that it be informed of any change in
the identity of the related Certificate Owner from time to time.
(i) Each Certificateholder acknowledges and agrees, by its
acceptance of its Certificates, that: (i) the Directing Certificateholder may
have special relationships and interests that conflict with those of Holders of
one or more Classes of Certificates; (ii) the Directing Certificateholder may
act solely in the interests of the Holders of the Controlling Class; (iii) the
Directing Certificateholder does not have any duties to the Holders of any Class
of Certificates other than the Controlling Class; (iv) the Directing
Certificateholder 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 Directing Certificateholder shall have no liability
whatsoever for having so acted, and no Certificateholder may take any action
whatsoever against the Directing Certificateholder or any director, officer,
employee, agent or principal thereof for having so acted.
(j) In the event the Simon Mortgage Loan becomes a Specially
Serviced Mortgage Loan, the Holders (or, in the case of Book-Entry Certificates,
the Certificate Owners) of Class S Certificates representing more than 25% of
the Class Balance of the most subordinate Class S Certificates (the "Class S
Controlling Holders") shall be entitled in accordance with this Section 3.29 to
select a representative (the "Simon Representative") having the rights and
powers specified in this Agreement or to replace an existing Simon
Representative. Solely for purposes of selecting or replacing the Simon
Representative, the Certificate Balances of the Class S Certificates will be
reduced by any Appraisal Reductions with respect to the Simon Mortgage Loan, in
the following order of priority, first, to the Class S-3 Certificates until its
Certificate Balance has been reduced to zero, second, to the Class S-2
Certificates until its Certificate Balance has been reduced to zero and third,
to the Class S-1 Certificates until its Certificate Balance has been reduced to
zero. Upon (i) the receipt by the Trustee of written requests for the selection
of a Simon Representative from the Class S Controlling Holders (or, in the case
of Book-Entry Certificates, the Certificate Owners) of Class S Certificates
representing more than 25% of the Class Principal Balance of all Class S
Certificates, or (ii) the resignation or removal of the Person acting as Simon
Representative, 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 Class S Certificates
that they may select a Simon Representative. Such notice shall set forth the
process for selecting a Simon Representative, which shall be the designation of
the Simon Representative by the Class S Controlling Holders by a writing
delivered to the Trustee. No appointment of any Person as a Simon Representative
shall be effective until such Person provides the Trustee with written
confirmation of its acceptance of such appointment, an address and telecopy
number for the delivery of notices and other correspondence and a list of
officers or employees of such Person with whom the parties to this Agreement may
deal (including their names, titles, work addresses and telecopy numbers). Any
Simon Representative appointed hereunder shall be automatically removed in the
event that any such Class S Certificateholder or an Affiliate of such Class S
Certificateholder becomes the Simon Mortgage Loan borrower under the Simon
Mortgage Loan. Except as otherwise agreed with the related Class S
Certificateholders, no such Simon Representative shall owe any fiduciary duty to
the Trustee, the Servicer, the Special Servicer or any Certificateholder.
(k) Within ten (10) Business Days (or as soon thereafter as
practicable if the Class S Certificates are Book-Entry Certificates) of
receiving a request therefor from the Servicer or Special Servicer, the Trustee
shall deliver to the requesting party the identity of the Simon Representative
and a list of each Holder of the Class S Certificates, including, in each case,
names and addresses. With respect to such information, the Trustee shall be
entitled to conclusively rely on information provided to it by the Depository,
and the Servicer and the Special Servicer shall be entitled to rely on such
information provided by the Trustee with respect to any obligation or right
hereunder that the Servicer and the Special Servicer may have to deliver
information or otherwise communicate with the Simon Representative or any of the
Holders (or, if applicable, Certificate Owners) of the Class S Certificates. In
addition to the foregoing, within two (2) Business Days of the selection,
resignation or removal of a Simon Representative, the Trustee shall notify the
other parties to this Agreement of such event. The expenses incurred by the
Trustee in connection with obtaining information from the Depository or
Depository Participants with respect to any Book-Entry Certificate shall be
expenses of the Trust Fund payable out of the Certificate Account pursuant to
Section 3.05(a).
(l) A Simon Representative may at any time resign as such by giving
written notice to the Trustee and to each Holder (or, in the case of Book-Entry
Certificates, Certificate Owner) of the Class S Certificates. 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 all Class S
Certificates shall be entitled to remove any existing Simon Representative by
giving written notice to the Trustee and to such existing Simon Representative.
(m) Once a Simon Representative has been selected pursuant to this
Section 3.29 each of the parties to this Agreement and each Class S
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 Class S Certificates, by
aggregate Certificate Principal Balance, or such Simon Representative, as
applicable, shall have notified the Trustee and each other Holder (or, in the
case of Book-Entry Certificates, Certificate Owner) of the Class S Certificates,
in writing, of the resignation or removal of such Simon Representative.
(n) Any and all expenses of the Simon Representative shall be borne
by the Holders (or, if applicable, the Certificate Owners) of Class S
Certificates, pro rata according to their respective Percentage Interests in
such Classes, and not by the Trust. Notwithstanding the foregoing, if a claim is
made against the Simon Representative by a Mortgagor with respect to this
Agreement or the Simon Mortgage Loan, the Simon Representative shall immediately
notify the Trustee, the Servicer and the Special Servicer, whereupon (if the
Special Servicer or the Trust Fund are also named parties to the same action
and, in the sole judgment of the Special Servicer, (i) the Simon Representative
had acted in good faith, without negligence or willful misfeasance with regard
to the particular matter, and (ii) there is no potential for the Special
Servicer or the Trust Fund to be an adverse party in such action as regards the
Simon Representative) the Special Servicer on behalf of the Trust Fund shall,
subject to Section 6.03, assume the defense of any such claim against the Simon
Representative. This provision shall survive the termination of this Agreement
and the termination or resignation of the Simon Representative.
(o) All rights to, and requirements for, information (including the
delivery of information or access to information) provided to the Controlling
Class Representative contained herein shall also apply to the Simon
Representative with respect to information relating to the Simon Mortgage Loan.
(p) All rights to, and requirements for, information (including the
delivery of information or access to information) provided to the Controlling
Class Representative contained herein shall also apply to each Companion Holder
with respect to information relating to the related AB Mortgage Loan.
Section 3.30 Ridge Park Intercreditor Agreement.
The Servicer and Special Servicer shall act as Mortgage Lender (as
defined in the Ridge Park Intercreditor Agreement) with respect to the mortgage
loan referred to in the Ridge Park Intercreditor Agreement and shall service
such mortgage loans in accordance with the Ridge Park Intercreditor Agreement as
long as such terms and conditions do not conflict with the REMIC Provisions and
this Agreement.
Section 3.31 Xxxxxx Riverside Intercreditor Agreement.
The Servicer and Special Servicer shall act as Senior Lender (as
defined in the Xxxxxx Riverside Intercreditor Agreement) with respect to the
mortgage loans referred to in the Xxxxxx Riverside Intercreditor Agreement and
shall service such mortgage loans in accordance with the Xxxxxx Riverside
Intercreditor Agreement as long as such terms and conditions do not conflict
with the REMIC Provisions and this Agreement.
Section 3.32 Companion Paying Agent.
(a) The Servicer shall be the initial Companion Paying Agent
hereunder. The Companion Paying Agent undertakes to perform such duties and only
such duties as are specifically set forth herein.
(b) No provision of this Agreement shall be construed to relieve the
Companion Paying Agent from liability for its own negligent failure to act, bad
faith or its own willful misfeasance; provided, however, that the duties and
obligations of the Companion Paying Agent shall be determined solely by the
express provisions of this Agreement. The Companion Paying Agent shall not be
liable except for the performance of such duties and obligations, no implied
covenants or obligations shall be read into this Agreement against the Companion
Paying Agent. In the absence of bad faith on the part of the Companion Paying
Agent, the Companion Paying Agent may conclusively rely, as to the truth and
correctness of the statements or conclusions expressed therein, upon any
resolutions, certificates, statements, opinions, reports, documents, orders or
other instrument furnished to the Companion Paying Agent by any Person and which
on their face do not contradict the requirements of this Agreement.
(c) Upon the resignation or removal of the Servicer pursuant to
Article VII of this Agreement, the Companion Paying Agent shall be deemed
simultaneously to resign or be removed.
(d) This Section shall survive the termination of this Agreement or
the resignation or removal of the Companion Paying Agent, as regards rights
accrued prior to such resignation or removal.
Section 3.33 Companion Register.
The Companion Paying Agent shall maintain a register (the "Companion
Register") on which it will record the names and address of, and wire transfer
instructions for, the Companion Holders from time to time, to the extent such
information is provided in writing to it by each Companion Holder. The initial
Companion Holders, along with their respective name, address, wiring
instructions and tax identification number, is listed on Exhibit U hereto. In
the event a Companion Holder transfers a Companion Loan without notice to the
Companion Paying, the Companion Paying Agent shall have no liability for any
misdirected payment in the related Companion Loan and shall have no obligation
to recover and redirect such payment.
The Companion Paying Agent shall promptly provide the name and
address of the Companion Holder to any party hereto or any successor Companion
Holder upon written request and any such Person may, without further
investigation, conclusively rely upon such information. The Companion Paying
Agent shall have no liability to any Person for the provision of any such name
and address.
[End of Article III]
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS
Section 4.01 Distributions.
(a) On each Distribution Date, to the extent of the Available
Distribution Amount for such Distribution Date, the Trustee shall be deemed to
transfer the Lower-Tier Distribution Amount 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:
(i) first, to the Holders of the Class A-1 Certificates and the
Class A-2 Certificates, the Class X-1 Certificates and the Class X-2
Certificates, pro rata (based upon their respective entitlements to
interest for such Distribution Date), in respect of interest, up to an
amount equal to the aggregate Interest Distribution Amount in respect of
such Classes of Certificates for such Distribution Date;
(ii) second, (A) to the Holders of the Class A-1 Certificates, in
reduction of the Certificate Balance thereof, an amount equal to the
Principal Distribution Amount, until the outstanding Certificate Balance
of the Class A-1 Certificates has been reduced to zero, and (B) after the
Certificate Balance of the Class A-1 Certificates has been reduced to
zero, to the Holders of the Class A-2 Certificates, in reduction of the
Certificate Balance thereof, an amount equal to the Principal Distribution
Amount (or the portion thereof remaining after any distributions in
respect of the Class A-1 Certificates on such Distribution Date), until
the outstanding Certificate Balance of the Class A-2 Certificates has been
reduced to zero;
(iii) third, to the Holders of the Class A-1 Certificates and the
Class A-2 Certificates, pro rata (based upon the aggregate unreimbursed
Collateral Support Deficit allocated to each such Class), until all
amounts of Collateral Support Deficit previously allocated to such
Classes, but not previously reimbursed, have been reimbursed in full;
(iv) fourth, to the Holders of the Class B Certificates, in respect
of interest, up to an amount equal to the aggregate Interest Distribution
Amount in respect of such Class of Certificates for such Distribution
Date;
(v) fifth, after the Certificate Balances of the Class A
Certificates have been reduced to zero, to the Holders of the Class B
Certificates, in reduction of the Certificate Balance thereof, an amount
equal to the Principal Distribution Amount (or the portion thereof
remaining after any distributions in respect of the Class A-1 and Class
A-2 Certificates on such Distribution Date), until the outstanding
Certificate Balance of the Class B Certificates has been reduced to zero;
(vi) sixth, to the Holders of 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) seventh, to the Holders of the Class C Certificates, in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(viii) eighth, after the Certificate Balances of the Class A and
Class B Certificates have been reduced to zero, to the Holders of the
Class C Certificates, in reduction of the Certificate Balance thereof, an
amount equal to the Principal Distribution Amount (or the portion thereof
remaining after any distributions in respect of the Class A-1, Class A-2
and Class B Certificates on such Distribution Date), until the outstanding
Certificate Balance of the Class C Certificates has been reduced to zero;
(ix) ninth, to the Holders of 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) tenth, to the Holders of the Class D Certificates, in respect of
interest, up to an amount equal to the aggregate Interest Distribution
Amount in respect of such Class of Certificates for such Distribution
Date;
(xi) eleventh, after the Certificate Balances of the Class A, Class
B and Class C Certificates have been reduced to zero, to the Holders of
the Class D Certificates, in reduction of the Certificate Balance thereof,
an amount equal to the Principal Distribution Amount (or the portion
thereof remaining after any distributions in respect of the Class A-1 and
Class A-2, Class B and Class C Certificates on such Distribution Date),
until the outstanding Certificate Balance of the Class D Certificates has
been reduced to zero;
(xii) twelfth, to the Holders of 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) thirteenth, to the Holders of the Class E Certificates, in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(xiv) fourteenth, after the Certificate Balances of the Class A,
Class B, Class C and Class D Certificates have been reduced to zero, to
the Holders of the Class E Certificates, in reduction of the Certificate
Balance thereof, an amount equal to the Principal Distribution Amount (or
the portion thereof remaining after any distributions in respect of the
Class X-0, Xxxxx X-0, Class B, Class C and Class D Certificates on such
Distribution Date), until the outstanding Certificate Balance of the Class
E Certificates has been reduced to zero;
(xv) fifteenth, to the Holders of 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) sixteenth, to the Holders of the Class F Certificates, in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(xvii) seventeenth, after the Certificate Balances of the Class A,
Class B, Class C, Class D and Class E Certificates have been reduced to
zero, to the Holders of the Class F Certificates, in reduction of the
Certificate Balance thereof, an amount equal to the Principal Distribution
Amount (or the portion thereof remaining after any distributions in
respect of the Class X-0, Xxxxx X-0, Class B, Class C, Class D and Class E
Certificates on such Distribution Date), until the outstanding Certificate
Balance of the Class F Certificates has been reduced to zero;
(xviii) eighteenth, to the Holders of 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) nineteenth, to the Holders of the Class G Certificates in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(xx) twentieth, after the Certificate Balances of the Class A, Class
B, Class C, Class D, Class E and Class F Certificates have been reduced to
zero, to the Holders of the Class G Certificates, in reduction of the
Certificate Balance thereof, an amount equal to the Principal Distribution
Amount (or the portion thereof remaining after any distributions in
respect of the Class X-0, Xxxxx X-0, Class B, Class C, Class D, Class E
and Class F Certificates on such Distribution Date), until the outstanding
Certificate Balance of the Class G Certificates has been reduced to zero;
(xxi) twenty-first, to the Holders of 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) twenty-second, to the Holders of the Class H Certificates in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(xxiii) twenty-third, after the Certificate Balances of the Class A,
Class B, Class C, Class D, Class E, Class F and Class G Certificates have
been reduced to zero, to the Holders of the Class H Certificates, in
reduction of the Certificate Balance thereof, an amount equal to the
Principal Distribution Amount (or the portion thereof remaining after any
distributions in respect of the Class X-0, Xxxxx X-0, Class B, Class C,
Class D, Class E, Class F and Class G Certificates on such Distribution
Date), until the outstanding Certificate Balance of the Class H
Certificates has been reduced to zero;
(xxiv) twenty-fourth, to the Holders of 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) twenty-fifth, to the Holders of the Class J Certificates in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(xxvi) twenty-sixth, after the Certificate Balances of the Class A,
Class B, Class C, Class D, Class E, Class F, Class G and Class H
Certificates have been reduced to zero, to the Holders of the Class J
Certificates, in reduction of the Certificate Balance thereof, an amount
equal to the Principal Distribution Amount (or the portion thereof
remaining after any distributions in respect of the Class X-0, Xxxxx X-0,
Class B, Class C, Class D, Class E, Class F, Class G and Class H
Certificates on such Distribution Date), until the outstanding Certificate
Balance of the Class J Certificates has been reduced to zero;
(xxvii) twenty-seventh, to the Holders of 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) twenty-eighth, to the Holders of the Class K Certificates
in respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(xxix) twenty-ninth, after the Certificate Balances of the Class A,
Class B, Class C, Class D, Class E, Class F, Class G, Class H and Class J
Certificates have been reduced to zero, to the Holders of the Class K
Certificates, in reduction of the Certificate Balance thereof, an amount
equal to the Principal Distribution Amount (or the portion thereof
remaining after any distributions in respect of the Class X-0, Xxxxx X-0,
Class B, Class C, Class D, Class E, Class F, Class G, Class H and Class J
Certificates on such Distribution Date), until the outstanding Certificate
Balance of the Class K Certificates has been reduced to zero;
(xxx) thirtieth, to the Holders of 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) thirty-first, to the Holders of the Class L Certificates in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(xxxii) thirty-second, after the Certificate Balances of the Class
A, Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class J
and Class K Certificates have been reduced to zero, to the Holders of the
Class L Certificates, in reduction of the Certificate Balance thereof, an
amount equal to the Principal Distribution Amount (or the portion thereof
remaining after any distributions in respect of the Class X-0, Xxxxx X-0,
Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class J and
Class K Certificates on such Distribution Date), until the outstanding
Certificate Balance of the Class L Certificates has been reduced to zero;
(xxxiii) thirty-third, to the Holders of 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) thirty-fourth, to the Holders of the Class M Certificates in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(xxxv) thirty-fifth, after the Certificate Balances of the Class A,
Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class J,
Class K and Class L Certificates have been reduced to zero, to the Holders
of the Class M Certificates, in reduction of the Certificate Balance
thereof, an amount equal to the Principal Distribution Amount (or the
portion thereof remaining after any distributions in respect of the Class
X-0, Xxxxx X-0, Class B, Class C, Class D, Class E, Class F, Class G,
Class H, Class J, Class K and Class L Certificates on such Distribution
Date), until the outstanding Certificate Balance of the Class M
Certificates has been reduced to zero;
(xxxvi) thirty-sixth, to the Holders of 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) thirty-seventh, to the Holders of the Class N Certificates
in respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(xxxviii) thirty-eighth, after the Certificate Balances of the Class
A, Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class J,
Class K, Class L and Class M Certificates have been reduced to zero, to
the Holders of the Class N Certificates, in reduction of the Certificate
Balance thereof, an amount equal to the Principal Distribution Amount (or
the portion thereof remaining after any distributions in respect of the
Class X-0, Xxxxx X-0, Class B, Class C, Class D, Class E, Class F, Class
G, Class H, Class J, Class K, Class L and Class M Certificates on such
Distribution Date), until the outstanding Certificate Balance of the Class
N Certificates has been reduced to zero;
(xxxix) thirty-ninth, to the Holders of 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; and
(xl) fortieth, to the Holders of the Class NR Certificates in
respect of interest, up to an amount equal to the aggregate Interest
Distribution Amount in respect of such Class of Certificates for such
Distribution Date;
(xli) forty-first, after the Certificate Balances of the Class A,
Class B, Class C, Class D, Class E, Class F, Class G, Class H, Class J,
Class K, Class L Class M and Class N Certificates have been reduced to
zero, to the Holders of the Class NR Certificates, in reduction of the
Certificate Balance thereof, an amount equal to the Principal Distribution
Amount (or the portion thereof remaining after any distributions in
respect of the Class X-0, Xxxxx X-0, Class B, Class C, Class D, Class E,
Class F, Class G, Class H, Class J, Class K, Class L Class M and Class N
Certificates on such Distribution Date), until the outstanding Certificate
Balance of the Class NR Certificates has been reduced to zero;
(xlii) forty-second, to the Holders of the Class NR Certificates,
until all amounts of Collateral Support Deficit previously allocated to
the Class NR Certificates, but not previously reimbursed, have been
reimbursed in full; and
(xliii) forty-third, to the Holders of the Class R Certificates, the
amount, if any, of the Available Distribution Amount remaining in the
Upper-Tier Distribution Account with respect to such Distribution Date.
On each Distribution Date, to the extent of the Simon Available
Distribution Amount remaining after the distributions in respect of the Simon
Pooled Component pursuant to Section 4.01(j)(i)-(iii) and Section
4.01(k)(i)-(iii), the Trustee shall distribute to the Holders of the Class S-1,
Class S-2 and Class S-3 Certificates the amounts distributed in respect of the
Related Uncertificated Lower-Tier Interests as specified in Sections
4.01(j)(iv)-(x) and 4.01(k)(iv)-(xii).
If, in connection with any Distribution Date, the Trustee has
reported the amount of an anticipated distribution to DTC based on the receipt
of payments as of the Determination Date and additional balloon payments or
unscheduled principal payments are subsequently received, the Trustee will use
commercially reasonable efforts to cause DTC to make the revised distribution on
a timely basis on such Distribution Date. Neither the Servicer, the Special
Servicer nor the Trustee shall be liable or held responsible for any resulting
delay in the making of such distribution to Certificateholders solely on the
basis of the actions described in the preceding sentence.
Notwithstanding the foregoing, on and after the Distribution Date on
which the Certificate Balances of the Subordinate Certificates have all been
reduced to zero, the Principal Distribution Amount will be distributed to the
Class A-1 and Class A-2, Certificates, pro rata, based on their respective
Certificate Principal Balances, in reduction of their respective Certificate
Principal Balances, until the Certificate Principal Balance of each such Class
is reduced to zero, and any unreimbursed amounts of Realized Losses previously
allocated to such Classes, if available, will be distributed pro rata based on
their respective Certificate Principal Balances.
(b) On each Distribution Date, each Uncertificated Lower-Tier
Interest shall be deemed to receive distributions 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 actually distributable
to its respective Related Certificates as provided in Sections 4.01(a) and (c)
(in the case of (i) The Class A-1 Certificates, first to the Class LA-1-1
Uncertificated Interest, second, to the Class LA-1-2 Uncertificated Interest,
third, to the Class LA-1-3 Uncertificated Interest, fourth, to the Class LA-1-4
Uncertificated Interest, fifth, to the Class LA-1-5 Uncertificated Interest and
sixth, to the Class LA-1-6 Uncertificated Interest, in each case until reduced
to zero (ii) the Class A-2 Certificates, first to the Class LA-2-1
Uncertificated Interest and second to the Class LA-2-2 Uncertificated Interest,
in each case, until reduced to zero, (iii) the Class G Certificates, first to
the Class LG-1 Uncertificated Interest, and then to the Class LG-2
Uncertificated Interest, in each case, until reduced to zero, (iv) the Class H
Certificates, first to the Class LH-1 Uncertificated Interest, second to the
Class LH-2 Uncertificated Interest and then to the Class LH-3 Uncertificated
Lower Tier-Interest, in each case, until reduced to zero and the Class J
Certificates, first to the Class LJ-1 Uncertificated Interest, and then to the
Class LJ-2 Uncertificated Interest, in each case, until reduced to zero). 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
Interest Distribution Amount in respect of its Related Certificates (in the case
of each of (i) the Class LA-2-1 and Class LA-2-2 Uncertificated Interests, (ii)
the Class LG-1 and Class LG-2 Uncertificated Interests and (iii) the Class LH-1,
Class LH-2 and Class LH-3 Uncertificated Interests and (iv) the Class LJ-1 and
LJ-2 Uncertificated Interests, pro rata, based on their respective Certificate
Balances) and its related Component of the Class X-1 Certificates and Class X-2
Certificates, in each case to the extent actually distributable thereon as
provided in Section 4.01(a). For this purpose, interest distributed on the Class
X-1 Certificates and Class X-2 Certificates shall be treated as having been paid
to their respective Components, pro rata, based on the interest accrued with
respect thereto at its Class X-1 Strip Rate or Class X-2 Strip Rate. Such
amounts distributed to the Uncertificated Lower-Tier Interests in respect of
principal and interest with respect to any Distribution Date are referred to
herein collectively as the "Lower-Tier Distribution Amount," and shall be made
by the Trustee by depositing such Lower-Tier Distribution Amount in the
Upper-Tier Distribution Account.
As of any date, the principal balance of each Uncertificated
Lower-Tier Interest equals the Certificate Balance of the Related Certificates
with respect thereto (in the case of the aggregate of (i) 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
Interest, the Class A-1 Certificates, (ii) the Class LA-2-1 and Class LA-2-2
Uncertificated Interests, the Class A-2 Certificates, (iii) the Class LG-1 and
Class LG-2 Uncertificated Interests, the Class G Certificates, (iv) the Class
LH-1, Class LH-2 and Class LH-3 Uncertificated Interests, the Class H
Certificates and (v) the Class LJ-1 and Class LJ-2 Uncertificated Interest, the
Class J Certificates), as adjusted for the allocation of Collateral Support
Deficits as provided in Section 4.04(c) and of Certificate Deferred Interest as
provided in Section 4.06(c). The initial principal balance of each
Uncertificated Lower-Tier Interest equals the respective Original Lower-Tier
Principal Amount. The pass-through rate with respect to each Uncertificated
Lower-Tier Interest will be the rate per annum set forth in the Preliminary
Statement hereto.
Any amount that remains in the Lower-Tier Distribution Account on
each Distribution Date after distribution of the Lower-Tier Distribution Amount
and distribution of Yield Maintenance Charges pursuant to Section 4.01(d)(iii)
shall be distributed to the Holders of the Class LR Certificates (but only to
the extent of the Available Distribution Amount for such Distribution Date
remaining in the Lower-Tier Distribution Account, if any).
(c) On and after the Distribution Date on which the Certificate
Balances of the Subordinate Certificates have all been reduced to zero (without
regard to any amounts of Collateral Support Deficit remaining unreimbursed), the
Principal Distribution Amount will be distributed, pro rata (based upon
Certificate Balances), among the Class A-1 and Class A-2 Certificates without
regard to the priorities set forth in Section 4.01(a)(ii).
(d) (i) On each Distribution Date, Yield Maintenance Charges
calculated by reference to a U.S. treasury rate collected during the related Due
Period will be distributed by the Trustee to the following Classes: to the Class
A-1 Certificates, Class A-2 Certificates, Class B Certificates, Class C
Certificates, Class D Certificates, Class E Certificates, Class F Certificates
and the Class G 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 Certificates, Class A-2 Certificates, Class B
Certificates, Class C Certificates, Class D Certificates, Class E Certificates,
Class F Certificates, Class G Certificates, Class H Certificates, Class J
Certificates, Class K Certificates, Class L Certificates, Class M Certificates,
Class N Certificates and Class NR Certificates on such Distribution Date, (b)
the Base Interest Fraction for the related principal payment on such Class of
Certificates, and (c) the aggregate amount of Yield Maintenance Charges
calculated by reference to a U.S. treasury rate collected on such principal
prepayments during the related Due Period. Any Yield Maintenance Charge
collected during the related Due Period remaining after such distributions will
be distributed to the holders of the Class X-1 Certificates.
(ii) No Yield Maintenance Charge will be distributed to the holders
of the Class G, Class H, Class J, Class K, Class L, Class M, Class N,
Class NR or Residual Certificates. After the Certificate Balances of the
Class A-1 Certificates, Class A-2 Certificates, Class B Certificates,
Class C Certificates, Class D Certificates, Class E and Class F
Certificates have been reduced to zero, all Yield Maintenance Charges with
respect to the Mortgage Loans shall be distributed to the holders of the
Class X-1 Certificates.
(iii) All distributions of Yield Maintenance Charges collected
during the related Due Period that represent Yield Maintenance Charges
actually collected on the Simon Mortgage Loan shall be deemed to be
distributed from the Loan REMIC to the Lower-Tier REMIC in respect of the
Loan REMIC Pooled Regular Interest (whether or not the Loan REMIC Pooled
Regular Interest has received all distributions of interest and principal
to which it is entitled). All distributions of Yield Maintenance Charges
made in respect of the respective Classes of Regular Certificates on each
Distribution Date pursuant to Section 4.01(d)(i) shall first be deemed to
be distributed from the Lower-Tier REMIC to the Upper-Tier REMIC in
respect of the Uncertificated Lower-Tier Interests, pro rata based upon
the amount of principal distributed in respect of each Class of
Uncertificated Lower-Tier Interests for such Distribution Date pursuant to
Section 4.01(b) above.
(e) On each Distribution Date, the Trustee shall withdraw amounts
from the Gain-on-Sale Reserve Account and shall distribute such amounts to
reimburse the Holders of the Regular Certificates (in order of alphabetical
Class designation) up to an amount equal to all Collateral Support Deficits, if
any, previously deemed allocated to them and unreimbursed after application of
the Available Distribution Amount for such Distribution Date. Any amount in the
Gain-on-Sale Reserve Account with respect to the Simon Mortgage Loan shall be
applied to Simon Collateral Support Deficits in respect of the Simon Pooled
Component and Simon Non-Pooled Component, and any remaining amount thereof shall
be deemed distributed in respect of the Loan REMIC Residual Interest and
immediately contributed to the Lower-Tier REMIC to the portion of the
Gain-on-Sale Reserve Account held therein and applied as described in the
preceding sentence. Amounts paid from the Gain-on-Sale Reserve Account will not
reduce the Certificate Balances of the Classes receiving such distributions. Any
amounts remaining in the Gain-on-Sale Reserve Account after such distributions
shall be applied to offset future Collateral Support Deficits and Simon
Collateral Support Deficits and upon termination of the Trust Fund, any amounts
remaining in the Gain-on-Sale Reserve Account shall be distributed to the Class
LR Certificateholders.
(f) All distributions made with respect to each Class of
Certificates on each Distribution Date shall be allocated pro rata among the
outstanding Certificates in such Class based on their respective Percentage
Interests. Except as otherwise specifically provided in Sections 4.01(g),
4.01(h) and 9.01, all such distributions with respect to each Class on each
Distribution Date shall be made to the Certificateholders of the respective
Class of record at the close of business on the related Record Date and shall be
made by wire transfer of immediately available funds to the account of any such
Certificateholder at a bank or other entity having appropriate facilities
therefor, if such Certificateholder shall have provided the Trustee with wiring
instructions no less than five Business Days prior to the related Record Date
(which wiring instructions may be in the form of a standing order applicable to
all subsequent Distribution Dates). The final distribution on each Certificate
(determined without regard to any possible future reimbursement of Collateral
Support Deficit previously allocated to such Certificate) will be made in like
manner, but only upon presentation and surrender of such Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
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
Certificate Registrar, the Depositor, the Servicer, the Special Servicer or the
Underwriters 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 the related P&I Advance Determination Date, mail to each Holder on
such date of such Class of Certificates a notice to the effect that:
(i) the Trustee expects that the final distribution with respect to
such Class of Certificates will be made on such Distribution Date but only
upon presentation and surrender of such Certificates at the offices of the
Certificate Registrar or such other location therein specified; and
(ii) no interest shall accrue on such Certificates from and after
such Distribution Date.
Any funds not distributed to any Holder or Holders of Certificates of such Class
on such Distribution Date because of the failure of such Holder or Holders to
tender their Certificates shall, on such date, be set aside and held uninvested
in trust and credited to the account or accounts of the appropriate
non-tendering Holder or Holders. If any Certificates as to which notice has been
given pursuant to this Section 4.01(g) shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation in order to
receive the final distribution with respect thereto. If within one year after
the second notice all such Certificates shall not have been surrendered for
cancellation, the Trustee, directly or through an agent, shall take such steps
to contact the remaining non-tendering Certificateholders concerning the
surrender of their Certificates as it shall deem appropriate. The costs and
expenses of holding such funds in trust and of contacting such
Certificateholders following the first anniversary of the delivery of such
second notice to the non-tendering Certificateholders shall be paid out of such
funds. No interest shall accrue or be payable to any Certificateholder on any
amount held in trust hereunder by the Trustee as a result of such
Certificateholder's failure to surrender its Certificate(s) for final payment
thereof in accordance with this Section 4.01(g).
(h) Distributions in reimbursement of Collateral Support Deficit or
Simon Collateral Support Deficit previously allocated to the Regular
Certificates or Class S 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 that all distributions in reimbursement of
Collateral Support Deficit or Simon 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(g) as if such Holder had failed to surrender its Certificates.
(i) On each Distribution Date, any Excess Interest received during
the related Due Period with respect to the Mortgage Loans shall be distributed
to the holders of the Class NR Certificates from the Excess Interest
Distribution Account.
(j) For so long as (i) no monetary or material non-monetary event of
default (which will include any Servicing Transfer Event (other than pursuant to
clause (iv) of the definition of Servicing Transfer Event) that has occurred and
is continuing with respect to the Simon Mortgage Loan) under the Simon Mortgage
Loan has occurred and (ii) continuing and (iii) there are no unreimbursed
Advances outstanding as of the Distribution Date, on each Distribution Date, the
Trustee, in respect of the Loan REMIC Pooled Regular Interest, each Class of
Loan REMIC Non-Pooled Regular Interests and the Class LR Certificates, shall
(except as otherwise provided in Section 9.01), based on information provided by
the Servicer and the Special Servicer, be deemed to withdraw amounts on deposit
in the Loan REMIC Distribution Account, after payment of amounts payable from
the Loan REMIC Distribution Account in accordance with Section 3.05(b)(iii)
through (viii), to the extent related to the Simon Mortgage Loan, for the
following purposes and in the following order of priority, and shall be deemed
to deposit such amounts in the Lower-Tier Distribution Account in each case to
the extent of the remaining portion of the Simon Available Distribution Amount:
(i) as deemed distributions from the Loan REMIC to the Lower-Tier
REMIC in respect of the Loan REMIC Pooled Regular Interest, as part of the
Available Distribution Amount for such Distribution Date, up to all
Distributable Simon Pooled Component Interest for such Distribution Date,
and to the extent not previously paid, for all prior Distribution Dates;
(ii) as deemed distributions from the Loan REMIC to the Lower-Tier
REMIC in respect of the Loan REMIC Pooled Regular Interest, as part of the
Available Distribution Amount for such Distribution Date, up to an amount
equal to the product of (x) the Simon Principal Distribution Amount for
such Distribution Date, and (y) the Simon Pooled Percentage for such
Distribution Date;
(iii) as deemed distributions from the Loan REMIC to the Lower-Tier
REMIC in respect of the Loan REMIC Pooled Regular Interest, as part of the
Available Distribution Amount for such Distribution Date, as reimbursement
for any Simon Collateral Support Deficit, if any, previously allocated to
the Loan REMIC Pooled Regular Interest and for which no reimbursement has
previously been received;
(iv) as deemed distributions from the Loan REMIC to the Lower-Tier
REMIC in respect of the Class KS-1 Uncertificated Interest, in an amount
equal to the Interest Distribution Amount for the Class KS-1
Uncertificated Interest for such Distribution Date;
(v) as deemed distributions from the Loan REMIC to the Lower-Tier
REMIC in respect of the Class KS-2 Uncertificated Interest, in an amount
equal to the Interest Distribution Amount for the Class KS-2
Uncertificated Interest for such Distribution Date;
(vi) as deemed distributions from the Loan REMIC to the Lower-Tier
REMIC in respect of the Class KS-3 Uncertificated Interest, in an amount
equal to the Interest Distribution Amount for the Class KS-3
Uncertificated Interest for such Distribution Date;
(vii) as deemed distributions from the Loan REMIC to the Lower-Tier
REMIC in respect of the Class KS-1, KS-2 and KS-3 Uncertificated Interest,
pro rata based on their respective Loan REMIC Principal Amounts for such
Loan REMIC Non-Pooled Regular Interests immediately prior to such
Distribution Date, in reduction of the Loan REMIC Principal Amount
thereof, an amount equal to the product of (x) the Simon Principal
Distribution Amount for such Distribution Date and (y) the Simon
Non-Pooled Percentage for such Distribution Date until the outstanding
Loan REMIC Principal Amounts of the Class KS-1, KS-2 and KS-3
Uncertificated Interests have been reduced to zero;
(viii) as deemed distributions from the Loan REMIC to the Lower-Tier
REMIC in respect of the Class KS-1 Uncertificated Interest, in an amount
equal to, and in reimbursement of, a Simon Collateral Support Deficit, if
any, previously allocated to the Class KS-1 Uncertificated Interest and
for which no reimbursement has been previously received;
(ix) as deemed distributions from the Loan REMIC to the Lower-Tier
REMIC in respect of the Class KS-2 Uncertificated Interest, in an amount
equal to, and in reimbursement of, a Simon Collateral Support Deficit, if
any, previously allocated to the Class KS-2 Uncertificated Interest and
for which no reimbursement has been previously received;
(x) as deemed distributions from the Loan REMIC to the Lower-Tier
REMIC in respect of the Class KS-3 Uncertificated Interest, in an amount
equal to, and in reimbursement of, a Simon Collateral Support Deficit, if
any, previously allocated to the Class KS-3 Uncertificated Interest and
for which no reimbursement has been previously received; and
(xi) to make distributions to the Holders of the Class LR
Certificates in respect of the Loan REMIC Residual Interest, up to an
amount equal to the excess, if any, of (A) the aggregate distributions
made on the Simon Mortgage Loan on such Distribution Date, over (B) the
sum of (1) the aggregate distributions deemed made in respect of the Loan
REMIC Pooled Regular Interest on such Distribution Date pursuant to
clauses (i), (ii) and (iii) of this Section 4.01(j) and (2) the aggregate
distributions made in respect of the Loan REMIC Non-Pooled Regular
Interests on such Distribution Date pursuant to clauses (iv) through (x)
of this Section 4.01(j).
The amounts to be applied pursuant to clauses (i), (ii) and (iii)
above will be included as part of the Available Distribution Amount for the
subject Distribution Date and will be applied as described above to make
distributions on the Certificates.
(k) If a monetary or material non-monetary event of default (which
will include any Servicing Transfer Event (other than pursuant to clause (iv) of
the definition of Servicing Transfer Event) that has occurred and is continuing
with respect to the Simon Mortgage Loan) has occurred and is continuing with
respect to the Simon Mortgage Loan or there are outstanding unreimbursed
Advances as of the Distribution Date, on each Distribution Date, the Trustee, in
respect of the Loan REMIC Pooled Regular Interest, each Class of Loan REMIC
Non-Pooled Regular Interests and the Class LR Certificates, shall (except as
otherwise provided in Section 9.01), based on information provided by the
Servicer and the Special Servicer, be deemed to withdraw amounts on deposit in
the Loan REMIC Distribution Account, after payment of amounts payable from the
Loan REMIC Distribution Account in accordance with Section 3.05(b)(iii) through
(viii), to the extent related to the Simon Mortgage Loan, for the following
purposes and in the following order of priority, and shall be deemed to deposit
such amounts in the Lower-Tier Distribution Account in each case to the extent
of the remaining portion of the Simon Available Distribution Amount (the "Simon
Default Distribution Priority"):
(i) as deemed distributions from the Loan REMIC to the Lower-Tier
REMIC in respect of the Loan REMIC Pooled Regular Interest, as part of the
Available Distribution Amount for such Distribution Date, up to all
Distributable Simon Pooled Component Interest for such Distribution Date,
and to the extent not previously paid, for all prior Distribution Dates;
(ii) as deemed distributions from the Loan REMIC to the Lower-Tier
REMIC in respect of the Loan REMIC Pooled Regular Interest, as part of the
Available Distribution Amount for such Distribution Date, up to an amount
equal to the product of (X) the Simon Principal Distribution Amount for
such Distribution Date, and (Y) the Simon Pooled Percentage for such
Distribution Date until the Simon Pooled Balance is reduced to zero;
(iii) as deemed distributions from the Loan REMIC to the Lower-Tier
REMIC in respect of the Loan REMIC Pooled Regular Interest, as part of the
Available Distribution Amount for such Distribution Date, as reimbursement
for any Simon Collateral Support Deficit, if any, previously allocated to
the Loan REMIC Pooled Regular Interest and for which no reimbursement has
previously been received;
(iv) as deemed distributions from the Loan REMIC to the Lower-Tier
REMIC in respect of the Class KS-1 Uncertificated Interest, in an amount
equal to the Interest Distribution Amount for the Class KS-1
Uncertificated Interest for such Distribution Date;
(v) as deemed distributions from the Loan REMIC to the Lower-Tier
REMIC in respect of the Class KS-2 Uncertificated Interest, in an amount
equal to the Interest Distribution Amount for the Class KS-2
Uncertificated Interest for such Distribution Date;
(vi) as deemed distributions from the Loan REMIC to the Lower-Tier
REMIC in respect of the Class KS-3 Uncertificated Interest, in an amount
equal to the Interest Distribution Amount for the Class KS-3
Uncertificated Interest for such Distribution Date;
(vii) after the Loan REMIC Principal Amount of the Loan REMIC Pooled
Regular Interest has been reduced to zero, as deemed distributions from
the Loan REMIC to the Lower-Tier REMIC in respect of the Class KS-1
Uncertificated Interest, in reduction of the Loan REMIC Principal Amount
thereof, an amount equal to the Simon Principal Distribution Amount (or
the portion thereof remaining after any distributions in respect of the
Loan REMIC Pooled Regular Interest on such Distribution Date), until the
outstanding Loan REMIC Principal Amount of the Class KS-1 Uncertificated
Interests have been reduced to zero;
(viii) after the Loan REMIC Principal Amount of the Class KS-1
Uncertificated Interests has been reduced to zero, as deemed distributions
from the Loan REMIC to the Lower-Tier REMIC in respect of the Class KS-2
Uncertificated Interest, in reduction of the Loan REMIC Principal Amount
thereof, an amount equal to the Simon Principal Distribution Amount (or
the portion thereof remaining after any distributions in respect of the
Loan REMIC Pooled Regular Interest and the Class KS-1 Uncertificated
Interests on such Distribution Date), until the outstanding Loan REMIC
Principal Amount of the Class KS-2 Uncertificated Interests have been
reduced to zero;
(ix) after the Loan REMIC Principal Amount of the Class KS-2
Uncertificated Interests has been reduced to zero, as deemed distributions
from the Loan REMIC to the Lower-Tier REMIC in respect of the Class KS-3
Uncertificated Interest, in reduction of the Loan REMIC Principal Amount
thereof, an amount equal to the product of (x) the Simon Principal
Distribution Amount for such Distribution Date (or the portion thereof
remaining after any distributions in respect of the Class KS-1 and Class
KS-2 Uncertificated Interests on such Distribution Date) and (y) the Simon
Non-Pooled Percentage for such Distribution Date until the KS-3
Uncertificated Interests have been reduced to zero;
(x) as deemed distributions from the Loan REMIC to the Lower-Tier
REMIC in respect of the Class KS-1 Uncertificated Interest, in an amount
equal to, and in reimbursement of, a Simon Collateral Support Deficit, if
any, previously allocated to the Class KS-1 Uncertificated Interest and
for which no reimbursement has been previously received;
(xi) as deemed distributions from the Loan REMIC to the Lower-Tier
REMIC in respect of the Class KS-2 Uncertificated Interest, in an amount
equal to, and in reimbursement of, a Simon Collateral Support Deficit, if
any, previously allocated to the Class KS-2 Uncertificated Interest and
for which no reimbursement has been previously received;
(xii) as deemed distributions from the Loan REMIC to the Lower-Tier
REMIC in respect of the Class KS-3 Uncertificated Interest, in an amount
equal to, and in reimbursement of, a Simon Collateral Support Deficit, if
any, previously allocated to the Class KS-3 Uncertificated Interest and
for which no reimbursement has been previously received; and
(xiii) to make distributions to the Holders of the Class LR
Certificates in respect of the Loan REMIC Residual Interest, up to an
amount equal to the excess, if any, of (A) the aggregate distributions
made on the Simon Mortgage Loan on such Distribution Date, over (B) the
sum of (1) the aggregate distributions deemed made in respect of the Loan
REMIC Pooled Regular Interest on such Distribution Date pursuant to
clauses (i), (ii) and (iii) of this Section 4.01(j) and (2) the aggregate
distributions made in respect of the Loan REMIC Non-Pooled Regular
Interests on such Distribution Date pursuant to clauses (iv) through (xii)
of this Section 4.01(k).
The amounts to be applied pursuant to clauses (i), (ii) and (iii)
above will be included as part of the Available Distribution Amount for the
subject Distribution Date and will be applied as described above to make
distributions on the Certificates.
(l) All distributions made in respect of any Class of Class S
Certificates on each Distribution Date pursuant to Section 4.01(a) or Section
9.01 shall be deemed to have first been distributed from the Related
Uncertificated Lower-Tier Interests and Related Loan REMIC Regular Interests. In
each case, if such distribution on any such Class of Class S Certificates was a
distribution of interest or principal or in reimbursement of previously
allocated Collateral Support Deficit in respect of such Class of Class S
Certificates, then the corresponding distribution deemed to be first made on a
Related Loan REMIC Regular Interest and then on the Related Uncertificated
Lower-Tier Interest pursuant to the preceding sentence shall be deemed to also
be a distribution of interest or principal or in reimbursement of previously
allocated Collateral Support Deficits, as the case may be, in respect of the
Related Uncertificated Lower-Tier Interests and Related Loan REMIC Regular
Interests.
(m) On each Distribution Date, the Companion Paying Agent (based
upon a statement of the Servicer to be delivered to the Trustee and the
Companion Paying Agent that specifies the amount required to be deposited in the
Companion Distribution Account and any amounts payable to the Servicer from the
Companion Distribution Account pursuant to this Section 4.01(m)) shall make
withdrawals and payments from the Companion Distribution Account for the related
Companion Loans in the following order of priority:
(i) to pay the Trustee or any of its directors, officers, employees
and agents, as the case may be, any amounts payable or reimbursable to any
such Person pursuant to Section 8.05, to the extent any such amounts
relate solely to a Loan Pair;
(ii) to pay to the Servicer any amounts deposited by the Servicer in
the Companion Distribution Account not required to be deposited therein;
(iii) on each Distribution Date, to pay all amounts remaining in the
Companion Distribution Account to the Companion Holder; and
(iv) to clear and terminate the Companion Distribution Account at
the termination of this Agreement pursuant to Section 9.01.
All distributions from the Companion Distribution Account required
hereunder shall be made by the Companion Paying Agent to the Companion Holder by
wire transfer in immediately available funds to the account of such Companion
Holder or an agent therefor appearing on the Companion Register on the related
Record Date (or, if no such account so appears or information relating thereto
is not provided at least five Business Days prior to the related Record Date, by
check sent by first-class mail to the address of such Companion Holder or its
agent appearing on the Companion Register). Any such account shall be located at
a commercial bank in the United States.
Section 4.02 Statements to Certificateholders; CMSA Investor
Reporting Package (IRP)s.
(a) On each Distribution Date, the Trustee shall forward or make
available to any Interested Person a statement (substantially in the form set
forth as Exhibit G hereto and based on the information supplied to the Trustee
in the related CMSA Investor Reporting Package (IRP) in accordance with CMSA
guidelines) as to the distributions made on such Distribution Date (each, a
"Statement to Certificateholders") setting forth:
(i) the amount of the distribution on such Distribution Date to the
Holders of such Class of Certificates in reduction of the Certificate
Balance thereof;
(ii) the amount of the distribution on such Distribution Date to the
Holders of such Class of Certificates allocable to Distributable
Certificate Interest;
(iii) the aggregate amount of Advances made during the period from
but not including the previous Distribution Date to and including such
Distribution Date and a detailed report of P&I Advances as of the
Determination Date together with details of P&I Advances as of the P&I
Advance Date;
(iv) the aggregate amount of compensation paid to the Trustee and
servicing compensation paid to the Servicer and the Special Servicer with
respect to the Due Period for such Determination Date together with
detailed calculations of servicing compensation paid to Servicer;
(v) the aggregate Stated Principal Balance of the Mortgage Loans and
any REO Loans outstanding immediately before and immediately after such
Distribution Date;
(vi) the number of loans, their aggregate principal balance,
weighted average remaining term to maturity and weighted average Mortgage
Rate of the Mortgage Loans as of the end of the related Due Period for
such Distribution Date;
(vii) the number and aggregate principal balance of Mortgage Loans
(A) delinquent 30-59 days, (B) delinquent 60-89 days, (C) delinquent 90
days or more, (D) current but specially serviced or in foreclosure but not
REO Property and (E) for which the related Mortgagor is subject to
oversight by a bankruptcy court;
(viii) the value of any REO Property included in the Trust Fund as
of the end of the related Due Period for such Distribution Date, based on
the most recent Appraisal or valuation;
(ix) the Available Distribution Amount for such Distribution Date;
(x) the Accrued Certificate Interest in respect of such Class of
Certificates for such Distribution Date, separately identifying any
Certificate Deferred Interest for such Distribution Date allocated to such
Class of Certificates;
(xi) the amount of the distribution on such Distribution Date to the
Holders of such Class of Certificates allocable to (A) Yield Maintenance
Charges and (B) Excess Interest;
(xii) the Pass-Through Rate for such Class of Certificates for such
Distribution Date and the next succeeding Distribution Date;
(xiii) the Scheduled Principal Distribution Amount and the
Unscheduled Principal Distribution Amount for such Distribution Date;
(xiv) the Certificate Balance or Notional Amount, as the case may
be, of each Class of Certificates immediately before and immediately after
such Distribution Date, separately identifying any reduction therein as a
result of the allocation of any Collateral Support Deficit or Simon
Collateral Support Deficit on such Distribution Date and the aggregate
amount of all reductions as a result of allocations of Collateral Support
Deficits to date;
(xv) the Certificate Factor for each Class of Regular Certificates
and Class S Certificates immediately following such Distribution Date;
(xvi) the amount of any Appraisal Reductions effected in connection
with such Distribution Date on a loan-by-loan basis and the total
Appraisal Reduction effected in connection with such Distribution Date,
together with a detailed worksheet showing the calculation of each
Appraisal Reduction on a current and cumulative basis;
(xvii) the number and related Stated Principal Balance of any
Mortgage Loans extended or modified since the previous Determination Date
(or in the case of the first Distribution Date, as of the Cut-off Date) on
a loan-by-loan basis;
(xviii) the amount of any remaining Class Unpaid Interest Shortfall
for such Class as of such Distribution Date;
(xix) a loan-by-loan listing of each Mortgage Loan which was the
subject of a Principal Prepayment since the previous Determination Date
(or in the case of the first Distribution Date, as of the Cut-off Date)
and the amount and the type of Principal Prepayment occurring;
(xx) a loan-by-loan listing of each Mortgage Loan which was defeased
since the previous Determination Date (or in the case of the first
Distribution Date, as of the Cut-off Date);
(xxi) all deposits into, withdrawals from, and the balance of the
Interest Reserve Account on the P&I Advance Date;
(xxii) in the case of the Residual Certificates, the amount of any
distributions on such Certificates pursuant to Sections 4.01(a) and (b);
(xxiii) the amount of the distribution on such Distribution Date to
the Holders of such Class of Certificates in reimbursement of previously
allocated Collateral Support Deficit or Simon Collateral Support Deficit;
(xxiv) the aggregate unpaid principal balance of the Mortgage Loans
outstanding as of the close of business on the related Determination Date;
(xxv) with respect to any Mortgage Loan as to which a Liquidation
Event occurred since the previous Determination Date (or in the case of
the first Distribution Date, as of the Cut-off Date) or prior to the
related Determination Date (other than a payment in full), (A) the loan
number thereof, (B) the aggregate of all Liquidation Proceeds and other
amounts received in connection with such Liquidation Event (separately
identifying the portion thereof allocable to distributions on the
Certificates), and (C) the amount of any Collateral Support Deficit or
Simon Collateral Support Deficit in connection with such Liquidation
Event;
(xxvi) with respect to any REO Property included in the Trust Fund
as to which a Final Recovery Determination was made during the related Due
Period or prior to the Determination Date, (A) the loan number of the
related Mortgage Loan, (B) the aggregate of all Liquidation Proceeds and
other amounts received in connection with such Final Recovery
Determination (separately identifying the portion thereof allocable to
distributions on the Certificates), and (C) the amount of any Collateral
Support Deficit in respect of the related REO Loan in connection with such
Final Recovery Determination;
(xxvii) the aggregate and loan-by-loan amount of interest on P&I
Advances paid to the Servicer, Special Servicer and the Trustee since the
previous Determination Date (or in the case of the first Distribution
Date, as of the Cut-off Date);
(xxviii) the aggregate and loan-by-loan amount of interest on
Servicing Advances paid to the Servicer, the Special Servicer and the
Trustee since the previous Determination Date (or in the case of the first
Distribution Date, as of the Cut-off Date);
(xxix) the original and then current credit support levels for each
Class of Certificates;
(xxx) the original and then current ratings for each Class of
Regular Certificates;
(xxxi) the amount of the distribution on the Distribution Date to
the Holders of the Residual Certificates; and
(xxxii) the aggregate amount of Yield Maintenance Charges collected
since the previous Determination Date (or in the case of the first
Distribution Date, as of the Cut-off Date).
In the case of information furnished pursuant to clauses (i), (ii),
(xi), (xvi) and (xviii) above, the amounts shall be expressed as a dollar amount
in the aggregate for all Certificates of each applicable Class and per
Definitive Certificate.
Within a reasonable period of time after the end of each calendar
year, the Trustee shall furnish to each Person who at any time during the
calendar year was a Holder of a Certificate, a statement containing the
information set forth in clauses (i), (ii) and (xi) above as to the applicable
Class, aggregated for such calendar year or applicable portion thereof during
which such person was a Certificateholder, together with such other information
as the Trustee deems necessary or desirable, or that a Certificateholder or
Certificate Owner reasonably requests, to enable Certificateholders to prepare
their tax returns for such calendar year. Such obligation of the Trustee 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 from time to time are in force.
On each Distribution Date, the Trustee shall make available to any
Interested Person via its website initially located at "xxx.xxxxxxx.xxx/xxxx"
(i) the related Statement to Certificateholders, (ii) the CSMA Loan Periodic
Update File, the CMSA Loan Setup File, the CMSA Bond Level File, the CMSA
Collateral Summary File, the CMSA Property File, the CMSA Financial File and
(iii) as a convenience to interested Persons (and not in furtherance of the
distribution thereof under the securities laws), the prospectus supplement, the
prospectus, and this agreement.
In addition, if the Depositor so directs the Trustee, and on terms
acceptable to the Trustee, the Trustee shall make certain other information and
reports related to the Mortgage Loans available through its internet website.
In addition, on each Distribution Date, the Trustee shall make
available, to any Privileged Person via its website, each of the "surveillance
reports" identified as such in the definition of "CMSA Investor Reporting
Package" to the extent delivered by the Servicer pursuant to this Agreement and
the Trustee's exception report as updated from time to time.
The Trustee makes no representations or warranties as to the
accuracy or completeness of any report, document or other information made
available on its Internet website and assumes no responsibility therefor. In
addition, the Trustee may disclaim responsibility for any information
distributed by it for which it is not the original source.
In connection with providing access to the Trustee's Internet
website, the Trustee may require registration and the acceptance of a
disclaimer. The Trustee shall not be liable for the dissemination of information
in accordance herewith. Questions regarding the Trustee's Internet website can
be directed to the Trustee's CMBS customer service desk at (000) 000-0000.
The Servicer may, at its sole cost and expense, make available by
electronic media, bulletin board service or Internet website (in addition to
making information available as provided herein) any reports or other
information the Servicer is required or permitted to provide to any party to
this Agreement, the Rating Agencies or any Certificateholder or prospective
Certificateholder to the extent such action does not conflict with the terms of
this Agreement, the terms of the Mortgage Loans or applicable law.
Notwithstanding this paragraph, the availability of such information or reports
on the Internet or similar electronic media shall not be deemed to satisfy any
specific delivery requirements in this Agreement except as set forth herein. In
connection with providing access to the Servicer's Internet website, the
Servicer shall take reasonable measures to ensure that only such parties listed
above may access such information including, without limitation, requiring
registration, a confidentiality agreement and acceptance of a disclaimer. The
Servicer shall not be liable for dissemination of this information in accordance
with this Agreement, provided that such information otherwise meets the
requirements set forth herein with respect to the form and substance of such
information or reports. The Servicer shall be entitled to attach to any report
provided pursuant to this subsection, any reasonable disclaimer with respect to
information provided, or any assumptions required to be made by such report.
Notwithstanding anything herein to the contrary, the Servicer may, at its sole
cost and expense, make available by electronic media, bulletin board service or
Internet website any reports or other information the Servicer is required or
permitted to provide to any Mortgagor with respect to such Mortgagor's Mortgage
Loan to the extent such action does not conflict with the terms of this
Agreement, the terms of the Mortgage Loans or applicable law.
(b) The Special Servicer shall from time to time (and, in any event,
as may be reasonably required by the Servicer) provide the Servicer with such
information in its possession regarding the Specially Serviced Mortgage Loans
and REO Properties as may be necessary for the Servicer to prepare each report
and any supplemental information to be provided by the Servicer to the Trustee.
Neither the Trustee nor the Depositor shall have any obligation to recompute,
verify or recalculate the information provided thereto by the Servicer. Unless
the Trustee has actual knowledge that any report or file received from the
Servicer contains erroneous information, the Trustee is authorized to rely
thereon in calculating and making distributions to Certificateholders in
accordance with Section 4.01, preparing the statements to Certificateholders
required by Section 4.02(a) and allocating Collateral Support Deficit to the
Certificates in accordance with Section 4.04.
Notwithstanding the foregoing, the failure of the Servicer or
Special Servicer to disclose any information otherwise required to be disclosed
pursuant to this Section 4.02(b) or Section 4.02(c) shall not constitute a
breach of this Section 4.02(b) or of Section 4.02(c) to the extent the Servicer
or the Special Servicer so fails because such disclosure, in the reasonable
belief of the Servicer or the 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. The Servicer or the 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) As soon as reasonably practicable, upon the written request of
and at the expense of any Certificateholder, the Trustee shall provide the
requesting Certificateholder with such information that is in the Trustee's
possession or can reasonably be obtained by the Trustee as is requested by such
Certificateholder, for purposes of satisfying applicable reporting requirements
under Rule 144A under the Securities Act. Neither the Certificate Registrar nor
the Trustee shall have any responsibility for the sufficiency under Rule 144A or
any other securities laws of any available information so furnished to any
person including any prospective purchaser of a Certificate or any interest
therein, nor for the content or accuracy of any information so furnished which
was prepared or delivered to them by another.
(d) The information to which any Certificateholder is entitled is
limited to the information gathered and provided to the Certificateholder by the
parties hereto pursuant to this Agreement and by acceptance of any Certificate,
each Certificateholder agrees that except as specifically provided herein, no
Certificateholder shall contact any Mortgagor directly with respect to any
Mortgage Loan.
(e) (i) The Trustee, the Servicer and the Special Servicer shall
reasonably cooperate with the Depositor in connection with the Trust's
satisfying the reporting requirements under the Exchange Act. The Trustee shall
prepare on behalf of the Trust any Forms 8-K and 10-K customary for similar
securities as required by the Exchange Act and the Rules and Regulations of the
Securities and Exchange Commission thereunder, and the Trustee shall sign and
file (via the Securities and Exchange Commission's Electronic Data Gathering and
Retrieval System) such Forms on behalf of the Depositor. The Depositor hereby
grants to the Trustee a limited power of attorney to execute and file each such
documents on behalf of the Depositor. Such power of attorney shall continue
until the earlier of either (i) receipt by the Trustee from the Depositor of
written termination of such power of attorney and (ii) the termination of the
Trust. Notwithstanding the foregoing, in the event that the Securities and
Exchange Commission does not accept a Certification signed by the Depositor
where the related Form 10-K is signed by the Trustee on behalf of the Depositor,
the Trustee shall prepare such Form 10-K to be signed by the Depositor and the
Depositor shall sign such form.
(ii) Each Form 8-K shall be filed by the Trustee within 15 days
after each Distribution Date, including a copy of the Statement to the
Certificateholders for such Distribution Date as an exhibit thereto. Prior
to March 30th of each year (or such earlier date as may be required by the
Exchange Act and the Rules and Regulations of the Securities and Exchange
Commission), the Trustee shall file a Form 10-K, in substance as required
by applicable law or applicable Securities and Exchange Commission staff's
interpretations. Such Form 10-K shall include as exhibits the Servicer's
and the Special Servicer's annual statement of compliance described under
Section 3.13 and the accountant's report described under Section 3.14, in
each case to the extent they have been timely delivered to the Trustee. If
they are not so timely delivered, the Trustee shall file an amended Form
10-K including such documents as exhibits reasonably promptly after they
are delivered to the Trustee. The Trustee shall have no liability with
respect to any failure to properly prepare or file such periodic reports
resulting from or relating to the Trustee's inability or failure to obtain
any information not resulting from its own negligence, willful misconduct
or bad faith. The Form 10-K shall also include a certification in the form
attached hereto as Exhibit S (the "Certification"), which shall, except as
described below, be signed by the senior officer of the Depositor in
charge of securitization. Notwithstanding the foregoing, if the Securities
and Exchange Commission determines that the Certification may be executed
by multiple persons, the Trustee shall sign the Certification in respect
of the portion of items 1 through 3 thereof pertaining to the Stated
Principal Balance, Pass-Through Rate and principal and interest
distributions of the Certificates and the Servicer and Special Servicer
shall cause their respective senior officers in charge of servicing at the
Servicer and Special Servicer to sign the Certification in respect of
items 4 and 5 thereof, and the Trustee may rely on the Certification
signed by the Servicer and the Special Servicer to the same extent as
provided in subsection (iii) below.
(iii) In the event the Certification is to be signed by an officer
of the Depositor, the Trustee shall sign a certification (in the form
attached hereto as Exhibit T) for the benefit of the Depositor and its
officers, directors and Affiliates in respect of items 1 through 3 of the
Certification (provided, however, that the Trustee shall not undertake an
analysis of the accountant's report attached as an exhibit to the Form
10-K), and the Servicer and Special Servicer shall each sign a
certification (in the form attached hereto as Exhibit T) for the benefit
of the Depositor, the Trustee and their officers, directors and Affiliates
in respect of items 4 and 5 of the Certification. Each such certification
shall be delivered to the Depositor and the Trustee by March 15th of each
year (or if not a Business Day, the immediately preceding Business Day).
The Certification attached hereto as Exhibit S shall be delivered to the
Trustee for filing by March 20th of each year (or if not a Business Day,
the immediately preceding Business Day). In addition, (i) the Trustee
shall indemnify and hold harmless the Depositor and its officers,
directors and Affiliates from and against any losses, damages, penalties,
fines, forfeitures, reasonable and necessary legal fees and related costs,
judgments and other costs and expenses arising out of or based upon a
breach of the Trustee's obligations under this Section 4.02(e) or the
Trustee's negligence, bad faith or willful misconduct in connection
therewith, and (ii) the Servicer and Special Servicer shall each severally
and not jointly indemnify and hold harmless the Depositor, the Trustee and
their respective officers, directors and Affiliates from and against any
losses, damages, penalties, fines, forfeitures, reasonable and necessary
legal fees and related costs, judgments and other costs and expenses
arising out of or based upon a breach of the Servicer's or Special
Servicer's obligations of the Servicer or the Special Servicer, as the
case may be, under this Section 4.02(e) or the negligence, bad faith or
willful misconduct of the Servicer or the Special Servicer, as the case
may be, in connection therewith. If the indemnification provided for
herein is unavailable or insufficient to hold harmless the Depositor, then
(i) the Trustee agrees that it shall contribute to the amount paid or
payable to the Depositor as a result of the losses, claims, damages or
liabilities of the Depositor in such proportion as is appropriate to
reflect the relative fault of the Depositor on the one hand and the
Trustee on the other in connection with a breach of the Trustee's
obligations under this Section 4.02(e) or the Trustee's negligence, bad
faith or willful misconduct in connection therewith, (ii) the Servicer
agrees that it shall contribute to the amount paid or payable by the
Depositor as a result of the losses, claims, damages or liabilities of the
Depositor in such proportion as is appropriate to reflect the relative
fault of the Depositor on the one hand and the Servicer on the other in
connection with a breach of the Servicer's obligations under this Section
4.02(e) or the Servicer's negligence, bad faith or willful misconduct in
connection therewith and (iii) the Special Servicer agrees that it shall
contribute to the amount paid or payable by the Depositor as a result of
the losses, claims, damages or liabilities of the Depositor in such
proportion as is appropriate to reflect the relative fault of the
Depositor on the one hand and the Special Servicer on the other in
connection with a breach of the Servicer's obligations under this Section
4.02(e) or the Special Servicer's negligence, bad faith or willful
misconduct in connection therewith.
(iv) Upon any filing with the Securities and Exchange Commission,
the Trustee shall promptly deliver to the Depositor, Servicer and Special
Servicer a copy of any such executed report, statement or information.
(v) Prior to January 30 of the first year in which the Trustee is
able to do so under applicable law, the Trustee shall file a Form 15
Suspension Notification with respect to the Trust.
Section 4.03 P&I Advances.
(a) On or before 1:00 p.m., New York City time, on each P&I Advance
Date, the Servicer shall either (i) remit to the Trustee for deposit into the
Lower-Tier Distribution Account (or the Loan REMIC Distribution Account in the
case of the Simon Mortgage Loan) from its own funds an amount equal to the
aggregate amount of P&I Advances, if any, to be made in respect of the related
Distribution Date, (ii) apply amounts held in the Certificate Account for future
distribution to Certificateholders in subsequent months in discharge of any such
obligation to make P&I Advances or (iii) make P&I Advances in the form of any
combination of (i) and (ii) aggregating the total amount of P&I Advances to be
made. Any amounts held in the Certificate Account for future distribution and so
used to make P&I Advances shall be appropriately reflected in the Servicer's
records and replaced by the Servicer by deposit in the Certificate Account on or
before the next succeeding P&I Advance Determination Date (to the extent not
previously replaced through the deposit of Late Collections of the delinquent
principal and/or interest in respect of which such P&I Advances were made). The
Servicer shall notify the Trustee of (i) the aggregate amount of P&I Advances
for a Distribution Date and (ii) the amount of any Nonrecoverable P&I Advances
for such Distribution Date, on or before 2 Business Days prior to such
Distribution Date. If the Servicer fails to make a required P&I Advance by 1:00
p.m., New York City time, on any P&I Advance Date, an Event of Default as set
forth in clause (a)(i) of Section 7.01 shall occur and the Trustee shall make
such P&I Advance pursuant to Section 7.05 by noon, New York City time, on the
related Distribution Date, in each case unless the Servicer shall have cured
such failure (and provided written notice of such cure to the Trustee) by 11:00
a.m. on such Distribution Date.
(b) Subject to Sections 4.03(c) and (e) below, the aggregate amount
of P&I Advances to be made by the Servicer with respect to any Distribution Date
shall equal the aggregate of: (i) all Monthly Payments (in each case, net of
related Servicing Fees) other than Balloon Payments, that were due during the
related Due Period and delinquent as of the close of business on the Business
Day preceding the related P&I Advance Date (or not advanced by the Servicer or
any Sub-Servicer on behalf of the Servicer) and (ii) with respect to each
Mortgage Loan as to which the related Balloon Payment was due during or prior to
the related Due Period and was delinquent as of the end of the related Due
Period (including any REO Loan as to which the Balloon Payment would have been
past due), an amount equal to the Assumed Scheduled Payment therefor. Subject to
subsection (c) below, the obligation of the Servicer to make such P&I Advances
is mandatory, and with respect to any Mortgage Loan or REO Loan, shall continue
until the Distribution Date on which the proceeds, if any, received in
connection with a Liquidation Event or the disposition of the REO Property, as
the case may be, with respect thereto are to be distributed.
(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.
(d) In connection with the recovery of any P&I Advance out of the
Certificate Account or the Simon Collection Account, as applicable, pursuant to
Section 3.05(a), the Servicer shall be entitled to pay the Trustee and itself
(in that order of priority) as the case may be out of any amounts then on
deposit in the Certificate Account, interest at the Reimbursement Rate in effect
from time to time, accrued on the amount of such P&I Advance from the date made
to but not including the date of reimbursement; provided, however, that no
interest will accrue on any P&I Advance (i) made with respect to a mortgage loan
until after the related Due Date has passed and any applicable grace period has
expired or (ii) if the related Monthly Payment is received after the
Determination Date but on or prior to the related P&I Advance Date. The Servicer
shall reimburse itself or the Trustee, as the case may be, for any outstanding
P&I Advance as soon as practicably possible after funds available for such
purpose are deposited in the Certificate Account.
(e) Notwithstanding the foregoing, (i) neither the Servicer nor the
Trustee shall make an advance for Excess Interest, Yield Maintenance Charges,
Default Interest or Penalty Charges and (ii) if an Appraisal Reduction has been
made with respect to any Mortgage Loan then in the event of subsequent
delinquencies thereon, the interest portion of the P&I Advance in respect of
such Mortgage 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 (x) the amount of the interest portion
of such P&I Advance for such Mortgage Loan for such Distribution Date without
regard to this subsection (ii), and (y) a fraction, expressed as a percentage,
the numerator of which is equal to the Stated Principal Balance of such Mortgage
Loan immediately prior to such Distribution Date, net of the related Appraisal
Reduction, if any, and the denominator of which is equal to the Stated Principal
Balance of such Mortgage Loan immediately prior to such Distribution Date. For
purposes of the immediately preceding sentence, the Monthly Payment due on the
Maturity Date for a Balloon Mortgage Loan will be the amount that would be due
on such day based on the full amortization schedule used to calculate the
Monthly Payments thereon prior to the Maturity Date.
(f) In no event shall any of the Servicer or the Trustee be required
to make a P&I advance with respect to any Companion Loan.
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 and the
allocation of Certificate Deferred Interest pursuant to Section 4.06, the
Trustee shall calculate the amount, if any, by which (i) the aggregate Stated
Principal Balance of the Mortgage Loans (or in the case of the Simon Mortgage
Loan, the Simon Pooled Balance of the Simon Pooled Component after giving effect
to any allocations of Simon Collateral Support Deficit to the Simon Pooled
Component on such Distribution Date) and any REO Loans expected to be
outstanding immediately following such Distribution Date, is less than (ii) the
then aggregate Certificate Balance of the Regular Certificates after giving
effect to distributions of principal on such Distribution Date and the
allocation of Certificate Deferred Interest pursuant to Section 4.06 (any such
deficit, the "Collateral Support Deficit"). Any allocation of Collateral Support
Deficit to a Class of Regular Certificates shall be made by reducing the
Certificate Balance thereof by the amount so allocated. Any Collateral Support
Deficit allocated to a Class of Regular Certificates shall be allocated among
the respective Certificates of such Class in proportion to the Percentage
Interests evidenced thereby. 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 Certificate Balance of the Class of Certificates in
respect of which any such reimbursement is made.
(b) On each Distribution Date, the Certificate Balances of the
Regular Certificates will be reduced without distribution, as a write-off to the
extent of any Collateral Support Deficit, if any, allocable to such Certificates
with respect to such Distribution date. Any such write-off shall be allocated
first to the Class NR Certificates; second to the Class N Certificates; third to
the Class M Certificates; fourth to the Class L Certificates; fifth to the Class
K Certificates; sixth to the Class J Certificates; seventh to the Class H
Certificates; eighth to the Class G Certificates; ninth to the Class F
Certificates; tenth to the Class E Certificates; eleventh to the Class D
Certificates; twelfth to the Class C Certificates; thirteenth to the Class B
Certificates, in each case, until the remaining Certificate Balance of each such
Class of Certificates has been reduced to zero and fourteenth to the Class A-1
Certificates and the Class A-2 Certificates, pro rata (based upon Certificate
Balance), until the remaining Certificate Balances of such Classes of
Certificates have been reduced to zero.
(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 Amount
of the Related Uncertificated Lower-Tier Interest with respect thereto as a
write-off (in the case of (i) the Class A-1 Certificates, first, to the Class
LA-1-1 Uncertificated Interest, second, to the Class LA-1-2 Uncertificated
Interest, third, to the Class LA-1-3 Uncertificated Interest, fourth, to the
Class LA-1-4 Uncertificated Interest, fifth, to the Class LA-1-5 Uncertificated
Interest and sixth, to the Class LA-1-6 Uncertificated Interest, until reduced
to zero, (ii) the Class A-2 Certificates, first to the Class LA-2-1
Uncertificated Interest and second to the Class LA-2-2 Uncertificated Interest,
in each case, until reduced to zero, (iii) the Class G Certificates, first to
the Class LG-1 Uncertificated Interest, and then to the Class LG-2
Uncertificated Interest, in each case, until reduced to zero, (iv) the Class H
Certificates, first to the Class LH-1 Uncertificated Interest, second to the
Class LH-2 Uncertificated Interest and then to the Class LH-3 Uncertificated
Interest, in each case, until reduced to zero and (v) the Class J Certificates,
first to the Class LJ-1 Uncertificated Interest and then to the Class LJ-2
Uncertificated Interest, in each case, until reduced to zero).
(d) On each Distribution Date, immediately following the
distributions to be made on such date pursuant to Section 4.01 and the
allocation of Certificate Deferred Interest pursuant to Section 4.06, the
Trustee shall calculate the amount, if any, by which (i) the aggregate Stated
Principal Balance of the Simon Mortgage Loan expected to be outstanding
immediately following such Distribution Date, is less than (ii) the sum of (A)
the Simon Pooled Balance of the Simon Pooled Component and (B)the then aggregate
Certificate Balance of the Class S Certificates, in the case of clauses (A) and
(B), after giving effect to distributions of principal on such Distribution Date
and the allocation of Certificate Deferred Interest pursuant to Section 4.06
(any such deficit, the "Simon Collateral Support Deficit"). On each Distribution
Date, the Certificate Balances of the Class S Certificates and the Simon Pooled
Balance of the Simon Pooled Component will be reduced without distribution as a
write-off to the extent of any Simon Collateral Support Deficit, if any,
allocable to such Certificates or Simon Pooled Component with respect to such
Distribution Date. Any such write-offs shall be allocated first to the Class
KS-3 Uncertificated Interest; second to the Class KS-2 Uncertificated Interest;
third to the Class KS-1 Uncertificated Interest; and fourth to the Loan REMIC
Pooled Regular Interest, in each case in reduction of the Loan REMIC Principal
Amount thereof, until such Loan REMIC Principal Amount has been reduced to zero.
Section 4.05 Appraisal Reductions.
The aggregate Appraisal Reduction will be allocated by the Trustee
on each Distribution Date, only for purposes of determining the amount of P&I
Advances with respect to the related Mortgage Loan, to the Certificate Balance
of the Class NR, Class N, Class M, Class L, Class K, Class J, Class H, Class G,
Class F, Class E, Class D, Class C and Class B Certificates, in that order, up
to the amount of their respective Certificate Balances. On any Distribution
Date, an Appraisal Reduction that otherwise would be allocated to a Class of
Certificates will be allocated to the next most subordinate Class to the extent
that the Certificate Balance on such Distribution Date for such Class of
Certificates (prior to taking the Appraisal Reduction into account) is less than
the Appraisal Reduction for such Distribution Date. With respect to an Appraisal
Reduction on the Simon Mortgage Loan, such Appraisal Reduction will be applied,
prior to any application of such Appraisal Reduction to the Simon Pooled
Component, first to the Class S-3 Certificates, second to the Class S-2
Certificates, and third to the Class S-1 Certificates, and then to the Regular
Certificates in respect of the Simon Pooled Component in the priority set forth
in the first sentence of this Section 4.05.
Solely for purposes of selecting or replacing the Simon
Representative, the Certificate Balances of the Class S Certificates will be
reduced by any Appraisal Reductions with respect to the Simon Mortgage Loan, in
the order and priority set forth in Section 3.29(j).
Simon Collateral Support Deficits and additional Trust Fund expenses
allocable to the Simon Mortgage Loan will, after all the Classes of Class S
Certificates have been reduced to zero, reduce the Uncertificated Principal
Balance of the Loan REMIC Pooled Regular Interest corresponding to the Simon
Pooled Component.
Section 4.06 Certificate Deferred Interest.
(a) On each Distribution Date, the amount of interest distributable
to a Class of Certificates (other than the Class X Certificates) shall be
reduced by an amount equal to the amount of Mortgage Deferred Interest for all
Majority Mortgage Loans and the Simon Pooled Component for the Due Dates
occurring in the related Due Period allocated to such Class of Certificates or
Simon Pooled Component, such Mortgage Deferred Interest to be allocated first to
the Class NR Certificates, second to the Class N Certificates, third to the
Class M Certificates, fourth to the Class L Certificates, fifth to the Class K
Certificates, sixth to the Class J Certificates, seventh to the Class H
Certificates, eighth to the Class G Certificates, ninth to the Class F
Certificates; tenth to the Class E Certificates, eleventh to the Class D
Certificates; twelfth to the Class C Certificates; thirteenth to the Class B
Certificates, and fourteenth, pro rata (based upon Accrued Certificate
Interest), to the Class A-1 and Class A-2 Certificates, in each case up to the
respective Accrued Certificate Interest for each such Class of Certificates for
such Distribution Date. On each Distribution Date, the amount of interest
distributable to the Class S Certificates shall be reduced by an amount equal to
the amount of Mortgage Deferred Interest for the Simon Mortgage Loan for the Due
Date occurring in the related Due Period, such Mortgage Deferred Interest to be
allocated first to the Class S-3 Certificates, second to the Class S-2
Certificates, third to the Class S-1 Certificates, and fourth to the Simon
Pooled Component, which amounts allocated to the Simon Pooled Component will be
allocated to the Regular Certificates in the priority set forth in the preceding
sentence.
(b) On each Distribution Date, the Certificate Balances of 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 and Class NR Certificates, shall be increased
by the amount of the Certificate Deferred Interest allocated to such Class of
Certificates on such Distribution Date pursuant to Section 4.06(a) above. On
each Distribution Date the Certificate Deferred Interest allocable to (i) the
Class A-1 Certificates will be allocated to the Class LA-1-1 Uncertificated
Interest, the Class LA-1-2 Uncertificated Interest, the Class LA-1-3
Uncertificated Interest, the Class LA-1-4 Uncertificated Interest, the Class
LA-1-5 Uncertificated Interest and the Class LA-1-6 Uncertificated Interest,
(ii) the Class A-2 Certificates will be allocated to the Class LA-2-1
Uncertificated Interest and the Class LA-2-2 Uncertificated Interest, (iii) the
Class G Certificates will be allocable to the Class LG-1 Uncertificated Interest
and the Class LG-2 Uncertificated Interest, (iv) the Class H Certificates will
be allocated to the Class LH-1 Uncertificated Interest, the Class LH-2
Uncertificated Interest and the Class LH-3 Uncertificated Interest and (v) the
Class J Certificates will be allocable to the LJ-1 Uncertificated Interest and
the Class LJ-2 Uncertificated Interest, in each case pro rata, based upon the
Certificate Balance of such Uncertificated Lower-Tier Interests immediately
prior to such Distribution Date.
(c) With respect to any Distribution Date, any Certificate Deferred
Interest with respect to such Distribution Date allocated pursuant to Section
4.06(a) to a Class of Certificates shall be allocated in reduction of the amount
of interest distributable to the Related Uncertificated Lower-Tier Interest with
respect thereto (in the case of (i) the Class A-1 Certificates will be allocated
to the Class LA-1-1 Uncertificated Interest, the Class LA-1-2 Uncertificated
Interest, the Class LA-1-3 Uncertificated Interest, the Class LA-1-4
Uncertificated Interest, the Class LA-1-5 Uncertificated Interest and the Class
LA-1-6 Uncertificated Interest, (ii) the Class A-2 Certificates will be
allocated to the Class LA-2-1 Uncertificated Interest and the Class LA-2-2
Uncertificated Interest, (iii) the Class G Certificates will be allocable to the
Class LG-1 Uncertificated Interest and the Class LG-2 Uncertificated Interest,
(iv) the Class H Certificates will be allocated to the Class LH-1 Uncertificated
Interest, the Class LH-2 Uncertificated Interest and the Class LH-3
Uncertificated Interest and (v) the Class J Certificates will be allocated to
the Class LJ-1 Uncertificated Interest and the Class LJ-2 Uncertificated
Interest, in each case pro rata, based on interest accrued at the Pass-Through
Rate for the Related Certificates; provided, that no such allocation shall be
made in respect of the portion of such interest representing the related Class
X-1 Strip Rate or Class X-2 Strip Rate. On each Distribution Date, to the extent
provided in Section 4.06(b), Certificate Deferred Interest will be added to the
Lower-Tier Principal Amount of the Uncertificated Lower-Tier Interests in the
same manner as the interest thereon was reduced pursuant to the preceding
sentence.
(d) Any Mortgage Deferred Interest for the Simon Mortgage Loan shall
be allocated in reduction of the amount of interest distributable to, and will
be added to the Loan REMIC Principal Amount of, the Loan REMIC Regular
Interests, first to the Class KS-3 Uncertificated Interest; second to the Class
KS-2 Uncertificated Interest; third to the Class KS-1 Uncertificated Interest;
and fourth to the Loan REMIC Senior Regular Interest.
Section 4.07 Grantor Trust Reporting.
The parties intend that the portion of the Trust Fund constituting
the Grantor Trust, consisting of the Excess Interest allocable to the Mortgage
Loans, proceeds thereof held in the Collection Account pertaining to the Excess
Interest allocable to the Mortgage Loans and the Excess Interest Distribution
Account shall constitute, and that the affairs of the Trust Fund (exclusive of
the Loan REMIC, the Lower-Tier REMIC and the Upper-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 file or cause to be filed with
the Internal Revenue Service together with Form 1041 or such other form as may
be applicable and shall furnish or cause to be furnished, to the Class NR
Certificateholders, the amount of Excess Interest allocable to the Mortgage
Loans received, in the time or times and in the manner required by the Code.
[End of Article IV]
ARTICLE V
THE CERTIFICATES
Section 5.01 The Certificates.
(a) The Certificates will be substantially in the respective forms
annexed hereto as Exhibits A-1 through and including A-25. The Certificates will
be issuable in registered form only; provided, however, that in accordance with
Section 5.03 beneficial ownership interests in the Regular Certificates shall
initially be held and transferred through the book-entry facilities of the
Depository. The Class R and Class LR Certificates will each be issuable in one
or more registered, definitive physical certificates (each, a "Definitive
Certificate") substantially in the form of Certificates of each Class and with
such applicable legends as are set forth in the Exhibits hereto corresponding to
such Class. Each Certificate will share ratably in all rights of the related
Class. The Class X Certificates will be issuable only in minimum Denominations
of authorized initial Notional Amount of not less than $1,000,000 and in
integral multiples of $1.00 in excess thereof. The Offered Certificates (other
than the Class X Certificates) will be issuable only in minimum Denominations of
authorized initial Certificate Balance of not less than $10,000, and in integral
multiples of $1.00 in excess thereof. The Non-Registered Certificates (other
than the Residual Certificates) will be issuable in minimum Denominations of
authorized initial Certificate Balance of not less than $250,000, and in
integral multiples of $1.00 in excess thereof. If the Original Certificate
Balance or initial Notional Amount, as applicable, of any Class does not equal
an integral multiple of $1.00, then a single additional Certificate of such
Class may be issued in a minimum denomination of authorized initial Certificate
Balance or initial Notional Amount, as applicable, that includes the excess of
(i) the Original Certificate Balance or initial Notional Amount, as applicable,
of such Class over (ii) the largest integral multiple of $1.00 that does not
exceed such amount. The Class R and Class LR Certificates will be issuable only
in one or more Definitive Certificates in denominations representing Percentage
Interests of not less than 20%. With respect to any Certificate or any
beneficial interest in a Certificate, the "Denomination" thereof shall be (i)
the amount (a) set forth on the face thereof or, (b) set forth on a schedule
attached thereto or (c) in the case of any beneficial interest in a Book-Entry
Certificate, the interest of the related Certificate Owner in the applicable
Class of Certificates as reflected on the books and records of the Depository or
related Participants, as applicable, (ii) expressed in terms of initial
Certificate Balance or initial Notional Amount, as applicable, and (iii) be in
an authorized denomination, as set forth above. The Book-Entry Certificates will
be issued as one or more certificates registered in the name of a nominee
designated by the Depository, and Certificate Owners will hold interests in the
Book-Entry Certificates through the book-entry facilities of the Depository in
the minimum Denominations and aggregate Denominations as set forth in the above.
No Certificate Owner of a Book-Entry Certificate of any Class thereof will be
entitled to receive a Definitive Certificate representing its interest in such
Class, except as provided in Section 5.03 herein. Unless and until Definitive
Certificates are issued in respect of a Class of Book-Entry Certificates,
beneficial ownership interests in such Class of Certificates will be maintained
and transferred on the book-entry records of the Depository and Depository
Participants, and all references to actions by Holders of such Class of
Certificates will refer to action taken by the Depository upon instructions
received from the related registered Holders of Certificates through the
Depository Participants in accordance with the Depository's procedures and,
except as otherwise set forth herein, all references herein to payments,
notices, reports and statements to Holders of such Class of Certificates will
refer to payments, notices, reports and statements to the Depository or its
nominee as the registered Holder thereof, for distribution to the related
registered Holders of Certificates through the Depository Participants in
accordance with the Depository's procedures.
(b) The Certificates shall be executed by manual or facsimile
signature on behalf of the Certificate Registrar by an authorized signatory.
Certificates bearing the manual or facsimile signatures of individuals who were
at any time the authorized signatories of the Certificate Registrar shall be
entitled to all benefits under this Agreement, subject to the following
sentence, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Certificates
or did not hold such offices at the date of such Certificates. No Certificate
shall be entitled to any benefit under this Agreement, or be valid for any
purpose, however, unless there appears on such Certificate a certificate of
authentication substantially in the form provided for herein executed by the
Authenticating Agent by manual signature, and such certificate of authentication
upon any Certificate shall be conclusive evidence, and the only evidence, that
such Certificate has been duly authenticated and delivered hereunder. All
Certificates shall be dated the date of their authentication. The Trustee is
hereby initially appointed Authenticating Agent with power to act in the
authentication and delivery of the Certificates in connection with transfers and
exchanges as herein provided.
(c) Any of the Certificates may be issued with appropriate
insertions, omissions, substitutions and variations, and may have imprinted or
otherwise reproduced thereon such legend or legends, not inconsistent with the
provisions of this Agreement, as may be required to comply with any law or with
rules or regulations pursuant thereto, or with the rules of any securities
market in which the Certificates are admitted to trading, or to conform to
general usage.
Section 5.02 Registration of Transfer and Exchange of Certificates.
(a) At all times during the term of this Agreement, there shall be
maintained at the office of the Certificate Registrar a Certificate Register in
which, subject to such reasonable regulations as the Certificate Registrar may
prescribe, the Certificate Registrar shall provide for the registration of
Certificates and of transfers and exchanges of Certificates as herein provided.
The Trustee is hereby initially appointed Certificate Registrar for the purpose
of registering Certificates and transfers and exchanges of Certificates as
herein provided. The Certificate Registrar may appoint, by a written instrument
delivered to the Depositor, the Trustee, the Special Servicer and the Servicer,
any other bank or trust company to act as Certificate Registrar under such
conditions as the predecessor Certificate Registrar may prescribe, provided that
the predecessor Certificate Registrar shall not be relieved of any of its duties
or responsibilities hereunder by reason of such appointment. The Depositor, the
Trustee, the Servicer and the Special Servicer shall have the right to inspect
the Certificate Register or to obtain a copy thereof at all reasonable times,
and to rely conclusively upon a certificate of the Certificate Registrar as to
the information set forth in the Certificate Register. The names and addresses
of all Certificateholders and the names and addresses of the transferees of any
Certificates shall be registered in the Certificate Register; provided, however,
in no event shall the Certificate Registrar be required to maintain in the
Certificate Register the names of Certificate Owners. The Person in whose name
any Certificate is so registered shall be deemed and treated as the sole owner
and Holder thereof for all purposes of this Agreement and the Certificate
Registrar, the Servicer, the Trustee, the Special Servicer and any agent of any
of them shall not be affected by any notice or knowledge to the contrary. A
Definitive Certificate is transferable or exchangeable only upon the surrender
of such Certificate to the Certificate Registrar at its office maintained at
Xxxxx Fargo Bank Minnesota, N.A., Xxxxx Fargo Center, Sixth and Marquette,
Minneapolis, Minnesota 55479-6113, Attn: Corporate Trust Services Group (CMBS) -
X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp., Commercial Mortgage
Pass-Through Certificates, Series 2002-CIBC5 (the "Registrar Office") together
with an assignment and transfer (executed by the Holder or his duly authorized
attorney). Subject to the requirements of Sections 5.02(b), (c) and (d), the
Certificate Registrar shall execute and the Authenticating Agent shall duly
authenticate in the name of the designated transferee or transferees, one or
more new Certificates in Denominations of a like aggregate Denomination as the
Definitive Certificate being surrendered. Such Certificates shall be delivered
by the Certificate Registrar in accordance with Section 5.02(e). Each
Certificate surrendered for registration of transfer shall be canceled, and the
Certificate Registrar shall hold such canceled Certificates in accordance with
its standard procedures.
(b) No transfer of any Non-Registered Certificate shall be made
unless that transfer is made pursuant to an effective registration statement
under the Securities Act, and effective registration or qualification under
applicable state securities laws, or is made in a transaction which does not
require such registration or qualification. If a transfer (other than one by the
Depositor to an Affiliate thereof or by the Initial Purchasers to ARCap CMBS
Fund REIT) is to be made in reliance upon an exemption from the Securities Act,
and under the applicable state securities laws, then either:
(i) RULE 144A BOOK-ENTRY CERTIFICATE TO REGULATION S BOOK-ENTRY
CERTIFICATE DURING THE RESTRICTED PERIOD. If, during the Restricted
Period, a Certificate Owner of an interest in a Rule 144A Book-Entry
Certificate wishes at any time to transfer its beneficial interest in such
Rule 144A Book-Entry Certificate to a Person who wishes to take delivery
thereof in the form of a beneficial interest in a Regulation S Book-Entry
Certificate, such Certificate Owner may, in addition to complying with all
applicable rules and procedures of the Depository and Clearstream or
Euroclear applicable to transfers by their respective participants (the
"Applicable Procedures"), transfer or cause the transfer of such
beneficial interest for an equivalent beneficial interest in the
Regulation S Book-Entry Certificate only upon compliance with the
provisions of this Section 5.02(b)(i). Upon receipt by the Certificate
Registrar at its Corporate Trust Office of (1) written instructions given
in accordance with the Applicable Procedures from a Depository Participant
directing the Certificate Registrar to credit or cause to be credited to
another specified Depository Participant's account a beneficial interest
in the Regulation S Book-Entry Certificate in an amount equal to the
Denomination of the beneficial interest in the Rule 144A Book-Entry
Certificate to be transferred, (2) a written order given in accordance
with the Applicable Procedures containing information regarding the
account of the Depository Participant (and the Euroclear or Clearstream
account, as the case may be) to be credited with, and the account of the
Depository Participant to be debited for, such beneficial interest, and
(3) a certificate in the form of Exhibit K hereto given by the Certificate
Owner that is transferring such interest, the Certificate Registrar, as
custodian of the Book-Entry Certificates shall reduce the Denomination of
the Rule 144A Book-Entry Certificate by the Denomination of the beneficial
interest in the Rule 144A Book-Entry Certificate to be so transferred and,
concurrently with such reduction, increase the Denomination of the
Regulation S Book-Entry Certificate by the Denomination of the beneficial
interest in the Rule 144A Book-Entry Certificate to be so transferred, and
credit or cause to be credited to the account of the Person specified in
such instructions (who shall be a Depository Participant acting for or on
behalf of Euroclear or Clearstream, or both, as the case may be) a
beneficial interest in the Regulation S Book-Entry Certificate having a
Denomination equal to the amount by which the Denomination of the Rule
144A Book-Entry Certificate was reduced upon such transfer.
(ii) RULE 144A BOOK-ENTRY CERTIFICATE TO REGULATION S BOOK-ENTRY
CERTIFICATE AFTER THE RESTRICTED PERIOD. If, after the Restricted Period,
a Certificate Owner of an interest in a Rule 144A Book-Entry Certificate
wishes at any time to transfer its beneficial interest in such Rule 144A
Book-Entry Certificate to a Person who wishes to take delivery thereof in
the form of a beneficial interest in a Regulation S Book-Entry
Certificate, such holder may, in addition to complying with all Applicable
Procedures, transfer or cause the transfer of such beneficial interest for
an equivalent beneficial interest in a Regulation S Book-Entry Certificate
only upon compliance with the provisions of this Section 5.02(b)(ii). Upon
receipt by the Certificate Registrar at its Corporate Trust Office of (1)
written instructions given in accordance with the Applicable Procedures
from a Depository Participant directing the Certificate Registrar to
credit or cause to be credited to another specified Depository
Participant's account a beneficial interest in the Regulation S Book-Entry
Certificate in an amount equal to the Denomination of the beneficial
interest in the Rule 144A Book-Entry Certificate to be transferred, (2) a
written order given in accordance with the Applicable Procedures
containing information regarding the account of the Depository Participant
(and, in the case of a transfer pursuant to and in accordance with
Regulation S, the Euroclear or Clearstream account, as the case may be) to
be credited with, and the account of the Depository Participant to be
debited for, such beneficial interest, and (3) a certificate in the form
of Exhibit P hereto given by the Certificate Owner that is transferring
such interest, the Certificate Registrar as custodian of the Book-Entry
Certificates shall reduce the Denomination of the Rule 144A Book-Entry
Certificate by the aggregate Denomination of the beneficial interest in
the Rule 144A Book-Entry Certificate to be so transferred and,
concurrently with such reduction, increase the Denomination of the
Regulation S Book-Entry Certificate by the aggregate Denomination of the
beneficial interest in the Rule 144A Book-Entry Certificate to be so
transferred, and credit or cause to be credited to the account of the
Person specified in such instructions (who shall be a Depository
Participant acting for or on behalf of Euroclear or Clearstream, or both,
as the case may be) a beneficial interest in the Regulation S Book-Entry
Certificate having a Denomination equal to the amount by which the
Denomination of the Rule 144A Book-Entry Certificate was reduced upon such
transfer.
(iii) REGULATION S BOOK-ENTRY CERTIFICATE TO RULE 144A BOOK-ENTRY
CERTIFICATE. If the Certificate Owner of an interest in a Regulation S
Book-Entry Certificate wishes at any time to transfer its beneficial
interest in such Regulation S Book-Entry Certificate to a Person who
wishes to take delivery thereof in the form of a beneficial interest in
the Rule 144A Book-Entry Certificate, such holder may, in addition to
complying with all Applicable Procedures, transfer or cause the transfer
of such beneficial interest for an equivalent beneficial interest in the
Rule 144A Book-Entry Certificate only upon compliance with the provisions
of this Section 5.2(b)(iii). Upon receipt by the Certificate Registrar at
its Corporate Trust Office of (1) written instructions given in accordance
with the Applicable Procedures from a Depository Participant directing the
Certificate Registrar to credit or cause to be credited to another
specified Depository Participant's account a beneficial interest in the
Rule 144A Book-Entry Certificate in an amount equal to the Denomination of
the beneficial interest in the Regulation S Book-Entry Certificate to be
transferred, (2) a written order given in accordance with the Applicable
Procedures containing information regarding the account of the Depository
Participant to be credited with, and the account of the Depository
Participant (or, if such account is held for Euroclear or Clearstream, the
Euroclear or Clearstream account, as the case may be) to be debited for
such beneficial interest, and (3) with respect to a transfer of a
beneficial interest in the Regulation S Book-Entry Certificate for a
beneficial interest in the related Rule 144A Book-Entry Certificate (i)
during the Restricted Period, a certificate in the form of Exhibit Q
hereto given by the Certificate Owner, or (ii) after the Restricted
Period, an Investment Representation Letter in the form of Exhibit C
attached hereto from the transferee to the effect that such transferee is
a Qualified Institutional Buyer, the Certificate Registrar, as custodian
of the Book-Entry Certificates, shall reduce the Denomination of the
Regulation S Book-Entry Certificate by the Denomination of the beneficial
interest in the Regulation S Book-Entry Certificate to be transferred,
and, concurrently with such reduction, increase the Denomination of the
Rule 144A Book-Entry Certificate by the aggregate Denomination of the
beneficial interest in the Regulation S Book-Entry Certificate to be so
transferred, and credit or cause to be credited to the account of the
Person specified in such instructions (who shall be a Depository
Participant acting for or on behalf of Euroclear or Clearstream, or both,
as the case may be) a beneficial interest in the Rule 144A Book-Entry
Certificate having a Denomination equal to the amount by which the
Denomination of the Regulation S Book-Entry Certificate was reduced upon
such transfer.
(iv) TRANSFERS WITHIN REGULATION S BOOK-ENTRY CERTIFICATES DURING
RESTRICTED PERIOD. If, during the Restricted Period, the Certificate Owner
of an interest in a Regulation S Book-Entry Certificate wishes at any time
to transfer its beneficial interest in such Certificate to a Person who
wishes to take delivery thereof in the form of a Regulation S Book-Entry
Certificate, such Certificate Owner may transfer or cause the transfer of
such beneficial interest for an equivalent beneficial interest in such
Regulation S Book-Entry Certificate only upon compliance with the
provisions of this Section 5.02(b)(iv) and all Applicable Procedures. Upon
receipt by the Certificate Registrar at its Corporate Trust Office of (1)
written instructions given in accordance with the Applicable Procedures
from a Depository Participant directing the Certificate Registrar to
credit or cause to be credited to another specified Depository
Participant's account a beneficial interest in such Regulation S
Book-Entry Certificate in an amount equal to the Denomination of the
beneficial interest to be transferred, (2) a written order given in
accordance with the Applicable Procedures containing information regarding
the account of the Depository Participant to be credited with, and the
account of the Depository Participant (or, if such account is held for
Euroclear or Clearstream, the Euroclear or Clearstream account, as the
case may be) to be debited for, such beneficial interest and (3) a
certificate in the form of Exhibit R hereto given by the transferee, the
Certificate Registrar, as custodian of the Book-Entry Certificates, shall
debit the account of the transferring Regulation S Certificateholder and
credit or cause to be credited to the account of the Person specified in
such instructions (who shall be a Depository Participant acting for or on
behalf of Euroclear or Clearstream, or both, as the case may be) a
beneficial interest in the Regulation S Book-Entry Certificate having a
Denomination equal to the amount specified in such instructions by which
the account to be debited was reduced upon such transfer.
(v) TRANSFERS OF BOOK-ENTRY CERTIFICATES TO DEFINITIVE CERTIFICATES.
Any and all transfers from a Book-Entry Certificate to a transferee
wishing to take delivery in the form of a Definitive Certificate will
require the transferee to take delivery subject to the restrictions on the
transfer of such Definitive Certificate described on the face of such
Certificate, and such transferee agrees that it will transfer such
Definitive Certificate only as provided therein and herein. No such
transfer shall be made and the Certificate Registrar shall not register
any such transfer unless such transfer is made in accordance with this
Section 5.02(b)(v).
(A) Transfers of a beneficial interest in a Book-Entry
Certificate to an Institutional Accredited Investor will require
delivery of such Certificate to the transferee in the form of a
Definitive Certificate and the Certificate Registrar shall register
such transfer only if prior to the transfer (i) two years have
expired after the later of the Closing Date or the last date on
which the Depositor or any Affiliate thereof held such Certificate,
or (ii) such transferee furnishes to the Certificate Registrar (1)
an Investment Representation Letter in the form of Exhibit C
attached hereto to the effect that the transfer is being made to an
Institutional Accredited Investor in accordance with an applicable
exemption under the Act, and (2) if required by the Certificate
Registrar, an opinion of counsel acceptable to the Certificate
Registrar that such transfer is in compliance with the Act.
(B) Transfers of a beneficial interest in a Book-Entry
Certificate to a Regulation S Investor wishing to take delivery in
the form of a Definitive Certificate will be registered by the
Certificate Registrar only if the transferor has provided the
Certificate Registrar with a certificate in the form of Exhibit R
attached hereto. Transfers of a beneficial interest in a Book-Entry
Certificate to a Qualified Institutional Buyer wishing to take
delivery in the form of a Definitive Certificate will be registered
by the Certificate Registrar only if such transferee furnishes to
the Certificate Registrar an Investment Representation Letter in the
form of Exhibit C attached hereto to the effect that the transfer is
being made to a Qualified Institutional Buyer in accordance with
Rule 144A under the Act.
(C) Notwithstanding the foregoing, no transfer of a beneficial
interest in a Regulation S Book-Entry Certificate to a Definitive
Certificate pursuant to subparagraph (B) above shall be made prior
to the expiration of the Restricted Period. Upon acceptance for
exchange or transfer of a beneficial interest in a Book-Entry
Certificate for a Definitive Certificate, as provided herein, the
Certificate Registrar shall endorse on the schedule affixed to the
related Book-Entry Certificate (or on a continuation of such
schedule affixed to such Book-Entry Certificate and made a part
thereof) an appropriate notation evidencing the date of such
exchange or transfer and a decrease in the Denomination of such
Book-Entry Certificate equal to the Denomination of such Definitive
Certificate issued in exchange therefor or upon transfer thereof.
(vi) TRANSFERS OF DEFINITIVE CERTIFICATES TO THE BOOK-ENTRY
CERTIFICATES. If a Holder of a Definitive Certificate wishes at any time
to transfer such Certificate to a Person who wishes to take delivery
thereof in the form of a beneficial interest in the related Regulation S
Book-Entry Certificate or the related Rule 144A Book-Entry Certificate,
such transfer may be effected only in accordance with the Applicable
Procedures, and this Section 5.02(b)(vi). Upon receipt by the Certificate
Registrar at the Corporate Trust Office of (1) the Definitive Certificate
to be transferred with an assignment and transfer pursuant to Section
5.02(d), (2) written instructions given in accordance with the Applicable
Procedures from a Depository Participant directing the Certificate
Registrar to credit or cause to be credited to another specified
Depository Participant's account a beneficial interest in such Regulation
S Book-Entry Certificate or such Rule 144A Book-Entry Certificate, as the
case may be, in an amount equal to the Denomination of the Definitive
Certificate to be so transferred, (3) a written order given in accordance
with the Applicable Procedures containing information regarding the
account of the Depository Participant (and, in the case of any transfer
pursuant to Regulation S, the Euroclear or Clearstream account, as the
case may be) to be credited with such beneficial interest, and (4) (x) if
delivery is to be taken in the form of a beneficial interest in the
Regulation S Book-Entry Certificate, a Regulation S Transfer Certificate
from the transferor or (y) an Investment Representation Letter from the
transferee to the effect that such transferee is a Qualified Institutional
Buyer, if delivery is to be taken in the form of a beneficial interest in
the Rule 144A Book-Entry Certificate, the Certificate Registrar shall
cancel such Definitive Certificate, execute and deliver a new Definitive
Certificate for the Denomination of the Definitive Certificate not so
transferred, registered in the name of the Holder, and the Certificate
Registrar, as custodian of the Book-Entry Certificates, shall increase the
Denomination of the Regulation S Book-Entry Certificate or the Rule 144A
Book-Entry Certificate, as the case may be, by the Denomination of the
Definitive Certificate to be so transferred, and credit or cause to be
credited to the account of the Person specified in such instructions (who,
in the case of any increase in the Regulation S Book-Entry Certificate
during the Restricted Period, shall be a Depository Participant acting for
or on behalf of Euroclear or Clearstream, or both, as the case may be) a
corresponding Denomination of the Rule 144A Book-Entry Certificate or the
Regulation S Book-Entry Certificate, as the case may be.
It is the intent of the foregoing that under no circumstances may an
Institutional Accredited Investor that is not a Qualified Institutional Buyer
take delivery in the form of a beneficial interest in a Book-Entry Certificate.
(vii) TRANSFERS OF DEFINITIVE CERTIFICATES TO DEFINITIVE
CERTIFICATES. Any and all transfers from a Definitive Certificate to a
transferee wishing to take delivery in the form of a Definitive
Certificate will require the transferee to take delivery subject to the
restrictions on the transfer of such Definitive Certificate described on
the face of such Certificate, and such transferee agrees that it will
transfer such Definitive Certificate only as provided therein and herein.
No such transfer shall be made and the Certificate Registrar shall not
register any such transfer unless such transfer is made in accordance with
procedures substantially consistent with those set forth in Section
5.02(b)(v).
(viii) An exchange of a beneficial interest in a Book-Entry
Certificate for a Definitive Certificate or Certificates, an exchange of a
Definitive Certificate or Certificates for a beneficial interest in the
Book-Entry Certificate and an exchange of a Definitive Certificate or
Certificates for another Definitive Certificate or Certificates (in each
case, whether or not such exchange is made in anticipation of subsequent
transfer, and in the case of the Book-Entry Certificates, so long as the
Book-Entry Certificates remain outstanding and are held by or on behalf of
the Depository), may be made only in accordance with this Section 5.02 and
in accordance with the rules of the Depository and Applicable Procedures.
Any purported or attempted transfer of a Non-Registered Certificate
in violation of the provisions of this Section 5.02(b) shall be null and void ab
initio and shall vest no rights in any purported transferee.
Unless the Non-Registered Certificates have been registered under
the Securities Act, each of the Non-Registered Certificates shall bear a legend
substantially to the following effect:
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 SELLER REASONABLY
BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE
144A IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (C)
(OTHER THAN WITH RESPECT TO A RESIDUAL CERTIFICATE) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501
(A)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT IN
A TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS UNDER THE
SECURITIES ACT, (D) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE
SECURITIES ACT OR (E) (OTHER THAN WITH RESPECT TO A RESIDUAL
CERTIFICATE) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT IN EACH OF
THE FOREGOING CASES TO THE COMPLETION AND DELIVERY BY THE TRANSFEROR
TO THE CERTIFICATE REGISTRAR OF A CERTIFICATE OF TRANSFER IN THE
FORM APPEARING ON THE LAST PAGE OF THIS CERTIFICATE.
THE INITIAL INVESTOR IN 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. A TRANSFEREE IS ALSO REQUIRED TO DELIVER AN INVESTMENT
REPRESENTATION LETTER SUBSTANTIALLY IN THE FORM OF EXHIBIT C TO THE
POOLING AND SERVICING AGREEMENT IF SUCH TRANSFEREE IS A QUALIFIED
INSTITUTIONAL BUYER OR (OTHER THAN WITH RESPECT TO A RESIDUAL
CERTIFICATE) AN INSTITUTIONAL ACCREDITED INVESTOR, AND MAY ALSO BE
REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH TRANSFEREE IS NOT
A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A.
(c) With respect to the ERISA Restricted Certificates, no sale,
transfer, pledge or other disposition by any Holder of any ERISA Restricted
Certificate shall be made unless the Certificate Registrar shall have received
either (i) a representation letter from the proposed purchaser or transferee of
such Certificate substantially in the form of Exhibit F attached hereto, to the
effect that such proposed purchaser or transferee is not (a) an employee benefit
plan subject to the fiduciary responsibility provisions of ERISA or Section 4975
of the Code, or a governmental plan (as defined in Section 3(32) of ERISA)
subject to any federal, state or local law ("Similar Law") which is, to a
material extent, similar to the foregoing provisions of ERISA or the Code (each,
a "Plan") or (b) a person acting on behalf of or using the assets of any such
Plan (including an entity whose underlying assets include Plan assets by reason
of investment in the entity by such Plan and the application of Department of
Labor Regulation ss. 2510.3-101), other than an insurance company using the
assets of its general account under circumstances whereby the purchase and
holding of such Certificates by such insurance company would be exempt from the
prohibited transaction provisions of ERISA and the Code under Sections I and III
of Prohibited Transaction Class Exemption 95-60 or (ii) if such Certificate is
presented for registration in the name of a purchaser or transferee that is any
of the foregoing, an Opinion of Counsel in form and substance satisfactory to
the Certificate Registrar and the Depositor to the effect that the acquisition
and holding of such Certificate by such purchaser or transferee will not result
in the assets of the Trust Fund being deemed to be "plan assets" and subject to
the fiduciary responsibility provisions of ERISA, the prohibited transaction
provisions of the Code or the provisions of any Similar Law, will not constitute
or result in a "prohibited transaction" within the meaning of ERISA, Section
4975 of the Code or any Similar Law, and will not subject the Trustee, the
Certificate Registrar, the Servicer, the Special Servicer, the Underwriters, the
Initial Purchasers or the Depositor to any obligation or liability (including
obligations or liabilities under ERISA, Section 4975 of the Code or any such
Similar Law) in addition to those set forth in the Agreement. The Certificate
Registrar shall not register the sale, transfer, pledge or other disposition of
any ERISA Restricted Certificate unless the Certificate Registrar has received
either the representation letter described in clause (i) above or the Opinion of
Counsel described in clause (ii) above. The costs of any of the foregoing
representation letters or Opinions of Counsel shall not be borne by any of the
Depositor, the Servicer, the Special Servicer, the Trustee, the Underwriters,
the Initial Purchasers, the Certificate Registrar or the Trust Fund. Each
Certificate Owner of an ERISA Restricted Certificate shall be deemed to
represent that it is not a Person specified in clauses (a) or (b) above. Any
transfer, sale, pledge or other disposition of any ERISA Restricted Certificates
that would constitute or result in a prohibited transaction under ERISA, Section
4975 of the Code or any Similar Law, or would otherwise violate the provisions
of this Section 5.02(c) shall be deemed absolutely null and void ab initio, to
the extent permitted under applicable law.
So long as any of the Class of Certificates remains outstanding, the
Servicer or the Special Servicer, as applicable, will make available, or cause
to be made available, upon request, to any Holder and any Person to whom any
such Certificate of any such Class of Certificates may be offered or sold,
transferred, pledged or otherwise disposed of by such Holder, information with
respect to the Servicer, the Special Servicer or the Mortgage Loans necessary to
the provision of an Opinion of Counsel described in this Section 5.02(c).
(i) Each Person who has or who acquires any Ownership Interest in a
Residual Certificate shall be deemed by the acceptance or acquisition of
such Ownership Interest to have agreed to be bound by the following
provisions and to have irrevocably authorized the Trustee under clause
(ii) below to deliver payments to a Person other than such Person. The
rights of each Person acquiring any Ownership Interest in a Residual
Certificate are expressly subject to the following provisions:
(A) (i) No Person holding or acquiring any Ownership Interest
in a Residual Certificate shall be a Disqualified Organization or
agent thereof (including a nominee, middleman or similar person) (an
"Agent"), a Plan or a Person acting on behalf of or investing the
assets of a Plan, including any entity whose underlying assets
include Plan assets by reason of investment in the entity by such
Plan and the application of Department of Labor Regulations ss.
2510.3-101 (such Plan or Person, an "ERISA Prohibited Holder") or a
Non-U.S. Person and (ii) each Person holding or acquiring any
Ownership Interest in a Residual Certificate shall be a Permitted
Transferee and in each case shall promptly notify the Servicer, the
Trustee and the Certificate Registrar of any change or impending
change to such status;
(B) In connection with any proposed Transfer of any Ownership
Interest in a Residual Certificate, the Certificate Registrar shall
require delivery to it, and no Transfer of any Residual Certificate
shall be registered until the Certificate Registrar receives, an
affidavit substantially in the form attached hereto as Exhibit D-1
(a "Transfer Affidavit") from the proposed Transferee, in form and
substance satisfactory to the Certificate Registrar, representing
and warranting, among other things, that such Transferee is a
Permitted Transferee and is not a Disqualified Organization or Agent
thereof, an ERISA Prohibited Holder or a Non-U.S. Person, and that
it has reviewed the provisions of this Section 5.02(c) and agrees to
be bound by them;
(C) Notwithstanding the delivery of a Transfer Affidavit by a
proposed Transferee under clause (b) above, if the Certificate
Registrar has actual knowledge that the proposed Transferee is a
Disqualified Organization or Agent thereof, an ERISA Prohibited
Holder or a Non-U.S. Person or is not a Permitted Transferee, no
Transfer of an Ownership Interest in a Residual Certificate to such
proposed Transferee shall be effected; and
(D) Each Person holding or acquiring any Ownership Interest in
a Residual Certificate shall agree (1) to require a Transfer
Affidavit from any prospective Transferee to whom such Person
attempts to transfer its Ownership Interest in such Residual
Certificate and (2) not to transfer its Ownership Interest in such
Residual Certificate unless it provides to the Certificate Registrar
a letter substantially in the form attached hereto as Exhibit D-2 (a
"Transferor Letter") certifying that, among other things, it has no
actual knowledge that such prospective Transferee is a Disqualified
Organization or Agent thereof, an ERISA Prohibited Holder or a
Non-U.S. Person.
(ii) If any purported Transferee shall become a Holder of a Residual
Certificate in violation of the provisions of this Section 5.02(c), then
the last preceding Holder of such Residual Certificate that was in
compliance with the provisions of this Section 5.02(c) shall be restored,
to the extent permitted by law, to all rights as Holder thereof
retroactive to the date of registration of such Transfer of such Residual
Certificate. None of the Trustee, the Servicer, the Authenticating Agent
and the Certificate Registrar shall be under any liability to any Person
for any registration of Transfer of a Residual Certificate that is in fact
not permitted by this Section 5.02(c) 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; provided,
however, that the Certificate Registrar shall be under such liability for
a registration of Transfer of a Residual Certificate if it has actual
knowledge that the proposed Transferee is a Disqualified Organization or
Agent thereof, an ERISA Prohibited Holder or a Non-U.S. Person in
violation of Section 5.02(c)(i)(C) above or is not a Permitted Transferee.
(iii) The Trustee shall make available to the Internal Revenue
Service and those Persons specified by the REMIC Provisions all
information in its possession and necessary to compute any tax imposed as
a result of the Transfer of an Ownership Interest in a Residual
Certificate to any Person who is a Disqualified Organization or Agent
thereof, including the information described in Treasury regulations
sections 1.860D-1(b)(5) and 1.860E-2(a)(5) with respect to the "excess
inclusions" of such Residual Certificate.
(d) Subject to the restrictions on transfer and exchange set forth
in this Section 5.02, the Holder of any Definitive Certificate may transfer or
exchange the same in whole or in part (with a Denomination equal to any
authorized denomination) by surrendering such Certificate at the Registrar
Office or at the office of any successor Certificate Registrar or transfer agent
appointed by the Certificate Registrar, together with an instrument of
assignment or transfer (executed by the Holder or its duly authorized attorney),
in the case of transfer, and a written request for exchange in the case of
exchange. Subject to the restrictions on transfer set forth in this Section 5.02
and Applicable Procedures, any Certificate Owner owning a beneficial interest in
a Non-Registered Certificate may cause the Certificate Registrar to request that
the Depository exchange such Certificate Owner's beneficial interest in a
Book-Entry for a Definitive Certificate or Certificates. Following a proper
request for transfer or exchange, the Certificate Registrar shall, within 5
Business Days of such request if made at such Registrar Office, or within 10
Business Days if made at the office of a transfer agent (other than the
Certificate Registrar), execute and deliver at such Registrar Office or at the
office of such transfer agent, as the case may be, to the transferee (in the
case of transfer) or Holder (in the case of exchange) or send by first class
mail (at the risk of the transferee in the case of transfer or Holder in the
case of exchange) to such address as the transferee or Holder, as applicable,
may request, a Definitive Certificate or Certificates, as the case may require,
for a like aggregate Denomination and in such Denomination or Denominations as
may be requested. The presentation for transfer or exchange of any Definitive
Certificate shall not be valid unless made at the Registrar Office or at the
office of a transfer agent by the registered Holder in person, or by a duly
authorized attorney-in-fact. The Certificate Registrar may decline to accept any
request for an exchange or registration of transfer of any Certificate during
the period of 15 days preceding any Distribution Date.
(e) In the event a Responsible Officer of the Certificate Registrar
becomes aware that a Definitive Certificate (other than a Definitive Certificate
issued in exchange for a Certificate representing an interest in the Class A-1,
Class A-2, Class B, Class C, Class D, Class E, Class F, Class X-1 or Class X-2
Certificates) or a beneficial interest in a Book-Entry Certificate representing
a Non-Registered Certificate is being held by or for the benefit of a Person who
is not an Eligible Investor, or that such holding is unlawful under the laws of
a relevant jurisdiction, then the Certificate Registrar shall have the right to
void such transfer, if permitted under applicable law, or to require the
investor to sell such Definitive Certificate or beneficial interest in such
Book-Entry Certificate to an Eligible Investor within 14 days after notice of
such determination and each Certificateholder by its acceptance of a Certificate
authorizes the Certificate Registrar to take such action.
(f) The Certificate Registrar shall provide notice to the Trustee,
the Servicer, the Special Servicer and the Depositor of each transfer of a
Certificate on its books and records and to provide each such Person with an
updated copy of the Certificate Register on or about January 1st and July 1st of
each year, commencing July 1, 2003.
(g) No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in this Section 5.02 except as provided below. In
connection with any transfer to an Institutional Accredited Investor, the
transferor shall reimburse the Trust Fund for any costs (including the cost of
the Certificate Registrar's counsel's review of the documents and any legal
opinions, submitted by the transferor or transferee to the Certificate Registrar
as provided herein) incurred by the Certificate Registrar in connection with
such transfer. With respect to any transfer or exchange of any Certificate, the
Certificate Registrar may require payment by each transferor of a sum sufficient
to cover any tax, expense or other governmental charge payable in connection
with any such transfer or exchange.
(h) All Certificates surrendered for transfer and exchange shall be
physically canceled by the Certificate Registrar, and the Certificate Registrar
shall hold such canceled Certificates in accordance with its standard
procedures.
Section 5.03 Book-Entry Certificates.
(a) The Regular Certificates shall initially be issued as one or
more Certificates registered in the name of the Depository or its nominee and,
except as provided in subsection (c) below, transfer of such Certificates may
not be registered by the Certificate Registrar unless such transfer is to a
successor Depository that agrees to hold such Certificates for the respective
Certificate Owners with Ownership Interests therein. Such Certificate Owners
shall hold and transfer their respective Ownership Interests in and to such
Certificates through the book-entry facilities of the Depository and, except as
provided in Section 5.02(d) above or subsection (c) below, shall not be entitled
to Definitive Certificates in respect of such Ownership Interests. All transfers
by Certificate Owners of their respective Ownership Interests in the Book-Entry
Certificates shall be made in accordance with the procedures established by the
Depository Participant or brokerage firm representing such Certificate Owner.
Each Depository Participant shall only transfer the Ownership Interests in the
Book-Entry Certificates of Certificate Owners it represents or of brokerage
firms for which it acts as agent in accordance with the Depository's normal
procedures.
(b) The Trustee, the Servicer, the Special Servicer, the Depositor
and the Certificate Registrar may for all purposes, including the making of
payments due on the Book-Entry Certificates, deal with the Depository as the
authorized representative of the Certificate Owners with respect to such
Certificates for the purposes of exercising the rights of Certificateholders
hereunder. The rights of Certificate Owners with respect to the Book-Entry
Certificates shall be limited to those established by law and agreements between
such Certificate Owners and the Depository Participants and brokerage firms
representing such Certificate Owners. Multiple requests and directions from, and
votes of, the Depository as Holder of the Book-Entry Certificates with respect
to any particular matter shall not be deemed inconsistent if they are made with
respect to different Certificate Owners. The Trustee may establish a reasonable
record date in connection with solicitations of consents from or voting by
Certificateholders and shall give notice to the Depository of such record date.
(c) If (i)(A) the Depositor advises the Trustee and the Certificate
Registrar in writing that the Depository is no longer willing or able to
properly discharge its responsibilities with respect to the Book-Entry
Certificates and (B) the Depositor is unable to locate a qualified successor, or
(ii) the Depositor at its option advises the Trustee and the Certificate
Registrar in writing that it elects to terminate the book-entry system through
the Depository, the Trustee shall notify the affected Certificate Owners,
through the Depository with respect to all, any Class or any portion of any
Class of the Certificates or (iii) the Certificate Registrar determines that
Definitive Certificates are required in accordance with the provisions of
Section 5.03(e), of the occurrence of any such event and of the availability of
Definitive Certificates to Certificate Owners requesting the same. Upon
surrender to the Certificate Registrar of the Book-Entry Certificates by the
Depository or any custodian acting on behalf of the Depository, accompanied by
registration instructions from the Depository for registration of transfer, the
Certificate Registrar shall execute, and the Authenticating Agent shall
authenticate and deliver, within 5 Business Days of such request if made at the
Registrar Office, or within 10 Business Days if made at the office of a transfer
agent (other than the Certificate Registrar), the Definitive Certificates to the
Certificate Owners identified in such instructions. None of the Depositor, the
Servicer, the Trustee, the Special Servicer, the Authenticating Agent and the
Certificate Registrar shall be liable for any delay in delivery of such
instructions and may conclusively rely on, and shall be protected in relying on,
such instructions. Upon the issuance of Definitive Certificates for purposes of
evidencing ownership of any Class of Certificates, the registered Holders of
such Definitive Certificates shall be recognized as Certificateholders hereunder
and, accordingly, shall be entitled directly to receive payments on, to exercise
Voting Rights with respect to, and to transfer and exchange such Definitive
Certificates.
(d) The Book-Entry Certificates (i) shall be delivered by the
Certificate Registrar to the Depository, or pursuant to the Depository's
instructions, and shall be registered in the name of Cede & Co. and (ii) shall
bear a legend substantially to the following effect:
Unless this certificate is presented by an authorized representative
of The Depository Trust Company, a New York corporation ("DTC"), to
the Certificate Registrar for registration of transfer, exchange or
payment, and any certificate issued is registered in the name of
Cede & Co. or in such other name as is requested by an authorized
representative of DTC (and any payment is made to Cede & Co. or to
such other entity as is requested by an authorized representative of
DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered
owner hereof, Cede & Co., has an interest herein.
The Book-Entry Certificates may be deposited with such other
Depository as the Certificate Registrar may from time to time designate, and
shall bear such legend as may be appropriate.
(e) If the Trustee has instituted or if the Special Servicer or the
Servicer, on the Trustee's behalf, has been directed to institute any judicial
proceeding in a court to enforce the rights of the Certificateholders under the
Certificates, 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 the Certificates evidenced by Book-Entry
Certificates, the Trustee may in its sole discretion determine that such
Certificates shall no longer be represented by such Book-Entry Certificates. In
such event, the Certificate Registrar will execute, the Authenticating Agent
will authenticate and the Certificate Registrar will deliver, in exchange for
such Book-Entry Certificates, Definitive Certificates in a Denomination equal to
the aggregate Denomination of such Book-Entry Certificates to the party so
requesting such Definitive Certificates. In such event, the Certificate
Registrar shall notify the affected Certificate Owners and make appropriate
arrangements for the effectuation of the purpose of this clause.
(f) Upon acceptance for exchange or transfer of a beneficial
interest in a Book-Entry Certificate for a Definitive Certificate, as provided
herein, the Certificate Registrar shall endorse on a schedule affixed to the
related Book-Entry Certificate (or on a continuation of such schedule affixed to
such Book-Entry Certificate and made a part thereof) an appropriate notation
evidencing the date of such exchange or transfer and a decrease in the
Denomination of such Book-Entry Certificate equal to the Denomination of such
Definitive Certificate issued in exchange therefor or upon transfer thereof.
(g) If a Holder of a Definitive Certificate wishes at any time to
transfer such Certificate to a Person who wishes to take delivery thereof in the
form of a beneficial interest in the Book-Entry Certificate, such transfer may
be effected only in accordance with Applicable Procedures, Section 5.02(b) and
this Section 5.03(g). Upon receipt by the Certificate Registrar at the Registrar
Office of (i) the Definitive Certificate to be transferred with an assignment
and transfer pursuant to Section 5.02(a), and all required items pursuant to
Section 5.02(b)(v), the Certificate Registrar shall cancel such Definitive
Certificate, execute and deliver a new Definitive Certificate for the
Denomination of the Definitive Certificate not so transferred, registered in the
name of the Holder or the Holder's transferee (as instructed by the Holder), and
the Certificate Registrar as custodian of the Book-Entry Certificates shall
increase the Denomination of the related Book-Entry Certificate by the
Denomination of the Definitive Certificate to be so transferred, and credit or
cause to be credited to the account of the Person specified in such instructions
a corresponding Denomination of such Book-Entry Certificate.
Section 5.04 Mutilated, Destroyed, Lost or Stolen Certificates.
If (i) any mutilated Certificate is surrendered to the Certificate
Registrar, or the Certificate Registrar receives evidence to its satisfaction of
the destruction, loss or theft of any Certificate and (ii) there is delivered to
the Trustee and the Certificate Registrar such security or indemnity as may be
required by them to save each of them harmless, then, in the absence of actual
notice to the Trustee or the Certificate Registrar that such Certificate has
been acquired by a bona fide purchaser, the Certificate Registrar shall execute,
and the Authenticating Agent shall authenticate and deliver, in exchange for or
in lieu of any such mutilated, destroyed, lost or stolen Certificate, a new
Certificate of the same Class and of like Percentage Interest. Upon the issuance
of any new Certificate under this Section, the Trustee and the Certificate
Registrar may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee and the Certificate
Registrar) connected therewith. Any replacement Certificate issued pursuant to
this Section shall constitute complete and indefeasible evidence of ownership in
the 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 presentation of a Certificate for registration of
transfer, the Depositor, the Servicer, the Special Servicer, the Trustee, the
Certificate Registrar and any agents of any of them may treat the person in
whose name such 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, except as and to the extent provided in the
definition of "Certificateholder," and none of the Depositor, the Servicer, the
Special Servicer, the Trustee, the Certificate Registrar and any agent of any of
them shall be affected by notice to the contrary except as provided in Section
5.02(d).
Section 5.06 Certificate Ownership Certification.
To the extent that under the terms of this Agreement, it is
necessary to determine whether any Person is a Certificate Owner, the Trustee
shall make such determination based on a certificate of such Person which shall
be addressed to the Trustee and shall specify, in reasonable detail satisfactory
to the Trustee, such Person's name and address, the Class and Certificate
Principal Balance or Notional Amount of the Regular Certificate beneficially
owned, and any intermediaries through which such Person's interest in such
Regular Certificate is held (any such certification, other than one which the
Trustee shall refuse to recognize pursuant to the following procedures, a
"Certificate Ownership Certification"); provided, however, that the Trustee
shall not knowingly recognize such Person as a Certificate Owner if such Person,
to the actual knowledge of a Responsible Officer of such party, acquired its
interest in a Regular Certificate in violation of the transfer restrictions
herein, 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 or
any Depository Participant with respect to the identity of a Certificate Owner;
provided, however, that to the extent the Trustee is required to obtain such
Certificate Owner information from the Depository or any Depository Participant,
the Trustee shall be reimbursed for any cost or expense in obtaining such
information from the Distribution Account. The Trustee may conclusively rely on
such Certificate Ownership Certification. The Servicer will only be required to
acknowledge the status of any Person as a Certificateholder or Certificate Owner
to the extent that the Trustee, at the request of the Servicer, identifies such
Person as a Certificateholder or Certificate Owner.
[End of Article V]
ARTICLE VI
THE DEPOSITOR, THE
SERVICER, THE SPECIAL SERVICER AND THE DIRECTING
CERTIFICATEHOLDER
Section 6.01 Liability of the Depositor, the Servicer and the
Special Servicer.
The Depositor, the Servicer and the Special Servicer shall be liable
in accordance herewith only to the extent of the respective obligations
specifically imposed upon and undertaken by the Depositor, the Servicer and the
Special Servicer herein.
Section 6.02 Merger, Consolidation or Conversion of the Depositor,
the Servicer or the Special Servicer.
(a) Subject to subsection (b) below, the Depositor, the Servicer and
the Special Servicer each will keep in full effect its existence, rights and
franchises as a corporation under the laws of the jurisdiction of its
incorporation or organization, and each will obtain and preserve its
qualification to do business as a foreign corporation 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) The Depositor, the Servicer and the Special Servicer each may be
merged or consolidated with or into any Person, or transfer all or substantially
all of its assets (which may be limited to all or substantially all of its
assets related to commercial mortgage loan servicing) to any Person , in which
case any Person resulting from any merger or consolidation to which the
Depositor, the Servicer or the Special Servicer shall be a party, or any Person
succeeding to the business of the Depositor, the Servicer or the Special
Servicer, shall be the successor of the Depositor, the Servicer and the Special
Servicer, as the case may be, hereunder, without the execution or filing of any
paper (other than an assumption agreement wherein the successor shall agree to
perform the obligations of and serve as the Depositor, the Servicer or the
Special Servicer, as the case may be, in accordance with the terms of this
Agreement) or any further act on the part of any of the parties hereto, anything
herein to the contrary notwithstanding; provided, however, that such merger,
consolidation or succession will not result in a withdrawal, downgrading or
qualification of the then-current ratings of the Classes of Certificates that
have been so rated (as evidenced by a letter to such effect from each Rating
Agency).
Section 6.03 Limitation on Liability of the Depositor, the Servicer,
the Special Servicer and Others.
(a) None of the Depositor, the Servicer, the Special Servicer or any
of the directors, officers, employees or agents of any of the foregoing shall be
under any liability to the Trust, the Certificateholders or the Companion
Holders for any action taken or for refraining from the taking of any action in
good faith pursuant to this Agreement, or for errors in judgment; provided,
however, that this provision shall not protect the Depositor, the Servicer, the
Special Servicer or any such Person against any breach of warranties or
representations made herein or any liability which would otherwise be imposed by
reason of willful misfeasance, bad faith or negligence in the performance of
duties or by reason of negligent disregard of obligations and duties hereunder.
The Depositor, the Servicer and the Special Servicer and any director, officer,
member, manager, employee or agent of the Depositor, the Servicer or the Special
Servicer may rely 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 Servicer, the Special Servicer and any director, officer,
employee or agent of any of the foregoing shall be indemnified and held harmless
by the Trust against any and all claims, losses, penalties, fines, forfeitures,
reasonable legal fees and related costs, judgments, and any other costs,
liabilities, fees and expenses incurred in connection with any legal action
(whether in equity or at law) or claim relating to this Agreement, the Mortgage
Loans, or the Certificates, other than any loss, liability or expense: (i)
specifically required to be borne thereby pursuant to the terms hereof; (ii)
incurred in connection with any breach of a representation, warranty or covenant
made by it herein; (iii) incurred by reason of bad faith, willful misconduct or
negligence in the performance of its obligations or duties hereunder, or by
reason of negligent disregard of such obligations or duties; or (iv) in the case
of the Depositor and any of its directors, officers, employees and agents,
incurred in connection with any violation by any of them of any state or federal
securities law.
(b) None of the Depositor, the Servicer and the Special Servicer
shall be under any obligation to appear in, prosecute or defend any legal or
administrative action (whether in equity or at law), proceeding, hearing or
examination that is not incidental to its respective duties under this Agreement
or which in its opinion may involve it in any expense or liability not
recoverable from the Trust Fund; provided, however, that the Depositor, the
Servicer or the Special Servicer may in its discretion undertake any such
action, proceeding, hearing or examination that it may deem necessary or
desirable in respect to this Agreement and the rights and duties of the parties
hereto and the interests of the Certificateholders hereunder. In such event, the
legal expenses and costs of such action, proceeding, hearing or examination and
any liability resulting therefrom shall be expenses, costs and liabilities of
the Trust Fund, and the Depositor, the Servicer and the Special Servicer shall
be entitled to be reimbursed therefor out of amounts attributable to the
Mortgage Loans on deposit in the Certificate Account as provided by Section
3.05(a).
(c) Each of the Servicer and the Special Servicer agrees to
indemnify the Depositor, the Trustee and the Trust and any director, officer,
employee or agent thereof, and hold them harmless, from and against any and all
claims, losses, penalties, fines, forfeitures, reasonable legal fees and related
costs, judgments, and any other costs, liabilities, fees and expenses that any
of them may sustain arising from or as a result of any willful misfeasance, bad
faith or negligence of the Servicer or the Special Servicer, as the case may be,
in the performance of its obligations and duties under this Agreement or by
reason of negligent disregard by the Servicer or the Special Servicer, as the
case may be, of its duties and obligations hereunder or by reason of breach of
any representations or warranties made herein; provided that such indemnity
shall not cover indirect or consequential damages. The Trustee or the Depositor,
as the case may be, shall immediately notify the Servicer or the Special
Servicer, as applicable, if a claim is made by a third party with respect to
this Agreement or the Mortgage Loans entitling the Trust to indemnification
hereunder, whereupon the Servicer or the Special Servicer, as the case may be,
shall assume the defense of such claim (with counsel reasonably satisfactory to
the Trustee or the Depositor) and pay all expenses in connection therewith,
including counsel fees, and promptly pay, discharge and satisfy any judgment or
decree which may be entered against it or them in respect of such claim. Any
failure to so notify the Servicer or the Special Servicer, as the case may be,
shall not affect any rights any of the foregoing Persons may have to
indemnification under this Agreement or otherwise, unless the Servicer's, or the
Special Servicer's, as the case may be, defense of such claim is materially
prejudiced thereby.
(d) The Trustee agrees to indemnify the Servicer and the Special
Servicer and any director, officer, employee or agent thereof, and hold them
harmless, from and against any and all claims, losses, penalties, fines,
forfeitures, reasonable legal fees and related costs, judgments, and any other
costs, liabilities, fees and expenses that any of them may sustain arising from
or as a result of any willful misfeasance, bad faith or negligence of the
Trustee in the performance of its obligations and duties under this Agreement or
by reason of negligent disregard by the Trustee of its duties and obligations
hereunder or by reason of breach of any representations or warranties made
herein; provided, that such indemnity shall not cover indirect or consequential
damages. The Servicer or the Special Servicer, as the case may be, shall
immediately notify the Trustee if a claim is made by a third party with respect
to this Agreement, whereupon the Trustee shall assume the defense of such claim
(with counsel reasonably satisfactory to the Servicer or the Special Servicer)
and pay all expenses in connection therewith, including counsel fees, and
promptly pay, discharge and satisfy any judgment or decree which may be entered
against it or them in respect of such claim. Any failure to so notify the
Trustee shall not affect any rights any of the foregoing Persons may have to
indemnification under this Agreement or otherwise, unless the Trustee's defense
of such claim is materially prejudiced thereby.
(e) The Depositor agrees to indemnify the Servicer and the Special
Servicer and any director, officer, employee or agent thereof, and hold them
harmless, from and against any and all claims, losses, penalties, fines,
forfeitures, reasonable legal fees and related costs, judgments, and any other
costs, liabilities, fees and expenses that any of them may sustain arising from
or as a result of any willful misfeasance, bad faith or negligence of the
Depositor, in the performance of its obligations and duties under this Agreement
or by reason of negligent disregard by the Depositor of its duties and
obligations hereunder or by reason of breach of any representations or
warranties made herein; provided, that such indemnity shall not cover indirect
or consequential damages. The Servicer or the Special Servicer, as the case may
be, shall immediately notify the Depositor if a claim is made by a third party
with respect to this Agreement, whereupon the Depositor shall assume the defense
of such claim (with counsel reasonably satisfactory to the Servicer or the
Special Servicer) and pay all expenses in connection therewith, including
counsel fees, and promptly pay, discharge and satisfy any judgment or decree
which may be entered against it or them in respect of such claim. Any failure to
so notify the Depositor shall not affect any rights any of the foregoing Persons
may have to indemnification under this Agreement or otherwise, unless the
Depositor's defense of such claim is materially prejudiced thereby.
The indemnification provided herein shall survive the termination of
this Agreement and the termination or resignation of the Servicer, the Trustee
and the Special Servicer.
Section 6.04 Depositor, Servicer and Special Servicer Not to Resign.
Subject to the provisions of Section 6.02, neither the Servicer nor
the Special Servicer shall resign from their respective obligations and duties
hereby imposed on each of them except upon (a) determination that such party's
duties hereunder are no longer permissible under applicable law or (b) in the
case of the Servicer, upon the appointment of, and the acceptance of such
appointment by, a successor Servicer and receipt by the Trustee of written
confirmation from each applicable Rating Agency that such resignation and
appointment will not cause such Rating Agency to downgrade, withdraw or qualify
any of the then current ratings assigned by such Rating Agency to any Class of
Certificates. Only the Servicer shall be permitted to resign pursuant to clause
(b) above. Any such determination permitting the resignation of the Servicer or
the Special Servicer pursuant to clause (a) above shall be evidenced by an
Opinion of Counsel (at the expense of the resigning party) to such effect
delivered to the Trustee and the Directing Certificateholder. No such
resignation by the Servicer or the Special Servicer shall become effective until
the Trustee or a successor Servicer shall have assumed the Servicer's or Special
Servicer's, as applicable, responsibilities and obligations in accordance with
Section 7.02. Upon any termination or resignation of the Servicer hereunder, the
Servicer shall have the right and opportunity to appoint any successor Servicer
with respect to this Section 6.04, provided that such successor Servicer is
approved by the Directing Certificateholder, such approval not to be
unreasonably withheld.
Section 6.05 Rights of the Depositor in Respect of the Servicer and
the Special Servicer.
The Depositor may, but is not obligated to, enforce the obligations
of the Servicer and the Special Servicer hereunder and may, but is not obligated
to, perform, or cause a designee to perform, any defaulted obligation of the
Servicer and the Special Servicer hereunder or exercise the rights of the
Servicer or Special Servicer, as applicable, hereunder; provided, however, that
the Servicer and the Special Servicer shall not be relieved of any of their
respective 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 Servicer or the Special Servicer and is
not obligated to supervise the performance of the Servicer or the Special
Servicer under this Agreement or otherwise.
Section 6.06 [RESERVED]
Section 6.07 The Directing Certificateholder and the Simon
Representative.
The Directing Certificateholder (or with respect to the Simon
Mortgage Loan, the Simon Representative) shall be entitled to advise (1) the
Special Servicer with respect to all Specially Serviced Mortgage Loans, (2) the
Special Servicer and the Servicer with respect to Non-Specially Serviced
Mortgage Loans having Stated Principal Balances greater than or equal to
$2,500,000 (other than with respect to the extension of maturity of any Mortgage
Loan), and (3) the Special Servicer and the Servicer with respect to all
Mortgage Loans for which an extension of maturity is being considered, and
notwithstanding anything herein to the contrary, except as set forth in, and in
any event subject to, Section 3.08(f) and the second paragraph of this Section
6.07, the Servicer or Special Servicer, as applicable, shall not be permitted to
take any of the following actions as to which the Directing Certificateholder
(or with respect to the Simon Mortgage Loan, the Simon Representative) has
objected in writing within ten (10) Business Days of being notified thereof
(provided that if such written objection has not been received by the Servicer
or the Special Servicer, as applicable, within such ten (10) Business Day
period, then the Directing Certificateholder (or with respect to the Simon
Mortgage Loan, the Simon Representative) will be deemed to have waived its right
to object):
(i) any proposed foreclosure upon or comparable conversion (which
may include acquisitions of an REO Property) of the ownership of
properties securing such of the Mortgage Loans as come into and continue
in default;
(ii) any modification or consent to a modification of a monetary
term of a Mortgage Loan or any extension of the maturity date of any
Mortgage Loan;
(iii) any proposed sale of a Defaulted Mortgage Loan or REO Property
(other than in connection with the termination of the Trust Fund) for less
than the applicable Purchase Price;
(iv) any determination to bring an REO Property into compliance with
applicable environmental laws or to otherwise address Hazardous Materials
located at an REO Property;
(v) any release of collateral or any acceptance of substitute or
additional collateral for a Mortgage Loan other than pursuant to the
specific terms of the related Mortgage Loan;
(vi) any waiver of a "due-on-sale" or "due-on-encumbrance" clause
with respect to a Mortgage Loan or any consent to such waiver;
(vii) any management company changes or franchise changes with
respect to a Mortgage Loan for which the Servicer is required to consent
or approve;
(viii) releases of any escrows, reserves or letters of credit held
as performance escrows or reserves, other than pursuant to the specific
terms of the Mortgage Loans;
(ix) any acceptance of an assumption agreement releasing a Mortgagor
from liability under a Mortgage Loan other than pursuant to the specific
terms of such Mortgage Loan; and
(x) any determination of an Acceptable Insurance Default;
provided that, in the event that the Special Servicer or Servicer, as
applicable, determines that immediate action is necessary to protect the
interests of the Certificateholders (as a collective whole), the Special
Servicer or Servicer, as applicable may take any such action without waiting for
the Directing Certificateholder's or the Simon Representative's, as applicable,
response.
In addition, the Directing Certificateholder may direct the Special
Servicer to take, or to refrain from taking, such other actions with respect to
a Mortgage Loan, as the Directing Certificateholder may deem advisable or as to
which provision is otherwise made herein; provided that notwithstanding anything
herein to the contrary, no such direction, and no objection contemplated by the
preceding paragraph, may require or cause the Special Servicer to violate any
provision of this Agreement or the REMIC Provisions, including without
limitation the Special Servicer's obligation to act in accordance with the
Servicing Standards, or expose the Servicer, the Special Servicer, the Trust
Fund or the Trustee to liability, or materially expand the scope of the Special
Servicer's responsibilities hereunder or cause the Special Servicer to act, or
fail to act, in a manner which in the reasonable judgment of the Special
Servicer is not in the best interests of the Certificateholders.
In the event the Servicer or Special Servicer determines that a
refusal to consent by the Directing Certificateholder or any advice from the
Directing Certificateholder would otherwise cause the Special Servicer to
violate the terms of this Agreement, including without limitation, the Servicing
Standards, the Special Servicer shall disregard such refusal to consent or
advice and notify the Directing Certificateholder, the Trustee and the Rating
Agencies of its determination, including a reasonably detailed explanation of
the basis therefor.
The Directing Certificateholder (and with respect to the Simon
Mortgage Loan, the Simon Representative) shall have no liability to the Trust
Fund or the Certificateholders for any action taken, or for refraining from the
taking of any action in good faith, or for errors in judgment; provided,
however, that the Directing Certificateholder (and with respect to the Simon
Mortgage Loan, the Simon Representative) shall not be protected against any
liability to the Controlling Class Certificateholder (or with respect to the
Simon Representative, the Simon Controlling Holder) which would otherwise be
imposed by reason of willful misfeasance, bad faith or negligence in the
performance of duties or by reason of reckless disregard of obligations or
duties. By its acceptance of a Certificate, each Certificateholder confirms its
understanding that the Directing Certificateholder (and with respect to the
Simon Mortgage Loan, the Simon Representative) may take actions that favor the
interests of one or more Classes of the Certificates over other Classes of the
Certificates, and that the Directing Certificateholder (and with respect to the
Simon Mortgage Loan, the Simon Representative) may have special relationships
and interests that conflict with those of Holders of some Classes of the
Certificates, that the Directing Certificateholder (or with respect to the Simon
Representative, the Simon Representative) may act solely in the interests of the
Holders of the Controlling Class, that the Directing Certificateholder does not
have any duties to the Holders of any Class of Certificates other than the
Controlling Class (or with respect to the Simon Representative, the Simon
Controlling Holder), that the Directing Certificateholder may take actions that
favor the interests of the Holders of the Controlling Class (or with respect to
the Simon Representative, the Simon Controlling Holder) over the interests of
the Holders of one or more other classes of Certificates, that the Directing
Certificateholder (or with respect to the Simon Representative, the Simon
Representative) shall not be liable to any Certificateholder, by reason of its
having acted solely in the interests of the Holders of the Controlling Class (or
with respect to the Simon Representative, the Simon Controlling Holder), and
that the Directing Certificateholder (and with respect to the Simon Mortgage
Loan, the Simon Representative) shall have no liability whatsoever for having so
acted, and no Certificateholder may take any action whatsoever against the
Directing Certificateholder (and with respect to the Simon Mortgage Loan, the
Simon Representative) or any director, officer, employee, agent or principal
thereof for having so acted.
[End of Article VI]
ARTICLE VII
DEFAULT
Section 7.01 Events of Default; Servicer and Special Servicer
Termination.
(a) "Event of Default," wherever used herein, means any one of the
following events:
(i)(A) any failure by the Servicer to make any deposit required to
be made by the Servicer to the Certificate Account on the day and by the
time such remittance is required to be made under the terms of this
Agreement, which failure is not remedied within one Business Day or (B)
any failure by the Servicer to deposit into, or remit to the Trustee for
deposit into, any Distribution Account any amount required to be so
deposited or remitted, which failure is not remedied by 11:00 a.m. (New
York City time) on the relevant Distribution Date; or
(ii) any failure by the Special Servicer to deposit into the REO
Account, within one Business Day after such deposit is required to be made
or to remit to the Servicer for deposit into the Certificate Account, or
to deposit into, or to remit to the Trustee for deposit into, the
Lower-Tier Distribution Account any amount required to be so deposited or
remitted by the Special Servicer pursuant to, and at the time specified
by, the terms of this Agreement; or
(iii) any failure on the part of the Servicer or the Special
Servicer duly to observe or perform in any material respect any of its
other covenants or obligations contained in this Agreement which continues
unremedied for a period of 30 days (10 days in the case of the Servicer's
failure to make a Servicing Advance or 15 days in the case of a failure to
pay the premium for any insurance policy required to be maintained
hereunder) after the date on which written notice of such failure,
requiring the same to be remedied, shall have been given to the Servicer
or the Special Servicer, as the case may be, by any other party hereto,
with a copy to each other party to this Agreement by the Holders of
Certificates of any Class evidencing, as to such Class, Percentage
Interests aggregating not less than 25%; provided, however, if such
failure is capable of being cured and the Servicer or Special Servicer, as
applicable, is diligently pursuing such cure, such 30-day period will be
extended an additional 30 days; or
(iv) any breach on the part of the Servicer or the Special Servicer
of any representation or warranty contained in Section 3.24 or Section
3.25, as applicable, which materially and adversely affects the interests
of any Class of Certificateholders and which continues unremedied for a
period of 30 days after the date on which notice of such breach, requiring
the same to be remedied, shall have been given to the Servicer or the
Special Servicer, as the case may be, by the Depositor or the Trustee, or
to the Servicer, the Special Servicer, the Depositor and the Trustee by
the Holders of Certificates of any Class evidencing, as to such Class,
Percentage Interests aggregating not less than 25%; provided, however, if
such breach is capable of being cured and the Servicer or Special
Servicer, as applicable, is diligently pursuing such cure, such 30-day
period will be extended an additional 30 days; or
(v) 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,
marshaling of assets and liabilities or similar proceedings, or for the
winding-up or liquidation of its affairs, shall have been entered against
the Servicer or the Special Servicer and such decree or order shall have
remained in force undischarged, undismissed or unstayed for a period of 60
days; or
(vi) the Servicer or the Special Servicer shall consent to the
appointment of a conservator, receiver, liquidator, trustee or similar
official in any bankruptcy, insolvency, readjustment of debt, marshaling
of assets and liabilities or similar proceedings of or relating to the
Servicer or the Special Servicer or of or relating to all or substantially
all of its property; or
(vii) the Servicer or the Special Servicer shall admit in writing
its inability to pay its debts generally as they become due, file a
petition to take advantage of any applicable bankruptcy, insolvency or
reorganization statute, make an assignment for the benefit of its
creditors, voluntarily suspend payment of its obligations or take any
corporate action in furtherance of the foregoing; or
(viii) the Trustee shall have received and forwarded to the Servicer
or Special Servicer, as applicable written notice from Fitch that the
continuation of the Servicer or Special Servicer, as applicable, in such
capacity has resulted, or would result, in and of itself, in a downgrade,
qualification or withdrawal of any rating then assigned to any Class of
Certificates by Fitch if the Servicer or Special Servicer, as applicable
is not replaced, and the Trustee shall not have received subsequent notice
from Fitch (within 30 days) indicating that no such downgrade,
qualification or withdrawal will result (or that, if it has resulted, it
will be rescinded); or
(ix) Fitch confirms in writing that the Servicer or Special
Servicer, as applicable, no longer has the minimum rating from Fitch
required for master servicers or special servicers, as applicable, of
commercial mortgage securitization transactions; or
(x) Moody's places its ratings of any Class of Certificates on a
"watch" status in contemplation of a ratings downgrade or withdrawal,
citing servicing or special servicing concerns, as applicable, as the sole
or a contributory factor in such rating action and such "watch" status is
not rescinded within 90 days (or such longer period as would not, as
confirmed by Moody's in writing, result in a qualification, downgrade or
withdrawal of one or more ratings assigned by such Rating Agency to the
Certificates); or
(xi) Moody's downgrades the then current ratings of any Class of
Certificates, citing servicing or special servicing concerns, as
applicable, as the sole or a contributory factor in such downgrade; or
(xii) the Servicer or Special Servicer is removed from Fitch or
Moody's approved master servicer list or approved special servicer list,
as applicable, and is not reinstated to the approved master servicer or
special servicer list, as applicable, within 90 days of such removal.
(b) If any Event of Default with respect to the Servicer or the
Special Servicer (in either case, for purposes of this Section 7.01(b), the
"Defaulting Party") shall occur and be continuing, then, and in each and every
such case, so long as such Event of Default shall not have been remedied, the
Trustee may, and at the written direction of the Directing Certificateholder or
Holders of Certificates entitled to at least 51% of the Voting Rights, the
Trustee shall, terminate, by notice in writing to the Defaulting Party, with a
copy of such notice to the Depositor, all of the rights (subject to Section 3.11
and Section 6.03) and obligations of the Defaulting Party under this Agreement
and in and to the Mortgage Loans and the proceeds thereof; provided, however,
that the Defaulting Party shall be entitled to the payment of accrued and unpaid
compensation and reimbursement through the date of such termination as provided
for under this Agreement for services rendered and expenses incurred. From and
after the receipt by the Defaulting Party of such written notice except as
otherwise provided in this Article VII, 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 with respect to a termination of the
Servicer and to the Servicer with respect to a termination of the Special
Servicer pursuant to and under this Section, and, without limitation, the
Trustee or Servicer, as applicable, is hereby authorized and empowered to
execute and deliver, on behalf of and at the expense of the Defaulting Party, as
attorney-in-fact or otherwise, any and all documents and other instruments, and
to do or accomplish all other acts or things necessary or appropriate to effect
the purposes of such notice of termination, whether to complete the transfer and
endorsement or assignment of the Mortgage Loans and related documents, or
otherwise. The Servicer and Special Servicer each agree that if it is terminated
pursuant to this Section 7.01(b), it shall promptly (and in any event no later
than 20 Business Days subsequent to its receipt of the notice of termination)
provide the Trustee or the Servicer, as applicable, with all documents and
records requested by it to enable it to assume the Servicer's or the Special
Servicer's, as the case may be, functions hereunder, and shall cooperate with
the Trustee or the Servicer, as applicable, in effecting the termination of the
Servicer's or the Special Servicer's, as the case may be, responsibilities and
rights (subject to Section 3.11 and Section 6.03) hereunder, including, without
limitation, the transfer within 5 Business Days to the Trustee or the Servicer,
as applicable, for administration by it of all cash amounts which shall at the
time be or should have been credited by the Servicer to the Certificate Account
or any Servicing Account (if it is the Defaulting Party) or by the Special
Servicer to the REO Account (if it is the Defaulting Party) or thereafter be
received with respect to the Mortgage Loans or any REO Property (provided,
however, that the Servicer and the Special Servicer each shall, if terminated
pursuant to this Section 7.01(b), continue to be entitled to receive all amounts
accrued or owing to it under this Agreement on or prior to the date of such
termination, whether in respect of Advances (in the case of the Special Servicer
or the Servicer) or otherwise, and it and its directors, managers, officers,
members, employees and agents shall continue to be entitled to the benefits of
Section 3.11 and Section 6.03 notwithstanding any such termination).
(c) If the Servicer receives notice of termination solely due to an
Event of Default under Section 7.01(b) solely due to an Event of Default under
Section 7.01(a)(viii), (ix) or (x) and if the Servicer to be terminated pursuant
to Section 7.01(b) provides the Trustee with the appropriate "request for
proposal" materials within five (5) Business Days following such termination
notice, then the Servicer shall continue to service as Servicer hereunder until
a successor Servicer is selected in accordance with this Section 7.01(c). Upon
receipt of the "request for proposal" materials, Trustee shall promptly
thereafter (using such "request for proposal" materials provided by the Servicer
pursuant to Section 7.01(b)) solicit good faith bids for the rights to service
the Mortgage Loans under this Agreement from at least three (3) Persons
qualified to act as Servicer hereunder in accordance with Sections 6.02 and 7.02
(any such Person so qualified, a "Qualified Bidder") or, if three (3) Qualified
Bidders cannot be located, then from as many persons as the Trustee can
determine are Qualified Bidders; provided that, at the Trustee's request, the
Servicer shall supply the Trustee with the names of Persons from whom to solicit
such bids; and provided, further, that the Trustee shall not be responsible if
less than three (3) or no Qualified Bidders submit bids for the right to service
the Mortgage Loans under this Agreement. The bid proposal shall require any
Successful Bidder (as defined below), as a condition of such bid, to enter into
this Agreement as successor Servicer, and to agree to be bound by the terms
hereof, within 45 days after the notice of termination of the Servicer. The
materials provided to the Trustee shall provide for soliciting bids: (i) on the
basis of such successor Servicer retaining all Sub-Servicers to continue the
primary servicing of the Mortgage Loans pursuant to the terms of the respective
Sub-Servicing Agreements (each, a "Servicing-Retained Bid"); and (ii) on the
basis of terminating each Sub-Servicing Agreement and Sub-Servicer that it is
permitted to terminate in accordance with Section 3.22 (each, a
"Servicing-Released Bid"). The Trustee shall select the Qualified Bidder with
the highest cash Servicing-Retained Bid (or, if none, the highest cash
Servicing-Released Bid) (the "Successful Bidder") to act as successor Servicer
hereunder; provided, however, that if the Trustee does not receive confirmation
in writing by each Rating Agency that the appointment of such Successful Bidder
as successor Servicer will not result in the withdrawal, downgrade, or
qualification of the rating assigned by the Rating to any class of Certificates
then rated by the Rating Agency within 10 days after the selection of such
Successful Bidder, then the Trustee shall repeat the bid process described above
(but subject to the above-described 45-day time period) until such confirmation
is obtained. The Trustee shall direct the Successful Bidder to enter into this
Agreement as successor Servicer pursuant to the terms hereof no later than 45
days after notice of the termination of the Servicer.
Upon the assignment and acceptance of master servicing rights
hereunder to and by the Successful Bidder, the Trustee shall remit or cause to
be remitted (i) if the successful bid was a Servicing-Retained Bid, to the
Servicer to be terminated pursuant to Section 7.01(b), the amount of such cash
bid received from the Successful Bidder (net of "out-of-pocket" expenses
incurred in connection with obtaining such bid and transferring servicing) and
(ii) if the successful bid was a Servicing-Released Bid, to the Servicer and
each terminated Sub-Servicer its respective Bid Allocation.
The Servicer to be terminated pursuant to Section 7.01(b) shall be
responsible for all out-of-pocket expenses incurred in connection with the
attempt to sell its rights to service the Mortgage Loans, which expenses are not
reimbursed to the party that incurred such expenses pursuant to the preceding
paragraph.
If the Successful Bidder has not entered into this Agreement as
successor Servicer within the above-described time period or no Successful
Bidder was identified within the above-described time period, the Servicer to be
terminated pursuant to Section 7.01(b) shall reimburse the Trustee for all
reasonable "out-of-pocket" expenses incurred by the Trustee in connection with
such bid process and the Trustee shall have no further obligations under this
Section 7.01(c). The Trustee thereafter may act or may select a successor to act
as Servicer hereunder in accordance with Section 7.02.
(d) The Directing Certificateholder shall be entitled to terminate
the rights (subject to Section 3.11 and Section 6.03(d)) and obligations of the
Special Servicer under this Agreement, with or without cause, upon ten (10)
Business Days' notice to the Special Servicer, the Servicer and the Trustee.
Upon a termination or resignation of the Special Servicer, the Directing
Certificateholder shall appoint a successor Special Servicer; provided, however,
that (i) such successor will meet the requirements set forth in Section 7.02 and
(ii) as evidenced in writing by each of the Rating Agencies, the proposed
successor of such Special Servicer will not, in and of itself, result in a
downgrading, withdrawal or qualification of the then-current ratings provided by
the Rating Agencies in respect to any Class of then outstanding Certificates
that is rated. No penalty or fee shall be payable to the Special Servicer with
respect to any termination pursuant to this Section 7.01(d). All costs and
expenses of any such termination made without cause shall be paid by the Holders
of the Controlling Class.
(e) The Servicer and Special Servicer shall, from time to time, take
all such reasonable actions as are required by them in order to prevent the
Certificates being placed on "watch" status or downgraded due to servicing or
special servicing concerns by Moody's and maintain minimum ratings required by
Fitch to secure future commercial mortgage loan securitization transactions.
Section 7.02 Trustee to Act; Appointment of Successor.
On and after the time the Servicer or the Special Servicer, as the
case may be, either resigns pursuant to Subsection (a) of the first sentence of
Section 6.04 or receives a notice of termination for cause pursuant to Section
7.01(a), and provided that no acceptable successor has been appointed within the
time period specified in Section 7.01(c), the Trustee shall be the successor to
the Servicer and the Servicer shall be the successor to the Special Servicer,
until such successor is appointed by the Directing Certificateholder as provided
in Section 7.01(c), as applicable, in all respects in its capacity as Servicer
or Special Servicer under this Agreement and the transactions set forth or
provided for herein and shall be subject to, and have the benefit of, all of the
rights, (subject to Section 3.11 and Section 6.03) benefits, responsibilities,
duties, liabilities and limitations on liability relating thereto and that arise
thereafter placed on or for the benefit of the Servicer or Special Servicer by
the terms and provisions hereof; provided, however, that any failure to perform
such duties or responsibilities caused by the terminated party's failure under
Section 7.01 to provide information or moneys required hereunder shall not be
considered a default by such successor hereunder. The appointment of a successor
Servicer shall not affect any liability of the predecessor Servicer which may
have arisen prior to its termination as Servicer, and the appointment of a
successor Special Servicer shall not affect any liability of the predecessor
Special Servicer which may have arisen prior to its termination as Special
Servicer. The Trustee or Servicer, as applicable, in its capacity as successor
to the Servicer or the Special Servicer, as the case may be, shall not be liable
for any of the representations and warranties of the Servicer or the Special
Servicer, respectively, herein or in any related document or agreement, for any
acts or omissions of the predecessor Servicer or Special Servicer or for any
losses incurred by the Servicer pursuant to Section 3.06 hereunder, nor shall
the Trustee or the Servicer, as applicable, be required to purchase any Mortgage
Loan hereunder solely as a result of its obligations as successor Servicer or
Special Servicer, as the case may be. Subject to Section 3.11, as compensation
therefor, the Trustee as successor Servicer shall be entitled to the Servicing
Fees and all fees relating to the Mortgage Loans which the Servicer would have
been entitled to if the Servicer had continued to act hereunder, including but
not limited to any income or other benefit from any Permitted Investment
pursuant to Section 3.06, and subject to Section 3.11, the Servicer as successor
to the Special Servicer shall be entitled to the Special Servicing Fees to which
the Special Servicer would have been entitled if the Special Servicer had
continued to act hereunder. Should the Trustee or the Servicer, as applicable,
succeed to the capacity of the Servicer or the Special Servicer, as the case may
be, the Trustee or the Servicer, as applicable, shall be afforded the same
standard of care and liability as the Servicer or the Special Servicer, as
applicable, hereunder notwithstanding anything in Section 8.01 to the contrary,
but only with respect to actions taken by it in its role as successor Servicer
or successor Special Servicer, as the case may be, and not with respect to its
role as Trustee or Servicer, as applicable, hereunder. Notwithstanding the
above, the Trustee may, if it shall be unwilling to act as successor to the
Servicer, or shall, if it is unable to so act, or if the Trustee is not approved
as a servicer by each Rating Agency, or if the Directing Certificateholder or
the Holders of Certificates entitled to at least 51% of the Voting Rights so
request in writing to the Trustee, promptly appoint, or petition a court of
competent jurisdiction to appoint, any established mortgage loan servicing
institution which meets the criteria set forth in Section 6.04 and otherwise
herein, as the successor to the Servicer or the Special Servicer, as applicable,
hereunder in the assumption of all or any part of the responsibilities, duties
or liabilities of the Servicer or Special Servicer hereunder. No appointment of
a successor to the Servicer or the Special Servicer hereunder shall be effective
until the assumption in writing by the successor to the Servicer or the Special
Servicer of all its responsibilities, duties and liabilities hereunder that
arise thereafter and upon Rating Agency confirmation, and which appointment has
been approved by the Directing Certificateholder, such approval not to be
unreasonably withheld. Pending appointment of a successor to the Servicer or the
Special Servicer hereunder, unless the Trustee or the Servicer, as applicable,
shall be prohibited by law from so acting, the Trustee or the Servicer, as
applicable, shall act in such capacity as herein above provided. In connection
with such appointment and assumption of a successor to the Servicer or Special
Servicer as described herein, the Trustee or the Servicer, as applicable, may
make such arrangements for the compensation of such successor out of payments on
Mortgage Loans as it and such successor shall agree; provided, however, that no
such compensation with respect to a successor Servicer or successor Special
Servicer, as the case may be, shall be in excess of that permitted the
terminated Servicer or Special Servicer, as the case may be, hereunder. The
Trustee, the Servicer or the Special Servicer (whichever is not the terminated
party) and such successor shall take such action, consistent with this
Agreement, as shall be necessary to effectuate any such succession. Any costs
and expenses associated with the transfer of the servicing function (other than
with respect to a termination without cause) under this Agreement shall be borne
by the predecessor servicer.
Section 7.03 Notification to Certificateholders.
(a) Upon any resignation of the Servicer or the Special Servicer
pursuant to Section 6.04, any termination of the Servicer or the Special
Servicer pursuant to Section 7.01 or any appointment of a successor to the
Servicer or the Special Servicer pursuant to Section 7.02, the Trustee shall
give prompt written notice thereof to Certificateholders at their respective
addresses appearing in the Certificate Register.
(b) Not later than the later of (i) 60 days after the occurrence of
any event which constitutes or, with notice or lapse of time or both, would
constitute an Event of Default and (ii) five (5) days after the Trustee would be
deemed to have notice of the occurrence of such an event in accordance with
Section 8.02(vii), the Trustee shall transmit by mail to the Depositor and all
Certificateholders notice of such occurrence, unless such default shall have
been cured.
Section 7.04 Waiver of Events of Default.
The Holders of Certificates representing at least 662/3% of the
Voting Rights allocated to each Class of Certificates affected by any Event of
Default hereunder may waive such Event of Default within 20 days of the receipt
of notice from the Trustee of the occurrence of such Event of Default; provided,
however, that an Event of Default under clause (i) of Section 7.01(a) may be
waived only by all of the Certificateholders of the affected Classes. Upon any
such waiver of an Event of Default, such Event of Default shall cease to exist
and shall be deemed to have been remedied for every purpose hereunder. Upon any
such waiver of an Event of Default by Certificateholders, the Trustee shall be
entitled to recover all costs and expenses incurred by it in connection with
enforcement action taken with respect to such Event of Default prior to such
waiver from the Trust Fund. 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 any other Person held such
Certificates.
Section 7.05 Trustee as Maker of Advances.
(a) In the event that the Servicer fails to fulfill its obligations
hereunder to make any Advances and such failure remains uncured, the Trustee
shall perform such obligations (x) within five Business Days following such
failure by the Servicer with respect to Servicing Advances resulting in an Event
of Default under Section 7.01(a)(iii) hereof to the extent a Responsible Officer
of the Trustee has actual knowledge of such failure with respect to such
Servicing Advances and (y) by noon, New York City time, on the related
Distribution Date with respect to P&I Advances pursuant to the Trustee's notice
of failure pursuant to Section 4.03(a) unless such failure has been cured. With
respect to any such Advance made by the Trustee, the Trustee shall succeed to
all of the Servicer's rights with respect to Advances hereunder, including,
without limitation, the Servicer's rights of reimbursement and interest on each
Advance at the Reimbursement Rate, and rights to determine that a proposed
Advance is a Nonrecoverable P&I Advance or Servicing Advance, as the case may
be, (without regard to any impairment of any such rights of reimbursement caused
by such Servicer's default in its obligations hereunder); provided, however,
that if Advances made by both the Trustee and the Servicer shall at any time be
outstanding, or any interest on any Advance shall be accrued and unpaid, all
amounts available to repay such Advances and the interest thereon hereunder
shall be applied entirely to the Advances outstanding to the Trustee, until such
Advances shall have been repaid in full, together with all interest accrued
thereon, prior to reimbursement of the Servicer for such Advances. The Trustee
shall be entitled to conclusively rely on any notice given with respect to a
Nonrecoverable Advance hereunder.
[End of Article VII]
ARTICLE VIII
CONCERNING THE TRUSTEE
Section 8.01 Duties of Trustee.
(a) The Trustee, prior to the occurrence of an Event of Default and
after the curing or waiving 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 person would exercise or use under the circumstances in the conduct of
his own affairs. Any permissive right of the Trustee contained in this Agreement
shall not be construed as a duty.
(b) The Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments furnished
to the Trustee which are specifically required to be furnished pursuant to any
provision of this Agreement (other than the Mortgage Files, the review of which
is specifically governed by the terms of Article II), shall examine them to
determine whether they conform to the requirements of this Agreement. If any
such instrument is found not to conform to the requirements of this Agreement in
a material manner, the Trustee shall notify the party providing such instrument
and requesting the correction thereof. The Trustee shall not be responsible for
the accuracy or content of any resolution, certificate, statement, opinion,
report, document, order or other instrument furnished by the Depositor, the
Servicer or the Special Servicer or another Person, 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 or bad faith; provided, however, that:
(i) Prior to the occurrence of an Event of Default, and after the
curing of all such Events of Default which may have occurred, the duties
and obligations of the Trustee shall be determined solely by the express
provisions of this Agreement, the Trustee shall not be liable except for
the performance of such duties and obligations as are specifically set
forth in this Agreement, no implied covenants or obligations shall be read
into this Agreement against the Trustee and, in the absence of bad faith
on the part of the Trustee, the Trustee may conclusively rely, as to the
truth of the statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the Trustee and
conforming to the requirements of this Agreement;
(ii) The Trustee shall not be 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; and
(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% 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 (unless a
higher percentage of Voting Rights is required for such action).
(d) The Trustee shall promptly make available to the Companion
Holder all reports that the Trustee has made available to Certificateholders
under this Agreement to the extent such reports relate to AB Mortgage Loans.
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, Officer's Certificate,
certificate of auditors or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, Appraisal, bond or other
paper or document reasonably believed by it to be genuine and to have been
signed or presented by the proper party or parties;
(ii) The Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken or suffered or
omitted by it hereunder in good faith and in accordance therewith;
(iii) The Trustee shall not be under any obligation to exercise any
of the trusts or powers vested in it by this Agreement or to make any
investigation of matters arising hereunder or to institute, conduct or
defend any litigation hereunder or in relation hereto at the request,
order or direction of any of the Certificateholders, pursuant to the
provisions of this Agreement, unless such Certificateholders shall have
offered to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which may be incurred therein or thereby; the
Trustee shall not be required to expend or risk its own funds or otherwise
incur any financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if it shall
have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably
assured to it; nothing contained herein shall, however, relieve the
Trustee of the obligation, upon the occurrence of an Event of Default
which has not been cured, to exercise such of the rights and powers vested
in it by this Agreement, and to use the same degree of care and skill in
their exercise as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs;
(iv) The Trustee shall not be 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 hereunder and
after the curing of all Events of Default which may have occurred, the
Trustee shall not be bound to make any investigation into the facts or
matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval, bond or other
paper or document, unless requested in writing to do so by Holders of
Certificates entitled to at least 50% of the Voting Rights; provided,
however, that if the payment within a reasonable time to the Trustee of
the costs, expenses or liabilities likely to be incurred by it in the
making of such investigation is, in the opinion of the Trustee, not
reasonably assured to the Trustee by the security afforded to it by the
terms of this Agreement, the Trustee may require reasonable indemnity from
such requesting Holders against such expense or liability as a condition
to taking any such action. The reasonable expense of every such reasonable
examination shall be paid by the requesting Holders;
(vi) The Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents or
attorneys; provided, however, that the appointment of such agents or
attorneys shall not relieve the Trustee of its duties or obligations
hereunder;
(vii) For all purposes under this Agreement, the Trustee shall not
be deemed to have notice of any Event of Default unless a Responsible
Officer of the Trustee has actual knowledge thereof or unless written
notice of any event which is in fact such a default is received by the
Trustee at the Corporate Trust Office, and such notice references the
Certificates or this Agreement;
(viii) The Trustee shall not be responsible for any act or omission
of the Servicer or the Special Servicer (unless the Trustee is acting as
Servicer or Special Servicer, as the case may be in which case the Trustee
shall only be responsible for its own actions as Servicer or Special
Servicer) or of the Depositor; and
(ix) In performing its obligations under this Agreement, including
but not limited to Section 4.02(e), the Trustee, on behalf of the Trust,
the Depositor or otherwise, shall not be responsible or liable for
compliance with any reporting or filing requirement under any state or
federal securities laws, except to the extent specifically set forth in
this Agreement.
Section 8.03 Trustee Not Liable for Validity or Sufficiency of
Certificates or Mortgage Loans.
The recitals contained herein and in the Certificates, other than
the acknowledgments of the Trustee in Sections 2.02 and 2.05 and the signature,
if any, of the Certificate Registrar and Authenticating Agent set forth on any
outstanding Certificate, shall be taken as the statements of the Depositor, the
Servicer or the Special Servicer, as the case may be, and the Trustee assumes no
responsibility for their correctness. The Trustee makes no representations as to
the validity or sufficiency of this Agreement or of any Certificate (other than
as to the signature, if any, of the Trustee set forth thereon) or of any
Mortgage Loan or related document. The Trustee shall not be accountable for the
use or application by the Depositor of any of the Certificates issued to it or
of the proceeds of such Certificates, or for the use or application of any funds
paid to the Depositor in respect of the assignment of the Mortgage Loans to the
Trust Fund, or any funds deposited in or withdrawn from the Certificate Account
or any other account by or on behalf of the Depositor, the Servicer, the Special
Servicer or the Trustee. The Trustee shall not be responsible for the accuracy
or content of any resolution, certificate, statement, opinion, report, document,
order or other instrument furnished by the Depositor, the Servicer or the
Special Servicer and accepted by the Trustee in good faith, pursuant to this
Agreement.
Section 8.04 Trustee May Own Certificates.
The Trustee in its individual capacity, not as Trustee, may become
the owner or pledgee of Certificates, and may deal with the Depositor, the
Servicer, the Special Servicer, the Initial Purchasers and the Underwriters in
banking transactions, with the same rights it would have if it were not Trustee.
Section 8.05 Fees and Expenses of Trustee; Indemnification of
Trustee.
(a) As compensation for the performance of its duties hereunder, the
Trustee will be paid the Trustee Fee equal to the Trustee's portion of one
month's interest at the Trustee Fee Rate, which shall cover recurring and
otherwise reasonably anticipated expenses of the Trustee. The Trustee Fee shall
be paid monthly on a Mortgage Loan-by-Mortgage Loan basis. As to each Mortgage
Loan and REO Loan, the Trustee Fee shall accrue from time to time at the Trustee
Fee Rate and shall be computed on the basis of the Stated Principal Balance of
such Mortgage Loan and a 360-day year consisting of twelve 30-day months. The
Trustee Fee (which shall not be limited to any provision of law in regard to the
compensation of a trustee of an express trust) shall constitute the Trustee's
sole form of compensation for all services rendered by it 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. No Trustee Fee shall be payable with
respect to the Companion Loans.
(b) The Trustee and any director, officer, employee or agent of the
Trustee shall be entitled to be indemnified and held harmless by the Trust Fund
(to the extent of amounts on deposit in the Certificate Account or Lower-Tier
Distribution Account from time to time) against any loss, liability or expense
(including, without limitation, costs and expenses of litigation, and of
investigation, counsel fees, damages, judgments and amounts paid in settlement,
and expenses incurred in becoming successor servicer or successor Special
Servicer, to the extent not otherwise paid hereunder) arising out of, or
incurred in connection with, any act or omission of the Trustee relating to the
exercise and performance of any of the powers and duties of the Trustee
hereunder; provided, however, that none of the Trustee nor any of the other
above specified Persons shall be entitled to indemnification pursuant to this
Section 8.05(b) for (i) allocable overhead, (ii) expenses or disbursements
incurred or made by or on behalf of the Trustee in the normal course of the
Trustee's performing its duties in accordance with any of the provisions hereof,
which are not "unanticipated expenses of the REMIC" within the meaning of
Treasury Regulations Section 1.860G-1(b)(3)(ii), (iii) any expense or liability
specifically required to be borne thereby pursuant to the terms hereof or (iv)
any loss, liability or expense incurred by reason of willful misfeasance, bad
faith or negligence in the performance of the Trustee's obligations and duties
hereunder, or by reason of negligent disregard of such obligations or duties, or
as may arise from a breach of any representation, warranty or covenant of the
Trustee made herein. The provisions of this Section 8.05(b) shall survive the
termination of this Agreement and any resignation or removal of the Trustee and
appointment of a successor thereto.
Section 8.06 Eligibility Requirements for Trustee.
The Trustee hereunder shall at all times be, and will be required to
resign if it fails to be, (i) a corporation, national bank, national banking
association or a trust company, organized and doing business under the laws of
any state or the United States of America, authorized under such laws to
exercise corporate trust powers and to accept the trust conferred under this
Agreement, having a combined capital and surplus of at least $100,000,000 and
subject to supervision or examination by federal or state authority and shall
not be an Affiliate of the Servicer or the Special Servicer (except during any
period when the Trustee is acting as, or has become successor to, the Servicer
or the Special Servicer, as the case may be, pursuant to Section 7.02), (ii) an
institution insured by the Federal Deposit Insurance Corporation and (iii) an
institution whose long-term senior unsecured debt is rated "Aa3" by Xxxxx'x and
"AA-" by Fitch (or such entity as would not, as evidenced in writing by such
Rating Agency, result in the qualification, downgrading or withdrawal of any of
the ratings then assigned thereby to the Certificates).
If such corporation, national bank or national banking 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,
national bank or national banking association shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. In the event the place of business from which the Trustee administers
the Upper-Tier REMIC, the Lower-Tier REMIC and the Loan REMIC or in which the
Trustee's office is located is in a state or local jurisdiction that imposes a
tax on the Trust Fund on the net income of a REMIC (other than a tax
corresponding to a tax imposed under the REMIC Provisions), the Trustee shall
elect either to (i) resign immediately in the manner and with the effect
specified in Section 8.07, (ii) pay such tax at no expense to the Trust or (iii)
administer the Upper-Tier REMIC, the Lower-Tier REMIC and the Loan REMIC from a
state and local jurisdiction that does not impose such a tax.
Section 8.07 Resignation and Removal of the 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
Servicer, the Special Servicer and to all Certificateholders. Upon receiving
such notice of resignation, the Depositor shall promptly appoint a successor
trustee acceptable to the Servicer and the Directing Certificateholder by
written instrument, in duplicate, which instrument shall be delivered to the
resigning Trustee and to the successor trustee. A copy of such instrument shall
be delivered to the Servicer, the Special Servicer and the Certificateholders by
the Depositor. If no successor trustee shall have been so appointed and have
accepted appointment within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee.
(b) If at any time the Trustee shall cease to be eligible in
accordance with the provisions of Section 8.06 and shall fail to resign after
written request therefor by the Depositor or the Servicer, or if at any time the
Trustee shall become incapable of acting, or shall be adjudged bankrupt or
insolvent, or a receiver of the Trustee or of its property shall be appointed,
or any public officer shall take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation, or if the Trustee shall fail (other than by reason of the failure
of either the Servicer or the Special Servicer to timely perform its obligations
hereunder or as a result of other circumstances beyond the Trustee's reasonable
control), to timely publish any report to be delivered, published or otherwise
made available by the Trustee pursuant to Section 4.02 and such failure shall
continue unremedied for a period of five days, or if the Trustee fails to make
distributions required pursuant to Sections 3.05(c), 4.01 or 9.01, then the
Depositor may remove the Trustee and appoint a successor trustee acceptable to
the Servicer by written instrument, in duplicate, which instrument shall be
delivered to the Trustee so removed and to the successor trustee in the case of
the removal of the Trustee. A copy of such instrument shall be delivered to the
Servicer, the Special Servicer and the Certificateholders by the Depositor.
(c) The Holders of Certificates entitled to at least 51% of the
Voting Rights may at any time remove the Trustee and appoint a successor trustee
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 Servicer, one complete set to the Trustee so removed
and one complete set to the successor so appointed. A copy of such instrument
shall be delivered to the Depositor, the Special Servicer and the remaining
Certificateholders by the Servicer.
(d) Any resignation or removal of the Trustee and appointment of a
successor Trustee pursuant to any of the provisions of this Section 8.07 shall
not become effective until acceptance of appointment by the successor Trustee as
provided in Section 8.08.
Upon any succession of the Trustee under this Agreement, the
predecessor Trustee shall be entitled to the payment of accrued and unpaid
compensation and reimbursement as provided for under this Agreement for services
rendered and expenses incurred (including without limitation, unreimbursed
Advances). No Trustee shall be personally liable for any action or omission of
any successor Trustee.
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 Servicer, the
Special Servicer and to its predecessor Trustee an instrument accepting such
appointment hereunder, and thereupon the resignation or removal of the
predecessor Trustee shall become effective and such successor Trustee without
any further act, deed or conveyance, shall become fully vested with all the
rights, powers, duties and obligations of its predecessor hereunder, with the
like effect as if originally named as Trustee herein. The predecessor Trustee
shall deliver to the successor trustee all Mortgage Files and related documents
and statements held by it hereunder (other than any Mortgage Files at the time
held on its behalf by a Custodian, which Custodian, at Custodian's option shall
become the agent of the successor Trustee), and the Depositor, the Servicer, the
Special Servicer and the predecessor Trustee shall execute and deliver such
instruments and do such other things as may reasonably be required to more fully
and certainly vest and confirm in the successor Trustee all such rights, powers,
duties and obligations, and to enable the successor Trustee to perform its
obligations hereunder.
(b) No successor trustee shall accept appointment as provided in
this Section 8.08 unless at the time of such acceptance such successor trustee
shall be eligible under the provisions of Section 8.06.
(c) Upon acceptance of appointment by a successor trustee as
provided in this Section 8.08, the Servicer shall mail notice of the succession
of such trustee to the Depositor and the Certificateholders. If the Servicer
fails to mail such notice within 10 days after acceptance of appointment by the
successor Trustee such successor trustee shall cause such notice to be mailed at
the expense of the Servicer.
Section 8.09 Merger or Consolidation of Trustee.
Any Person into which the Trustee may be merged or converted or with
which it may be consolidated or any Person resulting from any merger, conversion
or consolidation to which the Trustee shall be a party, or any Person succeeding
to all or substantially all of the corporate trust business of the Trustee shall
be the successor of the Trustee hereunder; provided, that, in the case of the
Trustee, such successor Person 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. The Trustee will provide notice of such event to the Servicer,
the Special Servicer, the Depositor and the Rating Agencies.
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 Servicer and the Trustee acting jointly shall have the power and shall
execute and deliver all instruments to appoint one or more Persons approved by
the Trustee to act as co-trustee or co-trustees, jointly with the Trustee, or
separate trustee or separate trustees, of all or any part of the Trust Fund, and
to vest in such Person or Persons, in such capacity, such title to the Trust
Fund, or any part thereof, and, subject to the other provisions of this Section
8.10, such powers, duties, obligations, rights and trusts as the Servicer and
the Trustee may consider necessary or desirable. If the 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 shall have occurred and be continuing,
the Trustee alone shall have the power to make such appointment. No co-trustee
or separate trustee hereunder shall be required to meet the terms of eligibility
as a successor trustee under Section 8.06 hereunder and no notice to Holders of
Certificates of the appointment of co-trustee(s) or separate trustee(s) shall be
required under Section 8.08 hereof. All co-trustee fees shall be payable out of
the Trust Fund.
(b) In the case of any appointment of a co-trustee or separate
trustee pursuant to this Section 8.10, all rights, powers, duties and
obligations conferred or imposed upon the Trustee shall be conferred or imposed
upon and exercised or performed by the Trustee and such separate trustee or
co-trustee jointly, except to the extent that under any law of any jurisdiction
in which any particular act or acts are to be performed (whether as Trustee
hereunder or as successor to the Servicer or the Special Servicer hereunder),
the Trustee shall be incompetent or unqualified to perform such act or acts, in
which event such rights, powers, duties and obligations (including the holding
of title to the Trust Fund or any portion thereof in any such jurisdiction)
shall be exercised and performed by such separate trustee or co-trustee at the
direction of the Trustee.
(c) Any notice, request or other writing given to the Trustee shall
be deemed to have been given to each of the then-separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement and
the conditions of this Article VIII. Each separate trustee and co-trustee, upon
its acceptance of the trusts conferred, shall be vested with the estates or
property specified in its instrument of appointment, either jointly with the
Trustee or separately, as may be provided therein, subject to all the provisions
of this Agreement, specifically including every provision of this Agreement
relating to the conduct of, affecting the liability of, or affording protection
to, the Trustee. Every such instrument shall be filed with the Trustee.
(d) Any separate trustee or co-trustee may, at any time, constitute
the Trustee, its agent or attorney-in-fact, with full power and authority, to
the extent not prohibited by law, to do any lawful act under or in respect of
this Agreement on its behalf and in its name. If any separate trustee or
co-trustee shall 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 Servicer, appoint one or
more Custodians to hold all or a portion of the Mortgage Files as agent for the
Trustee. Each Custodian shall be a depository institution subject to supervision
by federal or state authority, shall have combined capital and surplus of at
least $15,000,000 and shall be qualified to do business in the jurisdiction in
which it holds any Mortgage File and shall not be the Depositor or any Affiliate
of the Depositor. Each Custodian shall be subject to the same obligations and
standard of care as would be imposed on 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. Any Custodian appointed hereunder must maintain a fidelity
bond and errors and omissions policy in an amount customary for Custodians which
serve in such capacity in commercial mortgage loan securitization transactions.
Section 8.12 Access to Certain Information.
(a) On or prior to the date of the first sale of any Non-Registered
Certificate to an Independent third party, the Depositor shall provide to the
Trustee three copies of any private placement memorandum or other disclosure
document used by the Depositor or its Affiliate in connection with the offer and
sale of the Class of Certificates to which such Non-Registered Certificate
relates. In addition, if any such private placement memorandum or disclosure
document is revised, amended or supplemented at any time following the delivery
thereof to the Trustee, the Depositor promptly shall inform the Trustee of such
event and shall deliver to the Trustee a copy of the private placement
memorandum or disclosure document, as revised, amended or supplemented. The
Trustee shall maintain at its offices primarily responsible for administering
the Trust Fund and shall, upon reasonable advance notice, make available during
normal business hours for review by any Holder of a Certificate, the Depositor,
the Servicer, the Special Servicer, any Rating Agency or any other Person to
whom the Trustee believes such disclosure is appropriate, originals or copies of
the following items: (i) in the case of a Holder or prospective transferee of a
Non-Registered Certificate, any private placement memorandum or other disclosure
document relating to the Class of Certificates to which such Non-Registered
Certificate belongs, in the form most recently provided to the Trustee and (ii)
in all cases, (a) this Agreement and any amendments hereto entered into pursuant
to Section 11.01, (b) all statements required to be delivered to
Certificateholders of the relevant Class pursuant to Section 4.02 since the
Closing Date, (c) all Officer's Certificates delivered to the Trustee since the
Closing Date pursuant to Section 3.13, (d) all accountants' reports delivered to
the Trustee since the Closing Date pursuant to Section 3.14, (e) any inspection
report prepared by the Servicer, Sub-Servicer or Special Servicer, as
applicable, and delivered to the Trustee and Servicer in respect of each
Mortgaged Property pursuant to Section 3.12(a), (f) as to each Mortgage Loan
pursuant to which the related Mortgagor is required to deliver such items or the
Special Servicer has otherwise acquired such items, the most recent annual
operating statement and rent roll of the related Mortgaged Property and
financial statements of the related Mortgagor and any other reports of the
Mortgagor collected by the Servicer, Sub-Servicer or Special Servicer, as
applicable, and delivered to the Trustee pursuant to Section 3.12(c), together
with the accompanying written reports to be prepared by the Special Servicer and
delivered to the Trustee pursuant to Section 3.12(b), (g) any and all notices,
reports and Environmental Assessments delivered to the Trustee with respect to
any Mortgaged Property securing a Defaulted Mortgage Loan as to which the
environmental testing contemplated by Section 3.09(c) revealed that either of
the conditions set forth in clauses (i) and (ii) of the first sentence thereof
was not satisfied (but only for so long as such Mortgaged Property or the
related Mortgage Loan are part of the Trust Fund), (h) any and all
modifications, waivers and amendments of the terms of a Mortgage Loan entered
into by the Servicer or the Special Servicer and delivered to the Trustee
pursuant to Section 3.20 (but only for so long as the affected Mortgage Loan is
part of the Trust Fund), (i) any and all Officer's Certificates delivered to the
Trustee to support the Servicer's determination that any P&I Advance or
Servicing Advance was or, if made, would be a Nonrecoverable P&I Advance or
Nonrecoverable Servicing Advance, as the case may be, (j) any and all of the
Mortgage Loan documents contained in the Mortgage File, (k) any and all
Appraisals obtained pursuant to the definition of "Appraisal Reduction" herein,
(l) information regarding the occurrence of Servicing Transfer Events as to the
Mortgage Loans and (m) any and all Sub-Servicing Agreements and any amendments
thereto and modifications thereof. Copies of any and all of the foregoing items
will be available from the Trustee upon request; provided, however, that the
Trustee shall be permitted to require payment of a sum sufficient to cover the
reasonable costs and expenses of providing such copies, except in the case of
copies provided to the Directing Certificateholder or the Rating Agencies, which
shall be free of charge (except for extraordinary or duplicate requests). In
addition, without limiting the generality of the foregoing, any Class H, Class
J, Class K, Class L, Class M, Class N and Class NR Certificateholder may upon
request from the Trustee obtain a copy of any factual report (other than the
Asset Status Report) delivered to the Rating Agencies under this Agreement.
Nothing contained in this Section 8.12(a) shall be construed to limit the
reports and information described on Exhibit N attached hereto and required to
be delivered to the Directing Certificateholder without charge. The Class S-1,
Class S-2 and Class S-3 Certificates may, with respect to the Simon Mortgage
Loan, upon request of the Trustee obtain a copy of any factual report (other
than the Asset Status Report) delivered to the Rating Agencies under this
Agreement.
(b) The Trustee shall make available certain financial market
publishers, which initially shall be Bloomberg, L.P., on a monthly basis, all
CMSA reports and any other reports required to be provided by the Trustee
pursuant to Article IV hereof. If any such information is provided on or before
January 27, 2003, the Trustee shall make the Prospectus available to Bloomberg,
L.P.
(c) Notwithstanding anything to the contrary herein, in addition to
the reports and information made available and distributed pursuant to the terms
of this Agreement (including the information set forth in Section 8.12(a)), the
Trustee shall, in accordance with such reasonable rules and procedures as each
may adopt (which may include the requirement that an agreement that provides
that such information shall be used solely for purposes of evaluating the
investment characteristics of the Certificates be executed), also provide the
reports available to Certificateholders pursuant to Section 4.02, as well as
certain additional information received by the Trustee, to any
Certificateholder, the Underwriters, the Placement Agents, any Certificate Owner
or any prospective investor identified as such by a Certificate Owner or
Underwriter, that requests such reports or information; provided that the
Trustee, as the case may be, shall be permitted to require payment of a sum
sufficient to cover the reasonable costs and expenses of providing copies of
such reports or information.
(d) With respect to any information furnished by the Trustee
pursuant to this Section 8.12, the Trustee shall be entitled to indicate the
source of such information and the Trustee may affix thereto any disclaimer it
deems appropriate in its discretion. The Trustee shall notify Certificateholders
of the availability of any such information in any manner as it, in its sole
discretion, may determine. In connection with providing access to or copies of
the items described in the preceding paragraph, the Trustee may require (a) in
the case of Certificate Owners, a confirmation executed by the requesting Person
substantially in form and substance reasonably acceptable to the Trustee, as
applicable, generally to the effect that such Person is a beneficial holder of
Certificates, is requesting the information solely for use in evaluating such
Person's investment in the Certificates and will otherwise keep such information
confidential and (b) in the case of a prospective purchaser, confirmation
executed by the requesting Person in form and substance 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 solely
for use in evaluating a possible investment in Certificates and will otherwise
keep such information confidential. The Trustee shall not be liable for the
dissemination of information in accordance with this Agreement.
Section 8.13 Representations and Warranties of the Trustee.
(a) The Trustee hereby represents and warrants to the Depositor, the
Servicer and the Special Servicer, and for the benefit of the
Certificateholders, as of the Closing Date, that:
(i) The Trustee is a national banking association duly organized
under the laws of the United States, duly organized, validly existing and
in good standing under the laws thereof;
(ii) The execution and delivery of this Agreement by the Trustee,
and the performance and compliance with the terms of this Agreement by the
Trustee, will not violate the Trustee's charter and by-laws or constitute
a default (or an event which, with notice or lapse of time, or both, would
constitute a default) under, or result in the breach of, any material
agreement or other instrument to which it is a party or which is
applicable to it or any of its assets;
(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, moratorium and other laws affecting the
enforcement of creditors' rights generally and the rights of creditors of
national banking associations specifically and (b) general principles of
equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law;
(v) The Trustee is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or
demand of any federal, state or local governmental or regulatory
authority, which violation, in the Trustee's good faith and reasonable
judgment, is likely to affect materially and adversely either the ability
of the Trustee to perform its obligations under this Agreement or the
financial condition of the Trustee;
(vi) No litigation is pending or, to the best of the Trustee's
knowledge, threatened against the Trustee which would prohibit the Trustee
from entering into this Agreement or, in the Trustee's good faith and
reasonable judgment, is likely to materially and adversely affect either
the ability of the Trustee to perform its obligations under this Agreement
or the financial condition of the Trustee; and
(vii) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Trustee, or compliance by the Trustee with, this
Agreement or the consummation of the transactions contemplated by this
Agreement, except for any consent, approval, authorization or order which
has not been obtained or cannot be obtained prior to the actual
performance by the Trustee of its obligations under this Agreement, and
which, if not obtained would not have a materially adverse effect on the
ability of the Trustee to perform its obligations hereunder.
[End of Article VIII]
ARTICLE IX
TERMINATION
Section 9.01 Termination upon Repurchase or Liquidation of All
Mortgage Loans.
Subject to Section 9.02, the Trust Fund and the respective
obligations and responsibilities under this Agreement of the Depositor, the
Servicer, the Special Servicer and the Trustee (other than the obligations of
the Trustee to provide for and make payments to Certificateholders as hereafter
set forth) shall terminate upon payment (or provision for payment) to the
Certificateholders of all amounts held by the Trustee and required hereunder to
be so paid on the Distribution Date following the earlier to occur of (i) the
final payment (or related Advance) or other liquidation of the last Mortgage
Loan or REO Property subject thereto or (ii) the purchase or other liquidation
by the Holders of the majority of the Controlling Class, the Special Servicer,
the Servicer or the Holders of the Class LR Certificates, in that order of
priority, of all the Mortgage Loans and each REO Property remaining in the Trust
Fund at a price equal to (a) the sum of (1) the aggregate Purchase Price of all
the Mortgage Loans (exclusive of REO Loans) included in the Trust Fund, (2) the
Appraised Value of each REO Property, if any, included in the Trust Fund (such
Appraisals in clause (a)(2) to be conducted by an Independent MAI-designated
appraiser selected and mutually agreed upon by the Servicer and the Trustee, and
approved by more than 50% of the Voting Rights of the Classes of Certificates
then outstanding (other than the Controlling Class unless the Controlling Class
is the only Class of Certificates then outstanding)) (which approval shall be
deemed given unless more than 50% of such Certificateholders object within 20
days of receipt of notice thereof) and (3) the reasonable out-of-pocket expenses
of the Servicer with respect to such termination, unless the Servicer is the
purchaser of such Mortgage Loans, minus (b) solely in the case where the
Servicer is effecting such purchase, the aggregate amount of unreimbursed
Advances, together with any interest accrued and payable to the Servicer in
respect of such Advances in accordance with Sections 3.03(d) and 4.03(d) and any
unpaid Servicing Fees, remaining outstanding (which items shall be deemed to
have been paid or reimbursed to the Servicer in connection with such purchase)
and (ii) the final payment or other liquidation (or any advance with respect
thereto) of the last Mortgage Loan or REO Property remaining in the Trust Fund;
provided, however, that in no event shall the trust created hereby continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late ambassador of the United States to
the Court of St. James's, living on the date hereof.
The obligations and responsibilities under this Agreement of the
Depositor, the Servicer, the Special Servicer, the Trustee and the Companion
Paying Agent shall terminate with respect to any Companion Loan to the extent
(i) its related AB Morgtgage Loan has been paid in full or is no longer part of
the Trust Fund and (ii) no amounts payable by the related Companion Holder to or
for the benefit of the Trust or any party hereto in accordance with the related
AB Intercreditor Agreement remain due and owing.
The Holders of the majority of the Controlling Class, the Special
Servicer, the Servicer or the Holders of the Class LR Certificates, in that
order of priority, may, at their option, elect to purchase all of the Mortgage
Loans (and all property acquired through exercise of remedies in respect of any
mortgage loan) and each REO Property remaining in the Trust Fund as contemplated
by clause (i) of the preceding paragraph by giving written notice to the Trustee
and the other parties hereto no later than 60 days prior to the anticipated date
of purchase; provided, however, that the Servicer, the Special Servicer, the
Holders of the Controlling Class or the Holders of the Class LR Certificates may
so elect to purchase all of the Mortgage Loans and each REO Property remaining
in the Trust Fund only on or after the first Distribution Date on which the
aggregate Stated Principal Balances of the Mortgage Loans and any REO Loans
remaining in the Trust Fund is less than 1% of the aggregate Cut-off Date
Principal Balance of the Mortgage Loans set forth in the Preliminary Statement.
In the event that the Servicer, the Special Servicer, the Holders of the
Controlling Class or the Holders of the Class LR Certificates purchases all of
the Mortgage Loans and each REO Property remaining in the Trust Fund in
accordance with the preceding sentence, the Servicer, the Special Servicer, the
Holders of the Controlling Class or the Holders of the Class LR Certificates, as
applicable, shall deposit in the Lower-Tier Distribution Account (or in the Loan
REMIC Distribution Account to the extent allocable to the Simon Mortgage Loan)
not later than the P&I Advance Date relating to the Distribution Date on which
the final distribution on the Certificates is to occur, an amount in immediately
available funds equal to the above-described purchase price (exclusive of any
portion thereof payable to any Person other than the Certificateholders pursuant
to Section 3.05(a), which portion shall be deposited in the Certificate
Account). In addition, the Servicer shall transfer to the Loan REMIC
Distribution Account and the Lower-Tier Distribution Account all amounts
required to be transferred thereto on such P&I Advance Date from the Certificate
Account pursuant to the first paragraph of Section 3.04(b), together with any
other amounts on deposit in the Certificate Account that would otherwise be held
for future distribution. Upon confirmation that such final deposits have been
made, the Trustee shall release or cause to be released to the Servicer, the
Special Servicer, the Holders of the Controlling Class or the Holders of the
Class LR Certificates, as applicable, the Mortgage Files for the remaining
Mortgage Loans and shall execute all assignments, endorsements and other
instruments furnished to it by the Servicer, the Special Servicer, the Holders
of the Controlling Class or the Holders of the Class LR Certificates, as
applicable, as shall be necessary to effectuate transfer of the Mortgage Loans
and REO Properties remaining in the Trust Fund.
For purposes of this Section 9.01, the Holders of the majority of
the Controlling Class shall have the first option to terminate the Trust Fund,
then the Special Servicer, then the Servicer, and then the Holders of the Class
LR Certificates. For purposes of this Section 9.01, the Directing
Certificateholder, with the consent of the Holders of the Controlling Class,
shall act on behalf of the Holders of the Controlling Class in purchasing the
assets of the Trust Fund and terminating the Trust.
Notice of any termination pursuant to this Section 9.01 shall be
given promptly by the Trustee by letter to Certificateholders and each Rating
Agency and, if not previously notified pursuant to this Section 9.01, to the
other parties hereto mailed (a) in the event such notice is given in connection
with the purchase of all of the Mortgage Loans and each REO Property remaining
in the Trust Fund, not earlier than the 15th day and not later than the 25th day
of the month next preceding the month of the final distribution on the
Certificates, or (b) otherwise during the month of such final distribution on or
before the P&I Advance Determination Date in such month, in each case specifying
(i) the Distribution Date upon which the Trust Fund will terminate and final
payment of the Certificates will be made, (ii) the amount of any such final
payment and (iii) that the Record Date otherwise applicable to such Distribution
Date is not applicable, payments being made only upon presentation and surrender
of the Certificates at the offices of the Certificate Registrar or such other
location therein designated.
After transferring (i) amounts distributable on the Loan REMIC
Regular Interests and the amount of any Yield Maintenance Charges with respect
to the Simon Mortgage Loan distributable pursuant to Section 4.01(d) to the
Lower-Tier Distribution Account, and (ii) the Lower-Tier Distribution Amount and
the amount of any Yield Maintenance Charges (other than with respect to the
Simon Mortgage Loan) distributable pursuant to Section 4.01(d) to the Upper-Tier
Distribution Account, in each case 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 and to the Holders of the Class NR
Certificates any amounts remaining on deposit in the Excess Interest
Substitution Account. Amounts transferred from the Loan REMIC Distribution
Account to the Lower-Tier Distribution Account and from the Lower-Tier
Distribution Account to the Upper-Tier Distribution Account as of the final
Distribution Date (exclusive of any portion of such amounts payable or
reimbursable to any Person pursuant to clause (ii) of Section 3.05(e)) shall be
allocated for the purposes, in the amounts and in accordance with the priority
set forth in Sections 4.01(b), 4.01(d), 4.01(j) and 4.01(k) and shall be
distributed in termination and liquidation of the Loan REMIC Regular Interests
and the Uncertificated Lower-Tier Interests and the Class LR Certificates in
accordance with Sections 4.01(b) and 4.01(d). Any funds not distributed on such
Distribution Date shall be set aside and held uninvested in trust for the
benefit of the Certificateholders not presenting and surrendering their
Certificates in the aforesaid manner and shall be disposed of in accordance with
this Section 9.01 and Section 4.01(g).
Section 9.02 Additional Termination Requirements.
In the event the Servicer, the Special Servicer, the Holders of the
Controlling Class or the Holders of the Class LR Certificates purchases all of
the Mortgage Loans and each REO Property remaining in the Trust Fund as provided
in Section 9.01, the Trust Fund shall be terminated in accordance with the
following additional requirements, which meet the definition of a "qualified
liquidation" in Section 860F(a)(4) of the Code:
(i) the Trustee shall specify the date of adoption of the plan of
complete liquidation (which shall be the date of mailing of the notice
specified in Section 9.01) in a statement attached to each of the Loan
REMIC's, Upper-Tier REMIC's and the Lower-Tier REMIC's final Tax Return
pursuant to Treasury Regulations Section 1.860F-1;
(ii) during the 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 the Trust Fund to the Servicer, the
Special Servicer, the Holders of the Controlling Class or the Holders of
the Class LR Certificates, as applicable, for cash; and
(iii) within such 90 day liquidation period and immediately
following the making of the final payment on the Loan REMIC Regular
Interests, Uncertificated Lower-Tier Interests and the Certificates, the
Trustee shall distribute or credit, or cause to be distributed or
credited, to the Holders of the Class LR Certificates (in the case of the
Lower-Tier REMIC and Loan 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), and the Trust Fund and each of the Loan REMIC, the
Lower-Tier REMIC and the Upper-Tier REMIC shall terminate at that time.
[End of Article IX]
ARTICLE X
ADDITIONAL REMIC PROVISIONS
Section 10.01 REMIC Administration.
(a) The Trustee shall make elections or cause elections to be made
to treat each of the Loan REMIC, the Lower-Tier REMIC and the Upper-Tier REMIC
as a REMIC under the Code and, if necessary, under Applicable State and Local
Tax Law. Each such election will be made on Form 1066 or other appropriate
federal tax return for the taxable year ending on the last day of the calendar
year in which the Uncertificated Lower-Tier Interests and the Certificates are
issued. For the purposes of the REMIC election in respect of the Upper-Tier
REMIC, each Class of the Regular Certificates and the Class S Certificates shall
be designated as the "regular interests" (in the case of the Class NR
Certificates, exclusive of the portion thereof, representing the right to Excess
Interest and Amounts in the Excess Interest Distribution Account)and the Class R
Certificates shall be designated as the sole class of "residual interests" in
the Upper-Tier REMIC. For purposes of the REMIC election in respect of the
Lower-Tier REMIC, each Class of Uncertificated Lower-Tier Interests shall be
designated as the "regular interests" and the Class LR Certificates shall be
designated as the sole class of "residual interests" in the Lower-Tier REMIC.
For purposes of the REMIC election in respect of the Loan REMIC, each Class of
Loan REMIC Regular Interests shall be designated as the "regular interests" and
the Class LR Certificates shall be designated as representing the sole class of
"residual interests" in the Loan REMIC. None of the Special Servicer, the
Servicer nor the Trustee shall permit the creation of any "interests" (within
the meaning of Section 860G of the Code) in the Loan REMIC, the Lower-Tier REMIC
or the Upper-Tier REMIC other than the foregoing interests.
(b) The Closing Date is hereby designated as the "startup day" of
each of the Loan REMIC, the Lower-Tier REMIC and the Upper-Tier REMIC within the
meaning of Section 860G(a)(9) of the Code.
(c) The Trustee shall act on behalf of each REMIC in relation to any
tax matter or controversy involving any REMIC and shall represent each REMIC in
any administrative or judicial proceeding relating to an examination or audit by
any governmental taxing authority with respect thereto. The legal expenses,
including without limitation attorneys' or accountants' fees, and costs of any
such proceeding and any liability resulting therefrom shall be expenses of the
Trust Fund and the Trustee shall be entitled to reimbursement therefor out of
amounts attributable to the Mortgage Loans and any REO Properties on deposit in
the Certificate Account as provided by Section 3.05(a) unless such legal
expenses and costs are incurred by reason of the Trustee's willful misfeasance,
bad faith or gross negligence. The Holder of the largest Percentage Interest in
each of the (i) Class R and (ii) Class LR Certificates shall be designated, in
the manner provided under Treasury Regulations Section 1.860F-4(d) and temporary
Treasury Regulations Section 301.6231(a)(7)-1T, as the "tax matters person" of
the (i) Upper-Tier REMIC and (ii) the Lower-Tier REMIC and the Loan REMIC,
respectively. By their acceptance thereof, the Holders of the largest Percentage
Interest in each of the (i) Class R and (ii) Class LR Certificates hereby agrees
to irrevocably appoint the Trustee as their agent to perform all of the duties
of the "tax matters person" for the (i) Upper-Tier REMIC, (ii) the Lower-Tier
REMIC and the Loan REMIC, respectively.
(d) The Trustee shall prepare or cause to be prepared and shall
file, or cause to be filed, all of the Tax Returns that it determines are
required with respect to each of the Loan REMIC, the Lower-Tier REMIC and the
Upper-Tier REMIC created hereunder, and shall sign such Tax Returns in a timely
manner. The ordinary expenses of preparing such returns shall be borne by the
Trustee without any right of reimbursement therefor.
(e) The Trustee shall provide or cause to be provided (i) to any
Transferor of a Class R Certificate or Class LR Certificate such information as
is necessary for the application of any tax relating to the transfer of such
Class R Certificate or Class LR Certificate to any Person who is a Disqualified
Organization, or in the case of a Transfer to an Agent thereof, to such Agent,
(ii) to the Certificateholders such information or reports as are required by
the Code or the REMIC Provisions including reports relating to interest,
original issue discount and market discount or premium (using the Prepayment
Assumption) and (iii) to the Internal Revenue Service on Form 8811, within 30
days after the Closing Date, the name, title, address and telephone number of
the "tax matters person" who will serve as the representative of each of the
Loan REMIC, the Lower-Tier REMIC and the Upper-Tier REMIC created hereunder.
(f) 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 of the Loan REMIC, the Lower-Tier REMIC and the
Upper-Tier REMIC as a REMIC under the REMIC Provisions. Neither the Servicer nor
the Special Servicer 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) endanger the status of the Loan REMIC, the Lower-Tier
REMIC or the Upper-Tier REMIC as a REMIC or (ii) result in the imposition of a
tax upon the Loan REMIC, the Lower-Tier REMIC or the Upper-Tier REMIC or the
Trust Fund (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, but not including the tax on
"net income from foreclosure property") (either such event, an "Adverse REMIC
Event") unless the Trustee 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 the Trustee 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 the Trustee) to the effect that the contemplated
action will not, with respect to the Trust Fund, the Loan REMIC, the Lower-Tier
REMIC or the Upper-Tier REMIC created hereunder, endanger such status or, unless
the Trustee determines in its sole discretion to indemnify the Trust Fund
against such tax, result in the imposition of such a tax (not including a tax on
"net income from foreclosure property"). The Trustee shall not take or fail to
take any action (whether or not authorized hereunder) as to which it has
received an Opinion of Counsel to the effect that an Adverse REMIC Event could
occur with respect to such action. 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, but in no event at
the expense of the Trustee. 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 more
specifically set forth herein, maintain substantially all of the assets of each
of the Loan REMIC, the Lower-Tier REMIC and the Upper-Tier REMIC as "qualified
mortgages" as defined in Section 860G(a)(3) of the Code and "permitted
investments" as defined in Section 860G(a)(5) of the Code.
(g) In the event that any applicable federal, state or local tax,
including interest, penalties or assessments, additional amounts or additions to
tax, is imposed on the Loan REMIC, the Lower-Tier REMIC or the Upper-Tier REMIC,
such tax shall be charged against amounts otherwise distributable to the Holders
of the Certificates, except as provided in the last sentence of this Section
10.01(g); provided that with respect to the estimated amount of tax imposed on
any "net income from foreclosure property" pursuant to Code Section 860G(c) or
any similar tax imposed by a state or local tax authority, the Special Servicer
shall retain in the related REO Account a reserve for the payment of such taxes
in such amounts and at such times as it shall deem appropriate (or as advised by
the Trustee in writing), and shall remit to the Servicer such reserved amounts
as the Servicer shall request in order to pay such taxes. Except as provided in
the preceding sentence, the Servicer shall withdraw from the Certificate Account
sufficient funds to pay or provide for the payment of, and to actually pay, such
tax as is estimated to be legally owed by the Loan REMIC, the Lower-Tier REMIC
or the Upper-Tier REMIC (but such authorization shall not prevent the Trustee
from contesting, at the expense of the Trust Fund (other than as a consequence
of a breach of its obligations under this Agreement), any such tax in
appropriate proceedings, and withholding payment of such tax, if permitted by
law, pending the outcome of such proceedings). The Trustee is hereby authorized
to and shall segregate, into a separate non-interest bearing account, the net
income from any "prohibited transaction" under Code Section 860F(a) or the
amount of any taxable contribution to the Loan REMIC, the Lower-Tier REMIC or
the Upper-Tier REMIC after the Startup Day that is subject to tax under Code
Section 860G(d) and use such income or amount, to the extent necessary, to pay
such prohibited transactions tax. To the extent that any such tax (other than
any such tax paid in respect of "net income from foreclosure property") is paid
to the Internal Revenue Service or applicable state or local tax authorities,
the Trustee shall retain an equal amount from future amounts otherwise
distributable to the Holders of Residual Certificates (as applicable) and shall
distribute such retained amounts, (x) in the case of the Loan REMIC Regular
Interests, to the Lower-Tier REMIC, to the Holders of the Uncertificated
Lower-Tier REMIC Interests, to the Upper-Tier REMIC to the extent they are fully
reimbursed for any Collateral Support Deficit arising therefrom and then to the
Holders of the Class LR Certificates in the manner specified in Section 4.01(b)
and (y) in the case of the Upper-Tier REMIC, to the Holders of Class A, 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 NR, Class X-1 and Class X-2 Certificates, as applicable,
in the manner specified in Section 4.01(a), to the extent they are fully
reimbursed for any Collateral Support Deficit arising therefrom and then to the
Holders of the Class R Certificates. None of the Trustee, the Servicer or the
Special Servicer shall be responsible for any taxes imposed on the Loan REMIC,
the Lower-Tier REMIC or the Upper-Tier REMIC except to the extent such taxes
arise as a consequence of a breach of their respective obligations under this
Agreement which breach constitutes willful misfeasance, bad faith, or negligence
by such party.
(h) The Trustee (but only to the extent, if any, specifically
required to maintain books and records hereunder) shall, for federal income tax
purposes, maintain books and records with respect to each of the Loan REMIC, the
Lower-Tier REMIC and the Upper-Tier REMIC on a calendar year and on an accrual
basis or as otherwise may be required by the REMIC Provisions.
(i) Following the Startup Day, the Trustee shall not accept any
contributions of assets to the Loan REMIC, the Lower-Tier REMIC and the
Upper-Tier REMIC unless 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 the Loan REMIC, the Lower-Tier REMIC or the
Upper-Tier REMIC will not (i) cause the Loan REMIC, the Lower-Tier REMIC or the
Upper-Tier REMIC to fail to qualify as a REMIC at any time that any Loan REMIC
Regular Interests, Uncertificated Lower-Tier Interests or Certificates are
outstanding or (ii) subject any of the Trust Fund or the Loan REMIC, the
Lower-Tier REMIC or the Upper-Tier REMIC to any tax under the REMIC Provisions
or other applicable provisions of federal, state and local law or ordinances.
(j) The Trustee shall not enter into any arrangement by which the
Trust Fund or the Loan REMIC, the Lower-Tier REMIC or the Upper-Tier REMIC will
receive a fee or other compensation for services nor permit the Trust Fund or
the Loan REMIC, the Lower-Tier REMIC or the Upper-Tier REMIC to receive any
income from assets other than "qualified mortgages" as defined in Section
860G(a)(3) of the Code or "permitted investments" as defined in Section
860G(a)(5) of the Code.
(k) Solely for the purposes of Section 1.860G-1(a)(4)(iii) of the
Treasury Regulations, the "latest possible maturity date" by which the
Certificate Balance of each Class of Certificates (other than the Class X-2
Certificates) representing a "regular interest" in the Upper-Tier REMIC and by
which the Lower-Tier Principal Amount of each Class of Uncertificated Lower-Tier
Interests representing a "regular interest" in the Lower-Tier REMIC, and the
Lower-Tier Principal Amount of any Class of Loan REMIC Regular Interests
representing a "regular interest" in the Loan REMIC would be reduced to zero is
the Rated Final Distribution Date, the "latest possible maturity date" of the
Class X-2 Certificates is the Class X-2 Termination Date.
(l) None of the Trustee, the Servicer or the Special Servicer, as
applicable, shall sell, 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 foreclosure or deed in lieu of foreclosure, (ii)
the bankruptcy of the Trust Fund, (iii) the termination of the Trust Fund
pursuant to Article IX of this Agreement or (iv) a purchase of Mortgage Loans
pursuant to Article II or III of this Agreement) or acquire any assets for the
Trust Fund or the Loan REMIC, the Lower-Tier REMIC or the Upper-Tier REMIC or
sell or dispose of any investments in the Certificate Account or the REO Account
for gain unless it has received an Opinion of Counsel that such sale,
disposition or substitution will not (a) affect adversely the status of the Loan
REMIC, the Lower-Tier REMIC or the Upper-Tier REMIC as a REMIC or (b) unless the
Servicer or the Special Servicer, as applicable, has determined in its sole
discretion to indemnify the Trust Fund against such tax, cause the Trust Fund or
the Loan REMIC, the Lower-Tier REMIC or the Upper-Tier REMIC to be subject to a
tax on "prohibited transactions" pursuant to the REMIC Provisions.
Section 10.02 Use of Agents.
The Trustee shall execute all of its obligations and duties under
this Article X through its corporate trust department located at 0000 Xxx
Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000. The Trustee may execute any of its
obligations and duties under this Article X either directly or by or through
agents or attorneys. The Trustee shall not be relieved of any of its duties or
obligations under this Article X by virtue of the appointment of any such agents
or attorneys.
Section 10.03 Depositor, Servicer and Special Servicer to Cooperate
with Trustee.
(a) The Depositor shall provide or cause to be provided to the
Trustee within ten (10) days after the Depositor receives a request from the
Trustee, 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, without limitation, the price, yield, Prepayment
Assumptions and projected cash flow of the Certificates.
(b) The Servicer and the Special Servicer shall each furnish such
reports, certifications and information, and upon reasonable notice and during
normal business hours, 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 hereunder.
[End of Article X]
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01 Amendment.
(a) This Agreement may be amended from time to time by the parties
hereto, without the consent of any of the Certificateholders or the Companion
Holders:
(i) to cure any ambiguity to the extent that it does not adversely
affect any Certificateholder;
(ii) to correct or supplement any provisions herein or therein,
which may be inconsistent with any other provisions herein or therein or
to correct any error;
(iii) to modify, eliminate or add to any of its provisions to such
extent as shall be necessary to maintain the qualification of the Trust
Fund or any of the Loan REMIC, the Lower-Tier REMIC or the Upper-Tier
REMIC as a REMIC, or the Grantor Trust as a grantor trust at all times
that any Certificate is outstanding or to avoid or minimize the risk of
the imposition of any tax on the Trust Fund or any of the Loan REMIC, the
Lower-Tier REMIC or the Upper-Tier REMIC pursuant to the Code that would
be a claim against the Trust Fund or any of the Loan REMIC, the Lower-Tier
REMIC or the Upper-Tier REMIC, provided that the Trustee has received an
Opinion of Counsel to the effect that (a) such action is necessary or
desirable to maintain such qualification or to avoid or minimize the risk
of the imposition of any such tax and (b) such action will not adversely
affect in any material respect the interests of any Certificateholder;
(iv) to change the timing and/or nature of deposits into the
Certificate Account, the Simon Collection Account, the Distribution
Accounts or REO Account or to change the name in which the Certificate
Account or the Simon Collection Account is maintained, provided that (a)
the P&I Advance Date shall in no event be later than the related
Distribution Date, (b) such change shall not, as evidenced by an Opinion
of Counsel, adversely affect in any material respect the interests of any
Certificateholder and (c) such change shall not result in the withdrawal,
downgrade or qualification of the then-current rating assigned to any
Class of Certificates, as evidenced by a letter from each Rating Agency to
such effect;
(v) to modify, eliminate or add to the provisions of Section 5.02(d)
or any other provision hereof restricting transfer of the Residual
Certificates by virtue of their being the REMIC "residual interests,"
provided that such change shall not, as evidenced by an Opinion of
Counsel, cause the Trust Fund, the Loan REMIC, the Lower-Tier REMIC, the
Upper-Tier REMIC or any of the Certificateholders (other than the
Transferor) to be subject to a federal tax caused by a Transfer to a
Person that is a Disqualified Organization or a Non-U.S. Person;
(vi) to make any other provisions with respect to matters or
questions arising under this Agreement which shall not be materially
inconsistent with the provisions of this Agreement, provided that such
action shall not, (x) as evidenced by an Opinion of Counsel, adversely
affect in any material respect the interests of any Certificateholder not
consenting thereto (y) result in the downgrade, withdrawal or
qualification of the then-current rating assigned to any Class of
Certificates, as evidenced by a letter from each Rating Agency to such
effect; and
(vii) to amend or supplement any provision hereof to the extent
necessary to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency provided that such change shall not
result in the downgrade, withdrawal or qualification of the then-current
rating assigned to any Class of Certificates, as evidenced by a letter
from each Rating Agency to such effect; provided that no such amendment
changes in any manner the obligations of any Mortgage Loan Seller under a
Mortgage Loan Purchase Agreement without the consent of each Mortgage Loan
Seller.
(b) This Agreement may also be amended from time to time by the
parties hereto with the consent of the Holders of Certificates evidencing in the
aggregate not less than 662/3% of the Percentage Interests of each Class of
Certificates affected thereby 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 of such
Class; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments 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 a Companion Holder, without the consent of such Companion
Holder; or
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment, in any
such case without the consent of the Holders of all Certificates of such
Class then outstanding; or
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of all Certificates of
such Class then outstanding; or
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of
each Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders or written
confirmation that such amendment would not result in the downgrading,
qualification or withdrawal of ratings assigned to any Class of
Certificates by any Rating Agency, amend the Servicing Standard.
(c) Notwithstanding the foregoing, neither the Trustee, the
Depositor, the Servicer nor the Special Servicer will be required to consent to
any amendment hereto without having first received an Opinion of Counsel (at the
Trust Fund's expense) to the effect that such amendment is permitted hereunder
and that such amendment or the exercise of any power granted to the Servicer,
the Depositor, the Special Servicer, the Trustee or any other specified person
in accordance with such amendment will not result in the imposition of a tax on
any portion of the Trust Fund, the Loan REMIC, the Lower-Tier REMIC, the
Upper-Tier REMIC or the Grantor Trust, cause the Loan REMIC, the Lower-Tier
REMIC or the Upper-Tier REMIC to fail to qualify as a REMIC, or cause the
Grantor Trust to fail to qualify as a grantor trust.
(d) Promptly after the execution of any such amendment, the Trustee
shall furnish a copy of such amendment to each Certificateholder and Rating
Agency.
(e) It shall not be necessary for the consent of Certificateholders
under this Section 11.01 to approve the particular form of any proposed
amendment, but it shall be sufficient if such consent shall approve the
substance thereof. The manner of obtaining such consents and of evidencing the
authorization of the execution thereof by Certificateholders shall be subject to
such reasonable regulations as the Trustee may prescribe.
(f) The Trustee shall not be obligated to enter into any amendment
pursuant to this Section that affects its rights, duties and immunities under
this Agreement or otherwise.
(g) The cost of any Opinion of Counsel to be delivered pursuant to
Section 11.01(a) or (c) shall be borne by the Person seeking the related
amendment, except that if the Servicer or the Trustee requests any amendment of
this Agreement 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 Certificate Account.
(h) The Servicing Standards shall not be amended unless each Rating
Agency provides a written confirmation that such amendment would not cause a
downgrading, qualification or withdrawal of the then current ratings assigned to
any of the Certificates.
Section 11.02 Recordation of Agreement; Counterparts.
(a) To the extent permitted by applicable law, this Agreement is
subject to recordation in all appropriate public offices for real property
records in all the counties or other comparable jurisdictions in which any or
all of the properties subject to the Mortgages are situated, and in any other
appropriate public recording office or elsewhere, such recordation to be
effected by the Trustee at the expense of the Depositor on direction by the
Special Servicer and with the consent of the Depositor (which may not be
unreasonably withheld), but only upon direction accompanied by an Opinion of
Counsel (the cost of which shall be paid by the Depositor) to the effect that
such recordation materially and beneficially affects the interests of the
Certificateholders.
(b) For the purpose of facilitating the recordation of this
Agreement as herein provided and for other purposes, this Agreement may be
executed simultaneously in any number of counterparts, each of which
counterparts shall be deemed to be an original, and such counterparts shall
constitute but one and the same instrument.
(c) The Trustee shall make any filings required under the laws of
the state of its place of business required solely by virtue of the fact of the
location of the Trustee's place of business, the costs of which, if any, to be
at the Trustee's expense.
Section 11.03 Limitation on Rights of Certificateholders.
(a) The death or incapacity of any Certificateholder shall not
operate to terminate this Agreement or the Trust Fund, nor entitle such
Certificateholder's legal representatives or heirs to claim an accounting or to
take any action or proceeding in any court for a partition or winding up of the
Trust Fund, nor otherwise affect the rights, obligations and liabilities of the
parties hereto or any of them.
(b) No Certificateholder shall have any right to vote (except as
expressly provided for herein) or in any manner otherwise control the operation
and management of the Trust Fund, or the obligations of the parties hereto, nor
shall anything herein set forth, or contained in the terms of the Certificates,
be construed so as to constitute the Certificateholders from time to time as
partners or members of an association; nor shall any Certificateholder be under
any liability to any third party by reason of any action taken by the parties to
this Agreement pursuant to any provision hereof.
(c) No Certificateholder shall have any right by virtue of any
provision of this Agreement to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Agreement or any Mortgage
Loan, unless, with respect to any suit, action or proceeding upon or under or
with respect to this Agreement, such Holder previously shall have given to the
Trustee a written notice of default hereunder, and of the continuance thereof,
as herein before provided, and unless also (except in the case of a default by
the Trustee) the Holders of Certificates of any Class evidencing not less than
25% of the related Percentage Interests in such Class 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. The Trustee shall be under no
obligation to exercise any of the trusts or powers vested in it hereunder or to
institute, conduct or defend any litigation hereunder or in relation hereto at
the request, order or direction of any of the Holders of Certificates unless
such Holders have offered to the Trustee reasonable security against the costs,
expenses and liabilities which may be incurred therein or hereby. It is
understood and intended, and expressly covenanted by each Certificateholder with
every other Certificateholder and the Trustee, that no one or more Holders of
Certificates shall have any right in any manner whatsoever by virtue of any
provision of this Agreement to affect, disturb or prejudice the rights of the
Holders of any other of such Certificates, or to obtain or seek to obtain
priority over or preference to any other such Holder, which priority or
preference is not otherwise provided for herein, or to enforce any right under
this Agreement, except in the manner herein provided and for the equal, ratable
and common benefit of all Certificateholders. For the protection and enforcement
of the provisions of this Section 11.03(c), each and every Certificateholder and
the Trustee shall be entitled to such relief as can be given either at law or in
equity.
Section 11.04 Governing Law.
This Agreement and the Certificates shall be construed in accordance
with the internal laws of the State of New York applicable to agreements made
and to be performed in said State, and the obligations, rights and remedies of
the parties hereunder shall be determined in accordance with such laws.
Section 11.05 Notices.
Any communications provided for or permitted hereunder shall be in
writing and, unless otherwise expressly provided herein, shall be deemed to have
been duly given if personally delivered at or mailed by registered mail, postage
prepaid (except for notices to the Trustee which shall be deemed to have been
duly given only when received), to: (i) in the case of the Depositor, X.X.
Xxxxxx Xxxxx Commercial Mortgage Securities Corp., 000 Xxxx Xxxxxx, 00xx Xxxxx,
Xxx Xxxx 00000, Attention: Xxxxxx Xxxxx, Vice President, telecopy number (212)
834-6593, with a copy to Xxxxxx Xxxxx, Esq., telecopy number: (000) 000-0000;
(ii) in the case of the Servicer, NC 1075, 0000 Xxxxxxxx Xxxxx XXX0, Xxxxxxxxx,
Xxxxx Xxxxxxxx 00000-0000 (for overnight mail only), 28288-1075 (for regular
mail), Attention: Portfolio Management Group Re: X.X. Xxxxxx Chase Commercial
Mortgage Securities Corp., Series 2002-CIBC5, telecopy number (000) 000-0000;
(iii) in the case of the Special Servicer, ARCap Special Servicing, Inc., 0000
X. XxxXxxxxx Xxxx., Xxxxx 000, Xxxxxx, Xxxxx 00000; Attention: Xxxxx X. Xxxxxxx,
telecopy number (000) 000-0000; (iv) in the case of the Trustee, Xxxxx Fargo
Bank Minnesota, N.A., 0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx, 00000,
Attention: Corporate Trust (CMBS), X.X. Xxxxxx Chase Commercial Mortgage
Securities Corp., Series 2002-CIBC5, telecopy number (000) 000-0000; (v) in the
case of the Rating Agencies, (a) Xxxxx'x Investors Services, Inc., 00 Xxxxxx
Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Commercial Mortgage
Surveillance Group, telecopy number: (000) 000-0000, and (b) Fitch, Inc., Xxx
Xxxxx Xxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx, Attention: Commercial Mortgage-Backed
Securities Group, telecopy number: (000) 000-0000; (vi) in the case of the
Mortgage Loan Sellers, (a) JPMorgan Chase Bank, 270 Park Avenue, 10th Floor,
Attention: Xxxxxx Xxxxx, Vice President, telecopy number (000) 000-0000; (b)
CIBC Inc., 000 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Xxxxxxx Xxxxxxx, telecopy number (000) 000-0000; or as to each such Person such
other address as may hereafter be furnished by such Person to the parties hereto
in writing; (vii) in the case of the Directing Certificateholder, ARCap CMBS
Fund REIT, Inc., 0000 Xxxxx XxxXxxxxx Xxxx., Xxxxx 000, Xxxxxx, Xxxxx, 00000
Attention: Xxxxx X. Xxxxxxx, telecopy number (000) 000-0000; and (viii) in the
case of the Hackberry Companion Holder, JPMorgan Chase Bank 000 Xxxx Xxxxxx,
00xx Xxxxx, Xxxxxxxxx: Xxxxxx Xxxxx, Vice President, telecopy number (212)
834-6593; and in the case of the Super 8-Manassas Companion Holder, CIBC Inc.,
000 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx
Xxxxxxx, telecopy number (000) 000-0000. 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. Any notice so mailed within the time prescribed in
this Agreement shall be conclusively presumed to have been duly given, whether
or not the Certificateholder receives such notice.
Section 11.06 Severability of Provisions.
If any one or more of the covenants, agreements, provisions or terms
of this Agreement shall be for any reason whatsoever held invalid, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and shall
in no way affect the validity or enforceability of the other provisions of this
Agreement or of the Certificates or the rights of the Holders thereof.
Section 11.07 Grant of a Security Interest.
The Depositor intends that the conveyance of the Depositor's right,
title and interest in and to the Mortgage Loans pursuant to this Agreement shall
constitute a sale and not a pledge of security for a loan. If such conveyance is
deemed to be a pledge of security for a loan, however, the Depositor intends
that the rights and obligations of the parties to such loan shall be established
pursuant to the terms of this Agreement. The Depositor also intends and agrees
that, in such event, (i) the Depositor shall be deemed to have granted to the
Trustee (in such capacity) a first priority security interest in the Depositor's
entire right, title and interest in and to the assets comprising the Trust Fund,
including without limitation, the Mortgage Loans, all principal and interest
received or receivable with respect to the Mortgage Loans (other than principal
and interest payments due and payable prior to the Cut-off Date and Principal
Prepayments received prior to the Cut-off Date), all amounts held from time to
time in the Certificate Account, the Simon Collection Account, the Distribution
Account, the Excess Interest Distribution Account, the Gain-on-Sale Reserve
Account, the Interest Reserve Account and, if established, the REO Account, and
all reinvestment earnings on such amounts, and all of the Depositor's right,
title and interest in and to the proceeds of any title, hazard or other
Insurance Policies related to such Mortgage Loans and (ii) this Agreement shall
constitute a security agreement under applicable law. This Section 11.07 shall
constitute notice to the Trustee pursuant to any of the requirements of the
applicable UCC.
Section 11.08 Successors and Assigns; Beneficiaries.
The provisions of this Agreement shall be binding upon and inure to
the benefit of the respective successors and assigns of the parties hereto, and
all such provisions shall inure to the benefit of the Certificateholders. No
other person, including, without limitation, any Mortgagor, shall be entitled to
any benefit or equitable right, remedy or claim under this Agreement.
Section 11.09 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 11.10 Notices to the Rating Agencies.
(a) The Trustee shall use reasonable efforts promptly to provide
notice to each Rating Agency with respect to each of the following of which it
has actual knowledge:
(i) any material change or amendment to this Agreement;
(ii) the occurrence of any Event of Default that has not been cured;
(iii) the resignation or termination of the Servicer or the Special
Servicer; and
(iv) the repurchase or substitution of Mortgage Loans by a Mortgage
Loan Seller pursuant to Section 3 of the Mortgage Loan Purchase Agreement.
(b) The Servicer shall use reasonable efforts promptly to provide
notice to each Rating Agency with respect to each of the following of which it
has actual knowledge:
(i) the resignation or removal of the Trustee;
(ii) any change in the location of the Certificate Account;
(iii) any event that would result in the voluntary or involuntary
termination of any insurance of the accounts of the Trustee;
(iv) any change in the lien priority of any Mortgage Loan with
respect to an assumption of the Mortgage Loan or additional encumbrance
described in Section 3.08;
(v) any additional lease to an anchor tenant or termination of any
existing lease to an anchor tenant at retail properties for any Mortgage
Loan with a Stated Principal Balance that is equal to or greater than the
lesser of (1) an amount greater than 5% of the then aggregate outstanding
principal balances of the Mortgage Loans or (2) $35,000,000;
(vi) any material damage to any Mortgaged Property;
(vii) any assumption with respect to a Mortgage Loan; and
(viii) any release or substitution of any Mortgaged Property.
(c) Upon written request, each of the Servicer and the Special
Servicer shall promptly furnish to each Rating Agency copies of inspection
reports and other items delivered to each of the Servicer and Special Servicer
pursuant to Sections 3.12(a) and 3.12(b).
(d) The Trustee shall promptly furnish notice to the Rating Agencies
of (i) any change in the location of the Distribution Accounts and (ii) the
final payment to any Class of Certificateholders.
(e) The Trustee, the Servicer and the Special Servicer, as
applicable, shall furnish to each Rating Agency with respect to each Mortgage
Loan such information as the Rating Agency shall reasonably request and which
the Trustee, the Servicer or Special Servicer, can reasonably provide in
accordance with applicable law and without waiving any attorney-client privilege
relating to such information or violating the terms of this Agreement or any
Mortgage Loan documents. The Trustee, the Servicer and Special Servicer, as
applicable, may include any reasonable disclaimer it deems appropriate with
respect to such information. Notwithstanding anything to the contrary herein,
nothing in this Section 11.10 shall require a party to provide duplicative
notices or copies to the Rating Agencies with respect to any of the above listed
items.
[End of Article XI]
[SIGNATURES COMMENCE ON FOLLOWING PAGE]
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.
X.X. XXXXXX XXXXX COMMERCIAL
MORTGAGE SECURITIES CORP.,
Depositor
By: /s/ Xxxxxx Xxxxx
------------------------------------
Name: Xxxxxx Xxxxx
Title: Vice President
WACHOVIA BANK, NATIONAL ASSOCIATION,
Servicer
By: /s/ Xxxxx Xxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Vice President
ARCAP SPECIAL SERVICING, INC.,
Special Servicer
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: President
XXXXX FARGO BANK MINNESOTA, N.A.,
Trustee
By: /s/ Xxxx X. Xxxx
------------------------------------
Name: Xxxx X. Xxxx
Title: Vice President
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 4th day of November, 2002, before me, a notary public in and
for said State, personally appeared Xxxxxx Xxxxx known to me to be Vice
President of X.X. Xxxxxx Chase Commercial Mortgage Securities Corp., one of the
corporations that executed the within instrument, and also known to me to be the
person who executed it on behalf of such corporation, and acknowledged to me
that such corporation executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxxx Xxxxxxxx
------------------------------------
Notary Public
[Notarial Seal]
STATE OF NORTH CAROLINA )
) ss.:
COUNTY OF MECKLENBURG )
On the 4th day of November, 2002, before me, a notary public in and
for said State, personally appeared Xxxxx Xxxxxxxx known to me to be a Vice
President of Wachovia Bank, National Association, that executed the within
instrument, and also known to me to be the person who executed it on behalf of
such corporation, and acknowledged to me that such corporation executed the
within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxxxxx Xxxxxxxx
------------------------------------
Notary Public
[Notarial Seal]
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 4th day of November, 2002, before me, a notary public in and
for said State, personally appeared Xxxx X. Xxxx known to me to be a Vice
President of Xxxxx Fargo Bank Minnesota, N.A., that executed the within
instrument, and also known to me to be the person who executed it on behalf of
such national banking association, and acknowledged to me that such national
banking association executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxxxxx Xxxxxxx
------------------------------------
Notary Public
[Notarial Seal]
STATE OF TEXAS )
) ss.:
COUNTY OF DALLAS )
On the 1st day of November, 2002, before me, a notary public in and
for said State, personally appeared Xxxxx X. Xxxxxxx known to me to be a
President of ARCap Special Servicing, Inc., that executed the within instrument,
and also known to me to be the person who executed it on behalf of such national
banking association, and acknowledged to me that such national banking
association executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ C.F. Greenhouse
------------------------------------
Notary Public
[Notarial Seal]
EXHIBIT A-1
X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2002-CIBC5, CLASS A-1
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS ON THE
CERTIFICATES AND THE PORTION OF COLLATERAL SUPPORT DEFICIT ALLOCABLE TO THIS
CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE
LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN
ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE TRUSTEE. THIS CERTIFICATE
CONSTITUTES A REMIC REGULAR INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
PASS-THROUGH RATE: 4.3720% APPROXIMATE AGGREGATE SCHEDULED PRINCIPAL BALANCE OF THE
MORTGAGE LOANS AFTER DEDUCTING PAYMENTS DUE AND PREPAYMENTS
DENOMINATION: $[ ] RECEIVED ON OR BEFORE CUT-OFF DATE: $[888,796,000]
DATE OF POOLING AND SERVICING AGREEMENT: AS OF SERVICER: WACHOVIA BANK, NATIONAL ASSOCIATION
NOVEMBER 4, 2002
SPECIAL SERVICER: ARCAP SPECIAL SERVICING, INC.
CUT-OFF DATE: AS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT (AS DEFINED HEREIN) TRUSTEE: XXXXX FARGO BANK MINNESOTA, N.A.
CLOSING DATE: NOVEMBER 4, 2002 CUSIP NO.: 00000XXX0
FIRST DISTRIBUTION DATE: ISIN NO.: US46625MNN55
DECEMBER 12, 2002
COMMON CODE NO.: 15755849
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE CERTIFICATE NO.: A-1-1
OF THE CLASS A-1 CERTIFICATES
AS OF THE CLOSING DATE: $310,000,000
CLASS A-1 CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial and multifamily fixed rate balloon and fully amortizing
mortgage loans (the "Mortgage Loans"), all payments on or collections in respect
of the Mortgage Loans due after the Cut-off Date, all REO Properties and
revenues received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Simon Collection Account, the Interest Reserve Account, the Excess Interest
Distribution Account, the Gain on Sale Account and the REO Accounts, formed and
sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL SERVICER,
THE TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE NOR THE
UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE
UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class A-1 Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of November 4, 2002 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Servicer and
the Special Servicer. A summary of certain of the pertinent provisions of the
Pooling and Servicing Agreement is set forth hereafter. To the extent not
defined herein, the capitalized terms used herein shall have the meanings
assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Certificates of the series specified on the face
hereof (herein called the "Certificates") and representing an interest in the
Class of Certificates specified on the face hereof equal to the quotient
expressed as a percentage obtained by dividing the Denomination of this
Certificate specified on the face hereof, by the aggregate initial Certificate
Balance of the Class A-1 Certificates. The Certificates are designated as the
X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage
Pass-Through Certificates, Series 2002-CIBC5 and are issued in twenty-two
classes as specifically set forth in the Pooling and Servicing Agreement. The
Certificates will evidence in the aggregate 100% of the beneficial ownership of
the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate
mortgage investment conduit," as those terms are defined, respectively, in
Sections 860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended.
Each Holder of this Certificate, by acceptance hereof, agrees to treat, and take
no action inconsistent with the treatment of, this Certificate in accordance
with the preceding sentence for purposes of federal income taxes, state and
local income and franchise taxes and other taxes imposed on or measured by
income.
Pursuant to the terms of the Pooling and Servicing Agreement,
the Trustee shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each
year consisted of 360 days and each month consisted of 30 days) during the
Interest Accrual Period relating to such Distribution Date at the Class A-1
Pass-Through Rate specified above on the Certificate Balance of this Certificate
immediately prior to each Distribution Date. Principal and interest allocated to
this Certificate on any Distribution Date will be in an amount due to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest
on the Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among
other things, certain collections and recoveries respecting the Mortgage Loans,
all as more specifically set forth in the Pooling and Servicing Agreement. As
provided in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Servicer (with respect to the Certificate Account) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Servicer as set forth in the Pooling and
Servicing Agreement. As provided in the Pooling and Servicing Agreement,
withdrawals from the Certificate Account shall be made from time to time for
purposes other than distributions to Certificateholders, such purposes including
reimbursement of certain expenses incurred with respect to the servicing of the
Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to
a Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing at least five Business Days prior to
the related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor. The final distribution on this Certificate shall be made in
like manner, but only upon presentment and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date
because of the failure of Certificateholders to tender their Certificates shall
be set aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Trustee may, directly or through an agent, take appropriate
steps to contact the remaining non-tendering Certificateholders concerning
surrender of their Certificates. The costs and expenses of holding such funds in
trust and of contacting such Certificateholders shall be paid out of such funds.
No interest shall accrue or be payable to any Certificateholder on any amount
held in trust as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 4.01(g) of
the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement,
the Offered Certificates (other than the Class X Certificates) will be issued in
book-entry form through the facilities of DTC in Denominations of $10,000
initial Certificate Balance, and in integral multiples of $1 in excess thereof,
with one Certificate of each such Class evidencing an additional amount equal to
the remainder of the initial Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Servicer, the Special Servicer
and the Certificate Registrar and any of their agents may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and neither the Depositor, the Trustee, the Servicer, the Special Servicer, the
Certificate Registrar nor any such agents shall be affected by any notice to the
contrary.
The Pooling and Servicing Agreement may be amended from time
to time by the Depositor, the Servicer, the Special Servicer and the Trustee,
without the consent of any of the Certificateholders, to cure any ambiguity, to
correct or supplement any provisions therein that may be inconsistent with any
other provisions therein or the Prospectus or the Prospectus Supplement or to
correct any error; to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of any
of the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the imposition of any tax, provided, however, an Opinion
of Counsel is obtained to the effect that such action shall not adversely affect
in any material respect the interest of any Certificateholder and such action is
necessary or desirable to avoid such tax; to change the timing and/or nature of
deposits into the Certificate Account, the Simon Collection Account or
Distribution Accounts or REO Account or to change the name in which the
Certificate Account or Simon Collection Account is maintained, provided,
however, that the P&I Advance Date shall not be later than the related
Distribution Date, an Opinion of Counsel is obtained to the effect that such
action shall not adversely affect in any material respect the interest of any
Certificateholder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating by any Rating Agency, as
evidenced by a letter from such Rating Agency to such effect; to modify,
eliminate or add to the provisions of Section 5.02(d) of the Pooling and
Servicing Agreement or any other provision thereof restricting transfer of the
Residual Certificates by virtue of their being the REMIC "residual interests,"
and such change shall not, as evidenced by an Opinion of Counsel, cause any of
the Upper-Tier REMIC, the Lower-Tier REMIC, the Loan REMIC or any of the
Certificateholders (other than the Transferor) to be subject to a federal tax
caused by a Transfer to a Person that is a Disqualified Organization or a
Non-U.S. Person; and to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interest of any
Certificateholder not consenting thereto; provided further, that in no event may
any amendment change in any manner the obligations of any Mortgage Loan Seller
without the consent of each Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from
time to time by the Depositor, the Servicer, the Special Servicer and the
Trustee with the consent of the Holders of Certificates representing not less
than 66 2/3% of the aggregate Percentage Interests of each Class of Certificates
affected by the amendment for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of the Pooling and
Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of such Certificateholder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment,
without the consent of the Holders of all Certificates of such Class then
outstanding;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of
each Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders or written
confirmation that such amendment would not result in the downgrading,
qualification or withdrawal of ratings assigned to any Class of
Certificates by any Rating Agency, amend the Servicing Standard.
No amendment shall be made to the Pooling and Servicing
Agreement unless the Trustee shall have received an Opinion of Counsel that such
amendment is permitted under the Pooling and Servicing Agreement and will not
cause any of the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan REMIC to
fail to qualify as a REMIC or result in the imposition of a tax on any of the
Upper-Tier REMIC, the Lower-Tier REMIC or the Loan REMIC or cause the Grantor
Trust to fail to qualify as a grantor trust.
The Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee and each
of the other parties to the Pooling and Servicing Agreement, to purchase all,
but not less than all, of the Mortgage Loans and all property acquired in
respect of any Mortgage Loan remaining in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates, on any Distribution Date on which the aggregate Stated Principal
Balances of the Mortgage Loans and any REO Loans remaining in the Trust Fund is
reduced to less than 1% of the aggregate Cut-off Date Principal Balance of all
the Mortgage Loans.
The obligations created by the Pooling and Servicing Agreement
and the Trust Fund created thereby (other than the obligation of the Trustee to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement 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.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose. The Certificate Registrar has executed this
Certificate on behalf of the Trust Fund as Certificate Registrar under the
Pooling and Servicing Agreement and makes no representation or warranty as to
any of the statements contained herein or the validity or sufficiency of the
Certificates or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL
BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK MINNESOTA, N.A.,
not in its individual capacity but solely as
Certificate Registrar under the Pooling and
Servicing Agreement.
By: ___________________________________________
AUTHORIZED SIGNATORY
Dated: November __, 2002
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-1 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK MINNESOTA, N.A.,
AUTHENTICATING AGENT
By: ___________________________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto ____________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
-------------------------------------
NOTICE: The signature to this
Dated:__________________ assignment must correspond with the
name as written upon the face of this
Certificate in every particular
without alteration or enlargement or
any change whatever.
________________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-2
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2002-CIBC5, CLASS A-2
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS ON THE
CERTIFICATES AND THE PORTION OF COLLATERAL SUPPORT DEFICIT ALLOCABLE TO THIS
CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE
LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN
ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE TRUSTEE. THIS CERTIFICATE
CONSTITUTES A REMIC REGULAR INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
PASS-THROUGH RATE: 5.1610% APPROXIMATE AGGREGATE SCHEDULED PRINCIPAL BALANCE OF THE
MORTGAGE LOANS AFTER DEDUCTING PAYMENTS DUE AND PREPAYMENTS
DENOMINATION: $[ ] RECEIVED ON OR BEFORE CUT-OFF DATE: $[888,796,000]
DATE OF POOLING AND SERVICING AGREEMENT: AS OF SERVICER: WACHOVIA BANK, NATIONAL ASSOCIATION
NOVEMBER 4, 2002
SPECIAL SERVICER: ARCAP SPECIAL SERVICING, INC.
CUT-OFF DATE: AS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT (AS DEFINED HEREIN) TRUSTEE: XXXXX FARGO BANK MINNESOTA, N.A.
CLOSING DATE: NOVEMBER 4, 2002 CUSIP NO.: 00000XXX0
FIRST DISTRIBUTION DATE: ISIN NO.: US46625MNP04
DECEMBER 12, 2002
COMMON CODE NO.: 15755881
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE CERTIFICATE NO.: A-2-1
OF THE CLASS A-2 CERTIFICATES
AS OF THE CLOSING DATE: $487,155,000
EXHIBIT A-2
CLASS A-2 CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial and multifamily fixed rate balloon and fully amortizing
mortgage loans (the "Mortgage Loans"), all payments on or collections in respect
of the Mortgage Loans due after the Cut-off Date, all REO Properties and
revenues received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Simon Collection Account, the Interest Reserve Account, the Excess Interest
Distribution Account, the Gain on Sale Account and the REO Accounts, formed and
sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL SERVICER,
THE TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE NOR THE
UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE
UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class A-2 Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of November 4, 2002 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Servicer and
the Special Servicer. A summary of certain of the pertinent provisions of the
Pooling and Servicing Agreement is set forth hereafter. To the extent not
defined herein, the capitalized terms used herein shall have the meanings
assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Certificates of the series specified on the face
hereof (herein called the "Certificates") and representing an interest in the
Class of Certificates specified on the face hereof equal to the quotient
expressed as a percentage obtained by dividing the Denomination of this
Certificate specified on the face hereof, by the aggregate initial Certificate
Balance of the Class A-2 Certificates. The Certificates are designated as the
X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage
Pass-Through Certificates, Series 2002-CIBC5 and are issued in twenty-two
classes as specifically set forth in the Pooling and Servicing Agreement. The
Certificates will evidence in the aggregate 100% of the beneficial ownership of
the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate
mortgage investment conduit," as those terms are defined, respectively, in
Sections 860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended.
Each Holder of this Certificate, by acceptance hereof, agrees to treat, and take
no action inconsistent with the treatment of, this Certificate in accordance
with the preceding sentence for purposes of federal income taxes, state and
local income and franchise taxes and other taxes imposed on or measured by
income.
Pursuant to the terms of the Pooling and Servicing Agreement,
the Trustee shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each
year consisted of 360 days and each month consisted of 30 days) during the
Interest Accrual Period relating to such Distribution Date at the Class A-2
Pass-Through Rate specified above on the Certificate Balance of this Certificate
immediately prior to each Distribution Date. Principal and interest allocated to
this Certificate on any Distribution Date will be in an amount due to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest
on the Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among
other things, certain collections and recoveries respecting the Mortgage Loans,
all as more specifically set forth in the Pooling and Servicing Agreement. As
provided in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Servicer (with respect to the Certificate Account) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Servicer as set forth in the Pooling and
Servicing Agreement. As provided in the Pooling and Servicing Agreement,
withdrawals from the Certificate Account shall be made from time to time for
purposes other than distributions to Certificateholders, such purposes including
reimbursement of certain expenses incurred with respect to the servicing of the
Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to
a Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing at least five Business Days prior to
the related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor. The final distribution on this Certificate shall be made in
like manner, but only upon presentment and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date
because of the failure of Certificateholders to tender their Certificates shall
be set aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Trustee may, directly or through an agent, take appropriate
steps to contact the remaining non-tendering Certificateholders concerning
surrender of their Certificates. The costs and expenses of holding such funds in
trust and of contacting such Certificateholders shall be paid out of such funds.
No interest shall accrue or be payable to any Certificateholder on any amount
held in trust as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 4.01(g) of
the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement,
the Offered Certificates (other than the Class X Certificates) will be issued in
book-entry form through the facilities of DTC in Denominations of $10,000
initial Certificate Balance, and in integral multiples of $1 in excess thereof,
with one Certificate of each such Class evidencing an additional amount equal to
the remainder of the initial Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Servicer, the Special Servicer
and the Certificate Registrar and any of their agents may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and neither the Depositor, the Trustee, the Servicer, the Special Servicer, the
Certificate Registrar nor any such agents shall be affected by any notice to the
contrary.
The Pooling and Servicing Agreement may be amended from time
to time by the Depositor, the Servicer, the Special Servicer and the Trustee,
without the consent of any of the Certificateholders, to cure any ambiguity, to
correct or supplement any provisions therein that may be inconsistent with any
other provisions therein or the Prospectus or the Prospectus Supplement or to
correct any error; to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of any
of the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the imposition of any tax, provided, however, an Opinion
of Counsel is obtained to the effect that such action shall not adversely affect
in any material respect the interest of any Certificateholder and such action is
necessary or desirable to avoid such tax; to change the timing and/or nature of
deposits into the Certificate Account, the Simon Collection Account or
Distribution Accounts or REO Account or to change the name in which the
Certificate Account or Simon Collection Account is maintained, provided,
however, that the P&I Advance Date shall not be later than the related
Distribution Date, an Opinion of Counsel is obtained to the effect that such
action shall not adversely affect in any material respect the interest of any
Certificateholder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating by any Rating Agency, as
evidenced by a letter from such Rating Agency to such effect; to modify,
eliminate or add to the provisions of Section 5.02(d) of the Pooling and
Servicing Agreement or any other provision thereof restricting transfer of the
Residual Certificates by virtue of their being the REMIC "residual interests,"
and such change shall not, as evidenced by an Opinion of Counsel, cause any of
the Upper-Tier REMIC, the Lower-Tier REMIC, the Loan REMIC or any of the
Certificateholders (other than the Transferor) to be subject to a federal tax
caused by a Transfer to a Person that is a Disqualified Organization or a
Non-U.S. Person; and to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interest of any
Certificateholder not consenting thereto; provided further, that in no event may
any amendment change in any manner the obligations of any Mortgage Loan Seller
without the consent of each Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from
time to time by the Depositor, the Servicer, the Special Servicer and the
Trustee with the consent of the Holders of Certificates representing not less
than 66 2/3% of the aggregate Percentage Interests of each Class of Certificates
affected by the amendment for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of the Pooling and
Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of such Certificateholder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment,
without the consent of the Holders of all Certificates of such Class then
outstanding;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of
each Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders or written
confirmation that such amendment would not result in the downgrading,
qualification or withdrawal of ratings assigned to any Class of
Certificates by any Rating Agency, amend the Servicing Standard.
No amendment shall be made to the Pooling and Servicing
Agreement unless the Trustee shall have received an Opinion of Counsel that such
amendment is permitted under the Pooling and Servicing Agreement and will not
cause any of the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan REMIC to
fail to qualify as a REMIC or result in the imposition of a tax on any of the
Upper-Tier REMIC, the Lower-Tier REMIC or the Loan REMIC or cause the Grantor
Trust to fail to qualify as a grantor trust.
The Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee and each
of the other parties to the Pooling and Servicing Agreement, to purchase all,
but not less than all, of the Mortgage Loans and all property acquired in
respect of any Mortgage Loan remaining in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates, on any Distribution Date on which the aggregate Stated Principal
Balances of the Mortgage Loans and any REO Loans remaining in the Trust Fund is
reduced to less than 1% of the aggregate Cut-off Date Principal Balance of all
the Mortgage Loans.
The obligations created by the Pooling and Servicing Agreement
and the Trust Fund created thereby (other than the obligation of the Trustee to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement 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.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose. The Certificate Registrar has executed this
Certificate on behalf of the Trust Fund as Certificate Registrar under the
Pooling and Servicing Agreement and makes no representation or warranty as to
any of the statements contained herein or the validity or sufficiency of the
Certificates or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL
BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK MINNESOTA, N.A.,
not in its individual capacity but solely as
Certificate Registrar under the Pooling and
Servicing Agreement.
By: ___________________________________________
AUTHORIZED SIGNATORY
Dated: November __, 2002
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS A-2 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK MINNESOTA, N.A.,
AUTHENTICATING AGENT
By: ___________________________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above
list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto ____________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
-------------------------------------
NOTICE: The signature to this
Dated:__________________ assignment must correspond with the
name as written upon the face of this
Certificate in every particular
without alteration or enlargement or
any change whatever.
________________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-6
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2002-CIBC5, CLASS X-1
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 SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS UNDER THE SECURITIES ACT, (D) IN AN OFFSHORE TRANSACTION MEETING
THE REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES
ACT OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT.
THIS CLASS X-1 CERTIFICATE HAS NO PRINCIPAL BALANCE AND WILL NOT RECEIVE ANY
DISTRIBUTION OF PRINCIPAL.
THE NOTIONAL AMOUNT ON WHICH THE INTEREST PAYABLE TO THE HOLDERS OF THE CLASS
X-1 CERTIFICATES IS BASED WILL BE REDUCED AS A RESULT OF PRINCIPAL PAYMENTS AND
LOSSES ON THE MORTGAGE LOANS. ACCORDINGLY, THE INTEREST PAYABLE PURSUANT TO THIS
CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. THIS CERTIFICATE CONSTITUTES
A REMIC REGULAR INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY 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. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO
THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, 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.]1
THE PASS-THROUGH RATE ON THE CLASS X-1 APPROXIMATE AGGREGATE SCHEDULED
CERTIFICATES WILL BE EQUAL TO, FOR ANY PRINCIPAL BALANCE OF THE MORTGAGE
DISTRIBUTION DATE, THE CLASS X-1 PASS-THROUGH RATE LOANS AFTER DEDUCTING PAYMENTS DUE
AS SET FORTH IN THE POOLING AND SERVICING AND PREPAYMENTS RECEIVED ON OR
AGREEMENT BEFORE CUT-OFF DATE: $[888,796,000]
DENOMINATION: $[ ] SERVICER: WACHOVIA BANK, NATIONAL
ASSOCIATION
DATE OF POOLING AND SERVICING AGREEMENT: AS OF SPECIAL SERVICER: ARCAP SPECIAL
NOVEMBER 4, 2002 SERVICING, INC.
CUT-OFF DATE: AS DEFINED IN THE POOLING AND TRUSTEE: XXXXX FARGO BANK
SERVICING AGREEMENT (AS DEFINED HEREIN) MINNESOTA, N.A.
CLOSING DATE: NOVEMBER 4, 2002 CUSIP NO.: [00000XXX0]2
[00000XXX0]3 [X00000XX0]1
FIRST DISTRIBUTION DATE: ISIN NO.: [US46625MMY20]2
DECEMBER 12, 2002 [US46625MNW54]3 [USU48138FK99]1
APPROXIMATE AGGREGATE NOTIONAL AMOUNT OF THE CLASS COMMON CODE: [15748141]2 [15748222]1
X-1 CERTIFICATES AS OF THE CLOSING DATE: CERTIFICATE NO.: X-1-[1][2][3]
$[500,000,000][500,000,000][4,289,337]
------------------
1 For Book-Entry Regulation S Certificates Only.
2 For Book-Entry Rule 144A Only.
3 For Institutional Accredited Investors Only.
CLASS X-1 CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial and multifamily fixed rate balloon and fully amortizing
mortgage loans (the "Mortgage Loans"), all payments on or collections in respect
of the Mortgage Loans due after the Cut-off Date, all REO Properties and
revenues received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Simon Collection Account, the Interest Reserve Account, the Excess Interest
Distribution Account, the Gain on Sale Account and the REO Accounts, formed and
sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL SERVICER,
THE TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE NOR THE
UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE
UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class X-1 Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of November 4, 2002 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Special
Servicer and the Servicer. A summary of certain of the pertinent provisions of
the Pooling and Servicing Agreement is set forth hereafter. To the extent not
defined herein, the capitalized terms used herein shall have the meanings
assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Certificates of the series specified on the face
hereof (herein called the "Certificates") and representing the percentage
interest in the Class of Certificates specified on the face hereof. The
Certificates are designated as the X.X. XXXXXX CHASE COMMERCIAL MORTGAGE
SECURITIES CORP., Commercial Mortgage Pass-Through Certificates, Series
2002-CIBC5 and are issued in twenty-two classes as specifically set forth in the
Pooling and Servicing Agreement. The Certificates will evidence in the aggregate
100% of the beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate
mortgage investment conduit," as those terms are defined, respectively, in
Sections 860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended.
Each Holder of this Certificate, by acceptance hereof, agrees to treat, and take
no action inconsistent with the treatment of, this Certificate in accordance
with the preceding sentence for purposes of federal income taxes, state and
local income and franchise taxes and other taxes imposed on or measured by
income.
Pursuant to the terms of the Pooling and Servicing Agreement,
the Trustee shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of interest then distributable, if any,
allocable to the Class of Certificates of the same Class as this Certificate for
such Distribution Date, all as more fully described in the Pooling and Servicing
Agreement. Holders of this Certificate will not be entitled to distributions in
respect of principal. Holders of this Certificate may be entitled to Yield
Maintenance Charges as provided in the Pooling and Servicing Agreement. All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
This Class X-1 Certificate has no principal balance and will
not receive any distribution of principal.
Interest on this Certificate will accrue (computed as if each
year consisted of 360 days and each month consisted of 30 days) during the
Interest Accrual Period relating to such Distribution Date Class X-1
Pass-Through Rate specified above on the Notional Amount of this Certificate
immediately prior to such Distribution Date, as specified above. Interest
allocated to this Certificate on any Distribution Date will be in an amount due
to this Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
The Certificates are limited in right of payment to, among
other things, certain collections and recoveries respecting the Mortgage Loans,
all as more specifically set forth in the Pooling and Servicing Agreement. As
provided in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Servicer (with respect to the Certificate Account) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Servicer as set forth in the Pooling and
Servicing Agreement. As provided in the Pooling and Servicing Agreement,
withdrawals from the Certificate Account shall be made from time to time for
purposes other than distributions to Certificateholders, such purposes including
reimbursement of certain expenses incurred with respect to the servicing of the
Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to
a Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing at least five Business Days prior to
the related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor. The final distribution on this Certificate shall be made in
like manner, but only upon presentment and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date
because of the failure of Certificateholders to tender their Certificates shall
be set aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Trustee may, directly or through an agent, take appropriate
steps to contact the remaining non-tendering Certificateholders concerning
surrender of their Certificates. The costs and expenses of holding such funds in
trust and of contacting such Certificateholders shall be paid out of such funds.
No interest shall accrue or be payable to any Certificateholder on any amount
held in trust as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 4.01(g) of
the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement,
the Class X Certificates will be issued in book-entry form through the
facilities of DTC in Denominations of not less than $1,000,000 initial Notional
Amount and in integral multiples of $1 in excess thereof, with one Certificate
of such Class evidencing an additional amount equal to the remainder of the
initial Notional Amount of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Servicer, the Special Servicer
and the Certificate Registrar and any of their agents may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and neither the Depositor, the Trustee, the Servicer, the Special Servicer, the
Certificate Registrar nor any such agents shall be affected by any notice to the
contrary.
The Pooling and Servicing Agreement may be amended from time
to time by the Depositor, the Servicer, the Special Servicer and the Trustee,
without the consent of any of the Certificateholders, to cure any ambiguity, to
correct or supplement any provisions therein that may be inconsistent with any
other provisions therein or the Prospectus or the Prospectus Supplement or to
correct any error; to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of any
of the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the imposition of any tax, provided, however, an Opinion
of Counsel is obtained to the effect that such action shall not adversely affect
in any material respect the interest of any Certificateholder and such action is
necessary or desirable to avoid such tax; to change the timing and/or nature of
deposits into the Certificate Account, the Simon Collection Account or
Distribution Accounts or REO Account or to change the name in which the
Certificate Account or Simon Collection Account is maintained, provided,
however, that the P&I Advance Date shall not be later than the related
Distribution Date, an Opinion of Counsel is obtained to the effect that such
action shall not adversely affect in any material respect the interest of any
Certificateholder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating by any Rating Agency, as
evidenced by a letter from such Rating Agency to such effect; to modify,
eliminate or add to the provisions of Section 5.02(d) of the Pooling and
Servicing Agreement or any other provision thereof restricting transfer of the
Residual Certificates by virtue of their being the REMIC "residual interests,"
and such change shall not, as evidenced by an Opinion of Counsel, cause any of
the Upper-Tier REMIC, the Lower-Tier REMIC, the Loan REMIC or any of the
Certificateholders (other than the Transferor) to be subject to a federal tax
caused by a Transfer to a Person that is a Disqualified Organization or a
Non-U.S. Person; and to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interest of any
Certificateholder not consenting thereto; provided further, that in no event may
any amendment change in any manner the obligations of any Mortgage Loan Seller
without the consent of each Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from
time to time by the Depositor, the Servicer, the Special Servicer and the
Trustee with the consent of the Holders of Certificates representing not less
than 66 2/3% of the aggregate Percentage Interests of each Class of Certificates
affected by the amendment for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of the Pooling and
Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of such Certificateholder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment,
without the consent of the Holders of all Certificates of such Class then
outstanding;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of
each Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders or written
confirmation that such amendment would not result in the downgrading,
qualification or withdrawal of ratings assigned to any Class of
Certificates by any Rating Agency, amend the Servicing Standard.
No amendment shall be made to the Pooling and Servicing
Agreement unless the Trustee shall have received an Opinion of Counsel that such
amendment is permitted under the Pooling and Servicing Agreement and will not
cause any of the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan REMIC to
fail to qualify as a REMIC or result in the imposition of a tax on any of the
Upper-Tier REMIC, the Lower-Tier REMIC or the Loan REMIC or cause the Grantor
Trust to fail to qualify as a grantor trust.
The Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee and each
of the other parties to the Pooling and Servicing Agreement, to purchase all,
but not less than all, of the Mortgage Loans and all property acquired in
respect of any Mortgage Loan remaining in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates, on any Distribution Date on which the aggregate Stated Principal
Balances of the Mortgage Loans and any REO Loans remaining in the Trust Fund is
reduced to less than 1% of the aggregate Cut-off Date Principal Balance of all
the Mortgage Loans.
The obligations created by the Pooling and Servicing Agreement
and the Trust Fund created thereby (other than the obligation of the Trustee to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement 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.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose. The Certificate Registrar has executed this
Certificate on behalf of the Trust Fund as Certificate Registrar under the
Pooling and Servicing Agreement and makes no representation or warranty as to
any of the statements contained herein or the validity or sufficiency of the
Certificates or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL
BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK MINNESOTA, N.A.,
not in its individual capacity but solely as
Certificate Registrar under the Pooling and
Servicing Agreement.
By: ___________________________________________
AUTHORIZED SIGNATORY
Dated: November __, 2002
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS X-1 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK MINNESOTA, N.A.,
AUTHENTICATING AGENT
By: ___________________________________________
AUTHORIZED SIGNATORY
SCHEDULE A
NOTIONAL AMOUNT OF DEFINITIVE
CERTIFICATES EXCHANGED OR TRANSFERRED
FOR, OR ISSUED IN EXCHANGE FOR OR UPON
TRANSFER OF, AN INTEREST IN THIS REMAINING NOTIONAL AMOUNT OF NOTATION
DATE BOOK-ENTRY CERTIFICATE BOOK-ENTRY CERTIFICATE MADE BY
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above
list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto ____________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
-------------------------------------
NOTICE: The signature to this
Dated:__________________ assignment must correspond with the
name as written upon the face of this
Certificate in every particular
without alteration or enlargement or
any change whatever.
________________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-7
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2002-CIBC5, CLASS X-2
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 SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS UNDER THE SECURITIES ACT, (D) IN AN OFFSHORE TRANSACTION MEETING
THE REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES
ACT OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT.
THIS CLASS X-2 CERTIFICATE HAS NO PRINCIPAL BALANCE AND WILL NOT RECEIVE ANY
DISTRIBUTION OF PRINCIPAL.
THE NOTIONAL AMOUNT ON WHICH THE INTEREST PAYABLE TO THE HOLDERS OF THE CLASS
X-2 CERTIFICATES IS BASED WILL BE REDUCED AS A RESULT OF PRINCIPAL PAYMENTS AND
LOSSES ON THE MORTGAGE LOANS. ACCORDINGLY, THE INTEREST PAYABLE PURSUANT TO THIS
CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. THIS CERTIFICATE CONSTITUTES
A REMIC REGULAR INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY 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. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO
THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, 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.]1
THE PASS-THROUGH RATE ON THE CLASS X-2 APPROXIMATE AGGREGATE SCHEDULED
CERTIFICATES WILL BE EQUAL TO, FOR ANY PRINCIPAL BALANCE OF THE MORTGAGE
DISTRIBUTION DATE, THE CLASS X-2 PASS-THROUGH RATE LOANS AFTER DEDUCTING PAYMENTS DUE
AS SET FORTH IN THE POOLING AND SERVICING AND PREPAYMENTS RECEIVED ON OR
AGREEMENT BEFORE CUT-OFF DATE: $[888,796,000]
DENOMINATION: $[ ] SERVICER: WACHOVIA BANK, NATIONAL
ASSOCIATION
DATE OF POOLING AND SERVICING AGREEMENT: AS OF SPECIAL SERVICER: ARCAP SPECIAL
NOVEMBER 4, 2002 SERVICING, INC.
CUT-OFF DATE: AS DEFINED IN THE POOLING AND TRUSTEE: XXXXX FARGO BANK
SERVICING AGREEMENT (AS DEFINED HEREIN) MINNESOTA, N.A.
CLOSING DATE: NOVEMBER 4, 2002 CUSIP NO.: [00000XXX0]2
[00000XXX0]3 [X00000XX0]1
FIRST DISTRIBUTION DATE: DECEMBER 12, 2002 ISIN NO.: [US46625MMZ94]2
[US46625MNX38]3 [USU48138FL72]1
APPROXIMATE AGGREGATE NOTIONAL AMOUNT OF THE CLASS COMMON CODE: [15748249]2
X-1 CERTIFICATES AS OF THE CLOSING DATE: [15748354]1
$[500,000,000][459,067,000] CERTIFICATE NO.: X-2-[1]-[2]
-------------
(1) For Book-Entry Regulation S Certificates Only.
(2) For Book-Entry Rule 144A Only.
(3) For Institutional Accredited Investors Only.
CLASS X-2 CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial and multifamily fixed rate balloon and fully amortizing
mortgage loans (the "Mortgage Loans"), all payments on or collections in respect
of the Mortgage Loans due after the Cut-off Date, all REO Properties and
revenues received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Simon Collection Account, the Interest Reserve Account, the Excess Interest
Distribution Account, the Gain on Sale Account and the REO Accounts, formed and
sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL SERVICER,
THE TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE NOR THE
UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE
UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class X-2 Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of November 4, 2002 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Special
Servicer and the Servicer. A summary of certain of the pertinent provisions of
the Pooling and Servicing Agreement is set forth hereafter. To the extent not
defined herein, the capitalized terms used herein shall have the meanings
assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Certificates of the series specified on the face
hereof (herein called the "Certificates") and representing the percentage
interest in the Class of Certificates specified on the face hereof. The
Certificates are designated as the X.X. XXXXXX CHASE COMMERCIAL MORTGAGE
SECURITIES CORP., Commercial Mortgage Pass-Through Certificates, Series
2002-CIBC5 and are issued in twenty-two classes as specifically set forth in the
Pooling and Servicing Agreement. The Certificates will evidence in the aggregate
100% of the beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate
mortgage investment conduit," as those terms are defined, respectively, in
Sections 860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended.
Each Holder of this Certificate, by acceptance hereof, agrees to treat, and take
no action inconsistent with the treatment of, this Certificate in accordance
with the preceding sentence for purposes of federal income taxes, state and
local income and franchise taxes and other taxes imposed on or measured by
income.
Pursuant to the terms of the Pooling and Servicing Agreement,
the Trustee shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of interest then distributable, if any,
allocable to the Class of Certificates of the same Class as this Certificate for
such Distribution Date, all as more fully described in the Pooling and Servicing
Agreement. Holders of this Certificate will not be entitled to distributions in
respect of principal. Holders of this Certificate may be entitled to Yield
Maintenance Charges as provided in the Pooling and Servicing Agreement. All sums
distributable on this Certificate are payable in the coin or currency of the
United States of America as at the time of payment is legal tender for the
payment of public and private debts.
This Class X-2 Certificate has no principal balance and will
not receive any distribution of principal.
Interest on this Certificate will accrue (computed as if each
year consisted of 360 days and each month consisted of 30 days) during the
Interest Accrual Period relating to such Distribution Date Class X-2
Pass-Through Rate specified above on the Notional Amount of this Certificate
immediately prior to such Distribution Date, as specified above. Interest
allocated to this Certificate on any Distribution Date will be in an amount due
to this Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
The Certificates are limited in right of payment to, among
other things, certain collections and recoveries respecting the Mortgage Loans,
all as more specifically set forth in the Pooling and Servicing Agreement. As
provided in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Servicer (with respect to the Certificate Account) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Servicer as set forth in the Pooling and
Servicing Agreement. As provided in the Pooling and Servicing Agreement,
withdrawals from the Certificate Account shall be made from time to time for
purposes other than distributions to Certificateholders, such purposes including
reimbursement of certain expenses incurred with respect to the servicing of the
Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to
a Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing at least five Business Days prior to
the related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor. The final distribution on this Certificate shall be made in
like manner, but only upon presentment and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date
because of the failure of Certificateholders to tender their Certificates shall
be set aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Trustee may, directly or through an agent, take appropriate
steps to contact the remaining non-tendering Certificateholders concerning
surrender of their Certificates. The costs and expenses of holding such funds in
trust and of contacting such Certificateholders shall be paid out of such funds.
No interest shall accrue or be payable to any Certificateholder on any amount
held in trust as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 4.01(g) of
the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement,
the Class X Certificates will be issued in book-entry form through the
facilities of DTC in Denominations of not less than $1,000,000 initial Notional
Amount and in integral multiples of $1 in excess thereof, with one Certificate
of such Class evidencing an additional amount equal to the remainder of the
initial Notional Amount of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Servicer, the Special Servicer
and the Certificate Registrar and any of their agents may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and neither the Depositor, the Trustee, the Servicer, the Special Servicer, the
Certificate Registrar nor any such agents shall be affected by any notice to the
contrary.
The Pooling and Servicing Agreement may be amended from time
to time by the Depositor, the Servicer, the Special Servicer and the Trustee,
without the consent of any of the Certificateholders, to cure any ambiguity, to
correct or supplement any provisions therein that may be inconsistent with any
other provisions therein or the Prospectus or the Prospectus Supplement or to
correct any error; to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of any
of the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the imposition of any tax, provided, however, an Opinion
of Counsel is obtained to the effect that such action shall not adversely affect
in any material respect the interest of any Certificateholder and such action is
necessary or desirable to avoid such tax; to change the timing and/or nature of
deposits into the Certificate Account, the Simon Collection Account or
Distribution Accounts or REO Account or to change the name in which the
Certificate Account or Simon Collection Account is maintained, provided,
however, that the P&I Advance Date shall not be later than the related
Distribution Date, an Opinion of Counsel is obtained to the effect that such
action shall not adversely affect in any material respect the interest of any
Certificateholder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating by any Rating Agency, as
evidenced by a letter from such Rating Agency to such effect; to modify,
eliminate or add to the provisions of Section 5.02(d) of the Pooling and
Servicing Agreement or any other provision thereof restricting transfer of the
Residual Certificates by virtue of their being the REMIC "residual interests,"
and such change shall not, as evidenced by an Opinion of Counsel, cause any of
the Upper-Tier REMIC, the Lower-Tier REMIC, the Loan REMIC or any of the
Certificateholders (other than the Transferor) to be subject to a federal tax
caused by a Transfer to a Person that is a Disqualified Organization or a
Non-U.S. Person; and to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interest of any
Certificateholder not consenting thereto; provided further, that in no event may
any amendment change in any manner the obligations of any Mortgage Loan Seller
without the consent of each Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from
time to time by the Depositor, the Servicer, the Special Servicer and the
Trustee with the consent of the Holders of Certificates representing not less
than 66 2/3% of the aggregate Percentage Interests of each Class of Certificates
affected by the amendment for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of the Pooling and
Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of such Certificateholder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment,
without the consent of the Holders of all Certificates of such Class then
outstanding;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of
each Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders or written
confirmation that such amendment would not result in the downgrading,
qualification or withdrawal of ratings assigned to any Class of
Certificates by any Rating Agency, amend the Servicing Standard.
No amendment shall be made to the Pooling and Servicing
Agreement unless the Trustee shall have received an Opinion of Counsel that such
amendment is permitted under the Pooling and Servicing Agreement and will not
cause any of the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan REMIC to
fail to qualify as a REMIC or result in the imposition of a tax on any of the
Upper-Tier REMIC, the Lower-Tier REMIC or the Loan REMIC or cause the Grantor
Trust to fail to qualify as a grantor trust.
The Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee and each
of the other parties to the Pooling and Servicing Agreement, to purchase all,
but not less than all, of the Mortgage Loans and all property acquired in
respect of any Mortgage Loan remaining in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates, on any Distribution Date on which the aggregate Stated Principal
Balances of the Mortgage Loans and any REO Loans remaining in the Trust Fund is
reduced to less than 1% of the aggregate Cut-off Date Principal Balance of all
the Mortgage Loans.
The obligations created by the Pooling and Servicing Agreement
and the Trust Fund created thereby (other than the obligation of the Trustee to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement 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.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose. The Certificate Registrar has executed this
Certificate on behalf of the Trust Fund as Certificate Registrar under the
Pooling and Servicing Agreement and makes no representation or warranty as to
any of the statements contained herein or the validity or sufficiency of the
Certificates or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL
BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK MINNESOTA, N.A.,
not in its individual capacity but solely as
Certificate Registrar under the Pooling and
Servicing Agreement.
By: ___________________________________________
AUTHORIZED SIGNATORY
Dated: November __, 2002
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS X-2 CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK MINNESOTA, N.A.,
AUTHENTICATING AGENT
By: ___________________________________________
AUTHORIZED SIGNATORY
SCHEDULE A
NOTIONAL AMOUNT OF DEFINITIVE
CERTIFICATES EXCHANGED OR TRANSFERRED
FOR, OR ISSUED IN EXCHANGE FOR OR UPON
TRANSFER OF, AN INTEREST IN THIS REMAINING NOTIONAL AMOUNT OF NOTATION
DATE BOOK-ENTRY CERTIFICATE BOOK-ENTRY CERTIFICATE MADE BY
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above
list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto ____________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
-------------------------------------
NOTICE: The signature to this
Dated:__________________ assignment must correspond with the
name as written upon the face of this
Certificate in every particular
without alteration or enlargement or
any change whatever.
________________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-8
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2002-CIBC5, CLASS B
THIS CLASS B CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE TRUSTEE. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR INTEREST
UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
PASS-THROUGH RATE: 5.3080% APPROXIMATE AGGREGATE SCHEDULED PRINCIPAL BALANCE OF THE
MORTGAGE LOANS AFTER DEDUCTING PAYMENTS DUE AND PREPAYMENTS
DENOMINATION: $[ ] RECEIVED ON OR BEFORE CUT-OFF DATE: $[888,796,000]
DATE OF POOLING AND SERVICING AGREEMENT: AS OF SERVICER: WACHOVIA BANK, NATIONAL ASSOCIATION
NOVEMBER 4, 2002
SPECIAL SERVICER: ARCAP SPECIAL SERVICING, INC.
CUT-OFF DATE: AS DEFINED IN THE POOLING AND SERVICING
AGREEMENT (AS DEFINED HEREIN) TRUSTEE: XXXXX FARGO BANK MINNESOTA, N.A.
CLOSING DATE: NOVEMBER 4, 2002 CUSIP NO.: 00000XXX0
FIRST DISTRIBUTION DATE: ISIN NO.: US46625MNT26
DECEMBER 12, 2002
COMMON CODE NO.: 15755890
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE CERTIFICATE NO.: B-1
OF THE CLASS B CERTIFICATES
AS OF THE CLOSING DATE: $36,405,000
CLASS B CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial and multifamily fixed rate balloon and fully amortizing
mortgage loans (the "Mortgage Loans"), all payments on or collections in respect
of the Mortgage Loans due after the Cut-off Date, all REO Properties and
revenues received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Simon Collection Account, the Interest Reserve Account, the Excess Interest
Distribution Account, the Gain on Sale Account and the REO Accounts, formed and
sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL SERVICER,
THE TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE NOR THE
UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE
UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class B Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of November 4, 2002 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Servicer and
the Special Servicer. A summary of certain of the pertinent provisions of the
Pooling and Servicing Agreement is set forth hereafter. To the extent not
defined herein, the capitalized terms used herein shall have the meanings
assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Certificates of the series specified on the face
hereof (herein called the "Certificates") and representing an interest in the
Class of Certificates specified on the face hereof equal to the quotient
expressed as a percentage obtained by dividing the Denomination of this
Certificate specified on the face hereof, by the aggregate initial Certificate
Balance of the Class B Certificates. The Certificates are designated as the X.X.
XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage
Pass-Through Certificates, Series 2002-CIBC5 and are issued in twenty-two
classes as specifically set forth in the Pooling and Servicing Agreement. The
Certificates will evidence in the aggregate 100% of the beneficial ownership of
the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate
mortgage investment conduit," as those terms are defined, respectively, in
Sections 860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended.
Each Holder of this Certificate, by acceptance hereof, agrees to treat, and take
no action inconsistent with the treatment of, this Certificate in accordance
with the preceding sentence for purposes of federal income taxes, state and
local income and franchise taxes and other taxes imposed on or measured by
income.
Pursuant to the terms of the Pooling and Servicing Agreement,
the Trustee shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each
year consisted of 360 days and each month consisted of 30 days) during the
Interest Accrual Period relating to such Distribution Date at the Class B
Pass-Through Rate specified above on the Certificate Balance of this Certificate
immediately prior to each Distribution Date. Principal and interest allocated to
this Certificate on any Distribution Date will be in an amount due to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest
on the Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among
other things, certain collections and recoveries respecting the Mortgage Loans,
all as more specifically set forth in the Pooling and Servicing Agreement. As
provided in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Servicer (with respect to the Certificate Account) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Servicer as set forth in the Pooling and
Servicing Agreement. As provided in the Pooling and Servicing Agreement,
withdrawals from the Certificate Account shall be made from time to time for
purposes other than distributions to Certificateholders, such purposes including
reimbursement of certain expenses incurred with respect to the servicing of the
Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to
a Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing at least five Business Days prior to
the related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor. The final distribution on this Certificate shall be made in
like manner, but only upon presentment and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date
because of the failure of Certificateholders to tender their Certificates shall
be set aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Trustee may, directly or through an agent, take appropriate
steps to contact the remaining non-tendering Certificateholders concerning
surrender of their Certificates. The costs and expenses of holding such funds in
trust and of contacting such Certificateholders shall be paid out of such funds.
No interest shall accrue or be payable to any Certificateholder on any amount
held in trust as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 4.01(g) of
the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement,
the Offered Certificates (other than the Class X Certificates) will be issued in
book-entry form through the facilities of DTC in Denominations of $10,000
initial Certificate Balance, and in integral multiples of $1 in excess thereof,
with one Certificate of each such Class evidencing an additional amount equal to
the remainder of the initial Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Servicer, the Special Servicer
and the Certificate Registrar and any of their agents may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and neither the Depositor, the Trustee, the Servicer, the Special Servicer, the
Certificate Registrar nor any such agents shall be affected by any notice to the
contrary.
The Pooling and Servicing Agreement may be amended from time
to time by the Depositor, the Servicer, the Special Servicer and the Trustee,
without the consent of any of the Certificateholders, to cure any ambiguity, to
correct or supplement any provisions therein that may be inconsistent with any
other provisions therein or the Prospectus or the Prospectus Supplement or to
correct any error; to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of any
of the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the imposition of any tax, provided, however, an Opinion
of Counsel is obtained to the effect that such action shall not adversely affect
in any material respect the interest of any Certificateholder and such action is
necessary or desirable to avoid such tax; to change the timing and/or nature of
deposits into the Certificate Account, the Simon Collection Account or
Distribution Accounts or REO Account or to change the name in which the
Certificate Account or Simon Collection Account is maintained, provided,
however, that the P&I Advance Date shall not be later than the related
Distribution Date, an Opinion of Counsel is obtained to the effect that such
action shall not adversely affect in any material respect the interest of any
Certificateholder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating by any Rating Agency, as
evidenced by a letter from such Rating Agency to such effect; to modify,
eliminate or add to the provisions of Section 5.02(d) of the Pooling and
Servicing Agreement or any other provision thereof restricting transfer of the
Residual Certificates by virtue of their being the REMIC "residual interests,"
and such change shall not, as evidenced by an Opinion of Counsel, cause any of
the Upper-Tier REMIC, the Lower-Tier REMIC, the Loan REMIC or any of the
Certificateholders (other than the Transferor) to be subject to a federal tax
caused by a Transfer to a Person that is a Disqualified Organization or a
Non-U.S. Person; and to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interest of any
Certificateholder not consenting thereto; provided further, that in no event may
any amendment change in any manner the obligations of any Mortgage Loan Seller
without the consent of each Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from
time to time by the Depositor, the Servicer, the Special Servicer and the
Trustee with the consent of the Holders of Certificates representing not less
than 66 2/3% of the aggregate Percentage Interests of each Class of Certificates
affected by the amendment for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of the Pooling and
Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of such Certificateholder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment,
without the consent of the Holders of all Certificates of such Class then
outstanding;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of
each Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders or written
confirmation that such amendment would not result in the downgrading,
qualification or withdrawal of ratings assigned to any Class of
Certificates by any Rating Agency, amend the Servicing Standard.
No amendment shall be made to the Pooling and Servicing
Agreement unless the Trustee shall have received an Opinion of Counsel that such
amendment is permitted under the Pooling and Servicing Agreement and will not
cause any of the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan REMIC to
fail to qualify as a REMIC or result in the imposition of a tax on any of the
Upper-Tier REMIC, the Lower-Tier REMIC or the Loan REMIC or cause the Grantor
Trust to fail to qualify as a grantor trust.
The Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee and each
of the other parties to the Pooling and Servicing Agreement, to purchase all,
but not less than all, of the Mortgage Loans and all property acquired in
respect of any Mortgage Loan remaining in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates, on any Distribution Date on which the aggregate Stated Principal
Balances of the Mortgage Loans and any REO Loans remaining in the Trust Fund is
reduced to less than 1% of the aggregate Cut-off Date Principal Balance of all
the Mortgage Loans.
The obligations created by the Pooling and Servicing Agreement
and the Trust Fund created thereby (other than the obligation of the Trustee to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement 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.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose. The Certificate Registrar has executed this
Certificate on behalf of the Trust Fund as Certificate Registrar under the
Pooling and Servicing Agreement and makes no representation or warranty as to
any of the statements contained herein or the validity or sufficiency of the
Certificates or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL
BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK MINNESOTA, N.A.,
AUTHENTICATING AGENT
By: ___________________________________________
AUTHORIZED SIGNATORY
Dated: November __, 2002
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS B CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK MINNESOTA, N.A.,
AUTHENTICATING AGENT
By: ___________________________________________
AUTHORIZED SIGNATORY
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in
the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto ____________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
_____________________________________
NOTICE: The signature to this
Dated:__________________ assignment must correspond with the
name as written upon the face of this
Certificate in every particular
without alteration or enlargement or
any change whatever.
________________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-9
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2002-CIBC5, CLASS C
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS ON THE
CERTIFICATES AND THE PORTION OF COLLATERAL SUPPORT DEFICIT ALLOCABLE TO THIS
CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE
LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN
ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE TRUSTEE. THIS CERTIFICATE
CONSTITUTES A REMIC REGULAR INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
PASS-THROUGH RATE: 5.3670% APPROXIMATE AGGREGATE SCHEDULED PRINCIPAL BALANCE OF THE
MORTGAGE LOANS AFTER DEDUCTING PAYMENTS DUE AND PREPAYMENTS
DENOMINATION: $[ ] RECEIVED ON OR BEFORE CUT-OFF DATE: $[888,796,000]
DATE OF POOLING AND SERVICING AGREEMENT: AS OF SERVICER: WACHOVIA BANK, NATIONAL ASSOCIATION
NOVEMBER 4, 2002
SPECIAL SERVICER: ARCAP SPECIAL SERVICING, INC.
CUT-OFF DATE: AS DEFINED IN THE POOLING AND SERVICING
AGREEMENT (AS DEFINED HEREIN) TRUSTEE: XXXXX FARGO BANK MINNESOTA, N.A.
CLOSING DATE: NOVEMBER 4, 2002 CUSIP NO.: 00000XXX0
FIRST DISTRIBUTION DATE: ISIN NO.: US46625MNU98
DECEMBER 12, 2002
COMMON CODE NO.: 15755911
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE CERTIFICATE NO.: C-1
OF THE CLASS C CERTIFICATES
AS OF THE CLOSING DATE: $13,809,000
CLASS C CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial and multifamily fixed rate balloon and fully amortizing
mortgage loans (the "Mortgage Loans"), all payments on or collections in respect
of the Mortgage Loans due after the Cut-off Date, all REO Properties and
revenues received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Simon Collection Account, the Interest Reserve Account, the Excess Interest
Distribution Account, the Gain on Sale Account and the REO Accounts, formed and
sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL SERVICER,
THE TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE NOR THE
UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE
UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class C Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of November 4, 2002 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Servicer and
the Special Servicer. A summary of certain of the pertinent provisions of the
Pooling and Servicing Agreement is set forth hereafter. To the extent not
defined herein, the capitalized terms used herein shall have the meanings
assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Certificates of the series specified on the face
hereof (herein called the "Certificates") and representing an interest in the
Class of Certificates specified on the face hereof equal to the quotient
expressed as a percentage obtained by dividing the Denomination of this
Certificate specified on the face hereof, by the aggregate initial Certificate
Balance of the Class C Certificates. The Certificates are designated as the X.X.
XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage
Pass-Through Certificates, Series 2002-CIBC5 and are issued in twenty-two
classes as specifically set forth in the Pooling and Servicing Agreement. The
Certificates will evidence in the aggregate 100% of the beneficial ownership of
the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate
mortgage investment conduit," as those terms are defined, respectively, in
Sections 860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended.
Each Holder of this Certificate, by acceptance hereof, agrees to treat, and take
no action inconsistent with the treatment of, this Certificate in accordance
with the preceding sentence for purposes of federal income taxes, state and
local income and franchise taxes and other taxes imposed on or measured by
income.
Pursuant to the terms of the Pooling and Servicing Agreement,
the Trustee shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each
year consisted of 360 days and each month consisted of 30 days) during the
Interest Accrual Period relating to such Distribution Date at the Class C
Pass-Through Rate specified above on the Certificate Balance of this Certificate
immediately prior to each Distribution Date. Principal and interest allocated to
this Certificate on any Distribution Date will be in an amount due to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest
on the Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among
other things, certain collections and recoveries respecting the Mortgage Loans,
all as more specifically set forth in the Pooling and Servicing Agreement. As
provided in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Servicer (with respect to the Certificate Account) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Servicer as set forth in the Pooling and
Servicing Agreement. As provided in the Pooling and Servicing Agreement,
withdrawals from the Certificate Account shall be made from time to time for
purposes other than distributions to Certificateholders, such purposes including
reimbursement of certain expenses incurred with respect to the servicing of the
Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to
a Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing at least five Business Days prior to
the related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor. The final distribution on this Certificate shall be made in
like manner, but only upon presentment and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date
because of the failure of Certificateholders to tender their Certificates shall
be set aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Trustee may, directly or through an agent, take appropriate
steps to contact the remaining non-tendering Certificateholders concerning
surrender of their Certificates. The costs and expenses of holding such funds in
trust and of contacting such Certificateholders shall be paid out of such funds.
No interest shall accrue or be payable to any Certificateholder on any amount
held in trust as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 4.01(g) of
the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement,
the Non-Registered Certificates (other than the Residual Certificates) will be
issued in book-entry form through the facilities of DTC in Denominations of
$250,000 initial Certificate Balance, and in integral multiples of $1 in excess
thereof, with one Certificate of each such Class evidencing an additional amount
equal to the remainder of the initial Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Servicer, the Special Servicer
and the Certificate Registrar and any of their agents may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and neither the Depositor, the Trustee, the Servicer, the Special Servicer, the
Certificate Registrar nor any such agents shall be affected by any notice to the
contrary.
The Pooling and Servicing Agreement may be amended from time
to time by the Depositor, the Servicer, the Special Servicer and the Trustee,
without the consent of any of the Certificateholders, to cure any ambiguity, to
correct or supplement any provisions therein that may be inconsistent with any
other provisions therein or the Prospectus or the Prospectus Supplement or to
correct any error; to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of any
of the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the imposition of any tax, provided, however, an Opinion
of Counsel is obtained to the effect that such action shall not adversely affect
in any material respect the interest of any Certificateholder and such action is
necessary or desirable to avoid such tax; to change the timing and/or nature of
deposits into the Certificate Account, the Simon Collection Account or
Distribution Accounts or REO Account or to change the name in which the
Certificate Account or Simon Collection Account is maintained, provided,
however, that the P&I Advance Date shall not be later than the related
Distribution Date, an Opinion of Counsel is obtained to the effect that such
action shall not adversely affect in any material respect the interest of any
Certificateholder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating by any Rating Agency, as
evidenced by a letter from such Rating Agency to such effect; to modify,
eliminate or add to the provisions of Section 5.02(d) of the Pooling and
Servicing Agreement or any other provision thereof restricting transfer of the
Residual Certificates by virtue of their being the REMIC "residual interests,"
and such change shall not, as evidenced by an Opinion of Counsel, cause any of
the Upper-Tier REMIC, the Lower-Tier REMIC, the Loan REMIC or any of the
Certificateholders (other than the Transferor) to be subject to a federal tax
caused by a Transfer to a Person that is a Disqualified Organization or a
Non-U.S. Person; and to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interest of any
Certificateholder not consenting thereto; provided further, that in no event may
any amendment change in any manner the obligations of any Mortgage Loan Seller
without the consent of each Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from
time to time by the Depositor, the Servicer, the Special Servicer and the
Trustee with the consent of the Holders of Certificates representing not less
than 66 2/3% of the aggregate Percentage Interests of each Class of Certificates
affected by the amendment for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of the Pooling and
Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of such Certificateholder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment,
without the consent of the Holders of all Certificates of such Class then
outstanding;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of
each Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders or written
confirmation that such amendment would not result in the downgrading,
qualification or withdrawal of ratings assigned to any Class of
Certificates by any Rating Agency, amend the Servicing Standard.
No amendment shall be made to the Pooling and Servicing
Agreement unless the Trustee shall have received an Opinion of Counsel that such
amendment is permitted under the Pooling and Servicing Agreement and will not
cause any of the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan REMIC to
fail to qualify as a REMIC or result in the imposition of a tax on any of the
Upper-Tier REMIC, the Lower-Tier REMIC or the Loan REMIC or cause the Grantor
Trust to fail to qualify as a grantor trust.
The Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee and each
of the other parties to the Pooling and Servicing Agreement, to purchase all,
but not less than all, of the Mortgage Loans and all property acquired in
respect of any Mortgage Loan remaining in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates, on any Distribution Date on which the aggregate Stated Principal
Balances of the Mortgage Loans and any REO Loans remaining in the Trust Fund is
reduced to less than 1% of the aggregate Cut-off Date Principal Balance of all
the Mortgage Loans.
The obligations created by the Pooling and Servicing Agreement
and the Trust Fund created thereby (other than the obligation of the Trustee to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement 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.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose. The Certificate Registrar has executed this
Certificate on behalf of the Trust Fund as Certificate Registrar under the
Pooling and Servicing Agreement and makes no representation or warranty as to
any of the statements contained herein or the validity or sufficiency of the
Certificates or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL
BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK MINNESOTA, N.A.,
not in its individual capacity but solely as
Certificate Registrar under the Pooling and
Servicing Agreement.
By: ___________________________________________
AUTHORIZED SIGNATORY
Dated: November __, 2002
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS C CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK MINNESOTA, N.A.,
AUTHENTICATING AGENT
By: ___________________________________________
AUTHORIZED SIGNATORY
SCHEDULE A
CERTIFICATE BALANCE OF DEFINITIVE
CERTIFICATES EXCHANGED OR TRANSFERRED
FOR, OR ISSUED IN EXCHANGE FOR OR UPON
TRANSFER OF, AN INTEREST IN THIS REMAINING CERTIFICATE BALANCE NOTATION
DATE BOOK-ENTRY CERTIFICATE OF BOOK-ENTRY CERTIFICATE MADE BY
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in
the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto ____________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
-------------------------------------
NOTICE: The signature to this
Dated:__________________ assignment must correspond with the
name as written upon the face of this
Certificate in every particular
without alteration or enlargement or
any change whatever.
________________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-10
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2002-CIBC5, CLASS D
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS ON THE
CERTIFICATES AND THE PORTION OF COLLATERAL SUPPORT DEFICIT ALLOCABLE TO THIS
CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE
LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN
ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE TRUSTEE. THIS CERTIFICATE
CONSTITUTES A REMIC REGULAR INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
PASS-THROUGH RATE: 5.4560% APPROXIMATE AGGREGATE SCHEDULED PRINCIPAL BALANCE OF THE
MORTGAGE LOANS AFTER DEDUCTING PAYMENTS DUE AND PREPAYMENTS
DENOMINATION: $[ ] RECEIVED ON OR BEFORE CUT-OFF DATE: $[888,796,000]
DATE OF POOLING AND SERVICING AGREEMENT: AS OF SERVICER: WACHOVIA BANK, NATIONAL ASSOCIATION
NOVEMBER 4, 2002
SPECIAL SERVICER: ARCAP SPECIAL SERVICING, INC.
CUT-OFF DATE: AS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT (AS DEFINED HEREIN) TRUSTEE: XXXXX FARGO BANK MINNESOTA, N.A.
CLOSING DATE: NOVEMBER 4, 2002 CUSIP NO.: 00000XXX0
FIRST DISTRIBUTION DATE: ISIN NO.: US46625MNV71
DECEMBER 12, 2002
COMMON CODE NO.: 15755920
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE CERTIFICATE NO.: D-1
OF THE CLASS D CERTIFICATES
AS OF THE CLOSING DATE: $27,618,000
CLASS D CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial and multifamily fixed rate balloon and fully amortizing
mortgage loans (the "Mortgage Loans"), all payments on or collections in respect
of the Mortgage Loans due after the Cut-off Date, all REO Properties and
revenues received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Simon Collection Account, the Interest Reserve Account, the Excess Interest
Distribution Account, the Gain on Sale Account and the REO Accounts, formed and
sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL SERVICER,
THE TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE NOR THE
UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE
UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class D Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of November 4, 2002 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Servicer and
the Special Servicer. A summary of certain of the pertinent provisions of the
Pooling and Servicing Agreement is set forth hereafter. To the extent not
defined herein, the capitalized terms used herein shall have the meanings
assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Certificates of the series specified on the face
hereof (herein called the "Certificates") and representing an interest in the
Class of Certificates specified on the face hereof equal to the quotient
expressed as a percentage obtained by dividing the Denomination of this
Certificate specified on the face hereof, by the aggregate initial Certificate
Balance of the Class D Certificates. The Certificates are designated as the X.X.
XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage
Pass-Through Certificates, Series 2002-CIBC5 and are issued in twenty-two
classes as specifically set forth in the Pooling and Servicing Agreement. The
Certificates will evidence in the aggregate 100% of the beneficial ownership of
the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate
mortgage investment conduit," as those terms are defined, respectively, in
Sections 860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended.
Each Holder of this Certificate, by acceptance hereof, agrees to treat, and take
no action inconsistent with the treatment of, this Certificate in accordance
with the preceding sentence for purposes of federal income taxes, state and
local income and franchise taxes and other taxes imposed on or measured by
income.
Pursuant to the terms of the Pooling and Servicing Agreement,
the Trustee shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each
year consisted of 360 days and each month consisted of 30 days) during the
Interest Accrual Period relating to such Distribution Date at the Class D
Pass-Through Rate specified above on the Certificate Balance of this Certificate
immediately prior to each Distribution Date. Principal and interest allocated to
this Certificate on any Distribution Date will be in an amount due to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest
on the Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among
other things, certain collections and recoveries respecting the Mortgage Loans,
all as more specifically set forth in the Pooling and Servicing Agreement. As
provided in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Servicer (with respect to the Certificate Account) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Servicer as set forth in the Pooling and
Servicing Agreement. As provided in the Pooling and Servicing Agreement,
withdrawals from the Certificate Account shall be made from time to time for
purposes other than distributions to Certificateholders, such purposes including
reimbursement of certain expenses incurred with respect to the servicing of the
Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to
a Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing at least five Business Days prior to
the related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor. The final distribution on this Certificate shall be made in
like manner, but only upon presentment and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date
because of the failure of Certificateholders to tender their Certificates shall
be set aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Trustee may, directly or through an agent, take appropriate
steps to contact the remaining non-tendering Certificateholders concerning
surrender of their Certificates. The costs and expenses of holding such funds in
trust and of contacting such Certificateholders shall be paid out of such funds.
No interest shall accrue or be payable to any Certificateholder on any amount
held in trust as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 4.01(g) of
the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement,
the Non-Registered Certificates (other than the Residual Certificates) will be
issued in book-entry form through the facilities of DTC in Denominations of
$250,000 initial Certificate Balance, and in integral multiples of $1 in excess
thereof, with one Certificate of each such Class evidencing an additional amount
equal to the remainder of the initial Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Servicer, the Special Servicer
and the Certificate Registrar and any of their agents may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and neither the Depositor, the Trustee, the Servicer, the Special Servicer, the
Certificate Registrar nor any such agents shall be affected by any notice to the
contrary.
The Pooling and Servicing Agreement may be amended from time
to time by the Depositor, the Servicer, the Special Servicer and the Trustee,
without the consent of any of the Certificateholders, to cure any ambiguity, to
correct or supplement any provisions therein that may be inconsistent with any
other provisions therein or the Prospectus or the Prospectus Supplement or to
correct any error; to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of any
of the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the imposition of any tax, provided, however, an Opinion
of Counsel is obtained to the effect that such action shall not adversely affect
in any material respect the interest of any Certificateholder and such action is
necessary or desirable to avoid such tax; to change the timing and/or nature of
deposits into the Certificate Account, the Simon Collection Account or
Distribution Accounts or REO Account or to change the name in which the
Certificate Account or Simon Collection Account is maintained, provided,
however, that the P&I Advance Date shall not be later than the related
Distribution Date, an Opinion of Counsel is obtained to the effect that such
action shall not adversely affect in any material respect the interest of any
Certificateholder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating by any Rating Agency, as
evidenced by a letter from such Rating Agency to such effect; to modify,
eliminate or add to the provisions of Section 5.02(d) of the Pooling and
Servicing Agreement or any other provision thereof restricting transfer of the
Residual Certificates by virtue of their being the REMIC "residual interests,"
and such change shall not, as evidenced by an Opinion of Counsel, cause any of
the Upper-Tier REMIC, the Lower-Tier REMIC, the Loan REMIC or any of the
Certificateholders (other than the Transferor) to be subject to a federal tax
caused by a Transfer to a Person that is a Disqualified Organization or a
Non-U.S. Person; and to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interest of any
Certificateholder not consenting thereto; provided further, that in no event may
any amendment change in any manner the obligations of any Mortgage Loan Seller
without the consent of each Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from
time to time by the Depositor, the Servicer, the Special Servicer and the
Trustee with the consent of the Holders of Certificates representing not less
than 66 2/3% of the aggregate Percentage Interests of each Class of Certificates
affected by the amendment for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of the Pooling and
Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of such Certificateholder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment,
without the consent of the Holders of all Certificates of such Class then
outstanding;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of
each Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders or written
confirmation that such amendment would not result in the downgrading,
qualification or withdrawal of ratings assigned to any Class of
Certificates by any Rating Agency, amend the Servicing Standard.
No amendment shall be made to the Pooling and Servicing
Agreement unless the Trustee shall have received an Opinion of Counsel that such
amendment is permitted under the Pooling and Servicing Agreement and will not
cause any of the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan REMIC to
fail to qualify as a REMIC or result in the imposition of a tax on any of the
Upper-Tier REMIC, the Lower-Tier REMIC or the Loan REMIC or cause the Grantor
Trust to fail to qualify as a grantor trust.
The Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee and each
of the other parties to the Pooling and Servicing Agreement, to purchase all,
but not less than all, of the Mortgage Loans and all property acquired in
respect of any Mortgage Loan remaining in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates, on any Distribution Date on which the aggregate Stated Principal
Balances of the Mortgage Loans and any REO Loans remaining in the Trust Fund is
reduced to less than 1% of the aggregate Cut-off Date Principal Balance of all
the Mortgage Loans.
The obligations created by the Pooling and Servicing Agreement
and the Trust Fund created thereby (other than the obligation of the Trustee to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement 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.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose. The Certificate Registrar has executed this
Certificate on behalf of the Trust Fund as Certificate Registrar under the
Pooling and Servicing Agreement and makes no representation or warranty as to
any of the statements contained herein or the validity or sufficiency of the
Certificates or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL
BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK MINNESOTA, N.A.,
not in its individual capacity but solely as
Certificate Registrar under the Pooling and
Servicing Agreement.
By: ___________________________________________
AUTHORIZED SIGNATORY
Dated: November __, 2002
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS D CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK MINNESOTA, N.A.,
AUTHENTICATING AGENT
By: ___________________________________________
AUTHORIZED SIGNATORY
SCHEDULE A
CERTIFICATE BALANCE OF DEFINITIVE
CERTIFICATES EXCHANGED OR TRANSFERRED
FOR, OR ISSUED IN EXCHANGE FOR OR UPON
TRANSFER OF, AN INTEREST IN THIS REMAINING CERTIFICATE BALANCE NOTATION
DATE BOOK-ENTRY CERTIFICATE OF BOOK-ENTRY CERTIFICATE MADE BY
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above
list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto ____________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
-------------------------------------
NOTICE: The signature to this
Dated:__________________ assignment must correspond with the
name as written upon the face of this
Certificate in every particular
without alteration or enlargement or
any change whatever.
________________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-11
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2002-CIBC5, CLASS E
THE PORTION OF THE CERTIFICATE BALANCE OF THE CERTIFICATES EVIDENCED BY THIS
CERTIFICATE WILL BE DECREASED BY THE PORTION OF PRINCIPAL DISTRIBUTIONS ON THE
CERTIFICATES AND THE PORTION OF COLLATERAL SUPPORT DEFICIT ALLOCABLE TO THIS
CERTIFICATE. ACCORDINGLY, THE CERTIFICATE BALANCE OF THIS CERTIFICATE MAY BE
LESS THAN THAT SET FORTH BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY ASCERTAIN
ITS CURRENT CERTIFICATE BALANCE BY INQUIRY OF THE TRUSTEE. THIS CERTIFICATE
CONSTITUTES A REMIC REGULAR INTEREST UNDER THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
PASS-THROUGH RATE: 5.5540% SUBJECT TO A MAXIMUM APPROXIMATE AGGREGATE SCHEDULED PRINCIPAL BALANCE OF THE
PASS-THROUGH RATE AS SET FORTH IN THE POOLING AND MORTGAGE LOANS AFTER DEDUCTING PAYMENTS DUE AND PREPAYMENTS
SERVICING AGREEMENT RECEIVED ON OR BEFORE CUT-OFF DATE: $[888,796,000]
DENOMINATION: $[ ] SERVICER: WACHOVIA BANK, NATIONAL ASSOCIATION
DATE OF POOLING AND SERVICING AGREEMENT: AS OF SPECIAL SERVICER: ARCAP SPECIAL SERVICING, INC.
NOVEMBER 4, 2002
TRUSTEE: XXXXX FARGO BANK MINNESOTA, N.A.
CUT-OFF DATE: AS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT (AS DEFINED HEREIN) CUSIP NO.: 00000XXX0
CLOSING DATE: NOVEMBER 4, 2002 ISIN NO.: US46625MNS43
FIRST DISTRIBUTION DATE: COMMON CODE NO.: 15755938
DECEMBER 12, 2002
CERTIFICATE NO.: E-1
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE
OF THE CLASS E CERTIFICATES
AS OF THE CLOSING DATE: $13,809,000
CLASS E CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial and multifamily fixed rate balloon and fully amortizing
mortgage loans (the "Mortgage Loans"), all payments on or collections in respect
of the Mortgage Loans due after the Cut-off Date, all REO Properties and
revenues received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Simon Collection Account, the Interest Reserve Account, the Excess Interest
Distribution Account, the Gain on Sale Account and the REO Accounts, formed and
sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL SERVICER,
THE TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE NOR THE
UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE
UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class E Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of November 4, 2002 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Servicer and
the Special Servicer. A summary of certain of the pertinent provisions of the
Pooling and Servicing Agreement is set forth hereafter. To the extent not
defined herein, the capitalized terms used herein shall have the meanings
assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Certificates of the series specified on the face
hereof (herein called the "Certificates") and representing an interest in the
Class of Certificates specified on the face hereof equal to the quotient
expressed as a percentage obtained by dividing the Denomination of this
Certificate specified on the face hereof, by the aggregate initial Certificate
Balance of the Class E Certificates. The Certificates are designated as the X.X.
XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage
Pass-Through Certificates, Series 2002-CIBC5 and are issued in twenty-two
classes as specifically set forth in the Pooling and Servicing Agreement. The
Certificates will evidence in the aggregate 100% of the beneficial ownership of
the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate
mortgage investment conduit," as those terms are defined, respectively, in
Sections 860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended.
Each Holder of this Certificate, by acceptance hereof, agrees to treat, and take
no action inconsistent with the treatment of, this Certificate in accordance
with the preceding sentence for purposes of federal income taxes, state and
local income and franchise taxes and other taxes imposed on or measured by
income.
Pursuant to the terms of the Pooling and Servicing Agreement,
the Trustee shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each
year consisted of 360 days and each month consisted of 30 days) during the
Interest Accrual Period relating to such Distribution Date at the Class E
Pass-Through Rate specified above on the Certificate Balance of this Certificate
immediately prior to each Distribution Date. Principal and interest allocated to
this Certificate on any Distribution Date will be in an amount due to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest
on the Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among
other things, certain collections and recoveries respecting the Mortgage Loans,
all as more specifically set forth in the Pooling and Servicing Agreement. As
provided in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Servicer (with respect to the Certificate Account) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Servicer as set forth in the Pooling and
Servicing Agreement. As provided in the Pooling and Servicing Agreement,
withdrawals from the Certificate Account shall be made from time to time for
purposes other than distributions to Certificateholders, such purposes including
reimbursement of certain expenses incurred with respect to the servicing of the
Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to
a Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing at least five Business Days prior to
the related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor. The final distribution on this Certificate shall be made in
like manner, but only upon presentment and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date
because of the failure of Certificateholders to tender their Certificates shall
be set aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Trustee may, directly or through an agent, take appropriate
steps to contact the remaining non-tendering Certificateholders concerning
surrender of their Certificates. The costs and expenses of holding such funds in
trust and of contacting such Certificateholders shall be paid out of such funds.
No interest shall accrue or be payable to any Certificateholder on any amount
held in trust as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 4.01(g) of
the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement,
the Non-Registered Certificates (other than the Residual Certificates) will be
issued in book-entry form through the facilities of DTC in Denominations of
$250,000 initial Certificate Balance, and in integral multiples of $1 in excess
thereof, with one Certificate of each such Class evidencing an additional amount
equal to the remainder of the initial Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Servicer, the Special Servicer
and the Certificate Registrar and any of their agents may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and neither the Depositor, the Trustee, the Servicer, the Special Servicer, the
Certificate Registrar nor any such agents shall be affected by any notice to the
contrary.
The Pooling and Servicing Agreement may be amended from time
to time by the Depositor, the Servicer, the Special Servicer and the Trustee,
without the consent of any of the Certificateholders, to cure any ambiguity, to
correct or supplement any provisions therein that may be inconsistent with any
other provisions therein or the Prospectus or the Prospectus Supplement or to
correct any error; to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of any
of the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the imposition of any tax, provided, however, an Opinion
of Counsel is obtained to the effect that such action shall not adversely affect
in any material respect the interest of any Certificateholder and such action is
necessary or desirable to avoid such tax; to change the timing and/or nature of
deposits into the Certificate Account, the Simon Collection Account or
Distribution Accounts or REO Account or to change the name in which the
Certificate Account or Simon Collection Account is maintained, provided,
however, that the P&I Advance Date shall not be later than the related
Distribution Date, an Opinion of Counsel is obtained to the effect that such
action shall not adversely affect in any material respect the interest of any
Certificateholder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating by any Rating Agency, as
evidenced by a letter from such Rating Agency to such effect; to modify,
eliminate or add to the provisions of Section 5.02(d) of the Pooling and
Servicing Agreement or any other provision thereof restricting transfer of the
Residual Certificates by virtue of their being the REMIC "residual interests,"
and such change shall not, as evidenced by an Opinion of Counsel, cause any of
the Upper-Tier REMIC, the Lower-Tier REMIC, the Loan REMIC or any of the
Certificateholders (other than the Transferor) to be subject to a federal tax
caused by a Transfer to a Person that is a Disqualified Organization or a
Non-U.S. Person; and to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interest of any
Certificateholder not consenting thereto; provided further, that in no event may
any amendment change in any manner the obligations of any Mortgage Loan Seller
without the consent of each Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from
time to time by the Depositor, the Servicer, the Special Servicer and the
Trustee with the consent of the Holders of Certificates representing not less
than 66 2/3% of the aggregate Percentage Interests of each Class of Certificates
affected by the amendment for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of the Pooling and
Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of such Certificateholder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment,
without the consent of the Holders of all Certificates of such Class then
outstanding;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of
each Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders or written
confirmation that such amendment would not result in the downgrading,
qualification or withdrawal of ratings assigned to any Class of
Certificates by any Rating Agency, amend the Servicing Standard.
No amendment shall be made to the Pooling and Servicing
Agreement unless the Trustee shall have received an Opinion of Counsel that such
amendment is permitted under the Pooling and Servicing Agreement and will not
cause any of the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan REMIC to
fail to qualify as a REMIC or result in the imposition of a tax on any of the
Upper-Tier REMIC, the Lower-Tier REMIC or the Loan REMIC or cause the Grantor
Trust to fail to qualify as a grantor trust.
The Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee and each
of the other parties to the Pooling and Servicing Agreement, to purchase all,
but not less than all, of the Mortgage Loans and all property acquired in
respect of any Mortgage Loan remaining in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates, on any Distribution Date on which the aggregate Stated Principal
Balances of the Mortgage Loans and any REO Loans remaining in the Trust Fund is
reduced to less than 1% of the aggregate Cut-off Date Principal Balance of all
the Mortgage Loans.
The obligations created by the Pooling and Servicing Agreement
and the Trust Fund created thereby (other than the obligation of the Trustee to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement 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.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose. The Certificate Registrar has executed this
Certificate on behalf of the Trust Fund as Certificate Registrar under the
Pooling and Servicing Agreement and makes no representation or warranty as to
any of the statements contained herein or the validity or sufficiency of the
Certificates or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL
BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK MINNESOTA, N.A.,
not in its individual capacity but solely as
Certificate Registrar under the Pooling and
Servicing Agreement.
By: ___________________________________________
AUTHORIZED SIGNATORY
Dated: November __, 2002
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS E CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK MINNESOTA, N.A.,
AUTHENTICATING AGENT
By: ___________________________________________
AUTHORIZED SIGNATORY
SCHEDULE A
CERTIFICATE BALANCE OF DEFINITIVE
CERTIFICATES EXCHANGED OR TRANSFERRED
FOR, OR ISSUED IN EXCHANGE FOR OR UPON
TRANSFER OF, AN INTEREST IN THIS REMAINING CERTIFICATE BALANCE NOTATION
DATE BOOK-ENTRY CERTIFICATE OF BOOK-ENTRY CERTIFICATE MADE BY
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above
list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto ____________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
-------------------------------------
NOTICE: The signature to this
Dated:__________________ assignment must correspond with the
name as written upon the face of this
Certificate in every particular
without alteration or enlargement or
any change whatever.
________________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-12
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2002-CIBC5, CLASS F
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 SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS UNDER THE SECURITIES ACT, (D) IN AN OFFSHORE TRANSACTION MEETING
THE REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES
ACT OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT.
THIS CLASS F CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE TRUSTEE. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR INTEREST
UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY 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. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO
THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, 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.]1
THE PASS-THROUGH RATE ON THE CLASS F CERTIFICATES APPROXIMATE AGGREGATE SCHEDULED PRINCIPAL
WILL BE EQUAL TO THE WEIGHTED AVERAGE NET MORTGAGE BALANCE OF THE MORTGAGE LOANS AFTER DEDUCTING
RATE FOR ANY DISTRIBUTION DATE MINUS 0.7540% AS PAYMENTS DUE AND PREPAYMENTS RECEIVED ON OR
SET FORTH IN THE POOLING AND SERVICING AGREEMENT BEFORE CUT-OFF DATE: $[888,796,000]
DENOMINATION: $[ ] SERVICER: WACHOVIA BANK, NATIONAL ASSOCIATION
DATE OF POOLING AND SERVICING AGREEMENT: AS OF SPECIAL SERVICER: ARCAP SPECIAL SERVICING,
NOVEMBER 4, 2002 INC.
CUT-OFF DATE: AS DEFINED IN THE POOLING AND TRUSTEE: XXXXX FARGO BANK MINNESOTA, N.A.
SERVICING AGREEMENT (AS DEFINED HEREIN)
CLOSING DATE: NOVEMBER 4, 2002 CUSIP NO.: [00000XXX0]2 [00000XXX0]3
[X00000XX0]1
FIRST DISTRIBUTION DATE: ISIN NO.: [US46625MNB18]2 [US46625MNZ85]3
DECEMBER 12, 2002 [USU48138FN39]1
APPROXIMATE AGGREGATE CERTIFICATE BALANCE OF THE COMMON CODE NO.: [15748460]2 [15748486]1
CLASS F CERTIFICATES AS OF THE CLOSING DATE:
$28,873,000 CERTIFICATE NO.: F-1
-------------------------
1 For Book-Entry Regulations S Certificates Only.
2 For Book Entry Rule 144A Only.
3 For Institutional Accredited Investors Only.
CLASS F CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial and multifamily fixed rate balloon and fully amortizing
mortgage loans (the "Mortgage Loans"), all payments on or collections in respect
of the Mortgage Loans due after the Cut-off Date, all REO Properties and
revenues received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Simon Collection Account, the Interest Reserve Account, the Excess Interest
Distribution Account, the Gain on Sale Account and the REO Accounts, formed and
sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL SERVICER,
THE TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE NOR THE
UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE
UNITED STATES.
THIS CERTIFIES THAT CEDE & CO
is the registered owner of the interest evidenced by this Certificate in the
Class F Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of November 4, 2002 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Servicer and
the Special Servicer. A summary of certain of the pertinent provisions of the
Pooling and Servicing Agreement is set forth hereafter. To the extent not
defined herein, the capitalized terms used herein shall have the meanings
assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Certificates of the series specified on the face
hereof (herein called the "Certificates") and representing an interest in the
Class of Certificates specified on the face hereof equal to the quotient
expressed as a percentage obtained by dividing the Denomination of this
Certificate specified on the face hereof, by the aggregate initial Certificate
Balance of the Class F Certificates. The Certificates are designated as the X.X.
XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage
Pass-Through Certificates, Series 2002-CIBC5 and are issued in twenty-two
classes as specifically set forth in the Pooling and Servicing Agreement. The
Certificates will evidence in the aggregate 100% of the beneficial ownership of
the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate
mortgage investment conduit," as those terms are defined, respectively, in
Sections 860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended.
Each Holder of this Certificate, by acceptance hereof, agrees to treat, and take
no action inconsistent with the treatment of, this Certificate in accordance
with the preceding sentence for purposes of federal income taxes, state and
local income and franchise taxes and other taxes imposed on or measured by
income.
Pursuant to the terms of the Pooling and Servicing Agreement,
the Trustee shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. Holders of this Certificate may be entitled
to Yield Maintenance Charges as provided in the Pooling and Servicing Agreement.
All sums distributable on this Certificate are payable in the coin or currency
of the United States of America as at the time of payment is legal tender for
the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each
year consisted of 360 days and each month consisted of 30 days) during the
Interest Accrual Period relating to such Distribution Date at the Class F
Pass-Through Rate specified above on the Certificate Balance of this Certificate
immediately prior to each Distribution Date. Principal and interest allocated to
this Certificate on any Distribution Date will be in an amount due to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest
on the Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among
other things, certain collections and recoveries respecting the Mortgage Loans,
all as more specifically set forth in the Pooling and Servicing Agreement. As
provided in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Servicer (with respect to the Certificate Account) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Servicer as set forth in the Pooling and
Servicing Agreement. As provided in the Pooling and Servicing Agreement,
withdrawals from the Certificate Account shall be made from time to time for
purposes other than distributions to Certificateholders, such purposes including
reimbursement of certain expenses incurred with respect to the servicing of the
Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to
a Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing at least five Business Days prior to
the related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor. The final distribution on this Certificate shall be made in
like manner, but only upon presentment and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date
because of the failure of Certificateholders to tender their Certificates shall
be set aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Trustee may, directly or through an agent, take appropriate
steps to contact the remaining non-tendering Certificateholders concerning
surrender of their Certificates. The costs and expenses of holding such funds in
trust and of contacting such Certificateholders shall be paid out of such funds.
No interest shall accrue or be payable to any Certificateholder on any amount
held in trust as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 4.01(g) of
the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement,
the Non-Registered Certificates (other than the Residual Certificates) will be
issued in book-entry form through the facilities of DTC in Denominations of
$250,000 initial Certificate Balance, and in integral multiples of $1 in excess
thereof, with one Certificate of each such Class evidencing an additional amount
equal to the remainder of the initial Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Servicer, the Special Servicer
and the Certificate Registrar and any of their agents may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and neither the Depositor, the Trustee, the Servicer, the Special Servicer, the
Certificate Registrar nor any such agents shall be affected by any notice to the
contrary.
The Pooling and Servicing Agreement may be amended from time
to time by the Depositor, the Servicer, the Special Servicer and the Trustee,
without the consent of any of the Certificateholders, to cure any ambiguity, to
correct or supplement any provisions therein that may be inconsistent with any
other provisions therein or the Prospectus or the Prospectus Supplement or to
correct any error; to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of any
of the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the imposition of any tax, provided, however, an Opinion
of Counsel is obtained to the effect that such action shall not adversely affect
in any material respect the interest of any Certificateholder and such action is
necessary or desirable to avoid such tax; to change the timing and/or nature of
deposits into the Certificate Account, the Simon Collection Account or
Distribution Accounts or REO Account or to change the name in which the
Certificate Account or Simon Collection Account is maintained, provided,
however, that the P&I Advance Date shall not be later than the related
Distribution Date, an Opinion of Counsel is obtained to the effect that such
action shall not adversely affect in any material respect the interest of any
Certificateholder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating by any Rating Agency, as
evidenced by a letter from such Rating Agency to such effect; to modify,
eliminate or add to the provisions of Section 5.02(d) of the Pooling and
Servicing Agreement or any other provision thereof restricting transfer of the
Residual Certificates by virtue of their being the REMIC "residual interests,"
and such change shall not, as evidenced by an Opinion of Counsel, cause any of
the Upper-Tier REMIC, the Lower-Tier REMIC, the Loan REMIC or any of the
Certificateholders (other than the Transferor) to be subject to a federal tax
caused by a Transfer to a Person that is a Disqualified Organization or a
Non-U.S. Person; and to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interest of any
Certificateholder not consenting thereto; provided further, that in no event may
any amendment change in any manner the obligations of any Mortgage Loan Seller
without the consent of each Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from
time to time by the Depositor, the Servicer, the Special Servicer and the
Trustee with the consent of the Holders of Certificates representing not less
than 66 2/3% of the aggregate Percentage Interests of each Class of Certificates
affected by the amendment for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of the Pooling and
Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of such Certificateholder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment,
without the consent of the Holders of all Certificates of such Class then
outstanding;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of
each Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders or written
confirmation that such amendment would not result in the downgrading,
qualification or withdrawal of ratings assigned to any Class of
Certificates by any Rating Agency, amend the Servicing Standard.
No amendment shall be made to the Pooling and Servicing
Agreement unless the Trustee shall have received an Opinion of Counsel that such
amendment is permitted under the Pooling and Servicing Agreement and will not
cause any of the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan REMIC to
fail to qualify as a REMIC or result in the imposition of a tax on any of the
Upper-Tier REMIC, the Lower-Tier REMIC or the Loan REMIC or cause the Grantor
Trust to fail to qualify as a grantor trust.
The Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee and each
of the other parties to the Pooling and Servicing Agreement, to purchase all,
but not less than all, of the Mortgage Loans and all property acquired in
respect of any Mortgage Loan remaining in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates, on any Distribution Date on which the aggregate Stated Principal
Balances of the Mortgage Loans and any REO Loans remaining in the Trust Fund is
reduced to less than 1% of the aggregate Cut-off Date Principal Balance of all
the Mortgage Loans.
The obligations created by the Pooling and Servicing Agreement
and the Trust Fund created thereby (other than the obligation of the Trustee to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement 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.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose. The Certificate Registrar has executed this
Certificate on behalf of the Trust Fund as Certificate Registrar under the
Pooling and Servicing Agreement and makes no representation or warranty as to
any of the statements contained herein or the validity or sufficiency of the
Certificates or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL
BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK MINNESOTA, N.A.,
not in its individual capacity but solely as
Certificate Registrar under the Pooling and
Servicing Agreement.
By: ___________________________________________
AUTHORIZED SIGNATORY
Dated: November __, 2002
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS F CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK MINNESOTA, N.A.,
AUTHENTICATING AGENT
By: ___________________________________________
AUTHORIZED SIGNATORY
SCHEDULE A
CERTIFICATE BALANCE OF DEFINITIVE
CERTIFICATES EXCHANGED OR TRANSFERRED
FOR, OR ISSUED IN EXCHANGE FOR OR UPON
TRANSFER OF, AN INTEREST IN THIS REMAINING CERTIFICATE BALANCE NOTATION
DATE BOOK-ENTRY CERTIFICATE OF BOOK-ENTRY CERTIFICATE MADE BY
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in
the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto ____________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
-------------------------------------
NOTICE: The signature to this
Dated:__________________ assignment must correspond with the
name as written upon the face of this
Certificate in every particular
without alteration or enlargement or
any change whatever.
________________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-13
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2002-CIBC5, CLASS G
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 SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS UNDER THE SECURITIES ACT, (D) IN AN OFFSHORE TRANSACTION MEETING
THE REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES
ACT OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT.
THIS CLASS G CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE TRUSTEE. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR INTEREST
UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY 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. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO
THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, 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.]1
THE PASS-THROUGH RATE ON THE CLASS F CERTIFICATES APPROXIMATE AGGREGATE SCHEDULED
WILL BE EQUAL TO THE WEIGHTED AVERAGE NET MORTGAGE PRINCIPAL BALANCE OF THE MORTGAGE
RATE FOR ANY DISTRIBUTION DATE MINUS 0.7540% AS LOANS AFTER DEDUCTING PAYMENTS DUE
SET FORTH IN THE POOLING AND SERVICING AGREEMENT AND PREPAYMENTS RECEIVED ON OR
BEFORE CUT-OFF DATE: $[888,796,000]
DENOMINATION: $[ ] SERVICER: WACHOVIA BANK, NATIONAL ASSOCIATION
DATE OF POOLING AND SERVICING AGREEMENT: AS OF SPECIAL SERVICER: ARCAP SPECIAL SERVICING, INC.
NOVEMBER 4, 2002
CUT-OFF DATE: AS SET FORTH IN THE POOLING AND SERVICING TRUSTEE: XXXXX FARGO BANK MINNESOTA, N.A.
AGREEMENT (AS DEFINED HEREIN)
CLOSING DATE: NOVEMBER 4, 2002 CUSIP NO.: [00000XXX0]2 [00000XXX0]3 [X00000XX0]1
FIRST DISTRIBUTION DATE: ISIN NO.: [US46625MNC90]2 [US46625MPA17]3 [USU48138FP86]1
DECEMBER 12, 2002
APPROXIMATE AGGREGATE COMMON CODE NO.: [15748494]2 [15748559]1
CERTIFICATE BALANCE
OF THE CLASS G CERTIFICATES CERTIFICATE NO.: G-1
AS OF THE CLOSING DATE: $16,320,000
-------------------------
1 For Book-Entry Regulations S Certificates Only.
2 For Book Entry Rule 144A Only.
3 For Institutional Accredited Investors Only.
CLASS G CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial and multifamily fixed rate balloon and fully amortizing
mortgage loans (the "Mortgage Loans"), all payments on or collections in respect
of the Mortgage Loans due after the Cut-off Date, all REO Properties and
revenues received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Simon Collection Account, the Interest Reserve Account, the Excess Interest
Distribution Account, the Gain on Sale Account and the REO Accounts, formed and
sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL SERVICER,
THE TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE NOR THE
UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE
UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class G Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of November 4, 2002 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Servicer and
the Special Servicer. A summary of certain of the pertinent provisions of the
Pooling and Servicing Agreement is set forth hereafter. To the extent not
defined herein, the capitalized terms used herein shall have the meanings
assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Certificates of the series specified on the face
hereof (herein called the "Certificates") and representing an interest in the
Class of Certificates specified on the face hereof equal to the quotient
expressed as a percentage obtained by dividing the Denomination of this
Certificate specified on the face hereof, by the aggregate initial Certificate
Balance of the Class G Certificates. The Certificates are designated as the X.X.
XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage
Pass-Through Certificates, Series 2002-CIBC5 and are issued in twenty-two
classes as specifically set forth in the Pooling and Servicing Agreement. The
Certificates will evidence in the aggregate 100% of the beneficial ownership of
the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate
mortgage investment conduit," as those terms are defined, respectively, in
Sections 860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended.
Each Holder of this Certificate, by acceptance hereof, agrees to treat, and take
no action inconsistent with the treatment of, this Certificate in accordance
with the preceding sentence for purposes of federal income taxes, state and
local income and franchise taxes and other taxes imposed on or measured by
income.
Pursuant to the terms of the Pooling and Servicing Agreement,
the Trustee shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. All sums distributable on this Certificate
are payable in the coin or currency of the United States of America as at the
time of payment is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each
year consisted of 360 days and each month consisted of 30 days) during the
Interest Accrual Period relating to such Distribution Date at the Class G
Pass-Through Rate specified above on the Certificate Balance of this Certificate
immediately prior to each Distribution Date. Principal and interest allocated to
this Certificate on any Distribution Date will be in an amount due to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest
on the Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among
other things, certain collections and recoveries respecting the Mortgage Loans,
all as more specifically set forth in the Pooling and Servicing Agreement. As
provided in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Servicer (with respect to the Certificate Account) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Servicer as set forth in the Pooling and
Servicing Agreement. As provided in the Pooling and Servicing Agreement,
withdrawals from the Certificate Account shall be made from time to time for
purposes other than distributions to Certificateholders, such purposes including
reimbursement of certain expenses incurred with respect to the servicing of the
Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to
a Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing at least five Business Days prior to
the related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor. The final distribution on this Certificate shall be made in
like manner, but only upon presentment and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date
because of the failure of Certificateholders to tender their Certificates shall
be set aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Trustee may, directly or through an agent, take appropriate
steps to contact the remaining non-tendering Certificateholders concerning
surrender of their Certificates. The costs and expenses of holding such funds in
trust and of contacting such Certificateholders shall be paid out of such funds.
No interest shall accrue or be payable to any Certificateholder on any amount
held in trust as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 4.01(g) of
the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement,
the Non-Registered Certificates (other than the Residual Certificates) will be
issued in book-entry form through the facilities of DTC in Denominations of
$250,000 initial Certificate Balance, and in integral multiples of $1 in excess
thereof, with one Certificate of each such Class evidencing an additional amount
equal to the remainder of the initial Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Servicer, the Special Servicer
and the Certificate Registrar and any of their agents may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and neither the Depositor, the Trustee, the Servicer, the Special Servicer, the
Certificate Registrar nor any such agents shall be affected by any notice to the
contrary.
The Pooling and Servicing Agreement may be amended from time
to time by the Depositor, the Servicer, the Special Servicer and the Trustee,
without the consent of any of the Certificateholders, to cure any ambiguity, to
correct or supplement any provisions therein that may be inconsistent with any
other provisions therein or the Prospectus or the Prospectus Supplement or to
correct any error; to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of any
of the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the imposition of any tax, provided, however, an Opinion
of Counsel is obtained to the effect that such action shall not adversely affect
in any material respect the interest of any Certificateholder and such action is
necessary or desirable to avoid such tax; to change the timing and/or nature of
deposits into the Certificate Account, the Simon Collection Account or
Distribution Accounts or REO Account or to change the name in which the
Certificate Account or Simon Collection Account is maintained, provided,
however, that the P&I Advance Date shall not be later than the related
Distribution Date, an Opinion of Counsel is obtained to the effect that such
action shall not adversely affect in any material respect the interest of any
Certificateholder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating by any Rating Agency, as
evidenced by a letter from such Rating Agency to such effect; to modify,
eliminate or add to the provisions of Section 5.02(d) of the Pooling and
Servicing Agreement or any other provision thereof restricting transfer of the
Residual Certificates by virtue of their being the REMIC "residual interests,"
and such change shall not, as evidenced by an Opinion of Counsel, cause any of
the Upper-Tier REMIC, the Lower-Tier REMIC, the Loan REMIC or any of the
Certificateholders (other than the Transferor) to be subject to a federal tax
caused by a Transfer to a Person that is a Disqualified Organization or a
Non-U.S. Person; and to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interest of any
Certificateholder not consenting thereto; provided further, that in no event may
any amendment change in any manner the obligations of any Mortgage Loan Seller
without the consent of each Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from
time to time by the Depositor, the Servicer, the Special Servicer and the
Trustee with the consent of the Holders of Certificates representing not less
than 66 2/3% of the aggregate Percentage Interests of each Class of Certificates
affected by the amendment for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of the Pooling and
Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of such Certificateholder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment,
without the consent of the Holders of all Certificates of such Class then
outstanding;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of
each Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders or written
confirmation that such amendment would not result in the downgrading,
qualification or withdrawal of ratings assigned to any Class of
Certificates by any Rating Agency, amend the Servicing Standard.
No amendment shall be made to the Pooling and Servicing
Agreement unless the Trustee shall have received an Opinion of Counsel that such
amendment is permitted under the Pooling and Servicing Agreement and will not
cause any of the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan REMIC to
fail to qualify as a REMIC or result in the imposition of a tax on any of the
Upper-Tier REMIC, the Lower-Tier REMIC or the Loan REMIC or cause the Grantor
Trust to fail to qualify as a grantor trust.
The Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee and each
of the other parties to the Pooling and Servicing Agreement, to purchase all,
but not less than all, of the Mortgage Loans and all property acquired in
respect of any Mortgage Loan remaining in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates, on any Distribution Date on which the aggregate Stated Principal
Balances of the Mortgage Loans and any REO Loans remaining in the Trust Fund is
reduced to less than 1% of the aggregate Cut-off Date Principal Balance of all
the Mortgage Loans.
The obligations created by the Pooling and Servicing Agreement
and the Trust Fund created thereby (other than the obligation of the Trustee to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement 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.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose. The Certificate Registrar has executed this
Certificate on behalf of the Trust Fund as Certificate Registrar under the
Pooling and Servicing Agreement and makes no representation or warranty as to
any of the statements contained herein or the validity or sufficiency of the
Certificates or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL
BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK MINNESOTA, N.A.,
not in its individual capacity but solely as
Certificate Registrar under the Pooling and
Servicing Agreement.
By: ___________________________________________
AUTHORIZED SIGNATORY
Dated: November __, 2002
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS G CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK MINNESOTA, N.A.,
AUTHENTICATING AGENT
By: ___________________________________________
AUTHORIZED SIGNATORY
SCHEDULE A
CERTIFICATE BALANCE OF DEFINITIVE
CERTIFICATES EXCHANGED OR TRANSFERRED
FOR, OR ISSUED IN EXCHANGE FOR OR UPON
TRANSFER OF, AN INTEREST IN THIS REMAINING CERTIFICATE BALANCE NOTATION
DATE BOOK-ENTRY CERTIFICATE OF BOOK-ENTRY CERTIFICATE MADE BY
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above
list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto ____________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
-------------------------------------
NOTICE: The signature to this
Dated:__________________ assignment must correspond with the
name as written upon the face of this
Certificate in every particular
without alteration or enlargement or
any change whatever.
________________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-14
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2002-CIBC5, CLASS H
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 SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS UNDER THE SECURITIES ACT, (D) IN AN OFFSHORE TRANSACTION MEETING
THE REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES
ACT OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT.
THIS CLASS H CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE TRUSTEE. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR INTEREST
UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (I) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A GOVERNMENTAL PLAN
(AS DEFINED IN SECTION 3(32) OF ERISA) SUBJECT TO ANY FEDERAL, STATE OR LOCAL
LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING
PROVISIONS OF ERISA OR THE CODE (EACH A "PLAN") OR (II) A PERSON ACTING ON
BEHALF OF OR USING THE ASSETS OF ANY SUCH PLAN (INCLUDING AN ENTITY WHOSE
UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY
SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION SS. 2510.3-101),
OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER
CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUBORDINATE CERTIFICATES BY
SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED TRANSACTION
PROVISIONS OF ERISA AND THE CODE UNDER PROHIBITED TRANSACTION CLASS EXEMPTION
95-60 OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE NAME OF A
PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE, AN OPINION OF COUNSEL IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR TO THE
EFFECT THAT SUCH ACQUISITION AND HOLDING OF SUCH CERTIFICATE BY SUCH PROPOSED
PURCHASER OR TRANSFEREE WILL NOT RESULT IN THE ASSETS OF THE TRUST FUND BEING
DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO THE FIDUCIARY RESPONSIBILITY
PROVISIONS OF ERISA, THE PROHIBITED TRANSACTION PROVISIONS OF THE CODE OR THE
PROVISIONS OF ANY SIMILAR LAW, WILL NOT CONSTITUTE OR RESULT IN A "PROHIBITED
TRANSACTION" WITHIN THE MEANING OF ERISA, SECTION 4975 OF THE CODE OR ANY
SIMILAR LAW, AND WILL NOT SUBJECT THE TRUSTEE, THE CERTIFICATE REGISTRAR, THE
SERVICER, THE SPECIAL SERVICER, THE PLACEMENT AGENT OR THE DEPOSITOR TO ANY
OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA,
SECTION 4975 OF THE CODE OR ANY SUCH SIMILAR LAW) IN ADDITION TO THOSE SET FORTH
IN THE POOLING AND SERVICING AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST
IN A CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT
THAT IT IS NOT A PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY 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. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO
THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, 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.]1
PASS-THROUGH RATE: 5.5000% APPROXIMATE AGGREGATE SCHEDULED PRINCIPAL BALANCE OF THE
MORTGAGE LOANS AFTER DEDUCTING PAYMENTS DUE AND PREPAYMENTS
DENOMINATION: $[ ] RECEIVED ON OR BEFORE CUT-OFF DATE: $[888,796,000]
DATE OF POOLING AND SERVICING AGREEMENT: AS OF SERVICER: WACHOVIA BANK, NATIONAL ASSOCIATION
NOVEMBER 4, 2002
SPECIAL SERVICER: ARCAP SPECIAL SERVICING, INC.
CUT-OFF DATE: AS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT (AS DEFINED HEREIN) TRUSTEE: XXXXX FARGO BANK MINNESOTA, N.A.
CLOSING DATE: NOVEMBER 4, 2002 CUSIP NO.: [00000XXX0]2 [00000XXX0]3 [X00000XX0]1
FIRST DISTRIBUTION DATE: ISIN NO.: [US46625MND73]2 [US46625MPB99]3 [USU48138FQ69]1
DECEMBER 12, 2002
COMMON CODE NO.: [15748591]2 [15748656]1
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE CERTIFICATE NO.: H-1
OF THE CLASS H CERTIFICATES
AS OF THE CLOSING DATE: $18,831,000
-------------------------
1 For Book-Entry Regulations S Certificates Only.
2 For Book Entry Rule 144A Only.
3 For Institutional Accredited Investors Only.
CLASS H CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial and multifamily fixed rate balloon and fully amortizing
mortgage loans (the "Mortgage Loans"), all payments on or collections in respect
of the Mortgage Loans due after the Cut-off Date, all REO Properties and
revenues received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Simon Collection Account, the Interest Reserve Account, the Excess Interest
Distribution Account, the Gain on Sale Account and the REO Accounts, formed and
sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL SERVICER,
THE TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE NOR THE
UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE
UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class H Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of November 4, 2002 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Servicer and
the Special Servicer. A summary of certain of the pertinent provisions of the
Pooling and Servicing Agreement is set forth hereafter. To the extent not
defined herein, the capitalized terms used herein shall have the meanings
assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Certificates of the series specified on the face
hereof (herein called the "Certificates") and representing an interest in the
Class of Certificates specified on the face hereof equal to the quotient
expressed as a percentage obtained by dividing the Denomination of this
Certificate specified on the face hereof, by the aggregate initial Certificate
Balance of the Class H Certificates. The Certificates are designated as the X.X.
XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage
Pass-Through Certificates, Series 2002-CIBC5 and are issued in twenty-two
classes as specifically set forth in the Pooling and Servicing Agreement. The
Certificates will evidence in the aggregate 100% of the beneficial ownership of
the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate
mortgage investment conduit," as those terms are defined, respectively, in
Sections 860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended.
Each Holder of this Certificate, by acceptance hereof, agrees to treat, and take
no action inconsistent with the treatment of, this Certificate in accordance
with the preceding sentence for purposes of federal income taxes, state and
local income and franchise taxes and other taxes imposed on or measured by
income.
Pursuant to the terms of the Pooling and Servicing Agreement,
the Trustee shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. All sums distributable on this Certificate
are payable in the coin or currency of the United States of America as at the
time of payment is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each
year consisted of 360 days and each month consisted of 30 days) during the
Interest Accrual Period relating to such Distribution Date at the Class H
Pass-Through Rate specified above on the Certificate Balance of this Certificate
immediately prior to each Distribution Date. Principal and interest allocated to
this Certificate on any Distribution Date will be in an amount due to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest
on the Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among
other things, certain collections and recoveries respecting the Mortgage Loans,
all as more specifically set forth in the Pooling and Servicing Agreement. As
provided in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Servicer (with respect to the Certificate Account) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Servicer as set forth in the Pooling and
Servicing Agreement. As provided in the Pooling and Servicing Agreement,
withdrawals from the Certificate Account shall be made from time to time for
purposes other than distributions to Certificateholders, such purposes including
reimbursement of certain expenses incurred with respect to the servicing of the
Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to
a Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing at least five Business Days prior to
the related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor. The final distribution on this Certificate shall be made in
like manner, but only upon presentment and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date
because of the failure of Certificateholders to tender their Certificates shall
be set aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Trustee may, directly or through an agent, take appropriate
steps to contact the remaining non-tendering Certificateholders concerning
surrender of their Certificates. The costs and expenses of holding such funds in
trust and of contacting such Certificateholders shall be paid out of such funds.
No interest shall accrue or be payable to any Certificateholder on any amount
held in trust as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 4.01(g) of
the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement,
the Non-Registered Certificates (other than the Residual Certificates) will be
issued in book-entry form through the facilities of DTC in Denominations of
$250,000 initial Certificate Balance, and in integral multiples of $1 in excess
thereof, with one Certificate of each such Class evidencing an additional amount
equal to the remainder of the initial Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Servicer, the Special Servicer
and the Certificate Registrar and any of their agents may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and neither the Depositor, the Trustee, the Servicer, the Special Servicer, the
Certificate Registrar nor any such agents shall be affected by any notice to the
contrary.
The Pooling and Servicing Agreement may be amended from time
to time by the Depositor, the Servicer, the Special Servicer and the Trustee,
without the consent of any of the Certificateholders, to cure any ambiguity, to
correct or supplement any provisions therein that may be inconsistent with any
other provisions therein or the Prospectus or the Prospectus Supplement or to
correct any error; to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of any
of the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the imposition of any tax, provided, however, an Opinion
of Counsel is obtained to the effect that such action shall not adversely affect
in any material respect the interest of any Certificateholder and such action is
necessary or desirable to avoid such tax; to change the timing and/or nature of
deposits into the Certificate Account, the Simon Collection Account or
Distribution Accounts or REO Account or to change the name in which the
Certificate Account or Simon Collection Account is maintained, provided,
however, that the P&I Advance Date shall not be later than the related
Distribution Date, an Opinion of Counsel is obtained to the effect that such
action shall not adversely affect in any material respect the interest of any
Certificateholder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating by any Rating Agency, as
evidenced by a letter from such Rating Agency to such effect; to modify,
eliminate or add to the provisions of Section 5.02(d) of the Pooling and
Servicing Agreement or any other provision thereof restricting transfer of the
Residual Certificates by virtue of their being the REMIC "residual interests,"
and such change shall not, as evidenced by an Opinion of Counsel, cause any of
the Upper-Tier REMIC, the Lower-Tier REMIC, the Loan REMIC or any of the
Certificateholders (other than the Transferor) to be subject to a federal tax
caused by a Transfer to a Person that is a Disqualified Organization or a
Non-U.S. Person; and to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interest of any
Certificateholder not consenting thereto; provided further, that in no event may
any amendment change in any manner the obligations of any Mortgage Loan Seller
without the consent of each Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from
time to time by the Depositor, the Servicer, the Special Servicer and the
Trustee with the consent of the Holders of Certificates representing not less
than 66 2/3% of the aggregate Percentage Interests of each Class of Certificates
affected by the amendment for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of the Pooling and
Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of such Certificateholder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment,
without the consent of the Holders of all Certificates of such Class then
outstanding;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of
each Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders or written
confirmation that such amendment would not result in the downgrading,
qualification or withdrawal of ratings assigned to any Class of
Certificates by any Rating Agency, amend the Servicing Standard.
No amendment shall be made to the Pooling and Servicing
Agreement unless the Trustee shall have received an Opinion of Counsel that such
amendment is permitted under the Pooling and Servicing Agreement and will not
cause any of the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan REMIC to
fail to qualify as a REMIC or result in the imposition of a tax on any of the
Upper-Tier REMIC, the Lower-Tier REMIC or the Loan REMIC or cause the Grantor
Trust to fail to qualify as a grantor trust.
The Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee and each
of the other parties to the Pooling and Servicing Agreement, to purchase all,
but not less than all, of the Mortgage Loans and all property acquired in
respect of any Mortgage Loan remaining in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates, on any Distribution Date on which the aggregate Stated Principal
Balances of the Mortgage Loans and any REO Loans remaining in the Trust Fund is
reduced to less than 1% of the aggregate Cut-off Date Principal Balance of all
the Mortgage Loans.
The obligations created by the Pooling and Servicing Agreement
and the Trust Fund created thereby (other than the obligation of the Trustee to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement 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.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose. The Certificate Registrar has executed this
Certificate on behalf of the Trust Fund as Certificate Registrar under the
Pooling and Servicing Agreement and makes no representation or warranty as to
any of the statements contained herein or the validity or sufficiency of the
Certificates or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL
BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK MINNESOTA, N.A.,
not in its individual capacity but solely as
Certificate Registrar under the Pooling and
Servicing Agreement.
By: ___________________________________________
AUTHORIZED SIGNATORY
Dated: November __, 2002
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS H CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK MINNESOTA, N.A.,
AUTHENTICATING AGENT
By: ___________________________________________
AUTHORIZED SIGNATORY
SCHEDULE A
CERTIFICATE BALANCE OF DEFINITIVE
CERTIFICATES EXCHANGED OR TRANSFERRED
FOR, OR ISSUED IN EXCHANGE FOR OR UPON
TRANSFER OF, AN INTEREST IN THIS REMAINING CERTIFICATE BALANCE NOTATION
DATE BOOK-ENTRY CERTIFICATE OF BOOK-ENTRY CERTIFICATE MADE BY
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above
list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto ____________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
-------------------------------------
NOTICE: The signature to this
Dated:__________________ assignment must correspond with the
name as written upon the face of this
Certificate in every particular
without alteration or enlargement or
any change whatever.
________________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-15
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2002-CIBC5, CLASS J
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 SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS UNDER THE SECURITIES ACT, (D) IN AN OFFSHORE TRANSACTION MEETING
THE REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES
ACT OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT.
THIS CLASS J CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE TRUSTEE. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR INTEREST
UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (I) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A GOVERNMENTAL PLAN
(AS DEFINED IN SECTION 3(32) OF ERISA) SUBJECT TO ANY FEDERAL, STATE OR LOCAL
LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING
PROVISIONS OF ERISA OR THE CODE (EACH A "PLAN") OR (II) A PERSON ACTING ON
BEHALF OF OR USING THE ASSETS OF ANY SUCH PLAN (INCLUDING AN ENTITY WHOSE
UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY
SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION SS. 2510.3-101),
OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER
CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUBORDINATE CERTIFICATES BY
SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED TRANSACTION
PROVISIONS OF ERISA AND THE CODE UNDER PROHIBITED TRANSACTION CLASS EXEMPTION
95-60 OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE NAME OF A
PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE, AN OPINION OF COUNSEL IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR TO THE
EFFECT THAT SUCH ACQUISITION AND HOLDING OF SUCH CERTIFICATE BY SUCH PROPOSED
PURCHASER OR TRANSFEREE WILL NOT RESULT IN THE ASSETS OF THE TRUST FUND BEING
DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO THE FIDUCIARY RESPONSIBILITY
PROVISIONS OF ERISA, THE PROHIBITED TRANSACTION PROVISIONS OF THE CODE OR THE
PROVISIONS OF ANY SIMILAR LAW, WILL NOT CONSTITUTE OR RESULT IN A "PROHIBITED
TRANSACTION" WITHIN THE MEANING OF ERISA, SECTION 4975 OF THE CODE OR ANY
SIMILAR LAW, AND WILL NOT SUBJECT THE TRUSTEE, THE CERTIFICATE REGISTRAR, THE
SERVICER, THE SPECIAL SERVICER, THE PLACEMENT AGENT OR THE DEPOSITOR TO ANY
OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA,
SECTION 4975 OF THE CODE OR ANY SUCH SIMILAR LAW) IN ADDITION TO THOSE SET FORTH
IN THE POOLING AND SERVICING AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST
IN A CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT
THAT IT IS NOT A PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY 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. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO
THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, 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.]1
PASS-THROUGH RATE: 5.5000% APPROXIMATE AGGREGATE SCHEDULED PRINCIPAL BALANCE OF THE
MORTGAGE LOANS AFTER DEDUCTING PAYMENTS DUE AND PREPAYMENTS
DENOMINATION: $[ ] RECEIVED ON OR BEFORE CUT-OFF DATE: $[888,796,000]
DATE OF POOLING AND SERVICING AGREEMENT: AS OF SERVICER: WACHOVIA BANK, NATIONAL ASSOCIATION
NOVEMBER 4, 2002
SPECIAL SERVICER: ARCAP SPECIAL SERVICING, INC.
CUT-OFF DATE: AS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT (AS DEFINED HEREIN) TRUSTEE: XXXXX FARGO BANK MINNESOTA, N.A.
CLOSING DATE: NOVEMBER 4, 2002 CUSIP NO.: [00000XXX0]2 [00000XXX0]3 [X00000XX0]1
FIRST DISTRIBUTION DATE: ISIN NO.: [US46625MNE56]2 [US46625MPC72]3 [USU48138FR43]1
DECEMBER 12, 2002
COMMON CODE NO.: [15748702]2 [15748796]1
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE CERTIFICATE NO.: J-1
OF THE CLASS J CERTIFICATES
AS OF THE CLOSING DATE: $12,553,000
-------------------------
1 For Book-Entry Regulations S Certificates Only.
2 For Book Entry Rule 144A Only.
3 For Institutional Accredited Investors Only.
CLASS J CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial and multifamily fixed rate balloon and fully amortizing
mortgage loans (the "Mortgage Loans"), all payments on or collections in respect
of the Mortgage Loans due after the Cut-off Date, all REO Properties and
revenues received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Simon Collection Account, the Interest Reserve Account, the Excess Interest
Distribution Account, the Gain on Sale Account and the REO Accounts, formed and
sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL SERVICER,
THE TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE NOR THE
UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE
UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class J Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of November 4, 2002 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Servicer and
the Special Servicer. A summary of certain of the pertinent provisions of the
Pooling and Servicing Agreement is set forth hereafter. To the extent not
defined herein, the capitalized terms used herein shall have the meanings
assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Certificates of the series specified on the face
hereof (herein called the "Certificates") and representing an interest in the
Class of Certificates specified on the face hereof equal to the quotient
expressed as a percentage obtained by dividing the Denomination of this
Certificate specified on the face hereof, by the aggregate initial Certificate
Balance of the Class J Certificates. The Certificates are designated as the X.X.
XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage
Pass-Through Certificates, Series 2002-CIBC5 and are issued in twenty-two
classes as specifically set forth in the Pooling and Servicing Agreement. The
Certificates will evidence in the aggregate 100% of the beneficial ownership of
the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate
mortgage investment conduit," as those terms are defined, respectively, in
Sections 860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended.
Each Holder of this Certificate, by acceptance hereof, agrees to treat, and take
no action inconsistent with the treatment of, this Certificate in accordance
with the preceding sentence for purposes of federal income taxes, state and
local income and franchise taxes and other taxes imposed on or measured by
income.
Pursuant to the terms of the Pooling and Servicing Agreement,
the Trustee shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. All sums distributable on this Certificate
are payable in the coin or currency of the United States of America as at the
time of payment is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each
year consisted of 360 days and each month consisted of 30 days) during the
Interest Accrual Period relating to such Distribution Date at the Class J
Pass-Through Rate specified above on the Certificate Balance of this Certificate
immediately prior to each Distribution Date. Principal and interest allocated to
this Certificate on any Distribution Date will be in an amount due to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest
on the Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among
other things, certain collections and recoveries respecting the Mortgage Loans,
all as more specifically set forth in the Pooling and Servicing Agreement. As
provided in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Servicer (with respect to the Certificate Account) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Servicer as set forth in the Pooling and
Servicing Agreement. As provided in the Pooling and Servicing Agreement,
withdrawals from the Certificate Account shall be made from time to time for
purposes other than distributions to Certificateholders, such purposes including
reimbursement of certain expenses incurred with respect to the servicing of the
Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to
a Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing at least five Business Days prior to
the related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor. The final distribution on this Certificate shall be made in
like manner, but only upon presentment and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date
because of the failure of Certificateholders to tender their Certificates shall
be set aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Trustee may, directly or through an agent, take appropriate
steps to contact the remaining non-tendering Certificateholders concerning
surrender of their Certificates. The costs and expenses of holding such funds in
trust and of contacting such Certificateholders shall be paid out of such funds.
No interest shall accrue or be payable to any Certificateholder on any amount
held in trust as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 4.01(g) of
the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement,
the Non-Registered Certificates (other than the Residual Certificates) will be
issued in book-entry form through the facilities of DTC in Denominations of
$250,000 initial Certificate Balance, and in integral multiples of $1 in excess
thereof, with one Certificate of each such Class evidencing an additional amount
equal to the remainder of the initial Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Servicer, the Special Servicer
and the Certificate Registrar and any of their agents may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and neither the Depositor, the Trustee, the Servicer, the Special Servicer, the
Certificate Registrar nor any such agents shall be affected by any notice to the
contrary.
The Pooling and Servicing Agreement may be amended from time
to time by the Depositor, the Servicer, the Special Servicer and the Trustee,
without the consent of any of the Certificateholders, to cure any ambiguity, to
correct or supplement any provisions therein that may be inconsistent with any
other provisions therein or the Prospectus or the Prospectus Supplement or to
correct any error; to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of any
of the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the imposition of any tax, provided, however, an Opinion
of Counsel is obtained to the effect that such action shall not adversely affect
in any material respect the interest of any Certificateholder and such action is
necessary or desirable to avoid such tax; to change the timing and/or nature of
deposits into the Certificate Account, the Simon Collection Account or
Distribution Accounts or REO Account or to change the name in which the
Certificate Account or Simon Collection Account is maintained, provided,
however, that the P&I Advance Date shall not be later than the related
Distribution Date, an Opinion of Counsel is obtained to the effect that such
action shall not adversely affect in any material respect the interest of any
Certificateholder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating by any Rating Agency, as
evidenced by a letter from such Rating Agency to such effect; to modify,
eliminate or add to the provisions of Section 5.02(d) of the Pooling and
Servicing Agreement or any other provision thereof restricting transfer of the
Residual Certificates by virtue of their being the REMIC "residual interests,"
and such change shall not, as evidenced by an Opinion of Counsel, cause any of
the Upper-Tier REMIC, the Lower-Tier REMIC, the Loan REMIC or any of the
Certificateholders (other than the Transferor) to be subject to a federal tax
caused by a Transfer to a Person that is a Disqualified Organization or a
Non-U.S. Person; and to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interest of any
Certificateholder not consenting thereto; provided further, that in no event may
any amendment change in any manner the obligations of any Mortgage Loan Seller
without the consent of each Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from
time to time by the Depositor, the Servicer, the Special Servicer and the
Trustee with the consent of the Holders of Certificates representing not less
than 66 2/3% of the aggregate Percentage Interests of each Class of Certificates
affected by the amendment for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of the Pooling and
Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of such Certificateholder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment,
without the consent of the Holders of all Certificates of such Class then
outstanding;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of
each Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders or written
confirmation that such amendment would not result in the downgrading,
qualification or withdrawal of ratings assigned to any Class of
Certificates by any Rating Agency, amend the Servicing Standard.
No amendment shall be made to the Pooling and Servicing
Agreement unless the Trustee shall have received an Opinion of Counsel that such
amendment is permitted under the Pooling and Servicing Agreement and will not
cause any of the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan REMIC to
fail to qualify as a REMIC or result in the imposition of a tax on any of the
Upper-Tier REMIC, the Lower-Tier REMIC or the Loan REMIC or cause the Grantor
Trust to fail to qualify as a grantor trust.
The Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee and each
of the other parties to the Pooling and Servicing Agreement, to purchase all,
but not less than all, of the Mortgage Loans and all property acquired in
respect of any Mortgage Loan remaining in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates, on any Distribution Date on which the aggregate Stated Principal
Balances of the Mortgage Loans and any REO Loans remaining in the Trust Fund is
reduced to less than 1% of the aggregate Cut-off Date Principal Balance of all
the Mortgage Loans.
The obligations created by the Pooling and Servicing Agreement
and the Trust Fund created thereby (other than the obligation of the Trustee to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement 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.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose. The Certificate Registrar has executed this
Certificate on behalf of the Trust Fund as Certificate Registrar under the
Pooling and Servicing Agreement and makes no representation or warranty as to
any of the statements contained herein or the validity or sufficiency of the
Certificates or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL
BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK MINNESOTA, N.A.,
not in its individual capacity but solely as
Certificate Registrar under the Pooling and
Servicing Agreement.
By: ___________________________________________
AUTHORIZED SIGNATORY
Dated: November __, 2002
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS J CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK MINNESOTA, N.A.,
AUTHENTICATING AGENT
By: ___________________________________________
AUTHORIZED SIGNATORY
SCHEDULE A
CERTIFICATE BALANCE OF DEFINITIVE
CERTIFICATES EXCHANGED OR TRANSFERRED
FOR, OR ISSUED IN EXCHANGE FOR OR UPON
TRANSFER OF, AN INTEREST IN THIS REMAINING CERTIFICATE BALANCE NOTATION
DATE BOOK-ENTRY CERTIFICATE OF BOOK-ENTRY CERTIFICATE MADE BY
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above
list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto ____________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
-------------------------------------
NOTICE: The signature to this
Dated:__________________ assignment must correspond with the
name as written upon the face of this
Certificate in every particular
without alteration or enlargement or
any change whatever.
________________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-16
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2002-CIBC5, CLASS K
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 SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS UNDER THE SECURITIES ACT, (D) IN AN OFFSHORE TRANSACTION MEETING
THE REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES
ACT OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT.
THIS CLASS K CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE TRUSTEE. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR INTEREST
UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (I) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A GOVERNMENTAL PLAN
(AS DEFINED IN SECTION 3(32) OF ERISA) SUBJECT TO ANY FEDERAL, STATE OR LOCAL
LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING
PROVISIONS OF ERISA OR THE CODE (EACH A "PLAN") OR (II) A PERSON ACTING ON
BEHALF OF OR USING THE ASSETS OF ANY SUCH PLAN (INCLUDING AN ENTITY WHOSE
UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY
SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION SS. 2510.3-101),
OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER
CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUBORDINATE CERTIFICATES BY
SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED TRANSACTION
PROVISIONS OF ERISA AND THE CODE UNDER PROHIBITED TRANSACTION CLASS EXEMPTION
95-60 OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE NAME OF A
PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE, AN OPINION OF COUNSEL IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR TO THE
EFFECT THAT SUCH ACQUISITION AND HOLDING OF SUCH CERTIFICATE BY SUCH PROPOSED
PURCHASER OR TRANSFEREE WILL NOT RESULT IN THE ASSETS OF THE TRUST FUND BEING
DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO THE FIDUCIARY RESPONSIBILITY
PROVISIONS OF ERISA, THE PROHIBITED TRANSACTION PROVISIONS OF THE CODE OR THE
PROVISIONS OF ANY SIMILAR LAW, WILL NOT CONSTITUTE OR RESULT IN A "PROHIBITED
TRANSACTION" WITHIN THE MEANING OF ERISA, SECTION 4975 OF THE CODE OR ANY
SIMILAR LAW, AND WILL NOT SUBJECT THE TRUSTEE, THE CERTIFICATE REGISTRAR, THE
SERVICER, THE SPECIAL SERVICER, THE PLACEMENT AGENT OR THE DEPOSITOR TO ANY
OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA,
SECTION 4975 OF THE CODE OR ANY SUCH SIMILAR LAW) IN ADDITION TO THOSE SET FORTH
IN THE POOLING AND SERVICING AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST
IN A CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT
THAT IT IS NOT A PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY 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. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO
THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, 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.]1
PASS-THROUGH RATE: 5.5000% APPROXIMATE AGGREGATE SCHEDULED PRINCIPAL BALANCE OF THE
MORTGAGE LOANS AFTER DEDUCTING PAYMENTS DUE AND PREPAYMENTS
DENOMINATION: $[ ] RECEIVED ON OR BEFORE CUT-OFF DATE: $[888,796,000]
DATE OF POOLING AND SERVICING AGREEMENT: AS OF SERVICER: WACHOVIA BANK, NATIONAL ASSOCIATION
NOVEMBER 4, 2002
SPECIAL SERVICER: ARCAP SPECIAL SERVICING, INC.
CUT-OFF DATE: AS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT (AS DEFINED HEREIN) TRUSTEE: XXXXX FARGO BANK MINNESOTA, N.A.
CLOSING DATE: NOVEMBER 4, 2002 CUSIP NO.: [00000XXX0]2 [00000XXX0]3 [X00000XX0]1
FIRST DISTRIBUTION DATE: ISIN NO.: [US46625MNF22]2 [US46625MPD55]3 [USU48138FS26]1
DECEMBER 12, 2002
COMMON CODE NO.: [15748818]2 [15748842]1
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE CERTIFICATE NO.: K-1
OF THE CLASS K CERTIFICATES
AS OF THE CLOSING DATE: $5,022,000
-------------------------
1 For Book-Entry Regulations S Certificates Only.
2 For Book Entry Rule 144A Only.
3 For Institutional Accredited Investors Only.
CLASS K CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial and multifamily fixed rate balloon and fully amortizing
mortgage loans (the "Mortgage Loans"), all payments on or collections in respect
of the Mortgage Loans due after the Cut-off Date, all REO Properties and
revenues received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Simon Collection Account, the Interest Reserve Account, the Excess Interest
Distribution Account, the Gain on Sale Account and the REO Accounts, formed and
sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL SERVICER,
THE TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE NOR THE
UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE
UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class K Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of November 4, 2002 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Servicer and
the Special Servicer. A summary of certain of the pertinent provisions of the
Pooling and Servicing Agreement is set forth hereafter. To the extent not
defined herein, the capitalized terms used herein shall have the meanings
assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Certificates of the series specified on the face
hereof (herein called the "Certificates") and representing an interest in the
Class of Certificates specified on the face hereof equal to the quotient
expressed as a percentage obtained by dividing the Denomination of this
Certificate specified on the face hereof, by the aggregate initial Certificate
Balance of the Class K Certificates. The Certificates are designated as the X.X.
XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage
Pass-Through Certificates, Series 2002-CIBC5 and are issued in twenty-two
classes as specifically set forth in the Pooling and Servicing Agreement. The
Certificates will evidence in the aggregate 100% of the beneficial ownership of
the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate
mortgage investment conduit," as those terms are defined, respectively, in
Sections 860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended.
Each Holder of this Certificate, by acceptance hereof, agrees to treat, and take
no action inconsistent with the treatment of, this Certificate in accordance
with the preceding sentence for purposes of federal income taxes, state and
local income and franchise taxes and other taxes imposed on or measured by
income.
Pursuant to the terms of the Pooling and Servicing Agreement,
the Trustee shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. All sums distributable on this Certificate
are payable in the coin or currency of the United States of America as at the
time of payment is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each
year consisted of 360 days and each month consisted of 30 days) during the
Interest Accrual Period relating to such Distribution Date at the Class K
Pass-Through Rate specified above on the Certificate Balance of this Certificate
immediately prior to each Distribution Date. Principal and interest allocated to
this Certificate on any Distribution Date will be in an amount due to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest
on the Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among
other things, certain collections and recoveries respecting the Mortgage Loans,
all as more specifically set forth in the Pooling and Servicing Agreement. As
provided in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Servicer (with respect to the Certificate Account) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Servicer as set forth in the Pooling and
Servicing Agreement. As provided in the Pooling and Servicing Agreement,
withdrawals from the Certificate Account shall be made from time to time for
purposes other than distributions to Certificateholders, such purposes including
reimbursement of certain expenses incurred with respect to the servicing of the
Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to
a Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing at least five Business Days prior to
the related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor. The final distribution on this Certificate shall be made in
like manner, but only upon presentment and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date
because of the failure of Certificateholders to tender their Certificates shall
be set aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Trustee may, directly or through an agent, take appropriate
steps to contact the remaining non-tendering Certificateholders concerning
surrender of their Certificates. The costs and expenses of holding such funds in
trust and of contacting such Certificateholders shall be paid out of such funds.
No interest shall accrue or be payable to any Certificateholder on any amount
held in trust as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 4.01(g) of
the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement,
the Non-Registered Certificates (other than the Residual Certificates) will be
issued in book-entry form through the facilities of DTC in Denominations of
$250,000 initial Certificate Balance, and in integral multiples of $1 in excess
thereof, with one Certificate of each such Class evidencing an additional amount
equal to the remainder of the initial Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Servicer, the Special Servicer
and the Certificate Registrar and any of their agents may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and neither the Depositor, the Trustee, the Servicer, the Special Servicer, the
Certificate Registrar nor any such agents shall be affected by any notice to the
contrary.
The Pooling and Servicing Agreement may be amended from time
to time by the Depositor, the Servicer, the Special Servicer and the Trustee,
without the consent of any of the Certificateholders, to cure any ambiguity, to
correct or supplement any provisions therein that may be inconsistent with any
other provisions therein or the Prospectus or the Prospectus Supplement or to
correct any error; to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of any
of the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the imposition of any tax, provided, however, an Opinion
of Counsel is obtained to the effect that such action shall not adversely affect
in any material respect the interest of any Certificateholder and such action is
necessary or desirable to avoid such tax; to change the timing and/or nature of
deposits into the Certificate Account, the Simon Collection Account or
Distribution Accounts or REO Account or to change the name in which the
Certificate Account or Simon Collection Account is maintained, provided,
however, that the P&I Advance Date shall not be later than the related
Distribution Date, an Opinion of Counsel is obtained to the effect that such
action shall not adversely affect in any material respect the interest of any
Certificateholder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating by any Rating Agency, as
evidenced by a letter from such Rating Agency to such effect; to modify,
eliminate or add to the provisions of Section 5.02(d) of the Pooling and
Servicing Agreement or any other provision thereof restricting transfer of the
Residual Certificates by virtue of their being the REMIC "residual interests,"
and such change shall not, as evidenced by an Opinion of Counsel, cause any of
the Upper-Tier REMIC, the Lower-Tier REMIC, the Loan REMIC or any of the
Certificateholders (other than the Transferor) to be subject to a federal tax
caused by a Transfer to a Person that is a Disqualified Organization or a
Non-U.S. Person; and to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interest of any
Certificateholder not consenting thereto; provided further, that in no event may
any amendment change in any manner the obligations of any Mortgage Loan Seller
without the consent of each Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from
time to time by the Depositor, the Servicer, the Special Servicer and the
Trustee with the consent of the Holders of Certificates representing not less
than 66 2/3% of the aggregate Percentage Interests of each Class of Certificates
affected by the amendment for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of the Pooling and
Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of such Certificateholder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment,
without the consent of the Holders of all Certificates of such Class then
outstanding;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of
each Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders or written
confirmation that such amendment would not result in the downgrading,
qualification or withdrawal of ratings assigned to any Class of
Certificates by any Rating Agency, amend the Servicing Standard.
No amendment shall be made to the Pooling and Servicing
Agreement unless the Trustee shall have received an Opinion of Counsel that such
amendment is permitted under the Pooling and Servicing Agreement and will not
cause any of the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan REMIC to
fail to qualify as a REMIC or result in the imposition of a tax on any of the
Upper-Tier REMIC, the Lower-Tier REMIC or the Loan REMIC or cause the Grantor
Trust to fail to qualify as a grantor trust.
The Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee and each
of the other parties to the Pooling and Servicing Agreement, to purchase all,
but not less than all, of the Mortgage Loans and all property acquired in
respect of any Mortgage Loan remaining in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates, on any Distribution Date on which the aggregate Stated Principal
Balances of the Mortgage Loans and any REO Loans remaining in the Trust Fund is
reduced to less than 1% of the aggregate Cut-off Date Principal Balance of all
the Mortgage Loans.
The obligations created by the Pooling and Servicing Agreement
and the Trust Fund created thereby (other than the obligation of the Trustee to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement 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.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose. The Certificate Registrar has executed this
Certificate on behalf of the Trust Fund as Certificate Registrar under the
Pooling and Servicing Agreement and makes no representation or warranty as to
any of the statements contained herein or the validity or sufficiency of the
Certificates or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL
BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK MINNESOTA, N.A.,
not in its individual capacity but solely as
Certificate Registrar under the Pooling and
Servicing Agreement.
By: __________________________________________
AUTHORIZED SIGNATORY
Dated: November __, 2002
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS K CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK MINNESOTA, N.A.,
AUTHENTICATING AGENT
By: ___________________________________________
AUTHORIZED SIGNATORY
SCHEDULE A
CERTIFICATE BALANCE OF DEFINITIVE
CERTIFICATES EXCHANGED OR TRANSFERRED
FOR, OR ISSUED IN EXCHANGE FOR OR UPON
TRANSFER OF, AN INTEREST IN THIS REMAINING CERTIFICATE BALANCE NOTATION
DATE BOOK-ENTRY CERTIFICATE OF BOOK-ENTRY CERTIFICATE MADE BY
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above
list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto ____________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
-------------------------------------
NOTICE: The signature to this
Dated:__________________ assignment must correspond with the
name as written upon the face of this
Certificate in every particular
without alteration or enlargement or
any change whatever.
________________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-17
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2002-CIBC5, CLASS L
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 SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS UNDER THE SECURITIES ACT, (D) IN AN OFFSHORE TRANSACTION MEETING
THE REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES
ACT OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT.
THIS CLASS L CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE TRUSTEE. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR INTEREST
UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (I) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A GOVERNMENTAL PLAN
(AS DEFINED IN SECTION 3(32) OF ERISA) SUBJECT TO ANY FEDERAL, STATE OR LOCAL
LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING
PROVISIONS OF ERISA OR THE CODE (EACH A "PLAN") OR (II) A PERSON ACTING ON
BEHALF OF OR USING THE ASSETS OF ANY SUCH PLAN (INCLUDING AN ENTITY WHOSE
UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY
SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION SS. 2510.3-101),
OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER
CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUBORDINATE CERTIFICATES BY
SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED TRANSACTION
PROVISIONS OF ERISA AND THE CODE UNDER PROHIBITED TRANSACTION CLASS EXEMPTION
95-60 OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE NAME OF A
PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE, AN OPINION OF COUNSEL IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR TO THE
EFFECT THAT SUCH ACQUISITION AND HOLDING OF SUCH CERTIFICATE BY SUCH PROPOSED
PURCHASER OR TRANSFEREE WILL NOT RESULT IN THE ASSETS OF THE TRUST FUND BEING
DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO THE FIDUCIARY RESPONSIBILITY
PROVISIONS OF ERISA, THE PROHIBITED TRANSACTION PROVISIONS OF THE CODE OR THE
PROVISIONS OF ANY SIMILAR LAW, WILL NOT CONSTITUTE OR RESULT IN A "PROHIBITED
TRANSACTION" WITHIN THE MEANING OF ERISA, SECTION 4975 OF THE CODE OR ANY
SIMILAR LAW, AND WILL NOT SUBJECT THE TRUSTEE, THE CERTIFICATE REGISTRAR, THE
SERVICER, THE SPECIAL SERVICER, THE PLACEMENT AGENT OR THE DEPOSITOR TO ANY
OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA,
SECTION 4975 OF THE CODE OR ANY SUCH SIMILAR LAW) IN ADDITION TO THOSE SET FORTH
IN THE POOLING AND SERVICING AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST
IN A CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT
THAT IT IS NOT A PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY 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. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO
THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, 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.]1
PASS-THROUGH RATE: 5.500% SUBJECT TO A MAXIMUM APPROXIMATE AGGREGATE SCHEDULED PRINCIPAL BALANCE OF THE
PASS-THROUGH RATE AS SET FORTH IN THE POOLING AND MORTGAGE LOANS AFTER DEDUCTING PAYMENTS DUE AND PREPAYMENTS
SERVICING AGREEMENT RECEIVED ON OR BEFORE CUT-OFF DATE: $[888,796,000]
DENOMINATION: $[ ] SERVICER: WACHOVIA BANK, NATIONAL ASSOCIATION
DATE OF POOLING AND SERVICING AGREEMENT: AS OF SPECIAL SERVICER: ARCAP SPECIAL SERVICING, INC.
NOVEMBER 4, 2002
TRUSTEE: XXXXX FARGO BANK MINNESOTA, N.A.
CUT-OFF DATE: AS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT (AS DEFINED HEREIN) CUSIP NO.: [00000XXX0]2 [00000XXX0]3 [X00000XX0]1
CLOSING DATE: NOVEMBER 4, 2002 ISIN NO.: [US46625MNG05]2 [US46625MPE39]3 [USU48138FT09]1
FIRST DISTRIBUTION DATE: COMMON CODE NO.: [15748915]2 [15749059]1
DECEMBER 12, 2002
CERTIFICATE NO.: L-1
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE
OF THE CLASS L CERTIFICATES
AS OF THE CLOSING DATE: $5,021,000
-------------------------
1 For Book-Entry Regulations S Certificates Only.
2 For Book Entry Rule 144A Only.
3 For Institutional Accredited Investors Only.
CLASS L CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial and multifamily fixed rate balloon and fully amortizing
mortgage loans (the "Mortgage Loans"), all payments on or collections in respect
of the Mortgage Loans due after the Cut-off Date, all REO Properties and
revenues received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Simon Collection Account, the Interest Reserve Account the Excess Interest
Distribution Account, the Gain on Sale Account and the REO Accounts, formed and
sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL SERVICER,
THE TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE NOR THE
UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE
UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class L Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of November 4, 2002 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Servicer and
the Special Servicer. A summary of certain of the pertinent provisions of the
Pooling and Servicing Agreement is set forth hereafter. To the extent not
defined herein, the capitalized terms used herein shall have the meanings
assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Certificates of the series specified on the face
hereof (herein called the "Certificates") and representing an interest in the
Class of Certificates specified on the face hereof equal to the quotient
expressed as a percentage obtained by dividing the Denomination of this
Certificate specified on the face hereof, by the aggregate initial Certificate
Balance of the Class L Certificates. The Certificates are designated as the X.X.
XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage
Pass-Through Certificates, Series 2002-CIBC5 and are issued in twenty-two
classes as specifically set forth in the Pooling and Servicing Agreement. The
Certificates will evidence in the aggregate 100% of the beneficial ownership of
the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate
mortgage investment conduit," as those terms are defined, respectively, in
Sections 860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended.
Each Holder of this Certificate, by acceptance hereof, agrees to treat, and take
no action inconsistent with the treatment of, this Certificate in accordance
with the preceding sentence for purposes of federal income taxes, state and
local income and franchise taxes and other taxes imposed on or measured by
income.
Pursuant to the terms of the Pooling and Servicing Agreement,
the Trustee shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. All sums distributable on this Certificate
are payable in the coin or currency of the United States of America as at the
time of payment is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each
year consisted of 360 days and each month consisted of 30 days) during the
Interest Accrual Period relating to such Distribution Date at the Class L
Pass-Through Rate specified above on the Certificate Balance of this Certificate
immediately prior to each Distribution Date. Principal and interest allocated to
this Certificate on any Distribution Date will be in an amount due to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest
on the Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among
other things, certain collections and recoveries respecting the Mortgage Loans,
all as more specifically set forth in the Pooling and Servicing Agreement. As
provided in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Servicer (with respect to the Certificate Account) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Servicer as set forth in the Pooling and
Servicing Agreement. As provided in the Pooling and Servicing Agreement,
withdrawals from the Certificate Account shall be made from time to time for
purposes other than distributions to Certificateholders, such purposes including
reimbursement of certain expenses incurred with respect to the servicing of the
Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to
a Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing at least five Business Days prior to
the related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor. The final distribution on this Certificate shall be made in
like manner, but only upon presentment and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date
because of the failure of Certificateholders to tender their Certificates shall
be set aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Trustee may, directly or through an agent, take appropriate
steps to contact the remaining non-tendering Certificateholders concerning
surrender of their Certificates. The costs and expenses of holding such funds in
trust and of contacting such Certificateholders shall be paid out of such funds.
No interest shall accrue or be payable to any Certificateholder on any amount
held in trust as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 4.01(g) of
the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement,
the Non-Registered Certificates (other than the Residual Certificates) will be
issued in book-entry form through the facilities of DTC in Denominations of
$250,000 initial Certificate Balance, and in integral multiples of $1 in excess
thereof, with one Certificate of each such Class evidencing an additional amount
equal to the remainder of the initial Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Servicer, the Special Servicer
and the Certificate Registrar and any of their agents may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and neither the Depositor, the Trustee, the Servicer, the Special Servicer, the
Certificate Registrar nor any such agents shall be affected by any notice to the
contrary.
The Pooling and Servicing Agreement may be amended from time
to time by the Depositor, the Servicer, the Special Servicer and the Trustee,
without the consent of any of the Certificateholders, to cure any ambiguity, to
correct or supplement any provisions therein that may be inconsistent with any
other provisions therein or the Prospectus or the Prospectus Supplement or to
correct any error; to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of any
of the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the imposition of any tax, provided, however, an Opinion
of Counsel is obtained to the effect that such action shall not adversely affect
in any material respect the interest of any Certificateholder and such action is
necessary or desirable to avoid such tax; to change the timing and/or nature of
deposits into the Certificate Account, the Simon Collection Account or
Distribution Accounts or REO Account or to change the name in which the
Certificate Account or Simon Collection Account is maintained, provided,
however, that the P&I Advance Date shall not be later than the related
Distribution Date, an Opinion of Counsel is obtained to the effect that such
action shall not adversely affect in any material respect the interest of any
Certificateholder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating by any Rating Agency, as
evidenced by a letter from such Rating Agency to such effect; to modify,
eliminate or add to the provisions of Section 5.02(d) of the Pooling and
Servicing Agreement or any other provision thereof restricting transfer of the
Residual Certificates by virtue of their being the REMIC "residual interests,"
and such change shall not, as evidenced by an Opinion of Counsel, cause any of
the Upper-Tier REMIC, the Lower-Tier REMIC, the Loan REMIC or any of the
Certificateholders (other than the Transferor) to be subject to a federal tax
caused by a Transfer to a Person that is a Disqualified Organization or a
Non-U.S. Person; and to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interest of any
Certificateholder not consenting thereto; provided further, that in no event may
any amendment change in any manner the obligations of any Mortgage Loan Seller
without the consent of each Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from
time to time by the Depositor, the Servicer, the Special Servicer and the
Trustee with the consent of the Holders of Certificates representing not less
than 66 2/3% of the aggregate Percentage Interests of each Class of Certificates
affected by the amendment for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of the Pooling and
Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of such Certificateholder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment,
without the consent of the Holders of all Certificates of such Class then
outstanding;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of
each Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders or written
confirmation that such amendment would not result in the downgrading,
qualification or withdrawal of ratings assigned to any Class of
Certificates by any Rating Agency, amend the Servicing Standard.
No amendment shall be made to the Pooling and Servicing
Agreement unless the Trustee shall have received an Opinion of Counsel that such
amendment is permitted under the Pooling and Servicing Agreement and will not
cause any of the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan REMIC to
fail to qualify as a REMIC or result in the imposition of a tax on any of the
Upper-Tier REMIC, the Lower-Tier REMIC or the Loan REMIC or cause the Grantor
Trust to fail to qualify as a grantor trust.
The Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee and each
of the other parties to the Pooling and Servicing Agreement, to purchase all,
but not less than all, of the Mortgage Loans and all property acquired in
respect of any Mortgage Loan remaining in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates, on any Distribution Date on which the aggregate Stated Principal
Balances of the Mortgage Loans and any REO Loans remaining in the Trust Fund is
reduced to less than 1% of the aggregate Cut-off Date Principal Balance of all
the Mortgage Loans.
The obligations created by the Pooling and Servicing Agreement
and the Trust Fund created thereby (other than the obligation of the Trustee to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement 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.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose. The Certificate Registrar has executed this
Certificate on behalf of the Trust Fund as Certificate Registrar under the
Pooling and Servicing Agreement and makes no representation or warranty as to
any of the statements contained herein or the validity or sufficiency of the
Certificates or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL
BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK MINNESOTA, N.A.,
not in its individual capacity but solely as
Certificate Registrar under the Pooling and
Servicing Agreement.
By: ___________________________________________
AUTHORIZED SIGNATORY
Dated: November __, 2002
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS L CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK MINNESOTA, N.A.,
AUTHENTICATING AGENT
By: ___________________________________________
AUTHORIZED SIGNATORY
SCHEDULE A
CERTIFICATE BALANCE OF DEFINITIVE
CERTIFICATES EXCHANGED OR TRANSFERRED
FOR, OR ISSUED IN EXCHANGE FOR OR UPON
TRANSFER OF, AN INTEREST IN THIS REMAINING CERTIFICATE BALANCE NOTATION
DATE BOOK-ENTRY CERTIFICATE OF BOOK-ENTRY CERTIFICATE MADE BY
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above
list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto ____________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
-------------------------------------
NOTICE: The signature to this
Dated:__________________ assignment must correspond with the
name as written upon the face of this
Certificate in every particular
without alteration or enlargement or
any change whatever.
________________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-18
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2002-CIBC5, CLASS M
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 SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS UNDER THE SECURITIES ACT, (D) IN AN OFFSHORE TRANSACTION MEETING
THE REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES
ACT OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT.
THIS CLASS M CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE TRUSTEE. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR INTEREST
UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (I) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A GOVERNMENTAL PLAN
(AS DEFINED IN SECTION 3(32) OF ERISA) SUBJECT TO ANY FEDERAL, STATE OR LOCAL
LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING
PROVISIONS OF ERISA OR THE CODE (EACH A "PLAN") OR (II) A PERSON ACTING ON
BEHALF OF OR USING THE ASSETS OF ANY SUCH PLAN (INCLUDING AN ENTITY WHOSE
UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY
SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION SS. 2510.3-101),
OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER
CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUBORDINATE CERTIFICATES BY
SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED TRANSACTION
PROVISIONS OF ERISA AND THE CODE UNDER PROHIBITED TRANSACTION CLASS EXEMPTION
95-60 OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE NAME OF A
PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE, AN OPINION OF COUNSEL IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR TO THE
EFFECT THAT SUCH ACQUISITION AND HOLDING OF SUCH CERTIFICATE BY SUCH PROPOSED
PURCHASER OR TRANSFEREE WILL NOT RESULT IN THE ASSETS OF THE TRUST FUND BEING
DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO THE FIDUCIARY RESPONSIBILITY
PROVISIONS OF ERISA, THE PROHIBITED TRANSACTION PROVISIONS OF THE CODE OR THE
PROVISIONS OF ANY SIMILAR LAW, WILL NOT CONSTITUTE OR RESULT IN A "PROHIBITED
TRANSACTION" WITHIN THE MEANING OF ERISA, SECTION 4975 OF THE CODE OR ANY
SIMILAR LAW, AND WILL NOT SUBJECT THE TRUSTEE, THE CERTIFICATE REGISTRAR, THE
SERVICER, THE SPECIAL SERVICER, THE PLACEMENT AGENT OR THE DEPOSITOR TO ANY
OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA,
SECTION 4975 OF THE CODE OR ANY SUCH SIMILAR LAW) IN ADDITION TO THOSE SET FORTH
IN THE POOLING AND SERVICING AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST
IN A CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT
THAT IT IS NOT A PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY 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. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO
THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, 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.]1
PASS-THROUGH RATE: 5.5000% APPROXIMATE AGGREGATE SCHEDULED PRINCIPAL BALANCE OF THE
MORTGAGE LOANS AFTER DEDUCTING PAYMENTS DUE AND PREPAYMENTS
DENOMINATION: $[ ] RECEIVED ON OR BEFORE CUT-OFF DATE: $[888,796,000]
DATE OF POOLING AND SERVICING AGREEMENT: AS OF SERVICER: WACHOVIA BANK, NATIONAL ASSOCIATION
NOVEMBER 4, 2002
SPECIAL SERVICER: ARCAP SPECIAL SERVICING, INC.
CUT-OFF DATE: AS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT (AS DEFINED HEREIN) TRUSTEE: XXXXX FARGO BANK MINNESOTA, N.A.
CLOSING DATE: NOVEMBER 4, 2002 CUSIP NO.: [00000XXX0]2 [00000XXX0]3 [X00000XX0]1
FIRST DISTRIBUTION DATE: ISIN NO.: [US46625MNH87]2 [US46625MPF04]3 [USU48138FU71]1
DECEMBER 12, 2002
COMMON CODE NO.: [15749113]3 [15749202]1
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE CERTIFICATE NO.: M-1
OF THE CLASS M CERTIFICATES
AS OF THE CLOSING DATE: $8,788,000
-------------------------
1 For Book-Entry Regulations S Certificates Only.
2 For Book Entry Rule 144A Only.
3 For Institutional Accredited Investors Only.
CLASS M CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial and multifamily fixed rate balloon and fully amortizing
mortgage loans (the "Mortgage Loans"), all payments on or collections in respect
of the Mortgage Loans due after the Cut-off Date, all REO Properties and
revenues received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Simon Collection Account, the Interest Reserve Account, the Excess Interest
Distribution Account, the Gain on Sale Account and the REO Accounts, formed and
sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL SERVICER,
THE TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE NOR THE
UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE
UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class M Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of November 4, 2002 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Servicer and
the Special Servicer. A summary of certain of the pertinent provisions of the
Pooling and Servicing Agreement is set forth hereafter. To the extent not
defined herein, the capitalized terms used herein shall have the meanings
assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Certificates of the series specified on the face
hereof (herein called the "Certificates") and representing an interest in the
Class of Certificates specified on the face hereof equal to the quotient
expressed as a percentage obtained by dividing the Denomination of this
Certificate specified on the face hereof, by the aggregate initial Certificate
Balance of the Class M Certificates. The Certificates are designated as the X.X.
XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage
Pass-Through Certificates, Series 2002-CIBC5 and are issued in twenty-two
classes as specifically set forth in the Pooling and Servicing Agreement. The
Certificates will evidence in the aggregate 100% of the beneficial ownership of
the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate
mortgage investment conduit," as those terms are defined, respectively, in
Sections 860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended.
Each Holder of this Certificate, by acceptance hereof, agrees to treat, and take
no action inconsistent with the treatment of, this Certificate in accordance
with the preceding sentence for purposes of federal income taxes, state and
local income and franchise taxes and other taxes imposed on or measured by
income.
Pursuant to the terms of the Pooling and Servicing Agreement,
the Trustee shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. All sums distributable on this Certificate
are payable in the coin or currency of the United States of America as at the
time of payment is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each
year consisted of 360 days and each month consisted of 30 days) during the
Interest Accrual Period relating to such Distribution Date at the Class M
Pass-Through Rate specified above on the Certificate Balance of this Certificate
immediately prior to each Distribution Date. Principal and interest allocated to
this Certificate on any Distribution Date will be in an amount due to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest
on the Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among
other things, certain collections and recoveries respecting the Mortgage Loans,
all as more specifically set forth in the Pooling and Servicing Agreement. As
provided in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Servicer (with respect to the Certificate Account) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Servicer as set forth in the Pooling and
Servicing Agreement. As provided in the Pooling and Servicing Agreement,
withdrawals from the Certificate Account shall be made from time to time for
purposes other than distributions to Certificateholders, such purposes including
reimbursement of certain expenses incurred with respect to the servicing of the
Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to
a Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing at least five Business Days prior to
the related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor. The final distribution on this Certificate shall be made in
like manner, but only upon presentment and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date
because of the failure of Certificateholders to tender their Certificates shall
be set aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Trustee may, directly or through an agent, take appropriate
steps to contact the remaining non-tendering Certificateholders concerning
surrender of their Certificates. The costs and expenses of holding such funds in
trust and of contacting such Certificateholders shall be paid out of such funds.
No interest shall accrue or be payable to any Certificateholder on any amount
held in trust as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 4.01(g) of
the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement,
the Non-Registered Certificates (other than the Residual Certificates) will be
issued in book-entry form through the facilities of DTC in Denominations of
$250,000 initial Certificate Balance, and in integral multiples of $1 in excess
thereof, with one Certificate of each such Class evidencing an additional amount
equal to the remainder of the initial Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Servicer, the Special Servicer
and the Certificate Registrar and any of their agents may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and neither the Depositor, the Trustee, the Servicer, the Special Servicer, the
Certificate Registrar nor any such agents shall be affected by any notice to the
contrary.
The Pooling and Servicing Agreement may be amended from time
to time by the Depositor, the Servicer, the Special Servicer and the Trustee,
without the consent of any of the Certificateholders, to cure any ambiguity, to
correct or supplement any provisions therein that may be inconsistent with any
other provisions therein or the Prospectus or the Prospectus Supplement or to
correct any error; to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of any
of the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the imposition of any tax, provided, however, an Opinion
of Counsel is obtained to the effect that such action shall not adversely affect
in any material respect the interest of any Certificateholder and such action is
necessary or desirable to avoid such tax; to change the timing and/or nature of
deposits into the Certificate Account, the Simon Collection Account or
Distribution Accounts or REO Account or to change the name in which the
Certificate Account or Simon Collection Account is maintained, provided,
however, that the P&I Advance Date shall not be later than the related
Distribution Date, an Opinion of Counsel is obtained to the effect that such
action shall not adversely affect in any material respect the interest of any
Certificateholder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating by any Rating Agency, as
evidenced by a letter from such Rating Agency to such effect; to modify,
eliminate or add to the provisions of Section 5.02(d) of the Pooling and
Servicing Agreement or any other provision thereof restricting transfer of the
Residual Certificates by virtue of their being the REMIC "residual interests,"
and such change shall not, as evidenced by an Opinion of Counsel, cause any of
the Upper-Tier REMIC, the Lower-Tier REMIC, the Loan REMIC or any of the
Certificateholders (other than the Transferor) to be subject to a federal tax
caused by a Transfer to a Person that is a Disqualified Organization or a
Non-U.S. Person; and to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interest of any
Certificateholder not consenting thereto; provided further, that in no event may
any amendment change in any manner the obligations of any Mortgage Loan Seller
without the consent of each Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from
time to time by the Depositor, the Servicer, the Special Servicer and the
Trustee with the consent of the Holders of Certificates representing not less
than 66 2/3% of the aggregate Percentage Interests of each Class of Certificates
affected by the amendment for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of the Pooling and
Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of such Certificateholder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment,
without the consent of the Holders of all Certificates of such Class then
outstanding;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of
each Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders or written
confirmation that such amendment would not result in the downgrading,
qualification or withdrawal of ratings assigned to any Class of
Certificates by any Rating Agency, amend the Servicing Standard.
No amendment shall be made to the Pooling and Servicing
Agreement unless the Trustee shall have received an Opinion of Counsel that such
amendment is permitted under the Pooling and Servicing Agreement and will not
cause any of the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan REMIC to
fail to qualify as a REMIC or result in the imposition of a tax on any of the
Upper-Tier REMIC, the Lower-Tier REMIC or the Loan REMIC or cause the Grantor
Trust to fail to qualify as a grantor trust.
The Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee and each
of the other parties to the Pooling and Servicing Agreement, to purchase all,
but not less than all, of the Mortgage Loans and all property acquired in
respect of any Mortgage Loan remaining in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates, on any Distribution Date on which the aggregate Stated Principal
Balances of the Mortgage Loans and any REO Loans remaining in the Trust Fund is
reduced to less than 1% of the aggregate Cut-off Date Principal Balance of all
the Mortgage Loans.
The obligations created by the Pooling and Servicing Agreement
and the Trust Fund created thereby (other than the obligation of the Trustee to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement 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.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose. The Certificate Registrar has executed this
Certificate on behalf of the Trust Fund as Certificate Registrar under the
Pooling and Servicing Agreement and makes no representation or warranty as to
any of the statements contained herein or the validity or sufficiency of the
Certificates or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL
BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK MINNESOTA, N.A.,
not in its individual capacity but solely as
Certificate Registrar under the Pooling and
Servicing Agreement.
By: ___________________________________________
AUTHORIZED SIGNATORY
Dated: November __, 2002
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS M CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK MINNESOTA, N.A.,
AUTHENTICATING AGENT
By: ___________________________________________
AUTHORIZED SIGNATORY
SCHEDULE A
CERTIFICATE BALANCE OF DEFINITIVE
CERTIFICATES EXCHANGED OR TRANSFERRED
FOR, OR ISSUED IN EXCHANGE FOR OR UPON
TRANSFER OF, AN INTEREST IN THIS REMAINING CERTIFICATE BALANCE NOTATION
DATE BOOK-ENTRY CERTIFICATE OF BOOK-ENTRY CERTIFICATE MADE BY
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above
list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto ____________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
-------------------------------------
NOTICE: The signature to this
Dated:__________________ assignment must correspond with the
name as written upon the face of this
Certificate in every particular
without alteration or enlargement or
any change whatever.
________________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-19
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2002-CIBC5, CLASS N
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 SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS UNDER THE SECURITIES ACT, (D) IN AN OFFSHORE TRANSACTION MEETING
THE REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES
ACT OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT.
THIS CLASS N CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE TRUSTEE. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR INTEREST
UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (I) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A GOVERNMENTAL PLAN
(AS DEFINED IN SECTION 3(32) OF ERISA) SUBJECT TO ANY FEDERAL, STATE OR LOCAL
LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING
PROVISIONS OF ERISA OR THE CODE (EACH A "PLAN") OR (II) A PERSON ACTING ON
BEHALF OF OR USING THE ASSETS OF ANY SUCH PLAN (INCLUDING AN ENTITY WHOSE
UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY
SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION SS. 2510.3-101),
OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER
CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUBORDINATE CERTIFICATES BY
SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED TRANSACTION
PROVISIONS OF ERISA AND THE CODE UNDER PROHIBITED TRANSACTION CLASS EXEMPTION
95-60 OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE NAME OF A
PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE, AN OPINION OF COUNSEL IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR TO THE
EFFECT THAT SUCH ACQUISITION AND HOLDING OF SUCH CERTIFICATE BY SUCH PROPOSED
PURCHASER OR TRANSFEREE WILL NOT RESULT IN THE ASSETS OF THE TRUST FUND BEING
DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO THE FIDUCIARY RESPONSIBILITY
PROVISIONS OF ERISA, THE PROHIBITED TRANSACTION PROVISIONS OF THE CODE OR THE
PROVISIONS OF ANY SIMILAR LAW, WILL NOT CONSTITUTE OR RESULT IN A "PROHIBITED
TRANSACTION" WITHIN THE MEANING OF ERISA, SECTION 4975 OF THE CODE OR ANY
SIMILAR LAW, AND WILL NOT SUBJECT THE TRUSTEE, THE CERTIFICATE REGISTRAR, THE
SERVICER, THE SPECIAL SERVICER, THE PLACEMENT AGENT OR THE DEPOSITOR TO ANY
OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA,
SECTION 4975 OF THE CODE OR ANY SUCH SIMILAR LAW) IN ADDITION TO THOSE SET FORTH
IN THE POOLING AND SERVICING AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST
IN A CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT
THAT IT IS NOT A PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY 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. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO
THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, 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.]1
PASS-THROUGH RATE: 5.5000% APPROXIMATE AGGREGATE SCHEDULED PRINCIPAL BALANCE OF THE
MORTGAGE LOANS AFTER DEDUCTING PAYMENTS DUE AND PREPAYMENTS
DENOMINATION: $[ ] RECEIVED ON OR BEFORE CUT-OFF DATE: $[888,796,000]
DATE OF POOLING AND SERVICING AGREEMENT: AS OF SERVICER: WACHOVIA BANK, NATIONAL ASSOCIATION
NOVEMBER 4, 2002
SPECIAL SERVICER: ARCAP SPECIAL SERVICING, INC.
CUT-OFF DATE: AS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT (AS DEFINED HEREIN) TRUSTEE: XXXXX FARGO BANK MINNESOTA, N.A.
CLOSING DATE: NOVEMBER 4, 2002 CUSIP NO.: [00000XXX0]2 [00000XXX0]3 [X00000XX0]1
FIRST DISTRIBUTION DATE: ISIN NO.: [US46625MNA35]2 [US46625MNY11]3 [USU48138FM55]1
DECEMBER 12, 2002
COMMON CODE NO.: [15749253]3 [15749300]1
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE CERTIFICATE NO.: N-1
OF THE CLASS N CERTIFICATES
AS OF THE CLOSING DATE: $2,510,000
-------------------------
1 For Book-Entry Regulations S Certificates Only.
2 For Book Entry Rule 144A Only.
3 For Institutional Accredited Investors Only.
CLASS N CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial and multifamily fixed rate balloon and fully amortizing
mortgage loans (the "Mortgage Loans"), all payments on or collections in respect
of the Mortgage Loans due after the Cut-off Date, all REO Properties and
revenues received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Simon Collection Account, the Interest Reserve Account, the Excess Interest
Distribution Account, the Gain on Sale Account and the REO Accounts, formed and
sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL SERVICER,
THE TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE NOR THE
UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE
UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class N Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of November 4, 2002 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Servicer and
the Special Servicer. A summary of certain of the pertinent provisions of the
Pooling and Servicing Agreement is set forth hereafter. To the extent not
defined herein, the capitalized terms used herein shall have the meanings
assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Certificates of the series specified on the face
hereof (herein called the "Certificates") and representing an interest in the
Class of Certificates specified on the face hereof equal to the quotient
expressed as a percentage obtained by dividing the Denomination of this
Certificate specified on the face hereof, by the aggregate initial Certificate
Balance of the Class M Certificates. The Certificates are designated as the X.X.
XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage
Pass-Through Certificates, Series 2002-CIBC5 and are issued in twenty-two
classes as specifically set forth in the Pooling and Servicing Agreement. The
Certificates will evidence in the aggregate 100% of the beneficial ownership of
the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate
mortgage investment conduit," as those terms are defined, respectively, in
Sections 860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended.
Each Holder of this Certificate, by acceptance hereof, agrees to treat, and take
no action inconsistent with the treatment of, this Certificate in accordance
with the preceding sentence for purposes of federal income taxes, state and
local income and franchise taxes and other taxes imposed on or measured by
income.
Pursuant to the terms of the Pooling and Servicing Agreement,
the Trustee shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. All sums distributable on this Certificate
are payable in the coin or currency of the United States of America as at the
time of payment is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each
year consisted of 360 days and each month consisted of 30 days) during the
Interest Accrual Period relating to such Distribution Date at the Class N
Pass-Through Rate specified above on the Certificate Balance of this Certificate
immediately prior to each Distribution Date. Principal and interest allocated to
this Certificate on any Distribution Date will be in an amount due to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest
on the Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among
other things, certain collections and recoveries respecting the Mortgage Loans,
all as more specifically set forth in the Pooling and Servicing Agreement. As
provided in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Servicer (with respect to the Certificate Account) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Servicer as set forth in the Pooling and
Servicing Agreement. As provided in the Pooling and Servicing Agreement,
withdrawals from the Certificate Account shall be made from time to time for
purposes other than distributions to Certificateholders, such purposes including
reimbursement of certain expenses incurred with respect to the servicing of the
Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to
a Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing at least five Business Days prior to
the related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor. The final distribution on this Certificate shall be made in
like manner, but only upon presentment and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date
because of the failure of Certificateholders to tender their Certificates shall
be set aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Trustee may, directly or through an agent, take appropriate
steps to contact the remaining non-tendering Certificateholders concerning
surrender of their Certificates. The costs and expenses of holding such funds in
trust and of contacting such Certificateholders shall be paid out of such funds.
No interest shall accrue or be payable to any Certificateholder on any amount
held in trust as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 4.01(g) of
the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement,
the Non-Registered Certificates (other than the Residual Certificates) will be
issued in book-entry form through the facilities of DTC in Denominations of
$250,000 initial Certificate Balance, and in integral multiples of $1 in excess
thereof, with one Certificate of each such Class evidencing an additional amount
equal to the remainder of the initial Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Servicer, the Special Servicer
and the Certificate Registrar and any of their agents may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and neither the Depositor, the Trustee, the Servicer, the Special Servicer, the
Certificate Registrar nor any such agents shall be affected by any notice to the
contrary.
The Pooling and Servicing Agreement may be amended from time
to time by the Depositor, the Servicer, the Special Servicer and the Trustee,
without the consent of any of the Certificateholders, to cure any ambiguity, to
correct or supplement any provisions therein that may be inconsistent with any
other provisions therein or the Prospectus or the Prospectus Supplement or to
correct any error; to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of any
of the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the imposition of any tax, provided, however, an Opinion
of Counsel is obtained to the effect that such action shall not adversely affect
in any material respect the interest of any Certificateholder and such action is
necessary or desirable to avoid such tax; to change the timing and/or nature of
deposits into the Certificate Account, the Simon Collection Account or
Distribution Accounts or REO Account or to change the name in which the
Certificate Account or Simon Collection Account is maintained, provided,
however, that the P&I Advance Date shall not be later than the related
Distribution Date, an Opinion of Counsel is obtained to the effect that such
action shall not adversely affect in any material respect the interest of any
Certificateholder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating by any Rating Agency, as
evidenced by a letter from such Rating Agency to such effect; to modify,
eliminate or add to the provisions of Section 5.02(d) of the Pooling and
Servicing Agreement or any other provision thereof restricting transfer of the
Residual Certificates by virtue of their being the REMIC "residual interests,"
and such change shall not, as evidenced by an Opinion of Counsel, cause any of
the Upper-Tier REMIC, the Lower-Tier REMIC, the Loan REMIC or any of the
Certificateholders (other than the Transferor) to be subject to a federal tax
caused by a Transfer to a Person that is a Disqualified Organization or a
Non-U.S. Person; and to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interest of any
Certificateholder not consenting thereto; provided further, that in no event may
any amendment change in any manner the obligations of any Mortgage Loan Seller
without the consent of each Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from
time to time by the Depositor, the Servicer, the Special Servicer and the
Trustee with the consent of the Holders of Certificates representing not less
than 66 2/3% of the aggregate Percentage Interests of each Class of Certificates
affected by the amendment for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of the Pooling and
Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of such Certificateholder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment,
without the consent of the Holders of all Certificates of such Class then
outstanding;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of
each Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders or written
confirmation that such amendment would not result in the downgrading,
qualification or withdrawal of ratings assigned to any Class of
Certificates by any Rating Agency, amend the Servicing Standard.
No amendment shall be made to the Pooling and Servicing
Agreement unless the Trustee shall have received an Opinion of Counsel that such
amendment is permitted under the Pooling and Servicing Agreement and will not
cause any of the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan REMIC to
fail to qualify as a REMIC or result in the imposition of a tax on any of the
Upper-Tier REMIC, the Lower-Tier REMIC or the Loan REMIC or cause the Grantor
Trust to fail to qualify as a grantor trust.
The Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee and each
of the other parties to the Pooling and Servicing Agreement, to purchase all,
but not less than all, of the Mortgage Loans and all property acquired in
respect of any Mortgage Loan remaining in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates, on any Distribution Date on which the aggregate Stated Principal
Balances of the Mortgage Loans and any REO Loans remaining in the Trust Fund is
reduced to less than 1% of the aggregate Cut-off Date Principal Balance of all
the Mortgage Loans.
The obligations created by the Pooling and Servicing Agreement
and the Trust Fund created thereby (other than the obligation of the Trustee to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement 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.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose. The Certificate Registrar has executed this
Certificate on behalf of the Trust Fund as Certificate Registrar under the
Pooling and Servicing Agreement and makes no representation or warranty as to
any of the statements contained herein or the validity or sufficiency of the
Certificates or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL
BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK MINNESOTA, N.A.,
not in its individual capacity but solely as
Certificate Registrar under the Pooling and
Servicing Agreement.
By: ___________________________________________
AUTHORIZED SIGNATORY
Dated: November __, 2002
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS M CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK MINNESOTA, N.A.,
AUTHENTICATING AGENT
By: ___________________________________________
AUTHORIZED SIGNATORY
SCHEDULE A
CERTIFICATE BALANCE OF DEFINITIVE
CERTIFICATES EXCHANGED OR TRANSFERRED
FOR, OR ISSUED IN EXCHANGE FOR OR UPON
TRANSFER OF, AN INTEREST IN THIS REMAINING CERTIFICATE BALANCE NOTATION
DATE BOOK-ENTRY CERTIFICATE OF BOOK-ENTRY CERTIFICATE MADE BY
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in
the above list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto ____________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
-------------------------------------
NOTICE: The signature to this
Dated:__________________ assignment must correspond with the
name as written upon the face of this
Certificate in every particular
without alteration or enlargement or
any change whatever.
________________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-20
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2002-CIBC5, CLASS NR
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 SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS UNDER THE SECURITIES ACT, (D) IN AN OFFSHORE TRANSACTION MEETING
THE REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES
ACT OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT.
THIS CLASS NR CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE TRUSTEE. THIS CERTIFICATE REPRESENTS (1) A REMIC REGULAR INTEREST
AND (2) AN INTEREST IN A GRANTOR TRUST UNDER THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (I) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A GOVERNMENTAL PLAN
(AS DEFINED IN SECTION 3(32) OF ERISA) SUBJECT TO ANY FEDERAL, STATE OR LOCAL
LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING
PROVISIONS OF ERISA OR THE CODE (EACH A "PLAN") OR (II) A PERSON ACTING ON
BEHALF OF OR USING THE ASSETS OF ANY SUCH PLAN (INCLUDING AN ENTITY WHOSE
UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY
SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION SS. 2510.3-101),
OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER
CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUBORDINATE CERTIFICATES BY
SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED TRANSACTION
PROVISIONS OF ERISA AND THE CODE UNDER PROHIBITED TRANSACTION CLASS EXEMPTION
95-60 OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE NAME OF A
PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE, AN OPINION OF COUNSEL IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR TO THE
EFFECT THAT SUCH ACQUISITION AND HOLDING OF SUCH CERTIFICATE BY SUCH PROPOSED
PURCHASER OR TRANSFEREE WILL NOT RESULT IN THE ASSETS OF THE TRUST FUND BEING
DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO THE FIDUCIARY RESPONSIBILITY
PROVISIONS OF ERISA, THE PROHIBITED TRANSACTION PROVISIONS OF THE CODE OR THE
PROVISIONS OF ANY SIMILAR LAW, WILL NOT CONSTITUTE OR RESULT IN A "PROHIBITED
TRANSACTION" WITHIN THE MEANING OF ERISA, SECTION 4975 OF THE CODE OR ANY
SIMILAR LAW, AND WILL NOT SUBJECT THE TRUSTEE, THE CERTIFICATE REGISTRAR, THE
SERVICER, THE SPECIAL SERVICER, THE PLACEMENT AGENT OR THE DEPOSITOR TO ANY
OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA,
SECTION 4975 OF THE CODE OR ANY SUCH SIMILAR LAW) IN ADDITION TO THOSE SET FORTH
IN THE POOLING AND SERVICING AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST
IN A CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT
THAT IT IS NOT A PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY 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. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO
THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, 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.]1
PASS-THROUGH RATE: 5.5000% APPROXIMATE AGGREGATE SCHEDULED PRINCIPAL BALANCE OF THE
MORTGAGE LOANS AFTER DEDUCTING PAYMENTS DUE AND PREPAYMENTS
DENOMINATION: $[ ] RECEIVED ON OR BEFORE CUT-OFF DATE: $[888,796,000]
DATE OF POOLING AND SERVICING AGREEMENT: AS OF SERVICER: WACHOVIA BANK, NATIONAL ASSOCIATION
NOVEMBER 4, 2002
SPECIAL SERVICER: ARCAP SPECIAL SERVICING, INC.
CUT-OFF DATE: AS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT (AS DEFINED HEREIN) TRUSTEE: XXXXX FARGO BANK MINNESOTA, N.A.
CLOSING DATE: NOVEMBER 4, 2002 CUSIP NO.: [00000XXX0]2 [00000XXX0]3 [X00000XX0]1
FIRST DISTRIBUTION DATE: ISIN NO.: [US46625MNJ44]2 [US46625MPG86]3 [USU48138FV54]1
DECEMBER 12, 2002
COMMON CODE NO.: [15749334]2 [15749423]1
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE CERTIFICATE NO.: NR-1
OF THE CLASS NR CERTIFICATES
AS OF THE CLOSING DATE: $17,575,337
-------------------------
1 For Book-Entry Regulations S Certificates Only.
2 For Book Entry Rule 144A Only.
3 For Institutional Accredited Investors Only.
CLASS NR CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial and multifamily fixed rate balloon and fully amortizing
mortgage loans (the "Mortgage Loans"), all payments on or collections in respect
of the Mortgage Loans due after the Cut-off Date, all REO Properties and
revenues received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Simon Collection Account, the Interest Reserve Account, the Excess Interest
Distribution Account, the Gain on Sale Account and the REO Accounts, formed and
sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL SERVICER,
THE TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE NOR THE
UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE
UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class NR Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of November 4, 2002 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Servicer and
the Special Servicer. A summary of certain of the pertinent provisions of the
Pooling and Servicing Agreement is set forth hereafter. To the extent not
defined herein, the capitalized terms used herein shall have the meanings
assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Certificates of the series specified on the face
hereof (herein called the "Certificates") and representing an interest in the
Class of Certificates specified on the face hereof equal to the quotient
expressed as a percentage obtained by dividing the Denomination of this
Certificate specified on the face hereof, by the aggregate initial Certificate
Balance of the Class NR Certificates. The Certificates are designated as the
X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage
Pass-Through Certificates, Series 2002-CIBC5 and are issued in twenty-two
classes as specifically set forth in the Pooling and Servicing Agreement. The
Certificates will evidence in the aggregate 100% of the beneficial ownership of
the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Certificate represents (i) a "regular interest" in a
"real estate mortgage investment conduit," as those terms are defined,
respectively, in Sections 860G(a)(1) and 860D of the Internal Revenue Code of
1986, as amended (the "Code") and (ii) a beneficial interest in a grantor trust
under Subpart E, Part I of Subchapter J of the Code with respect to the Excess
Interest. Each Holder of this Certificate, by acceptance hereof, agrees to
treat, and take no action inconsistent with the treatment of, this Certificate
in accordance with the preceding sentence for purposes of federal income taxes,
state and local income and franchise taxes and other taxes imposed on or
measured by income.
Pursuant to the terms of the Pooling and Servicing Agreement,
the Trustee shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. All sums distributable on this Certificate
are payable in the coin or currency of the United States of America as at the
time of payment is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each
year consisted of 360 days and each month consisted of 30 days) during the
Interest Accrual Period relating to such Distribution Date at the Class NR
Pass-Through Rate specified above on the Certificate Balance of this Certificate
immediately prior to each Distribution Date. Principal and interest allocated to
this Certificate on any Distribution Date will be in an amount due to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Collateral Support Deficit and Certificate Deferred Interest
on the Mortgage Loans shall be allocated on the applicable Distribution Date to
Certificateholders in the manner set forth in the Pooling and Servicing
Agreement. All Collateral Support Deficit or Certificate Deferred Interest on
the Mortgage Loans allocated to any Class of Certificates will be allocated pro
rata among the outstanding Certificates of such Class.
The Certificates are limited in right of payment to, among
other things, certain collections and recoveries respecting the Mortgage Loans,
all as more specifically set forth in the Pooling and Servicing Agreement. As
provided in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Servicer (with respect to the Certificate Account) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Servicer as set forth in the Pooling and
Servicing Agreement. As provided in the Pooling and Servicing Agreement,
withdrawals from the Certificate Account shall be made from time to time for
purposes other than distributions to Certificateholders, such purposes including
reimbursement of certain expenses incurred with respect to the servicing of the
Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to
a Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing at least five Business Days prior to
the related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor. The final distribution on this Certificate shall be made in
like manner, but only upon presentment and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date
because of the failure of Certificateholders to tender their Certificates shall
be set aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Trustee may, directly or through an agent, take appropriate
steps to contact the remaining non-tendering Certificateholders concerning
surrender of their Certificates. The costs and expenses of holding such funds in
trust and of contacting such Certificateholders shall be paid out of such funds.
No interest shall accrue or be payable to any Certificateholder on any amount
held in trust as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 4.01(g) of
the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement,
the Non-Registered Certificates (other than the Residual Certificates) will be
issued in book-entry form through the facilities of DTC in Denominations of
$250,000 initial Certificate Balance, and in integral multiples of $1 in excess
thereof, with one Certificate of each such Class evidencing an additional amount
equal to the remainder of the initial Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Servicer, the Special Servicer
and the Certificate Registrar and any of their agents may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and neither the Depositor, the Trustee, the Servicer, the Special Servicer, the
Certificate Registrar nor any such agents shall be affected by any notice to the
contrary.
The Pooling and Servicing Agreement may be amended from time
to time by the Depositor, the Servicer, the Special Servicer and the Trustee,
without the consent of any of the Certificateholders, to cure any ambiguity, to
correct or supplement any provisions therein that may be inconsistent with any
other provisions therein or the Prospectus or the Prospectus Supplement or to
correct any error; to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of any
of the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the imposition of any tax, provided, however, an Opinion
of Counsel is obtained to the effect that such action shall not adversely affect
in any material respect the interest of any Certificateholder and such action is
necessary or desirable to avoid such tax; to change the timing and/or nature of
deposits into the Certificate Account, the Simon Collection Account or
Distribution Accounts or REO Account or to change the name in which the
Certificate Account or Simon Collection Account is maintained, provided,
however, that the P&I Advance Date shall not be later than the related
Distribution Date, an Opinion of Counsel is obtained to the effect that such
action shall not adversely affect in any material respect the interest of any
Certificateholder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating by any Rating Agency, as
evidenced by a letter from such Rating Agency to such effect; to modify,
eliminate or add to the provisions of Section 5.02(d) of the Pooling and
Servicing Agreement or any other provision thereof restricting transfer of the
Residual Certificates by virtue of their being the REMIC "residual interests,"
and such change shall not, as evidenced by an Opinion of Counsel, cause any of
the Upper-Tier REMIC, the Lower-Tier REMIC, the Loan REMIC or any of the
Certificateholders (other than the Transferor) to be subject to a federal tax
caused by a Transfer to a Person that is a Disqualified Organization or a
Non-U.S. Person; and to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interest of any
Certificateholder not consenting thereto; provided further, that in no event may
any amendment change in any manner the obligations of any Mortgage Loan Seller
without the consent of each Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from
time to time by the Depositor, the Servicer, the Special Servicer and the
Trustee with the consent of the Holders of Certificates representing not less
than 66 2/3% of the aggregate Percentage Interests of each Class of Certificates
affected by the amendment for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of the Pooling and
Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of such Certificateholder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment,
without the consent of the Holders of all Certificates of such Class then
outstanding;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of
each Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders or written
confirmation that such amendment would not result in the downgrading,
qualification or withdrawal of ratings assigned to any Class of
Certificates by any Rating Agency, amend the Servicing Standard.
No amendment shall be made to the Pooling and Servicing
Agreement unless the Trustee shall have received an Opinion of Counsel that such
amendment is permitted under the Pooling and Servicing Agreement and will not
cause any of the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan REMIC to
fail to qualify as a REMIC or result in the imposition of a tax on any of the
Upper-Tier REMIC, the Lower-Tier REMIC or the Loan REMIC or cause the Grantor
Trust to fail to qualify as a grantor trust.
The Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee and each
of the other parties to the Pooling and Servicing Agreement, to purchase all,
but not less than all, of the Mortgage Loans and all property acquired in
respect of any Mortgage Loan remaining in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates, on any Distribution Date on which the aggregate Stated Principal
Balances of the Mortgage Loans and any REO Loans remaining in the Trust Fund is
reduced to less than 1% of the aggregate Cut-off Date Principal Balance of all
the Mortgage Loans.
The obligations created by the Pooling and Servicing Agreement
and the Trust Fund created thereby (other than the obligation of the Trustee to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement 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.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose. The Certificate Registrar has executed this
Certificate on behalf of the Trust Fund as Certificate Registrar under the
Pooling and Servicing Agreement and makes no representation or warranty as to
any of the statements contained herein or the validity or sufficiency of the
Certificates or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL
BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK MINNESOTA, N.A.,
not in its individual capacity but solely as
Certificate Registrar under the Pooling and
Servicing Agreement.
By: ___________________________________________
AUTHORIZED SIGNATORY
Dated: November __, 2002
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS NR CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK MINNESOTA, N.A.,
AUTHENTICATING AGENT
By: ___________________________________________
AUTHORIZED SIGNATORY
SCHEDULE A
CERTIFICATE BALANCE OF DEFINITIVE
CERTIFICATES EXCHANGED OR TRANSFERRED
FOR, OR ISSUED IN EXCHANGE FOR OR UPON
TRANSFER OF, AN INTEREST IN THIS REMAINING CERTIFICATE BALANCE NOTATION
DATE BOOK-ENTRY CERTIFICATE OF BOOK-ENTRY CERTIFICATE MADE BY
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above
list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto ____________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
-------------------------------------
NOTICE: The signature to this
Dated:__________________ assignment must correspond with the
name as written upon the face of this
Certificate in every particular
without alteration or enlargement or
any change whatever.
________________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-21
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2002-CIBC5, CLASS S-1
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 SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS UNDER THE SECURITIES ACT, (D) IN AN OFFSHORE TRANSACTION MEETING
THE REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES
ACT OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT.
THIS CLASS S-1 CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF SIMON COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE TRUSTEE. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR INTEREST
UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (I) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A GOVERNMENTAL PLAN
(AS DEFINED IN SECTION 3(32) OF ERISA) SUBJECT TO ANY FEDERAL, STATE OR LOCAL
LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING
PROVISIONS OF ERISA OR THE CODE (EACH A "PLAN") OR (II) A PERSON ACTING ON
BEHALF OF OR USING THE ASSETS OF ANY SUCH PLAN (INCLUDING AN ENTITY WHOSE
UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY
SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION SS. 2510.3-101),
OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER
CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUBORDINATE CERTIFICATES BY
SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED TRANSACTION
PROVISIONS OF ERISA AND THE CODE UNDER PROHIBITED TRANSACTION CLASS EXEMPTION
95-60 OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE NAME OF A
PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE, AN OPINION OF COUNSEL IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR TO THE
EFFECT THAT SUCH ACQUISITION AND HOLDING OF SUCH CERTIFICATE BY SUCH PROPOSED
PURCHASER OR TRANSFEREE WILL NOT RESULT IN THE ASSETS OF THE TRUST FUND BEING
DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO THE FIDUCIARY RESPONSIBILITY
PROVISIONS OF ERISA, THE PROHIBITED TRANSACTION PROVISIONS OF THE CODE OR THE
PROVISIONS OF ANY SIMILAR LAW, WILL NOT CONSTITUTE OR RESULT IN A "PROHIBITED
TRANSACTION" WITHIN THE MEANING OF ERISA, SECTION 4975 OF THE CODE OR ANY
SIMILAR LAW, AND WILL NOT SUBJECT THE TRUSTEE, THE CERTIFICATE REGISTRAR, THE
SERVICER, THE SPECIAL SERVICER, THE PLACEMENT AGENT OR THE DEPOSITOR TO ANY
OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA,
SECTION 4975 OF THE CODE OR ANY SUCH SIMILAR LAW) IN ADDITION TO THOSE SET FORTH
IN THE POOLING AND SERVICING AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST
IN A CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT
THAT IT IS NOT A PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY 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. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO
THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, 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.]1
PASS-THROUGH RATE: 7.6750% APPROXIMATE AGGREGATE SCHEDULED PRINCIPAL BALANCE OF THE
MORTGAGE LOANS AFTER DEDUCTING PAYMENTS DUE AND PREPAYMENTS
DENOMINATION: $[ ] RECEIVED ON OR BEFORE CUT-OFF DATE: $[888,796,000]
DATE OF POOLING AND SERVICING AGREEMENT: AS OF SERVICER: WACHOVIA BANK, NATIONAL ASSOCIATION
NOVEMBER 4, 2002
SPECIAL SERVICER: ARCAP SPECIAL SERVICING, INC.
CUT-OFF DATE: AS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT (AS DEFINED HEREIN) TRUSTEE: XXXXX FARGO BANK MINNESOTA, N.A.
CLOSING DATE: NOVEMBER 4, 2002 CUSIP NO.: [00000XXX0]2 [00000XXX0]3 [X00000XX0]1
FIRST DISTRIBUTION DATE: ISIN NO.: [US46625MNK17]2 [US46625MPH69]3 [USU48138FW38]1
DECEMBER 12, 2002
COMMON CODE NO.: [15749610]3 [15749679]1
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE CERTIFICATE NO.: S-1-1
OF THE CLASS S-1 CERTIFICATES
AS OF THE CLOSING DATE: $5,895,364
-------------------------
1 For Book-Entry Regulations S Certificates Only.
2 For Book Entry Rule 144A Only.
3 For Institutional Accredited Investors Only.
CLASS S-1 CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial and multifamily fixed rate balloon and fully amortizing
mortgage loans (the "Mortgage Loans"), all payments on or collections in respect
of the Mortgage Loans due after the Cut-off Date, all REO Properties and
revenues received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Simon Collection Account, the Interest Reserve Account, the Excess Interest
Distribution Account, the Gain on Sale Account and the REO Accounts, formed and
sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL SERVICER,
THE TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE NOR THE
UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE
UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class S-1 Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of November 4, 2002 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Servicer and
the Special Servicer. A summary of certain of the pertinent provisions of the
Pooling and Servicing Agreement is set forth hereafter. To the extent not
defined herein, the capitalized terms used herein shall have the meanings
assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Certificates of the series specified on the face
hereof (herein called the "Certificates") and representing an interest in the
Class of Certificates specified on the face hereof equal to the quotient
expressed as a percentage obtained by dividing the Denomination of this
Certificate specified on the face hereof, by the aggregate initial Certificate
Balance of the Class S-1 Certificates. The Certificates are designated as the
X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage
Pass-Through Certificates, Series 2002-CIBC5 and are issued in twenty classes as
specifically set forth in the Pooling and Servicing Agreement. The Certificates
will evidence in the aggregate 100% of the beneficial ownership of the Trust
Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate
mortgage investment conduit," as those terms are defined, respectively, in
Sections 860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended.
Each Holder of this Certificate, by acceptance hereof, agrees to treat, and take
no action inconsistent with the treatment of, this Certificate in accordance
with the preceding sentence for purposes of federal income taxes, state and
local income and franchise taxes and other taxes imposed on or measured by
income.
Pursuant to the terms of the Pooling and Servicing Agreement,
the Trustee shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. All sums distributable on this Certificate
are payable in the coin or currency of the United States of America as at the
time of payment is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each
year consisted of 360 days and each month consisted of 30 days) during the
Interest Accrual Period relating to such Distribution Date at the Class S-1
Pass-Through Rate specified above on the Certificate Balance of this Certificate
immediately prior to each Distribution Date. Principal and interest allocated to
this Certificate on any Distribution Date will be in an amount due to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Simon Collateral Support Deficit and Certificate Deferred
Interest on the Simon Mortgage Loan shall be allocated on the applicable
Distribution Date to Certificateholders in the manner set forth in the Pooling
and Servicing Agreement. All Simon Collateral Support Deficit or Certificate
Deferred Interest on the Simon Mortgage Loan allocated to any Class of
Certificates will be allocated pro rata among the outstanding Certificates of
such Class.
The Certificates are limited in right of payment to, among
other things, certain collections and recoveries respecting the Simon Non-Pooled
Component, all as more specifically set forth in the Pooling and Servicing
Agreement. As provided in the Pooling and Servicing Agreement, the Certificate
Account and the Distribution Accounts will be held on behalf of the Trustee on
behalf of the Holders of Certificates specified in the Pooling and Servicing
Agreement and the Servicer (with respect to the Certificate Account) will be
authorized to make withdrawals therefrom. Amounts on deposit in such accounts
may be invested in Permitted Investments. Interest or other income earned on
funds in the Certificate Account will be paid to the Servicer as set forth in
the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Simon Mortgage Loan and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to
a Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing at least five Business Days prior to
the related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor. The final distribution on this Certificate shall be made in
like manner, but only upon presentment and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date
because of the failure of Certificateholders to tender their Certificates shall
be set aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Trustee may, directly or through an agent, take appropriate
steps to contact the remaining non-tendering Certificateholders concerning
surrender of their Certificates. The costs and expenses of holding such funds in
trust and of contacting such Certificateholders shall be paid out of such funds.
No interest shall accrue or be payable to any Certificateholder on any amount
held in trust as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 4.01(g) of
the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement,
the Non-Registered Certificates (other than the Residual Certificates) will be
issued in book-entry form through the facilities of DTC in Denominations of
$250,000 initial Certificate Balance, and in integral multiples of $1 in excess
thereof, with one Certificate of each such Class evidencing an additional amount
equal to the remainder of the initial Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Servicer, the Special Servicer
and the Certificate Registrar and any of their agents may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and neither the Depositor, the Trustee, the Servicer, the Special Servicer, the
Certificate Registrar nor any such agents shall be affected by any notice to the
contrary.
The Pooling and Servicing Agreement may be amended from time
to time by the Depositor, the Servicer, the Special Servicer and the Trustee,
without the consent of any of the Certificateholders, to cure any ambiguity, to
correct or supplement any provisions therein that may be inconsistent with any
other provisions therein or the Prospectus or the Prospectus Supplement or to
correct any error; to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of any
of the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the imposition of any tax, provided, however, an Opinion
of Counsel is obtained to the effect that such action shall not adversely affect
in any material respect the interest of any Certificateholder and such action is
necessary or desirable to avoid such tax; to change the timing and/or nature of
deposits into the Certificate Account, the Simon Collection Account or
Distribution Accounts or REO Account or to change the name in which the
Certificate Account or Simon Collection Account is maintained, provided,
however, that the P&I Advance Date shall not be later than the related
Distribution Date, an Opinion of Counsel is obtained to the effect that such
action shall not adversely affect in any material respect the interest of any
Certificateholder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating by any Rating Agency, as
evidenced by a letter from such Rating Agency to such effect; to modify,
eliminate or add to the provisions of Section 5.02(d) of the Pooling and
Servicing Agreement or any other provision thereof restricting transfer of the
Residual Certificates by virtue of their being the REMIC "residual interests,"
and such change shall not, as evidenced by an Opinion of Counsel, cause any of
the Upper-Tier REMIC, the Lower-Tier REMIC, the Loan REMIC or any of the
Certificateholders (other than the Transferor) to be subject to a federal tax
caused by a Transfer to a Person that is a Disqualified Organization or a
Non-U.S. Person; and to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interest of any
Certificateholder not consenting thereto; provided further, that in no event may
any amendment change in any manner the obligations of any Mortgage Loan Seller
without the consent of each Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from
time to time by the Depositor, the Servicer, the Special Servicer and the
Trustee with the consent of the Holders of Certificates representing not less
than 66 2/3% of the aggregate Percentage Interests of each Class of Certificates
affected by the amendment for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of the Pooling and
Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of such Certificateholder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment,
without the consent of the Holders of all Certificates of such Class then
outstanding;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of
each Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders or written
confirmation that such amendment would not result in the downgrading,
qualification or withdrawal of ratings assigned to any Class of
Certificates by any Rating Agency, amend the Servicing Standard.
No amendment shall be made to the Pooling and Servicing
Agreement unless the Trustee shall have received an Opinion of Counsel that such
amendment is permitted under the Pooling and Servicing Agreement and will not
cause any of the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan REMIC to
fail to qualify as a REMIC or result in the imposition of a tax on any of the
Upper-Tier REMIC, the Lower-Tier REMIC or the Loan REMIC or cause the Grantor
Trust to fail to qualify as a grantor trust.
The Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee and each
of the other parties to the Pooling and Servicing Agreement, to purchase all,
but not less than all, of the Mortgage Loans and all property acquired in
respect of any Mortgage Loan remaining in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates, on any Distribution Date on which the aggregate Stated Principal
Balances of the Mortgage Loans and any REO Loans remaining in the Trust Fund is
reduced to less than 1% of the aggregate Cut-off Date Principal Balance of all
the Mortgage Loans.
The obligations created by the Pooling and Servicing Agreement
and the Trust Fund created thereby (other than the obligation of the Trustee to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement 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.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose. The Certificate Registrar has executed this
Certificate on behalf of the Trust Fund as Certificate Registrar under the
Pooling and Servicing Agreement and makes no representation or warranty as to
any of the statements contained herein or the validity or sufficiency of the
Certificates or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL
BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK MINNESOTA, N.A.,
not in its individual capacity but solely as
Certificate Registrar under the Pooling and
Servicing Agreement.
By: ___________________________________________
AUTHORIZED SIGNATORY
Dated: November __, 2002
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS M CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK MINNESOTA, N.A.,
AUTHENTICATING AGENT
By: ___________________________________________
AUTHORIZED SIGNATORY
SCHEDULE A
CERTIFICATE BALANCE OF DEFINITIVE
CERTIFICATES EXCHANGED OR TRANSFERRED
FOR, OR ISSUED IN EXCHANGE FOR OR UPON
TRANSFER OF, AN INTEREST IN THIS REMAINING CERTIFICATE BALANCE NOTATION
DATE BOOK-ENTRY CERTIFICATE OF BOOK-ENTRY CERTIFICATE MADE BY
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above
list.
FORM OF TRANSFER
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto ____________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
NOTICE: The signature to this
Dated:__________________ assignment must correspond with the
name as written upon the face of this
Certificate in every particular
without alteration or enlargement or
any change whatever.
________________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-22
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2002-CIBC5, CLASS S-2
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 SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS UNDER THE SECURITIES ACT, (D) IN AN OFFSHORE TRANSACTION MEETING
THE REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES
ACT OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT.
THIS CLASS S-2 CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF SIMON COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE TRUSTEE. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR INTEREST
UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (I) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A GOVERNMENTAL PLAN
(AS DEFINED IN SECTION 3(32) OF ERISA) SUBJECT TO ANY FEDERAL, STATE OR LOCAL
LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING
PROVISIONS OF ERISA OR THE CODE (EACH A "PLAN") OR (II) A PERSON ACTING ON
BEHALF OF OR USING THE ASSETS OF ANY SUCH PLAN (INCLUDING AN ENTITY WHOSE
UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY
SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION SS. 2510.3-101),
OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER
CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUBORDINATE CERTIFICATES BY
SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED TRANSACTION
PROVISIONS OF ERISA AND THE CODE UNDER PROHIBITED TRANSACTION CLASS EXEMPTION
95-60 OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE NAME OF A
PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE, AN OPINION OF COUNSEL IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR TO THE
EFFECT THAT SUCH ACQUISITION AND HOLDING OF SUCH CERTIFICATE BY SUCH PROPOSED
PURCHASER OR TRANSFEREE WILL NOT RESULT IN THE ASSETS OF THE TRUST FUND BEING
DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO THE FIDUCIARY RESPONSIBILITY
PROVISIONS OF ERISA, THE PROHIBITED TRANSACTION PROVISIONS OF THE CODE OR THE
PROVISIONS OF ANY SIMILAR LAW, WILL NOT CONSTITUTE OR RESULT IN A "PROHIBITED
TRANSACTION" WITHIN THE MEANING OF ERISA, SECTION 4975 OF THE CODE OR ANY
SIMILAR LAW, AND WILL NOT SUBJECT THE TRUSTEE, THE CERTIFICATE REGISTRAR, THE
SERVICER, THE SPECIAL SERVICER, THE PLACEMENT AGENT OR THE DEPOSITOR TO ANY
OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA,
SECTION 4975 OF THE CODE OR ANY SUCH SIMILAR LAW) IN ADDITION TO THOSE SET FORTH
IN THE POOLING AND SERVICING AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST
IN A CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT
THAT IT IS NOT A PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY 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. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO
THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, 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.]1
PASS-THROUGH RATE: 8.3690% APPROXIMATE AGGREGATE SCHEDULED PRINCIPAL BALANCE OF THE
MORTGAGE LOANS AFTER DEDUCTING PAYMENTS DUE AND PREPAYMENTS
DENOMINATION: $[ ] RECEIVED ON OR BEFORE CUT-OFF DATE: $[888,796,000]
DATE OF POOLING AND SERVICING AGREEMENT: AS OF SERVICER: WACHOVIA BANK, NATIONAL ASSOCIATION
NOVEMBER 4, 2002
SPECIAL SERVICER: ARCAP SPECIAL SERVICING, INC.
CUT-OFF DATE: AS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT (AS DEFINED HEREIN) TRUSTEE: XXXXX FARGO BANK MINNESOTA, N.A.
CLOSING DATE: NOVEMBER 4, 2002 CUSIP NO.: [00000XXX0]2 [00000XXX0]3 [X00000XX0]1
FIRST DISTRIBUTION DATE: ISIN NO.: [US46625MNL99]2 [US46625MPJ26]3 [USU48138FX11]1
DECEMBER 12, 2002
COMMON CODE NO.: [15749717]3 [15749741]1
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE CERTIFICATE NO.: S-2-1
OF THE CLASS S-2 CERTIFICATES
AS OF THE CLOSING DATE: $6,594,814
-------------------------
1 For Book-Entry Regulations S Certificates Only.
2 For Book Entry Rule 144A Only.
3 For Institutional Accredited Investors Only.
CLASS S-2 CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial and multifamily fixed rate balloon and fully amortizing
mortgage loans (the "Mortgage Loans"), all payments on or collections in respect
of the Mortgage Loans due after the Cut-off Date, all REO Properties and
revenues received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Simon Collection Account, the Interest Reserve Account, the Excess Interest
Distribution Account, the Gain on Sale Account and the REO Accounts, formed and
sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL SERVICER,
THE TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE NOR THE
UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE
UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class S-2 Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of November 4, 2002 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Servicer and
the Special Servicer. A summary of certain of the pertinent provisions of the
Pooling and Servicing Agreement is set forth hereafter. To the extent not
defined herein, the capitalized terms used herein shall have the meanings
assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Certificates of the series specified on the face
hereof (herein called the "Certificates") and representing an interest in the
Class of Certificates specified on the face hereof equal to the quotient
expressed as a percentage obtained by dividing the Denomination of this
Certificate specified on the face hereof, by the aggregate initial Certificate
Balance of the Class S-2 Certificates. The Certificates are designated as the
X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage
Pass-Through Certificates, Series 2002-CIBC5 and are issued in twenty-two
classes as specifically set forth in the Pooling and Servicing Agreement. The
Certificates will evidence in the aggregate 100% of the beneficial ownership of
the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate
mortgage investment conduit," as those terms are defined, respectively, in
Sections 860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended.
Each Holder of this Certificate, by acceptance hereof, agrees to treat, and take
no action inconsistent with the treatment of, this Certificate in accordance
with the preceding sentence for purposes of federal income taxes, state and
local income and franchise taxes and other taxes imposed on or measured by
income.
Pursuant to the terms of the Pooling and Servicing Agreement,
the Trustee shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. All sums distributable on this Certificate
are payable in the coin or currency of the United States of America as at the
time of payment is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each
year consisted of 360 days and each month consisted of 30 days) during the
Interest Accrual Period relating to such Distribution Date at the Class S-2
Pass-Through Rate specified above on the Certificate Balance of this Certificate
immediately prior to each Distribution Date. Principal and interest allocated to
this Certificate on any Distribution Date will be in an amount due to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Simon Collateral Support Deficit and Certificate Deferred
Interest on the Simon Mortgage Loan shall be allocated on the applicable
Distribution Date to Certificateholders in the manner set forth in the Pooling
and Servicing Agreement. All Simon Collateral Support Deficit or Certificate
Deferred Interest on the Simon Mortgage Loan allocated to any Class of
Certificates will be allocated pro rata among the outstanding Certificates of
such Class.
The Certificates are limited in right of payment to, among
other things, certain collections and recoveries respecting the Simon Non-Pooled
Component, all as more specifically set forth in the Pooling and Servicing
Agreement. As provided in the Pooling and Servicing Agreement, the Certificate
Account and the Distribution Accounts will be held on behalf of the Trustee on
behalf of the Holders of Certificates specified in the Pooling and Servicing
Agreement and the Servicer (with respect to the Certificate Account) will be
authorized to make withdrawals therefrom. Amounts on deposit in such accounts
may be invested in Permitted Investments. Interest or other income earned on
funds in the Certificate Account will be paid to the Servicer as set forth in
the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Simon Mortgage Loan and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to
a Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing at least five Business Days prior to
the related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor. The final distribution on this Certificate shall be made in
like manner, but only upon presentment and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date
because of the failure of Certificateholders to tender their Certificates shall
be set aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Trustee may, directly or through an agent, take appropriate
steps to contact the remaining non-tendering Certificateholders concerning
surrender of their Certificates. The costs and expenses of holding such funds in
trust and of contacting such Certificateholders shall be paid out of such funds.
No interest shall accrue or be payable to any Certificateholder on any amount
held in trust as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 4.01(g) of
the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement,
the Non-Registered Certificates (other than the Residual Certificates) will be
issued in book-entry form through the facilities of DTC in Denominations of
$250,000 initial Certificate Balance, and in integral multiples of $1 in excess
thereof, with one Certificate of each such Class evidencing an additional amount
equal to the remainder of the initial Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Servicer, the Special Servicer
and the Certificate Registrar and any of their agents may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and neither the Depositor, the Trustee, the Servicer, the Special Servicer, the
Certificate Registrar nor any such agents shall be affected by any notice to the
contrary.
The Pooling and Servicing Agreement may be amended from time
to time by the Depositor, the Servicer, the Special Servicer and the Trustee,
without the consent of any of the Certificateholders, to cure any ambiguity, to
correct or supplement any provisions therein that may be inconsistent with any
other provisions therein or the Prospectus or the Prospectus Supplement or to
correct any error; to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of any
of the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the imposition of any tax, provided, however, an Opinion
of Counsel is obtained to the effect that such action shall not adversely affect
in any material respect the interest of any Certificateholder and such action is
necessary or desirable to avoid such tax; to change the timing and/or nature of
deposits into the Certificate Account, the Simon Collection Account or
Distribution Accounts or REO Account or to change the name in which the
Certificate Account or Simon Collection Account is maintained, provided,
however, that the P&I Advance Date shall not be later than the related
Distribution Date, an Opinion of Counsel is obtained to the effect that such
action shall not adversely affect in any material respect the interest of any
Certificateholder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating by any Rating Agency, as
evidenced by a letter from such Rating Agency to such effect; to modify,
eliminate or add to the provisions of Section 5.02(d) of the Pooling and
Servicing Agreement or any other provision thereof restricting transfer of the
Residual Certificates by virtue of their being the REMIC "residual interests,"
and such change shall not, as evidenced by an Opinion of Counsel, cause any of
the Upper-Tier REMIC, the Lower-Tier REMIC, the Loan REMIC or any of the
Certificateholders (other than the Transferor) to be subject to a federal tax
caused by a Transfer to a Person that is a Disqualified Organization or a
Non-U.S. Person; and to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interest of any
Certificateholder not consenting thereto; provided further, that in no event may
any amendment change in any manner the obligations of any Mortgage Loan Seller
without the consent of each Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from
time to time by the Depositor, the Servicer, the Special Servicer and the
Trustee with the consent of the Holders of Certificates representing not less
than 66 2/3% of the aggregate Percentage Interests of each Class of Certificates
affected by the amendment for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of the Pooling and
Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of such Certificateholder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment,
without the consent of the Holders of all Certificates of such Class then
outstanding;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of
each Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders or written
confirmation that such amendment would not result in the downgrading,
qualification or withdrawal of ratings assigned to any Class of
Certificates by any Rating Agency, amend the Servicing Standard.
No amendment shall be made to the Pooling and Servicing
Agreement unless the Trustee shall have received an Opinion of Counsel that such
amendment is permitted under the Pooling and Servicing Agreement and will not
cause any of the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan REMIC to
fail to qualify as a REMIC or result in the imposition of a tax on any of the
Upper-Tier REMIC, the Lower-Tier REMIC or the Loan REMIC or cause the Grantor
Trust to fail to qualify as a grantor trust.
The Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee and each
of the other parties to the Pooling and Servicing Agreement, to purchase all,
but not less than all, of the Mortgage Loans and all property acquired in
respect of any Mortgage Loan remaining in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates, on any Distribution Date on which the aggregate Stated Principal
Balances of the Mortgage Loans and any REO Loans remaining in the Trust Fund is
reduced to less than 1% of the aggregate Cut-off Date Principal Balance of all
the Mortgage Loans.
The obligations created by the Pooling and Servicing Agreement
and the Trust Fund created thereby (other than the obligation of the Trustee to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement 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.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose. The Certificate Registrar has executed this
Certificate on behalf of the Trust Fund as Certificate Registrar under the
Pooling and Servicing Agreement and makes no representation or warranty as to
any of the statements contained herein or the validity or sufficiency of the
Certificates or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL
BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK MINNESOTA, N.A.,
not in its individual capacity but solely as
Certificate Registrar under the Pooling and
Servicing Agreement.
By: ___________________________________________
AUTHORIZED SIGNATORY
Dated: November __, 2002
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS M CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK MINNESOTA, N.A.,
AUTHENTICATING AGENT
By: ___________________________________________
AUTHORIZED SIGNATORY
SCHEDULE A
CERTIFICATE BALANCE OF DEFINITIVE
CERTIFICATES EXCHANGED OR TRANSFERRED
FOR, OR ISSUED IN EXCHANGE FOR OR UPON
TRANSFER OF, AN INTEREST IN THIS REMAINING CERTIFICATE BALANCE NOTATION
DATE BOOK-ENTRY CERTIFICATE OF BOOK-ENTRY CERTIFICATE MADE BY
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above
list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto ____________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
-------------------------------------
NOTICE: The signature to this
Dated:__________________ assignment must correspond with the
name as written upon the face of this
Certificate in every particular
without alteration or enlargement or
any change whatever.
________________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-23
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2002-CIBC5, CLASS S-3
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 SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS UNDER THE SECURITIES ACT, (D) IN AN OFFSHORE TRANSACTION MEETING
THE REQUIREMENTS OF RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES
ACT OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT.
THIS CLASS S-3 CERTIFICATE IS SUBORDINATED IN RIGHT OF PAYMENT TO CERTAIN OTHER
CLASSES OF CERTIFICATES OF THIS SERIES TO THE EXTENT DESCRIBED IN THE POOLING
AND SERVICING AGREEMENT. THE PORTION OF THE CERTIFICATE BALANCE OF THE
CERTIFICATES EVIDENCED BY THIS CERTIFICATE WILL BE DECREASED BY THE PORTION OF
PRINCIPAL DISTRIBUTIONS ON THE CERTIFICATES AND THE PORTION OF SIMON COLLATERAL
SUPPORT DEFICIT ALLOCABLE TO THIS CERTIFICATE. ACCORDINGLY, THE CERTIFICATE
BALANCE OF THIS CERTIFICATE MAY BE LESS THAN THAT SET FORTH BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT CERTIFICATE BALANCE BY
INQUIRY OF THE TRUSTEE. THIS CERTIFICATE CONSTITUTES A REMIC REGULAR INTEREST
UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE
REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS CERTIFICATE MAY NOT BE PURCHASED OR TRANSFERRED UNLESS THE CERTIFICATE
REGISTRAR SHALL HAVE RECEIVED EITHER (A) AN INVESTMENT REPRESENTATION LETTER
FROM THE PROPOSED PURCHASER OR TRANSFEREE OF SUCH CERTIFICATE, IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, TO THE
EFFECT THAT SUCH PROPOSED PURCHASER OR TRANSFEREE IS NOT (I) AN EMPLOYEE BENEFIT
PLAN SUBJECT TO THE FIDUCIARY RESPONSIBILITY PROVISIONS OF THE EMPLOYEE
RETIREMENT SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR A GOVERNMENTAL PLAN
(AS DEFINED IN SECTION 3(32) OF ERISA) SUBJECT TO ANY FEDERAL, STATE OR LOCAL
LAW ("SIMILAR LAW") WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING
PROVISIONS OF ERISA OR THE CODE (EACH A "PLAN") OR (II) A PERSON ACTING ON
BEHALF OF OR USING THE ASSETS OF ANY SUCH PLAN (INCLUDING AN ENTITY WHOSE
UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF INVESTMENT IN THE ENTITY BY
SUCH PLAN AND THE APPLICATION OF DEPARTMENT OF LABOR REGULATION SS. 2510.3-101),
OTHER THAN AN INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT UNDER
CIRCUMSTANCES WHEREBY THE PURCHASE AND HOLDING OF SUBORDINATE CERTIFICATES BY
SUCH INSURANCE COMPANY WOULD BE EXEMPT FROM THE PROHIBITED TRANSACTION
PROVISIONS OF ERISA AND THE CODE UNDER PROHIBITED TRANSACTION CLASS EXEMPTION
95-60 OR (B) IF SUCH CERTIFICATE IS PRESENTED FOR REGISTRATION IN THE NAME OF A
PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE, AN OPINION OF COUNSEL IN FORM AND
SUBSTANCE SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR TO THE
EFFECT THAT SUCH ACQUISITION AND HOLDING OF SUCH CERTIFICATE BY SUCH PROPOSED
PURCHASER OR TRANSFEREE WILL NOT RESULT IN THE ASSETS OF THE TRUST FUND BEING
DEEMED TO BE "PLAN ASSETS" AND SUBJECT TO THE FIDUCIARY RESPONSIBILITY
PROVISIONS OF ERISA, THE PROHIBITED TRANSACTION PROVISIONS OF THE CODE OR THE
PROVISIONS OF ANY SIMILAR LAW, WILL NOT CONSTITUTE OR RESULT IN A "PROHIBITED
TRANSACTION" WITHIN THE MEANING OF ERISA, SECTION 4975 OF THE CODE OR ANY
SIMILAR LAW, AND WILL NOT SUBJECT THE TRUSTEE, THE CERTIFICATE REGISTRAR, THE
SERVICER, THE SPECIAL SERVICER, THE PLACEMENT AGENT OR THE DEPOSITOR TO ANY
OBLIGATION OR LIABILITY (INCLUDING OBLIGATIONS OR LIABILITIES UNDER ERISA,
SECTION 4975 OF THE CODE OR ANY SUCH SIMILAR LAW) IN ADDITION TO THOSE SET FORTH
IN THE POOLING AND SERVICING AGREEMENT. THE TRANSFEREE OF A BENEFICIAL INTEREST
IN A CERTIFICATE THAT IS A BOOK-ENTRY CERTIFICATE SHALL BE DEEMED TO REPRESENT
THAT IT IS NOT A PERSON DESCRIBED IN CLAUSES (I) OR (II) ABOVE.
EACH PURCHASER OF THIS CERTIFICATE THAT IS A BOOK-ENTRY 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. EACH PURCHASER OF THIS CERTIFICATE THAT IS A DEFINITIVE CERTIFICATE
SHALL BE REQUIRED TO DELIVER AN INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY
IN THE FORM OF EXHIBIT C TO THE POOLING AND SERVICING AGREEMENT IF SUCH
TRANSFEREE IS A QUALIFIED INSTITUTIONAL BUYER OR AN INSTITUTIONAL ACCREDITED
INVESTOR, AND MAY ALSO BE REQUIRED TO DELIVER AN OPINION OF COUNSEL IF SUCH
TRANSFEREE IS NOT A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A.
[THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND, PRIOR TO
THE DATE THAT IS 40 DAYS AFTER THE OFFERING OF THE CERTIFICATES, 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.]1
PASS-THROUGH RATE: 10.2083% APPROXIMATE AGGREGATE SCHEDULED PRINCIPAL BALANCE OF THE
MORTGAGE LOANS AFTER DEDUCTING PAYMENTS DUE AND PREPAYMENTS
DENOMINATION: $[ ] RECEIVED ON OR BEFORE CUT-OFF DATE: $[888,796,000]
DATE OF POOLING AND SERVICING AGREEMENT: AS OF SERVICER: WACHOVIA BANK, NATIONAL ASSOCIATION
NOVEMBER 4, 2002
SPECIAL SERVICER: ARCAP SPECIAL SERVICING, INC.
CUT-OFF DATE: AS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT (AS DEFINED HEREIN) TRUSTEE: XXXXX FARGO BANK MINNESOTA, N.A.
CLOSING DATE: NOVEMBER 4, 2002 CUSIP NO.: [00000XXX0]2 [00000XXX0]3 [X00000XX0]1
FIRST DISTRIBUTION DATE: ISIN NO.: [US46625MNM72]2 [US46625MPK98]3 [USU48138FY93]1
DECEMBER 12, 2002
COMMON CODE NO.: [15749784]2 [15749822]1
APPROXIMATE AGGREGATE
CERTIFICATE BALANCE CERTIFICATE NO.: S-3-1
OF THE CLASS M CERTIFICATES
AS OF THE CLOSING DATE: $5,295,834
-------------------------
1 For Book-Entry Regulations S Certificates Only.
2 For Book Entry Rule 144A Only.
3 For Institutional Accredited Investors Only.
CLASS S-3 CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial and multifamily fixed rate balloon and fully amortizing
mortgage loans (the "Mortgage Loans"), all payments on or collections in respect
of the Mortgage Loans due after the Cut-off Date, all REO Properties and
revenues received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Simon Collection Account, the Interest Reserve Account, the Excess Interest
Distribution Account, the Gain on Sale Account and the REO Accounts, formed and
sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL SERVICER,
THE TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE NOR THE
UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE
UNITED STATES.
THIS CERTIFIES THAT CEDE & CO.
is the registered owner of the interest evidenced by this Certificate in the
Class S-3 Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of November 4, 2002 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Servicer and
the Special Servicer. A summary of certain of the pertinent provisions of the
Pooling and Servicing Agreement is set forth hereafter. To the extent not
defined herein, the capitalized terms used herein shall have the meanings
assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Certificates of the series specified on the face
hereof (herein called the "Certificates") and representing an interest in the
Class of Certificates specified on the face hereof equal to the quotient
expressed as a percentage obtained by dividing the Denomination of this
Certificate specified on the face hereof, by the aggregate initial Certificate
Balance of the Class S-3 Certificates. The Certificates are designated as the
X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES CORP., Commercial Mortgage
Pass-Through Certificates, Series 2002-CIBC5 and are issued in twenty-two
classes as specifically set forth in the Pooling and Servicing Agreement. The
Certificates will evidence in the aggregate 100% of the beneficial ownership of
the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Certificate is a "regular interest" in a "real estate
mortgage investment conduit," as those terms are defined, respectively, in
Sections 860G(a)(1) and 860D of the Internal Revenue Code of 1986, as amended.
Each Holder of this Certificate, by acceptance hereof, agrees to treat, and take
no action inconsistent with the treatment of, this Certificate in accordance
with the preceding sentence for purposes of federal income taxes, state and
local income and franchise taxes and other taxes imposed on or measured by
income.
Pursuant to the terms of the Pooling and Servicing Agreement,
the Trustee shall distribute to the Person in whose name this Certificate is
registered as of the related Record Date, an amount equal to such Person's pro
rata share (based on the Percentage Interest represented by this Certificate) of
that portion of the aggregate amount of principal and interest then
distributable, if any, allocable to the Class of Certificates of the same Class
as this Certificate for such Distribution Date, all as more fully described in
the Pooling and Servicing Agreement. All sums distributable on this Certificate
are payable in the coin or currency of the United States of America as at the
time of payment is legal tender for the payment of public and private debts.
Interest on this Certificate will accrue (computed as if each
year consisted of 360 days and each month consisted of 30 days) during the
Interest Accrual Period relating to such Distribution Date at the Class M
Pass-Through Rate specified above on the Certificate Balance of this Certificate
immediately prior to each Distribution Date. Principal and interest allocated to
this Certificate on any Distribution Date will be in an amount due to this
Certificate's pro rata share of the Available Distribution Amount to be
distributed on the Certificates of this Class as of such Distribution Date, with
a final distribution to be made upon retirement of this Certificate as set forth
in the Pooling and Servicing Agreement.
Simon Collateral Support Deficit and Certificate Deferred
Interest on the Simon Mortgage Loan shall be allocated on the applicable
Distribution Date to Certificateholders in the manner set forth in the Pooling
and Servicing Agreement. All Simon Collateral Support Deficit or Certificate
Deferred Interest on the Simon Mortgage Loan allocated to any Class of
Certificates will be allocated pro rata among the outstanding Certificates of
such Class.
The Certificates are limited in right of payment to, among
other things, certain collections and recoveries respecting the Simon Non-Pooled
Component, all as more specifically set forth in the Pooling and Servicing
Agreement. As provided in the Pooling and Servicing Agreement, the Certificate
Account and the Distribution Accounts will be held on behalf of the Trustee on
behalf of the Holders of Certificates specified in the Pooling and Servicing
Agreement and the Servicer (with respect to the Certificate Account) will be
authorized to make withdrawals therefrom. Amounts on deposit in such accounts
may be invested in Permitted Investments. Interest or other income earned on
funds in the Certificate Account will be paid to the Servicer as set forth in
the Pooling and Servicing Agreement. As provided in the Pooling and Servicing
Agreement, withdrawals from the Certificate Account shall be made from time to
time for purposes other than distributions to Certificateholders, such purposes
including reimbursement of certain expenses incurred with respect to the
servicing of the Simon Mortgage Loan and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to
a Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing at least five Business Days prior to
the related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor. The final distribution on this Certificate shall be made in
like manner, but only upon presentment and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date
because of the failure of Certificateholders to tender their Certificates shall
be set aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Trustee may, directly or through an agent, take appropriate
steps to contact the remaining non-tendering Certificateholders concerning
surrender of their Certificates. The costs and expenses of holding such funds in
trust and of contacting such Certificateholders shall be paid out of such funds.
No interest shall accrue or be payable to any Certificateholder on any amount
held in trust as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 4.01(g) of
the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Subject to the terms of the Pooling and Servicing Agreement,
the Non-Registered Certificates (other than the Residual Certificates) will be
issued in book-entry form through the facilities of DTC in Denominations of
$250,000 initial Certificate Balance, and in integral multiples of $1 in excess
thereof, with one Certificate of each such Class evidencing an additional amount
equal to the remainder of the initial Certificate Balance of such Class.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Servicer, the Special Servicer
and the Certificate Registrar and any of their agents may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and neither the Depositor, the Trustee, the Servicer, the Special Servicer, the
Certificate Registrar nor any such agents shall be affected by any notice to the
contrary.
The Pooling and Servicing Agreement may be amended from time
to time by the Depositor, the Servicer, the Special Servicer and the Trustee,
without the consent of any of the Certificateholders, to cure any ambiguity, to
correct or supplement any provisions therein that may be inconsistent with any
other provisions therein or the Prospectus or the Prospectus Supplement or to
correct any error; to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of any
of the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the imposition of any tax, provided, however, an Opinion
of Counsel is obtained to the effect that such action shall not adversely affect
in any material respect the interest of any Certificateholder and such action is
necessary or desirable to avoid such tax; to change the timing and/or nature of
deposits into the Certificate Account, the Simon Collection Account or
Distribution Accounts or REO Account or to change the name in which the
Certificate Account or Simon Collection Account is maintained, provided,
however, that the P&I Advance Date shall not be later than the related
Distribution Date, an Opinion of Counsel is obtained to the effect that such
action shall not adversely affect in any material respect the interest of any
Certificateholder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating by any Rating Agency, as
evidenced by a letter from such Rating Agency to such effect; to modify,
eliminate or add to the provisions of Section 5.02(d) of the Pooling and
Servicing Agreement or any other provision thereof restricting transfer of the
Residual Certificates by virtue of their being the REMIC "residual interests,"
and such change shall not, as evidenced by an Opinion of Counsel, cause any of
the Upper-Tier REMIC, the Lower-Tier REMIC, the Loan REMIC or any of the
Certificateholders (other than the Transferor) to be subject to a federal tax
caused by a Transfer to a Person that is a Disqualified Organization or a
Non-U.S. Person; and to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interest of any
Certificateholder not consenting thereto; provided further, that in no event may
any amendment change in any manner the obligations of any Mortgage Loan Seller
without the consent of each Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from
time to time by the Depositor, the Servicer, the Special Servicer and the
Trustee with the consent of the Holders of Certificates representing not less
than 66 2/3% of the aggregate Percentage Interests of each Class of Certificates
affected by the amendment for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of the Pooling and
Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of such Certificateholder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment,
without the consent of the Holders of all Certificates of such Class then
outstanding;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of
each Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders or written
confirmation that such amendment would not result in the downgrading,
qualification or withdrawal of ratings assigned to any Class of
Certificates by any Rating Agency, amend the Servicing Standard.
No amendment shall be made to the Pooling and Servicing
Agreement unless the Trustee shall have received an Opinion of Counsel that such
amendment is permitted under the Pooling and Servicing Agreement and will not
cause any of the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan REMIC to
fail to qualify as a REMIC or result in the imposition of a tax on any of the
Upper-Tier REMIC, the Lower-Tier REMIC or the Loan REMIC or cause the Grantor
Trust to fail to qualify as a grantor trust.
The Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee and each
of the other parties to the Pooling and Servicing Agreement, to purchase all,
but not less than all, of the Mortgage Loans and all property acquired in
respect of any Mortgage Loan remaining in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates, on any Distribution Date on which the aggregate Stated Principal
Balances of the Mortgage Loans and any REO Loans remaining in the Trust Fund is
reduced to less than 1% of the aggregate Cut-off Date Principal Balance of all
the Mortgage Loans.
The obligations created by the Pooling and Servicing Agreement
and the Trust Fund created thereby (other than the obligation of the Trustee to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement 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.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose. The Certificate Registrar has executed this
Certificate on behalf of the Trust Fund as Certificate Registrar under the
Pooling and Servicing Agreement and makes no representation or warranty as to
any of the statements contained herein or the validity or sufficiency of the
Certificates or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL
BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
IN WITNESS WHEREOF, the Certificate Registrar has caused this
Certificate to be duly executed under this official seal.
XXXXX FARGO BANK MINNESOTA, N.A.,
not in its individual capacity but solely as
Certificate Registrar under the Pooling and
Servicing Agreement.
By: ___________________________________________
AUTHORIZED SIGNATORY
Dated: November __, 2002
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS M CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK MINNESOTA, N.A.,
AUTHENTICATING AGENT
By: ___________________________________________
AUTHORIZED SIGNATORY
SCHEDULE A
CERTIFICATE BALANCE OF DEFINITIVE
CERTIFICATES EXCHANGED OR TRANSFERRED
FOR, OR ISSUED IN EXCHANGE FOR OR UPON
TRANSFER OF, AN INTEREST IN THIS REMAINING CERTIFICATE BALANCE NOTATION
DATE BOOK-ENTRY CERTIFICATE OF BOOK-ENTRY CERTIFICATE MADE BY
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above
list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto ____________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
-------------------------------------
NOTICE: The signature to this
Dated:__________________ assignment must correspond with the
name as written upon the face of this
Certificate in every particular
without alteration or enlargement or
any change whatever.
________________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-24
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2002-CIBC5, CLASS R
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 OR (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 SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A.
THE INITIAL INVESTOR IN 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. A TRANSFEREE IS ALSO REQUIRED TO DELIVER AN
INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY IN THE FORM OF EXHIBIT C TO THE
POOLING AND SERVICING AGREEMENT IF SUCH TRANSFEREE IS A QUALIFIED INSTITUTIONAL
BUYER OR AN INSTITUTIONAL ACCREDITED INVESTOR, AND MAY ALSO BE REQUIRED TO
DELIVER AN OPINION OF COUNSEL IF SUCH TRANSFEREE IS NOT A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A.
THIS CERTIFICATE MAY NOT BE PURCHASED BY OR TRANSFERRED TO ANY PERSON WHICH IS
AN EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974. AS AMENDED ("ERISA"), OR SECTION 4975 OF THE CODE OR ANY
GOVERNMENTAL PLAN, AS DEFINED IN SECTION 3(32) OF ERISA SUBJECT TO ANY FEDERAL,
STATE OR LOCAL LAW WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING
PROVISIONS OF ERISA OR THE CODE (EACH A "PLAN"), OR ANY PERSON ACTING ON BEHALF
OF OR INVESTING THE ASSETS OF A PLAN.
THIS CERTIFICATE IS A "RESIDUAL INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT
CONDUIT," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G(A)(2) AND
860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED. EACH TRANSFEREE OF THIS
CERTIFICATE, BY ACCEPTANCE HEREOF, IS DEEMED TO HAVE ACCEPTED THIS CERTIFICATE
SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFERABILITY TO DISQUALIFIED
ORGANIZATIONS, NON-U.S. PERSONS OR AGENTS OF EITHER, AS SET FORTH IN SECTION
5.02 OF THE POOLING AND SERVICING AGREEMENT AND SHALL BE REQUIRED TO FURNISH AN
AFFIDAVIT TO THE TRANSFEROR AND THE TRUSTEE TO THE EFFECT THAT, AMONG OTHER
THINGS, (A) IT IS NOT A DISQUALIFIED ORGANIZATION, AS SUCH TERM IS DEFINED IN
CODE SECTION 860E(E)(5), OR AN AGENT (INCLUDING A BROKER, NOMINEE OR OTHER
MIDDLEMAN) FOR SUCH DISQUALIFIED ORGANIZATION AND IS OTHERWISE A PERMITTED
TRANSFEREE, (B) IT HAS HISTORICALLY PAID ITS DEBTS AS THEY HAVE COME DUE AND
INTENDS TO PAY ITS DEBTS AS THEY COME DUE IN THE FUTURE, (C) IT UNDERSTANDS THAT
IT MAY INCUR TAX LIABILITIES WITH RESPECT TO THIS CERTIFICATE IN EXCESS OF CASH
FLOWS GENERATED HEREBY, (D) IT INTENDS TO PAY ANY TAXES ASSOCIATED WITH HOLDING
THIS CERTIFICATE AS THEY BECOME DUE, (E) IT WILL NOT CAUSE INCOME WITH RESPECT
TO THIS CERTIFICATE TO BE ATTRIBUTABLE TO A FOREIGN PERMANENT ESTABLISHMENT OR
FIXED BASE, WITHIN THE MEANING OF AN APPLICABLE INCOME TAX TREATY OF SUCH PERSON
OR ANY OTHER U.S. PERSON AND (F) IT WILL NOT TRANSFER THIS CERTIFICATE TO ANY
PERSON OR ENTITY THAT DOES NOT PROVIDE A SIMILAR AFFIDAVIT. ANY PURPORTED
TRANSFER TO A DISQUALIFIED ORGANIZATION OR OTHER PERSON THAT IS NOT A PERMITTED
TRANSFEREE OR OTHERWISE IN VIOLATION OF THESE RESTRICTIONS SHALL BE ABSOLUTELY
NULL AND VOID AND SHALL VEST NO RIGHTS IN ANY PURPORTED TRANSFEREE. THIS
CERTIFICATE REPRESENTS A "NON-ECONOMIC RESIDUAL INTEREST," AS DEFINED IN
TREASURY REGULATIONS SECTION 1.860E-L(C), AND THEREFORE, TRANSFERS OF THIS
CERTIFICATE MAY BE DISREGARDED FOR FEDERAL INCOME TAX PURPOSES. IN ORDER TO
SATISFY A REGULATORY SAFE HARBOR UNDER WHICH SUCH TRANSFERS WILL NOT BE
DISREGARDED, THE TRANSFEROR MAY BE REQUIRED, AMONG OTHER THINGS, TO SATISFY
ITSELF AS TO THE FINANCIAL CONDITION OF THE PROPOSED TRANSFEREE AND EITHER TO
TRANSFER AT A MINIMUM PRICE OR TO AN ELIGIBLE TRANSFEREE AS SPECIFIED IN
REGULATIONS.
PERCENTAGE INTEREST EVIDENCED BY THIS CERTIFICATE: APPROXIMATE AGGREGATE SCHEDULED PRINCIPAL BALANCE OF THE
[__________]% MORTGAGE LOANS AFTER DEDUCTING PAYMENTS DUE AND PREPAYMENTS
RECEIVED ON OR BEFORE CUT-OFF DATE: $[888,796,000]
DATE OF POOLING AND SERVICING AGREEMENT: AS OF
NOVEMBER 4, 2002 SERVICER: WACHOVIA BANK, NATIONAL ASSOCIATION
CUT-OFF DATE: AS SET FORTH IN THE POOLING AND SERVICING SPECIAL SERVICER: ARCAP SPECIAL SERVICING, INC.
AGREEMENT (AS DEFINED HEREIN)
TRUSTEE: XXXXX FARGO BANK MINNESOTA, N.A.
CLOSING DATE: NOVEMBER 4, 2002
CERTIFICATE NO.: R-1-1
FIRST DISTRIBUTION DATE:
DECEMBER 12, 2002
CLASS R PERCENTAGE INTEREST: 100%
CLASS R CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial and multifamily fixed rate balloon and fully amortizing
mortgage loans (the "Mortgage Loans"), all payments on or collections in respect
of the Mortgage Loans due after the Cut-off Date, all REO Properties and
revenues received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Simon Collection Account, the Interest Reserve Account, the Excess Interest
Distribution Account, the Gain on Sale Account and the REO Accounts, formed and
sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL SERVICER,
THE TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE NOR THE
UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE
UNITED STATES.
THIS CERTIFIES THAT X.X. XXXXXX SECURITIES INC.
is the registered owner of the interest evidenced by this Certificate in the
Class R Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of November 4, 2002 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX CHASE COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Servicer and
the Special Servicer. A summary of certain of the pertinent provisions of the
Pooling and Servicing Agreement is set forth hereafter. To the extent not
defined herein, the capitalized terms used herein shall have the meanings
assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Certificates of the series specified on the face
hereof (herein called the "Certificates") and representing the percentage
interest in the Class of Certificates specified on the face hereof. The
Certificates are designated as the X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE
SECURITIES CORP., Commercial Mortgage Pass-Through Certificates, Series
2002-CIBC5 and are issued in twenty-two classes as specifically set forth in the
Pooling and Servicing Agreement. The Certificates will evidence in the aggregate
100% of the beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Class R Certificate is a "residual interest" in a "real
estate mortgage investment conduit," as those terms are defined, respectively,
in Sections 860G(a)(1) and 860D of the Internal Revenue Code of 1986, as
amended. Each Holder of this Certificate, by acceptance hereof, agrees to treat,
and take no action inconsistent with the treatment of, this Certificate in
accordance with the preceding sentence for purposes of federal income taxes,
state and local income and franchise taxes and other taxes imposed on or
measured by income. The Holder of the largest Percentage Interest in the Class R
Certificates shall be the "tax matters person" for the Upper-Tier REMIC pursuant
to Treasury Regulations Section 1.860F-4(d), and the Servicer is hereby
irrevocably designated and shall serve as attorney-in-fact and agent for any
such Person that is the "tax matters person".
Pursuant to the terms of the Pooling and Servicing Agreement,
distributions, if any, on this Certificate shall be made by the Trustee to the
extent and subject to the limitations set forth in the Pooling and Servicing
Agreement, on the Distribution Date to the Person in whose name this Certificate
is registered as of the related Record Date. All sums distributable on this
Certificate are payable in the coin or currency of the United States of America
as at the time of payment is legal tender for the payment of public and private
debts.
The Certificates are limited in right of payment to, among
other things, certain collections and recoveries respecting the Mortgage Loans,
all as more specifically set forth in the Pooling and Servicing Agreement. As
provided in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Servicer (with respect to the Certificate Account) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Servicer as set forth in the Pooling and
Servicing Agreement. As provided in the Pooling and Servicing Agreement,
withdrawals from the Certificate Account shall be made from time to time for
purposes other than distributions to Certificateholders, such purposes including
reimbursement of certain expenses incurred with respect to the servicing of the
Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to
a Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing at least five Business Days prior to
the related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor. The final distribution on this Certificate shall be made in
like manner, but only upon presentment and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date
because of the failure of Certificateholders to tender their Certificates shall
be set aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Trustee may, directly or through an agent, take appropriate
steps to contact the remaining non-tendering Certificateholders concerning
surrender of their Certificates. The costs and expenses of holding such funds in
trust and of contacting such Certificateholders shall be paid out of such funds.
No interest shall accrue or be payable to any Certificateholder on any amount
held in trust as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 4.01(g) of
the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Each Person who has or who acquires any Ownership Interest in
a Class R 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 Section 5.02(d) of the Pooling and
Servicing Agreement to deliver payments to a Person other than such Person. The
rights of each Person acquiring any Ownership Interest in a Class R Certificate
are expressly subject to the following provisions: (A) No Person holding or
acquiring any Ownership Interest in a Class R Certificate shall be a
Disqualified Organization or agent thereof (including a nominee, middleman or
similar person) (an "Agent"), a Plan or a Person acting on behalf of or
investing the assets of a Plan (such Plan or Person, an "ERISA Prohibited
Holder") or a Non-U.S. Person and shall promptly notify the Servicer, the
Trustee and the Certificate Registrar of any change or impending change to such
status; (B) In connection with any proposed Transfer of any Ownership Interest
in a Class R Certificate, the Certificate Registrar shall require delivery to
it, and no Transfer of any Class R Certificate shall be registered until the
Certificate Registrar receives, an affidavit substantially in the form attached
to the Pooling and Servicing Agreement as Exhibit D-1 (a "Transfer Affidavit")
from the proposed Transferee, in form and substance satisfactory to the
Certificate Registrar, representing and warranting, among other things, that
such Transferee is not a Disqualified Organization or Agent thereof, an ERISA
Prohibited Holder or a Non-U.S. Person, and that it has reviewed the provisions
of Section 5.02(d) of the Pooling and Servicing Agreement and agrees to be bound
by them; (C) Notwithstanding the delivery of a Transfer Affidavit by a proposed
Transferee under clause (B) above, if the Certificate Registrar has actual
knowledge that the proposed Transferee is a Disqualified Organization or Agent
thereof, an ERISA Prohibited Holder or a Non-U.S. Person, no Transfer of an
Ownership Interest in a Class R Certificate to such proposed Transferee shall be
effected; and (D) Each Person holding or acquiring any Ownership Interest in a
Class R Certificate shall agree (1) to require a Transfer Affidavit from any
prospective Transferee to whom such Person attempts to transfer its Ownership
Interest in such Class R Certificate and (2) not to transfer its Ownership
Interest in such Class R Certificate unless it provides to the Certificate
Registrar a letter substantially in the form attached to the Pooling and
Servicing Agreement as Exhibit D-2 (a "Transferor Letter") certifying that,
among other things, it has no actual knowledge that such prospective Transferee
is a Disqualified Organization, an Agent thereof, an ERISA Prohibited Holder or
a Non-U.S. Person.
The Class R and Class LR Certificates will be issued in fully
registered, certificated form, in Denominations representing Percentage
Interests of not less than 20%.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Servicer, the Special Servicer
and the Certificate Registrar and any of their agents may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and neither the Depositor, the Trustee, the Servicer, the Special Servicer, the
Certificate Registrar nor any such agents shall be affected by any notice to the
contrary.
The Pooling and Servicing Agreement may be amended from time
to time by the Depositor, the Servicer, the Special Servicer and the Trustee,
without the consent of any of the Certificateholders, to cure any ambiguity, to
correct or supplement any provisions therein that may be inconsistent with any
other provisions therein or the Prospectus or the Prospectus Supplement or to
correct any error; to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of any
of the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the imposition of any tax, provided, however, an Opinion
of Counsel is obtained to the effect that such action shall not adversely affect
in any material respect the interest of any Certificateholder and such action is
necessary or desirable to avoid such tax; to change the timing and/or nature of
deposits into the Certificate Account, the Simon Collection Account or
Distribution Accounts or REO Account or to change the name in which the
Certificate Account or Simon Collection Account is maintained, provided,
however, that the P&I Advance Date shall not be later than the related
Distribution Date, an Opinion of Counsel is obtained to the effect that such
action shall not adversely affect in any material respect the interest of any
Certificateholder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating by any Rating Agency, as
evidenced by a letter from such Rating Agency to such effect; to modify,
eliminate or add to the provisions of Section 5.02(d) of the Pooling and
Servicing Agreement or any other provision thereof restricting transfer of the
Residual Certificates by virtue of their being the REMIC "residual interests,"
and such change shall not, as evidenced by an Opinion of Counsel, cause any of
the Upper-Tier REMIC, the Lower-Tier REMIC, the Loan REMIC or any of the
Certificateholders (other than the Transferor) to be subject to a federal tax
caused by a Transfer to a Person that is a Disqualified Organization or a
Non-U.S. Person; and to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interest of any
Certificateholder not consenting thereto; provided further, that in no event may
any amendment change in any manner the obligations of any Mortgage Loan Seller
without the consent of each Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from
time to time by the Depositor, the Servicer, the Special Servicer and the
Trustee with the consent of the Holders of Certificates representing not less
than 66 2/3% of the aggregate Percentage Interests of each Class of Certificates
affected by the amendment for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of the Pooling and
Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of such Certificateholder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment,
without the consent of the Holders of all Certificates of such Class then
outstanding;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of
each Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders or written
confirmation that such amendment would not result in the downgrading,
qualification or withdrawal of ratings assigned to any Class of
Certificates by any Rating Agency, amend the Servicing Standard.
No amendment shall be made to the Pooling and Servicing
Agreement unless the Trustee shall have received an Opinion of Counsel that such
amendment is permitted under the Pooling and Servicing Agreement and will not
cause any of the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan REMIC to
fail to qualify as a REMIC or result in the imposition of a tax on any of the
Upper-Tier REMIC, the Lower-Tier REMIC or the Loan REMIC or cause the Grantor
Trust to fail to qualify as a grantor trust.
The Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee and each
of the other parties to the Pooling and Servicing Agreement, to purchase all,
but not less than all, of the Mortgage Loans and all property acquired in
respect of any Mortgage Loan remaining in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates, on any Distribution Date on which the aggregate Stated Principal
Balances of the Mortgage Loans and any REO Loans remaining in the Trust Fund is
reduced to less than 1% of the aggregate Cut-off Date Principal Balance of all
the Mortgage Loans.
The obligations created by the Pooling and Servicing Agreement
and the Trust Fund created thereby (other than the obligation of the Trustee to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement 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.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose. The Certificate Registrar has executed this
Certificate on behalf of the Trust Fund as Certificate Registrar under the
Pooling and Servicing Agreement and makes no representation or warranty as to
any of the statements contained herein or the validity or sufficiency of the
Certificates or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL
BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
XXXXX FARGO BANK MINNESOTA, N.A.,
not in its individual capacity but solely as
Certificate Registrar under the Pooling and
Servicing Agreement.
By: ___________________________________________
AUTHORIZED SIGNATORY
Dated: November __, 2002
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS R CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK MINNESOTA, N.A.,
AUTHENTICATING AGENT
By: ___________________________________________
AUTHORIZED SIGNATORY
Dated: November __, 2002
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as tenants in common
Act __________________________
(State)
Additional abbreviations may also be used though not in the above
list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto ____________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
-------------------------------------
NOTICE: The signature to this
Dated:__________________ assignment must correspond with the
name as written upon the face of this
Certificate in every particular
without alteration or enlargement or
any change whatever.
________________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT A-25
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2002-CIBC5, CLASS LR
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 OR (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 SELLER REASONABLY BELIEVES IS
A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A.
THE INITIAL INVESTOR IN 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. A TRANSFEREE IS ALSO REQUIRED TO DELIVER AN
INVESTMENT REPRESENTATION LETTER SUBSTANTIALLY IN THE FORM OF EXHIBIT C TO THE
POOLING AND SERVICING AGREEMENT IF SUCH TRANSFEREE IS A QUALIFIED INSTITUTIONAL
BUYER OR AN INSTITUTIONAL ACCREDITED INVESTOR, AND MAY ALSO BE REQUIRED TO
DELIVER AN OPINION OF COUNSEL IF SUCH TRANSFEREE IS NOT A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A.
THIS CERTIFICATE MAY NOT BE PURCHASED BY OR TRANSFERRED TO ANY PERSON WHICH IS
AN EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974. AS AMENDED ("ERISA"), OR SECTION 4975 OF THE CODE OR ANY
GOVERNMENTAL PLAN, AS DEFINED IN SECTION 3(32) OF ERISA SUBJECT TO ANY FEDERAL,
STATE OR LOCAL LAW WHICH IS, TO A MATERIAL EXTENT, SIMILAR TO THE FOREGOING
PROVISIONS OF ERISA OR THE CODE (EACH A "PLAN"), OR ANY PERSON ACTING ON BEHALF
OF OR INVESTING THE ASSETS OF A PLAN.
THIS CERTIFICATE IS A "RESIDUAL INTEREST" IN TWO "REAL ESTATE MORTGAGE
INVESTMENT CONDUITS," AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS
860G(A)(2) AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED. EACH
TRANSFEREE OF THIS CERTIFICATE, BY ACCEPTANCE HEREOF, IS DEEMED TO HAVE ACCEPTED
THIS CERTIFICATE SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFERABILITY TO
DISQUALIFIED ORGANIZATIONS, NON-U.S. PERSONS OR AGENTS OF EITHER, AS SET FORTH
IN SECTION 5.02 OF THE POOLING AND SERVICING AGREEMENT AND SHALL BE REQUIRED TO
FURNISH AN AFFIDAVIT TO THE TRANSFEROR AND THE TRUSTEE TO THE EFFECT THAT, AMONG
OTHER THINGS, (A) IT IS NOT A DISQUALIFIED ORGANIZATION, AS SUCH TERM IS DEFINED
IN CODE SECTION 860E(E)(5), OR AN AGENT (INCLUDING A BROKER, NOMINEE OR OTHER
MIDDLEMAN) FOR SUCH DISQUALIFIED ORGANIZATION AND IS OTHERWISE A PERMITTED
TRANSFEREE, (B) IT HAS HISTORICALLY PAID ITS DEBTS AS THEY HAVE COME DUE AND
INTENDS TO PAY ITS DEBTS AS THEY COME DUE IN THE FUTURE, (C) IT UNDERSTANDS THAT
IT MAY INCUR TAX LIABILITIES WITH RESPECT TO THIS CERTIFICATE IN EXCESS OF CASH
FLOWS GENERATED HEREBY, (D) IT INTENDS TO PAY ANY TAXES ASSOCIATED WITH HOLDING
THIS CERTIFICATE AS THEY BECOME DUE, (E) IT WILL NOT CAUSE INCOME WITH RESPECT
TO THIS CERTIFICATE TO BE ATTRIBUTABLE TO A FOREIGN PERMANENT ESTABLISHMENT OR
FIXED BASE, WITHIN THE MEANING OF AN APPLICABLE INCOME TAX TREATY OF SUCH PERSON
OR ANY OTHER U.S. PERSON AND (F) IT WILL NOT TRANSFER THIS CERTIFICATE TO ANY
PERSON OR ENTITY THAT DOES NOT PROVIDE A SIMILAR AFFIDAVIT. ANY PURPORTED
TRANSFER TO A DISQUALIFIED ORGANIZATION OR OTHER PERSON THAT IS NOT A PERMITTED
TRANSFEREE OR OTHERWISE IN VIOLATION OF THESE RESTRICTIONS SHALL BE ABSOLUTELY
NULL AND VOID AND SHALL VEST NO RIGHTS IN ANY PURPORTED TRANSFEREE. THIS
CERTIFICATE REPRESENTS A "NON-ECONOMIC RESIDUAL INTEREST," AS DEFINED IN
TREASURY REGULATIONS SECTION 1.860E-L(C), AND THEREFORE, TRANSFERS OF THIS
CERTIFICATE MAY BE DISREGARDED FOR FEDERAL INCOME TAX PURPOSES. IN ORDER TO
SATISFY A REGULATORY SAFE HARBOR UNDER WHICH SUCH TRANSFERS WILL NOT BE
DISREGARDED, THE TRANSFEROR MAY BE REQUIRED, AMONG OTHER THINGS, TO SATISFY
ITSELF AS TO THE FINANCIAL CONDITION OF THE PROPOSED TRANSFEREE AND EITHER TO
TRANSFER AT A MINIMUM PRICE OR TO AN ELIGIBLE TRANSFEREE AS SPECIFIED IN
REGULATIONS.
PERCENTAGE INTEREST EVIDENCED BY THIS CERTIFICATE: APPROXIMATE AGGREGATE SCHEDULED PRINCIPAL BALANCE OF THE
[__________]% MORTGAGE LOANS AFTER DEDUCTING PAYMENTS DUE AND PREPAYMENTS
RECEIVED ON OR BEFORE CUT-OFF DATE: $[888,796,000]
DATE OF POOLING AND SERVICING AGREEMENT: AS OF
NOVEMBER 4, 2002 SERVICER: WACHOVIA BANK, NATIONAL ASSOCIATION
CUT-OFF DATE: AS SET FORTH IN THE POOLING AND SERVICING SPECIAL SERVICER: ARCAP SPECIAL SERVICING, INC.
AGREEMENT (AS DEFINED HEREIN)
TRUSTEE: XXXXX FARGO BANK MINNESOTA, N.A.
CLOSING DATE: NOVEMBER 4, 2002
CERTIFICATE NO.: LR-1-1
FIRST DISTRIBUTION DATE:
DECEMBER 12, 2002
CLASS LR PERCENTAGE INTEREST: 100%
CLASS LR CERTIFICATE
evidencing a beneficial ownership interest in a Trust Fund, consisting primarily
of a pool of commercial and multifamily fixed rate balloon and fully amortizing
mortgage loans (the "Mortgage Loans"), all payments on or collections in respect
of the Mortgage Loans due after the Cut-off Date, all REO Properties and
revenues received in respect thereof, the mortgagee's rights under the Insurance
Policies, any Assignment of Leases, and any guaranties, escrow accounts or other
collateral as security for the Mortgage Loans, and such amounts as shall from
time to time be held in the Certificate Account, the Distribution Accounts, the
Simon Collection Account, the Interest Reserve Account, the Excess Interest
Distribution Account, the Gain on Sale Account and the REO Accounts, formed and
sold by
X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES CORP.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN X.X. XXXXXX
CHASE COMMERCIAL MORTGAGE SECURITIES CORP., THE SERVICER, THE SPECIAL SERVICER,
THE TRUSTEE OR ANY OF THEIR AFFILIATES. NEITHER THIS CERTIFICATE NOR THE
UNDERLYING MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE
UNITED STATES.
THIS CERTIFIES THAT X.X. XXXXXX SECURITIES INC.
is the registered owner of the interest evidenced by this Certificate in the
Class LR Certificates issued by the Trust Fund created pursuant to the Pooling
and Servicing Agreement, dated as of November 4, 2002 (the "Pooling and
Servicing Agreement"), among X.X. XXXXXX XXXXX COMMERCIAL MORTGAGE SECURITIES
CORP. (hereinafter called the "Depositor", which term includes any successor
entity under the Pooling and Servicing Agreement), the Trustee, the Servicer and
the Special Servicer. A summary of certain of the pertinent provisions of the
Pooling and Servicing Agreement is set forth hereafter. To the extent not
defined herein, the capitalized terms used herein shall have the meanings
assigned thereto in the Pooling and Servicing Agreement.
This Certificate is one of a duly authorized issue of
Certificates designated as Certificates of the series specified on the face
hereof (herein called the "Certificates") and representing the percentage
interest in the Class of Certificates specified on the face hereof. The
Certificates are designated as the X.X. XXXXXX CHASE COMMERCIAL MORTGAGE
SECURITIES CORP., Commercial Mortgage Pass-Through Certificates, Series
2002-CIBC5 and are issued in twenty-two classes as specifically set forth in the
Pooling and Servicing Agreement. The Certificates will evidence in the aggregate
100% of the beneficial ownership of the Trust Fund.
This Certificate does not purport to summarize the Pooling and
Servicing Agreement and reference is made to that agreement for information with
respect to the interests, rights, benefits, obligations, proceeds, and duties
evidenced hereby and the rights, duties and obligations of the Trustee. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Certificateholder by
virtue of the acceptance hereof assents and by which the Certificateholder is
bound. In the case of any conflict between terms specified in this Certificate
and terms specified in the Pooling and Servicing Agreement, the terms of the
Pooling and Servicing Agreement shall govern.
This Class LR Certificate is a "residual interest" in a "real
estate mortgage investment conduit," as those terms are defined, respectively,
in Sections 860G(a)(1) and 860D of the Internal Revenue Code of 1986, as
amended. Each Holder of this Certificate, by acceptance hereof, agrees to treat,
and take no action inconsistent with the treatment of, this Certificate in
accordance with the preceding sentence for purposes of federal income taxes,
state and local income and franchise taxes and other taxes imposed on or
measured by income. The Holder of the largest Percentage Interest in the Class
LR Certificates shall be the "tax matters person" for the Lower-Tier REMIC
pursuant to Treasury Regulations Section 1.860F-4(d), and the Servicer is hereby
irrevocably designated and shall serve as attorney-in-fact and agent for any
such Person that is the "tax matters person".
Pursuant to the terms of the Pooling and Servicing Agreement,
distributions, if any, on this Certificate shall be made by the Trustee to the
extent and subject to the limitations set forth in the Pooling and Servicing
Agreement, on the Distribution Date to the Person in whose name this Certificate
is registered as of the related Record Date. All sums distributable on this
Certificate are payable in the coin or currency of the United States of America
as at the time of payment is legal tender for the payment of public and private
debts.
The Certificates are limited in right of payment to, among
other things, certain collections and recoveries respecting the Mortgage Loans,
all as more specifically set forth in the Pooling and Servicing Agreement. As
provided in the Pooling and Servicing Agreement, the Certificate Account and the
Distribution Accounts will be held on behalf of the Trustee on behalf of the
Holders of Certificates specified in the Pooling and Servicing Agreement and the
Servicer (with respect to the Certificate Account) will be authorized to make
withdrawals therefrom. Amounts on deposit in such accounts may be invested in
Permitted Investments. Interest or other income earned on funds in the
Certificate Account will be paid to the Servicer as set forth in the Pooling and
Servicing Agreement. As provided in the Pooling and Servicing Agreement,
withdrawals from the Certificate Account shall be made from time to time for
purposes other than distributions to Certificateholders, such purposes including
reimbursement of certain expenses incurred with respect to the servicing of the
Mortgage Loans and administration of the Trust Fund.
All distributions under the Pooling and Servicing Agreement to
a Class of Certificates shall be made on each Distribution Date (other than the
final distribution on any Certificate) to Certificateholders of record on the
related Record Date by check mailed to the address set forth therefor in the
Certificate Register or, provided that such Certificateholder has provided the
Trustee with wire instructions in writing at least five Business Days prior to
the related Record Date, by wire transfer of immediately available funds to the
account of such Certificateholder at a bank or other entity having appropriate
facilities therefor. The final distribution on this Certificate shall be made in
like manner, but only upon presentment and surrender of this Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution.
Any funds not distributed on the final Distribution Date
because of the failure of Certificateholders to tender their Certificates shall
be set aside and held uninvested in trust for the benefit of the non-tendering
Certificateholders, whereupon the Trust Fund shall terminate. If any
Certificates as to which notice has been given pursuant to Section 4.01(g) of
the Pooling and Servicing Agreement shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
Trustee shall mail a second notice to the remaining non-tendering
Certificateholders to surrender their Certificates for cancellation to receive
the final distribution with respect thereto. If within one year after the second
notice not all of such Certificates shall have been surrendered for
cancellation, the Trustee may, directly or through an agent, take appropriate
steps to contact the remaining non-tendering Certificateholders concerning
surrender of their Certificates. The costs and expenses of holding such funds in
trust and of contacting such Certificateholders shall be paid out of such funds.
No interest shall accrue or be payable to any Certificateholder on any amount
held in trust as a result of such Certificateholder's failure to surrender its
Certificate(s) for final payment thereof in accordance with Section 4.01(g) of
the Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, the transfer of this Certificate is
registerable in the Certificate Register only upon surrender of this Certificate
for registration of transfer at the office of the Certificate Registrar or at
the office of its transfer agent, duly endorsed by, or accompanied by an
assignment in the form below or other written instrument of transfer in form
satisfactory to the Certificate Registrar duly executed by the Holder hereof or
such Holder's attorney-in-fact duly authorized in writing, and thereupon one or
more new Certificates of the same Class in authorized Denominations will be
issued to the designated transferee or transferees.
Each Person who has or who acquires any Ownership Interest in
a 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 Section 5.02(b) of the Pooling and
Servicing Agreement to deliver payments to a Person other than such Person. The
rights of each Person acquiring any Ownership Interest in a Class LR Certificate
are expressly subject to the following provisions: (A) No Person holding or
acquiring any Ownership Interest in a Class LR Certificate shall be a
Disqualified Organization or agent thereof (including a nominee, middleman or
similar person) (an "Agent"), a Plan or a Person acting on behalf of or
investing the assets of a Plan (such Plan or Person, an "ERISA Prohibited
Holder") or a Non-U.S. Person and shall promptly notify the Servicer, the
Trustee and the Certificate Registrar of any change or impending change to such
status; (B) In connection with any proposed Transfer of any Ownership Interest
in a Class LR Certificate, the Certificate Registrar shall require delivery to
it, and no Transfer of any Class LR Certificate shall be registered until the
Certificate Registrar receives, an affidavit substantially in the form attached
to the Pooling and Servicing Agreement as Exhibit D-1 (a "Transfer Affidavit")
from the proposed Transferee, in form and substance satisfactory to the
Certificate Registrar, representing and warranting, among other things, that
such Transferee is not a Disqualified Organization or Agent thereof, an ERISA
Prohibited Holder or a Non-U.S. Person, and that it has reviewed the provisions
of Section 5.02(d) of the Pooling and Servicing Agreement and agrees to be bound
by them; (C) Notwithstanding the delivery of a Transfer Affidavit by a proposed
Transferee under clause (B) above, if the Certificate Registrar has actual
knowledge that the proposed Transferee is a Disqualified Organization or an
Agent thereof, an ERISA Prohibited Holder or a Non-U.S. Person, no Transfer of
an Ownership Interest in a Class LR Certificate to such proposed Transferee
shall be effected; and (D) Each Person holding or acquiring any Ownership
Interest in a Class LR Certificate shall agree (1) to require a Transfer
Affidavit from any prospective Transferee to whom such Person attempts to
transfer its Ownership Interest in such Class LR Certificate and (2) not to
transfer its Ownership Interest in such Class LR Certificate unless it provides
to the Certificate Registrar a letter substantially in the form attached to the
Pooling and Servicing Agreement as Exhibit D-2 (a "Transferor Letter")
certifying that, among other things, it has no actual knowledge that such
prospective Transferee is a Disqualified Organization, an Agent thereof, an
ERISA Prohibited Holder or a Non-U.S. Person.
The Class R and Class LR Certificates will be issued in fully
registered, certificated form, in Denominations representing Percentage
Interests of not less than 20%.
No fee or service charge shall be imposed by the Certificate
Registrar for its services in respect of any registration of transfer or
exchange referred to in Section 5.02 of the Pooling and Servicing Agreement
other than for transfers to Institutional Accredited Investors as provided in
Section 5.02(g) thereof. In connection with any transfer to an Institutional
Accredited Investor, the Transferor shall reimburse the Trust for any costs
(including the cost of the Certificate Registrar's counsel's review of the
documents and any legal opinions, submitted by the transferor or transferee to
the Certificate Registrar as provided in Section 5.02 of the Pooling and
Servicing Agreement) incurred by the Certificate Registrar in connection with
such transfer. The Certificate Registrar may require payment by each transferor
of a sum sufficient to cover any tax, expense or other governmental charge
payable in connection with any such transfer or exchange.
The Depositor, the Trustee, the Servicer, the Special Servicer
and the Certificate Registrar and any of their agents may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and neither the Depositor, the Trustee, the Servicer, the Special Servicer, the
Certificate Registrar nor any such agents shall be affected by any notice to the
contrary.
The Pooling and Servicing Agreement may be amended from time
to time by the Depositor, the Servicer, the Special Servicer and the Trustee,
without the consent of any of the Certificateholders, to cure any ambiguity, to
correct or supplement any provisions therein that may be inconsistent with any
other provisions therein or the Prospectus or the Prospectus Supplement or to
correct any error; to maintain the rating or ratings assigned to each Class of
Certificates by each Rating Agency; to modify, eliminate or add to any
provisions to such extent as is necessary to maintain the qualification of any
of the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan REMIC as a REMIC, or
the Grantor Trust as a grantor trust at all times any Certificate is outstanding
or to avoid or minimize the imposition of any tax, provided, however, an Opinion
of Counsel is obtained to the effect that such action shall not adversely affect
in any material respect the interest of any Certificateholder and such action is
necessary or desirable to avoid such tax; to change the timing and/or nature of
deposits into the Certificate Account, the Simon Collection Account or
Distribution Accounts or REO Account or to change the name in which the
Certificate Account or Simon Collection Account is maintained, provided,
however, that the P&I Advance Date shall not be later than the related
Distribution Date, an Opinion of Counsel is obtained to the effect that such
action shall not adversely affect in any material respect the interest of any
Certificateholder and that such action will not result in the withdrawal,
downgrade or qualification of the then-current rating by any Rating Agency, as
evidenced by a letter from such Rating Agency to such effect; to modify,
eliminate or add to the provisions of Section 5.02(d) of the Pooling and
Servicing Agreement or any other provision thereof restricting transfer of the
Residual Certificates by virtue of their being the REMIC "residual interests,"
and such change shall not, as evidenced by an Opinion of Counsel, cause any of
the Upper-Tier REMIC, the Lower-Tier REMIC, the Loan REMIC or any of the
Certificateholders (other than the Transferor) to be subject to a federal tax
caused by a Transfer to a Person that is a Disqualified Organization or a
Non-U.S. Person; and to make any other provisions with respect to matters or
questions arising under the Pooling and Servicing Agreement which shall not be
materially inconsistent with the provisions of the Pooling and Servicing
Agreement, provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interest of any
Certificateholder not consenting thereto; provided further, that in no event may
any amendment change in any manner the obligations of any Mortgage Loan Seller
without the consent of each Mortgage Loan Seller.
The Pooling and Servicing Agreement may also be amended from
time to time by the Depositor, the Servicer, the Special Servicer and the
Trustee with the consent of the Holders of Certificates representing not less
than 66 2/3% of the aggregate Percentage Interests of each Class of Certificates
affected by the amendment for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of the Pooling and
Servicing Agreement or of modifying in any manner the rights of the
Certificateholders; provided, however, that no such amendment shall:
(i) reduce in any manner the amount of, or delay the timing of,
payments which are required to be distributed on any Certificate without
the consent of such Certificateholder;
(ii) reduce the aforesaid percentage of Certificates of any Class
the Holders of which are required to consent to any such amendment,
without the consent of the Holders of all Certificates of such Class then
outstanding;
(iii) adversely affect the Voting Rights of any Class of
Certificates without the consent of the Holders of such Class then
outstanding;
(iv) change in any manner the obligations of any Mortgage Loan
Seller under a Mortgage Loan Purchase Agreement without the consent of
each Mortgage Loan Seller; or
(v) without the consent of 100% of the Certificateholders or written
confirmation that such amendment would not result in the downgrading,
qualification or withdrawal of ratings assigned to any Class of
Certificates by any Rating Agency, amend the Servicing Standard.
No amendment shall be made to the Pooling and Servicing
Agreement unless the Trustee shall have received an Opinion of Counsel that such
amendment is permitted under the Pooling and Servicing Agreement and will not
cause any of the Upper-Tier REMIC, the Lower-Tier REMIC or the Loan REMIC to
fail to qualify as a REMIC or result in the imposition of a tax on any of the
Upper-Tier REMIC, the Lower-Tier REMIC or the Loan REMIC or cause the Grantor
Trust to fail to qualify as a grantor trust.
The Servicer, the Special Servicer, the Holders of the
Majority of the Controlling Class or the Holders of the Class LR Certificates
may, at their option, upon 60 days' prior notice given to the Trustee and each
of the other parties to the Pooling and Servicing Agreement, to purchase all,
but not less than all, of the Mortgage Loans and all property acquired in
respect of any Mortgage Loan remaining in the Trust Fund, and thereby effect
termination of the Trust Fund and early retirement of the then outstanding
Certificates, on any Distribution Date on which the aggregate Stated Principal
Balances of the Mortgage Loans and any REO Loans remaining in the Trust Fund is
reduced to less than 1% of the aggregate Cut-off Date Principal Balance of all
the Mortgage Loans.
The obligations created by the Pooling and Servicing Agreement
and the Trust Fund created thereby (other than the obligation of the Trustee to
make payments to Certificateholders as provided for in the Pooling and Servicing
Agreement), shall terminate upon reduction of the Certificate Balances of all
the Certificates to zero (including, without limitation, any such final payment
resulting from a termination of the Trust Fund due to a sale of its property)
pursuant to the terms of the Pooling and Servicing Agreement. In no event,
however, will the Trust created by the Pooling and Servicing Agreement 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.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent, by manual signature, this Certificate
shall not be entitled to any benefit under the Pooling and Servicing Agreement
or be valid for any purpose. The Certificate Registrar has executed this
Certificate on behalf of the Trust Fund as Certificate Registrar under the
Pooling and Servicing Agreement and makes no representation or warranty as to
any of the statements contained herein or the validity or sufficiency of the
Certificates or the Mortgage Loans.
THIS CERTIFICATE AND THE POOLING AND SERVICING AGREEMENT SHALL
BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN NEW YORK.
XXXXX FARGO BANK MINNESOTA, N.A.,
not in its individual capacity but solely as
Certificate Registrar under the Pooling and
Servicing Agreement.
By: ___________________________________________
AUTHORIZED SIGNATORY
Dated: November __, 2002
CERTIFICATE OF AUTHENTICATION
THIS IS ONE OF THE CLASS LR CERTIFICATES REFERRED TO IN THE
WITHIN-MENTIONED POOLING AND SERVICING AGREEMENT.
XXXXX FARGO BANK MINNESOTA, N.A.,
AUTHENTICATING AGENT
By: ___________________________________________
AUTHORIZED SIGNATORY
Dated: November __, 2002
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
Certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenant in common UNIF GIFT MIN ACT __________ Custodian
TEN ENT - as tenants by the entireties (Cust)
JT TEN - as joint tenants with rights of Under Uniform Gifts to Minors
survivorship and not as tenants in common Act __________________________
(State)
Additional abbreviations may also be used though not in the above
list.
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto ____________________
________________________________________________________________________________
(Please insert Social Security or other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite name and address of assignee)
________________________________________________________________________________
the within Certificate and does hereby or irrevocably constitute and appoint to
transfer the said Certificate in the Certificate register of the within-named
Trust, with full power of substitution in the premises.
-------------------------------------
NOTICE: The signature to this
Dated:__________________ assignment must correspond with the
name as written upon the face of this
Certificate in every particular
without alteration or enlargement or
any change whatever.
________________________________
SIGNATURE GUARANTEED
The signature must be guaranteed by a commercial bank or trust company or by a
member firm of the New York Stock Exchange or another national securities
exchange. Notarized or witnessed signatures are not acceptable.
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall be made, by wire transfer or otherwise, in
immediately available funds to _________________________________ for the account
of __________________________________ account number _______________ or, if
mailed by check, to _______________________________________. Statements should
be mailed to _______________________________________________________________.
This information is provided by assignee named above, or
______________________________ , as its agent.
EXHIBIT B
MORTGAGE LOAN SCHEDULE
(Available upon request to the Trustee)
EXHIBIT C
FORM OF INVESTMENT REPRESENTATION LETTER
Xxxxx Fargo Bank Minnesota, N.A.
as Certificate Registrar
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: X.X. Xxxxxx Chase Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2002-CIBC5
X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention:
Re: Transfer of X.X. Xxxxxx Chase Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2002-CIBC5
-------------------------------------------------------------------
Ladies and Gentlemen:
This letter is delivered pursuant to Section 5.02 of the Pooling and
Servicing Agreement, dated as of November 4, 2002 (the "Pooling and Servicing
Agreement"), by and among X.X. Xxxxxx Xxxxx Commercial Mortgage Securities
Corp., as Depositor, Wachovia Bank, National Association, as Servicer, ARCap
Special Servicing, Inc., as Special Servicer, and Xxxxx Fargo Bank Minnesota,
N.A., as Trustee, on behalf of the holders of X.X. Xxxxxx Xxxxx Commercial
Mortgage Securities Corp., Commercial Mortgage Pass-Through Certificates, Series
2002-CIBC5 (the "Certificates") in connection with the transfer by
_________________ (the "Seller") to the undersigned (the "Purchaser") of
$_______________ aggregate Certificate Balance of Class ___ Certificates (the
"Certificate"). Capitalized terms used and not otherwise defined herein shall
have the respective meanings ascribed to such terms in the Pooling and Servicing
Agreement.
In connection with such transfer, the Purchaser hereby represents
and warrants to you and the addressees hereof as follows:
1. Check one of the following:*
|_| The Purchaser is not purchasing a Class R or Class LR Certificate
and the Purchaser is an institutional "accredited investor" (an
entity meeting the requirements of Rule 501(a)(1), (2), (3) or (7)
of Regulation D under the Securities Act of 1933, as amended (the
"1933 Act")) and has such knowledge and experience in financial and
business matters as to be capable of evaluating the merits and risks
of its investment in the Certificates, and the Purchaser and any
accounts for which it is acting are each able to bear the economic
risk of the Purchaser's or such account's investment. The Purchaser
is acquiring the Certificates purchased by it for its own account or
for one or more accounts (each of which is an "institutional
accredited investor") as to each of which the Purchaser exercises
sole investment discretion. The Purchaser hereby undertakes to
reimburse the Trust Fund for any costs incurred by it in connection
with this transfer.
|_| The Purchaser is a "qualified institutional buyer" within the
meaning of Rule 144A ("Rule 144A") promulgated under the Securities
Act of 1933, as amended (the "1933 Act") The Purchaser is aware that
the transfer is being made in reliance on Rule 144A, and the
Purchaser has had the opportunity to obtain the information required
to be provided pursuant to paragraph (d)(4)(i) of Rule 144A.
2. The Purchaser's intention is to acquire the Certificate (a) for
investment for the Purchaser's own account or (b) for resale to (i) "qualified
institutional buyers" in transactions under Rule 144A, and not in any event with
the view to, or for resale in connection with, any distribution thereof or (ii)
(other than with respect to a Residual Certificate) to institutional "accredited
investors" meeting the requirements of Rule 501(a)(1), (2), (3) or (7) of
Regulation D promulgated under the 1933 Act, pursuant to any other exemption
from the registration requirements of the 1933 Act, subject in the case of this
clause (ii) to (w) the receipt by the Certificate Registrar of a letter
substantially in the form hereof, (x) the receipt by the Certificate Registrar
of an opinion of counsel acceptable to the Certificate Registrar that such
reoffer, resale, pledge or transfer is in compliance with the 1933 Act, (y) the
receipt by the Certificate Registrar of such other evidence acceptable to the
Certificate Registrar that such reoffer, resale, pledge or transfer is in
compliance with the 1933 Act and other applicable laws and (z) a written
undertaking to reimburse the Trust for any costs incurred by it in connection
with the proposed transfer. The Purchaser understands that the Certificate (and
any subsequent Certificate) has not been registered under the 1933 Act, by
reason of a specified exemption from the registration provisions of the 1933 Act
which depends upon, among other things, the bona fide nature of the Purchaser's
investment intent (or intent to resell to only certain investors in certain
exempted transactions) as expressed herein.
3. The Purchaser has reviewed the Private Placement Memorandum
relating to the Certificates (the "Private Placement Memorandum") and the
agreements and other materials referred to therein and has had the opportunity
to ask questions and receive answers concerning the terms and conditions of the
transactions contemplated by the Private Placement Memorandum.
4. The Purchaser acknowledges that the Certificate (and any
Certificate issued on transfer or exchange thereof) has not been registered or
qualified under the 1933 Act or the securities laws of any State or any other
jurisdiction, and that the Certificate cannot be resold unless it is registered
or qualified thereunder or unless an exemption from such registration or
qualification is available.
5. The Purchaser hereby undertakes to be bound by the terms and
conditions of the Pooling and Servicing Agreement in its capacity as an owner of
a Certificate or Certificates, as the case may be (each, a "Certificateholder"),
in all respects as if it were a signatory thereto. This undertaking is made for
the benefit of the Trust, the Certificate Registrar and all Certificateholders
present and future.
6. The Purchaser will not sell or otherwise transfer any portion of
the Certificate or Certificates, except in compliance with Section 5.02 of the
Pooling and Servicing Agreement.
7. Check one of the following:**
|_| The Purchaser is a U.S. Person (as defined below) and it has
attached hereto an Internal Revenue Service ("IRS") Form W-9 (or
successor form).
|_| The Purchaser is not a U.S. Person and under applicable law in
effect on the date hereof, no taxes will be required to be withheld
by the Trustee (or its agent) with respect to distributions to be
made on the Certificate. The Purchaser has attached hereto [either
(i) a duly executed IRS Form W-8BEN (or successor form), which
identifies such Purchaser as the beneficial owner of the Certificate
and states that such Purchaser is not a U.S. Person or (ii)]*** two
duly executed copies of IRS Form W-8ECI (or successor form), which
identify such Purchaser as the beneficial owner of the Certificate
and state that interest and original issue discount on the
Certificate and Permitted Investments is, or is expected to be,
effectively connected with a U.S. trade or business. The Purchaser
agrees to provide to the Certificate Registrar updated [IRS Forms
W-8BEN or]*** IRS Forms W-8ECI, [as the case may be,]*** any
applicable successor IRS forms, or such other certifications as the
Certificate Registrar may reasonably request, on or before the date
that any such IRS form or certification expires or becomes obsolete,
or promptly after the occurrence of any event requiring a change in
the most recent IRS form of certification furnished by it to the
Certificate Registrar.
For this purpose, "U.S. Person" means a citizen or resident of the United
States, a corporation or partnership (except to the extent provided in
applicable Treasury Regulations) or other entity created or organized in, or
under the laws of, the United States, any State or the District of Columbia,
including any entity treated as a corporation or partnership for federal income
tax purposes, an estate whose income is subject to United States federal income
tax regardless of its source or a trust if a court within the United States is
able to exercise primary supervision over the administration of such trust, and
one or more such U.S. Persons have the authority to control all substantial
decisions of such trust (or, to the extent provided in applicable Treasury
Regulations, certain trusts in existence on August 20, 1996 which are eligible
to elect to be treated as U.S. Persons).
8. Please make all payments due on the Certificates:****
|_| (a) by wire transfer to the following account at a bank or entity
in New York, New York, having appropriate facilities therefor:
Bank:_________________________________________________
ABA#:_________________________________________________
Account #:____________________________________________
Attention:____________________________________________
|_| (b) by mailing a check or draft to the following address:
______________________________________________________
______________________________________________________
______________________________________________________
[9. The Purchaser is not a partnership (or any entity treated as a
partnership for U.S. federal income tax purposes), any interest in which is
owned, directly or indirectly, through one or more partnerships, trusts or other
pass-through entities, by a non-U.S. Person.]*****
Very truly yours,
________________________________
[The Purchaser]
By:______________________________
Name:
Title:
Dated:
--------------------
* Purchaser must include one of the following two certifications.
** Each Purchaser must include one of the two alternative certifications.
*** Does not apply to a transfer of Class R or Class LR Certificates.
**** Only to be filled out by Purchasers of Definitive Certificates. Please
select (a) or (b). For holders of Definitive Certificates, wire transfers are
only available if such holder's Definitive Certificates have an aggregate
Certificate Balance or Notional Amount, as applicable, of at least U.S.
$5,000,000.
***** Applies to a transfer of Class R or Class LR Certificates only.
EXHIBIT D-1
FORM OF TRANSFER AFFIDAVIT
AFFIDAVIT PURSUANT TO
SECTION 860E(e)(4) OF THE
INTERNAL REVENUE CODE
OF 1986, AS AMENDED
STATE OF )
) ss:
COUNTY OF )
[NAME OF OFFICER], being first duly sworn, deposes and says:
1. That [he] [she] is [Title of Officer] of [Name of Transferee]
(the "Transferee"), a [description of type of entity] duly organized and
existing under the laws of the [State of __________] [United States], on behalf
of which he makes this affidavit.
2. That the Transferee's Taxpayer Identification Number is [ ].
3. That the Transferee of a X.X. Xxxxxx Xxxxx Commercial Mortgage
Securities Corp., Commercial Mortgage Pass-Through Certificates, Series
2002-CIBC5, Class [R] [LR] Certificate (the "Class [R] [LR] Certificate") is not
a Disqualified Organization (as defined below) or an agent thereof (including
nominee, middleman or other similar person) (an "Agent"), an ERISA Prohibited
Holder or a Non-U.S. Person (as defined below). For these purposes, a
"Disqualified Organization" means any of (i) the United States, any State or
political subdivision thereof, any possession of the United States, or any
agency or instrumentality of any of the foregoing (other than an instrumentality
which is a corporation if all of its activities are subject to tax and, majority
of its board of directors is not selected by such governmental unit), (ii) a
foreign government, any international organization, or any agency or
instrumentality of any of the foregoing, (iii) any organization (other than
certain farmers' cooperatives described in Section 521 of the Code) which is
exempt from the tax imposed by Chapter 1 of the Code (including the tax imposed
by Section 511 of the Code on unrelated business taxable income), (iv) rural
electric and telephone cooperatives described in Section 1381(a)(2)(C) of the
Code and (v) any other Person so designated by the Servicer based upon an
Opinion of Counsel that the holding of an Ownership Interest in a Residual
Certificate by such Person may cause either of the Upper-Tier REMIC or the
Lower-Tier REMIC to fail to qualify as a REMIC or any Person having an Ownership
Interest in any Class of Certificates (other than such Person) to incur a
liability for any federal tax imposed under the Code that would not otherwise be
imposed but for the Transfer of an Ownership Interest in a Residual Certificate
to such Person. The terms "United States," "State" and "international
organization" shall have the meanings set forth in Section 7701 of the Code or
successor provisions. For these purposes, "ERISA Prohibited Holder" means an
employee benefit plan subject to Section 406 of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), or section 4975 of the Code or a
governmental plan (as defined in Section 3(32) of ERISA) subject to any federal,
state or local law which is, to a material extent, similar to the foregoing
provisions of ERISA or the Code (each, a "Plan") or a person acting on behalf of
or investing the assets of such a Plan. For these purposes, "Non-U.S. Person"
means any person other than a U.S. Person (within the meaning of Section
7701(a)(30) of the Code), unless, with respect to the Transfer of a Residual
Certificate, (i) such person holds such Residual Certificate in connection with
the conduct of a trade or business within the United States and furnishes the
Transferor and the Certificate Registrar with an effective Internal Revenue
Service Form W-8ECI or (ii) the Transferee delivers to both the Transferor and
the Certificate Registrar an opinion of a nationally recognized tax counsel to
the effect that such Transfer is in accordance with the requirements of the Code
and the regulations promulgated thereunder and that such Transfer of the
Residual Certificate will not be disregarded for federal income tax purposes;
provided, that a partnership (including any entity treated as a partnership for
U.S. federal income tax purposes) shall be considered a Non-U.S. Person (and
clause (i) of this sentence shall not apply) if any of its interests are owned,
directly or indirectly, through one or more partnerships, trusts or other
pass-through entities, by any person that is not a U.S. Person.
4. That the Transferee historically has paid its debts as they have
come due and intends to pay its debts as they come due in the future and the
Transferee intends to pay taxes associated with holding the Class [R] [LR]
Certificate as they become due.
5. That the Transferee understands that it may incur tax liabilities
with respect to the Class [R] [LR] Certificate in excess of any cash flow
generated by the Class [R] [LR] Certificate.
6. That the Transferee agrees not to transfer the Class [R] [LR]
Certificate to any Person or entity unless (a) the Transferee has received from
such Person or entity an affidavit substantially in the form of this Transfer
Affidavit and (b) the Transferee provides to the Certificate Registrar a letter
substantially in the form of Exhibit D-2 to the Pooling and Servicing Agreement
certifying that it has no actual knowledge that such Person or entity is a
Disqualified Organization or an Agent thereof, an ERISA Prohibited Holder or a
Non-U.S. Person and that it has no reason to know that such Person or entity
does not satisfy the requirements set forth in paragraph 4 hereof.
7. That the Transferee agrees to such amendments of the Pooling and
Servicing Agreement, dated as of November 4, 2002 (the "Pooling and Servicing
Agreement") among X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp., as
Depositor, Wachovia Bank, National Association, as Servicer, ARCap Special
Servicing, Inc., as Special Servicer, and Xxxxx Fargo Bank Minnesota, N.A., as
Trustee, as may be required to further effectuate the restrictions on transfer
of the Class [R] [LR] Certificate to such a Disqualified Organization or an
Agent thereof, an ERISA Prohibited Holder or a Non-U.S. Person. To the extent
not defined herein, the capitalized terms used herein shall have the meanings
assigned thereto in the Pooling and Servicing Agreement.
8. That, if a "tax matters person" is required to be designated with
respect to the [Upper-Tier REMIC] [Lower-Tier REMIC], the Transferee agrees to
act as "tax matters person" and to perform the functions of "tax matters person"
of the [Upper-Tier REMIC] [Lower-Tier REMIC] pursuant to Section 10.01(c) of the
Pooling and Servicing Agreement, and agrees to the irrevocable designation of
the Trustee as the Transferee's agent in performing the function of "tax matters
person."
9. The Transferee has reviewed, and agrees to be bound by and to
abide by, the provisions of Section 5.02(d) of the Pooling and Servicing
Agreement concerning registration of the transfer and exchange of Class [R] [LR]
Certificates.
10. Check the applicable paragraph:
|_| The Transferee has computed any consideration paid to us to acquire
the Class [R][LR] Certificate in accordance with proposed U.S. Treasury
Regulations Sections 1.860E-1(a)(4)(iii) and 1.860E-1(c)(5) (or, after they have
been finalized, the final regulations) by computing present values using a
discount rate equal to the applicable Federal rate prescribed by Section 1274(d)
of the Code compounded semi-annually.
|_| The Transferee has computed any consideration paid to us to acquire
the Class [R][LR] Certificate in accordance with proposed U.S. Treasury
Regulations Sections 1.860E-1(a)(4)(iii) and 1.860E-1(c)(5) (or, after they have
been finalized, the final regulations) by computing present values using a
discount rate at least equal to the rate at which the Transferee regularly
borrows, in the ordinary course of its trade or business, substantial funds from
unrelated third parties. The Transferee has provided all information necessary
to demonstrate to the transferor that the Transferee regularly borrows at such
rate.
|_| The transfer of the Class [R][LR] Certificate complies with
Section 6 of Revenue Procedure 2001-12 (the "Revenue Procedure"), 2001-3 I.R.B.
335 (January 16, 2001) (or comparable provisions of applicable final U.S.
Treasury Regulations) and, accordingly:
(i) the Transferee is an "eligible corporation," as defined in
section 860L(a)(2) of the Code, as to which income from the Class [R][RL]
Certificate will only be taxed in the United States;
(ii) at the time of the transfer, and at the close of the
Transferee's two fiscal years preceding the year of the transfer, the
Transferee had gross assets for financial reporting purposes (excluding
any obligation of a person related to the Transferee within the meaning of
Section 860L(g) of the Code) in excess of $100 million and net assets in
excess of $10 million;
(iii) the Transferee will transfer the Class [R][RL] Certificate
only to another "eligible corporation," as defined in Section 860L(a)(2)
of the Code, in a transaction that satisfies the requirements of Section 4
of the Revenue Procedure;
(iv) the Transferee determined the consideration paid to it to
acquire the Class [R][LR] Certificate based on reasonable market
assumptions (including, but not limited to, borrowing and investment
rates, prepayment and loss assumptions, expense and reinvestment
assumptions, tax rates and other factors specific to the transfer) that
the Transferee has determined in good faith.
|_| Not applicable.
IN WITNESS WHEREOF, the Transferee has caused this instrument to be
executed on its behalf, by its [Title of Officer] this _____ day of __________,
20__.
[NAME OF TRANSFEREE]
By:____________________________________
[Name of Officer]
[Title of Officer]
Personally appeared before me the above-named [Name of Officer],
known or proved to me to be the same person who executed the foregoing
instrument and to be the [Title of Officer] 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 __________, 20__.
______________________________
NOTARY PUBLIC
COUNTY OF ____________________
STATE OF ____________________
My commission expires the ___ day of __________, 20__.
EXHIBIT D-2
FORM OF TRANSFEROR LETTER
[Date]
Xxxxx Fargo Bank Minnesota, N.A.
as Authenticating Agent and Certificate Registrar
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust - CMBS
X.X. Xxxxxx Chase Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2002-CIBC5
Re: X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates,
Series 2002-CIBC5
-------------------------------------------------------
Ladies and Gentlemen:
[Transferor] has reviewed the attached affidavit of [Transferee],
and has no actual knowledge that such affidavit is not true and has no reason to
know that the requirements set forth in paragraph 3 thereof are not satisfied
or, after conducting a reasonable investigation of the financial condition of
the transferee, that the information contained in paragraph 3 thereof is not
true.
Very truly yours,
[Transferor]
______________________________
EXHIBIT E
REQUEST FOR RELEASE
__________ [Date]
Xxxxx Fargo Bank Minnesota, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Mortgage Document Custody (CMBS)
Re: X.X. Xxxxx Commercial Mortgage Securities Corp,
Commercial Mortgage Pass-Through Certificates,
Series 2002-CIBC5, REQUEST FOR RELEASE
-----------------------------------------------
Dear _______________________,
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 November 4, 2002 (the "Pooling and Servicing Agreement"), by and
among X.X. Xxxxxx Chase Commercial Mortgage Securities Corp., as Depositor,
Wachovia Bank, National Association, as Servicer, ARCap Special Servicing, Inc.,
as Special Servicer, and you, as Trustee, the undersigned hereby requests a
release of the Mortgage File (or the portion thereof specified below) held by or
on behalf of you as Trustee with respect to the following described Mortgage
Loan for the reason indicated below.
Mortgagor's Name:
Address:
Loan No.:
If only particular documents in the Mortgage File are requested, please specify
which:
Reason for requesting file (or portion thereof):
______ 1. Mortgage Loan paid in full. The [Servicer]
[Special Servicer] hereby certifies that all
amounts received in connection with the Mortgage
Loan have been or will be credited to the
Certificate Account pursuant to the Pooling and
Servicing Agreement.
______ 2. The Mortgage Loan is being foreclosed.
______ 3. Other. (Describe)
The undersigned acknowledges that the above Mortgage File (or
requested portion thereof) will be held by the undersigned in accordance with
the provisions of the Pooling and Servicing Agreement and will be returned to
you or your designee within ten (10) days of our receipt thereof, unless the
Mortgage Loan has been paid in full, in which case the Mortgage File (or such
portion thereof) will be retained by us permanently, or 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.
[SERVICER] [SPECIAL SERVICER]
By:____________________________________
Name:_______________________________
Title:______________________________
EXHIBIT F
FORM OF ERISA REPRESENTATION LETTER
Xxxxx Fargo Bank Minnesota, N.A.
as Certificate Registrar
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: X.X. Xxxxxx Chase Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2002-CIBC5
X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention:
Re: Transfer of X.X. Xxxxxx Chase Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2002-CIBC5
Ladies and Gentlemen:
The undersigned (the "Purchaser") proposes to purchase $____________
initial Certificate Balance of X.X. Xxxxxx Xxxxx Commercial Mortgage Securities
Corp., Commercial Mortgage Pass-Through Certificates, Series 2002-CIBC5, Class
__ (the "Certificate") issued pursuant to that certain Pooling and Servicing
Agreement, dated as of November 4, 2002 (the "Pooling and Servicing Agreement"),
by and among X.X. Xxxxxx Chase Commercial Mortgage Securities Corp., as
depositor (the "Depositor"), Wachovia Bank, National Association, as servicer
(the "Servicer"), ARCap Special Servicing, Inc., as special servicer (the
"Special Servicer"), and Xxxxx Fargo Bank Minnesota, N.A., as trustee (the
"Trustee"). Capitalized terms used and not otherwise defined herein have the
respective meanings ascribed to such terms in the Pooling and Servicing
Agreement.
In connection with such transfer, the undersigned hereby represents
and warrants to you as follows:
1. The Purchaser is not (a) an employee benefit plan subject to the
fiduciary responsibility provisions of 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 a governmental plan (as defined in Section
3(32) of ERISA) subject to any federal, state or local law ("Similar Law") which
is, to a material extent, similar to the foregoing provisions of ERISA or the
Code (each, a "Plan") or (b) a person acting on behalf of or using the assets of
any such Plan (including an entity whose underlying assets include Plan assets
by reason of investment in the entity by such a Plan or Plans and the
application of Department of Labor Regulation ss. 2510.3-101), other than an
insurance company using the assets of its general account under circumstances
whereby the purchase and holding of Offered Private Certificates by such
insurance company would be exempt from the prohibited transaction provisions of
ERISA and the Code under Sections I and III of Prohibited Transaction Class
Exemption 95-60.
2. The Purchaser understands that if the Purchaser is a Person
referred to in 1(a) or (b) above, such Purchaser is required to provide to the
Certificate Registrar an opinion of counsel in form and substance satisfactory
to the Certificate Registrar and the Depositor to the effect that the
acquisition and holding of such Certificate by such purchaser or transferee will
not result in the assets of the Trust Fund being deemed to be "plan assets" and
subject to the fiduciary responsibility provisions of ERISA, the prohibited
transaction provisions of the Code or the provisions of any Similar Law,
(without regard to the identity or nature of the other Holders of Certificates
of any Class) will not constitute or result in a "prohibited transaction" within
the meaning of ERISA, Section 4975 of the Code or any Similar Law, and will not
subject the Trustee, the Certificate Registrar, the Servicer, the Special
Servicer or the Depositor to any obligation or liability (including obligations
or liabilities under ERISA, Section 4975 of the Code or any such Similar Law) in
addition to those set forth in the Pooling and Servicing Agreement, which
Opinion of Counsel shall not be at the expense of the Depositor, the Servicer,
the Special Servicer, the Trustee, the Certificate Registrar or the Trust Fund.
IN WITNESS WHEREOF, the Purchaser hereby executes this ERISA
Representation Letter on the ___ day of _____________, 2002.
Very truly yours,
_________________________________________
[The Purchaser]
By:______________________________________
Name:
Title:
EXHIBIT G
FORM OF STATEMENT TO CERTIFICATEHOLDERS
[SEE ANNEX C TO PROSPECTUS SUPPLEMENT]
EXHIBIT H
OMNIBUS ASSIGNMENT
------------------
[NAME OF CURRENT ASSIGNOR] having an address at [ADDRESS OF CURRENT
ASSIGNOR] (the "Assignor") for good and valuable consideration, the receipt and
sufficiency of which are acknowledged, hereby sells, transfers, assigns,
delivers, sets over and conveys, without recourse, representation or warranty,
express or implied, unto "Xxxxx Fargo Bank Minnesota, N.A., as trustee for the
registered holders of X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2002-CIBC5" (the
"Assignee"), having an office at 0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx
00000, Attn: Corporate Trust Administrator/ X.X. Xxxxxx Chase Commercial
Mortgage Securities Corp., Series 2002-CIBC5, its successors and assigns, all
right, title and interest of the Assignor in and to:
That certain mortgage and security agreement, deed of trust and security
agreement, deed to secure debt and security agreement, or similar security
instrument (the "Security Instrument"), and that certain Promissory Note (the
"Note"), for each of the Mortgage Loans shown on the Mortgage Loan Schedule
attached hereto as Exhibit B, and that certain assignment of leases and rents
given in connection therewith and all of the Assignor's right, title and
interest in any claims, collateral, insurance policies, certificates of deposit,
letters of credit, escrow accounts, performance bonds, demands, causes of action
and any other collateral arising out of and/or executed and/or delivered in or
to or with respect to the Security Instrument and the Note, together with any
other documents or instruments executed and/or delivered in connection with or
otherwise related to the Security Instrument and the Note.
IN WITNESS WHEREOF, the Assignor has executed this instrument under
seal to be effective as of the [__] day of [_____________], 2002.
[NAME OF CURRENT ASSIGNOR]
By: ____________________________________
Name:
Title:
EXHIBIT I
FORM OF REGULATION S TRANSFER CERTIFICATE
DURING RESTRICTED PERIOD
Xxxxx Fargo Bank Minnesota, N.A.
as Certificate Registrar
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: X.X. Xxxxxx Chase Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2002-CIBC5
X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention:
Re: Transfer of X.X. Xxxxxx Chase Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2002-CIBC5
Class ___
Ladies and Gentlemen:
This certificate is delivered pursuant to Section 5.2(b) of the
Pooling and Servicing Agreement, dated as of November 4, 2002 (the "Pooling and
Servicing Agreement"), by and among X.X. Xxxxxx Xxxxx Commercial Mortgage
Securities Corp., as Depositor, Wachovia Bank, National Association, as
Servicer, ARCap Special Servicing, Inc., as Special Servicer, and Xxxxx Fargo
Bank Minnesota, N.A., as Trustee, on behalf of the holders of X.X. Xxxxxx Xxxxx
Commercial Mortgage Securities Corp., Commercial Mortgage Pass-Through
Certificates, Series 2002-CIBC5, Class __ (the "Certificates") in connection
with the transfer by the undersigned (the "Transferor") to _________________
(the "Transferee") of $__________________ [Certificate Balance] [Notional
Amount]of Certificates, in fully registered form (each, an "Definitive
Certificate"), or a beneficial interest of such aggregate [Certificate Balance]
[Notional Amount] in the Regulation S Book-Entry Certificate (the "Book-Entry
Certificate") maintained by The Depository Trust Company or its successor as
Depositary under the Pooling and Servicing Agreement (such transferred interest,
in either form, being the "Transferred Interest").
In connection with such transfer, the Transferor does hereby certify
that such transfer has been effected in accordance with the transfer
restrictions set forth in the Pooling and Servicing Agreement and the
Certificates and (i) with respect to transfers made in accordance with
Regulation S ("Regulation S") promulgated under the Securities Act of 1933, as
amended (the "Securities Act"), the Transferor does hereby certify that:
(1) the offer of the Transferred Interest was not made to a person
in the United States;
(2) [at the time the buy order was originated, the Transferee was
outside the United States or the Transferor and any person acting on
its behalf reasonably believed that the Transferee was outside the
United States] [the transaction was executed in, on or through the
facilities of a designated offshore securities market and neither
the undersigned nor any person acting on its behalf knows that the
transaction was pre-arranged with a buyer in the United States];*
(3) the transferee is not a U.S. Person within the meaning of Rule
902(o) of Regulation S nor a person acting for the account or
benefit of a U.S. Person, and upon completion of the transaction,
the Transferred Interest will be held with the Depository through
[Euroclear] [Clearstream];**
(4) no directed selling efforts have been made in contravention of
the requirements of Rule 903(b) or Rule 904(b) of Regulation S, as
applicable; and
(5) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Depositor, the Trustee, the Servicer and the
Special Servicer.
[Name of Transferor]
By:____________________________________
Name:
Title:
Dated:
------------------------------
* Insert one of these two provisions, which come from the definition of
"off-shore transaction" in Regulation S.
** Select appropriate depository.
EXHIBIT I-2
FORM OF REGULATION S TRANSFER CERTIFICATE
AFTER RESTRICTED PERIOD
Xxxxx Fargo Bank Minnesota, N.A.
as Certificate Registrar
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2002-CIBC5
X.X. Xxxxxx Chase Commercial Mortgage Securities Corp.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention:
Re: Transfer of X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2002-CIBC5
Class ___
Ladies and Gentlemen:
This certificate is delivered pursuant to Section 5.2(b) the Pooling
and Servicing Agreement, dated as of November 4, 2002 (the "Pooling and
Servicing Agreement"), by and among X.X. Xxxxxx Chase Commercial Mortgage
Securities Corp., as Depositor, Wachovia Bank, National Association, as
Servicer, ARCap Special Servicing, Inc., as Special Servicer, and Xxxxx Fargo
Bank Minnesota, N.A., as Trustee, on behalf of the holders of X.X. Xxxxxx Chase
Commercial Mortgage Securities Corp., Commercial Mortgage Pass-Through
Certificates, Series 2002-CIBC5, Class __ (the "Certificates") in connection
with the transfer by the undersigned (the "Transferor") to _________________
(the "Transferee") of $__________________ [Certificate Balance][Notional Amount]
of Certificates, in fully registered form (each, an "Definitive Certificate"),
or a beneficial interest of such aggregate [Certificate Balance][Notional
Amount] in the Regulation S Book-Entry Certificate (the "Book-Entry
Certificate") maintained by The Depository Trust Company or its successor as
Depositary under the Pooling and Servicing Agreement (such transferred interest,
in either form, being the "Transferred Interest").
In connection with such transfer, the Transferor does hereby certify
that such transfer has been effected in accordance with the transfer
restrictions set forth in the Pooling and Servicing Agreement and the
Certificates and (i) with respect to transfers made in accordance with
Regulation S ("Regulation S") promulgated under the Securities Act of 1933, as
amended (the "Securities Act"), the Transferor does hereby certify that:
(1) the offer of the Transferred Interest was not made to a person
in the United States;
(2) [at the time the buy order was originated, the Transferee was
outside the United States or the Transferor and any person acting on
its behalf reasonably believed that the Transferee was outside the
United States] [the transaction was executed in, on or through the
facilities of a designated offshore securities market and neither
the undersigned nor any person acting on its behalf knows that the
transaction was pre-arranged with a buyer in the United States];*
(3) no directed selling efforts have been made in contravention of
the requirements of Rule 903(b) or Rule 904(b) of Regulation S, as
applicable; and
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act,
or (ii) with respect to transfers made in reliance on Rule 144 under the
Securities Act, the Transferor does hereby certify that the Certificates that
are being transferred are not "restricted securities" as defined in Rule 144
under the Securities Act.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Depositor, the Trustee, the Servicer and the
Special Servicer.
[Name of Transferor]
By:____________________________________
Name:
Title:
Dated:
----------------------------
* Insert one of these two provisions, which come from the definition of
"off-shore transaction" in Regulation S.
EXHIBIT J
FORM OF PURCHASE OPTION NOTICE
Xxxxx Fargo Bank Minnesota, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: X.X. Xxxxxx Chase Commercial Mortgage Corporation
Commercial Mortgage Pass-Through Certificates, Series 2002-CIBC5
Wachovia Bank, National Association
NC 1075, 0000 Xxxxxxxx Xxxxx XXX0
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
JPMorgan Chase Bank
0 Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: X.X. Xxxxxx Chase Commercial Mortgage Corporation
Commercial Mortgage Pass-Through Certificates, Series 2002-CIBC5
Ladies and Gentlemen:
The undersigned hereby acknowledges that it is the holder of an
assignable option (the "Purchase Option") to purchase Mortgage Loan number ____
from the Trust Fund, pursuant to Section 3.18 of the pooling and servicing
agreement (the "Pooling and Servicing Agreement"), dated as of November 4, 2002,
by and among X.X. Xxxxxx Xxxxx Commercial Mortgage Corporation, as depositor
(the "Depositor"), Wachovia Bank, National Association, as servicer (the
"Servicer"), ARCap Special Servicing, Inc., as special servicer (the "Special
Servicer"), and Xxxxx Fargo Bank Minnesota, N.A., as trustee (the "Trustee").
Capitalized terms used herein and not otherwise defined shall have the meaning
set forth in the Pooling and Servicing Agreement.
The undersigned, holder of the Purchase Option (the "Option
Holder"), [is the Controlling Class Certificateholder] [acquired its Purchase
Option from the Controlling Class Certificateholder on ___________] [is the
Special Servicer] [acquired its Purchase Option from the Special Servicer].
The undersigned Option Holder is exercising its Purchase Option at
the cash price of $______________, which amount equals or exceeds the Option
Price, as defined in Section 3.18(a)(ii) of the Pooling and Servicing Agreement.
Within ten (10) Business Days of its receipt of the Servicer's notice confirming
that the exercise of its Purchase Option is effective, [the undersigned Option
Holder] [______________, an Affiliate of the undersigned Option Holder] will
deliver the Option Price to or at the direction of the Servicer in exchange for
the release of the Mortgage Loan, the related Mortgaged Property and delivery of
the related Mortgage File.
The undersigned Option Holder agrees that it shall prepare and
provide the Servicer with such instruments of transfer or assignment, in each
case without recourse, as shall be reasonably necessary to vest in it or its
designee the ownership of Mortgage Loan [__], together with such other documents
or instruments as the Servicer shall reasonably require to consummate the
purchase contemplated hereby.
The undersigned Option Holder acknowledges and agrees that its
exercise of its Purchase Option Notice may not be revoked and, further, that
upon receipt of the Servicer' notice confirming that the exercise of its
Purchase Option is effective, the undersigned Option Holder, or its designee,
shall be obligated to close its purchase of Mortgage Loan ___ in accordance with
the terms and conditions of this letter and of the Pooling and Servicing
Agreement.
Very truly yours,
[Option Holder]
By:
Name:
Title:
[By signing this letter in the space provided below, the
[Controlling Class Certificateholder] [Special Servicer] hereby acknowledges and
affirms that it transferred its Purchase Option to the Option Holder identified
above on [_________].
[_______________________]
By:______________________
Name:
Title:]
EXHIBIT K
FORM OF TRANSFER CERTIFICATE FOR
FROM RULE 144A BOOK-ENTRY CERTIFICATE TO REGULATION S
BOOK-ENTRY CERTIFICATE DURING THE RESTRICTED PERIOD
(PURSUANT TO SECTION 5.2(B) OF THE POOLING AND SERVICING AGREEMENT)
Xxxxx Fargo Bank Minnesota, N.A.
as Certificate Registrar
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: X.X. Xxxxxx Chase Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2002-CIBC5
X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention:
Re: Transfer of X.X. Xxxxxx Chase Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2002-CIBC5
Class __
Ladies and Gentlemen:
Reference is hereby made to the Pooling and Servicing Agreement,
dated as of November 4, 2002 (the "Pooling and Servicing Agreement"), by and
among X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp., as Depositor,
Wachovia Bank, National Association, as Servicer, ARCap Special Servicing, Inc.,
as Special Servicer, and Xxxxx Fargo Bank Minnesota, N.A., as Trustee, on behalf
of the holders of X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2002-CIBC5. Capitalized
terms used but not defined herein shall have the meanings given to them in the
Pooling and Servicing Agreement.
This letter relates to US $[_______] aggregate [Certificate
Balance][Notional Amount] of Certificates (the "Certificates") which are held in
the form of the Rule 144A Book-Entry Certificate (CUSIP No. _________) with the
Depository in the name of [insert name of transferor] (the "Transferor"). The
Transferor has requested a transfer of such beneficial interest for an interest
in the Regulation S Book-Entry Certificate (CUSIP No. __________) to be held
with [Euroclear] [CEDEL]* (Common Code No.____________) through the Depositary.
In connection with such request and in respect of such Certificates,
the Transferor does hereby certify that such transfer has been effected in
accordance with the transfer restrictions set forth in the Pooling and Servicing
Agreement and pursuant to and in accordance with Regulation S under the
Securities Act of 1933, as amended (the "Securities Act"), and accordingly the
Transferor does hereby certify that:
(1) the offer of the Certificates was not made to a person in the
United States,
(2) [at the time the buy order was originated, the transferee was
outside the United States or the Transferor and any person acting on
its behalf reasonably believed that the transferee was outside the
United States] [the transaction was executed in, on or through the
facilities of a designated offshore securities market and neither
the transferor nor any person acting on its behalf knows that the
transaction was pre-arranged with a buyer in the United States],*
(3) the transferee is not a U.S. Person within the meaning of Rule
902(o) of Regulation S nor a Person acting for the account or
benefit of a U.S. Person,
(4) no directed selling efforts have been made in contravention of
the requirements of Rule 903(b) or Rule 904(b) of Regulation S, as
applicable,
(5) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act, and
(6) upon completion of the transaction, the beneficial interest
being transferred as described above will be held with the
Depository through [Euroclear] [Clearstream].*
This certificate and the statements contained herein are made for
your benefit and the benefit of the Depositor, the Trustee, the Servicer and the
Special Servicer.
[Insert Name of Transferor]
By:____________________________________
Name:
Title:
Dated:
------------------------------
* Select appropriate depository.
** Insert one of these two provisions, which come from the definition of
"off-shore transaction" in Regulation S.
EXHIBIT L
[RESERVED]
EXHIBITS M THROUGH M-13
FORM OF CMSA REPORTING PACKAGE
(Available upon request to the Trustee)
EXHIBIT M-14
STANDARD WATCHLIST CRITERIA (DRAFTED BY CMSA WATCHLIST
SUB-COMMITTEE)
PROPERTY TYPE: GENERAL
---------------------------------------------------------------------------------------------------------------------
REFERENCE
---------------------------------------------------------------------------------------------------------------------
CODE CRITERIA TRIGGER LEVEL ON TRIGGER LEVEL OFF
---------------------------------------------------------------------------------------------------------------------
FINANCIAL CONDITIONS
---------------------------------------------------------------------------------------------------------------------
1 A Delinquent Payments 2 payments 3 payments received
---------------------------------------------------------------------------------------------------------------------
1 B Delinquent Taxes (Amount, Uncured x days, etc.) 30 days after delinquent Taxes paid in full by
due date the borrower
---------------------------------------------------------------------------------------------------------------------
1 C Delinquent or Forced Placed Insurance Delinquent-Day after Due Insurance is paid in
and FP is immediately full by the borrower
---------------------------------------------------------------------------------------------------------------------
1 D Outstanding servicing advances (excludes P & I) (greater than) 30 days No outstanding servicing
advances
---------------------------------------------------------------------------------------------------------------------
1 E DSCR (less than equal to) 1.10x (greater than) 1.10x
(other than CTLs, [Lodging and Healthcare
(less than) 1.0 x) [Lodging would be (greater than)
and Healthcare would be 1.20x] (CTLs (greater
(less than equal to) 1.20x] than equal to) 1.0 x)
---------------------------------------------------------------------------------------------------------------------
1 F DSCR decrease from Origination (less than equal to) 1.50x (greater than) 85%
and (less than equal to) of UW DSCR
85% of UW DSCR
---------------------------------------------------------------------------------------------------------------------
1 G Defaulted or matured senior lien Immediately Cured
---------------------------------------------------------------------------------------------------------------------
1 H Any unplanned draw on a Letter of Credit or any Immediately Letter of Credit or debt
unplanned draw on a reserve to pay debt service service reserve is
unless the draw on the Letter if Credit or reserve restored (if applicable)
is permitted due to the seasonal nature of the and the borrower has
related property. made three consecutive
payments.
---------------------------------------------------------------------------------------------------------------------
BORROWER ISSUES
---------------------------------------------------------------------------------------------------------------------
2 A Required repairs not finished by due date 30 Days after due Date Completion of required
repairs
---------------------------------------------------------------------------------------------------------------------
2 B O & M plan deficiencies Immediately Cure deficiencies
---------------------------------------------------------------------------------------------------------------------
2 C Occurrence of trigger event in documents Immediately Cure of the event that
required action under
the mortgage loan
documents, or satisfying
such mortgage loan
provisions or after 6
consecutive monthly
payments
---------------------------------------------------------------------------------------------------------------------
2 D Failure to remit operating statements or rent rolls 60 days after the time Statement received or
period provided in the next statement frequency
loan documents received that covers
period of missing
statement.
---------------------------------------------------------------------------------------------------------------------
2 E Ground lease default Immediately Cured
---------------------------------------------------------------------------------------------------------------------
2 F Expiration of groundlease within 6 months Immediately New lease or option has
been exercised
---------------------------------------------------------------------------------------------------------------------
2 G Franchise default or operating license default Immediately New franchise or license
in place
---------------------------------------------------------------------------------------------------------------------
2 H Poor Survey for Skilled Care or Assisted Living Immediately Cured
Facility
---------------------------------------------------------------------------------------------------------------------
PROPERTY CONDITION ISSUES
---------------------------------------------------------------------------------------------------------------------
4 A Prohibited collateral inspection access Immediately Site inspection is
completed
---------------------------------------------------------------------------------------------------------------------
4 B Inspection reveals below average, poor or Immediately Cure problem indicated
unsatisfactory condition by the inspection
---------------------------------------------------------------------------------------------------------------------
4 C Inspection reveals potentially harmful Immediately Cure problem indicated
environmental issue by the inspection
---------------------------------------------------------------------------------------------------------------------
4 D Property affected by major casualty or condemnation Immediately Cured (transferred to SS
proceeding affecting future cashflows or payoff)
---------------------------------------------------------------------------------------------------------------------
LEASE ROLLOVER, TENANT ISSUES AND VACANCY
---------------------------------------------------------------------------------------------------------------------
5 A Physical Occupancy (relative basis) (greater than equal to) 15% (greater than) 85% of
less than at origination occupancy at Origination
---------------------------------------------------------------------------------------------------------------------
5 B EGI from Origination (For Hotel use REV PAR) (greater than equal to) 15% (greater than) 85% of
less than at Origination EGI or REV PAR for
& (less than equal to) 1.50 Hotel
DSCR [For Lodging, use
Rev Par]
---------------------------------------------------------------------------------------------------------------------
5 C Leases expiring within next 12 months (greater than equal to) 20% Tenant spaces have been
of net rentable area leased
---------------------------------------------------------------------------------------------------------------------
5 D Bankruptcy of major tenant (if Healthcare include (greater than equal to) 20% The existing tenant
Master Lease or of Management Company) of net rentable area comes out of bankruptcy
or a new tenant is in
place.
---------------------------------------------------------------------------------------------------------------------
5 E Tenant lease is in default, terminated or is dark (greater than equal to) 20% New lease signed
of net rentable area
---------------------------------------------------------------------------------------------------------------------
MATURITY MATURITY
---------------------------------------------------------------------------------------------------------------------
6 A Pending loan maturity (greater than equal to) 90 Loan is extended or paid
days off in full
---------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------
ASSUMPTIONS:
--------------------------------------------------------
1 Major Tenants include top 5 tenants and or tenants
representing (greater than) 20%NRA
--------------------------------------------------------
2 All Servicers will use TTM or Annual or Normalized
Annualized (if YTD statements)
--------------------------------------------------------
No YTD or Quarterly will be used for Watch List
purposes.
--------------------------------------------------------
EXHIBIT N
Controlling Class Certificateholder's Reports Checklist
--------------------------------------------------------------------------------
Information Format Frequency
--------------------------------------------------------------------------------
Property Operating Statement Actual PDF/TIF As received/Quarterly
--------------------------------------------------------------------------------
Property Rent Roll Actual PDF/TIF As received/Quarterly
--------------------------------------------------------------------------------
Other Financials as required Actual PDF/TIF As received
by loan documents
--------------------------------------------------------------------------------
Property Inspection Actual PDF/TIF As received/Quarterly
--------------------------------------------------------------------------------
Payments Received After Monthly Excel P&I Advance Date
Determination Date Report (1)
--------------------------------------------------------------------------------
Mortgage Loans Delinquent Monthly Excel 30th of each month
Report (2)
--------------------------------------------------------------------------------
Interest on Advance Monthly Excel Distribution Date
Reconciliation
--------------------------------------------------------------------------------
CMSA Setup File CMSA IRP Access/Excel Monthly/Distribution
(Issuer/Trustee/Servicer) Date
--------------------------------------------------------------------------------
CMSA Property File CMSA IRP Access/Excel Monthly/Distribution
Date
--------------------------------------------------------------------------------
CMSA Loan Periodic Update CMSA IRP Access/Excel Monthly/Distribution
File Date
--------------------------------------------------------------------------------
CMSA Financial File CMSA IRP Access/Excel Monthly/Distribution
Date
--------------------------------------------------------------------------------
Distribution Statement Monthly Excel/PDF Monthly/Distribution
(Trustee) Date
--------------------------------------------------------------------------------
CMSA Bond File (Trustee) CMSA IRP Access/Excel Monthly/Distribution
Date
--------------------------------------------------------------------------------
CMSA Collateral File CMSA IRP Access/Excel Monthly/Distribution
(Trustee) Date
--------------------------------------------------------------------------------
CMSA Supplemental Reports CMSA IRP Access/Excel Monthly/Distribution
Date
--------------------------------------------------------------------------------
Operating Statement Analysis CMSA IRP Access/Excel Monthly/Distribution
Report Date
--------------------------------------------------------------------------------
NOI Adjustment Worksheet CMSA IRP Access/Excel Monthly/Distribution
Date
--------------------------------------------------------------------------------
Documentation Exceptions Quarterly Access/Excel Monthly/Distribution
Report (Trustee) Date
--------------------------------------------------------------------------------
Footnotes:
1) On the P&I Advance Date following the Determination Date for the related
Bond Certificateholder Distribution, a list of all mortgage loans which
are delinquent as to the applicable Distribution Period on the P&I Advance
Date. This list should represent all delinquent loans that required a P&I
Advance be made.
2) On the last day of the month (30th), for all delinquencies reported in #1
above, a list of A) all mortgage loans which remain delinquent for such
Distribution period (along with the number of days delinquent) accompanied
with any reason, in Servicer's opinion, for the mortgage loans continued
delinquency, along with an explanation of Servicer's attempts to cure.
3) ARCap requests that the above information be organized in ascending
Prospectus Loan I.D. order and forwarded on each of the above listed dates
via E-Mail to the following address or all reports and data files shall be
available via the Servicer's or Trustee's Website.
Xxxxx Xxxxx Xxxxx Xxxxxxx
Director Bond/Mortgage Surveillance President
ARCap REIT, Inc. ARCap REIT, Inc.
xxxxxx@xxxxx.xxx xxxxxxxx@xxxxx.xxx
(972) 580-1688 ext. 29 (972) 580-1688 ext. 11
EXHIBIT O
[RESERVED]
EXHIBIT P
FORM OF TRANSFER CERTIFICATE FOR
RULE 144A BOOK-ENTRY CERTIFICATE TO REGULATION S
BOOK-ENTRY CERTIFICATE AFTER RESTRICTED PERIOD
(PURSUANT TO SECTION 5.2(B) OF THE POOLING AND SERVICING AGREEMENT)
Xxxxx Fargo Bank Minnesota, N.A.
as Certificate Registrar
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2002-CIBC5
X.X. Xxxxxx Chase Commercial Mortgage Securities Corp.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention:
Re: Transfer of X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2002-CIBC5,
Class____
Ladies and Gentlemen:
Reference is hereby made to the Pooling and Servicing Agreement,
dated as of November 4, 2002 (the "Pooling and Servicing Agreement"), by and
among X.X. Xxxxxx Chase Commercial Mortgage Securities Corp., as Depositor,
Wachovia Bank, National Association, as Servicer, ARCap Special Servicing, Inc.,
as Special Servicer, and Xxxxx Fargo Bank Minnesota, N.A., as Trustee, on behalf
of the holders of X.X. Xxxxxx Chase Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2002-CIBC5. Capitalized
terms used but not defined herein shall have the meanings given to them in the
Pooling and Servicing Agreement.
This letter relates to US $[________] aggregate [Certificate
Balance] [Notional Amount] of Certificates (the "Certificates") which are held
in the form of the Rule 144A Book-Entry Certificate (CUSIP No. ________) with
the Depository in the name of [insert name of transferor] (the "Transferor").
The Transferor has requested a transfer of such beneficial interest in the
Certificates for an interest in the Regulation S Book-Entry Certificate (Common
Code No. _____).
In connection with such request, and in respect of such
Certificates, the Transferor does hereby certify that such transfer has been
effected in accordance with the transfer restrictions set forth in the Pooling
and Servicing Agreement and, (i) with respect to transfers made in reliance on
Regulation S under the Securities Act of 1933, as amended (the "Securities
Act"), the Transferor does hereby certify that:
(1) the offer of the Certificates was not made to a person in the
United States;
(2) [at the time the buy order was originated, the transferee was
outside the United States or the Transferor and any person acting on
its behalf reasonably believed that the transferee was outside the
United States] [the transaction was executed in, on or through the
facilities of a designated offshore securities market and neither
the Transferor nor any person acting on its behalf knows that the
transaction was pre-arranged with a buyer in the United States];*
(3) no directed selling efforts have been made in contravention of
the requirements of Rule 903(b) or Rule 904(b) of Regulation S, as
applicable; and
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act,
or (ii) with respect to transfers made in reliance on Rule 144 under the
Securities Act, the Transferor does hereby certify that the Certificates that
are being transferred are not "restricted securities" as defined in Rule 144
under the Securities Act.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Depositor, the Trustee, the Servicer and the
Special Servicer.
[Insert Name of Transferor]
By:____________________________________
Name:
Title:
Dated:
-----------------------------
* Insert one of these two provisions, which come from the definition of
"off-shore transaction" in Regulation S.
EXHIBIT Q
FORM OF TRANSFER CERTIFICATE OF
FROM REGULATION S BOOK-ENTRY CERTIFICATE
TO RULE 144A GLOBAL BOOK-ENTRY CERTIFICATE
DURING BOOK-ENTRY PERIOD
(PURSUANT TO SECTION 5.2(B) OF THE POOLING AND SERVICING AGREEMENT)
Xxxxx Fargo Bank Minnesota, N.A.
as Certificate Registrar
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: X.X. Xxxxxx Chase Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2002-CIBC5
X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention:
Re: Transfer of X.X. Xxxxxx Chase Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2002-CIBC5,
Class__
Ladies and Gentlemen:
Reference is hereby made to the Pooling and Servicing Agreement,
dated as of November 4, 2002 (the "Pooling and Servicing Agreement"), by and
among X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp., as Depositor,
Wachovia Bank, National Association, as Servicer, ARCap Special Servicing, Inc.,
as Special Servicer, and Xxxxx Fargo Bank Minnesota, N.A., as Trustee, on behalf
of the holders of X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2002-CIBC5. Capitalized
terms used but not defined herein shall have the meanings given to them in the
Pooling and Servicing Agreement.
This letter relates to US $[________] aggregate [Certificate
Balance] [Notional Amount] of Certificates (the "Certificates") which are held
in the form of the Regulation S Book-Entry Certificate (CUSIP No. _______) with
[Euroclear] [Clearstream]* (Common Code No.__________) through the Depository in
the name of [insert name of transferor] (the "Transferor"). The Transferor has
requested a transfer of such beneficial interest in the Certificates for an
interest in the Regulation 144A Book-Entry Certificate (CUSIP No.____________).
In connection with such request, and in respect of such
Certificates, the Transferor does hereby certify that such Certificates are
being transferred in accordance with (i) the transfer restrictions set forth in
the Pooling and Servicing Agreement and (ii) Rule 144A under the Securities Act
to a transferee that the Transferor reasonably believes is purchasing the
Certificates for its own account with respect to which the transferee exercises
sole investment discretion and the transferee and any such account is a
"qualified institutional buyer" within the meaning of Rule 144A, in each case in
a transaction meeting the requirements of Rule 144A and in accordance with any
applicable securities laws of any state of the United States or any
jurisdiction.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Depositor, the Trustee, the Servicer, the
Special Servicer and Placement Agents of the offering of the Certificates.
[Insert Name of Transferor]
By:____________________________________
Name:
Title:
Dated:
-----------------------------------
* Select appropriate depository.
EXHIBIT R
FORM OF TRANSFER CERTIFICATE FOR REGULATION S
BOOK-ENTRY CERTIFICATE DURING RESTRICTED PERIOD
Xxxxx Fargo Bank Minnesota, N.A.
as Certificate Registrar
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: X.X. Xxxxxx Chase Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2002-CIBC5
X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention:
Re: Transfer of X.X. Xxxxxx Chase Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2002-CIBC5,
Class__
Ladies and Gentlemen:
This certificate is delivered pursuant to Section 5.2(b) of the
Pooling and Servicing Agreement, dated as of November 4, 2002 (the "Pooling and
Servicing Agreement"), by and among X.X. Xxxxxx Xxxxx Commercial Mortgage
Securities Corp., as Depositor, Wachovia Bank, National Association, as
Servicer, ARCap Special Servicing, Inc., as Special Servicer, and Xxxxx Fargo
Bank Minnesota, N.A., as Trustee, on behalf of the holders of X.X. Xxxxxx Xxxxx
Commercial Mortgage Securities Corp., Commercial Mortgage Pass-Through
Certificates, Series 2002-CIBC5 in connection with the transfer by
_______________ of a beneficial interest of $___________ [Certificate Balance]
[Notional Amount] in a Book-Entry Certificate during the Restricted Period to
the undersigned (the "Transferee"). The Transferee desires to beneficially own
such transferred interest in the form of the Regulation S Book-Entry
Certificate. Capitalized terms used but not defined herein shall have the
meanings given to them in the Pooling and Servicing Agreement.
In connection with such transfer, the Transferee does hereby certify
that it is not a "U.S. Person" (within the meaning of Rule 902 Regulation S
under the Securities Act of 1933, as amended). This certificate and the
statements contained herein are made for your benefit and the benefit of the
Depositor, the Trustee, the Servicer and the Special Servicer.
[Insert Name of Transferor]
By:
Name:
Title:
Dated:
EXHIBIT S
FORM CERTIFICATION TO BE
PROVIDED WITH FORM 10-K
-----------------------
X.X. Xxxxxx Chase Commercial Mortgage Securities Corp.
Commercial Mortgage Pass-Through Certificates
Series 2002-CIBC5 (the "Trust")
I, [identify the certifying individual], certify that:
1. I have reviewed this annual report on Form 10-K, and all reports on Form
8-K containing distribution date reports filed in respect of periods
included in the year covered by this annual report, of the Trust;
2. Based on my knowledge, the information in these reports, taken as a whole,
does not contain any untrue statement of a material fact or omit to state
a material fact necessary to make the statements made, in light of the
circumstances under which such statements were made, not misleading as of
the last day of the period covered by this annual report;
3. Based on my knowledge, the servicing information required to be provided
to the trustee by the servicer and the special servicer under the pooling
and servicing agreement is included in these reports;
4*. I am responsible for reviewing the activities performed by the servicer
and the special servicer under the pooling and servicing agreement and
based upon the review required under [Section 3.13]** of the pooling and
servicing agreement, and except as disclosed in the report, the servicer
and the special servicer have fulfilled their obligations in all material
respects under the pooling and servicing agreement in the year such review
applies; and
5*. I have disclosed to the Servicer's or the Special Servicer's certified
public accountants all significant deficiencies relating to the servicer's
or special servicer's compliance with the minimum servicing standards in
accordance with a review conducted in compliance with the Uniform Single
Attestation Program for Mortgage Bankers or similar standard as set forth
in the pooling and servicing agreement.
Date: _________________________
_______________________________
[Signature]
[Title]
------------------
** If servicer or special servicer is providing certification.
* The servicer and the special servicer shall only certify as to Sections 4
and 5 above as such Sections relate to the servicer or special servicer,
as the case may be.
EXHIBIT T
FORM OF CERTIFICATION TO BE
PROVIDED TO DEPOSITOR
X.X. Xxxxxx Xxxxx Commercial Mortgage Securities Corp.
Commercial Mortgage Pass-Through Certificates
Series 2002-CIBC5 (the "Trust")
I, [identify the certifying individual], a [title] of [Xxxxx Fargo
Bank Minnesota, N.A. as trustee] [servicer] [special servicer] certify to X.X.
Xxxxxx Xxxxx Commercial Mortgage Securities Corp.[and Xxxxx Fargo Bank
Minnesota, N.A., as trustee] [add for certifications signed by an officer of the
Servicer], [add for certifications signed by an officer of the Special Servicer]
and [its][their] [add for certifications signed by an officer of the Servicer]
[add for certifications signed by an officer of the Special Servicer] officers,
directors and affiliates, 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 [___], and all reports
on Form 8-K containing distribution date reports filed in
respect of periods included in the year covered by that annual
report, of the Trust;]
2. [To be certified by the Trustee] [Based on my knowledge, the
information in these reports, taken as a whole, does not
contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements made,
in light of the circumstances under which such statements were
made, not misleading as of the last day of the period covered
by that annual report;]
3. [To be certified by the Trustee] [Based on my knowledge, the
servicing information required to be provided to the trustee
by the servicer under the pooling and servicing agreement is
included in these reports;]
4*. [To be certified by the Servicer [the Special Servicer]] [I am
responsible for reviewing the activities performed by the
[servicer] [special servicer] under the pooling and servicing
agreement and based upon the review required under Section
3.13 of the pooling and servicing agreement, and except as
disclosed in the report, to the best knowledge of such officer
based on such review, the [servicer] [special servicer] has
fulfilled in all material respects its obligations under the
pooling and servicing agreement in the year to which such
review applies; and]
5*. [To be certified by the Servicer [the Special Servicer]] [I
have disclosed to the [Servicer's] [Special Servicer's]
certified public accountants all significant deficiencies of
which I have knowledge relating to the [servicer's] [special
servicer's] compliance with the minimum servicing standards in
accordance with a review conducted in compliance with the
Uniform Single Attestation Program for Mortgage Bankers or
similar standard as set forth in the pooling and servicing
agreement.]
Date: _________________________
[XXXXX FARGO BANK MINNESOTA, N.A.]
[SERVICER]
[SPECIAL SERVICER]
_______________________________
[Signature]
[Name]
[Title]
------------------
* The servicer and the special servicer shall only certify as to Sections 4
and 5 above as such Sections relate to the servicer or special servicer,
as the case may be.
EXHIBIT U
INITIAL COMPANION HOLDERS
(Available upon request to the Trustee)
EXHIBIT V
ARCAP NAMING CONVENTION FOR ELECTRONIC FILE DELIVERY
Deal Name - Prospectus Loan I.D. - Statement Type - Statement Date - Months
Covered by Statement
For Example:
JPM2000C10-00001.1-OS-12312000-12
JPM2000C10-00001.2-OS-12312000-12
JPM2000C10-00001.1-OSAR-12312000-12
JPM2000C10-00001.1-FS-12312000-12
JPM2000C10-00001.1-RR-12312000
DLJ2000CKP1-00150.1-OS-12312000-12
DLJ2000CKP1-00001.1-OSAR-12312000-12
DLJ2000CKP1-00001.1-FS-12312000-12
DLJ2000CKP1-00001.1-RR-12312000
DLJ2000CKP1-00001.1-PI-12312000
Please note there should not be any special characters in the Deal Name, i.e.,
no spaces, no dashes, no underscores, etc.
The Prospectus I.D. should have five leading characters, a decimal point, and
the Property # (1, 2, 3, etc.).
The Statement Types are: OS -- Operating Statement (PDF or TIF format)
OSAR -- Operating Statement Analysis Report & NOI
ADJ Worksheet* (Excel Format named
individually, not rolling format)
FS -- Borrower Financial Statement (PDF or TIF)
RR -- Rent Roll (Excel or PDF or TIF)
PI* -- Property Inspection (Excel format)
HS* -- Healthcare Survey
FR* -- Franchise Annual Compliance Report
The Statement Date should be eight characters long - MODAYEAR where MO = months
from 01 to 12, DAY = day of month from 01 to 31, YEAR = year such as 1999 or
2000 or 2001.
The Months Covered by the Statement should range from 01 to 12.
------------------
* Servicer may, but is not required to, provide these reports pursuant to
the ARCap Naming Convention.
SCHEDULE 1
----------
[Reserved]
SCHEDULE 2
----------
Mortgage Loans Containing Additional Debt
(Available upon request to the Depositor)
SCHEDULE 3
----------
[Reserved]
SCHEDULE 4
----------
Mortgage Loans which Initially Pay Interest Only
(Available upon request to the Depositor)
SCHEDULE 5
----------
[Reserved]
SCHEDULE 6
----------
SIMON PORTFOLIO LOAN AMORTIZATION SCHEDULE
SIMON POOLED COMPONENT
TOTAL
DATE PRINCIPAL ($) INTEREST ($) PAYMENT ($)
---- ------------- ------------ -----------
12/10/2002 102,942.88 514,915.98 617,858.86
1/10/2003 85,079.19 531,567.54 616,646.72
2/10/2003 85,533.42 531,144.13 616,677.55
3/10/2003 141,088.62 479,358.61 620,447.23
4/10/2003 86,743.33 530,016.32 616,759.65
5/10/2003 105,533.39 512,501.25 618,034.64
6/10/2003 87,769.87 529,059.43 616,829.30
7/10/2003 106,532.12 511,570.29 618,102.41
8/10/2003 88,807.23 528,092.46 616,899.69
9/10/2003 89,281.36 527,650.50 616,931.86
10/10/2003 108,002.66 510,199.53 618,202.19
11/10/2003 90,334.64 526,668.69 617,003.33
12/10/2003 109,027.40 509,244.32 618,271.72
1/10/2004 91,399.01 525,676.55 617,075.55
2/10/2004 91,886.98 525,221.69 617,108.67
3/10/2004 128,697.83 490,908.63 619,606.46
4/10/2004 93,064.66 524,123.92 617,188.58
5/10/2004 111,683.46 506,768.49 618,451.95
6/10/2004 94,157.79 523,104.97 617,262.76
7/10/2004 112,746.98 505,777.14 618,524.12
8/10/2004 95,262.43 522,075.28 617,337.71
9/10/2004 95,771.02 521,601.20 617,372.22
10/10/2004 114,316.51 504,314.11 618,630.62
11/10/2004 96,892.66 520,555.67 617,448.33
12/10/2004 115,407.76 503,296.91 618,704.67
1/10/2005 98,026.10 519,499.13 617,525.24
2/10/2005 98,549.45 519,011.29 617,560.75
3/10/2005 152,907.81 468,341.41 621,249.22
4/10/2005 99,891.96 517,759.89 617,651.85
5/10/2005 118,325.80 500,576.87 618,902.67
6/10/2005 101,057.00 516,673.90 617,730.90
7/10/2005 119,459.28 499,520.30 618,979.58
8/10/2005 102,234.31 515,576.47 617,810.78
9/10/2005 102,780.13 515,067.69 617,847.82
10/10/2005 121,135.73 497,957.61 619,093.34
11/10/2005 103,975.59 513,953.35 617,928.94
12/10/2005 122,298.81 496,873.45 619,172.26
1/10/2006 105,183.64 512,827.27 618,010.91
2/10/2006 105,745.20 512,303.81 618,049.01
3/10/2006 159,441.90 462,250.69 621,692.59
4/10/2006 107,161.01 510,984.07 618,145.09
5/10/2006 125,397.93 493,984.62 619,382.55
6/10/2006 108,402.62 509,826.72 618,229.33
7/10/2006 126,605.90 492,858.62 619,464.51
8/10/2006 109,657.30 508,657.17 618,314.47
9/10/2006 110,242.75 508,111.45 618,354.20
10/10/2006 128,396.18 491,189.82 619,585.99
11/10/2006 111,516.81 506,923.83 618,440.64
12/10/2006 129,635.73 490,034.37 619,670.10
1/10/2007 112,804.30 505,723.71 618,528.01
2/10/2007 113,406.55 505,162.32 618,568.87
3/10/2007 166,398.77 455,765.88 622,164.65
4/10/2007 114,900.40 503,769.84 618,670.24
5/10/2007 132,927.64 486,965.83 619,893.47
6/10/2007 116,223.53 502,536.49 618,760.02
7/10/2007 134,214.93 485,765.89 619,980.82
8/10/2007 117,560.59 501,290.15 618,850.75
9/10/2007 118,188.23 500,705.10 618,893.33
10/10/2007 136,126.41 483,984.12 620,110.53
11/10/2007 119,545.99 499,439.47 618,985.46
12/10/2007 137,447.38 482,752.78 620,200.16
1/10/2008 120,918.05 498,160.51 619,078.57
2/10/2008 121,563.62 497,558.75 619,122.37
3/10/2008 156,608.06 464,892.24 621,500.31
4/10/2008 123,048.75 496,174.40 619,223.14
5/10/2008 140,855.25 479,576.16 620,431.40
6/10/2008 124,457.70 494,861.05 619,318.75
7/10/2008 142,226.03 478,298.39 620,524.42
8/10/2008 125,881.50 493,533.86 619,415.36
9/10/2008 126,553.56 492,907.40 619,460.96
10/10/2008 144,265.11 476,397.67 620,662.78
11/10/2008 127,999.44 491,559.64 619,559.07
12/10/2008 145,671.81 475,086.42 620,758.23
1/10/2009 129,460.53 490,197.68 619,658.21
2/10/2009 130,151.70 489,553.40 619,705.11
3/10/2009 181,604.18 441,592.24 623,196.42
4/10/2009 131,816.14 488,001.91 619,818.05
5/10/2009 149,385.12 471,625.08 621,010.20
6/10/2009 133,317.44 486,602.48 619,919.92
7/10/2009 150,845.74 470,263.56 621,109.31
8/10/2009 134,834.56 485,188.31 620,022.87
9/10/2009 135,554.42 484,517.29 620,071.71
10/10/2009 153,022.12 468,234.86 621,256.98
11/10/2009 137,095.10 483,081.15 620,176.26
12/10/2009 154,521.07 466,837.63 621,358.70
1/10/2010 138,652.01 481,629.89 620,281.90
2/10/2010 139,392.25 480,939.87 620,332.13
3/10/2010 189,995.04 433,770.74 623,765.77
4/10/2010 141,150.82 479,300.64 620,451.45
5/10/2010 158,466.91 463,159.53 621,626.44
6/10/2010 142,750.44 477,809.55 620,560.00
7/10/2010 160,023.19 461,708.85 621,732.04
8/10/2010 144,366.92 476,302.77 620,669.69
9/10/2010 145,137.68 475,584.31 620,721.99
10/10/2010 162,345.75 459,543.88 621,889.63
11/10/2010 146,779.30 474,054.08 620,833.38
12/10/2010 163,942.90 458,055.11 621,998.01
1/10/2011 148,438.21 472,507.73 620,945.94
2/10/2011 149,230.71 471,769.01 620,999.72
3/10/2011 198,928.82 425,443.15 624,371.97
4/10/2011 151,089.49 470,036.35 621,125.84
5/10/2011 168,136.32 454,146.23 622,282.55
6/10/2011 152,793.80 468,447.69 621,241.49
7/10/2011 169,794.46 452,600.61 622,395.06
8/10/2011 154,516.06 466,842.29 621,358.35
9/10/2011 155,341.01 466,073.32 621,414.33
10/10/2011 172,272.66 450,290.56 622,563.22
11/10/2011 157,090.10 464,442.91 621,533.02
12/10/2011 173,974.37 448,704.33 622,678.69
1/10/2012 158,857.62 462,795.33 621,652.95
2/10/2012 159,705.74 462,004.76 621,710.50
3/10/2012 192,479.90 431,454.48 623,934.38
4/10/2012 161,586.02 460,252.06 621,838.08
5/10/2012 178,348.48 444,627.01 622,975.49
6/10/2012 163,400.89 458,560.34 621,961.23
7/10/2012 180,114.19 442,981.12 623,095.31
8/10/2012 165,234.88 456,850.80 622,085.67
9/10/2012 166,117.05 456,028.48 622,145.54
10/10/2012 91,468,071.50 440,517.85 91,908,589.36
SIMON PORTFOLIO LOAN AMORTIZATION SCHEDULE
SIMON NON-POOLED COMPONENT
TOTAL
DATE PRINCIPAL ($) INTEREST ($) PAYMENT ($)
---- ------------- ------------ -----------
12/10/2002 17,125.08 129,377.34 146,502.42
1/10/2003 14,153.36 133,561.19 147,714.56
2/10/2003 14,228.92 133,454.81 147,683.73
3/10/2003 23,470.82 120,443.23 143,914.05
4/10/2003 14,430.20 133,171.43 147,601.63
5/10/2003 17,556.02 128,770.62 146,326.64
6/10/2003 14,600.97 132,931.01 147,531.98
7/10/2003 17,722.17 128,536.70 146,258.87
8/10/2003 14,773.54 132,688.05 147,461.59
9/10/2003 14,852.41 132,577.01 147,429.42
10/10/2003 17,966.80 128,192.29 146,159.09
11/10/2003 15,027.63 132,330.32 147,357.95
12/10/2003 18,137.27 127,952.29 146,089.56
1/10/2004 15,204.69 132,081.03 147,285.73
2/10/2004 15,285.87 131,966.74 147,252.61
3/10/2004 21,409.54 123,345.28 144,754.82
4/10/2004 15,481.78 131,690.92 147,172.70
5/10/2004 18,579.12 127,330.21 145,909.33
6/10/2004 15,663.63 131,434.89 147,098.52
7/10/2004 18,756.04 127,081.12 145,837.16
8/10/2004 15,847.39 131,176.18 147,023.57
9/10/2004 15,932.00 131,057.06 146,989.06
10/10/2004 19,017.14 126,713.52 145,730.66
11/10/2004 16,118.59 130,794.36 146,912.95
12/10/2004 19,198.67 126,457.94 145,656.61
1/10/2005 16,307.15 130,528.90 146,836.04
2/10/2005 16,394.21 130,406.33 146,800.53
3/10/2005 25,437.00 117,675.06 143,112.06
4/10/2005 16,617.54 130,091.89 146,709.43
5/10/2005 19,684.11 125,774.50 145,458.61
6/10/2005 16,811.35 129,819.03 146,630.38
7/10/2005 19,872.66 125,509.04 145,381.70
8/10/2005 17,007.20 129,543.30 146,550.50
9/10/2005 17,098.00 129,415.46 146,513.46
10/10/2005 20,151.55 125,116.39 145,267.94
11/10/2005 17,296.87 129,135.47 146,432.34
12/10/2005 20,345.03 124,843.99 145,189.02
1/10/2006 17,497.84 128,852.53 146,350.37
2/10/2006 17,591.26 128,721.01 146,312.27
3/10/2006 26,523.98 116,144.71 142,668.69
4/10/2006 17,826.79 128,389.41 146,216.19
5/10/2006 20,860.59 124,118.14 144,978.73
6/10/2006 18,033.33 128,098.61 146,131.95
7/10/2006 21,061.54 123,835.22 144,896.77
8/10/2006 18,242.06 127,804.75 146,046.81
9/10/2006 18,339.45 127,667.63 146,007.08
10/10/2006 21,359.36 123,415.92 144,775.29
11/10/2006 18,551.40 127,369.24 145,920.64
12/10/2006 21,565.57 123,125.61 144,691.18
1/10/2007 18,765.58 127,067.69 145,833.27
2/10/2007 18,865.76 126,926.65 145,792.41
3/10/2007 27,681.29 114,515.34 142,196.63
4/10/2007 19,114.27 126,576.77 145,691.04
5/10/2007 22,113.20 122,354.61 144,467.81
6/10/2007 19,334.38 126,266.88 145,601.26
7/10/2007 22,327.34 122,053.12 144,380.46
8/10/2007 19,556.81 125,953.73 145,510.53
9/10/2007 19,661.22 125,806.73 145,467.95
10/10/2007 22,645.33 121,605.42 144,250.75
11/10/2007 19,887.09 125,488.73 145,375.82
12/10/2007 22,865.08 121,296.04 144,161.12
1/10/2008 20,115.34 125,167.38 145,282.71
2/10/2008 20,222.73 125,016.18 145,238.91
3/10/2008 26,052.56 116,808.42 142,860.97
4/10/2008 20,469.79 124,668.34 145,138.14
5/10/2008 23,431.99 120,497.88 143,929.88
6/10/2008 20,704.18 124,338.35 145,042.53
7/10/2008 23,660.03 120,176.83 143,836.86
8/10/2008 20,941.03 124,004.89 144,945.92
9/10/2008 21,052.84 123,847.48 144,900.32
10/10/2008 23,999.24 119,699.26 143,698.50
11/10/2008 21,293.36 123,508.84 144,802.21
12/10/2008 24,233.25 119,369.80 143,603.05
1/10/2009 21,536.43 123,166.64 144,703.07
2/10/2009 21,651.41 123,004.77 144,656.17
3/10/2009 30,210.79 110,954.07 141,164.86
4/10/2009 21,928.29 122,614.94 144,543.23
5/10/2009 24,850.98 118,500.10 143,351.08
6/10/2009 22,178.04 122,263.32 144,441.36
7/10/2009 25,093.97 118,158.01 143,251.97
8/10/2009 22,430.42 121,907.99 144,338.41
9/10/2009 22,550.18 121,739.39 144,289.57
10/10/2009 25,456.02 117,648.28 143,104.30
11/10/2009 22,806.48 121,378.55 144,185.02
12/10/2009 25,705.37 117,297.21 143,002.58
1/10/2010 23,065.47 121,013.91 144,079.38
2/10/2010 23,188.62 120,840.54 144,029.15
3/10/2010 31,606.65 108,988.85 140,595.51
4/10/2010 23,481.16 120,428.66 143,909.83
5/10/2010 26,361.78 116,373.06 142,734.84
6/10/2010 23,747.27 120,054.02 143,801.28
7/10/2010 26,620.68 116,008.56 142,629.24
8/10/2010 24,016.18 119,675.41 143,691.59
9/10/2010 24,144.40 119,494.89 143,639.29
10/10/2010 27,007.05 115,464.60 142,471.65
11/10/2010 24,417.49 119,110.41 143,527.90
12/10/2010 27,272.74 115,090.53 142,363.27
1/10/2011 24,693.46 118,721.88 143,415.34
2/10/2011 24,825.29 118,536.27 143,361.56
3/10/2011 33,092.83 106,896.48 139,989.31
4/10/2011 25,134.51 118,100.93 143,235.44
5/10/2011 27,970.34 114,108.39 142,078.73
6/10/2011 25,418.03 117,701.76 143,119.79
7/10/2011 28,246.18 113,720.03 141,966.22
8/10/2011 25,704.54 117,298.39 143,002.93
9/10/2011 25,841.77 117,105.18 142,946.95
10/10/2011 28,658.44 113,139.62 141,798.06
11/10/2011 26,132.75 116,695.52 142,828.26
12/10/2011 28,941.53 112,741.05 141,682.59
1/10/2012 26,426.78 116,281.55 142,708.33
2/10/2012 26,567.87 116,082.91 142,650.78
3/10/2012 32,020.02 108,406.88 140,426.90
4/10/2012 26,880.66 115,642.54 142,523.20
5/10/2012 29,669.19 111,716.60 141,385.79
6/10/2012 27,182.58 115,217.47 142,400.05
7/10/2012 29,962.92 111,303.05 141,265.97
8/10/2012 27,487.67 114,787.93 142,275.61
9/10/2012 27,634.43 114,581.32 142,215.74
10/10/2012 15,216,183.86 110,684.14 15,326,867.99
