Greenwich Capital Commercial Funding Corp.,
as Depositor
and
Wachovia Bank, National Association,
as Master Servicer
and
GMAC Commercial Mortgage Corporation,
as Special Servicer
and
LaSalle Bank National Association,
as Trustee
and
ABN AMRO Bank N.V.,
as Fiscal Agent
POOLING AND SERVICING AGREEMENT
Dated as of June 30, 2003
----------------------------------
$1,217,525,106
Greenwich Capital Commercial Funding Corp.,
Commercial Mortgage Trust 2003-C1,
Commercial Mortgage Pass-Through Certificates,
Series 2003-C1
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS; GENERAL INTERPRETIVE PRINCIPLES
SECTION 1.01 Defined Terms.................................................
SECTION 1.02 General Interpretive Principles...............................
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES; ORIGINAL
ISSUANCE OF CERTIFICATES
Section 2.01 Creation of Trust; Conveyance of Mortgage Loans...............
Section 2.02 Acceptance of Trust Fund by Trustee...........................
Section 2.03 Repurchase of Mortgage Loans for Document Defects and
Breaches of Representations and Warranties...................
Section 2.04 Representations, Warranties and Covenants of the
Depositor....................................................
Section 2.05 Execution of Certificates; Issuance of Uncertificated
Lower-Tier Interests.........................................
ARTICLE III
ADMINISTRATION AND SERVICING OF THE TRUST FUND
Section 3.01 Administration of the Loans...................................
Section 3.02 Collection of Loan Payments...................................
Section 3.03 Collection of Taxes, Assessments and Similar Items;
Servicing Accounts; Reserve Accounts.........................
Section 3.04 Pool Custodial Account, Defeasance Deposit Account,
Distribution Account, Interest Reserve Account and
Excess Liquidation Proceeds Account..........................
Section 3.04A. Loan Pair Custodial Account..................................
Section 3.05 Permitted Withdrawals From the Pool Custodial Account,
the Distribution Account, the Interest Reserve Account
and the Excess Liquidation Proceeds Account.................
Section 3.05A. Permitted Withdrawals From the Loan Pair Custodial
Account.....................................................
Section 3.06 Investment of Funds in the Servicing Accounts, the
Reserve Accounts, the Defeasance Deposit Account, the
Custodial Accounts and the REO Accounts.....................
Section 3.07 Maintenance of Insurance Policies; Errors and Omissions
and Fidelity Coverage; Environmental Insurance..............
Section 3.08 Enforcement of Alienation Clauses............................
Section 3.09 Realization Upon Defaulted Loans; Required Appraisals;
Appraisal Reduction Calculation.............................
Section 3.10 Trustee and Custodian to Cooperate; Release of Mortgage
Files.......................................................
Section 3.11 Servicing Compensation; Payment of Expenses; Certain
Matters Regarding Servicing Advances........................
Section 3.12 Property Inspections; Collection of Financial Statements;
Delivery of Certain Reports.................................
Section 3.12A Delivery of Certain Reports to the Companion Loan
Noteholders.................................................
Section 3.12B. Statements to the Companion Loan Noteholders................
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 Accounts..........................
Section 3.17 Management of REO Property...................................
Section 3.18 Sale of Mortgage Loans and REO Properties....................
Section 3.19 Additional Obligations of the Master Servicer;
Obligations to Notify Ground Lessors; the Special
Servicer's Right to Request the Master Servicer to Make
Servicing Advances..........................................
Section 3.20 Modifications, Waivers, Amendments and Consents;
Defeasance..................................................
Section 3.21 Transfer of Servicing Between Master Servicer and Special
Servicer; Record Keeping....................................
Section 3.22 Sub-Servicing Agreements.....................................
Section 3.23 Representations and Warranties of the Master Servicer........
Section 3.24 Representations and Warranties of the Special Servicer.......
Section 3.25 Certain Matters Regarding the Purchase of the Split
Mortgage Loans..............................................
Section 3.26 Application of Default Charges...............................
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS; REPORTS TO CERTIFICATEHOLDERS
Section 4.01 Distributions................................................
Section 4.02 Statements to Certificateholders; CMSA Loan Periodic
Update File.................................................
Section 4.03 P&I Advances.................................................
Xxxxxxx 0.00X. X&X Advances on the Split Mortgage Loans and Windsor
Capital Portfolio Pari Passu Companion Loan.................
Section 4.04 Allocation of Realized Losses and Additional Trust Fund
Expenses....................................................
Section 4.05 Calculations.................................................
Section 4.06 Use of Agents................................................
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........................................
ARTICLE VI
THE DEPOSITOR, THE MASTER SERVICER, THE SPECIAL SERVICER AND THE DIRECTING
HOLDER
Section 6.01 Liability of Depositor, Master Servicer and Special
Servicer....................................................
Section 6.02 Continued Qualification and Compliance of Master
Servicer; Merger, Consolidation or Conversion of
Depositor, Master Servicer or Special Servicer..............
Section 6.03 Limitation on Liability of Depositor, Master Servicer and
Special Servicer............................................
Section 6.04 Resignation of Master Servicer and the Special Servicer......
Section 6.05 Rights of Depositor, Trustee and the Companion Loan
Noteholders in Respect of the Master Servicer and the
Special Servicer............................................
Section 6.06 Depositor, Master Servicer and Special Servicer to
Cooperate with Trustee......................................
Section 6.07 Depositor, Special Servicer and Trustee to Cooperate with
Master Servicer.............................................
Section 6.08 Depositor, Master Servicer and Trustee to Cooperate with
Special Servicer............................................
Section 6.09 Designation of Special Servicer by the Directing Holder......
Section 6.10 Master Servicer or Special Servicer as Owner of a
Certificate.................................................
Section 6.11 Certain Powers of the Directing Holder.......................
ARTICLE VII
DEFAULT
Section 7.01 Events of Default............................................
Section 7.02 Trustee to Act; Appointment of Successor.....................
Section 7.03 Notification to Certificateholders...........................
Section 7.04 Waiver of Events of Default..................................
Section 7.05 Additional Remedies of Trustee Upon Event of Default.........
ARTICLE VIII
CONCERNING THE TRUSTEE
Section 8.01 Duties of Trustee............................................
Section 8.02 Certain Matters Affecting Trustee............................
Section 8.03 Trustee and Fiscal Agent Not Liable for Validity or
Sufficiency of Certificates or Loans........................
Section 8.04 Trustee and Fiscal Agent May Own Certificates................
Section 8.05 Fees and Expenses of Trustee; Indemnification of and by
Trustee.....................................................
Section 8.06 Eligibility Requirements for Trustee.........................
Section 8.07 Resignation and Removal of Trustee...........................
Section 8.08 Successor Trustee............................................
Section 8.09 Merger or Consolidation of Trustee and Fiscal Agent..........
Section 8.10 Appointment of Co-Trustee or Separate Trustee................
Section 8.11 Appointment of Custodians....................................
Section 8.12 Appointment of Authenticating Agents.........................
Section 8.13 Appointment of Tax Administrators............................
Section 8.14 Access to Certain Information................................
Section 8.15 Reports to the Securities and Exchange Commission and
Related Reports.............................................
Section 8.16 Representations and Warranties of Trustee....................
Section 8.17 The Fiscal Agent.............................................
Section 8.18 Representations and Warranties of Fiscal Agent...............
ARTICLE IX
TERMINATION
Section 9.01 Termination Upon Repurchase or Liquidation of All
Mortgage Loans..............................................
Section 9.02 Additional Termination Requirements..........................
ARTICLE X
ADDITIONAL TAX PROVISIONS
Section 10.01 REMIC Administration.........................................
Section 10.02 Grantor Trust Administration.................................
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01 Amendment....................................................
Section 11.02 Recordation of Agreement; Counterparts.......................
Section 11.03 Limitation on Rights of Certificateholders and the
Companion Loan Noteholders..................................
Section 11.04 Governing Law; Consent to Jurisdiction.......................
Section 11.05 Notices......................................................
Section 11.06 Severability of Provisions...................................
Section 11.07 Grant of a Security Interest.................................
Section 11.08 Xxxxxx Act...................................................
Section 11.09 Successors and Assigns; Beneficiaries........................
Section 11.10 Article and Section Headings.................................
Section 11.11 Notices to Rating Agencies...................................
Section 11.12 Complete Agreement...........................................
SCHEDULES AND EXHIBITS
Schedule No. Schedule Description
---------------------------------
I Mortgage Loan Schedule
II Schedule of Exceptions to Mortgage File Delivery
III Environmentally Insured Mortgage Loans
IV Class XP Reference Rate Schedule
V Schedule of Initial Directing Holder For Each Loan Pair
VI Supplemental Servicer Schedule
Exhibit No. Exhibit Description
-------------------------------
A-1 Form of Class [A-1] [A-2] [A-3] [A-4]
A-2 Form of Class [XP] [XC] Certificate
A-3 Form of Class [B] [C] Certificate
A-4 Form of Class [D] [E] [F] [G] [H] [J] Certificate
A-5 Form of Class [K] [L] [M] [N] [O] [P] [Q] Certificate
A-6 Form of Class Y Certificate
A-7 Form of Class [R-I] [R-II] Certificate
B Form of Distribution Date Statement
C Form of Custodial Certification
D-1 Form of Master Servicer Request for Release
D-2 Form of Special Servicer Request for Release
E Form of Loan Payoff Notification Report
F-1 Form of Transferor Certificate for Transfers of Definitive
Non-Registered Certificates
F-2A Form I of Transferee Certificate for Transfers of Definitive
Non-Registered Certificates
F-2B Form II of Transferee Certificate for Transfers of Definitive
Non-Registered Certificates
F-2C Form of Transferee Certificate for Transfers of Interests in Rule 144A
Global Certificates
F-2D Form of Transferee Certificate for Transfers of Interests in Regulation
S Global Certificates
G Form I of Transferee Certificate in Connection with ERISA (Definitive
Non-Registered Certificates)
H-1 Form of Transfer Affidavit and Agreement regarding Residual Interest
Certificates
H-2 Form of Transferor Certificate regarding Residual Interest Certificates
I-1 Form of Notice and Acknowledgment
I-2 Form of Acknowledgment of Proposed Special Servicer
J Form of UCC-1 Financing Statement Schedule
K Sub-Servicers in respect of which Sub-Servicing Agreements are in
effect or being negotiated as of the Closing Date
L Form of Defeasance Certification
M Form of Directing Holder/Companion Loan Noteholder Confidentiality
Agreement
N-1 Form of Information Request/Investor Certification for Website Access
from Certificate [Holder] [Owner]
N-2 Form of Information Request/Investor Certification for Website Access
from Prospective Investor
O-1 Form of Trustee Backup Certification
O-2 Form of Master Servicer Backup Certification to be provided to Depositor
O-3 Form of Special Servicer Backup Certification to be provided to Depositor
This Pooling and Servicing Agreement (this "Agreement") is dated and
effective as of June 30, 2003, among GREENWICH CAPITAL COMMERCIAL FUNDING CORP,
as Depositor, WACHOVIA BANK, NATIONAL ASSOCIATION, as Master Servicer, GMAC
COMMERCIAL MORTGAGE CORPORATION, as Special Servicer, LASALLE BANK NATIONAL
ASSOCIATION, as Trustee, and ABN AMRO BANK N.V., as Fiscal Agent.
PRELIMINARY STATEMENT:
The Depositor intends to sell the Certificates, which are to be
issued hereunder in multiple Classes and which in the aggregate will evidence
the entire beneficial ownership interest in the Trust Fund.
CERTIFICATES
Initial
Class Pass-Through Rate Original Class Original Rating
Designation (per annum) Principal Balance S&P/Xxxxx'x(1)
--------------- ----------------- ------------------ ---------------
Class A-1 2.310% $152,868,000 AAA/Aaa
Class A-2 3.285% $264,045,000 AAA/Aaa
Class A-3 3.858% $115,792,000 AAA/Aaa
Class A-4 4.111% $442,352,000 AAA/Aaa
Class B 4.229% $41,007,000 AA/Aa2
Class C 4.260% $15,188,000 AA-/Aa3
Class D 4.290% $18,225,000 A+/A1
Class E 4.309% $18,226,000 A/A2
Class F 4.369% $10,631,000 A-/A3
Class G 4.773% $15,188,000 BBB+/Baa1
Class H 4.871% $19,744,000 BBB/Baa2
Class J 5.363% $18,225,000 BBB-/Baa3
Class K 4.750% $15,188,000 BB+/Ba1
Class L 4.750% $15,188,000 BB/Ba2
Class M 4.750% $7,594,000 BB-/Ba3
Class N 4.750% $6,075,000 B+/B1
Class O 4.750% $9,113,000 B/B2
Class P 4.750% $6,075,000 B-/B3
Class Q 4.750% $24,300,759 NR/NR
Class XP 2.24360%(2) $1,101,379,000(3) AAA/Aaa
Class XC 0.22574%(2) $1,215,024,759(3) AAA/Aaa
Class Y 7.0181% $2,500,347 NR/NR
Class R-I None(4) None(4) NR/NR
Class R-II None(4) None(4) NR/NR
------------
(1) "NR" indicates that the Class of Certificates has not been rated by the
applicable Rating Agency.
(2) The Pass-Through Rates for the Class XP and Class XC Certificates will be
a variable rate per annum as set forth herein.
(3) The Class XP and Class XC Certificates will not have a Class Principal
Balance and will not entitle their Holders to receive distributions of
principal. The Class XP and Class XC Certificates will have a Notional
Amount as set forth herein.
(4) The Class R-I Certificates and Class R-II Certificates do not have a Class
Principal Balance or Notional Amount, do not bear interest and will not be
entitled to distributions of Net Prepayment Consideration. Any Available
Distribution Amount remaining in the Lower-Tier Distribution Account after
distributing the Lower-Tier Distribution Amount and Net Prepayment
Consideration shall be distributed to the Holders of the Class R-I
Certificates (but only to the extent of the Available Distribution Amount
for such Distribution Date, if any, remaining in the Lower-Tier
Distribution Account). 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-II Certificates.
As provided herein, the Trustee will elect to treat the segregated
pool of assets consisting of all of the Mortgage Loans and certain other related
assets subject to this Agreement as a REMIC for federal income tax purposes, and
such segregated pool of assets will be designated as the "Lower-Tier REMIC." The
Class R-I Certificates will represent the sole class of "residual interests" in
the Lower-Tier REMIC for purposes of the REMIC Provisions under federal income
tax law.
As provided herein, the Trustee will elect to treat the segregated
pool of assets consisting of the Uncertificated Lower-Tier Interests and certain
other related assets subject to this Agreement as a REMIC for federal income tax
purposes, and such segregated pool of assets will be designated as the "the
Upper-Tier REMIC." The Class R-II Certificates will evidence the sole class of
"residual interests" in the Upper-Tier REMIC for purposes of the REMIC
Provisions under federal income tax law. For federal income tax purposes, each
Class of the Regular Interest Certificates will be designated as a separate
"regular interest" in the Upper-Tier REMIC for purposes of the REMIC Provisions
under federal income tax law.
The following table sets forth the Class or Component designation,
the corresponding Uncertificated Lower-Tier Interest (the "Corresponding
Uncertificated Lower-Tier Interest"), the corresponding components of the Class
X Certificates (the "Corresponding Components"), if any, and the Original Class
Principal Balance for each Class of Principal Balance Certificates (the
"Corresponding Certificates").
Corresponding Original Corresponding
Original Class Uncertificated Uncertificated Components of
Corresponding Principal Lower-Tier Principal Class X
Certificates Balance Interests(1) Balance Certificates(1)
-------------- -------------- -------------- --------------- ---------------
Class A-1 $152,868,000 LA-1-1 $11,887,000 X-A-1-1
LA-1-2 $56,145,000 X-A-1-2
LA-1-3 $57,249,000 X-A-1-3
LA-1-4 $27,587,000 X-A-1-4
Class A-2 $264,045,000 LA-2-1 $26,710,000 X-A-2-1
LA-2-2 $203,739,000 X-A-2-2
LA-2-3 $33,596,000 X-A-2-3
Class A-3 $115,792,000 LA-3-1 $7,602,000 X-A-3-1
LA-3-2 $108,190,000 X-A-3-2
Class A-4 $442,352,000 LA-4-1 $28,607,000 X-A-4-1
LA-4-2 $413,745,000 X-A-4-2
Class B $41,007,000 LB $41,007,000 X-B
Class C $15,188,000 LC $15,188,000 X-C
Class D $18,225,000 LD $18,225,000 X-D
Class E $18,226,000 LE $18,226,000 X-E
Class F $10,631,000 LF $10,631,000 X-F
Class G $15,188,000 LG $15,188,000 X-G
Class H $19,744,000 LH-1 $3,130,000 X-H-1
LH-2 $14,433,000 X-H-2
LH-3 $2,181,000 X-H-3
Class J $18,225,000 LJ $18,225,000 X-J
Class K $15,188,000 LK $15,188,000 X-K
Class L $15,188,000 LL $15,188,000 X-L
Class M $7,594,000 LM $7,594,000 X-M
Class N $6,075,000 LN $6,075,000 X-N
Class O $9,113,000 LO $9,113,000 X-O
Class P $6,075,000 LP $6,075,000 X-P
Class Q $24,300,759 LQ $24,300,759 X-Q
------------
(1) The Uncertificated Lower-Tier Interest and the Components of the Class X
Certificates that correspond to any particular Class of Principal Balance
Certificates also correspond to each other and, accordingly, constitute
the "Corresponding Uncertificated Lower-Tier Interest" and the
"Corresponding Components," respectively, with respect to each other.
The portion of the Trust Fund consisting of the Oakmonte Junior
Portion and related assets shall be treated as a grantor trust for federal
income tax purposes. As provided herein, the Trustee shall take all actions
necessary to ensure that the portion of the Trust Fund consisting of the Grantor
Trust Assets maintains its status as a "grantor trust" under federal income tax
law and not be treated as part of the Lower-Tier REMIC or the Upper-Tier REMIC.
The Class Y Certificates represent undivided beneficial interests in the portion
of the Grantor Trust representing the Oakmonte Junior Portion and related assets
as described herein.
The Initial Trust Balance will be $1,217,525,106. The initial
aggregate principal balance of the Uncertificated Lower-Tier Interests will be
$1,215,024,759.
There are eleven Mortgage Loans (secured by Mortgages on the
properties known as the 000 Xxxxx Xxxxxx Xxxxx, Xxxxxxx Capital Portfolio,
Central Park and Waverly Village, Pioneer Plaza Office, Tide Point Office,
Frontier Building Office, 000 Xxxxx Xxxxxxxx, Xxxxxxxx Xxxxx, 0xx & Xxxxxxxxx,
Oakmonte Apartment Homes and Philamer Apartments) (each a "Split Mortgage
Loan"), which are each part of a split loan structure, and except with respect
to the Oakmonte Apartment Homes Whole Loan, are each secured by the same
Mortgage that also secures another mortgage loan or loans in that split loan
structure, which are each referred to as a "Companion Loan." In the case of the
Oakmonte Apartments Homes Whole Loan, the senior portion of such Loan (the
"Oakmonte Senior Portion") having an outstanding principal amount of
$13,935,174.08 as of the date hereof, which will be part of the Mortgage Pool,
is secured by a Mortgage which also secures a junior portion of such Loan (the
"Oakmonte Junior Portion"), having an outstanding principal amount of $2,500,347
as of the date hereof. For all purposes of this Agreement, the Oakmonte Junior
Portion shall be treated as a Companion Loan. One of such Loan Pairs, secured by
a Mortgage on the property known as 000 Xxxxx Xxxxxx Xxxxx (the "311 South
Xxxxxx Drive A/B Loan"), consists of three Loans, including one senior Split
Mortgage Loan, which is included in the Trust Fund, in the outstanding principal
amount of $72,500,000 as of the date hereof (the "311 South Xxxxxx Drive Trust
Loan"), one senior Companion Loan, which is not included in the Trust Fund, in
the outstanding principal amount of $72,500,000 as of the date hereof (the "311
South Xxxxxx Drive Pari Passu Companion Loan," and, together with the 000 Xxxxx
Xxxxxx Xxxxx Trust Loan, the "311 South Xxxxxx Drive Senior Loans") and a
subordinate Companion Loan, which is not included in the Trust Fund, in the
outstanding principal amount of $15,000,000 as of the date hereof (the "311
South Xxxxxx Drive Junior Companion Loan"). Another of such Loan Pairs, secured
by a Mortgage on the property known as Windsor Capital Portfolio (the "Windsor
Capital Portfolio A/B Loan"), consists of three Loans, including one senior
Split Mortgage Loan, which is included in the Trust Fund, in the outstanding
principal amount of $55,000,000 as of the date hereof (the "Windsor Capital
Portfolio Trust Loan"), one senior Companion Loan, which is not included in the
Trust Fund, in the outstanding principal amount of $55,000,000 as of the date
hereof (the "Windsor Capital Portfolio Pari Passu Companion Loan," and, together
with the Windsor Capital Portfolio Trust Loan, the "Windsor Capital Portfolio
Senior Loans") and a subordinate Companion Loan, which is not included in the
Trust Fund, in the outstanding principal amount of $15,000,000 as of the date
hereof (the "Windsor Capital Portfolio Junior Companion Loan"). Together each
Split Mortgage Loan and the related Companion Loan (including the Oakmonte
Senior Portion and the related Oakmonte Junior Portion) is referred to as a
"Loan Pair." The Companion Loans (other than the Oakmonte Junior Portion) are
not part of the Trust Fund. The Oakmonte Junior Portion shall be represented by
the Class Y Certificates. The relative rights of each holder of a Split Mortgage
Loan (other than the Oakmonte Junior Portion) and the related Companion Loan are
set forth in a co-lender agreement (each a "Loan Pair Co-Lender Agreement")
between the holder of the Mortgage Note for the Split Mortgage Loan and the
holder of the mortgage note for the related Companion Loan. Pursuant to each
Loan Pair Co-Lender Agreement, each Loan Pair, other than the 000 Xxxxx Xxxxxx
Xxxxx A/B Loan, are to be serviced and administered in accordance with this
Agreement, by the Master Servicer and the Special Servicer hereunder. The 000
Xxxxx Xxxxxx Xxxxx A/B Loan, including the 000 Xxxxx Xxxxxx Xxxxx Trust Loan
will be serviced and administered in accordance with the Pooling and Servicing
Agreement (the "2002-C1 PSA") dated December 30, 2002, by and among Greenwich
Capital Commercial Funding Corp., as depositor (the "2002-C1 Depositor"),
Wachovia Bank, National Association, as master servicer (the "2002-C1 Master
Servicer"), Lennar Partners, Inc., as special servicer (the "2002-C1 Special
Servicer"), LaSalle Bank National Association, as trustee (the "2002-C1
Trustee"), and ABN AMRO Bank N.V., as fiscal agent (the "2002-C1 Fiscal Agent"),
pursuant to which Commercial Mortgage Pass-Through Certificates, Series 2002-C1
were issued.
Capitalized terms used but not otherwise defined in this Preliminary
Statement have the respective meanings assigned thereto in Section 1.01 of this
Agreement.
In consideration of the mutual agreements herein contained, the
Depositor, the Master Servicer, the Special Servicer, the Trustee and the Fiscal
Agent hereby agree, in each case, as follows:
ARTICLE I
DEFINITIONS; GENERAL INTERPRETIVE PRINCIPLES
Section 1.01 Defined Terms.
Whenever used in this Agreement, including in the Preliminary
Statement, unless the context otherwise requires:
"2002-C1 Certificates" shall mean the Commercial Mortgage
Pass-Through Certificates, Series 2002-C1 issued under the 2002-C1 PSA.
"2002-C1 Class SWD-B Certificates" shall mean the class SWD-B
certificates issued under the 2002-C1 PSA.
"2002-C1 Depositor" shall have the meaning assigned thereto in the
Preliminary Statement.
"2002-C1 Fiscal Agent" shall have the meaning assigned thereto in
the Preliminary Statement.
"2002-C1 Master Servicer" shall have the meaning assigned thereto in
the Preliminary Statement.
"2002-C1 PSA" shall have the meaning assigned thereto in the
Preliminary Statement.
"2002-C1 Special Servicer" shall have the meaning assigned thereto
in the Preliminary Statement.
"2002-C1 Trustee" shall have the meaning assigned thereto in the
Preliminary Statement.
"30/360 Basis" shall mean the accrual of interest calculated on the
basis of a 360-day year consisting of twelve 30-day months.
"311 South Xxxxxx Drive A/B Loan" shall have the meaning assigned
thereto in the Preliminary Statement.
"311 South Xxxxxx Drive Junior Companion Loan" shall have the
meaning assigned thereto in the Preliminary Statement.
"311 South Xxxxxx Drive Pari Passu Companion Loan" shall have the
meaning assigned thereto in the Preliminary Statement.
"311 South Xxxxxx Drive Senior Loans" shall have the meaning
assigned thereto in the Preliminary Statement.
"311 South Xxxxxx Drive Trust Loan" shall have the meaning assigned
thereto in the Preliminary Statement.
"ABN AMRO" shall mean ABN AMRO Bank N.V. or its successor in
interest.
"Acceptable Insurance Default" shall mean, with respect to any
Mortgage Loan (other than the 000 Xxxxx Xxxxxx Xxxxx Trust Loan), any default
under the related loan documents resulting from (a) the exclusion of acts of
terrorism from coverage under the related all risk casualty insurance policy
maintained on the subject Mortgaged Property and (b) the related Mortgagor's
failure to obtain insurance that specifically covers acts of terrorism, but only
if the Master Servicer (in the case of a Performing Serviced Loan) or Special
Servicer (in the case of a Specially Serviced Mortgage Loan) has determined, in
its reasonable judgment, that (i) such insurance is not available at
commercially reasonable rates and the subject hazards are not commonly insured
against at the time by prudent owners of similar real properties in and around
the region in which the subject Mortgaged Property is located (but only by
reference to such insurance that has been obtained by such owners at current
market rates), or (ii) such insurance is not available at any rate. Subject to
the Servicing Standard, in making any of the determinations required in
subclause (i) or (ii) of this definition, the Master Servicer or the Special
Servicer, as the case may be, shall be entitled to rely on the opinion of an
insurance consultant.
"Accrued Certificate Interest" shall mean the interest accrued from
time to time with respect to any Class of Regular Interest Certificates or Class
Y Certificates, the amount of which interest shall equal: (a) in the case of any
Class of Principal Balance Certificates for any Interest Accrual Period,
one-twelfth of the product of (i) the Pass-Through Rate applicable to such Class
of Certificates for such Interest Accrual Period, multiplied by (ii) the Class
Principal Balance of such Class of Certificates outstanding immediately prior to
the related Distribution Date; and (b) in the case of each Class of the Class X
Certificates for any Interest Accrual Period, the sum of the Accrued Component
Interest for all of the Components of such Class for such Distribution Date.
"Accrued Component Interest" shall mean, with respect to each
Component of the Class XP and Class XC Certificates for any Distribution Date,
one twelfth of the product of (i) Class XP Strip Rate or Class XC Strip Rate
applicable to such Component for such Distribution Date, and (ii) the Component
Notional Amount of such Component outstanding immediately prior to such
Distribution Date.
"Acquisition Date" shall mean, with respect to any REO Property, the
first day on which such REO Property is considered to be acquired by the Trust
Fund within the meaning of Treasury Regulations Section 1.856-6(b)(1), which
shall be the first day on which the Trust Fund is treated as the owner of such
REO Property for federal income tax purposes.
"Actual/360 Basis" shall mean the accrual of interest calculated on
the basis of the actual number of days elapsed during any interest accrual
period in a year assumed to consist of 360 days.
"Additional Designated Servicing Information" shall have the meaning
assigned thereto in Section 8.15(a).
"Additional Information" shall have the meaning assigned thereto in
Section 4.02(a).
"Additional Trust Fund Expense" shall mean any expense incurred with
respect to the Trust Fund and not otherwise included in the calculation of a
Realized Loss that would result in the Holders of Regular Interest Certificates
or the Class Y Certificates receiving less than the full amount of principal
and/or Distributable Certificate Interest or the Oakmonte Junior Interest
Distribution Amount, as applicable, to which they are entitled on any
Distribution Date.
"Administered REO Property" shall mean any REO Property that is, as
contemplated by Section 3.01, to be administered by the Special Servicer
hereunder.
"Administrative Cost Rate" shall mean, with respect to each Mortgage
Loan (or any successor REO Mortgage Loan with respect thereto), the rate per
annum specified as the "Administrative Cost Rate" on the Mortgage Loan Schedule,
which, for each such other Mortgage Loan (or successor REO Mortgage Loan) is
equal to the sum of the related Master Servicing Fee Rate and the Trustee Fee
Rate.
"Advance" shall mean any P&I Advance or Servicing Advance.
"Adverse Grantor Trust Event" shall have the meaning assigned
thereto in Section 10.02(e).
"Adverse Rating Event" shall mean, with respect to any Class of
Certificates, as of any date of determination, the qualification, downgrade or
withdrawal of any rating then assigned to such Class of Certificates by either
Rating Agency.
"Adverse REMIC Event" shall have the meaning assigned thereto in
Section 10.01(i).
"Affiliate" shall mean, with respect to any specified Person, any
other Person controlling or controlled by or under common control with such
specified Person. For the purposes of this definition, "control," when used with
respect to any specified Person, means the power to direct the management and
policies of such Person, directly or indirectly, whether through the ownership
of voting securities, by contract or otherwise, and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Agreement" shall mean this Pooling and Servicing Agreement,
together with all amendments hereof and supplements hereto.
"Annual Accountants' Report" shall have the meaning assigned thereto
in Section 3.14.
"Annual Performance Certification" shall have the meaning assigned
thereto in Section 3.13.
"Appraisal Reduction Amount" shall mean, with respect to any
Required Appraisal Loan, an amount (calculated (i) by the Special Servicer
initially as of the Determination Date immediately following the later of the
date on which the subject Mortgage Loan or Loan Pair became a Required Appraisal
Loan and the date on which the applicable Required Appraisal was obtained, and
(ii) by the Master Servicer as of each succeeding Determination Date during the
period that such Mortgage Loan or Loan Pair is a Required Appraisal Loan) equal
to the excess, if any, of: (a) the sum of, without duplication, (i) the Stated
Principal Balance of such Required Appraisal Loan, (ii) to the extent not
previously advanced by or on behalf of the Master Servicer, the Trustee or the
Fiscal Agent, all unpaid interest on such Required Appraisal Loan through the
most recent Due Date prior to the date of calculation (exclusive of any portion
thereof that represents Default Interest), (iii) all accrued and unpaid Special
Servicing Fees, Liquidation Fees and Workout Fees in respect of such Required
Appraisal Loan, (iv) all related unreimbursed Advances made by or on behalf of
(plus all accrued interest on such Advances payable to) the Master Servicer, the
Special Servicer, the Trustee and/or the Fiscal Agent with respect to such
Required Appraisal Loan, (v) any other unpaid Additional Trust Fund Expenses in
respect of such Required Appraisal Loan, and (vi) all currently due and unpaid
real estate taxes and assessments, insurance premiums and, if applicable, ground
rents, and any unfunded improvement or other applicable reserves, in respect of
the related Mortgaged Property or REO Property, as the case may be (in each
case, net of any amounts escrowed with the Master Servicer or the Special
Servicer for such items); over (b) the Required Appraisal Value. Notwithstanding
the foregoing, if (i) any Mortgage Loan or Loan Pair becomes a Required
Appraisal Loan, (ii) either (A) no Required Appraisal or update thereof has been
obtained or conducted, as applicable, in accordance with Section 3.09(a), with
respect to the related Mortgaged Property during the 12-month period prior to
the date such Mortgage Loan or Loan Pair became a Required Appraisal Loan or (B)
there shall have occurred since the date of the most recent Required Appraisal
or update thereof a material change in the circumstances surrounding the related
Mortgaged Property that would, in the Special Servicer's reasonable judgment,
materially affect the value of the related Mortgaged Property, and (iii) no new
Required Appraisal is obtained or conducted, as applicable, in accordance with
Section 3.09(a), within 60 days after such Mortgage Loan or Loan Pair became a
Required Appraisal Loan, then (x) until such new Required Appraisal is obtained
or conducted, as applicable, in accordance with Section 3.09(a), the Appraisal
Reduction Amount shall equal 25% of the Stated Principal Balance of such
Required Appraisal Loan, and (y) upon receipt or performance, as applicable, in
accordance with Section 3.09(a), of such Required Appraisal or update thereof by
the Special Servicer, the Appraisal Reduction Amount for such Required Appraisal
Loan shall be recalculated in accordance with the preceding sentence of this
definition. For purposes of this definition, each Required Appraisal Loan that
is part of a Cross-Collateralized Group shall be treated separately for the
purposes of calculating any Appraisal Reduction Amount.
Each Appraisal Reduction Amount shall be reduced to zero as of the
date the related Required Appraisal Loan ceases to be a Required Appraisal Loan,
and no Appraisal Reduction Amount shall exist as to any Mortgage Loan after it
has been paid in full, liquidated, repurchased or otherwise disposed of.
The Appraisal Reduction Amount relating to the Oakmonte Apartment
Homes Whole Loan shall be allocated first, to the Oakmonte Junior Portion up to
the Stated Principal Balance thereof, and then, to the Oakmonte Senior Portion.
"Appraised Value" shall mean, with respect to each Mortgaged
Property or Administered REO Property, the appraised value thereof based upon
the most recent appraisal or update thereof prepared by an Independent Appraiser
that is contained in the related Servicing File or, in the case of any such
property with or that had, as the case may be, an allocated loan amount of, or
securing a Loan or relating to an REO Loan, as the case may be, with a Stated
Principal Balance of, less than $2,000,000, either (a) the most recent appraisal
or update thereof that is contained in the related Servicing File or (b) the
most recent "desktop" value estimate performed by the Special Servicer that is
contained in the related Servicing File.
"Assignment of Leases" shall mean, with respect to any Mortgaged
Property, any assignment of leases, rents and profits or similar document or
instrument executed by the Mortgagor in connection with the origination of the
related Loan.
"Assumed Monthly Payment" shall mean: (a) with respect to any
Balloon Mortgage Loan (or the Windsor Capital Portfolio Pari Passu Companion
Loan) delinquent in respect of its Balloon Payment, for each Due Date coinciding
with or following its Stated Maturity Date as of which such Mortgage Loan
remains outstanding and part of the Trust Fund, or, in the case of the Windsor
Capital Portfolio Pari Passu Companion Loan, the related Mortgage Loan remains
part of the Trust Fund (provided that such Loan was not paid in full, and no
other Liquidation Event occurred in respect thereof, before the end of the
Collection Period in which the related Stated Maturity Date occurs), the
scheduled monthly payment of principal and/or interest deemed to be due in
respect of such Loan on such Due Date equal to the amount that would have been
due in respect thereof on such Due Date if such Loan had been required to
continue to accrue interest (other than Default Interest) in accordance with its
terms, and to pay principal in accordance with the amortization schedule (if
any) in effect immediately prior to, and without regard to the occurrence of,
the related Stated Maturity Date; (b) with respect to any REO Loan, for any Due
Date as of which the related REO Property remains part of the Trust Fund, or the
scheduled monthly payment of principal and/or interest deemed to be due in
respect thereof on such Due Date equal to the Monthly Payment (or, in the case
of a Balloon Loan described in clause (a) of this definition, the Assumed
Monthly Payment) that was due (or deemed due) in respect of the related Loan on
the last Due Date prior to its becoming an REO Loan.
"ASTM" shall mean the American Society for Testing and Materials.
"Authenticating Agent" shall mean any authenticating agent appointed
pursuant to Section 8.12 (or, in the absence of any such appointment, the
Trustee).
"Available Distribution Amount" shall mean, with respect to any
Distribution Date, an amount equal to: (a) the sum, without duplication, of the
following amounts (i) the aggregate amount of all payments and other collections
on or with respect to the Mortgage Loans and any REO Properties (including, with
respect to the 000 Xxxxx Xxxxxx Xxxxx Trust Loan, payment remitted by, or
advances made by, the 2002-C1 Master Servicer) that (A) were received as of the
end of the related Collection Period (or, in the case of the 000 Xxxxx Xxxxxx
Xxxxx Trust Loan, as of the Master Servicer Remittance Date) and (B) are on
deposit in the Distribution Account as of 12:00 noon (New York City time) on
such Distribution Date, (ii) the aggregate amount of any P&I Advances made by
the Master Servicer, the Trustee or the Fiscal Agent for distribution on the
Certificates (other than the Class Y Certificates) on such Distribution Date
pursuant to Section 4.03 and Section 4.03A, (iii) the aggregate amount deposited
by the Master Servicer in the Distribution Account for such Distribution Date
pursuant to Section 3.19(a) in connection with Prepayment Interest Shortfalls,
(iv) to the extent not included in clause (a)(i) of this definition, the
aggregate amount transferred from the Excess Liquidation Proceeds Account to the
Distribution Account pursuant to Section 3.05(d) in respect of such Distribution
Date and (v) to the extent not included in the amount described in clause (a)(i)
of this definition, if such Distribution Date occurs during March of 2004 or any
year thereafter, the aggregate of the Interest Reserve Amounts transferred from
the Interest Reserve Account to the Distribution Account in respect of the
Interest Reserve Mortgage Loans and any Interest Reserve REO Mortgage Loans for
distribution on such Distribution Date; net of (b) the portion of the aggregate
amount described in clause (a) of this definition that represents one or more of
the following: (i) Monthly Payments that are due on a Due Date following the end
of the related Collection Period, (ii) any amounts payable or reimbursable to
any Person from the Distribution Account pursuant to clauses (ii) through (vii)
of Section 3.05(b), (iii) Prepayment Premiums and/or Yield Maintenance Charges,
(iv) if such Distribution Date occurs during January of 2005 or of any year
thereafter that is not a leap year or during February of 2004 or any year
thereafter, the Interest Reserve Amounts with respect to the Interest Reserve
Mortgage Loans and any Interest Reserve REO Mortgage Loans to be withdrawn from
the Distribution Account and deposited into the Interest Reserve Account in
respect of such Distribution Date and held for future distribution, all pursuant
to Section 3.04(c), and (v) amounts deposited in the Distribution Account in
error; provided that clauses (b)(i) and (b)(iv) of this definition shall not
apply on Final Distribution Date. In the case of the Oakmonte Apartment Homes
Whole Loan, the Available Distribution Amount shall exclude those amounts
allocable to the Oakmonte Junior Portion pursuant to Section 4.01(l).
"Balloon Loan" shall mean any Loan that by its original terms or by
virtue of any modification entered into as of the Closing Date provides for an
amortization schedule extending beyond its Stated Maturity Date and as to which,
in accordance with such terms, the Scheduled Payment due on its Stated Maturity
Date is at least five times larger than the Scheduled Payment due on the Due
Date next preceding its Stated Maturity Date.
"Balloon Mortgage Loan" shall mean any Mortgage Loan that is a
Balloon Loan.
"Balloon Payment" shall mean, with respect to any Balloon Loan as of
any date of determination, the payment, other than any regularly scheduled
monthly payment, due with respect to such Loan at maturity.
"Bid Allocation" shall mean, with respect to the Master Servicer or
any Sub-Servicer and the proceeds of any bid pursuant to Section 7.01(c), the
amount of such proceeds (net of any expenses incurred in connection with such
bid and the transfer of servicing), multiplied by a fraction equal to (a) the
Servicer Fee Amount for the Master Servicer or such Sub-Servicer, as the case
may be, as of such date of determination, over (b) the aggregate of the Servicer
Fee Amounts for the Master Servicer and all of the Sub-Servicers as of such date
of determination.
"Book-Entry Certificate" shall mean any Certificate registered in
the name of the Depository or its nominee.
"Book-Entry Non-Registered Certificate" shall mean any
Non-Registered Certificate that constitutes a Book-Entry Certificate.
"Breach" shall have the meaning assigned thereto in Section 2.03(a).
"Business Day" shall mean any day other than a Saturday, a Sunday or
a day on which banking institutions in New York, New York, or in any of the
cities in which the Corporate Trust Office of the Trustee, the Primary Servicing
Office of the Master Servicer or the Primary Servicing Office of the Special
Servicer are located, are authorized or obligated by law or executive order to
remain closed.
"CERCLA" shall mean the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended.
"Certificates" shall mean any of the Class A-1, Class A-2, Class
A-3, Class A-4, Class XP, Class XC, Class B, Class C, Class D, Class E, Class F,
Class G, Class H, Class J, Class K, Class L, Class M, Class N, Class O, Class P,
Class Q, Class Y, Class R-I or Class R-II Certificates, as applicable.
"Certificate Factor" shall mean, with respect to any Class of
Regular Interest Certificates, as of any date of determination, a fraction,
expressed as a decimal carried to six places, the numerator of which is the then
current Class Principal Balance or Notional Amount, as the case may be, of such
Class of Regular Interest Certificates, and the denominator of which is the
Original Class Principal Balance or initial Notional Amount, as the case may be,
of such Class of Regular Interest Certificates.
"Certificate Owner" shall mean, with respect to a Book-Entry
Certificate, the Person who is the beneficial owner of such Certificate as
reflected on the books of the Depository or on the books of a Depository
Participant or on the books of an indirect participating brokerage firm for
which a Depository Participant acts as agent.
"Certificate Principal Balance" shall mean, with respect to any
Principal Balance Certificate, as of any date of determination, the then
outstanding principal balance of such Certificate equal to the product of (a)
the then Certificate Factor for the Class of Principal Balance Certificates to
which such Certificate belongs, multiplied by (b) the amount specified on the
face of such Certificate as the initial Certificate Principal Balance thereof.
"Certificate Register" shall mean the register maintained pursuant
to Section 5.02.
"Certificate Registrar" shall mean the registrar appointed pursuant
to Section 5.02.
"Certificateholder" shall mean the Person in whose name a
Certificate is registered in the Certificate Register, except that: (i) neither
a Disqualified Organization nor a Disqualified Non-United States Tax Person
shall be Holder of a Residual Interest Certificate for any purpose hereof; and
(ii) solely for the purposes of giving any consent, approval or waiver pursuant
to this Agreement that relates to the rights and/or obligations of any of the
Depositor, the Master Servicer, the Special Servicer, the Fiscal Agent or the
Trustee in its respective capacity as such, any Certificate registered in the
name of the Depositor, the Master Servicer, the Special Servicer, the Fiscal
Agent or the Trustee, as the case may be, or any Certificate registered in the
name of any of its Affiliates, shall be deemed not to be outstanding, and the
Voting Rights to which it is entitled shall not be taken into account in
determining whether the requisite percentage of Voting Rights necessary to
effect any such consent, approval or waiver that relates to it has been
obtained. The Certificate Registrar shall be entitled to request and rely upon a
certificate of the Depositor, the Master Servicer or the Special Servicer in
determining whether a Certificate is registered in the name of an Affiliate of
such Person. All references herein to "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 "Certificateholder" only the Person in whose name a Certificate
is registered in the Certificate Register.
"Certificateholder Reports" shall mean, collectively, the
Distribution Date Statement, the Mortgage Pool Data Update Report, the Loan
Payoff Notification Report and the CMSA Investor Reporting Package.
"Certification Parties" shall have the meaning assigned to such term
in Section 8.15(d).
"Certifying Person" shall have the meaning assigned to such term in
Section 8.15(d).
"Class" shall mean, collectively, all of the Certificates bearing
the same alphabetical and, if applicable, numerical class designation.
"Class A Certificates" shall mean the Class A-1, Class A-2, Class
A-3 and Class A-4 Certificates.
"Class A-1 Certificate" shall mean any one of the Certificates with
a "Class A-1" designation on the face thereof, substantially in the form of
Exhibit A-1 attached hereto, and evidencing a portion of a class of "regular
interests" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class A-2 Certificate" shall mean any one of the Certificates with
a "Class A-2" designation on the face thereof, substantially in the form of
Exhibit A-1 attached hereto, and evidencing a portion of a class of "regular
interests" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class A-3 Certificate" shall mean any one of the Certificates with
a "Class A-3" designation on the face thereof, substantially in the form of
Exhibit A-1 attached hereto, and evidencing a portion of a class of "regular
interests" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class A-4 Certificate" shall mean any one of the Certificates with
a "Class A-4" designation on the face thereof, substantially in the form of
Exhibit A-1 attached hereto, and evidencing a portion of a class of "regular
interests" in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class A Principal Distribution Cross-Over Date" shall mean the
first Distribution Date as of the commencement of business on which (i) the
Class A-1, Class A-2, Class A-3 and Class A-4 Certificates, or any two or more
of such Classes, remain outstanding and (ii) the aggregate of the Class
Principal Balances of the Class B, Class C, Class D, Class E, Class F, Class G,
Class H, Class J, Class K, Class L, Class M, Class N, Class O, Class P and Class
Q Certificates have been reduced to zero as a result of the allocation of
Realized Losses and Additional Trust Fund Expenses pursuant to Section 4.04(a).
"Class B Certificate" shall mean any one of the Certificates with a
"Class B" designation on the face thereof, substantially in the form of Exhibit
A-3 attached hereto, and evidencing a portion of a class of "regular interests"
in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class C Certificate" shall mean any one of the Certificates with a
"Class C" designation on the face thereof, substantially in the form of Exhibit
A-3 attached hereto, and evidencing a portion of a class of "regular interests"
in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class D Certificate" shall mean any one of the Certificates with a
"Class D" designation on the face thereof, substantially in the form of Exhibit
A-4 attached hereto, and evidencing a portion of a class of "regular interests"
in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class E Certificate" shall mean any one of the Certificates with a
"Class E" designation on the face thereof, substantially in the form of Exhibit
A-4 attached hereto, and evidencing a portion of a class of "regular interests"
in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class F Certificate" shall mean any one of the Certificates with a
"Class F" designation on the face thereof, substantially in the form of Exhibit
A-4 attached hereto, and evidencing a portion of a class of "regular interests"
in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class G Certificate" shall mean any one of the Certificates with a
"Class G" designation on the face thereof, substantially in the form of Exhibit
A-4 attached hereto, and evidencing a portion of a class of "regular interests"
in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class H Certificate" shall mean any of the Certificates with a
"Class H" designation on the face thereof, substantially in the form of Exhibit
A-4 attached hereto, and evidencing a portion of a class of "regular interests"
in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class J Certificate" shall mean any one of the Certificates with a
"Class J" designation on the face thereof, substantially in the form of Exhibit
A-4 attached hereto, and evidencing a portion of a class of "regular interests"
in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class K Certificate" shall mean any of the Certificates with a
"Class K" designation on the face thereof, substantially in the form of Exhibit
A-5 attached hereto, and evidencing a portion of a class of "regular interests"
in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class L Certificate" shall mean any of the Certificates with a
"Class L" designation on the face thereof, substantially in the form of Exhibit
A-5 attached hereto, and evidencing a portion of a class of "regular interests"
in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class M Certificate" shall mean any of the Certificates with a
"Class M" designation on the face thereof, substantially in the form of Exhibit
A-5 attached hereto, and evidencing a portion of a class of "regular interests"
in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class N Certificate" shall mean any of the Certificates with a
"Class N" designation on the face thereof, substantially in the form of Exhibit
A-5 attached hereto, and evidencing a portion of a class of "regular interests"
in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class O Certificate" shall mean any of the Certificates with a
"Class O" designation on the face thereof, substantially in the form of Exhibit
A-5 attached hereto, and evidencing a portion of a class of "regular interests"
in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class P Certificate" shall mean any of the Certificates with a
"Class P" designation on the face thereof, substantially in the form of Exhibit
A-5 attached hereto, and evidencing a portion of a class of "regular interests"
in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class Principal Balance" shall mean the aggregate principal balance
of any Class of Principal Balance Certificates outstanding as of any date of
determination. As of the Closing Date, the Class Principal Balance of each Class
of Principal Balance Certificates shall equal the Original Class Principal
Balance thereof. On each Distribution Date, the Class Principal Balance of each
Class of Principal Balance Certificates shall be permanently reduced by the
amount of any distributions of principal made thereon on such Distribution Date
pursuant to Section 4.01 or 9.01, as applicable, and shall be further
permanently reduced by the amount of any Realized Losses and Additional Trust
Fund Expenses deemed allocated thereto on such Distribution Date pursuant to
Section 4.04(a).
"Class Q Certificate" shall mean any of the Certificates with a
"Class Q" designation on the face thereof, substantially in the form of Exhibit
A-5 attached hereto, and evidencing a portion of a class of "regular interests"
in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class R-I Certificate" shall mean any one of the Certificates with
a "Class R-I" designation on the face thereof, substantially in the form of
Exhibit A-7 attached hereto, and evidencing a portion of the sole class of
"residual interests" in the Lower-Tier REMIC for purposes of the REMIC
Provisions.
"Class R-II Certificate" shall mean any one of the Certificates with
a "Class R-II" designation on the face thereof, substantially in the form of
Exhibit A-7 attached hereto, and evidencing a portion of the sole class of
"residual interests" in the Upper-Tier REMIC for purposes of the REMIC
Provisions.
"Class X Certificates" shall mean the Class XP Certificates and the
Class XC Certificates.
"Class XC Certificate" shall mean any one of the Certificates with a
"Class XC" designation on the face thereof, substantially in the form of Exhibit
A-2 attached hereto, and evidencing the Components and a portion of a class of
"regular interests" in the Upper-Tier REMIC for purposes of the REMIC
Provisions.
"Class XC Notional Amount" shall mean, with respect to the Class XC
Certificates and any date of determination, the sum of the then Component
Notional Amounts of all of the Components.
"Class XC Strip Rate" shall mean, with respect to (A) any Class of
Components (other than the Class XP Components) for any Distribution Date, a
rate per annum equal to (i) the Weighted Average Net Mortgage Rate for such
Distribution Date, minus (ii) the Pass-Through Rate for the Corresponding
Certificates and (B) the Class XP Components (i) for any Distribution Date
occurring on or before the related Class XP Component Crossover Date, (x) the
Weighted Average Net Mortgage Rate for such Distribution Date minus (y) the sum
of the Pass-Through Rate for the Corresponding Certificates for such
Distribution Date and the Class XP Strip Rate for such Component for such
Distribution Date, and (ii) for any Distribution Date occurring after the
related Class XP Component Crossover Date, a rate per annum equal to (x) the
Weighted Average Net Mortgage Rate for such Distribution Date, minus (y) the
Pass-Through Rate for the Corresponding Certificates. In no event shall any
Class XC Strip Rate be less than zero.
"Class XP Certificate" shall mean any one of the Certificates with a
"Class XP" designation on the face thereof, substantially in the form of Exhibit
A-2 attached hereto, and evidencing the Class XP Components and a portion of a
class of "regular interests" in the Upper-Tier REMIC.
"Class XP Component Crossover Date" shall mean (i) with respect to
Component X-A-1-2, the Distribution Date occurring in June 2004, (ii) with
respect to Component X-A-1-3, the Distribution Date occurring in June 2005,
(iii) with respect to Component X-A-1-4 and Component X-A-2-1, the Distribution
Date occurring in June 2006, (iv) with respect to Component X-A-2-2, the
Distribution Date occurring in June 2007, (v) with respect to Component X-A-2-3,
Component X-A-3-1 and Component X-H-1, the Distribution Date occurring in June
2008, (vi) with respect to Component X-A-3-2, Component X-A-4-1 and Component
X-H-2, the Distribution Date occurring in June 2009, and (vii) with respect to
Component X-A-4-2, Component X-B, Component X-C, Component X-D, Component X-E,
Component X-F, Component X-G and Component X-H-3, the Distribution Date in June
2010.
"Class XP Components" shall mean each of Component X-A-1-2,
Component X-A-1-3, Component X-A-1-4, Component X-A-2-1, Component X-A-2-2,
Component X-A-2-3, Component X-A-3-1, Component X-A-3-2, Component X-A-4-1,
Component X-A-4-2, Component X-B, Component X-C, Component X-D, Component X-E,
Component X-F, Component X-G, Component X-H-1, Component X-H-2 and Component
X-H-3.
"Class XP Notional Amount" shall mean, as of any date of
determination, the sum of the then Component Notional Amounts of the Class XP
Components.
"Class XP Reference Rate" shall mean, for any Distribution Date, the
rate per annum corresponding to such Distribution Date on Schedule IV.
"Class XP Strip Rate" shall mean, with respect to each of the Class
XP Components for any Distribution Date, a rate per annum equal to (i) for any
Distribution Date occurring on or before the related Class XP Component
Crossover Date, (x) the lesser of (I) the Weighted Average Net Mortgage Rate for
such Distribution Date and (II) the Class XP Reference Rate for such
Distribution Date minus (y) the Pass-Through Rate for the Corresponding
Certificates (provided that in no event shall any Class XP Strip Rate be less
than zero) and (ii) for any Distribution Date occurring after the related Class
XP Component Crossover Date, 0% per annum.
"Class Y Certificates" shall mean any of the Certificates with a
"Class Y" designation on the face thereof, substantially in the form of Exhibit
A-6 attached hereto, and evidencing an undivided beneficial interest in the
Oakmonte Junior Portion.
"Class Y Holder Repurchase Notice" shall have the meaning assigned
to such term in Section 3.18(p).
"Clearstream" shall mean Clearstream Banking, Societe Anonyme or any
successor.
"Closing Date" shall mean June 30, 2003.
"CMSA" shall mean the Commercial Mortgage Securities Association, or
any association or organization that is a successor thereto. If neither such
association nor any successor remains in existence, "CMSA" shall be deemed to
refer to such other association or organization as may exist whose principal
membership consists of servicers, trustees, issuers, placement agents and
underwriters generally involved in the commercial mortgage loan securitization
industry, which is the principal such association or organization in the
commercial mortgage loan securitization industry and one of whose principal
purposes is the establishment of industry standards for reporting
transaction-specific information relating to commercial mortgage pass-through
certificates and commercial mortgage-backed bonds and the commercial mortgage
loans and foreclosed properties underlying or backing them to investors holding
or owning such certificates or bonds, and any successor to such other
association or organization. If an organization or association described in one
of the preceding sentences of this definition does not exist, "CMSA" shall be
deemed to refer to such other association or organization as shall be selected
by the Master Servicer and reasonably acceptable to the Trustee, the Special
Servicer and the Directing Holder.
"CMSA Bond Level File" shall mean the monthly report substantially
in the form of, and containing the information called for in, the downloadable
form of the "Bond Level File" available as of the Closing Date on the CMSA
Website, or such other form for the presentation of such information and
containing such additional information as may from time to time be approved by
the CMSA for commercial mortgage securities transactions generally.
"CMSA Collateral Summary File" shall mean the report substantially
in the form of, and containing the information called for in, the downloadable
form of the "Collateral Summary File" available as of the Closing Date on the
CMSA Website, or such other form for the presentation of such information and
containing such additional information as may from time to time be approved by
the CMSA for commercial mortgage securities transactions generally.
"CMSA Comparative Financial Status Report" shall mean a report
substantially in the form of, and containing the information called for in, the
downloadable form of the "CMSA Comparative Financial Status Report" available as
of the Closing Date on the CMSA Website, or such other form for the presentation
of such information as may from time to time be approved by the CMSA for
commercial mortgage securities transactions generally.
"CMSA Delinquent Loan Status Report" shall mean a report
substantially in the form of, and containing the information called for in, the
downloadable form of the "CMSA Delinquent Loan Status Report" available as of
the Closing Date on the CMSA Website, or such other form for the presentation of
such information and containing such additional information as may from time to
time be approved by the CMSA for commercial mortgage securities transactions
generally.
"CMSA Financial File" shall mean a report substantially in the form
of, and containing the information called for in, the downloadable form of the
"Financial File" available as of the Closing Date on the CMSA Website, or such
other form for the presentation of such information and containing such
additional information as may from time to time be approved by the CMSA for
commercial mortgage securities transactions generally. The initial data for this
report shall be provided by the Mortgage Loan Seller.
"CMSA Historical Liquidation Report" shall mean a report
substantially in the form of, and containing the information called for in, the
downloadable form of the "Historical Liquidation Report" available as of the
Closing Date on the CMSA Website, or such other form for the presentation of
such information and containing such additional information as may from time to
time be approved by the CMSA for commercial mortgage securities transactions
generally.
"CMSA Historical Loan Modification and Corrected Mortgage Loan
Report" shall mean a report substantially in the form of, and containing the
information called for in, the downloadable form of the "Historical Loan
Modification and Corrected Mortgage Loan Report" available as of the Closing
Date on the CMSA Website, or such other form for the presentation of such
information and containing such additional information as may from time to time
be approved by the CMSA for commercial mortgage securities transactions
generally.
"CMSA Investor Reporting Package" shall mean, collectively:
(a) the following six electronic files: (i) CMSA Loan Setup File,
(ii) CMSA Loan Periodic Update File, (iii) CMSA Property File, (iv) CMSA
Bond Level File, (v) CMSA Financial File and (vi) CMSA Collateral Summary
File; and
(b) the following eight supplemental reports: (i) CMSA Delinquent
Loan Status Report, (ii) CMSA Historical Loan Modification and Corrected
Mortgage Loan Report, (iii) CMSA Historical Liquidation Report, (iv) CMSA
REO Status Report, (v) CMSA Operating Statement Analysis Report, (vi) CMSA
Comparative Financial Status Report, (vii) CMSA Servicer Watch List and
(viii) CMSA NOI Adjustment Worksheet.
"CMSA Loan Periodic Update File" shall mean the monthly report
substantially in the form of, and containing the information called for in, the
downloadable form of the "Loan Periodic Update File" available as of the Closing
Date on the CMSA Website, or such other form for the presentation of such
information and containing such additional information as may from time to time
be approved by the CMSA for commercial mortgage securities transactions
generally. The initial data for this report shall be provided by the Mortgage
Loan Seller.
"CMSA Loan Setup File" shall mean the report substantially in the
form of, and containing the information called for in, the downloadable form of
the "Loan Setup File" available as of the Closing Date on the CMSA Website, or
such other form for the presentation of such information and containing such
additional information as may from time to time be approved by the CMSA for
commercial mortgage securities transactions generally. The initial data for this
report shall be provided by the Mortgage Loan Seller.
"CMSA NOI Adjustment Worksheet" shall mean a report prepared by the
Master Servicer with respect to all the Performing Serviced Loans, and by the
Special Servicer with respect to Specially Serviced Loans and REO Loans, which
report shall be substantially in the form of, and contain the information called
for in, the downloadable form of the "NOI Adjustment Worksheet" available as of
the Closing Date on the CMSA Website, or such other form for the presentation of
such information and containing such additional information as may from time to
time be approved by the CMSA for commercial mortgage securities transactions
generally.
"CMSA Operating Statement Analysis Report" shall mean a report
substantially in the form of, and containing the information called for in, the
downloadable form of the "CMSA Operating Statement Analysis Report" available as
of the Closing Date on the CMSA Website or in such other form for the
presentation of such information and containing such additional information as
may from time to time be approved by the CMSA for commercial mortgage-backed
securities transactions generally.
"CMSA Property File" shall mean a report substantially in the form
of, and containing the information called for in, the downloadable form of the
"Property File" available as of the Closing Date on the CMSA Website, or such
other form for the presentation of such information and containing such
additional information as may from time to time be approved by the CMSA for
commercial mortgage securities transactions generally.
"CMSA REO Status Report" shall mean a report substantially in the
form of, and containing the information called for in, the downloadable form of
the "REO Status Report" available as of the Closing Date on the CMSA Website, or
in such other form for the presentation of such information and containing such
additional information as may from time to time be approved by the CMSA for
commercial mortgage securities transactions.
"CMSA Servicer Watch List" shall mean a report substantially in the
form of, and containing the information called for in, the downloadable form of
the "Servicer Watch List" available as of the Closing Date on the CMSA Website,
or in such other form for the presentation of such information and containing
such additional information as may from time to time be approved by the CMSA for
commercial mortgage securities transactions generally.
"CMSA Website" shall mean the CMSA's Website located at
"xxx.xxxx.xxx" or such other primary website as the CMSA may establish for
dissemination of its report forms.
"Code" shall mean the Internal Revenue Code of 1986 and regulations
promulgated thereunder, including temporary regulations and proposed regulations
to the extent that, by reason of their proposed effective date, could, as of the
date of any determination or opinion as to the tax consequences of any action or
proposed action or transaction, be applied to the Certificates.
"Collection Period" shall mean, with respect to any Distribution
Date or Master Servicer Remittance Date, the period commencing on the day
immediately following the Determination Date in the calendar month preceding the
month in which such Distribution Date or Master Servicer Remittance Date, as the
case may be, occurs (or, in the case of each of the initial Distribution Date
and the initial Master Servicer Remittance Date, commencing immediately
following the Cut-off Date) and ending on and including the Determination Date
in the calendar month in which such Distribution Date or Master Servicer
Remittance Date, as the case may be, occurs.
"Commission" shall mean the Securities and Exchange Commission or
any successor agency.
"Companion Loan" shall have the meaning assigned thereto in the
Preliminary Statement.
"Companion Loan Consulting Noteholder" shall mean, (i) with respect
to any Tier 3 Loan Pair (other than the Oakmonte Apartment Homes Whole Loan),
the holder of the related Companion Loan or its representative, as determined
pursuant to the related Loan Pair Co-Lender Agreement, that will be entitled to
the consultation rights set forth in the last paragraph of Section 6.11 and (ii)
with respect to the Oakmonte Apartment Homes Whole Loan, the Holder of the
majority interest in the Class Y Certificates that will be entitled to the
consultation rights set forth in the last paragraph of Section 6.11; the Master
Servicer or the Special Servicer may from time to time request the Trustee to
provide the identity of, and contact information for, such Class Y
Certificateholder.
"Companion Loan Noteholder" shall mean, with respect to any Loan
Pair, the Holder of the Mortgage Note for the related Companion Loan or, with
respect to the Oakmonte Junior Portion, the Holder of the Class Y Certificates.
"Components" shall mean each of Component X-A-1-1, Component
X-A-1-2, Component X-A-1-3, Component X-A-1-4, Component X-A-2-1, Component
X-A-2-2, Component X-A-2-3, Component X-A-3-1, Component X-A-3-2, Component
X-A-4-1, Component X-A-4-2, Component X-B, Component X-C, Component X-D,
Component X-E, Component X-F, Component X-G, Component X-H-1, Component X-H-2,
Component X-H-3, Component X-J, Component X-K, Component X-L, Component X-M,
Component X-N, Component X-O, Component X-P and Component X-Q.
"Component X-A-1-1" shall mean one of 28 components of the Class XC
Certificates having a Component Notional Amount which, as of any date of
determination, is equal to the then current Uncertificated Principal Balance of
Uncertificated Lower-Tier Interest LA-1-1.
"Component X-A-1-2" shall mean one of 28 components of the Class XC
Certificates and one of the 19 components of the Class XP Certificates having a
Component Notional Amount which, as of any date of determination, is equal to
the then current Uncertificated Principal Balance of Uncertificated Lower-Tier
Interest LA-1-2.
"Component X-A-1-3" shall mean one of 28 components of the Class XC
Certificates and one of the 19 components of the Class XP Certificates having a
Component Notional Amount which, as of any date of determination, is equal to
the then current Uncertificated Principal Balance of Uncertificated Lower-Tier
Interest LA-1-3.
"Component X-A-1-4" shall mean one of 28 components of the Class XC
Certificates and one of the 19 components of the Class XP Certificates having a
Component Notional Amount which, as of any date of determination, is equal to
the then current Uncertificated Principal Balance of Uncertificated Lower-Tier
Interest LA-1-4.
"Component X-A-2-1" shall mean one of 28 components of the Class XC
Certificates and one of the 19 components of the Class XP Certificates having a
Component Notional Amount which, as of any date of determination, is equal to
the then current Uncertificated Principal Balance of Uncertificated Lower-Tier
Interest LA-2-1.
"Component X-A-2-2" shall mean one of 28 components of the Class XC
Certificates and one of the 19 components of the Class XP Certificates having a
Component Notional Amount which, as of any date of determination, is equal to
the then current Uncertificated Principal Balance of Uncertificated Lower-Tier
Interest LA-2-2.
"Component X-A-2-3" shall mean one of 28 components of the Class XC
Certificates and one of the 19 components of the Class XP Certificates having a
Component Notional Amount which, as of any date of determination, is equal to
the then current Uncertificated Principal Balance of Uncertificated Lower-Tier
Interest LA-2-3.
"Component X-A-3-1" shall mean one of 28 components of the Class XC
Certificates and one of the 19 components of the Class XP Certificates having a
Component Notional Amount which, as of any date of determination, is equal to
the then current Uncertificated Principal Balance of Uncertificated Lower-Tier
Interest LA-3-1.
"Component X-A-3-2" shall mean one of 28 components of the Class XC
Certificates and one of the 19 components of the Class XP Certificates having a
Component Notional Amount which, as of any date of determination, is equal to
the then current Uncertificated Principal Balance of Uncertificated Lower-Tier
Interest LA-3-2.
"Component X-A-4-1" shall mean one of 28 components of the Class XC
Certificates and one of the 19 components of the Class XP Certificates having a
Component Notional Amount which, as of any date of determination, is equal to
the then current Uncertificated Principal Balance of Uncertificated Lower-Tier
Interest LA-4-1.
"Component X-A-4-2" shall mean one of 28 components of the Class XC
Certificates and one of the 19 components of the Class XP Certificates having a
Component Notional Amount which, as of any date of determination, is equal to
the then current Uncertificated Principal Balance of Uncertificated Lower-Tier
Interest LA-4-2.
"Component X-B" shall mean one of 28 components of the Class XC
Certificates and one of the 19 components of the Class XP Certificates having a
Component Notional Amount which, as of any date of determination, is equal to
the then current Uncertificated Principal Balance of Uncertificated Lower-Tier
Interest LB.
"Component X-C" shall mean one of 28 components of the Class XC
Certificates and one of the 19 components of the Class XP Certificates having a
Component Notional Amount which, as of any date of determination, is equal to
the then current Uncertificated Principal Balance of Uncertificated Lower-Tier
Interest LC.
"Component X-D" shall mean one of 28 components of the Class XC
Certificates and one of the 19 components of the Class XP Certificates having a
Component Notional Amount which, as of any date of determination, is equal to
the then current Uncertificated Principal Balance of Uncertificated Lower-Tier
Interest LD.
"Component X-E" shall mean one of 28 components of the Class XC
Certificates and one of the 19 components of the Class XP Certificates having a
Component Notional Amount which, as of any date of determination, is equal to
the then current Uncertificated Principal Balance of Uncertificated Lower-Tier
Interest LE.
"Component X-F" shall mean one of 28 components of the Class XC
Certificates and one of the 19 components of the Class XP Certificates having a
Component Notional Amount which, as of any date of determination, is equal to
the then current Uncertificated Principal Balance of Uncertificated Lower-Tier
Interest LF.
"Component X-G" shall mean one of 28 components of the Class XC
Certificates and one of the 19 components of the Class XP Certificates having a
Component Notional Amount which, as of any date of determination, is equal to
the then current Uncertificated Principal Balance of Uncertificated Lower-Tier
Interest LG.
"Component X-H-1" shall mean one of 28 components of the Class XC
Certificates and one of the 19 components of the Class XP Certificates having a
Component Notional Amount which, as of any date of determination, is equal to
the then current Uncertificated Principal Balance of Uncertificated Lower-Tier
Interest LH-1.
"Component X-H-2" shall mean one of 28 components of the Class XC
Certificates, one of the 19 components of the Class XP Certificates having a
Component Notional Amount which, as of any date of determination, is equal to
the then current Uncertificated Principal Balance of Uncertificated Lower-Tier
Interest LH-2.
"Component X-H-3" shall mean one of 28 components of the Class XC
Certificates and one of the 19 components of the Class XP Certificates having a
Component Notional Amount which, as of any date of determination, is equal to
the then current Uncertificated Principal Balance of Uncertificated Lower-Tier
Interest LH-3.
"Component X-J" shall mean one of 28 components of the Class XC
Certificates, one of the 19 components of the Class XP Certificates having a
Component Notional Amount which, as of any date of determination, is equal to
the then current Uncertificated Principal Balance of Uncertificated Lower-Tier
Interest LJ.
"Component X-K" shall mean one of 28 components of the Class XC
Certificates and one of the 19 components of the Class XP Certificates having a
Component Notional Amount which, as of any date of determination, is equal to
the then current Uncertificated Principal Balance of Uncertificated Lower-Tier
Interest LK.
"Component X-L" shall mean one of 28 components of the Class XC
Certificates, one of the 19 components of the Class XP Certificates having a
Component Notional Amount which, as of any date of determination, is equal to
the then current Uncertificated Principal Balance of Uncertificated Lower-Tier
Interest LL.
"Component X-M" shall mean one of 28 components of the Class XC
Certificates having a Component Notional Amount which, as of any date of
determination, is equal to the then current Uncertificated Principal Balance of
Uncertificated Lower-Tier Interest LM.
"Component X-N" shall mean one of 28 components of the Class XC
Certificates having a Component Notional Amount which, as of any date of
determination, is equal to the then current Uncertificated Principal Balance of
Uncertificated Lower-Tier Interest LN.
"Component X-O" shall mean one of 28 components of the Class XC
Certificates having a Component Notional Amount which, as of any date of
determination, is equal to the then current Uncertificated Principal Balance of
Uncertificated Lower-Tier Interest LO.
"Component X-P" shall mean one of 28 components of the Class XC
Certificates having a Component Notional Amount which, as of any date of
determination, is equal to the then current Uncertificated Principal Balance of
Uncertificated Lower-Tier Interest LP.
"Component X-Q" shall mean one of 28 components of the Class XC
Certificates having a Component Notional Amount which, as of any date of
determination, is equal to the then current Uncertificated Principal Balance of
Uncertificated Lower-Tier Interest LQ.
"Component Notional Amount": With respect to each Component and any
date of determination, an amount equal to the then current Uncertificated
Principal Balance of its Corresponding Uncertificated Lower-Tier Interest.
"Condemnation Proceeds" shall mean all cash amounts received in
connection with the taking of all or a part of a Mortgaged Property or REO
Property by exercise of the power of eminent domain or condemnation, subject,
however, to the rights of any tenants and ground lessors, as the case may be,
and the terms of the related Mortgage.
"Consultation Appraisal Event" shall mean with respect to any Tier 3
Loan Pair that the initial balance of the related Companion Loan (or in the case
of the Oakmonte Apartment Homes Whole Loan, the initial Stated Principal Balance
of the Oakmonte Junior Portion) net of any principal payments, Appraisal
Reduction Amounts and (without duplication), Realized Losses allocated to such
Companion Loan is less than 25% of the initial balance of such Companion Loan
(or in the case of the Oakmonte Apartment Homes Whole Loan, the initial Stated
Principal Balance of the Oakmonte Junior Portion).
"Control Appraisal Event" shall mean with respect to any Tier 1 Loan
Pair or Tier 2 Loan Pair (other than the 000 Xxxxx Xxxxxx Xxxxx A/B Loan) that
(i) the initial balance of the related Companion Loan net of any principal
payments, Appraisal Reduction Amounts and (without duplication), Realized Losses
allocated to such Companion Loan, is less than (ii) 25% of the initial balance
of such Companion Loan, and in the case of the Windsor Capital Portfolio Junior
Companion Loan, as reduced by principal payments allocated to, or received on,
such Companion Loan.
"Controlling Class" shall mean the Class of Principal Balance
Certificates with the latest alphabetical Class designation that has a
then-aggregate Class Principal Balance that is not less than 25% of the Original
Class Principal Balance of such Class; provided that if no Class of Principal
Balance Certificates has, as of such date of determination, a Class Principal
Balance that meets such requirements, then the Controlling Class shall be the
then outstanding Class of Principal Balance Certificates bearing the latest
alphabetic Class designation that has a Class Principal Balance greater than
zero; and provided, further, that, for purposes of determining the Controlling
Class, the Class A-1, Class A-2, Class A-3 and Class A-4 Certificates shall be
deemed a single Class of Certificates. As of the Closing Date, the Controlling
Class will be the Class Q Certificates. If the Controlling Class consists of
Book-Entry Certificates, then the rights of the Holders of the Controlling Class
set forth in this Agreement may be exercised directly by the relevant
Certificate Owners, provided that the identity of such Certificate Owners has
been confirmed to the Trustee to its reasonable satisfaction.
"Controlling Class Certificateholder" shall mean any Holder of a
Certificate of the Controlling Class.
"Controlling Class Directing Holder" shall mean the Holder or
Holders of greater than 50% of the Voting Rights assigned to the Controlling
Class; provided that no Holder of Voting Rights allocated to the Controlling
Class may exercise any rights of such Class with respect to any Loan as to which
such Holder is a Mortgagor Affiliate Holder.
"Corporate Trust Office" shall mean the principal corporate trust
office of the Trustee at which at any particular time its asset-backed
securities trust business with respect to this Agreement shall be administered,
which office at the date of the execution of this Agreement is located at 000
Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, Attention:
Asset-Backed Securities Trust Services Group - Greenwich Capital Commercial
Funding Corp. Commercial Mortgage Trust Series 2003-C1.
"Corrected Loan" shall mean any Mortgage Loan that had been a
Specially Serviced Loan but has ceased to be such in accordance with the
definition of "Specially Serviced Loan" (other than by reason of a Liquidation
Event occurring in respect of such Loan or the related Mortgaged Property's
becoming an REO Property).
"Corresponding Certificate" shall have the meaning assigned thereto
in the Preliminary Statement with respect to any Corresponding Component or any
Corresponding Uncertificated Lower-Tier Interest.
"Corresponding Component" shall have the meaning assigned thereto in
the Preliminary Statement with respect to any Corresponding Certificate or any
Corresponding Uncertificated Lower-Tier Interest.
"Corresponding Uncertificated Lower-Tier Interest" shall have the
meaning assigned thereto in the Preliminary Statement with respect to any
Corresponding Certificate or any Corresponding Component.
"Cross-Collateralized Group" shall mean any group of
Cross-Collateralized Mortgage Loans.
"Cross-Collateralized Mortgage Loan" shall mean any Mortgage Loan
that is cross-defaulted and cross-collateralized with any other Mortgage Loan.
"Custodial Account" shall mean either of the Pool Custodial Account
or any Loan Pair Custodial Account.
"Custodian" shall mean a Person who is at any time appointed by the
Trustee pursuant to Section 8.11 as a document custodian for the Mortgage Files,
which Person shall not be the Depositor, the Mortgage Loan Seller or an
Affiliate of the Depositor or the Mortgage Loan Seller. If no such custodian has
been appointed, or if such custodian has been so appointed but the Trustee shall
have terminated such appointment, then the Trustee shall be the Custodian.
"Cut-off Date" shall mean June 1, 2003.
"Cut-off Date Balance" shall mean, with respect to any Loan (other
than the Mortgage Loans, identified on the Mortgage Loan Schedule as 000 Xxxxx
Xxxxxxxx, Xxxxx at Chapel Hill, Wilmington Storage and One Broadway, with
respect to each of which the Cut-off Date Balance shall mean the outstanding
principal balance of such Loan as of the respective date of its origination),
the outstanding principal balance of such Loan as of the Cut-off Date, net of
all unpaid payments of principal due in respect thereof on or before such date.
"Default Charges" shall mean Default Interest and/or late payment
charges that are paid or payable, as the context may require, to the Trust in
respect of any Serviced Loan or any successor REO Loan with respect thereto.
"Default Interest" shall mean, with respect to any Serviced Loan or
any successor REO Loan with respect thereto, any amounts received thereon (other
than late payment charges, Prepayment Premiums or Yield Maintenance Charges)
that represent penalty interest (arising out of a default) in excess of interest
accrued on the principal balance of such Loan (or successor REO Loan), at the
related Mortgage Rate.
"Defaulting Party" shall have the meaning assigned thereto in
Section 7.01(b).
"Defeasance Certificate" shall have the meaning assigned thereto in
Section 3.20(k).
"Defeasance Collateral" shall mean, with respect to any Defeasance
Loan, the Government Securities required or permitted to be pledged in lieu of
prepayment pursuant to the terms thereof in order to obtain a release of the
related Mortgaged Property.
"Defeasance Deposit Account" shall have the meaning assigned thereto
in Section 3.04(a).
"Defeasance Loan" shall mean any Serviced Loan which requires the
related Mortgagor (or permits the holder of such loan to require the related
Mortgagor) to pledge Defeasance Collateral to the holder of such loan in lieu of
prepayment.
"Definitive Certificate" shall have the meaning assigned thereto in
Section 5.03(a).
"Definitive Non-Registered Certificate" shall mean any
Non-Registered Certificate that has been issued as a Definitive Certificate.
"Depositor" shall mean Greenwich Capital Commercial Funding Corp.
"Depository" shall mean The Depository Trust Company or any
successor Depository hereafter named as contemplated by Section 5.03(c). The
nominee of the initial Depository for purposes of registering those Certificates
that are to be Book-Entry Certificates, is Cede & Co. The Depository shall at
all times be a "clearing corporation" as defined in Section 8-102(3) of the
Uniform Commercial Code of the State of New York and a "clearing agency"
registered pursuant to the provisions of Section 17A of the Exchange Act.
"Depository Participant" shall mean a broker, dealer, bank or other
financial institution or other Person for whom from time to time the Depository
effects book-entry transfers and pledges of securities deposited with the
Depository.
"Determination Date" shall mean the first calendar day of each month
(or, if such first day is not a Business Day, the Business Day immediately
following such first day), commencing in July 2003.
"Directing Holder" shall mean with respect to any Tier 1 Loan Pair
or Tier 2 Loan Pair, the person selected by the related Loan Pair Directing
Holder, and with respect to any other Mortgage Loan (including Mortgage Loans
relating a Tier 3 Loan Pair and any Mortgage Loan not part of a Loan Pair, but
not including the 000 Xxxxx Xxxxxx Xxxxx A/B Loan), the person selected by the
Controlling Class Directing Holder; provided, however, that (i) absent such
selection, or (ii) until a Directing Holder is so selected or (iii) upon receipt
of a notice from the Controlling Class Directing Holder or Loan Pair Directing
Holder, as applicable, that a Directing Holder is no longer designated, the
Controlling Class Directing Holder and/or the Loan Pair Directing Holder, as
applicable, will be the Directing Holder; provided, further, that, in the case
of a Directing Holder selected by the Controlling Class Directing Holder, in
order for the Trustee to certify the status of such Directing Holder, the
Directing Holder must provide notice and certification to the Trustee as to its
status as Directing Holder, and the Trustee shall provide written notice to the
Controlling Class Certificateholders as to the designation of such Directing
Holder. No Mortgagor Affiliate Holder may be a Directing Holder. The Trustee
acknowledges and agrees that with respect to each Tier 1 Loan Pair and Tier 2
Loan Pair the Person set forth on Schedule V shall be designated as the initial
Directing Holder with respect to the related Loan Pair, and that no further
notice of such selection is required. In addition, the parties to this Agreement
hereby acknowledge that a Loan Pair Directing Holder may appoint itself (or any
of its affiliates) to act as Directing Holder. In the event that a Loan Pair
Directing Holder appoints a third party (including any affiliate) to act as
Directing Holder, none of the parties to this Agreement shall be obligated to
recognize such appointment unless such Loan Pair Directing Holder shall have
delivered to each party to this Agreement a certification regarding such
appointment. Any Loan Pair Directing Holder that is a Directing Holder may, in
its capacity as Directing Holder, only control, direct, prohibit or be consulted
with respect to the enforcement of the related Mortgage or the servicing and
administration of the related Loan Pair to the extent set forth in this
Agreement. A Directing Holder shall be required to keep all non-public
information received by it in such capacity pursuant to this Agreement
confidential and, upon its designation as such, shall deliver to the Trustee a
written confidentiality agreement executed by such Directing Holder, in the form
of Exhibit M attached hereto.
In the case of the 000 Xxxxx Xxxxxx Xxxxx A/B Loan, which will be
serviced pursuant to the 0000-X0 XXX, the directing holder representative will
be appointed by the (i) the holder or holders of a majority in principal balance
of the 2002-C1 Class SWD-B Certificates or (ii) if such holder or holders is no
longer the directing holder, the holder or holders of the 2002-C1 Certificates
representing a majority interest in a designated controlling class of the
2002-C1 Certificates. The rights of the directing holder of the 000 Xxxxx Xxxxxx
Xxxxx A/B Loan are described in the 2002-C1 PSA and such directing holder shall
have no rights to advise the Master Servicer or the Special Servicer hereunder.
"Directly Operate" shall mean, with respect to any Administered REO
Property, the furnishing or rendering of services to the tenants thereof, the
management or operation of such REO Property, the holding of such REO Property
primarily for sale or lease, the performance of any construction work thereon or
any use of such REO Property in a trade or business conducted by the Lower-Tier
REMIC other than through an Independent Contractor; provided, however, that the
Trustee (or the Special Servicer or any Sub-Servicer on behalf of the Trustee)
shall not be considered to Directly Operate an Administered REO Property solely
because the Trustee (or the Special Servicer or any Sub-Servicer on behalf of
the Trustee) establishes rental terms, chooses tenants, enters into or renews
leases, deals with taxes and insurance, or makes decisions as to repairs or
capital expenditures with respect to such REO Property.
"Discount Rate" shall mean, with respect to any prepaid Mortgage
Loan or REO Mortgage Loan, for purposes of allocating any Prepayment Premium or
Yield Maintenance Charge received with respect thereto among the Class X-0,
Xxxxx X-0, Class A-3, Class A-4, Class B, Class C, Class D, Class E, Class F,
Class G, Class H and Class J Certificates, a rate equal to the yield (when
compounded monthly) on the U.S. Treasury issue (primary issue) with a maturity
date closest to the maturity for such prepaid Mortgage Loan or REO Mortgage
Loan, as published in Federal Reserve Statistical Release H.15 (519) published
by the Federal Reserve Board; provided that if there are two such U.S. Treasury
issues (a) with the same coupon, the issue with the lower yield shall apply, and
(b) with maturity dates equally close to the maturity date for such prepaid
Mortgage Loan or REO Mortgage Loan, the issue with the earliest maturity date
shall apply.
"Disqualified Non-United States Tax Person" shall mean, with respect
to any Residual Interest Certificate, any Non-United States Tax Person or agent
thereof other than: (1) a Non-United States Tax Person that (a) holds such
Residual Interest Certificate and, for purposes of Treasury Regulations Section
1.860G-3(a)(3), is subject to tax under Section 882 of the Code, (b) certifies
that it understands that, for purposes of Treasury Regulations Section
1.860E-1(c)(4)(ii), as a Holder of such Residual Interest Certificate for United
States federal income tax purposes, it may incur tax liabilities in excess of
any cash flows generated by such Residual Interest Certificate and intends to
pay taxes associated with holding such Residual Interest Certificate, and (c)
has furnished the Transferor and the Trustee with an effective IRS Form W-8ECI
or successor form and has agreed to update such form as required under the
applicable Treasury regulations; or (2) a Non-United States Tax Person that has
delivered to the Transferor, the Trustee and the Certificate Registrar an
opinion of nationally recognized tax counsel to the effect that (x) the Transfer
of such Residual Interest Certificate to it is in accordance with the
requirements of the Code and the regulations promulgated thereunder and (y) such
Transfer of such Residual Interest Certificate will not be disregarded for
United States federal income tax purposes.
"Disqualified Organization" shall mean any of the following: (i) the
United States, any State or any political subdivision thereof, any foreign
government, international organization, or any agency or instrumentality of any
of the foregoing; (ii) any organization (except certain farmers' cooperatives
described in Section 521 of the Code) that is exempt from the tax imposed by
Chapter 1 of the Code (unless such organization is subject to the tax imposed by
Section 511 of the Code on unrelated business income); (iii) rural electric and
telephone cooperatives described in Section 1381 of the Code; or (iv) any other
Person so designated by the Trustee or the Tax Administrator based upon an
Opinion of Counsel that the holding of an Ownership Interest in a Residual
Interest Certificate by such Person may cause the Trust Fund or any Person
having an Ownership Interest in any Class of Certificates, other than such
Person, to incur a liability for any federal tax imposed under the Code that
would not otherwise be imposed but for the Transfer of an Ownership Interest in
a Residual Interest Certificate to such Person. The terms "United States,"
"State" and "international organization" shall have the meanings set forth in
Section 7701 of the Code or successor provisions.
"Disqualified Partnership" shall mean any domestic entity classified
as a partnership under the Code if any of its beneficial owners are Disqualified
Non-United States Tax Persons.
"Distributable Certificate Interest" shall mean, with respect to any
Class of Regular Interest Certificates for any Distribution Date, an amount of
interest equal to the amount of Accrued Certificate Interest in respect of such
Class of Certificates for the related Interest Accrual Period, reduced (to not
less than zero) by that portion, if any, of the Net Aggregate Prepayment
Interest Shortfall for such Distribution Date allocated to such Class of
Certificates as provided below. The Net Aggregate Prepayment Interest Shortfall,
if any, for each Distribution Date shall be allocated among the respective
Classes of Regular Interest Certificates on a pro rata basis in accordance with,
the respective amounts of Accrued Certificate Interest for each such Class of
Certificates for the related Interest Accrual Period.
"Distribution Account" shall mean the segregated account or accounts
created and maintained by the Trustee pursuant to Section 3.04(b), which shall
be entitled "LaSalle Bank National Association, as Trustee, in trust for the
registered holders of Greenwich Capital Commercial Funding Corp., Commercial
Mortgage Trust 2003-C1, Commercial Mortgage Pass-Through Certificates, Series
2003-C1" which account shall be deemed to consist of, collectively, the
Lower-Tier Distribution Account, the Upper-Tier Distribution Account, the
Oakmonte Junior Portion Sub-Account and the Interest Reserve Account.
"Distribution Date" shall mean the date each month, commencing in
July 2003, on which, among other things, the Trustee is to make distributions on
the Certificates, which date shall be the fifth day of the month, or if such
fifth day is not a Business Day, then the Business Day immediately following
such fifth day, provided that the Distribution Date will be at least four
Business Days following the related Determination Date.
"Distribution Date Statement" shall have the meaning assigned
thereto in Section 4.02(a).
"Document Defect" shall have the meaning assigned thereto in Section
2.03(a).
"Due Date" shall mean: (i) with respect to any Loan on or prior to
its Stated Maturity Date, the day of the month set forth in the related Mortgage
Note on which each Monthly Payment on such Loan is scheduled to be first due;
(ii) with respect to any Loan after its Stated Maturity Date, the day of the
month set forth in the related Mortgage Note on which each Monthly Payment on
such Loan had been scheduled to be first due; and (iii) with respect to any REO
Loan, the day of the month set forth in the related Mortgage Note on which each
Monthly Payment on the related Loan had been scheduled to be first due.
"XXXXX" shall mean the Commission's Electronic Data Gathering,
Analysis and Retrieval system.
"Eligible Account" shall mean any of: (i) an account maintained with
a federal or state chartered depository institution or trust company, the
long-term deposit or unsecured debt obligations of which are rated at least
"Aa3" by Moody's and at least "AA-" (or, if such depository institution or trust
company has short-term unsecured debt obligations rated at least "A-1" by S&P,
at least "A+") by S&P (or, in the case of any Rating Agency, such lower rating
as will not result in an Adverse Rating Event with respect to any Class of
Certificates, as evidenced in writing by such Rating Agency) at any time such
funds are on deposit therein (if such funds are to be held for more than 30
days), or the short-term deposits of which are rated at least "P-1" by Moody's
and at least "A-1" by S&P (or, in the case of any Rating Agency, such lower
rating as will not result in an Adverse Rating Event with respect to any Class
of Certificates, as evidenced in writing by such Rating Agency) at any time such
funds are on deposit therein (if such funds are to be held for 30 days or less);
or (ii) a segregated trust account maintained with the trust department of a
federal or state chartered depository institution or trust company acting in its
fiduciary capacity (which may be the Trustee), which has a combined capital and
surplus of at least $50,000,000, is subject to supervision or examination by
federal or state authority and, in the case of a state chartered depository
institution or trust company, is subject to regulations regarding fiduciary
funds on deposit therein substantially similar to 12 CFR ss. 9.10(b); or (iii)
any other account, the use of which would not, in and of itself, cause an
Adverse Rating Event with respect to any Class of Certificates, as evidenced in
writing by each Rating Agency.
"Environmental Assessment" shall mean a "Phase I assessment" as
described in and meeting the criteria of Chapter 5 of the Xxxxxx Xxx Multifamily
Guide and the ASTM Standard for Environmental Site Assessments, each as amended
from time to time.
"Environmental Insurance Policy" shall mean, with respect to any
Mortgaged Property or REO Property, any insurance policy covering pollution
conditions and/or other environmental conditions that is maintained from time to
time in respect of such Mortgaged Property or REO Property, as the case may be,
for the benefit of, among others, the Trustee on behalf of the
Certificateholders.
"Environmentally Insured Mortgage Loans" shall mean the Mortgage
Loans identified on Schedule III hereto.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended.
"Escrow Payment" shall mean any payment received by the Master
Servicer or the Special Servicer for the account of any Mortgagor for
application toward the payment of real estate taxes, assessments, insurance
premiums, ground rents (if applicable) and other items for which an escrow has
been created in respect of the related Mortgaged Property.
"Euroclear" shall mean The Euroclear System or any successor.
"Event of Default" shall have the meaning assigned thereto in
Section 7.01(a).
"Excess Liquidation Proceeds" shall mean, with respect to
Liquidation Proceeds allocable to a Mortgage Loan, the excess, if any, of (a)
the Net Liquidation Proceeds from the sale or liquidation of a Specially
Serviced Loan or Administered REO Property allocable to such Mortgage Loan, net
of (i) interest on any related Advances, (ii) any related Servicing Advances and
(iii) any Liquidation Fee payable from such Net Liquidation Proceeds, over (b)
the amount needed to pay off the Mortgage Loan or related REO Loan in full.
"Excess Liquidation Proceeds Account" shall mean the segregated
account created and maintained by the Trustee pursuant to Section 3.04(d) in
trust for the Certificateholders, which shall be entitled "LaSalle Bank National
Association, as Trustee, in trust for the registered Holders of Greenwich
Capital Commercial Funding Corp., Commercial Mortgage Trust 2003-C1, Commercial
Mortgage Pass-Through Certificates, Series 0000-X0".
"Xxxxxxxx Xxx" shall mean the Securities Exchange Act of 1934, as
amended.
"Exchange Act Reports" shall have the meaning assigned thereto in
Section 8.15(a).
"Exemption-Favored Party" shall mean any of (i) Greenwich Capital
Markets, (ii) any Person directly or indirectly, through one or more
intermediaries, controlling, controlled by or under common control with
Greenwich Capital Markets, and (iii) any member of any underwriting syndicate or
selling group of which any Person described in clauses (i) and (ii) is a manager
or co-manager with respect to a Class of Investment Grade Certificates.
"Xxxxxx Mae" shall mean the Federal National Mortgage Association or
any successor.
"FDIC" shall mean the Federal Deposit Insurance Corporation or any
successor.
"FHLMC" shall mean the Federal Home Loan Mortgage Corporation or any
successor.
"Final Distribution Date" shall mean the Distribution Date on which
the final distribution is to be made with respect to the Certificates in
connection with a termination of the Trust Fund pursuant to Article IX.
"Final Recovery Determination" shall mean a determination by the
Special Servicer with respect to any Specially Serviced Loan or Administered REO
Property that there has been a recovery of all Insurance Proceeds, Condemnation
Proceeds, Liquidation Proceeds and other payments or recoveries that the Special
Servicer has determined, in accordance with the Servicing Standard, will be
ultimately recoverable (or in the case of the 000 Xxxxx Xxxxxx Xxxxx A/B Loan, a
"Final Recovery Determination" as defined in the 2002-C1 PSA with respect to
such loan); provided that the term Final Recovery Determination shall not apply
to: (i) a Loan that was paid in full; or (ii) a Loan or REO Property, as the
case may be, that was purchased by (A) the Mortgage Loan Seller pursuant to
Section 2.03 and the Mortgage Loan Purchase Agreement, (B) a Purchase Option
Holder or its assignee pursuant to Section 3.18, (C) the Depositor, the Mortgage
Loan Seller, the Special Servicer, a Controlling Class Certificateholder or the
Master Servicer pursuant to Section 9.01, (D) the holder of a related mezzanine
loan in connection with a Loan default, as set forth in the related
intercreditor agreement, or (E) in the case of the Split Mortgage Loans, the
related Companion Loan Noteholder or its designee pursuant to the Loan Pair
Co-Lender Agreement or Section 3.18(p), as applicable.
"Fiscal Agent" shall mean ABN AMRO, in its capacity as fiscal agent
hereunder, or any successor fiscal agent appointed as herein provided.
"GAAP" shall mean generally accepted accounting principles in the
United States of America.
"Global Certificate" shall mean, with respect to any Class of
Book-Entry Non-Registered Certificates, either the related Rule 144A Global
Certificate or the Regulation S Global Certificate.
"Government Securities" shall mean "Government Securities" as
defined in Section 2(a)(16) of the Investment Company Act of 1940, excluding any
such securities that are not acceptable to either Rating Agency as Defeasance
Collateral.
"Grantor Trust" shall mean that certain "grantor trust" (within the
meaning of the Grantor Trust Provisions) consisting of the Grantor Trust Assets.
"Grantor Trust Assets" shall mean the Oakmonte Junior Portion, the
Oakmonte Junior Interest Distribution Amount, the Oakmonte Junior Principal
Distribution Amount, the Oakmonte Junior Portion Sub-Account and any proceeds
thereof.
"Grantor Trust Provisions" shall mean subpart E, Part I of
subchapter J of the Code, including Treasury regulation section
301.7701-4(c)(2).
"Greenwich Capital Markets" shall mean Greenwich Capital Markets,
Inc. or its successor in interest.
"Ground Lease" shall mean, with respect to any Mortgage Loan for
which the related Mortgagor has a leasehold interest in the related Mortgaged
Property, the lease agreement(s) (including any lease agreement with respect to
a master space lease) creating such leasehold interest.
"Hazardous Materials" shall mean any dangerous, toxic or hazardous
pollutants, chemicals, wastes, or substances, including, without limitation,
those so identified pursuant to CERCLA or any other federal, state or local
environmental related laws and regulations now existing or hereafter enacted,
and specifically including asbestos and asbestos-containing materials,
polychlorinated biphenyls, radon gas, petroleum and petroleum products, urea
formaldehyde and any substance classified as being "in inventory," "usable work
in process" or similar classification which would, if classified as unusable, be
included in the foregoing definition.
"Holder" shall mean a Certificateholder.
"HUD-Approved Servicer" shall mean a servicer that is a mortgagee
approved by the Secretary of Housing and Urban Development pursuant to Sections
203 and 211 of the National Housing Act.
"Independent" shall mean, when used with respect to any specified
Person, any such Person who (i) is in fact independent of the Depositor, the
Mortgage Loan Seller, the Master Servicer, the Special Servicer, any Controlling
Class Certificateholder, the Companion Loan Noteholder (and, in the case of the
000 Xxxxx Xxxxxx Xxxxx A/B Loan, any holder of the 2002-C1 Class SWD-B
Certificates issued under the 2002-C1 PSA) and any and all Affiliates thereof,
(ii) does not have any direct financial interest in or any material indirect
financial interest in any of the Depositor, the Mortgage Loan Seller, the Master
Servicer, the Special Servicer, any Controlling Class Certificateholder, the
Companion Loan Noteholder (and, in the case of the 000 Xxxxx Xxxxxx Xxxxx A/B
Loan, any holder of the 2002-C1 Class SWD-B Certificates issued under the
2002-C1 PSA) or any Affiliate thereof, and (iii) is not connected with the
Depositor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer,
any Controlling Class Certificateholder, the Companion Loan Noteholder (and, in
the case of the 000 Xxxxx Xxxxxx Xxxxx A/B Loan, any holder of the 2002-C1 Class
SWD-B Certificates issued under the 2002-C1 PSA) or any Affiliate thereof as an
officer, employee, promoter, underwriter, trustee, partner, director or Person
performing similar functions; provided, however, that a Person shall not fail to
be Independent of the Depositor, the Mortgage Loan Seller, the Master Servicer,
the Special Servicer, a Controlling Class Certificateholder, the Companion Loan
Noteholder (and, in the case of the 000 Xxxxx Xxxxxx Xxxxx A/B Loan, any holder
of the 2002-C1 Class SWD-B Certificates) or any Affiliate thereof merely because
such Person is the beneficial owner of 1% or less of any class of securities
issued by the Depositor, the Mortgage Loan Seller, the Master Servicer, the
Special Servicer, such Controlling Class Certificateholder, the Companion Loan
Noteholder (and, in the case of the 000 Xxxxx Xxxxxx Xxxxx A/B Loan, any holder
of the 2002-C1 Class SWD-B Certificates) or any Affiliate thereof, as the case
may be, provided that such ownership constitutes less than 1% of the total
assets owned by such Person.
"Independent Appraiser" shall mean an Independent professional real
estate appraiser who (i) is a member in good standing of the Appraisal
Institute, (ii) if the state in which the subject Mortgaged Property is located
certifies or licenses appraisers, is certified or licensed in such state, and
(iii) has a minimum of five years experience in the subject property type and
market.
"Independent Contractor" shall mean: (a) any Person that would be an
"independent contractor" with respect to the Lower-Tier REMIC within the meaning
of Section 856(d)(3) of the Code if the Lower-Tier REMIC were a real estate
investment trust (except that the ownership test set forth in that section shall
be considered to be met by any Person that owns, directly or indirectly, 35
percent or more of any Class of Certificates, or such other interest in any
Class of Certificates as is set forth in an Opinion of Counsel, which shall be
at no expense to the Master Servicer, the Special Servicer, the Trustee or the
Trust Fund, delivered to the Trustee (and, if any of the Loan Pairs are
affected, to the Companion Loan Noteholder), provided that (i) such REMIC Pool
does not receive or derive any income from such Person and (ii) the relationship
between such Person and such REMIC Pool is at arm's length, all within the
meaning of Treasury Regulations Section 1.856-4(b)(5); or (b) any other Person
upon receipt by the Trustee (and, if any of the Loan Pairs are affected, by the
related Companion Loan Noteholder) of an Opinion of Counsel, which shall be at
no expense to the Master Servicer, the Special Servicer, the Trustee or the
Trust Fund, to the effect that the taking of any action in respect of any REO
Property by such Person, subject to any conditions therein specified, that is
otherwise herein contemplated to be taken by an Independent Contractor, will not
cause such REO Property to cease to qualify as "foreclosure property" within the
meaning of Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the
Code, or cause any income realized in respect of such REO Property to fail to
qualify as Rents from Real Property, due to such Person's failure to be treated
as an Independent Contractor.
"Initial Bidder" shall have the meaning assigned thereto in Section
3.18(d).
"Initial Deposit" shall mean an aggregate amount of $170,887.64,
consisting of $42,181.95, $25,805.69, $43,500.00 and $59,400.00, with respect to
the Mortgage Loans identified on the Mortgage Loan Schedule as 000 Xxxxx
Xxxxxxxx, Xxxxx at Chapel Hill, Wilmington Storage and One Broadway,
respectively, which in each case represents the aggregate amount of interest
that would have accrued at the related Mortgage Rate on the Cut-off Date Balance
of such Mortgage Loan had such Mortgage Loan been originated on the Cut-off
Date, for the period from and including the Cut-off Date to but excluding the
date of origination of such Mortgage Loan.
"Initial Trust Balance" shall be as set forth in the Preliminary
Statement hereto and shall equal the aggregate Cut-off Date Balances of the
Mortgage Loans.
"Institutional Accredited Investor" or "IAI" shall mean an
"accredited investor" as defined in any of paragraphs (1), (2), (3) and (7) of
Rule 501(a) under the Securities Act or any entity in which all of the equity
owners come within such paragraphs.
"Insurance Policy" shall mean, with respect to any Loan, any hazard
insurance policy, flood insurance policy, title policy, Environmental Insurance
Policy or other insurance policy that is maintained from time to time in respect
of such Loan or the related Mortgaged Property.
"Insurance Proceeds" shall mean the proceeds paid under any
Insurance Policy, to the extent such proceeds are not applied to the restoration
of the related Mortgaged Property, released to the Mortgagor, or any tenants or
ground lessors, as the case may be, pursuant to the terms of the related
Mortgage or lease, in accordance with the Servicing Standard.
"Insured Environmental Event" shall have the meaning assigned
thereto in Section 3.07(d).
"Interest Accrual Basis" shall mean the basis on which interest
accrues in respect of any Loan, any Uncertificated Lower-Tier Interests or any
Class of Regular Interest Certificates, in each case consisting of one of the
following: (i) a 360-day year consisting of twelve 30-day months; (ii) actual
number of days elapsed in a 360-day year; (iii) actual number of days elapsed in
a 365-day year; or (iv) actual number of days elapsed in an actual calendar year
(taking account of leap year).
"Interest Accrual Period" shall mean with respect to any Class of
Regular Interest Certificates, Class Y Certificates or Uncertificated Lower-Tier
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.
"Interested Person" shall mean the Depositor, the Master Servicer,
the Special Servicer, the Trustee, the Fiscal Agent, any Certificateholder, or
any Affiliate of any such Person.
"Interest Reserve Account" shall mean the sub-account of the
Distribution Account, which is created and maintained by the Trustee pursuant to
Section 3.04(c) in trust for Certificateholders, which shall be entitled
"LaSalle Bank National Association, as Trustee, in trust for the registered
holders of Greenwich Capital Commercial Funding Corp., Commercial Mortgage Trust
2003-C1, Commercial Mortgage Pass-Through Certificates, Series 2003-C1".
"Interest Reserve Amount" shall mean, with respect to each Interest
Reserve Mortgage Loan and Interest Reserve REO Mortgage Loan, for any
Distribution Date that occurs during February of 2004 or February of any year
thereafter or during January of 2005 or January of any year thereafter that is
not a leap year, an amount equal to one day's interest accrued at the related
Mortgage Rate on the related Stated Principal Balance as of the Due Date in the
month in which such Distribution Date occurs (but prior to the application of
any amounts due on such Due Date), to the extent that a Monthly Payment is
received in respect thereof for such Due Date as of the related Determination
Date or a P&I Advance is made under this Agreement in respect thereof for such
Due Date by such Distribution Date.
"Interest Reserve Mortgage Loan" shall mean any Mortgage Loan that
accrues interest on an Actual/360 Basis.
"Interest Reserve REO Mortgage Loan" shall mean any REO Mortgage
Loan that relates to a predecessor Interest Reserve Mortgage Loan.
"Investment Account" shall have the meaning assigned thereto in
Section 3.06(a).
"Investment Grade Certificate" shall mean, as of any date of
determination, a Certificate that is rated in one of the four highest generic
rating categories by at least one Rating Agency.
"IRS" shall mean the Internal Revenue Service or any successor
agency.
"Late Collections" shall mean: (a) with respect to any Loan, all
amounts received in connection therewith during any Collection Period, whether
as payments, Insurance Proceeds, Condemnation Proceeds, Liquidation Proceeds or
otherwise, which represent late collections of the principal and/or interest
portions of a Monthly Payment (other than a Balloon Payment) or an Assumed
Monthly Payment in respect of such Loan due or deemed due on a Due Date in a
previous Collection Period, or on a Due Date coinciding with or preceding the
Cut-off Date, and not previously recovered; and (b) with respect to any REO
Loan, all amounts received in connection with the related REO Property during
any Collection Period, whether as Insurance Proceeds, Condemnation Proceeds,
Liquidation Proceeds, REO Revenues or otherwise, which represent late
collections of the principal and/or interest portions of a Monthly Payment
(other than a Balloon Payment) or an Assumed Monthly Payment in respect of the
predecessor Loan, or the principal and/or interest portions of an Assumed
Monthly Payment in respect of such REO Loan, due or deemed due on a Due Date in
a previous Collection Period and not previously recovered.
"Liquidation Event" shall mean: (a) with respect to any Loan, any of
the following events--(i) such Loan is paid in full, (ii) a Final Recovery
Determination is made with respect to such Loan, (iii) such Loan is repurchased
by the Mortgage Loan Seller pursuant to Section 2.03 and the Mortgage Loan
Purchase Agreement, (iv) such Loan is purchased by a Purchase Option Holder or
its assignee pursuant to Section 3.18, (v) such Loan is purchased by the
Depositor, the Special Servicer, the Mortgage Loan Seller, a Controlling Class
Certificateholder or the Master Servicer pursuant to Section 9.01, (vi) such
Mortgage Loan was transferred in connection with the exchange by a
Certificateholder of its Certificates for all the Mortgage Loans and each REO
Property remaining in the Trust Fund pursuant to Section 9.01; (vii) such Loan
is purchased by the holder of a related mezzanine loan on behalf of the related
Mortgagor in connection with a Loan default, as set forth in the related
intercreditor agreement, or (viii) in the case of any of the Split Mortgage
Loans, such Loan is purchased by the related Companion Loan Noteholder or its
designee (or, in the case of the 000 Xxxxx Xxxxxx Xxxxx A/B Loan, the holder or
holders of more than 50% of the class principal balance of the 2002-C1 Class
SWD-B Certificates or their designee) pursuant to the Loan Pair Co-Lender
Agreement; and (b) 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
Depositor, the Special Servicer, the Mortgage Loan Seller, a Controlling Class
Certificateholder or the Master Servicer pursuant to Section 9.01 or (iii) such
REO Property is acquired in exchange for all of the Certificates pursuant to
Section 9.01.
"Liquidation Expenses" shall mean all customary, reasonable and
necessary "out-of-pocket" costs and expenses due and owing (but not otherwise
covered by Servicing Advances) in connection with the liquidation of any
Specially Serviced Loan (or, in the case of a repurchase pursuant to Section
2.03, also a Serviced Loan) or REO Property pursuant to Sections 3.09 or 3.18 or
in connection with the final payoff of a Corrected Loan (including legal fees
and expenses, committee or referee fees and, if applicable, brokerage
commissions and conveyance taxes).
"Liquidation Fee" shall mean the fee designated as such in, and
payable to the Special Servicer in connection with certain specified events in
respect of a Specially Serviced Loan (or, in the case of a repurchase pursuant
to Section 2.03, also a Serviced Loan) or an Administered REO Property pursuant
to, Section 3.11(c).
"Liquidation Fee Rate" shall mean, with respect to each Specially
Serviced Loan (or, in the case of a repurchase pursuant to Section 2.03, also a
Serviced Loan) or Administered REO Property as to which a Liquidation Fee is
payable, 1.0%.
"Liquidation Proceeds" shall mean all cash amounts (other than
Insurance Proceeds and REO Revenues) received in connection with: (i) the full
or partial liquidation of a Mortgaged Property or other collateral constituting
security for a defaulted Loan, through trustee's sale, foreclosure sale, REO
Disposition or otherwise, exclusive of any portion thereof required to be
released to the related Mortgagor in accordance with applicable law and the
terms and conditions of the related Mortgage Note and Mortgage; (ii) the
realization upon any deficiency judgment obtained against a Mortgagor; (iii) the
purchase of a Specially Serviced Mortgage Loan by a Purchase Option Holder or
its assignee pursuant to Section 3.18; (iv) the repurchase of a Mortgage Loan by
the Mortgage Loan Seller pursuant to Section 2.03 and the Mortgage Loan Purchase
Agreement; (v) the purchase of a Mortgage Loan or REO Property by the Depositor,
the Mortgage Loan Seller, the Special Servicer, a Controlling Class
Certificateholder or the Master Servicer or acquisition thereof in exchange for
all the Certificates, in any event, pursuant to Section 9.01; (vi) the purchase
of a Loan by the holder of a related mezzanine loan on behalf of the related
Mortgagor in connection with a Loan default, as set forth in the related
intercreditor agreement; or (vii) in the case of any of the Split Mortgage
Loans, the purchase of such Mortgage Loan by the related Companion Loan
Noteholder or its designee (or in the case of the 000 Xxxxx Xxxxxx Xxxxx A/B
Loan, by the holder or holders of more than 50% of the class principal balance
of the 2002-C1 Class SWD-B Certificates, or their designee) pursuant to the Loan
Pair Co-Lender Agreement or Section 3.18(p), as applicable.
"Loan" shall mean any Mortgage Loan or Companion Loan.
"Loan Pair" shall have the meaning assigned thereto in the
Preliminary Statement (and shall include any successor REO Loans and the
Oakmonte Apartment Homes Whole Loan).
"Loan Pair Co-Lender Agreement" shall have the meaning assigned
thereto in the Preliminary Statement.
"Loan Pair Custodial Account" shall mean, with respect to any Loan
Pair, the segregated account or sub-accounts created and maintained by the
Master Servicer pursuant to Section 3.04A on behalf of the Holders of such Loan
Pair, which shall be entitled "Wachovia Bank, National Association, as Master
Servicer, in trust for LaSalle Bank National Association, as Trustee, for the
registered holders of Greenwich Capital Commercial Funding Corp., Commercial
Mortgage Trust 2003-C1, Commercial Mortgage Pass-Through Certificates, Series
2003-C1, and COMPANION LOAN NOTEHOLDERS, as their interests may appear."
"Loan Pair Directing Holder" with respect to any Tier 1 Loan Pair
and Tier 2 Loan Pair, (i) for so long as a Control Appraisal Event does not
exist and the holders of more than 50% of the unpaid principal amount of the
related Companion Loan (or in the case of the Windsor Capital Portfolio A/B
Loan, the holders of more than 50% of the unpaid principal amount of the Windsor
Capital Portfolio Junior Companion Loan) are not Mortgagor Affiliate Holders,
the Loan Pair Directing Holder will be the holder or holders of greater than 50%
of the unpaid principal amount of the related Companion Loan (or, in the case of
the Windsor Capital Portfolio A/B Loan, the holders of more than 50% of the
unpaid principal amount of the Windsor Capital Portfolio Junior Companion Loan)
and (ii) if a Control Appraisal Event does exist or if the holders of more than
50% of the unpaid principal amount of the related Companion Loan (or in the case
of the Windsor Capital Portfolio A/B Loan, the holders of more than 50% of the
unpaid principal amount of the Windsor Capital Portfolio Junior Companion Loan)
are Mortgagor Affiliate Holders, the Loan Pair Directing Holder will be the
Controlling Class Directing Holder (or, in the case of the Windsor Capital
Portfolio A/B Loan, the holders of more than 50% of the unpaid principal amount
of the Windsor Capital Portfolio Pari Passu Companion Loan, subject to certain
non-binding consultation rights of the Controlling Class Directing Holder set
forth in the related Loan Pair Co-Lender Agreement. For purposes of this
definition, in calculating the holders of more than 50% of the unpaid principal
amount of a Companion Loan (or in the case of the Windsor Capital Portfolio A/B
Loan, the holders of more than 50% of the unpaid principal amount of the Windsor
Capital Portfolio Junior Companion Loan), the unpaid principal amount of the
related Companion Loan (or in the case of the Windsor Capital Portfolio A/B
Loan, the unpaid principal amount of the Windsor Capital Portfolio Junior
Companion Loan) held by a Mortgagor Affiliate Holder shall be deemed to be zero,
except with respect to determining whether Holders of more 50% of the related
Companion Loan (or in the case of the Windsor Capital Portfolio A/B Loan, the
holders of more than 50% of the Windsor Capital Portfolio Junior Companion Loan)
are not Mortgagor Affiliate Holders. There shall not be a Loan Pair Directing
Holder with respect to any Tier 3 Loan Pair.
"Loan Pair Mortgaged Property" shall mean any of the properties
securing a Loan Pair.
"Loan Pair Noteholders" shall mean, with respect to each Loan Pair,
the Trustee, as Holder of the Mortgage Note or Mortgage Notes for the related
Split Mortgage Loan and the related Companion Loan Noteholder.
"Loan Pair Remittance Amount" shall mean, with respect to any Master
Servicer Remittance Date and each Loan Pair (other than the 000 Xxxxx Xxxxxx
Xxxxx A/B Loan), an amount equal to: (a) the aggregate amount of (i) all
payments and other collections on or with respect to the applicable Loan Pair
and the related Mortgaged Property (if it becomes an REO Property) that (A) were
received as of the close of business on the immediately preceding Determination
Date and (B) are on deposit or are required to be on deposit in the related Loan
Pair Custodial Account as of 12:00 noon (New York City time) on such Master
Servicer Remittance Date, including any such payments and other collections
transferred to the related Loan Pair Custodial Account from the related Loan
Pair REO Account (if established), and (ii) any and all P&I Advances made with
respect to the Split Mortgage Loan in such Loan Pair (or the Windsor Capital
Portfolio Pari Passu Companion Loan, if applicable) that is available for
remittance to the Pool Custodial Account; net of (b) the portion of the
aggregate amount described in clause (a) of this definition that represents one
or more of the following--(i) Monthly Payments that are due on a Due Date
following the end of the related Collection Period, (ii) any amount payable or
reimbursable to any Person from the related Loan Pair Custodial Account pursuant
to clauses (ii) through (xv) of Section 3.05A, and (iii) any amounts deposited
in the related Loan Pair Custodial Account in error.
"Loan Pair REO Account" shall mean the segregated account or
accounts created and maintained by the Special Servicer pursuant to Section 3.16
on behalf of the Certificateholders and the related Companion Noteholders, which
shall be entitled "GMAC Commercial Mortgage Corporation [OR THE NAME OF ANY
SUCCESSOR SPECIAL SERVICER], as Special Servicer, in trust for LaSalle Bank
National Association, as Trustee, for the registered holders of Greenwich
Capital Commercial Funding Corp., Commercial Mortgage Trust 2003-C1, Commercial
Mortgage Pass-Through Certificates, Series 2003-C1, and for [NAMES OF COMPANION
LOAN NOTEHOLDERS], as their interests may appear."
"Loan Pair REO Property" shall mean the Loan Pair Mortgaged
Property, if such Mortgaged Property becomes an REO Property hereunder.
"Loan Pair Servicing Reports" shall mean, with respect to any Loan
Pair, each of the CMSA Delinquent Loan Status Report, CMSA Historical Loan
Modification and Corrected Mortgage Loan Report, CMSA Historical Liquidation
Report, CMSA REO Status Report, Loan Payoff Notification Report, CMSA Loan
Periodic Update File, CMSA Property File, CMSA Financial File, CMSA Loan Setup
File, CMSA Servicer Watch List, CMSA Operating Statement Analysis, CMSA NOI
Adjustment Worksheet and CMSA Comparative Financial Status Report, each as may
be modified to reflect the fact that a single Mortgaged Property or REO
Property, as the case may be, is the subject of such report.
"Loan Payoff Notification Report" shall mean a report containing
substantially the information described in Exhibit E attached hereto, and
setting forth for each Serviced Loan as to which written notice of anticipated
payoff has been received by the Master Servicer as of the Determination Date
preceding the delivery of such report, among other things, the mortgage loan
number, the property name, the ending scheduled loan balance for the Collection
Period ending on such Determination Date, the expected date of payment, the
expected related Distribution Date and the estimated amount of the Yield
Maintenance Charge or Prepayment Premium due (if any).
"Lockout Period" shall mean, with respect to any Loan that prohibits
the Mortgagor from prepaying such loan until a date specified in the related
Mortgage Note or other loan document, the period from the Closing Date until
such specified date.
"Lower-Tier Distribution Account" shall mean the sub-account deemed
to be a part of the Distribution Account and maintained by the Trustee pursuant
to Section 3.04(b).
"Lower-Tier Distribution Amount" shall mean the aggregate of amounts
distributable to the Uncertificated Lower-Tier Interests pursuant to Section
4.01(i).
"Lower-Tier REMIC" shall mean the segregated pool of assets
constituting the primary trust created hereby and to be administered hereunder
with respect to which a separate REMIC election is to be made, and consisting
of: (i) the Mortgage Loans as from time to time are subject to this Agreement
and all payments under and proceeds of such Mortgage Loans received by the Trust
after the Closing Date (other than scheduled payments of interest and principal
due on or before the Cut-off Date), together with all documents included in the
related Mortgage Files; (ii) any REO Properties as from time to time are subject
to this Agreement and all income and proceeds therefrom (to the extent not
allocable to a Companion Loan); and (iii) such funds or assets as from time to
time are deposited in the Pool Custodial Account each Loan Pair Custodial
Account (to the extent related to the Mortgage Loans), the Lower-Tier
Distribution Account, the Interest Reserve Account and, if established, the Pool
REO Account and each Loan Pair REO Account (to the extent related to the
Mortgage Loans).
"Master Servicer" shall mean Wachovia Bank, National Association, in
its capacity as master servicer hereunder, or any successor master servicer
appointed as herein provided.
"Master Servicer Remittance Amount" shall mean, with respect to any
Master Servicer Remittance Date, an amount equal to: (a) the aggregate amount of
all payments and other collections on or with respect to the Serviced Mortgage
Loans and the 000 Xxxxx Xxxxxx Xxxxx Trust Loan and any related REO Properties
(including, with respect to the 000 Xxxxx Xxxxxx Xxxxx Trust Loan, payment
remitted by, or advances made by, the 2002-C1 Master Servicer) that (A) were
received as of the close of business on the immediately preceding Determination
Date (or in the case of the 000 Xxxxx Xxxxxx Xxxxx Trust Loan, as of the Master
Servicer Remittance Date) and (B) are on deposit or are required to be on
deposit in the Pool Custodial Account as of 12:00 noon (New York City time) on
such Master Servicer Remittance Date, including any such payments and other
collections transferred to the Pool Custodial Account from the Pool REO Account
(if established); net of (b) the portion of the aggregate amount described in
clause (a) of this definition that represents one or more of the following--(i)
Monthly Payments that are due on a Due Date following the end of the related
Collection Period, (ii) any amount payable or reimbursable to any Person from
the Pool Custodial Account pursuant to clauses (ii) through (xvii) of Section
3.05(a), (iii) any Excess Liquidation Proceeds and (iv) any amounts deposited in
the Pool Custodial Account in error.
"Master Servicer Remittance Date" shall mean the date each month,
commencing in July 2003, on which, among other things, the Master Servicer is
required to (i) make P&I Advances and (ii) transfer the Master Servicer
Remittance Amount and any Excess Liquidation Proceeds to the Trustee, which date
shall be the Business Day immediately preceding each Distribution Date.
"Master Servicing Fee" shall mean, with respect to each Serviced
Loan (including any related Companion Loan) and the 000 Xxxxx Xxxxxx Xxxxx Trust
Loan (and, in each case, any successor REO Loan with respect thereto), the fee
designated as such and payable to the Master Servicer pursuant to Section
3.11(a).
"Master Servicing Fee Rate" shall mean, with respect to each
Mortgage Loan, Companion Loan (other than 000 Xxxxx Xxxxxx Xxxxx Companion
Loans) and REO Mortgage Loan, the rate per annum specified as such on the
Mortgage Loan Schedule.
"Material Breach" shall have the meaning assigned thereto in Section
2.03(a).
"Material Document Defect" shall have the meaning assigned thereto
in Section 2.03(a).
"Modified Loan" shall mean any Serviced Loan as to which any
Servicing Transfer Event has occurred and which has been modified by the Special
Servicer pursuant to Section 3.20 in a manner that:
(a) affects the amount or timing of any payment of principal or
interest due thereon (other than, or in addition to, bringing Monthly
Payments current with respect to such Loan);
(b) except as expressly contemplated by the related loan documents,
results in a release of the lien of the related Mortgage on any material
portion of the related Mortgaged Property without a corresponding
Principal Prepayment in an amount, or the delivery of substitute real
property collateral with a fair market value (as is), that is not less
than the fair market value (as is) of the property to be released, as
determined by an appraisal delivered to the Special Servicer (at the
expense of the related Mortgagor and upon which the Special Servicer may
conclusively rely); or
(c) in the reasonable, good faith judgment of the Special Servicer,
otherwise materially impairs the security for such Loan or materially
reduces the likelihood of timely payment of amounts due thereon.
"Monthly Payment" shall mean, with respect to any Loan, as of any
Due Date, the scheduled monthly debt service payment on such Loan that is
actually payable by the related Mortgagor from time to time under the terms of
the related Mortgage Note (as such terms may be changed or modified in
connection with a bankruptcy or similar proceeding involving the related
Mortgagor or by reason of a modification, extension, waiver or amendment granted
or agreed to by the Master Servicer or the Special Servicer, as applicable,
pursuant to Section 3.20), including any Balloon Payment payable in respect of
such Loan on such Due Date; provided that the Monthly Payment due in respect of
any Loan shall not include Default Interest and provided, further, that, if the
related loan documents for any Loan Pair provide for a single monthly debt
service payment for the entire such Loan Pair, then the Monthly Payment for each
Mortgage Loan or Companion Loan, as applicable, included in such Loan Pair for
any Due Date shall be that portion of the monthly debt service payment for such
Loan Pair and such Due Date that is, in accordance with the related loan
documents and/or the related Loan Pair Co-Lender Agreement (or, in the case of
the Oakmonte Apartment Homes Whole Loan, Section 4.01(l)), allocable to interest
at the related Mortgage Rate on and/or principal of such Mortgage Loan or
Companion Loan, as applicable.
"Moody's" shall mean Xxxxx'x Investors Service, Inc. or its
successor in interest. If neither such rating agency nor any successor remains
in existence, "Moody's" shall be deemed to refer to such other nationally
recognized statistical rating agency or other comparable Person designated by
the Depositor, notice of which designation shall be given to the Trustee, the
Fiscal Agent, the Master Servicer and the Special Servicer, and specific ratings
of Xxxxx'x Investors Service, Inc. herein referenced shall be deemed to refer to
the equivalent ratings of the party so designated.
"Mortgage" shall mean, with respect to any Loan, the mortgage, deed
of trust, deed to secure debt or similar instrument that secures the related
Mortgage Note and creates a lien on the related Mortgaged Property.
"Mortgage File" shall mean:
(a) with respect to any Mortgage Loan and, in the case of any Loan
Pair, any Companion Loan, the following documents collectively (which, in
the case of a Loan Pair, except for the Mortgage Note referred to in
clause (i) and clause (vi) of this definition, relates to an entire Loan
Pair):
(i) (A) the original executed Mortgage Note for such Mortgage
Loan, endorsed (without recourse, representation or warranty,
express or implied) to the order of "LaSalle Bank National
Association, as trustee for the registered holders of Greenwich
Capital Commercial Funding Corp., Commercial Mortgage Trust 2003-C1,
Commercial Mortgage Pass-Through Certificates, Series 2003-C1" or in
blank, and further showing a complete, unbroken chain of endorsement
from the originator (if such originator is not the Mortgage Loan
Seller) (or, alternatively, if the original executed Mortgage Note
has been lost, a lost note affidavit and indemnity with a copy of
such Mortgage Note), and (B) in the case of a Loan Pair, a copy of
the executed Mortgage Note for the related Companion Loan;
(ii) an original or copy of the Mortgage, together with
originals or copies of any and all intervening assignments thereof,
in each case (unless the particular item has not been returned from
the applicable recording office) with evidence of recording
indicated thereon;
(iii) an original or copy of any related Assignment of Leases
(if such item is a document separate from the Mortgage), together
with originals or copies of any and all intervening assignments
thereof, in each case (unless the particular item has not been
returned from the applicable recording office) with evidence of
recording indicated thereon;
(iv) an original executed assignment, in recordable form
(except for recording information not yet available if the
instrument being assigned has not been returned from the applicable
recording office), of (A) the Mortgage and (B) any related
Assignment of Leases (if such item is a document separate from the
Mortgage), in favor of "LaSalle Bank National Association, in its
capacity as trustee for the registered holders of Greenwich Capital
Commercial Funding Corp., Commercial Mortgage Trust 2003-C1,
Commercial Mortgage Pass-Through Certificates, Series 2003-C1" (or,
in each case, a copy thereof, certified to be the copy of such
assignment submitted for recording);
(v) an original or copy of the assignment of all unrecorded
documents relating to the Mortgage Loan, in favor of "LaSalle Bank
National Association, as trustee for the registered holders of
Greenwich Capital Commercial Funding Corp., Commercial Mortgage
Trust 2003-C1, Commercial Mortgage Pass-Through Certificates, Series
2003-C1";
(vi) originals or copies of final written modification
agreements in those instances where the terms or provisions of the
Mortgage Note for such Mortgage Loan (or, if applicable, either
Mortgage Note of a Loan Pair) or the related Mortgage have been
modified as to a monetary term or other material term thereof, in
each case (unless the particular item has not been returned from the
applicable recording office) with evidence of recording indicated
thereon if the instrument being modified is a recordable document;
(vii) the original or a copy of the policy or certificate of
lender's title insurance issued in connection with such Mortgage
Loan (or, if such policy has not been issued, a "marked-up" pro
forma title policy marked as binding and countersigned by the title
insurer or its authorized agent, or an irrevocable, binding
commitment to issue such title insurance policy);
(viii) filed copies (with evidence of filing) of any prior
effective UCC Financing Statements in favor of the originator of
such Mortgage Loan or in favor of any assignee prior to the Trustee
(but only to the extent the Mortgage Loan Seller had possession of
such UCC Financing Statements prior to the Closing Date) and an
original UCC-2 or UCC-3 assignment thereof, as appropriate, in form
suitable for filing, in favor of "LaSalle Bank National Association,
in its capacity as trustee for the registered holders of Greenwich
Capital Commercial Funding Corp., Commercial Mortgage Trust 2003-C1,
Commercial Mortgage Pass-Through Certificates, Series 2003-C1";
(ix) an original or copy of the related Ground Lease relating
to such Mortgage Loan, if any;
(x) an original or copy of the related loan agreement, if any;
(xi) an original of the related guaranty of payment under, or
an original of the letter of credit (which original shall be
delivered by the Trustee to the Master Servicer with a copy
retained) in connection with, such Mortgage Loan, if any;
(xii) an original or copy of the lock-box agreement or cash
management agreement relating to such Mortgage Loan, if any;
(xiii) an original or copy of the environmental indemnity from
the related Mortgagor, if any;
(xiv) an original or copy of the related security agreement
(if such item is a document separate from the Mortgage) and, if
applicable, the originals or copies of any intervening assignments
thereof;
(xv) an original assignment of the related security agreement
(if such item is a document separate from the Mortgage and if such
item is not included in the assignment described in clause (v)), in
favor of "LaSalle Bank National Association, in its capacity as
trustee for the registered holders of Greenwich Capital Commercial
Funding Corp., Commercial Mortgage Trust 2003-C1, Commercial
Mortgage Pass-Through Certificates, Series 2003-C1";
(xvi) in the case of a Loan Pair, a copy of the related Loan
Pair Co-Lender Agreement;
(xvii) in the case of any Loan as to which there exists a
related mezzanine loan, the related intercreditor agreement;
(xviii) an original or copy of any related Environmental
Insurance Policy; and
(xix) with respect to hospitality properties, a signed copy of
the franchise agreement (if any), franchisor comfort letter (if any)
and transfer documents for such comfort letter;
provided that whenever the term "Mortgage File" is used to refer to documents
actually received by the Trustee or by a Custodian on its behalf, such term
shall not be deemed to include such documents required to be included therein
unless they are actually so received, and with respect to any receipt or
certification by the Trustee or a Custodian on its behalf for documents
described in clauses (a)(vi) and (a)(ix) through (a)(xix) of this definition,
shall be deemed to include such documents only to the extent the Trustee or a
Custodian on its behalf has actual knowledge of their existence.
"Mortgage Loan" shall mean each of the mortgage loans listed on the
Mortgage Loan Schedule and from time to time held in the Trust Fund. As used
herein, the term "Mortgage Loan" includes the related Mortgage Note, Mortgage
and other security documents contained in the related Mortgage File or otherwise
held on behalf of the Trust. In the case of the Oakmonte Apartment Homes Whole
Loan, the term "Mortgage Loan" refers only to the Oakmonte Senior Portion.
"Mortgage Loan Purchase Agreement" shall mean the Mortgage Loan
Purchase Agreement dated as of June 30, 2003 and entered into by and between the
Depositor and the Mortgage Loan Seller.
"Mortgage Loan Schedule" shall mean the list of Mortgage Loans
transferred on the Closing Date to the Trustee as part of the Trust Fund,
attached hereto as Schedule I (and also delivered to the Trustee and the Master
Servicer in a computer readable format). Such list shall set forth the following
information with respect to each Mortgage Loan:
(i) the Mortgage Loan number;
(ii) the street address (including city, state and zip code)
and name of the related Mortgaged Property;
(iii) the Cut-off Date Balance;
(iv) the amount of the Monthly Payment due on the first Due
Date following the Closing Date;
(v) the original Mortgage Rate;
(vi) the (A) remaining term to stated maturity and (B) Stated
Maturity Date;
(vii) in the case of a Balloon Mortgage Loan, the remaining
amortization term;
(viii) the Interest Accrual Basis;
(ix) the (A) Administrative Cost Rate and (B) the Master
Servicing Fee Rate and the primary servicing fee rate;
(x) whether the Mortgage Loan is secured by a Ground Lease;
(xi) the Mortgage Loan Seller;
(xii) whether the related Mortgage Loan is a Defeasance Loan;
(xiii) whether the Mortgage Loan is a Cross-Collateralized
Mortgage Loan and the Cross-Collateralized Group to which it
belongs; and
(xiv) whether such Mortgage Loan is part of a Loan Pair, in
which case the information required by clauses (iii), (iv), (v),
(vi), (vii), (viii) and (ix)(B) shall also be set forth for the
Companion Loan in such Loan Pair.
"Mortgage Loan Seller" Greenwich Capital Financial Products, Inc.
"Mortgage Note" shall mean the original executed note evidencing the
indebtedness of a Mortgagor under a Loan, together with any rider, addendum or
amendment thereto, or any renewal, substitution or replacement of such note.
"Mortgage Pool" shall mean all of the Mortgage Loans and any
successor REO Mortgage Loans, collectively. The Mortgage Pool does not include
any Companion Loan or any REO Loan related thereto.
"Mortgage Pool Data Update Report" shall mean, with respect to any
Distribution Date, a report (which may be included as part of the Distribution
Date Statement), prepared by the Trustee, containing information regarding the
Loans as of the end of the related Collection Period, which report shall contain
substantially the categories of information regarding the Loans set forth on
Annex A to the Prospectus Supplement (calculated, where applicable, on the basis
of the most recent relevant information provided by the Mortgagors to the Master
Servicer or the Special Servicer, as the case may be, and by the Master Servicer
or the Special Servicer, as the case may be, to the Trustee), and which
information shall be presented in tabular format substantially similar to the
format utilized on such annex and shall also include a loan-by-loan listing (in
descending balance order) showing loan number, property type, location, unpaid
principal balance, Mortgage Rate, paid-through date, maturity date, gross
interest portion of the Monthly Payment, principal portion of the Monthly
Payment, and any Prepayment Premium or Yield Maintenance Charge received.
"Mortgage Rate" shall mean, with respect to each Loan (and any
successor REO Loan with respect thereto), the related annualized rate at which
interest is scheduled (in the absence of a default) to accrue on such Loan from
time to time in accordance with the related Mortgage Note and applicable law, as
such rate may be modified in accordance with Section 3.20 or in connection with
a bankruptcy, insolvency or similar proceeding involving the related Mortgagor.
Notwithstanding the foregoing, 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 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) in respect of such Mortgage Loan during such one-month
period at the related Mortgage Rate; provided, however, that with respect to any
Mortgage Loan accruing interest based on a 360-day year and the actual number of
days elapsed, the Mortgage Rate for the one month period (A) preceding the Due
Dates that occur in January and February in any year which is not a leap year or
preceding the Due Date that occurs in February in any year which is a leap year
will be determined exclusive of the Interest Reserve Amount withheld from that
month, and (B) preceding the Due Date in March will be determined inclusive of
the amounts withheld from the immediately preceding February and, if applicable,
January.
"Mortgaged Property" shall mean the real property (together with all
improvements and fixtures thereon) subject to the lien of a Mortgage.
"Mortgagor" shall mean, individually and collectively, as the
context may require, the obligor or obligors under a Loan, including any Person
that has not signed the related Mortgage Note but owns an interest in the
related Mortgaged Property, which interest has been encumbered to secure such
Loan.
"Mortgagor Affiliate Holder" any Companion Loan Noteholder or
Certificateholder that is a Mortgagor or an Affiliate of the Mortgagor
(including any Companion Loan Noteholder, its Affiliate, a Certificateholder or
its Affiliate, in each case, that was a lender of the Mortgagor and has
foreclosed on the equity interests in the Mortgagor or any Companion Loan
Noteholder or Certificateholder that acquires, directly or through an Affiliate,
a direct equity interest in the Mortgaged Property).
"Net Aggregate Prepayment Interest Shortfall" shall mean, with
respect to any Distribution Date, the amount, if any, by which (a) the aggregate
of all Prepayment Interest Shortfalls incurred in connection with the receipt of
Principal Prepayments and/or, insofar as they result from the application of
Insurance Proceeds and/or Condemnation Proceeds, other early recoveries of
principal received on the Mortgage Loans (including Specially Serviced Mortgage
Loans) during the related Collection Period, exceeds (b) the aggregate amount
deposited by the Master Servicer in the Distribution Account for such
Distribution Date pursuant to Section 3.19(a) in connection with such Prepayment
Interest Shortfalls.
"Net Default Charges" shall have the meaning assigned thereto in
Section 3.26(a).
"Net Investment Earnings" shall mean, with respect to any Investment
Account for any Collection Period, the amount, if any, by which the aggregate of
all interest and other income realized during such Collection Period on funds
held in such Investment Account (exclusive, in the case of a Servicing Account,
a Reserve Account or the Defeasance Deposit Account, of any portion of such
interest or other income payable to a Mortgagor in accordance with the related
loan documents and applicable law), exceeds the aggregate of all losses, if any,
incurred during such Collection Period in connection with the investment of such
funds in accordance with Section 3.06 (exclusive, in the case of a Servicing
Account, a Reserve Account or the Defeasance Deposit Account, of any portion of
such losses that were incurred in connection with investments made for the
benefit of a Mortgagor).
"Net Investment Loss" shall mean, with respect to any Investment
Account for any Collection Period, the amount by which the aggregate of all
losses, if any, incurred during such Collection Period in connection with the
investment of funds held in such Investment Account in accordance with Section
3.06 (exclusive, in the case of a Servicing Account, a Reserve Account or the
Defeasance Deposit Account, of any portion of such losses that were incurred in
connection with investments made for the benefit of a Mortgagor), exceeds the
aggregate of all interest and other income realized during such Collection
Period on such funds (exclusive, in the case of a Servicing Account, a Reserve
Account or the Defeasance Deposit Account, of any portion of such interest or
other income payable to a Mortgagor in accordance with the related loan
documents and applicable law).
"Net Liquidation Proceeds" shall mean the excess, if any, of all
Liquidation Proceeds received with respect to any Loan or REO Property, over the
amount of all Liquidation Expenses incurred with respect thereto.
"Net Mortgage Rate" shall mean with respect to any Mortgage Loan or
REO 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,
however, 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 Master Servicer or Special Servicer or resulting from a
bankruptcy, insolvency or similar proceeding involving the Mortgagor.
"Net Prepayment Consideration" shall mean the Prepayment
Consideration received with respect to any Mortgage Loan or REO Mortgage Loan,
net of any Workout Fee or Liquidation Fee payable therefrom.
"New Lease" shall mean any lease of Administered REO Property
entered into at the direction of the Special Servicer, including any lease
renewed, modified or extended on behalf of the Trustee and, in the case of any
Loan Pair, the related Companion Loan Noteholder.
"Nonrecoverable Advance" shall mean any Nonrecoverable P&I Advance
or Nonrecoverable Servicing Advance.
"Nonrecoverable P&I Advance" shall mean with respect to any Mortgage
Loan or the Windsor Capital Portfolio Pari Passu Companion Loan, any P&I Advance
previously made or proposed to be made in respect of such Loan or a related REO
Loan by the Master Servicer, or, in the case of any Mortgage Loan, the Trustee
or the Fiscal Agent, or in the case of the 000 Xxxxx Xxxxxx Xxxxx Trust Loan,
made by 2002-C1 Master Servicer, which P&I Advance such party has determined in
its reasonable, good faith judgment, will not be ultimately recoverable from
late payments, Insurance Proceeds, Condemnation Proceeds or Liquidation
Proceeds, or any other recovery on or in respect of such Loan or REO Loan, as
the case may be.
"Nonrecoverable Servicing Advance" shall mean any Servicing Advance
previously made or proposed to be made in respect of a Loan or REO Property by
the Master Servicer, the Trustee or the Fiscal Agent, or in the case of the 000
Xxxxx Xxxxxx Xxxxx A/B Loan, made by the 2002-C1 Master Servicer, the 2002-C1
Trustee or the 2002-C1 Fiscal Agent, which Servicing Advance such party has
determined, in its reasonable, good faith judgment, will not be ultimately
recoverable from late payments, Insurance Proceeds, Condemnation Proceeds,
Liquidation Proceeds, or any other recovery on or in respect of such Loan or REO
Property, as the case may be.
"Non-Registered Certificate" shall mean any Certificate that has not
been the subject of registration under the Securities Act. As of the Closing
Date, the Class XP, Class XC, Class D, Class E, Class F, Class H, Class J, Class
K, Class L, Class M, Class N, Class O, Class P, Class Q, Class Y, Class R-I and
Class R-II Certificates are Non-Registered Certificates.
"Non-United States Tax Person" shall mean any Person other than a
United States Tax Person.
"Notional Amount" means, as of any date of determination: (i) with
respect to all of the Class XP or Class XC Certificates as a Class, Class XP
Notional Amount or Class XC Notional Amount, as applicable, as of such date of
determination; and (ii) with respect to any, Class XP or Class XC Certificate,
the product of the Percentage Interest evidenced by such Certificate and the
Class XP Notional Amount or Class XC Notional Amount, as applicable, as of such
date of determination.
"Oakmonte Apartment Homes Whole Loan" shall mean the Loan referred
to as Oakmonte Apartment Homes on the Mortgage Loan Schedule, evidencing the
Oakmonte Senior Portion and the Oakmonte Junior Portion.
"Oakmonte Defaulted Mortgage Loan Purchase Price" shall mean the sum
of (a) the Stated Principal Balance of the Oakmonte Senior Portion, (b) accrued
and unpaid interest on such Stated Principal Balance at the related Mortgage
Rate, up to (but excluding) the date of purchase and if such date of purchase is
not a Due Date, up to (but excluding) the Due Date next succeeding the date of
purchase, provided payment is made in immediately available funds by 11:00 a.m.
New York time and (c) any unreimbursed Advances and interest thereon at the
Reimbursement Rate and Master Servicing Fees and Special Servicing Fees,
including any master servicing compensation and special servicing compensation
payable and all other amounts payable to the Trustee, the Master Servicer or the
Special Servicer hereunder. In determining the Oakmonte Defaulted Mortgage Loan
Purchase Price, amounts payable by the related Mortgagor as a Prepayment Premium
or Yield Maintenance Charge or exit fee and the value of such amounts shall not
be included unless the Class Y Certificateholder or an Affiliate of the Class Y
Certificateholder is the Mortgagor upon the occurrence of any event which
requires a Oakmonte Repurchase Option Notice pursuant to Section 3.18(p) of this
Agreement.
"Oakmonte Junior Available Distribution Amount" shall mean, with
respect to any Distribution Date, the amounts allocable to the Oakmonte Junior
Portion pursuant to Section 4.01(l).
"Oakmonte Junior Interest Distribution Amount" shall mean, with
respect to the Class Y Certificates for any Distribution Date, an amount of
interest equal to one-twelfth of the product of (i) the Pass-Through Rate
applicable to such Class of Certificates for such Interest Accrual Period,
multiplied by (ii) the Class Principal Balance of such Class of Certificates
outstanding immediately prior to the related Distribution Date, reduced (to not
less than zero) by that portion, if any, of the Prepayment Interest Shortfall
relating to the Oakmonte Apartment Homes Whole Loan for such Distribution Date
allocated to the Oakmonte Junior Portion.
"Oakmonte Junior Portion" shall have the meaning assigned thereto in
the Preliminary Statement.
"Oakmonte Junior Portion Sub-Account" shall mean the sub-account of
the Distribution Account created and maintained by the Trustee pursuant to
Section 3.04(b) in trust for the Class Y Certificateholders.
"Oakmonte Junior Principal Distribution Amount" shall mean, with
respect to the Class Y Certificates for any Distribution Date, all payments of
principal (including principal prepayments and ) received with respect to the
Oakmonte Apartment Homes Whole Loan and allocated to the Oakmonte Junior Portion
pursuant to Section 4.01(l).
"Oakmonte Repurchase Date" shall have the meaning assigned to such
term in Section 3.18(p).
"Oakmonte Repurchase Option Notice" shall have the meaning assigned
to such term in Section 3.18(p).
"Oakmonte Senior Portion" shall have the meaning assigned thereto in
the Preliminary Statement.
"Officer's Certificate" shall mean a certificate signed by a
Servicing Officer of the Master Servicer or the Special Servicer, as the case
may be or by a Responsible Officer of the Trustee or the Fiscal Agent, as the
case may be, and shall mean with respect to any other Person, a certificate
signed by any of the Chairman of the Board, the Vice Chairman of the Board, the
President, any Vice President or Managing Director, an Assistant Vice President
or any other authorized officer (however denominated) or another officer
customarily performing functions similar to those performed by any of the above
designated officers or, with respect to a particular matter, any other officer
to whom such matter is referred because of such officer's knowledge of and
familiarity with the particular subject.
"Opinion of Counsel" shall mean a written opinion of counsel, who
may, without limitation, be salaried counsel for the Depositor, the Master
Servicer or the Special Servicer, acceptable in form and delivered to the
Trustee or any other specified Person, as the case may be, except that any
opinion of counsel relating to (a) the qualification of the Lower-Tier REMIC or
the Upper-Tier REMIC as a REMIC, (b) compliance with the REMIC Provisions, (c)
qualification of the Grantor Trust as a grantor trust, (d) compliance with the
Grantor Trust Provisions, (e) whether any act or event would cause an Adverse
REMIC Event or Adverse Grantor Trust Event, or (f) the resignation of the Master
Servicer or the Special Servicer pursuant to this Agreement, must be a written
opinion of Independent counsel acceptable to and delivered to the Trustee or any
other specified Person, as the case may be.
"Option Purchase Price" shall have the meaning assigned to such term
in Section 3.18(c).
"Original Class Principal Balance" shall mean, with respect to any
Class of Principal Balance Certificates, the initial Class Principal Balance
thereof as of the Closing Date, in each case as specified in the Preliminary
Statement.
"OTS" shall mean the Office of Thrift Supervision or any successor
thereto.
"Ownership Interest" shall mean, 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" shall mean, as to any Mortgage Loan or, with respect
to the Master Servicer only, the Windsor Capital Portfolio Pari Passu Companion
Loan, or a related REO Loan, any advance made by the Master Servicer, the
Trustee or the Fiscal Agent pursuant to Section 4.03 or Section 4.03A, as
applicable.
"Pass-Through Rate" shall mean:
(a) with respect to the Class A-1 Certificates for any Interest
Accrual Period, 2.310% per annum;
(b) with respect to the Class A-2 Certificates for any Interest
Accrual Period, 3.285% per annum;
(c) with respect to the Class A-3 Certificates for any Interest
Accrual Period, 3.858% per annum;
(d) with respect to the Class A-4 Certificates for any Interest
Accrual Period, 4.111% per annum;
(e) with respect to the Class B Certificates for any Interest
Accrual Period, 4.229% per annum;
(f) with respect to the Class C Certificates for any Interest
Accrual Period, 4.260% per annum;
(g) with respect to the Class D Certificates for any Interest
Accrual Period, 4.290% per annum;
(h) with respect to the Class E Certificates for any Interest
Accrual Period, 4.309% per annum;
(i) with respect to the Class F Certificates for any Interest
Accrual Period, 4.369% per annum;
(j) with respect to the Class G Certificates for any Interest
Accrual Period, an annual rate equal to the lesser of (i) 4.773% per annum
and (ii) the Weighted Average Net Mortgage Rate for such Interest Accrual
Period;
(k) with respect to the Class H Certificates for any Interest
Accrual Period, an annual rate equal to the lesser of (i) 4.871% per annum
and (ii) the Weighted Average Net Mortgage Rate for such Interest Accrual
Period;
(l) with respect to the Class J Certificates for any Interest
Accrual Period, an annual rate equal to the lesser of (i) 5.363% per annum
and (ii) the Weighted Average Net Mortgage Rate for such Interest Accrual
Period;
(m) with respect to each of the Class K, Class L, Class M, Class N,
Class O, Class P and Class Q Certificates for any Interest Accrual Period,
an annual rate equal to the lesser of (i) 4.750% per annum and (ii) the
Weighted Average Net Mortgage Rate for such Interest Accrual Period;
(n) with respect to the Class XC Certificates, for the initial
Distribution Date, 0.22574% per annum, and for any subsequent Distribution
Date, the weighted average of the Class XC Strip Rates for the 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);
(o) with respect to the Class XP Certificates for the initial
Distribution Date, 2.24360% per annum, and for any subsequent Distribution
Date, the weighted average of the Class XP Strip Rates for the respective
Class XP 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);and
(p) with respect to the Class Y Certificates for any Interest
Accrual Period, 7.0181% per annum.
"Percentage Interest" shall mean: (a) with respect to any Regular
Interest Certificate, the portion of the relevant Class evidenced by such
Certificate, expressed as a percentage, the numerator of which is the
Certificate Principal Balance or Notional Amount, as the case may be, of such
Certificate as of the Closing Date, as specified on the face thereof, and the
denominator of which is the Original Class Principal Balance or initial Notional
Amount, as the case may be, of the relevant Class; and (b) with respect to a
Residual Interest Certificate, the percentage interest in distributions to be
made with respect to the relevant Class, as stated on the face of such
Certificate.
"Performance Certification" shall have the meaning assigned to such
term in Section 8.15(d).
"Performing Party" shall have the meaning assigned to such term in
Section 8.15(d).
"Performing Serviced Loan" shall mean any Corrected Loan and any
Serviced Loan as to which a Servicing Transfer Event has never occurred.
"Performing Serviced Mortgage Loan" shall mean any Serviced Mortgage
Loan that is a Performing Serviced Loan.
"Permitted Encumbrances" shall have the meaning assigned thereto in
Section 2.04(b)(viii).
"Permitted Investments" shall mean any one or more of the
following obligations or securities (including obligations or securities of
the Trustee if otherwise qualifying hereunder):
(i) direct obligations of, or obligations fully guaranteed as
to timely payment of principal and interest by, the United States or
any agency or instrumentality thereof (having original maturities of
not more than 365 days), provided that such obligations are backed
by the full faith and credit of the United States. Such obligations
must be limited to those instruments that have a predetermined fixed
dollar amount of principal due at maturity that cannot vary or
change. Interest may either be fixed or variable. If such interest
is variable, interest must be tied to a single interest rate index
plus a single fixed spread (if any), and move proportionately with
that index;
(ii) repurchase obligations with respect to any security
described in clause (i) of this definition (having original
maturities of not more than 365 days), provided that the short-term
deposit or debt obligations of the party agreeing to repurchase such
obligations are rated in the highest rating category of each of S&P
and Xxxxx'x (or, in the case of any Rating Agency, such lower rating
as will not result in an Adverse Rating Event with respect to any
Class of Certificates, as evidenced in writing by such Rating
Agency). In addition, any such item by its terms must have a
predetermined fixed dollar amount of principal due at maturity that
cannot vary or change. Interest may either be fixed or variable. If
such interest is variable, interest must be tied to a single
interest rate index plus a single fixed spread (if any), and move
proportionately with that index;
(iii) certificates of deposit, time deposits, demand deposits
and bankers' acceptances of any bank or trust company organized
under the laws of the United States or any state thereof (having
original maturities of not more than 365 days), the short term
obligations of which are rated at least A-1+ and P-1 by each of S&P
and Xxxxx'x, respectively (or, in the case of any Rating Agency,
such lower rating as will not result in an Adverse Rating Event with
respect to any Class of Certificates, as evidenced in writing by
such Rating Agency). In addition, any such item by its terms must
have a predetermined fixed dollar amount of principal due at
maturity that cannot vary or change. Interest may either be fixed or
variable. If such interest is variable, interest must be tied to a
single interest rate index plus a single fixed spread (if any), and
move proportionately with that index;
(iv) commercial paper (having original maturities of not more
than 90 days) of any corporation incorporated under the laws of the
United States or any state thereof (or if not so incorporated, the
commercial paper is United States Dollar denominated and amounts
payable thereunder are not subject to any withholding imposed by any
non-United States jurisdiction) which is rated in the highest rating
category of each of S&P and Xxxxx'x (or, in the case of any Rating
Agency, such lower rating as will not result in an Adverse Rating
Event with respect to any Class of Certificates, as evidenced in
writing by such Rating Agency). In addition, such commercial paper
by its terms must have a predetermined fixed dollar amount of
principal due at maturity that cannot vary or change. Interest may
either be fixed or variable. If such interest is variable, interest
must be tied to a single interest rate index plus a single fixed
spread (if any), and move proportionately with that index;
(v) units of money market funds rated in the highest
applicable rating category of each of S&P and Xxxxx'x (or, in the
case of any Rating Agency, such lower rating as will not result in
an Adverse Rating Event with respect to any Class of Certificates,
as evidenced in writing by such Rating Agency) and which seeks to
maintain a constant net asset value; and
(vi) any other obligation or security that (A) is acceptable
to each Rating Agency, evidence of which acceptability shall be
provided in writing by each Rating Agency to the Master Servicer,
the Special Servicer and the Trustee, and (B) constitutes a "cash
flow investment" (within the meaning of the REMIC Provisions), as
evidenced by an Opinion of Counsel obtained at the expense of the
Person that wishes to include such obligation or security as a
Permitted Investment;
provided that (1) no investment described hereunder shall evidence either the
right to receive (x) only interest with respect to such investment or (y) a
yield to maturity greater than 120% of the yield to maturity at par of the
underlying obligations; (2) no investment described hereunder may be purchased
at a price greater than par if such investment may be prepaid or called at a
price less than its purchase price prior to stated maturity; and (3) no
investment described hereunder may have a "r" highlighter or other comparable
qualifier attached to its rating.
"Permitted Transferee" shall mean any Transferee of a Residual
Interest Certificate other than (a) a Disqualified Organization, (b) any Person
as to whom, as determined by the Trustee (based upon an Opinion of Counsel,
obtained at the request of the Trustee at the expense of such Person or the
Person seeking to Transfer a Residual Interest Certificate, supporting such
determination), the Transfer of a Residual Interest Certificate may cause either
REMIC Pool to fail to qualify as a REMIC at any time that any Certificate is
outstanding, (c) a Disqualified Non-United States Tax Person, (d) a Disqualified
Partnership, or (e) a United States Tax Person with respect to whom interest is
attributable to a foreign permanent establishment or fixed base (within the
meaning of any applicable income tax treaty between the United States and any
foreign jurisdiction) of such Person or any other United States Tax Person.
"Person" shall mean any individual, corporation, partnership, joint
venture, association, joint-stock company, limited liability company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Plan" shall have the meaning assigned thereto in Section 5.02(c).
"Plurality Residual Interest Certificateholder" shall mean, as to
any taxable year of each REMIC Pool, the Holder of Certificates entitled to the
largest percentage of the Voting Rights allocated to the related Class of
Residual Interest Certificates.
"Pool Custodial Account" shall mean the segregated account or
accounts created and maintained by the Master Servicer pursuant to Section
3.04(a) on behalf of the Trustee in trust for the Certificateholders, which
shall be entitled "Wachovia Bank, National Association [OR THE NAME OF ANY
SUCCESSOR MASTER SERVICER], as Master Servicer, on behalf of LaSalle Bank
National Association [OR THE NAME OF ANY SUCCESSOR TRUSTEE], as Trustee, in
trust for the registered holders of Greenwich Capital Commercial Funding Corp.,
Commercial Mortgage Trust 2003-C1, Commercial Mortgage Pass-Through
Certificates, Series 2003-C1."
"Pool REO Account" shall mean the segregated account or accounts
created and maintained by the Special Servicer pursuant to Section 3.16 on
behalf of the Trustee in trust for the Certificateholders, which shall be
entitled "GMAC Commercial Mortgage Corporation [OR THE NAME OF ANY SUCCESSOR
SPECIAL SERVICER], as Special Servicer, on behalf of LaSalle Bank National
Association [OR THE NAME OF ANY SUCCESSOR TRUSTEE], as Trustee, in trust for the
registered holders of Greenwich Capital Commercial Funding Corp., Commercial
Mortgage Trust 2003-C1, Commercial Mortgage Pass-Through Certificates, Series
2003-C1."
"Prepayment Assumption" shall mean, for purposes of determining the
accrual of original issue discount, market discount and premium, if any, on the
Certificates for federal income tax purposes, the assumption that no Mortgage
Loan is prepaid prior to stated maturity.
"Prepayment Consideration" shall mean any Prepayment Premium or
Yield Maintenance Charge.
"Prepayment Consideration Entitlement" shall mean, with respect to
(i) any Distribution Date on which any Net Prepayment Consideration received on
any Mortgage Loan (or any successor REO Mortgage Loan with respect thereto), is
distributable and (ii) each of the Class A-1, Class A-2, Class A-3, Class A-4,
Class B, Class C, Class D, Class E, Class F, Class G, Class H and Class J
Certificates entitled to distributions of principal on such Distribution Date,
an amount equal to the product of (a) such Net Prepayment Consideration,
multiplied by (b) a fraction (not greater than 1.0 or less than 0.0), the
numerator of which is equal to the excess, if any, of the Pass-Through Rate for
such Class of Principal Balance Certificates over the relevant Discount Rate,
and the denominator of which is equal to the excess, if any, of the Mortgage
Rate for such Mortgage Loan (or REO Mortgage Loan) over the relevant Discount
Rate, and further multiplied by (c) a fraction, the numerator of which is equal
to the amount of principal to be distributed on such Class of Principal Balance
Certificates on such Distribution Date pursuant to Section 4.01(a) or 9.01, as
applicable, and the denominator of which is equal to the Principal Distribution
Amount for such Distribution Date.
"Prepayment Interest Excess" shall mean with respect to any Serviced
Loan and the 000 Xxxxx Xxxxxx Xxxxx Trust Loan that was subject to a Principal
Prepayment in full or in part made (or, if resulting from the application of
Insurance Proceeds or Condemnation Proceeds, any other early recovery of
principal received) after its Due Date in any Collection Period, any payment of
interest (net of related Master Servicing Fees) actually collected from the
related Mortgagor or otherwise and intended to cover interest accrued on such
Principal Prepayment during the period from and after such Due Date (exclusive,
however, of any related Prepayment Premium or Yield Maintenance Charge that may
have been collected).
"Prepayment Interest Shortfall" shall mean with respect to any
Serviced Loan that was subject to a Principal Prepayment in full or in part made
(or, if resulting from the application of Insurance Proceeds or Condemnation
Proceeds, any other early recovery of principal received) prior to its Due Date
in any Collection Period, the amount of interest, to the extent not collected
from the related Mortgagor or otherwise (without regard to any Prepayment
Premium or Yield Maintenance Charge that may have been collected), that would
have accrued at a rate per annum equal to the related Mortgage Rate (net of the
sum of the related Master Servicing Fee Rate) on the amount of such Principal
Prepayment during the period from the date to which interest was paid by the
related Mortgagor to, but not including, such Due Date.
"Prepayment Premium" shall mean any premium, penalty or fee (other
than a Yield Maintenance Charge) paid or payable, as the context requires, as a
result of a Principal Prepayment on, or other early collection of principal of,
a Loan.
"Primary Servicing Office" shall mean the offices of the Master
Servicer or the Special Servicer, as the context may require, that are primarily
responsible for such party's servicing obligations hereunder. As of the Closing
Date, the Primary Servicing Office of the Master Servicer is located in
Charlotte, North Carolina, and the Primary Servicing Office of the Special
Servicer is in San Francisco, California.
"Prime Rate" shall mean the "prime rate" published in the "Money
Rates" section of The Wall Street Journal, as such "prime rate" may change from
time to time. If The Wall Street Journal ceases to publish the "prime rate,"
then the Trustee shall select an equivalent publication that publishes such
"prime rate"; and if such "prime rate" is no longer generally published or is
limited, regulated or administered by a governmental or quasi-governmental body,
then the Trustee shall select a comparable interest rate index. In either case,
such selection shall be made by the Trustee in its sole discretion and the
Trustee shall notify the Fiscal Agent, the Master Servicer, the Special Servicer
and all Companion Loan Noteholders in writing of its selection.
"Principal Balance Certificate" shall mean any Regular Interest
Certificate (other than the Class X Certificates).
"Principal Distribution Amount" shall mean, with respect to any
Distribution Date, an amount equal to the aggregate (without duplication) of the
following:
(a) the aggregate of all payments of principal (other than Principal
Prepayments) received with respect to the Mortgage Loans during the
related Collection Period, in each case exclusive of any portion of the
particular payment that represents a Late Collection of principal for
which a P&I Advance was previously made under this Agreement for a prior
Distribution Date or that represents the principal portion of a Monthly
Payment due on or before the Cut-off Date or on a Due Date subsequent to
the related Collection Period;
(b) the aggregate of the principal portions of all Monthly Payments
due in respect of the Mortgage Loans for their respective Due Dates
occurring during the related Collection Period, that were received prior
to the related Collection Period;
(c) the aggregate of all Principal Prepayments received on the
Mortgage Loans during the related Collection Period;
(d) the aggregate of all Liquidation Proceeds, Condemnation Proceeds
and Insurance Proceeds received with respect to any Mortgage Loans during
the related Collection Period that were identified and applied by the
Master Servicer as recoveries of principal of such Mortgage Loans, in each
case exclusive of any portion of such proceeds that represents a Late
Collection of principal due on or before the Cut-off Date or for which a
P&I Advance was previously made under this Agreement for a prior
Distribution Date;
(e) the aggregate of all Liquidation Proceeds, Condemnation
Proceeds, Insurance Proceeds and REO Revenues received with respect to any
REO Properties during the related Collection Period that were identified
and applied by the Master Servicer as recoveries of principal of the
related REO Mortgage Loans, in each case exclusive of any portion of such
proceeds and/or revenues that represents a Late Collection of principal
due on or before the Cut-off Date or for which a P&I Advance was
previously made under this Agreement for a prior Distribution Date; and
(f) the aggregate of the principal portions of all P&I Advances made
under this Agreement with respect to the Mortgage Loans and any REO
Mortgage Loans for such Distribution Date;
provided that none of the amounts set forth in clauses (a) to (f) above shall
represent amounts received, due or advanced on or in respect of any Companion
Loan or any successor REO Loan thereto.
"Principal Prepayment" shall mean any voluntary payment of principal
made by the Mortgagor on a Loan that is received in advance of its scheduled Due
Date and that is not accompanied by an amount of interest (without regard to any
Prepayment Premium or Yield Maintenance Charge that may have been collected)
representing scheduled interest due on any date or dates in any month or months
subsequent to the month of prepayment.
"Prohibited Transaction Exemption" shall mean Prohibited Transaction
Exemption 90-59 granted to Greenwich Capital Markets by the United States
Department of Labor, as such Prohibited Transaction Exemption may be amended
from time to time.
"Proposed Plan" shall have the meaning assigned thereto in Section
3.17(a)(iii).
"Prospectus" shall mean the prospectus dated June 11, 2003, as
supplemented by the Prospectus Supplement, relating to the Registered
Certificates.
"Prospectus Supplement" shall mean the prospectus supplement dated
June 20, 2003, relating to the Registered Certificates.
"Purchase Option Holders" shall have the meaning assigned thereto in
Section 3.18(b).
"Purchase Price" shall mean, with respect to any Mortgage Loan (or
REO Property), a cash price equal to the aggregate of: (a) the outstanding
principal balance of such Mortgage Loan (or the related REO Loan) as of the date
of purchase, (b) all accrued and unpaid interest on such Mortgage Loan (or the
related REO Loan) to, but not including, the Due Date in the Collection Period
of purchase (exclusive, however, of any portion of such accrued but unpaid
interest that represents Default Interest), (c) all related unreimbursed
Servicing Advances, if any, (d) all accrued and unpaid interest, if any, in
respect of related Advances in accordance with, as applicable, Section 3.11(g),
Section 4.03(d) and/or Section 4.03A(d), and (e) in the case of a repurchase by
the Mortgage Loan Seller pursuant to Section 2.03 and the Mortgage Loan Purchase
Agreement, (i) to the extent not otherwise included in the amount described in
clause (d) of this definition, any unpaid Special Servicing Fees, Workout Fees
and other Additional Trust Fund Expenses with respect to such Mortgage Loan (or
REO Property), including any Liquidation Fee payable because the subject
repurchase occurred more than 180 days beyond the earlier of notice to or
discovery by the party effecting the repurchase of the subject Material Document
Defect or Material Breach that gave rise to the repurchase, and (ii) to the
extent not otherwise included in the amount described in clause (c) of this
definition, any costs and expenses incurred by the Master Servicer, the Special
Servicer or the Trustee (on behalf of the Trust) in enforcing the obligation of
such Person to purchase such Mortgage Loan; provided, that, in the case of an
REO Property that relates to any Loan Pair, the Purchase Price for such REO
Property shall instead equal the greater of (x) the fair market value of such
REO Property, based on a recent appraisal meeting the criteria for a Required
Appraisal, and (y) the aggregate of the amounts described in clauses (a), (b),
(c), (d) and, if applicable, (e) above with respect to all REO Loans comprising
such Loan Pair.
"Qualified Bidder" shall have the meaning assigned thereto in
Section 7.01(c).
"Qualified Institutional Buyer" or "QIB" shall mean a "qualified
institutional buyer" as defined in Rule 144A under the Securities Act.
"Qualified Insurer" shall mean an insurance company or security or
bonding company qualified to write the related Insurance Policy in the relevant
jurisdiction.
"Rated Final Distribution Date" shall mean the Distribution Date
in July, 2035.
"Rating Agency" shall mean each of S&P and Xxxxx'x.
"Realized Loss" shall mean: (1) with respect to each Loan as to
which a Final Recovery Determination has been made, or with respect to any
successor REO Loan as to which a Final Recovery Determination has been made as
to the related REO Property, an amount (not less than zero) equal to the excess,
if any, of (a) the sum of (i) the unpaid principal balance of such Loan or REO
Loan, as the case may be, as of the commencement of the Collection Period in
which the Final Recovery Determination was made, plus (ii) without taking into
account the amount described in subclause (1)(b) of this definition, all accrued
but unpaid interest on such Loan or such REO Loan, as the case may be, to but
not including the Due Date in the Collection Period in which the Final Recovery
Determination was made (exclusive, however, of any portion of such accrued but
unpaid interest that represents Default Interest), (iii) the amount of any and
all related Special Servicing Fees, Liquidation Fees and/or Workout Fees with
respect to such Mortgage Loan or successor REO Mortgage Loan that caused any
Class of Certificateholders to receive less than the full amount of
Distributable Certificate Interest on the Distribution Date occurring in the
Collection Period in which the Final Recovery Determination was made (including
any Distributable Certificate Interest that remained unpaid from prior
Distribution Dates) over (b) all payments and proceeds, if any, received in
respect of such Loan or, to the extent allocable to such REO Loan, the related
REO Property, as the case may be, during the Collection Period in which such
Final Recovery Determination was made, insofar as such payments and proceeds are
allocable to interest (other than Default Interest) on or principal of such Loan
or REO Loan;
(2) with respect to each Loan as to which any portion of the
principal or previously accrued interest payable thereunder was canceled in
connection with a bankruptcy or similar proceeding involving the related
Mortgagor or a modification, extension, waiver or amendment of such Loan granted
or agreed to by the Special Servicer pursuant to Section 3.20, the amount of
such principal and/or interest (other than Default Interest) so canceled; and
(3) with respect to each Loan as to which the Mortgage Rate thereon
has been permanently reduced and not recaptured for any period in connection
with a bankruptcy or similar proceeding involving the related Mortgagor or a
modification, extension, waiver or amendment of such Loan granted or agreed to
by the Special Servicer pursuant to Section 3.20, the amount of the consequent
reduction in the interest portion of each successive Monthly Payment due thereon
(each such Realized Loss shall be deemed to have been incurred on the Due Date
for each affected Monthly Payment); provided, however, that any Loan Pair shall
be deemed to be a single Loan for purposes of this definition.
"Record Date" shall mean: with respect to the initial Distribution
Date, the Closing Date; and, with respect to any other Distribution Date, the
last Business Day of the month immediately preceding the month in which such
Distribution Date occurs.
"Recording/Filing Agent" shall have the meaning assigned thereto in
Section 2.01(c).
"Reference Rate" shall mean, with respect to any Interest Accrual
Period, the rate per annum set forth on the Reference Rate Schedule.
"Registered Certificate" shall mean any Certificate that has been
the subject of registration under the Securities Act. As of the Closing Date,
the Class A-1, Class A-2, Class A-3, Class A-4, Class B and Class C Certificates
are Registered Certificates.
"Regular Interest Certificate" shall mean any Certificate other than
a Class Y, Class R-I Certificate or Class R-II Certificate.
"Regulation S" shall mean Regulation S under the Securities Act.
"Regulation S Global Certificates" shall mean, with respect to any
Class of Book-Entry Non-Registered Certificates offered and sold outside of the
United States in reliance on Regulation S, one or more global Certificates,
collectively, in definitive, fully registered form without interest coupons,
each of which Certificates bears a Regulation S Legend.
"Regulation S Legend" shall mean, with respect to any Class of
Book-Entry Non-Registered Certificates offered and sold outside the United
States in reliance on Regulation S, a legend generally to the effect that such
Certificates may not be offered, sold, pledged or otherwise transferred in the
United States or to a United States Securities Person prior to the date that is
40 days after the later of (a) the commencement of the offering to Persons other
than distributors in reliance on Regulation S, and (b) the date of closing of
the offering, except pursuant to an exemption from the registration requirements
of the Securities Act.
"Regulation S Restricted Certificate": Any Certificate that is not
rated in one of the four highest generic ratings categories by a Rating Agency.
"Reimbursement Rate" shall mean the rate per annum applicable to the
accrual of interest, compounded monthly, on Servicing Advances in accordance
with Section 3.11(g) and on P&I Advances in accordance with, as applicable,
Section 4.03(d) or Section 4.03A(d), which rate per annum is equal to the Prime
Rate.
"Release Date" shall have the meaning assigned thereto in Section
5.02(b).
"REMIC" shall mean a "real estate mortgage investment conduit" as
defined in Section 860D of the Code.
"REMIC Pool" shall mean either of the Lower-Tier REMIC and/or the
Upper-Tier REMIC, as applicable.
"REMIC Provisions" shall mean the provisions of the federal income
tax law relating to REMICs, which appear at Sections 860A through 860G of
Subchapter M of Chapter 1 of the Code, and related provisions, and proposed,
temporary and final Treasury regulations and any published rulings, notices and
announcements promulgated thereunder, as the foregoing may be in effect from
time to time.
"Rents from Real Property" shall mean, with respect to any REO
Property, gross income of the character described in Section 856(d) of the Code.
"REO Account" shall mean either of the Pool REO Account or the
applicable Loan Pair REO Account.
"REO Acquisition" shall mean the acquisition of any REO Property
pursuant to Section 3.09.
"REO Disposition" shall mean the sale or other disposition of any
REO Property pursuant to Section 3.18.
"REO Extension" shall have the meaning assigned thereto in Section
3.16(a).
"REO Loan" shall mean the mortgage loan (or, if any Loan Pair is
involved, either of the two mortgage loans, or (i) in the case of the Windsor
Capital Portfolio A/B Loan, any of the three mortgage loans, (ii) in the case of
the Oakmonte Apartment Homes Whole Loan, either the Oakmonte Senior Portion or
the Oakmonte Junior Portion, comprising such Loan Pair) deemed for purposes
hereof to be outstanding with respect to each REO Property. Each REO Loan shall
be deemed to provide for monthly payments of principal and/or interest equal to
its Assumed Monthly Payment and otherwise to have the same terms and conditions
as its predecessor Loan (such terms and conditions to be applied without regard
to the default on such predecessor Loan and the acquisition of the related REO
Property as part of the Trust Fund). Each REO Loan shall be deemed to have an
initial unpaid principal balance and Stated Principal Balance equal to the
unpaid principal balance and Stated Principal Balance, respectively, of its
predecessor Loan as of the date of the related REO Acquisition. All Monthly
Payments (other than a Balloon Payment), Assumed Monthly Payments (in the case
of a Balloon Loan delinquent in respect of its Balloon Payment) and other
amounts due and owing, or deemed to be due and owing, in respect of the
predecessor Loan as of the date of the related REO Acquisition, shall be deemed
to continue to be due and owing in respect of an REO Loan. Amounts received with
respect to each REO Loan (after provision for amounts to be applied to the
payment of, or to be reimbursed to the Master Servicer or the Special Servicer
for the payment of, the costs of operating, managing and maintaining the related
REO Property or for the reimbursement of the Master Servicer or the Special
Servicer for other related Servicing Advances) shall be treated: first, as a
recovery of accrued and unpaid interest on such REO Loan at the related Mortgage
Rate to but not including the Due Date in the Collection Period of receipt;
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 normal servicing
practices of the Master Servicer, as a recovery of any other amounts due and
owing in respect of such REO Loan; provided that if the Loans comprising a Loan
Pair become REO Loans, amounts received with respect to such REO Loans shall be
applied to amounts due and owing in respect of such REO Loans as provided in
Section 4 of the related Loan Pair Co-Lender Agreement or Section 4.01(l), as
applicable. Notwithstanding the foregoing, all amounts payable or reimbursable
to the Master Servicer, the Special Servicer, the Trustee or the Fiscal Agent in
respect of the predecessor Loan as of the date of the related REO Acquisition,
including any unpaid Servicing Fees and any unreimbursed Servicing Advances and
P&I Advances, together with any interest accrued and payable to the Master
Servicer, the Special Servicer, the Trustee or the Fiscal Agent in respect of
such Servicing Advances and P&I Advances in accordance with Sections 3.11(g),
4.03(d) and 4.03A(d), respectively, shall continue to be payable or reimbursable
to the Master Servicer, the Special Servicer, the Trustee or the Fiscal Agent,
as the case may be, in respect of an REO Loan.
"REO Mortgage Loan" shall mean any REO Loan that relates to a
predecessor Mortgage Loan.
"REO Property" shall mean a Mortgaged Property acquired on behalf
and in the name of the Trustee for the benefit of the Certificateholders (or, in
the case of the Loan Pair Mortgaged Properties, for the benefit of the
Certificateholders and the Companion Loan Noteholders, as their interests may
appear), 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 Loan.
"REO Revenues" shall mean all income, rents, profits and proceeds
derived from the ownership, operation or leasing of any REO Property.
"REO Tax" shall have the meaning assigned thereto in Section
3.17(a).
"Request for Release" shall mean a request signed by a Servicing
Officer of, as applicable, the Master Servicer in the form of Exhibit D-1
attached hereto or the Special Servicer in the form of Exhibit D-2 attached
hereto.
"Required Appraisal" shall mean, with respect to each Required
Appraisal Loan, an appraisal of the related Mortgaged Property from an
Independent Appraiser selected by the party required or authorized to obtain
such appraisal hereunder, which appraisal shall be prepared in accordance with
12 CFR ss. 225.62 and conducted in accordance with the standards of the
Appraisal Institute or, in the case of a Required Appraisal Loan having a Stated
Principal Balance of, or in the case of a Mortgaged Property that has an
allocated loan amount of, less than $2,000,000, if no satisfactory (as
determined by the Special Servicer pursuant to Section 3.09(a)) appraisal
meeting the foregoing criteria was obtained or conducted within the prior 12
months, a "desktop" value estimate performed by the Special Servicer.
"Required Appraisal Loan" shall mean any Mortgage Loan or Loan Pair
(i) that becomes a Modified Loan;
(ii) that is 60 days or more delinquent in respect of any
Monthly Payment, except for a Balloon Payment;
(iii) that is delinquent in respect of its Balloon Payment, if
any, (A) for 30 days (if neither clause (B) nor clause (C) below
applies) or (B) for 60 days if the related Mortgagor has represented
in writing, within the 30-day period referred to in clause (A)
above, to the satisfaction of the Master Servicer, that it is
diligently seeking a refinancing and such Mortgagor continues timely
to make monthly payments equivalent to Assumed Monthly Payments (and
if clause (C) below does not apply), or (C) for a period (not to
exceed 120 days) beyond the maturity date, ending on the date on
which it is determined that the refinancing could not reasonably be
expected to occur, if the related Mortgagor has delivered, within
either the 30-day period referred to in clause (A) above or the
60-day period referred to in clause (B) above, a refinancing
commitment satisfactory to the Master Servicer and such Mortgagor
continues timely to make monthly payments equivalent to Assumed
Monthly Payments;
(iv) with respect to which the related Mortgaged Property has
become an REO Property;
(v) with respect to which a receiver or similar official is
appointed and continues for 60 days in such capacity in respect of
the related Mortgaged Property;
(vi) with respect to which the related Mortgagor is subject to
a bankruptcy, insolvency or similar proceedings, which, in the case
of an involuntary bankruptcy, insolvency or similar proceeding, has
not been dismissed within 60 days of the commencement thereof; and
(vii) that remains outstanding more than one (1) year
following any extension of its maturity date pursuant to Section
3.20.
Any Required Appraisal Loan (other than a Mortgage Loan that became
a Required Appraisal Loan pursuant to clause (vii) above) shall cease to be such
at such time as it has become a Corrected Loan (except if such Required
Appraisal Loan had not become a Specially Serviced Loan at the time the
applicable event(s) described in any of clauses (i) through (vii) above ceased
to exist), it has remained current for at least three (3) consecutive Monthly
Payments, and no other event described in clauses (i) through (vii) above has
occurred with respect thereto during the preceding three-month period; provided
that the term "Required Appraisal Loan" shall include any successor REO Loan(s);
and provided, further, that any Loan Pair shall, upon the occurrence of any of
the events described in clauses (i) through (vii) of this definition in respect
of either such Loan, be deemed to be a single "Required Appraisal Loan."
"Required Appraisal Value" shall mean, with respect to any Mortgaged
Property securing (or REO Property relating to) a Required Appraisal Loan, an
amount equal to the sum of: (a) the excess, if any, of (i) 90% of the Appraised
Value of such Mortgaged Property (or REO Property) as determined by the most
recent Required Appraisal or any letter update of such Required Appraisal, over
(ii) the amount of any obligations secured by liens on such Mortgaged Property
(or REO Property) that are prior to the lien of the related Required Appraisal
Loan; plus (b) the amount of Escrow Payments and Reserve Funds held by the
Master Servicer in respect of such Required Appraisal Loan that (i) are not
being held in respect of any real estate taxes and assessments, insurance
premiums or, if applicable, ground rents, (ii) are not otherwise scheduled to be
applied or utilized (except to pay debt service on such Required Appraisal Loan)
within the twelve-month period following the date of determination and (iii) may
be applied towards the reduction of the principal balance of such Required
Appraisal Loan; plus (c) the amount of any letter of credit constituting
additional security for such Required Appraisal Loan and that may be applied
towards the reduction of the principal balance of such Required Appraisal Loan.
"Reserve Account" shall mean any account established by the Master
Servicer, pursuant to Section 3.03(d), as to which Reserve Funds shall be
deposited.
"Reserve Funds" shall mean, with respect to any Loan (other than the
000 Xxxxx Xxxxxx Xxxxx A/B Loans), any amounts delivered by the related
Mortgagor to be held by or on behalf of the mortgagee representing reserves for
repairs, capital improvements and/or environmental remediation in respect of the
related Mortgaged Property or debt service on such Loan.
"Residual Interest Certificate" shall mean a Class R-I or Class R-II
Certificate.
"Responsible Officer" shall mean: (a) when used with respect to the
Trustee, any Vice President, any Assistant Vice President, any Trust Officer,
any Assistant Secretary or any other officer of the Trustee's Asset-Backed
Services Trust Group customarily performing functions similar to those performed
by any of the above designated officers and having direct responsibility for the
administration of this Agreement; and (b) when used with respect to the Fiscal
Agent, any officer thereof.
"Rule 144A Global Certificate" shall mean, with respect to any Class
of Book-Entry Non-Registered Certificates, one or collectively more global
certificates representing such Class registered in the name of the Depository or
its nominee, in definitive, fully registered form without interest coupons, none
of which certificates bears a Regulation S Legend, and each of which
certificates has a Rule 144A CUSIP number.
"Xxxxxxxx-Xxxxx Certification" shall have the meaning assigned to
such term in Section 8.15(d).
"S&P" shall mean Standard & Poor's Ratings Services, a division of
The XxXxxx-Xxxx Companies, Inc. or its successor in interest. If neither such
rating agency nor any successor remains in existence, "S&P" shall be deemed to
refer to such other nationally recognized statistical rating agency or other
comparable Person designated by the Depositor, notice of which designation shall
be given to the Trustee, the Fiscal Agent, the Master Servicer and the Special
Servicer, and specific ratings of Standard & Poor's Ratings Services, a division
of The XxXxxx-Xxxx Companies, Inc. herein referenced shall be deemed to refer to
the equivalent ratings of the party so designated.
"Scheduled Payment" shall mean, with respect to any Loan, for any
Due Date following the Cut-off Date as of which it is outstanding, the Monthly
Payment on such Loan that is or would be, as the case may be, payable by the
related Mortgagor on such Due Date under the terms of the related Mortgage Note
as in effect on the Closing Date, without regard to any subsequent change in or
modification of such terms in connection with a bankruptcy or similar proceeding
involving the related Mortgagor or a modification, extension, waiver or
amendment of such Loan granted or agreed to by the Master Servicer or the
Special Servicer, as applicable, pursuant to Section 3.20, and assuming that the
full amount of each prior Scheduled Payment has been made in a timely manner.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Sequential Paydown Period" shall mean, with respect to the Oakmonte
Apartment Homes Whole Loan, a period during which a monetary or other material
event of default under the related loan documents has occurred and is
continuing.
"Serviced Loan" shall mean any Loan (including a Specially Serviced
Loan, but excluding an REO Loan) that is, as contemplated by Section 3.01, to be
serviced and administered by the Master Servicer and/or the Special Servicer
hereunder, which does not include the 000 Xxxxx Xxxxxx Xxxxx A/B Loan.
"Serviced Mortgage Loan" shall mean any Mortgage Loan that is a
Serviced Loan.
"Servicer Fee Amount" shall mean: (a) with respect to each
Sub-Servicer, as of any date of determination, the aggregate of the products
obtained by multiplying, for each Serviced Loan primary serviced by such
Sub-Servicer, (i) the principal balance of such Loan as of the end of the
immediately preceding Collection Period and (ii) the sub-servicing fee rate
specified in the related Sub-Servicing Agreement for such Loan; and (b) with
respect to the Master Servicer, as of any date of determination, the aggregate
of the products obtained by multiplying, for each Serviced Loan and 000 Xxxxx
Xxxxxx Xxxxx Trust Loan, (i) the principal balance of such Loan as of the end of
the immediately preceding Collection Period and (ii) the excess, if any, of the
Master Servicing Fee Rate for such Loan or 000 Xxxxx Xxxxxx Xxxxx Trust Loan, as
applicable, over the sub-servicing fee rate (if any) applicable to such Loan, as
specified in any Sub-Servicing Agreement related to such Loan.
"Servicer Reports" shall mean each of the files and reports
comprising the CMSA Investor Reporting Package (excluding the CMSA Bond Level
File, the CMSA Collateral Summary File) and the Supplemental Report.
"Servicing Account" shall have the meaning assigned thereto in
Section 3.03(a).
"Servicing Advances" shall mean all customary, reasonable and
necessary "out of pocket" costs and expenses (including attorneys' fees and fees
and expenses of real estate brokers) incurred by the Master Servicer, the
Special Servicer, the Fiscal Agent or the Trustee in connection with the
servicing and administration of a Serviced Loan, if a default is imminent
thereunder or a default, delinquency or other unanticipated event has occurred
with respect thereto, or in connection with the administration of any REO
Property, including, but not limited to, the cost of (a) compliance with the
obligations of the Master Servicer, the Special Servicer, the Fiscal Agent or
the Trustee, if any, set forth in Section 3.03(c), (b) the preservation,
insurance, restoration, protection and management of a Mortgaged Property, (c)
obtaining any Insurance Proceeds, Condemnation Proceeds or Liquidation Proceeds,
(d) any enforcement or judicial proceedings with respect to a Mortgaged
Property, including foreclosures, (e) any Required Appraisal or any other
appraisal or update thereof expressly permitted or required to be obtained
hereunder, (f) the operation, management, maintenance and liquidation of any REO
Property, and (g) obtaining any related ratings confirmation; provided that,
notwithstanding anything to the contrary, "Servicing Advances" shall not include
allocable overhead of the Master Servicer, the Special Servicer or the Trustee,
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 any Loan or REO Property pursuant to any provision of this Agreement, or the
applicable Loan Pair Co-Lender Agreement.
"Servicing Fees" shall mean with respect to each Serviced Loan and
000 Xxxxx Xxxxxx Xxxxx Trust Loan (and any successor REO Loan with respect
thereto), the Master Servicing Fee and the Special Servicing Fee.
"Servicing File" shall mean, collectively, any and all documents
(other than documents required to be part of the related Mortgage File, except
as specifically provided below in this definition), in the possession of the
Master Servicer or, with respect to Specially Serviced Mortgage Loans, the
Special Servicer and relating to the origination and servicing of any Serviced
Loan, including any original letter of credit (together with any transfer or
assignment documents related thereto), any franchise agreement and any franchise
comfort letter (together with any transfer or assignment documents relating
thereto), appraisals, surveys, engineering reports, environmental reports,
opinion letters of counsel to a related Mortgagor, escrow agreements and
property management agreements and a copy of the Mortgage Note for each
Companion Loan other than the Oakmonte Junior Portion.
"Servicing Officer" shall mean any officer or employee of the Master
Servicer or the Special Servicer involved in, or responsible for, the
administration and servicing of the Serviced Loans, whose name and specimen
signature appear on a list of servicing officers furnished by such party to the
Trustee and the Depositor on the Closing Date, as such list may be amended from
time to time.
"Servicing-Released Bid" shall have the meaning assigned thereto in
Section 7.01(c).
"Servicing-Retained Bid" shall have the meaning assigned thereto
in Section 7.01(c).
"Servicing Standard" shall mean:
(I) with respect to the Master Servicer or the Special
Servicer, (other than GMAC Commercial Mortgage Corporation as
the Special Servicer, while it is the Special Servicer
hereunder) to service and administer the Serviced Loans and
any Administered REO Properties that such party is obligated
to service and administer pursuant to this Agreement: (i) in
accordance with the higher of the following standards of care:
(A) the same manner in which, and with the same care, skill,
prudence and diligence with which, the Master Servicer or the
Special Servicer, as the case may be, services and administers
comparable mortgage loans with similar borrowers and
comparable REO properties for other third-party portfolios
(giving due consideration to the customary and usual standards
of practice of prudent institutional commercial mortgage
lenders servicing their own mortgage loans and REO
properties), and (B) the same manner in which, and with the
same care, skill, prudence and diligence with which, the
Master Servicer or Special Servicer, as the case may be,
services and administers comparable mortgage loans owned by
the Master Servicer or Special Servicer, as the case may be,
in either case exercising reasonable business judgment and
acting in accordance with applicable law, the terms of this
Agreement and the terms of the respective Serviced Loans; (ii)
with a view to: the timely recovery of all payments of
principal and interest, including Balloon Payments, under the
Serviced Loans or, in the case of any such Serviced Loan that
is (1) a Specially Serviced Loan or (2) a Serviced Loan as to
which the related Mortgaged Property has become an REO
Property, the maximization of recovery on the Mortgage Loan to
the Certificateholders (as a collective whole) (or, if any
Loan Pair is involved, with a view to the maximization of
recovery on such Loan Pair to the Certificateholders and the
related Companion Loan Noteholders (as a collective whole)) of
principal and interest, including Balloon Payments, on a
present value basis (the relevant discounting of anticipated
collections that will be distributable to the
Certificateholders (or, in the case of any Loan Pair, to the
Certificateholders and the related Companion Noteholders) to
be performed at the related Mortgage Rate (or, in the case of
any Loan Pair, at the weighted average of the Mortgage Rates
for such Loan Pair); and (iii) without regard to (A) any
relationship, including as lender on any other debt, that the
Master Servicer or the Special Servicer, as the case may be,
or any Affiliate thereof, may have with any of the related
Mortgagors, or any Affiliate thereof, or any other party to
this Agreement; (B) the ownership of any Certificate (or any
Companion Loan or Companion Loan Security) by the Master
Servicer or the Special Servicer, as the case may be, or any
Affiliate thereof; (C) the obligation of the Master Servicer
or the Special Servicer, as the case may be, to make Advances;
(D) the right of the Master Servicer or the Special Servicer,
as the case may be, or any Affiliate of either of them, to
receive compensation or reimbursement of costs hereunder
generally or with respect to any particular transaction; and
(E) the ownership, servicing or management for others of any
other mortgage loan or real property not subject to this
Agreement by the Master Servicer or the Special Servicer, as
the case may be, or any Affiliate thereof; and
(II) with respect to GMAC Commercial Mortgage
Corporation, as the Special Servicer, while it is the Special
Servicer hereunder, to service and administer the Mortgage
Loans and any REO Properties that it is obligated to service
and administer pursuant to this Agreement, on behalf of the
Trustee and in the best interests of and for the benefit of
the Certificateholders (or, with respect to a Loan Pair, in
the best interests of and for the benefit of the
Certificateholders and the related Companion Loan Noteholder),
as determined by the Special Servicer, in its good faith and
reasonable judgment, in accordance with applicable law, the
terms of this Agreement and the terms of the respective
Mortgage Loans and, to the extent consistent with the
foregoing, further as follows: (i) with the same care, skill
and diligence as is normal and usual in its general mortgage
servicing and REO property management activities on behalf of
third parties or on behalf of itself, whichever is higher,
with respect to mortgage loans and REO properties that are
comparable to those for which it is responsible hereunder;
(ii) with a view to the timely collection of all scheduled
payments of principal and interest under the Mortgage Loans
or, if a Mortgage Loan comes into and continues in default and
if, in the good faith and reasonable judgment of the Special
Servicer, no satisfactory arrangements can be made for the
collection of the delinquent payments, the maximization of the
recovery on such Mortgage Loan to the Certificateholders (as a
collective whole) (or, if a Loan Pair is involved, with a view
to the maximization of recovery on such Loan Pair to the
Certificateholders and the related Companion Loan Noteholder
(as a collective whole)), on a present value basis (the
relevant discounting of anticipated collections that will be
distributable to the Certificateholders (or, in the case of a
Loan Pair, to the Certificateholders and the related Companion
Loan Noteholder) to be performed at the related Net Mortgage
Rate (or, in the case of a Loan Pair, at the weighted average
of the Net Mortgage Rates for such Loan Pair)); and (iii)
without regard to (A) any other relationship that the Special
Servicer or any Affiliate thereof may have with the related
Mortgagor, (B) the ownership of any Certificate, by the
Special Servicer or by any Affiliate thereof, (C) the Special
Servicer's obligation to direct the Master Servicer to make
Servicing Advances, and (D) the right of the Special Servicer
or any Affiliate thereof to receive reimbursement of costs, or
the sufficiency of any compensation payable to it, hereunder
or with respect to any particular transaction.
"Servicing Transfer Event" shall mean, with respect to any Serviced
Loan, the occurrence of any of the events described in clauses (a) through (g)
of the definition of "Specially Serviced Loan"; provided that, in the case of a
Loan Pair, a Servicing Transfer Event shall not occur if the related Companion
Loan Noteholder makes cure payments on behalf of the related Mortgagor or
otherwise cures on behalf of the Mortgagor, within the time period and to the
extent permitted under the related Loan Pair Co-Lender Agreement, a default of
the Mortgagor which would otherwise cause such Servicing Transfer Event to
occur. To the extent that any approval of the Master Servicer is required for
the extension of any cure period afforded the related Companion Loan Noteholder
pursuant to the related Loan Pair Co-Lender Agreement, the Master Servicer shall
make a determination whether to grant such approval in accordance with the
Servicing Standard, based on (1) whether the Companion Loan Noteholder is
diligently proceeding with such cure, (2) whether a cure by the Companion Loan
Noteholder is feasible and (3) whether such cure is otherwise in the best
interests of the Certificateholders and such Companion Loan Noteholder, as a
collective whole (which determination shall not otherwise be unreasonably
withheld or delayed).
"Similar Law" shall have the meaning assigned thereto in Section
5.02(c).
"Single Certificate" shall mean, for purposes of Section 4.02, a
hypothetical Regular Interest Certificate evidencing an initial $1,000
denomination.
"Single Purpose Entity" shall mean an entity, other than an
individual, whose organizational documents and/or the related loan documents
provide substantially to the effect that: (i) it was formed or organized solely
for the purpose of either owning and operating the Mortgaged Property or
Properties securing one or more Loans, or owning and pledging Defeasance
Collateral in connection with the defeasance of a Defeasance Loan, as the case
may be, (ii) it may not engage in any business unrelated to such Mortgaged
Property or Properties or such Defeasance Collateral, as the case may be, (iii)
it will not have any assets other than those related to its interest in and
operation of such Mortgaged Property or such Defeasance Collateral, as the case
may be, (iv) it may not incur indebtedness other than incidental to its
ownership and operation of the applicable Mortgaged Property or Properties or
Defeasance Collateral, as the case may be, (v) it will maintain its own books
and records and accounts separate and apart from any other Person, (vi) it will
hold itself out as a legal entity, separate and apart from any other Person, and
(vii) in the case of such an entity whose sole purpose is owning or operating a
Mortgaged Property, it will have an independent director or, if such entity is a
partnership or a limited liability company, at least one general partner or
limited liability company member thereof, as applicable, which shall itself be a
"single purpose entity" (having as its sole asset its interest in the Single
Purpose Entity) with an independent director.
"Special Servicer" shall mean GMAC Commercial Mortgage Corporation,
in its capacity as special servicer hereunder, or any successor special servicer
appointed as herein provided.
"Special Servicing Fee" shall mean, with respect to each Specially
Serviced Loan (including the related Companion Loan(s)) and each REO Loan, the
fee designated as such in, and payable to the Special Servicer pursuant to,
Section 3.11(c).
"Special Servicing Fee Rate" shall mean, with respect to each
Specially Serviced Loan (including the related Companion Loan(s)) and each REO
Loan, 0.25% per annum.
"Specially Serviced Loan" shall mean any Serviced Loan as to which
any of the following events has occurred:
(a) the related Mortgagor has failed to make when due any Monthly
Payment (including a Balloon Payment), which failure continues, or the Master
Servicer determines, in its reasonable, good faith judgment, will continue,
unremedied (without regard to any grace period) (i) except in the case of a
Balloon Mortgage Loan delinquent in respect of its Balloon Payment, for 60 days
beyond the date on which the subject payment was due, or (ii) solely in the case
of a Balloon Mortgage Loan that is delinquent in respect of its Balloon Payment,
(A) for 30 days (if neither clause (B) nor clause (C) below applies) or (B) for
60 days if the related Mortgagor has represented in writing, within the 30-day
period referred to in clause (A) above, to the satisfaction of the Master
Servicer that it is diligently seeking a refinancing and such Mortgagor
continues timely to make monthly payments equivalent to Assumed Monthly Payments
(and if clause (C) below does not apply), or (C) for a period (not to exceed 120
days) beyond the maturity date, ending on the date on which it is determined
that the refinancing could not reasonably be expected to occur, if the related
Mortgagor has delivered, within either the 30-day period referred to in clause
(A) above or the 60-day period referred to in clause (B) above, a refinancing
commitment satisfactory to the Master Servicer and such Mortgagor continues
timely to make monthly payments equivalent to Assumed Monthly Payments; or
(b) the Master Servicer shall have determined, in accordance with
the Servicing Standard, or the Controlling Class Directing Holder shall have
determined, in each case based on communications with the related Mortgagor,
that a default in the making of a Monthly Payment on such Mortgage Loan,
including a Balloon Payment, is likely to occur and is likely to remain
unremedied (without regard to any grace period) for at least the applicable
period contemplated by clause (a) of this definition and, in addition, in the
case of a Tier 1 Loan Pair or a Tier 2 Loan Pair, the Master Servicer shall have
determined, in accordance with the Servicing Standard, or the Controlling Class
Directing Holder shall have determined, in each case based on not only
communications with the related Mortgagor, but also communications with the
related Companion Loan Noteholder, that such default is likely to remain uncured
by the related Companion Loan Noteholder within the time period and to the
extent permitted under the related Loan Pair Co-Lender Agreement; provided that,
upon the occurrence of a potential default in the making of the Balloon Payment
on a Mortgage Loan, such Mortgage Loan shall not be deemed to be a "Specially
Serviced Mortgage Loan" pursuant to this paragraph (b) if, with respect to such
event, the Master Servicer or the Special Servicer, as applicable, determines
(subject to Section 6.11) that the Master Servicer's granting (to the extent it
is permitted under Section 3.20(c)) or the Special Servicer's granting (to the
extent it is permitted under Section 3.20(d)), as applicable, of an extension of
the maturity date of the subject Mortgage Loan is in accordance with the
Servicing Standard (and, with respect to such determination by the Special
Servicer, the Master Servicer has received notice of such determination), and at
such time no other circumstance identified in clauses (a) through (g) of this
definition exists that would cause such Mortgage Loan to be characterized as a
Specially Serviced Mortgage Loan; or
(c) there shall have occurred a default (other than as described in
clause (a) above and other than an Acceptable Insurance Default) that (i)
materially impairs the value of the related Mortgaged Property as security for
such Mortgage Loan or otherwise materially adversely affects the interests of
Certificateholders (or, in the case of any Companion Loan, the related Companion
Loan Noteholder), and (ii) continues unremedied for the applicable grace period
under the terms of such Mortgage Loan (or, if no grace period is specified and
the default is capable of being cured, for 30 days); provided that any default
that allows for an acceleration of the related Mortgage Loan without the
application of any grace period under the related Mortgage Loan documents shall
be deemed not to have a grace period; and provided, further that any
determination by the Master Servicer that a Servicing Transfer Event has
occurred under this clause (c) with respect to any Mortgage Loan solely by
reason of the failure of the related Mortgagor to maintain or cause to be
maintained insurance coverage against damages or losses arising from acts of
terrorism shall be subject to Section 6.11, and the last paragraph of Section
3.07(a); or
(d) a decree or order of a court or agency or supervisory authority
having jurisdiction in the premises in an involuntary case under any present or
future federal or state bankruptcy, insolvency or similar law or the appointment
of a conservator or receiver or liquidator in any insolvency, readjustment of
debt, marshaling of assets and liabilities or similar proceedings, or for the
winding-up or liquidation of its affairs, shall have been entered against the
related Mortgagor and such decree or order shall have remained in force and not
dismissed for a period of 60 days; or
(e) the related Mortgagor shall consent to the appointment of a
conservator or receiver or liquidator in any insolvency, readjustment of debt,
marshaling of assets and liabilities or similar proceedings of or relating to
such Mortgagor or of or relating to all or substantially all of its property; or
(f) the related Mortgagor shall admit in writing its inability to
pay its debts generally as they become due, file a petition to take advantage of
any applicable insolvency or reorganization statute, make an assignment for the
benefit of its creditors, or voluntarily suspend payment of its obligations; or
(g) the Master Servicer shall have received notice of the
commencement of foreclosure or similar proceedings with respect to the related
Mortgaged Property;
(it being understood that in the case of a Loan Pair, a Serviced Loan shall not
be deemed to be a Specially Serviced Loan, so long as the related Companion Loan
Noteholder has made cure payments on behalf of the related Mortgagor or has
otherwise cured on behalf of the Mortgagor, a default of the Mortgagor which
would otherwise cause the related Serviced Loan to become a Specially Serviced
Loan, within the time period and to the extent permitted under the related Loan
Pair Co-Lender Agreement); provided, however, that a Serviced Loan will cease to
be a Specially Serviced Loan, when a Liquidation Event has occurred with respect
to such Serviced Loan, when the related Mortgaged Property has become an REO
Property or, so long as at such time no circumstance identified in clauses (a)
through (g) above exists that would cause the Serviced Loan to continue to be
characterized as a Specially Serviced Loan, when:
(w) with respect to the circumstances described in clause (a) of
this definition, the related Mortgagor has made three consecutive full and
timely Monthly Payments under the terms of such Serviced Loan (as such terms may
be changed or modified in connection with a bankruptcy or similar proceeding
involving the related Mortgagor or by reason of a modification, extension,
waiver or amendment granted or agreed to by the Master Servicer or the Special
Servicer pursuant to Section 3.20);
(x) with respect to the circumstances described in clauses (b),
(d), (e) and (f) of this definition, such circumstances cease to exist in the
good faith, reasonable judgment of the Special Servicer, but, with respect to
any bankruptcy or insolvency proceedings described in clauses (d), (e) and (f),
no later than the entry of an order or decree dismissing such proceeding;
(y) with respect to the circumstances described in clause (c) of
this definition, such default is cured as determined by the Special Servicer in
its reasonable, good faith judgment; and
(z) with respect to the circumstances described in clause (g) of
this definition, such proceedings are terminated.
The Special Servicer may conclusively rely on the Master Servicer's
determination as to whether a Servicing Transfer Event has occurred giving rise
to a Serviced Loan's becoming a Specially Serviced Loan. If a Serviced Loan that
is part of any Loan Pair becomes a Specially Serviced Loan, then the other
Serviced Loan or Serviced Loans in the Loan Pair shall also become a Specially
Serviced Loan.
With respect to any Loan Pair, to the extent that any approval of
the Master Servicer is required for the extension of any cure period afforded
the related Companion Loan Noteholder pursuant to the related Loan Pair
Co-Lender Agreement, the Master Servicer shall make a determination whether to
grant such approval in accordance with the Servicing Standard, based on (1)
whether the Companion Loan Noteholder is diligently proceeding with such cure,
(2) whether a cure by the Companion Loan Noteholder is feasible and (3) whether
such cure is otherwise in the best interests of the Certificateholders and such
Companion Loan Noteholder, as a collective whole (which determination shall not
otherwise be unreasonably withheld or delayed).
"Specially Serviced Mortgage Loan" shall mean a Serviced Mortgage
Loan that constitutes a Specially Serviced Loan.
"Split Mortgage Loan" shall have the meaning assigned thereto in the
Preliminary Statement.
"Startup Day" shall mean, with respect to each REMIC Pool, the day
designated as such in Section 10.01(c).
"Stated Maturity Date" shall mean, with respect to any Loan, the Due
Date specified in the related Mortgage Note (as in effect on the Closing Date)
on which the last payment of principal is due and payable under the terms of
such Mortgage Note (as in effect on the Closing Date), without regard to any
change in or modification of such terms in connection with a bankruptcy or
similar proceeding involving the related Mortgagor or a modification, extension,
waiver or amendment of such Loan granted or agreed to by the Special Servicer
pursuant to Section 3.20.
"Stated Principal Balance" shall mean: (a) with respect to any
Mortgage Loan (and any successor REO Mortgage Loan with respect thereto), the
Cut-off Date Balance of such Mortgage Loan, as permanently reduced on each
Distribution Date (to not less than zero) by (i) that portion, if any, of the
Principal Distribution Amount for such Distribution Date allocable to such
Mortgage Loan (or any such successor REO Mortgage Loan with respect thereto) and
(ii) the principal portion of any Realized Loss incurred in respect of such
Mortgage Loan (or, if such Mortgage Loan is part of a Loan Pair, any Realized
Loss incurred in respect of such Loan Pair and allocated to such Mortgage Loan)
(or any such successor REO Mortgage Loan with respect thereto) during the
related Collection Period; and (b) with respect to any Companion Loan (including
the Oakmonte Junior Portion) (and any successor REO Loan with respect thereto),
the Cut-off Date Balance of such Loan, as permanently reduced on each Master
Servicer Remittance Date (to not less than zero) by (i) any principal payments
or collections in respect of such Loan (or any such successor REO Loan with
respect thereto), and (ii) the principal portion of any Realized Loss incurred
in respect of the related Loan Pair and allocated to such Loan (or any such
successor REO Loan with respect thereto) during the related Collection Period.
Notwithstanding the foregoing, if a Liquidation Event occurs in respect of any
Loan or REO Property, then the "Stated Principal Balance" of such Loan or of the
related REO Loan, as the case may be, shall be zero commencing as of the
Distribution Date in the Collection Period next following the Collection Period
in which such Liquidation Event occurred.
"Sub-Servicer" shall mean any Person with which the Master Servicer
or the Special Servicer has entered into a Sub-Servicing Agreement.
"Sub-Servicing Agreement" shall mean the written contract between
the Master Servicer or the Special Servicer, on the one hand, and any
Sub-Servicer, on the other hand, relating to servicing and administration of
Serviced Loans as provided in Section 3.22.
"Subsequent Exchange Act Reports" shall have the meaning assigned
thereto in Section 8.15(a).
"Successful Bidder" shall have the meaning assigned thereto in
Section 7.01(c).
"Supplemental Report" shall mean have the meaning assigned thereto
in Section 4.02(a).
"Supplemental Servicer Schedule": With respect to the Loans to be
serviced by the Master Servicer, a list attached hereto as Schedule VI, which
list sets forth the following information with respect to each Loan:
(i) the Mortgagor's name;
(ii) property type;
(iii) the original balance;
(iv) the original and remaining amortization term;
(v) whether such Mortgage Loan has a guarantor;
(vi) whether such Mortgage Loan is secured by a letter
of credit;
(vii) the current balance and monthly amount of any
reserve or escrowed funds;
(viii) the grace period with respect to both default
payments and late payments;
(ix) whether such Mortgage Loan is insured by RVI, lease
enhancement policy or environmental policies;
(x) whether an operation and maintenance plan exists
and, if so, what repairs are required;
(xi) whether a cash management agreement or lock-box
agreement is in place; and
(xii) the number of units or square feet of the Mortgage
Property.
Such list may be in the form of more than one list, collectively setting forth
all of the information required.
"Tax Administrator" shall mean any tax administrator appointed
pursuant to Section 8.13 (or, in the absence of any such appointment, the
Trustee).
"Tax Matters Person" shall mean, with respect to each REMIC Pool,
the Person designated as the "tax matters person" of such REMIC Pool in the
manner provided under Treasury Regulations Section 1.860F-4(d) and Treasury
Regulations Section 301.6231(a)(7)-1, which Person shall be the Plurality
Residual Interest Certificateholder in respect of the related Class of Residual
Interest Certificates.
"Tax Returns" shall mean the federal income tax return on Internal
Revenue Service Form 1066, U.S. Real Estate Mortgage Investment Conduit (REMIC)
Income Tax Return, including Schedule Q thereto, Quarterly Notice to Residual
Interest Holders of REMIC Taxable Income or Net Loss Allocation, or any
successor forms, to be filed on behalf of each REMIC Pool due to its
classification as a REMIC under the REMIC Provisions, and the federal income tax
return to be filed on behalf of the Grantor Trust due to its classification as a
grantor trust under the Grantor Trust Provisions, together with any and all
other information, reports or returns that may be required to be furnished to
the Certificateholders or filed with the IRS under any applicable provisions of
federal tax law or any other governmental taxing authority under applicable
state and local tax law.
"Tier 1 Loan Pair" shall mean, any one of the Loan Pairs identified
on the Mortgage Loan Schedule attached hereto as Central Park and Waverly
Village, Windsor Capital Portfolio, Pioneer Plaza Office and Frontier Building
Office.
"Tier 2 Loan Pair" shall mean, any one of the Loan Pairs identified
on the Mortgage Loan Schedule attached hereto as Tide Point Office and 2nd &
Xxxxxxxxx.
"Tier 3 Loan Pair" shall mean, any one of the Loan Pairs identified
on the Mortgage Loan Schedule attached hereto as Xxxxxxxx Xxxxx, Xxxxxxxx
Xxxxxxxxxx, 000 Xxxxx Xxxxxxxx and Oakmonte Apartment Homes.
"Transfer" shall mean any direct or indirect transfer, sale, pledge,
hypothecation, or other form of assignment of any Ownership Interest in a
Certificate.
"Transfer Affidavit and Agreement" shall have the meaning assigned
thereto in Section 5.02(d)(i)(B).
"Transfer Date" shall have the meaning assigned thereto in Section
5.02(b).
"Transferee" shall mean any Person who is acquiring, by Transfer,
any Ownership Interest in a Certificate.
"Transferor" shall mean any Person who is disposing of, by Transfer,
any Ownership Interest in a Certificate.
"Trust" shall mean the common law trust created hereunder.
"Trust Fund" shall mean, collectively, all of the assets of
Lower-Tier REMIC and the Upper-Tier REMIC and the Grantor Trust.
"Trustee" shall mean LaSalle Bank National Association, in its
capacity as trustee hereunder, or any successor trustee appointed as herein
provided.
"Trustee Fee" shall mean, with respect to each Distribution Date, an
amount equal to one-twelfth of the product of (i) the Trustee Fee Rate,
multiplied by (ii) the aggregate Stated Principal Balance of the Mortgage Pool
and the Oakmonte Junior Portion outstanding immediately prior to such
Distribution Date.
"Trustee Fee Rate" shall mean 0.0019% per annum.
"Trustee Liability" shall have the meaning assigned thereto in
Section 8.05(b).
"UCC" shall mean the Uniform Commercial Code in effect in the
applicable jurisdiction.
"UCC Financing Statement" shall mean a financing statement executed
(if required by the UCC) and filed pursuant to the UCC.
"Uncertificated Lower-Tier Interests" shall mean any of the 28
separate non-certificated beneficial ownership interests in the Lower-Tier REMIC
issued hereunder and designated as a "regular interest" in the Lower-Tier REMIC.
Each Uncertificated Lower-Tier Interest shall accrue interest at the Weighted
Average Net Mortgage Rate, and shall be entitled to distributions of principal,
subject to the terms and conditions hereof, in an aggregate amount equal to its
initial Uncertificated Principal Balance as set forth in the Preliminary
Statement hereto. The designations for the respective Uncertificated Lower-Tier
Interests are set forth in the Preliminary Statement hereto.
"Uncertificated Principal Balance" shall mean the principal balance
of any Uncertificated Lower-Tier Interest outstanding as of any date of
determination. As of the Closing Date: the Uncertificated Principal Balance of
each Uncertificated Lower-Tier Interest shall equal the amount set forth in the
Preliminary Statement hereto. On each Distribution Date, the Uncertificated
Principal Balance of each Uncertificated Lower-Tier Interest shall be
permanently reduced by all distributions of principal deemed to have been made
thereon on such Distribution Date pursuant to Section 4.01(i), and shall be
further permanently reduced on such Distribution Date by all Realized Losses and
Additional Trust Fund Expenses deemed to have been allocated thereto on such
Distribution Date pursuant to Section 4.04(b).
"Underwriters" shall mean Greenwich Capital Markets, Credit Suisse
First Boston LLC, Xxxxxx Xxxxxxx & Co. Incorporated and their respective
successors in interest.
"United States Tax Person" shall mean a citizen or resident of the
United States, a corporation, partnership or other entity created or organized
in, or under the laws of, the United States or any State thereof or the District
of Columbia, or an estate whose income from sources without the United States is
includible in gross income for United States federal income tax purposes
regardless of its connection with the conduct of a trade or business within the
United States, or a trust if a court within the United States is able to
exercise primary supervision over the administration of the trust and one or
more United States persons have the authority to control all substantial
decisions of the trust (or to the extent provided in the Treasury regulations,
if the trust was in existence on August 20, 1996 and elected to be treated as a
United States person), all within the meaning of Section 7701(a)(30) of the
Code.
"United States Securities Person" shall mean any "U.S. person" as
defined in Rule 902(k) of Regulation S.
"Upper-Tier Distribution Account" shall mean the subaccount deemed
to be a part of the Distribution Account and maintained by the Trustee pursuant
to Section 3.04(b).
"Upper-Tier REMIC" One of the two separate REMICs comprising the
Trust Fund, the assets of which consist of the Uncertificated Lower-Tier
Interests and such amounts as shall from time to time be held in the Upper-Tier
Distribution Account.
"Voting Rights" shall mean 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, 99% of the Voting Rights shall be allocated among
the Holders of the various Classes of the Principal Balance Certificates in
proportion to the respective Class Principal Balances of their Certificates, and
1% of the Voting Rights shall be allocated to the Holders of the Class XP and
Class XC Certificates, pro rata, based on the Class XP Notional Amount and Class
XC Notional Amount, respectively. 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. No Voting Rights shall be allocated to the Class R-I and Class
R-II Certificates.
"Weighted Average Net Mortgage Rate" shall mean, with respect to any
Distribution Date, the weighted average of the Net Mortgage Rates of the
Mortgage Loans as of the first day of the related Collection Period, weighted on
the basis of their respective Stated Principal Balances as of the first day of
such Collection Period (after giving effect to any payments received during any
applicable grace period).
"Windsor Capital Portfolio A/B Loan" shall have the meaning assigned
thereto in the Preliminary Statement.
"Windsor Capital Portfolio Junior Companion Loan" shall have the
meaning assigned thereto in the Preliminary Statement.
"Windsor Capital Portfolio Pari Passu Companion Loan" shall have the
meaning assigned thereto in the Preliminary Statement.
"Windsor Capital Portfolio Senior Loans" shall have the meaning
assigned thereto in the Preliminary Statement.
"Windsor Capital Portfolio Trust Loan" shall have the meaning
assigned thereto in the Preliminary Statement.
"Workout Fee" shall mean the fee designated as such in, and payable
to the Special Servicer with respect to Corrected Loans pursuant to, Section
3.11(c).
"Workout Fee Rate" shall mean, with respect to Corrected Loans as to
which a Workout Fee is payable, 1.0%.
"Yield Maintenance Charge" shall mean the payments paid or payable,
as the context requires, as the result of a Principal Prepayment on, or other
early collection of principal of, a Loan, which payments are not otherwise due
thereon in respect of principal or interest and have been calculated (based on
scheduled payments of interest and/or principal on such Loan) to compensate the
Holder for reinvestment losses based on the value of an interest rate index at
or near the time of prepayment. Any other prepayment premiums, penalties and
fees not so calculated will not be considered "Yield Maintenance Charges". In
the event that a Yield Maintenance Charge shall become due for any particular
Loan, the Master Servicer shall be required to follow the terms and provisions
contained in the applicable Mortgage Note, provided, however, in the event the
particular Mortgage Note shall not specify the U.S. Treasuries which shall be
used in determining the discount rate or the reinvestment yield to be applied in
such calculation, the Master Servicer shall be required to use those U.S.
Treasuries which shall generate the lowest discount rate or reinvestment yield
for the purposes thereof. Accordingly, if either no U.S. Treasury issue, or more
than one U.S. Treasury issue, shall coincide with the term over which the Yield
Maintenance Charge shall be calculated (which depending on the applicable
Mortgage Note is based on the remaining average life of the Loan or the actual
term remaining through the related Stated Maturity Date), the Master Servicer
shall use the applicable U.S. Treasury whose reinvestment yield is the lowest,
with such yield being based on the bid price for such issue as published in The
Wall Street Journal on the date that is 14 days prior to the date that the Yield
Maintenance Charge shall become due and payable (or, if such bid price is not
published on that date, the next preceding date on which such bid price is so
published) and converted to a monthly compounded nominal yield. The monthly
compounded nominal yield ("MEY") is derived from the reinvestment yield or
discount rate and shall be defined as MEY = (12 X [{(1+ "BEY"/2) ^1/6}-1]) X
100, where BEY is defined as the U.S. Treasury Reinvestment Yield which is in
decimal form and not in percentage, and 1/6 is the exponential power to which a
portion of the equation is raised. For example, using a BEY of 5.50%, the MEY =
(12 X [{(1+ .055/2) ^ 0.16667}- 1]) X 100 where .055 is the decimal version of
the percentage 5.5% and 0.16667 is the decimal version of the exponential power.
The MEY in the above calculation is 5.44%.
Section 1.02 General Interpretive Principles.
For purposes of this Agreement, except as otherwise expressly
provided or unless the context otherwise requires:
(i) the terms defined in this Agreement include the plural as well
as the singular, and the use of any gender herein shall be deemed to
include the other gender;
(ii) accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with GAAP;
(iii) references herein to "Articles," "Sections," "Subsections,"
"Paragraphs" and other subdivisions without reference to a document are to
designated Articles, Sections, Subsections, Paragraphs and other
subdivisions of this Agreement;
(iv) a reference to a Subsection without further reference to a
Section is a reference to such Subsection as contained in the same Section
in which the reference appears, and this rule shall also apply to
Paragraphs and other subdivisions;
(v) the words "herein," "hereof," "hereunder," "hereto," "hereby"
and other words of similar import refer to this Agreement as a whole and
not to any particular provision; and
(vi) the terms "include" or "including" shall mean without
limitation by reason of enumeration.
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIES; ORIGINAL
ISSUANCE OF CERTIFICATES
Section 2.01 Creation of Trust; Conveyance of Mortgage Loans.
(a) It is the intention of the parties hereto that a common law
trust be established pursuant to this Agreement and that such trust be
designated as "Greenwich Capital Commercial Funding Corp., Commercial Mortgage
Trust 2003-C1, Commercial Mortgage Pass-Through Certificates, Series 2003-C1."
LaSalle Bank National Association is hereby appointed, and does hereby agree, to
act as Trustee hereunder and, in such capacity, to hold the Trust Fund in trust
for the exclusive use and benefit of all present and future Certificateholders.
The Depositor, concurrently with the execution and delivery hereof, does hereby
assign, sell, transfer, set over and otherwise convey to the Trustee in trust,
without recourse, for the benefit of the Certificateholders, all the right,
title and interest of the Depositor in, to and under (i) the Mortgage Loans and
the Oakmonte Junior Portion, (ii) the Mortgage Loan Purchase Agreement, and
(iii) all other assets included or to be included in the Trust Fund. Such
assignment includes all interest and principal received or receivable on or with
respect to the Mortgage Loans and the Oakmonte Junior Portion and due after the
Cut-off Date and, in the case of each Split Mortgage Loan other than the
Oakmonte Senior Portion, is subject to the related Loan Pair Co-Lender
Agreement.
The parties hereto acknowledge and agree that, notwithstanding
Section 11.07, the transfer of the Mortgage Loans and the related rights and
property accomplished hereby is absolute and is intended by them to constitute a
sale.
(b) In connection with the Depositor's assignment pursuant to
Section 2.01(a) above, the Depositor shall direct the Mortgage Loan Seller
(pursuant to the Mortgage Loan Purchase Agreement) to deliver to and deposit
with the Trustee or a Custodian appointed thereby, on or before the Closing
Date, the Mortgage File for each Mortgage Loan (other than the 000 Xxxxx Xxxxxx
Xxxxx Trust Loan, the Mortgage File for which Mortgage Loan other than the
related Mortgage Note shall be held by the 2002-C1 Trustee pursuant to the
2002-C1 PSA on behalf of the Trust Fund and the Certificateholders), with copies
of the related Mortgage Note, Mortgage(s) and reserve and cash management
agreements for such Mortgage Loan to be delivered to the Master Servicer and the
Special Servicer. None of the Trustee, any Custodian, the Master Servicer or the
Special Servicer shall be liable for any failure by the Mortgage Loan Seller or
the Depositor to comply with the document delivery requirements of the Mortgage
Loan Purchase Agreement and this Section 2.01(b).
After the Depositor's transfer of the Mortgage Loans and the
Oakmonte Junior Portion to the Trustee pursuant to this Section 2.01(b), the
Depositor shall not take any action inconsistent with the Trust's ownership of
the Mortgage Loans and the Oakmonte Junior Portion.
(c) The Depositor hereby represents and warrants that the Mortgage
Loan Seller has covenanted in the Mortgage Loan Purchase Agreement that it shall
bear the costs related to recording or filing, as the case may be, in the
appropriate public office for real property records or UCC Financing Statements,
as appropriate, each related assignment of Mortgage and assignment of Assignment
of Leases, in favor of the Trustee referred to in clause (a)(iv) of the
definition of "Mortgage File" and each related UCC-2 and UCC-3 assignment
referred to in clause (a)(viii) of the definition of "Mortgage File" and the
Trustee shall promptly undertake to record or file any such document upon its
receipt thereof.
The Depositor hereby represents and warrants that the Mortgage Loan
Seller has covenanted in the Mortgage Loan Purchase Agreement as to each
Mortgage Loan (other than the 000 Xxxxx Xxxxxx Xxxxx Trust Loan), that if it
cannot deliver or cause to be delivered the documents and/or instruments
referred to in clauses (a)(ii), (a)(iii), (a)(vi) (if recorded) and (a)(viii) of
the definition of "Mortgage File" solely because of a delay caused by the public
recording office where such document or instrument has been delivered for
recordation, a copy of the original certified by the Mortgage Loan Seller to be
a true and complete copy of the original thereof submitted for recording, shall
be forwarded to the Trustee. Each assignment referred to in the prior two
paragraphs that is recorded by the Trustee shall reflect that it should be
returned by the public recording office to the Trustee or its agent following
recording, and each UCC-2 and UCC-3 assignment referred to in the prior two
paragraphs that is filed by the Trustee shall reflect that the file copy thereof
should be returned to the Trustee or its agent following filing; provided that,
in those instances where the public recording office retains the original
assignment of Mortgage or assignment of Assignment of Leases, the Trustee shall
obtain therefrom a certified copy of the recorded original. On a monthly basis,
at the expense of the Mortgage Loan Seller, the Trustee shall forward to the
Master Servicer a copy of each of the aforementioned assignments following the
Trustee's receipt thereof.
If any of the aforementioned assignments is lost or returned
unrecorded or unfiled, as the case may be, because of a defect therein, then the
Trustee shall direct the Mortgage Loan Seller (pursuant to the Mortgage Loan
Purchase Agreement) promptly to prepare or cause the preparation of a substitute
therefor or to cure such defect, as the case may be, and to deliver to the
Trustee the substitute or corrected document. The Trustee shall upon receipt
from the Mortgage Loan Seller cause the same to be duly recorded or filed, as
appropriate.
(d) In connection with the Depositor's assignment pursuant to
Section 2.01(a) above, the Depositor shall direct the Mortgage Loan Seller
(pursuant to the Mortgage Loan Purchase Agreement) to deliver to and deposit
with the Master Servicer on or before the Closing Date, documents and records
that (A) relate to the servicing and administration of the Mortgage Loans, (B)
are reasonably necessary for the ongoing administration and/or servicing of the
Mortgage Loans under this Agreement (including any related credit underwriting
analyses) and (C) are in possession or under control of the Mortgage Loan
Seller, together with (i) all unapplied Escrow Payments and Reserve Funds in the
possession of the Mortgage Loan Seller that relate to such Mortgage Loan and
(ii) a statement indicating which Escrow Payments and Reserve Funds are
allocable to such Mortgage Loan, provided that the Mortgage Loan Seller shall
not be required to deliver any draft documents, privileged or other
communications or due diligence analyses or data or internal worksheets,
memoranda, communications or evaluations. In addition, on the Closing Date, the
Depositor shall deliver the Initial Deposit to the Master Servicer for deposit
in the Pool Custodial Account or the Loan Pair Custodial Account, as applicable.
The Master Servicer shall hold all such documents, records and funds on behalf
of the Trustee in trust for the benefit of the Certificateholders (and, insofar
as they also relate to the Companion Loans, on behalf of and for the benefit of
the applicable Companion Loan Noteholder).
(e) It is not intended that this Agreement create a partnership or a
joint-stock association.
Section 2.02 Acceptance of Trust Fund by Trustee.
(a) The Trustee, by its execution and delivery of this Agreement,
hereby accepts receipt, directly or through a Custodian on its behalf, of (i)
the Mortgage Loans and the Oakmonte Junior Portion and all documents delivered
to it that constitute portions of the related Mortgage Files (or in the case of
the 000 Xxxxx Xxxxxx Xxxxx Trust Loan, the related Mortgage Note and the related
endorsements specified in clause (a)(i)(A) of the definition of "Mortgage File")
and (ii) all other assets delivered to it and included in the Trust Fund, in
good faith and without notice of any adverse claim, and declares that it or a
Custodian on its behalf holds and will hold such documents and any other
documents subsequently received by it that constitute portions of the Mortgage
Files, and that it holds and will hold the Mortgage Loans and the Oakmonte
Junior Portion and such other assets, together with any other assets
subsequently delivered to it that are to be included in the Trust Fund, in trust
for the exclusive use and benefit of all present and future Certificateholders.
To the extent that the Mortgage File for a Split Mortgage Loan relates to the
related Companion Loan, the Trustee shall also hold such Mortgage File in trust
for the use and benefit of the related Companion Loan Noteholder. In connection
with the foregoing, the Trustee hereby certifies to each of the other parties
hereto, the Mortgage Loan Seller and each Underwriter that, as to each Mortgage
Loan and the Oakmonte Junior Portion, except as specifically identified in the
Schedule of Exceptions to Mortgage File Delivery attached hereto as Schedule II,
(i) all documents specified in clause (a)(i), (ii), (vii), (ix) (xi) and (xix)
of the definition of "Mortgage File" (but in the case of documents specified in
clauses (ix) and (xix) only to the extent the Trustee or a Custodian on its
behalf has actual knowledge of their existence) are in its possession or the
possession of a Custodian on its behalf (other than in respect of the 000 Xxxxx
Xxxxxx Xxxxx Trust Loan, with the exception of the related Mortgage Note and the
related endorsements specified in clause (a)(i)(A) of the definition of
"Mortgage File"), and (ii) the original Mortgage Note (or, if accompanied by a
lost note affidavit, the copy of such Mortgage Note) received by it or any
Custodian with respect to such Mortgage Loan (or the Oakmonte Apartment Homes
Whole Loan) has been reviewed by it or by such Custodian on its behalf and (A)
appears regular on its face (handwritten additions, changes or corrections shall
not constitute irregularities if initialed by the Mortgagor), (B) appears to
have been executed (where appropriate) and (C) purports to relate to such
Mortgage Loan (or the Oakmonte Apartment Homes Whole Loan). The Depositor shall
cause the Mortgage Loan Seller to deliver within 30 days from the date hereof
any documents identified in the Schedule of Exceptions to Mortgage File attached
hereto as Schedule II.
(b) On or about the 45th day following the Closing Date (and, if any
exceptions are noted, again on or about the 90th day following the Closing Date
and monthly thereafter until the earliest of (i) the second anniversary of the
Closing Date, (ii) the day on which all material exceptions have been removed
and (iii) the day on which the Depositor has repurchased the last affected
Mortgage Loan), the Trustee or a Custodian on its behalf shall review the
documents delivered to it or such Custodian with respect to each Mortgage Loan
or the Oakmonte Apartment Homes Whole Loan, and the Trustee shall, subject to
Sections 2.01, 2.02(c) and 2.02(d), certify in writing (initially substantially
in the form of Exhibit C hereto, and subsequent to such initial certification,
in the form of updated exception reports) to each of the other parties hereto,
the Mortgage Loan Seller and each Underwriter (and, in the case of a Split
Mortgage Loan, to the related Companion Loan Noteholder) that, as to each
Mortgage Loan then subject to this Agreement (except as specifically identified
in any exception report annexed to such certification): (i) all documents
specified in clauses (a)(i) through (a)(v), (a)(vii) and (a)(viii) (without
regard to the second parenthetical in such clause (a)(viii)) of the definition
of "Mortgage File"); (ii) the recordation/filing contemplated by Section 2.01(c)
has been completed (based solely on receipt by the Trustee of the particular
recorded/filed documents); (iii) all documents received by it or any Custodian
with respect to such Loan have been reviewed by it or by such Custodian on its
behalf and (A) appear regular on their face (handwritten additions, changes or
corrections shall not constitute irregularities if initialed by the Mortgagor),
(B) appear to have been executed (where appropriate) and (C) purport to relate
to such Mortgage Loan or the Oakmonte Apartment Homes Whole Loan; and (iv) based
on the examinations referred to in Section 2.02(a) above and this Section
2.02(b) and only as to the foregoing documents, the information set forth in the
Mortgage Loan Schedule with respect to the items specified in clauses (v) and
(vi)(B) of the definition of "Mortgage Loan Schedule" accurately reflects the
information set forth in the Mortgage File. If the Trustee's obligation to
deliver the certifications contemplated in this subsection terminates because
two years have elapsed since the Closing Date, the Trustee shall deliver a
comparable certification to any party hereto, the applicable Companion Loan
Noteholder and any Underwriter on request.
(c) None of the Trustee, the Master Servicer, the Special Servicer
or any Custodian is under any duty or obligation to inspect, review or examine
any of the documents, instruments, certificates or other papers relating to the
Loans delivered to it to determine that the same are valid, legal, effective,
genuine, binding, enforceable, sufficient or appropriate for the represented
purpose or that they are other than what they purport to be on their face.
Furthermore, none of the Trustee, the Master Servicer, the Special Servicer or
any Custodian shall have any responsibility for determining whether the text of
any assignment or endorsement is in proper or recordable form, whether the
requisite recording of any document is in accordance with the requirements of
any applicable jurisdiction, or whether a blanket assignment is permitted in any
applicable jurisdiction.
(d) It is understood that the scope of the Trustee's review of the
Mortgage Files is limited solely to confirming that the documents specified in
clauses (a)(i) through (a)(v), (a)(vii) and (a)(viii) of the definition of
"Mortgage File" have been received and such additional information as will be
necessary for delivering the certifications required by Sections 2.02(a) and (b)
above.
(e) If, after the Closing Date, the Depositor comes into possession
of any documents or records that constitute part of the Mortgage File or
Servicing File for any Mortgage Loan or the Oakmonte Apartment Homes Whole Loan,
the Depositor shall promptly deliver such document to the Trustee (if it
constitutes part of the Mortgage File) or the Master Servicer (if it constitutes
part of the Servicing File), as applicable.
Section 2.03 Repurchase of Mortgage Loans for Document Defects and
Breaches of Representations and Warranties.
(a) If any party hereto discovers that any document constituting a
part of a Mortgage File has not been properly executed, is missing, contains
information that does not conform in any material respect with the corresponding
information set forth in the Mortgage Loan Schedule, or does not appear to be
regular on its face (each, a "Document Defect"), or discovers or receives notice
of a breach of any representation or warranty of the Mortgage Loan Seller made
pursuant to Section 5 of the Mortgage Loan Purchase Agreement with respect to
any Mortgage Loan (a "Breach"), such party shall give prompt written notice
thereof to each of the Rating Agencies, the Mortgage Loan Seller and the other
parties hereto. If any such Document Defect or Breach with respect to any
Mortgage Loan materially and adversely affects the value of the Mortgage Loan or
the related Mortgaged Property or the interests of any Certificateholder, then
such Document Defect shall constitute a "Material Document Defect" or such
Breach shall constitute a "Material Breach," as the case may be. Promptly upon
becoming aware of any such Material Document Defect or Material Breach
(including through a written notice given by any party hereto, as provided
above), the Trustee shall require the Mortgage Loan Seller, not later than 90
days from the earlier of the Mortgage Loan Seller's discovery or receipt of
notice of such Material Document Defect or Material Breach, as the case may be
(or, in the case of a Material Document Defect or Material Breach relating to a
Mortgage Loan not being a "qualified mortgage" within the meaning of the REMIC
Provisions, not later than 90 days of any party discovering such Material
Document Defect or Material Breach), cure the same in all material respects
(which cure shall include payment of losses and any Additional Trust Fund
Expenses associated therewith) or, if such Material Document Defect or Material
Breach, as the case may be, cannot be cured within such 90-day period,
repurchase the affected Mortgage Loan or any related REO Property at the
applicable Purchase Price by wire transfer of immediately available funds to the
Pool Custodial Account (or, in the case of a Split Mortgage Loan or an REO
Property that relates to a Split Mortgage Loan, to the related Loan Pair REO
Account); provided, however, that if (i) such Material Document Defect or
Material Breach is capable of being cured but not within such 90-day period,
(ii) such Material Document Defect or Material Breach is not related to any
Mortgage Loan's not being a "qualified mortgage" within the meaning of the REMIC
Provisions, (iii) the Mortgage Loan Seller has commenced and is diligently
proceeding with the cure of such Material Document Defect or Material Breach
within such 90-day period and (iv) the affected Mortgage Loan is not then a
Specially Serviced Mortgage Loan, then the Mortgage Loan Seller shall have an
additional 90 days to complete such cure or, in the event of a failure to so
cure, to complete such repurchase (it being understood and agreed that, in
connection with the Mortgage Loan Seller's receiving such additional 90-day
period, the Mortgage Loan Seller shall deliver an Officer's Certificate to the
Trustee setting forth the reasons such Material Document Defect or Material
Breach is not capable of being cured within the initial 90-day period and what
actions the Mortgage Loan Seller is pursuing in connection with the cure thereof
and stating that the Mortgage Loan Seller anticipates that such Material
Document Defect or Material Breach will be cured within such additional 90-day
period); and provided, further, that, if any such Material Document Defect is
still not cured after the initial 90-day period and any such additional 90-day
period solely due to the failure of the Mortgage Loan Seller to have received
the recorded document, then the Mortgage Loan Seller shall be entitled to
continue to defer its cure and repurchase obligations in respect of such
Document Defect so long as the Mortgage Loan Seller certifies to the Trustee
every 30 days thereafter that the Document Defect is still in effect solely
because of its failure to have received the recorded document and that the
Mortgage Loan Seller is diligently pursuing the cure of such defect (specifying
the actions being taken), except that no such deferral of cure or repurchase may
continue beyond the second anniversary of the Closing Date. Provided that the
Master Servicer has notice of such Material Document Defect or Material Breach,
the Master Servicer shall notify the Mortgage Loan Seller if the related
Mortgage Loan becomes a Specially Serviced Mortgage Loan during any applicable
cure periods. Any of the following document defects shall be conclusively
presumed to materially and adversely affect the value of a Mortgaged Property,
value of a Mortgage Loan or the interests of Certificateholders in a Mortgage
Loan and be a Material Document Defect: (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 by the local authority with which the Mortgage
was recorded and a certificate stating that the original signed Mortgage was
sent for recordation, (c) the absence from the Mortgage File of the original or
a copy of the lender's title insurance policy, together with all endorsements or
riders (or copies thereof) that were issued with or subsequent to the issuance
of such policy, or marked up insurance binder or title commitment which is
marked as a binding commitment and countersigned by title company, insuring the
priority of the Mortgage as a first lien on the Mortgaged Property, (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 or (e) the absence from the Servicing File of any
original letter of credit.
If one or more (but not all) of the Mortgage Loans constituting a
Cross-Collateralized Group are to be repurchased by the Mortgage Loan Seller as
contemplated by this Section 2.03, then, prior to the subject repurchase, the
Mortgage Loan Seller or its designee shall use its reasonable efforts, subject
to the terms of the related Mortgage Loan(s), to prepare and, to the extent
necessary and appropriate, have executed by the related Mortgagor and record,
such documentation as may be necessary to terminate the cross-collateralization
between the Mortgage Loan(s) in such Cross-Collateralized Group that are to be
repurchased, on the one hand, and the remaining Mortgage Loan(s) therein, on the
other hand, such that those two groups of Mortgage Loans are each secured only
by the Mortgaged Properties identified in the Mortgage Loan Schedule as directly
corresponding thereto; provided that no such termination shall be effected
unless and until the Controlling Class Directing Holder acting as the Directing
Holder, if one is then acting, has consented (which consent shall not be
unreasonably withheld and shall be deemed to have been given if no written
objection is received by the Mortgage Loan Seller within 10 Business Days of
such Directing Holder's receipt of a written request for such consent) (i) the
debt service coverage ratio for the four preceding calendar quarters for all of
the Mortgage Loans relating to such Cross-Collateralized Group remaining is not
less than 0.05x below the debt service coverage ratio for all Mortgage Loans of
such Cross-Collateralized Group (including the affected Mortgage Loan) set forth
in the Prospectus Supplement, (ii) the loan-to-value ratio for all of the
Mortgage Loans of such Cross-Collateralized Group remaining is not greater than
5% more than the loan-to-value ratio for all Mortgage Loans of such
Cross-Collateralized Group (including the affected Mortgage Loan) set forth in
the Prospectus Supplement, and (iii) the Trustee has received from the Mortgage
Loan Seller an Opinion of Counsel to the effect that such termination would not
cause an Adverse REMIC Event to occur with respect to either REMIC Pool or an
Adverse Grantor Trust Event to occur with respect to the Grantor Trust and a
written confirmation from each Rating Agency that such termination would not
cause an Adverse Rating Event to occur with respect to any Class of
Certificates; and provided, further, that the Mortgage Loan Seller may, at its
option, purchase the entire subject Cross-Collateralized Group in lieu of
effecting a termination of the cross-collateralization. All costs and expenses
incurred by the Trustee or any Person on its behalf pursuant to this paragraph
shall be included in the calculation of the Purchase Price for the Mortgage
Loan(s) to be repurchased. If the cross-collateralization of any
Cross-Collateralized Group is not or cannot be terminated as contemplated by
this paragraph, then, for purposes of (i) determining the materiality of any
Breach or Defect, as the case may be, and (ii) the application of remedies, such
Cross-Collateralized Group shall be treated as a single Mortgage Loan.
(b) If the Mortgage Loan Seller disputes that a Material Document
Defect or Material Breach exists with respect to a Mortgage Loan or otherwise
fails (i) to effect a correction or cure of such Material Document Defect or
Material Breach or (ii) to repurchase the affected Mortgage Loan from the Trust,
each in accordance with the Mortgage Loan Purchase Agreement, then provided that
(x) the period of time provided for the Mortgage Loan Seller to correct,
repurchase or cure has expired and (y) the Mortgage Loan is then in default and
is then a Specially Serviced Mortgage Loan, the Special Servicer may, subject to
the Servicing Standard, modify, workout or foreclose, sell or otherwise
liquidate (or permit the liquidation of) the Mortgage Loan pursuant to Section
3.09, Section 3.18 and Section 3.20, as applicable, hereof, while pursuing the
repurchase claim. The Mortgage Loan Seller has acknowledged and agreed under the
Mortgage Loan Purchase Agreement that any modification of the Mortgage Loan
pursuant to a workout shall not constitute a defense to any repurchase claim nor
shall such modification and workout change the Purchase Price due from the
Mortgage Loan Seller for any repurchase claim. In the event of any such
modification and workout, the Mortgage Loan Seller has agreed under the Mortgage
Loan Purchase Agreement to repurchase the Mortgage Loan as modified (if the
Mortgage Loan Seller is otherwise required to, elects to or does repurchase such
Mortgage Loan in accordance with the terms of the Mortgage Loan Purchase
Agreement). The Mortgage Loan Seller shall be notified promptly and in writing
by (i) the Trustee of any notice that it receives that a Purchase Option Holder
intends to exercise its option to purchase the Mortgage Loan in accordance with
and as described in Section 3.18 hereof and (ii) the Special Servicer of any
offer that it receives to purchase the successor REO Property, each in
connection with such liquidation. Upon the receipt of such notice by the
Mortgage Loan Seller, the Mortgage Loan Seller shall then have the right to
purchase the related Mortgage Loan or the successor REO Property, as applicable,
from the Trust at a purchase price equal to, in the case of clause (i) of the
immediately preceding sentence, the Option Purchase Price or, in the case of
clause (ii) of the immediately preceding sentence, the amount of such offer (in
the case of both of the immediately preceding clauses (i) and (ii), including a
Liquidation Fee paid by the Mortgage Loan Seller if such purchase occurs after
180 days of original notice of Material Document Defect or Material Breach).
Notwithstanding anything to the contrary contained herein or in the Mortgage
Loan Purchase Agreement, the right of any Purchase Option Holder to purchase
such Mortgage Loan shall be subject and subordinate to the Mortgage Loan
Seller's right to purchase such Mortgage Loan as described in the immediately
preceding sentence. The Mortgage Loan Seller shall have five (5) Business Days
to notify the Trustee and the Special Servicer, of its intent to so purchase the
Mortgage Loan or the successor REO Property from the date that it was notified
of such intention to exercise such option or of such offer. The Special Servicer
shall be obligated to provide the Mortgage Loan Seller with any appraisal or
other non-proprietary or non-confidential third party reports relating to the
Mortgaged Property within its possession to enable the Mortgage Loan Seller to
evaluate the related Mortgage Loan or the successor REO Property. Any sale of
the related Mortgage Loan, or foreclosure upon such Mortgage Loan and sale of
the successor REO Property, shall be without (i) recourse of any kind (either
expressed or implied) by such Person against the Mortgage Loan Seller and (ii)
representation or warranty of any kind (either expressed or implied) by the
Mortgage Loan Seller to or for the benefit of such Person.
The fact that a Material Document Defect or Material Breach is not
discovered until after foreclosure (but in all instances prior to the sale of
the successor REO Property or Mortgage Loan) shall not prejudice any claim
against the Mortgage Loan Seller for repurchase of the REO Mortgage Loan or
successor REO Property. In such an event, the Master Servicer shall notify the
Mortgage Loan Seller of the discovery of the Material Document Defect or
Material Breach and the Mortgage Loan Seller shall have 90 days to correct or
cure such Material Document Defect or Material Breach or purchase the successor
REO Property at the Purchase Price. If the Mortgage Loan Seller fails to correct
or cure the Material Document Defect or Material Breach or purchase the
successor REO Property, then the provisions above regarding notice of offers
related to such REO Property and the Mortgage Loan Seller's right to purchase
such REO Property shall apply. If a court of competent jurisdiction issues a
final order that the Mortgage Loan Seller is or was obligated to repurchase the
related Mortgage Loan or the successor REO Loan or the Mortgage Loan Seller
otherwise accepts liability, then, after the expiration of any applicable appeal
period, but in no event later than the termination of the Trust pursuant to
Section 9.01 hereof, the Mortgage Loan Seller will be obligated to pay to the
Trust the difference between (i) any Liquidation Proceeds received upon such
liquidation (including those arising from any sale to the Mortgage Loan Seller)
net of Liquidation Expenses and (ii) the Purchase Price; provided that the
prevailing party in such action shall be entitled to recover from the other
party all costs, fees and expenses (including reasonable attorneys fees) related
thereto.
(c) In connection with any sale or other liquidation of a Mortgage
Loan or a successor REO Property as described in this Section 2.03, the Special
Servicer shall not receive a Liquidation Fee in connection with such sale or
other liquidation until a final determination has been made, as set forth in the
preceding paragraph, as to whether the Mortgage Loan Seller is or was obligated
to repurchase such Mortgage Loan or REO Property. Upon such determination, the
Special Servicer shall be entitled to collect a Liquidation Fee (i) with respect
to a determination that the Mortgage Loan Seller is or was obligated to
repurchase, based upon the full Purchase Price of the related Mortgage Loan,
including all related expenses up to the date the remainder of such Purchase
Price is actually paid, with such Liquidation Fee payable by the Mortgage Loan
Seller or (ii) with respect to a determination that the Mortgage Loan Seller is
not or was not obligated to repurchase (or the Trust decides that it will no
longer pursue a claim against the Mortgage Loan Seller for repurchase), based
upon the Liquidation Proceeds as received upon the actual sale or liquidation of
such Mortgage Loan, with such amount to be paid from amounts in the Collection
Account. In connection with any repurchase of a Mortgage Loan pursuant to this
Section 2.03, and subject to Section 3.25, the Trustee, the Custodian, the
Master Servicer and the Special Servicer shall each tender to the repurchasing
entity, upon delivery to each of them of a receipt executed by the repurchasing
entity, all portions of the Mortgage File and other documents pertaining to such
Mortgage Loan possessed by it, and each document that constitutes a part of the
Mortgage File shall be endorsed or assigned to the extent necessary or
appropriate to the repurchasing entity or its designee in the same manner, but
only if the respective documents have been previously assigned or endorsed to
the Trustee, and pursuant to appropriate forms of assignment, substantially
similar to the manner and forms pursuant to which such documents were previously
assigned to the Trustee; provided that such tender by the Trustee shall be
conditioned upon its receipt from the Master Servicer of a Request for Release
and an Officer's Certificate to the effect that the requirements for repurchase
have been satisfied. The Master Servicer shall, and is hereby authorized and
empowered by the Trustee to, prepare, execute and deliver in its own name, on
behalf of the Certificateholders and the Trustee or any of them, the
endorsements and assignments contemplated by this Section 2.03(c), and such
other instruments as may be necessary or appropriate to transfer title to an REO
Property in connection with the repurchase of an REO Loan and the Trustee shall
execute and deliver any powers of attorney necessary to permit the Master
Servicer to do so; provided, however, that the Trustee shall not be held liable
for any misuse of any such power of attorney by the Master Servicer.
(d) Notwithstanding the foregoing, if there exists a Breach of that
portion of the representation or warranty on the part of the Mortgage Loan
Seller set forth in, or made pursuant to, paragraph 23 or paragraph 43 of
Exhibit B to the Mortgage Loan Purchase Agreement, specifically relating to
whether or not the Mortgage Loan documents or any particular Mortgage Loan
document for any Mortgage Loan requires the related Mortgagor to bear the Rating
Agency fees reflected in paragraph 23 or reasonable costs and expenses
associated with a defeasance, as set forth in paragraph 43 of Exhibit B to the
Mortgage Loan Purchase Agreement, then the Master Servicer shall direct the
Mortgage Loan Seller in writing to wire transfer to the Pool Custodial Account,
within 90 days of receipt of such direction, the amount of any such reasonable
costs and expenses incurred by the Trust that (i) are due from the Mortgagor,
(ii) otherwise would have been required to be paid by the Mortgagor if such
representation or warranty with respect to such costs and expenses had in fact
been true, as set forth in the related representation or warranty, (iii) have
not been paid by the Mortgagor, (iv) are the basis of such Breach and (v)
constitute "Covered Costs". Upon payment of such costs, the Mortgage Loan Seller
shall be deemed to have cured such Breach in all respects. Provided that such
payment is made, this paragraph describes the sole remedy available to the
Certificateholders and the Trustee on their behalf regarding any such Breach,
regardless of whether it constitutes a Material Breach, and neither the
Depositor nor the Mortgage Loan Seller shall be obligated to otherwise cure such
Breach or repurchase the affected Mortgage Loan under any circumstances. Amounts
deposited in the Pool Custodial Account pursuant to this paragraph shall
constitute "Liquidation Proceeds" for all purposes of this Agreement (other than
Section 3.11(c)).
(e) The Mortgage Loan Purchase Agreement and Section 2.03 provide
the sole remedies available to the Certificateholders, or the Trustee on behalf
of the Certificateholders, respecting any Document Defect or Breach with respect
to any Mortgage Loan.
Section 2.04 Representations, Warranties and Covenants of the
Depositor.
(a) The Depositor hereby represents, warrants and covenants to the
Trustee, for its own benefit and the benefit of the Certificateholders, and to
the Fiscal Agent, the Master Servicer and the Special Servicer, as of the
Closing Date, that:
(i) The Depositor is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware, 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 (other
than the Oakmonte Senior Portion) and the Oakmonte Apartment Homes Whole
Loan free and clear of all liens, claims, encumbrances and other interests
with the full right to transfer the Mortgage Loans (other than the
Oakmonte Senior Portion) and the Oakmonte Apartment Homes Whole Loan to
the Trust and the Mortgage Loans (other than the Oakmonte Senior Portion)
and the Oakmonte Apartment Homes Whole Loan have been validly transferred
to the Trust.
The representations, warranties and covenants of the Depositor set
forth in this Section 2.04 shall survive the execution and delivery of this
Agreement and shall inure to the benefit of the Persons for whose benefit they
were made for so long as the Trust Fund remains in existence. Upon discovery by
any party hereto of any breach of any of such representations, warranties and
covenants, the party discovering such breach shall give prompt written notice
thereof to the other parties.
Section 2.05 Execution of Certificates; Issuance of Uncertificated
Lower-Tier Interests.
The Trustee hereby acknowledges the assignment to it of the Mortgage
Loans and the Oakmonte Junior Portion, 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 the Mortgage Loan Purchase Agreement,
together with the assignment to it of all other assets included in the Trust
Fund. Concurrently with such assignment and delivery and in exchange therefor,
the Trustee (i) acknowledges the issuance of the Uncertificated Lower-Tier
Interests to or upon the order of the Depositor, (ii) acknowledges and hereby
declares that it holds the Uncertificated Lower-Tier Interests on behalf of the
Upper-Tier REMIC and Holders of the Certificates (other than the Class R-I
Certificates), (iii) acknowledges the authentication and delivery of the Class
R-I Certificates to or upon the order of the Depositor, in exchange for the
Mortgage Loans, receipt of which is hereby acknowledged, and immediately
thereafter, the Trustee acknowledges that 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 Interest Certificates and the
Class R-II 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 and (iv) 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 Oakmonte Junior Portion, the Class Y
Certificates, and the Depositor hereby acknowledges the receipt by it or its
assignees, of such Certificates in authorized denominations evidencing the
beneficial ownership of the Oakmonte Junior Portion. The Class Y Certificates
shall evidence the entire beneficial ownership of the Grantor Trust.
ARTICLE III
ADMINISTRATION AND SERVICING OF THE TRUST FUND
Section 3.01 Administration of the Loans.
(a) All of the Serviced Loans and Administered REO Properties (which
does not include the 000 Xxxxx Xxxxxx Xxxxx A/B Loan but does include the
Oakmonte Junior Portion) are to be serviced and administered by the Master
Servicer and/or the Special Servicer hereunder. Each of the Master Servicer and
the Special Servicer shall service and administer the Serviced Loans and REO
Properties that it is obligated to service and administer pursuant to this
Agreement on behalf of the Trustee, for the benefit of the Certificateholders
(or, in the case of the Companion Loans, on behalf of the Certificateholder and
the related Companion Loan Noteholder), as determined in the good faith and
reasonable judgment of the Master Servicer or the Special Servicer, as the case
may be, in accordance with: (i) any and all applicable laws; (ii) the express
terms of this Agreement, the respective Serviced Loans and, in the case of the
Loan Pairs (other than the Oakmonte Apartment Homes Whole Loan), the related
Loan Pair Co-Lender Agreement; and (iii) to the extent consistent with the
foregoing, the Servicing Standard. Without limiting the foregoing, and subject
to Section 3.21, (i) the Master Servicer shall service and administer all of the
Performing Serviced Loans and shall render such services with respect to the
Specially Serviced Loans as are specifically provided for herein, and (ii) the
Special Servicer shall service and administer each Specially Serviced Loan and
Administered REO Property and shall render such services with respect to the
Performing Serviced Loans as are specifically provided for herein. All
references herein to the respective duties of the Master Servicer and the
Special Servicer, and to the areas in which they may exercise discretion, shall
be subject to Section 3.21.
The parties hereto acknowledge that the 000 Xxxxx Xxxxxx Xxxxx A/B
Loan and any related REO property are being serviced and administered under the
2002-C1 PSA and the 2002-C1 Master Servicer will make any advances required
thereunder in respect of such loan and remit collections on the 000 Xxxxx Xxxxxx
Xxxxx Trust Loan to or on behalf of the Trust. The Master Servicer, the Special
Servicer, the Trustee or the Fiscal Agent shall have no obligation or authority
to supervise the 2002-C1 Master Servicer, the 2002-C1 Special Servicer, the
2002-C1 Trustee or the 2002-C1 Fiscal Agent or to make Servicing Advances or P&I
Advances (except to the limited extent described in Section 4.03A with respect
to P&I Advances to be made by the Master Servicer, the Trustee or the Fiscal
Agent on the 000 Xxxxx Xxxxxx Xxxxx Trust Loan). The obligation of the Master
Servicer to provide information and collections to the Trustee and the
Certi?cateholders with respect to the 000 Xxxxx Xxxxxx Xxxxx A/B Loan shall be
dependent on its receipt of the corresponding information and collections from
the 2002-C1 Master Servicer or the 2002-C1 Special Servicer.
(b) Subject to Section 3.01(a) and Section 6.11 (taking account of
Section 6.11(b)), the Master Servicer and the Special Servicer shall each have
full power and authority, acting alone or through sub-servicers, to do or cause
to be done any and all things in connection with the servicing and
administration contemplated by Section 3.01(a) that it may deem necessary or
desirable. Without limiting the generality of the foregoing, each of the Master
Servicer and the Special Servicer, in its own name, with respect to each of the
Serviced Loans it is obligated to service hereunder, is hereby authorized and
empowered by the Trustee to execute and deliver, on behalf of the
Certificateholders, the Trustee and the Companion Loan Noteholders or any of
them, (i) any and all financing statements, continuation statements and other
documents or instruments necessary to maintain the lien created by any Mortgage
or other security document in the related Mortgage File on the related Mortgaged
Property and related collateral; (ii) in accordance with the Servicing Standard
and subject to Section 3.20 and Section 6.11 (taking account of Section
6.11(b)), any and all modifications, extensions, waivers, amendments or consents
to or with respect to any documents contained in the related Mortgage File;
(iii) any and all instruments of satisfaction or cancellation, or of partial or
full release or discharge or of assignment, and all other comparable
instruments; and (iv) any and all instruments that such party may be required to
execute on behalf of the Trustee in connection with the defeasance of a Serviced
Loan as contemplated in this Agreement. Subject to Section 3.10, the Trustee
shall, at the written request of the Master Servicer or the Special Servicer,
promptly execute any limited powers of attorney and other documents furnished by
the Master Servicer or the Special Servicer that are necessary or appropriate to
enable them to carry out their servicing and administrative duties hereunder;
provided, however, that the Trustee shall not be held liable for any misuse of
any such power of attorney by the Master Servicer or the Special Servicer.
Notwithstanding anything contained herein to the contrary, neither the Master
Servicer nor the Special Servicer shall, without the Trustee's written consent:
(i) initiate any action, suit or proceeding solely under the Trustee's name
without indicating the Master Servicer's or Special Servicer's, as applicable,
representative capacity; or (ii) take any action with the intent to cause, and
that actually causes, the Trustee to be registered to do business in any state.
(c) The parties hereto acknowledge that the Loan Pairs (other than
the Oakmonte Apartment Homes Whole Loan) are subject to the terms and conditions
of the applicable Loan Pair Co-Lender Agreement. The parties hereto further
recognize the respective rights and obligations of the holder of the senior
Split Mortgage Loan other than the Oakmonte Senior Portion and the related
Companion Loan Noteholder under the applicable Loan Pair Co-Lender Agreement,
including with respect to (i) the allocation of collections on or in respect of
the Loan Pairs in accordance with Sections 3 and 4 of each Loan Pair Co-Lender
Agreement, (ii) the making of payments to the Note A Holder and Note B Holder in
accordance with Sections 3 and 4 of the applicable Loan Pair Co-Lender
Agreement, (iii) the purchase of the Split Mortgage Loans other than the
Oakmonte Senior Portion by the related Companion Loan Noteholders or their
designees in accordance with Section 8 of the applicable Loan Pair Co-Lender
Agreement (or in the case of the 000 Xxxxx Xxxxxx Xxxxx A/B Loan, the purchase
of the 000 Xxxxx Xxxxxx Xxxxx Senior Loans by the holder or holders of more than
50% of the certificate principal balance of the 2002-C1 Class SWD-B
Certificates), and (iv) the right of the Companion Loan Noteholder to cure a
default of the related Mortgagor in accordance with the applicable Loan Pair
Co-Lender Agreement.
Notwithstanding the foregoing, if, at such time as any Split
Mortgage Loan (other than the 000 Xxxxx Xxxxxx Xxxxx Trust Loan and the Oakmonte
Senior Portion) shall no longer be part of the Trust Fund, a separate servicing
agreement with respect to the related Loan Pair has not been entered into or the
rating confirmation from the applicable Rating Agency, as referred to above, has
not been obtained, then, until such time as a separate servicing agreement is
entered into and such rating confirmation is obtained, and notwithstanding that
such Split Mortgage Loan is no longer part of the Trust Fund, the Master
Servicer and, if applicable, the Special Servicer shall continue to service such
Loan Pair or any related Loan Pair REO Properties, as the case may be, under
this Agreement as if it were a separate servicing agreement, for the benefit of
the Note A Holder and Note B Holder under each Loan Pair Co-Lender Agreement,
with: (i) such Loan Pair and the related Loan Pair Mortgaged Properties
constituting the sole assets thereunder; and (ii) references to the "Trustee,"
"Trust," "Certificateholders" (or any sub-group thereof) and the "Controlling
Class Directing Holder" being construed to refer to the new "Note A Holder"
under each Loan Pair Co-Lender Agreement. With respect to the Oakmonte Apartment
Homes Whole Loan, so long as either the Oakmonte Senior Portion or the Oakmonte
Junior Portion is an asset of the Trust Fund, the Master Servicer and, if
applicable, the Special Servicer shall continue to service such Loan Pair or any
related Loan Pair REO Property, as the case may be, pursuant to this Agreement.
(d) The relationship of each of the Master Servicer and the Special
Servicer to the Trustee, to the Companion Loan Noteholders and to each other
under this Agreement is intended by the parties to be that of an independent
contractor and not that of a joint venturer, partner or agent.
Section 3.02 Collection of Loan Payments.
(a) Each of the Master Servicer (with respect to Performing Serviced
Loans) and the Special Servicer (with respect to Specially Serviced Loans) shall
undertake reasonable efforts to collect all payments required under the terms
and provisions of the Serviced Loans it is obligated to service hereunder and
shall follow such collection procedures as are consistent with the Servicing
Standard. The Special Servicer shall ensure that, with respect to Specially
Serviced Loans, the Mortgagors make payments directly to the Master Servicer;
provided that, in the event the Special Servicer receives a payment that should
have been made directly to the Master Servicer, the Special Servicer shall
promptly forward such payment to the Master Servicer. Upon receipt of any such
payment with respect to a Specially Serviced Loan, the Master Servicer shall
promptly notify the Special Servicer, and the Special Servicer shall respond to
any inquiry by the Master Servicer regarding the proper posting of such payment.
Consistent with the foregoing, the Special Servicer, with regard to a Specially
Serviced Loan, or the Master Servicer, with regard to a Performing Serviced
Loan, may waive or defer any Default Charges in connection with collecting any
late payment on a Serviced Loan; provided that without the consent of the
Special Servicer in the case of a proposed waiver by the Master Servicer, no
such waiver or deferral may be made by the Master Servicer pursuant to this
Section 3.02 if any Advance has been made as to such delinquent payment.
(b) All amounts received with respect to any Cross-Collateralized
Group in the form of payments from Mortgagors, Insurance Proceeds, Condemnation
Proceeds and Liquidation Proceeds, shall be applied by the Master Servicer among
the Mortgage Loans constituting such Cross-Collateralized Group in accordance
with the express provisions of the related loan documents and, in the absence of
such express provisions or to the extent that such payments and other
collections may be applied at the discretion of the lender, on a pro rata basis
in accordance with the respective amounts then "due and owing" as to each such
Mortgage Loan. Except in the case of the Loan Pairs, amounts received in respect
of or allocable to any particular Mortgage Loan (whether or not such Mortgage
Loan constitutes part of a Cross-Collateralized Group) in the form of payments
from Mortgagors, Liquidation Proceeds, Condemnation Proceeds or Insurance
Proceeds shall be applied to amounts due and owing under the related Mortgage
Note and Mortgage (including for principal and accrued and unpaid interest) in
accordance with the express provisions of the related Mortgage Note and Mortgage
and, in the absence of such express provisions or to the extent that such
payments and other collections may be applied at the discretion of the lender,
as follows: first, as a recovery of any related and unreimbursed Servicing
Advances and unpaid servicing expenses and, if applicable, unpaid Liquidation
Expenses; second, as a recovery of accrued and unpaid interest on such Mortgage
Loan at the related Mortgage Rate to, but not including, the date of receipt
(or, in the case of a full Monthly Payment from any Mortgagor, through the
related Due Date); third, as a recovery of principal of such Mortgage Loan then
due and owing, including by reason of acceleration of the Mortgage Loan
following a default thereunder (or, if a Liquidation Event has occurred in
respect of such Mortgage Loan, as a recovery of principal to the extent of its
entire remaining unpaid principal balance); fourth, unless a Liquidation Event
has occurred with respect to such Mortgage Loan, as a recovery of amounts to be
currently applied to the payment of, or escrowed for the future payment of, real
estate taxes, assessments, insurance premiums (including premiums on any
Environmental Insurance Policy), ground rents (if applicable) and similar items;
fifth, unless a Liquidation Event has occurred with respect to such Mortgage
Loan, as a recovery of Reserve Funds to the extent then required to be held in
escrow; sixth, as a recovery of any Prepayment Premium or Yield Maintenance
Charge then due and owing under such Mortgage Loan; seventh, as a recovery of
any Default Charges then due and owing under such Mortgage Loan; eighth, as a
recovery of any assumption fees, modification fees and extension fees then due
and owing under such Mortgage Loan; ninth, as a recovery of any other amounts
then due and owing under such Mortgage Loan (other than remaining unpaid
principal); and tenth, as a recovery of any remaining principal of such Mortgage
Loan to the extent of its entire remaining unpaid principal balance.
All amounts received with respect to any Loan Pair shall be applied
to amounts due and owing under such Loan Pair (including for principal and
accrued and unpaid interest) in accordance with the express provisions of the
related Mortgage Notes, the related Mortgage, the related loan agreement, if
any, and the related Loan Pair Co-Lender Agreement (or, in the case of the
Oakmonte Apartment Homes Whole Loan, in accordance with Section 4.01(l)).
Section 3.03 Collection of Taxes, Assessments and Similar Items;
Servicing Accounts; Reserve Accounts.
(a) The Master Servicer shall, as to all Mortgage Loans (other than
000 Xxxxx Xxxxxx Xxxxx Trust Loan), establish and maintain one or more accounts,
in which all related Escrow Payments shall be deposited and retained (each a
"Servicing Account"). Subject to the terms of the related loan documents, each
Servicing Account shall be an Eligible Account. Withdrawals of amounts so
collected from a Servicing Account may be made (to the extent of amounts on
deposit therein in respect of the related Loan or, in the case of clauses (iv)
and (v) below, to the extent of interest or other income earned on such amounts)
only for the following purposes: (i) consistent with the related loan documents,
to effect the payment of real estate taxes, assessments, insurance premiums
(including premiums on any Environmental Insurance Policy), ground rents (if
applicable) and comparable items in respect of the respective Mortgaged
Properties; (ii) insofar as the particular Escrow Payment represents a late
payment that was intended to cover an item described in the immediately
preceding clause (i) for which a Servicing Advance was made, to reimburse the
Master Servicer, the Special Servicer, the Trustee or the Fiscal Agent, as
applicable, for such Servicing Advance; (iii) to refund to Mortgagors any sums
as may be determined to be overages; (iv) to pay interest, if required and as
described below, to Mortgagors on balances in such Servicing Account; (v) to pay
the Master Servicer interest and investment income on balances in such Servicing
Account as described in Section 3.06(b), if and to the extent not required by
law or the terms of the related loan documents to be paid to the Mortgagor; or
(vi) to clear and terminate such Servicing Account at the termination of this
Agreement in accordance with Section 9.01. To the extent permitted by law or the
applicable loan documents, funds in the Servicing Accounts may be invested only
in Permitted Investments in accordance with the provisions of Section 3.06. The
Master Servicer shall pay or cause to be paid to the Mortgagors interest, if
any, earned on the investment of funds in the related Servicing Accounts, if
required by law or the terms of the related Loan. If the Master Servicer shall
deposit in a Servicing Account any amount not required to be deposited therein,
it may at any time withdraw such amount from such Servicing Account, any
provision herein to the contrary notwithstanding.
(b) The Master Servicer shall, as to each and every Serviced Loan
(i) maintain accurate records with respect to the related Mortgaged Property
reflecting the status of real estate taxes, assessments and other similar items
that are or may become a lien thereon and the status of insurance premiums and
any ground rents payable in respect thereof and (ii) use reasonable efforts to
obtain, from time to time, all bills for (or otherwise confirm) the payment of
such items (including renewal premiums) and, if the subject Serviced Loan
requires the related Mortgagor to escrow for such items, shall effect payment
thereof prior to the applicable penalty or termination date. For purposes of
effecting any such payment for which it is responsible, the Master Servicer
shall apply Escrow Payments as allowed under the terms of the related Serviced
Loan (or, if such Serviced Loan does not require the related Mortgagor to escrow
for the payment of real estate taxes, assessments, insurance premiums, ground
rents (if applicable) and similar items, the Master Servicer shall use
reasonable efforts consistent with the Servicing Standard to cause the related
Mortgagor to comply with 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). Subject to Section 3.11(h), the Master Servicer shall timely make a
Servicing Advance to cover any such item which is not so paid, including any
penalties or other charges arising from the Mortgagor's failure to timely pay
such items.
(c) The Master Servicer shall, as to each and every Serviced Loan,
make a Servicing Advance with respect to the related Mortgaged Property in an
amount equal to all such funds as are necessary for the purpose of effecting the
payment of (i) real estate taxes, assessments and other similar items, (ii)
ground rents (if applicable), and (iii) premiums on Insurance Policies
(including Environmental Insurance Policies), in each instance if and to the
extent Escrow Payments (if any) collected from the related Mortgagor are
insufficient to pay such item when due and the related Mortgagor has failed to
pay such item on a timely basis. All such Servicing Advances shall be
reimbursable in the first instance from related collections from the Mortgagors,
and further as provided in Section 3.05(a) or 3.05A. No costs incurred by the
Master 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 of this Agreement, including the Trustee's calculation of monthly
distributions to Certificateholders, be added to the unpaid Stated Principal
Balances of the related Serviced Loans, notwithstanding that the terms of such
Loans so permit. The foregoing shall in no way limit the Master Servicer's
ability to charge and collect from the Mortgagor such costs together with
interest thereon.
(d) The Master Servicer shall, as to all Serviced Loans, establish
and maintain, as applicable, one or more accounts ("Reserve Accounts"), into
which all Reserve Funds, if any, shall be deposited and retained. Withdrawals of
amounts so deposited may be made (i) for the specific purposes for which the
particular Reserve Funds were delivered, in accordance with the Servicing
Standard and the terms of the related Mortgage Note, Mortgage and any other
agreement with the related Mortgagor governing such Reserve Funds, and (ii) to
pay the Master Servicer interest and investment income earned on amounts in the
Reserve Accounts as described below. To the extent permitted in the applicable
loan documents, funds in the Reserve Accounts may be invested in Permitted
Investments in accordance with the provisions of Section 3.06. Subject to the
related loan documents, all Reserve Accounts shall be Eligible Accounts.
Consistent with the Servicing Standard, the Master Servicer may waive or extend
the date set forth in any agreement governing Reserve Funds by which any
required repairs, capital improvements and/or environmental remediation at the
related Mortgaged Property must be completed; provided that any waiver, any
extension for more than 120 days and any subsequent extension may only be
granted with the consent of the Special Servicer (following receipt and review
by the Special Servicer of all relevant information requested by the Special
Servicer).
Section 3.04 Pool Custodial Account, Defeasance Deposit Account,
Distribution Account, Interest Reserve Account and Excess Liquidation Proceeds
Account.
(a) The Master Servicer shall establish and maintain one or more
separate accounts (collectively, the "Pool Custodial Account"), in which the
amounts described in clauses (i) through (viii) below (which shall not include
any amounts allocable to the Companion Loans) shall be deposited and held on
behalf of the Trustee in trust for the benefit of the Certificateholders. The
Pool Custodial Account shall be an Eligible Account. The Master Servicer shall
deposit or cause to be deposited in the Pool Custodial Account, within one
Business Day of receipt (in the case of payments by Mortgagors or other
collections on the Mortgage Loans) or as otherwise required hereunder, the
following payments and collections received or made by the Master Servicer or on
its behalf subsequent to the Cut-off Date (other than in respect of principal
and interest on the Mortgage Loans due and payable on or before the Cut-off
Date, which amounts shall be delivered promptly to the Depositor or its
designee, with negotiable instruments endorsed as necessary and appropriate
without recourse, and other than amounts required to be deposited in the
Defeasance Deposit Account), or payments (other than Principal Prepayments)
received by it on or prior to the Cut-off Date but allocable to a period
subsequent thereto:
(i) all payments on account of principal of the Mortgage Loans,
including Principal Prepayments, and regardless of whether those payments
are made by the related Mortgagor or any related guarantor, out of any
related Reserve Funds maintained for such purpose, out of collections on
any related Defeasance Collateral or from any other source;
(ii) all payments on account of interest on the Mortgage Loans,
including Default Interest, and regardless of whether those payments are
made by the related Mortgagor or any related guarantor, out of any related
Reserve Funds maintained for such purpose, out of collections on any
related Defeasance Collateral or from any other source;
(iii) all Prepayment Premiums, Yield Maintenance Charges and late
payment charges received in respect of any Mortgage Loan;
(iv) all Insurance Proceeds, Condemnation Proceeds and Liquidation
Proceeds received in respect of any Mortgage Loan or, except to the extent
such proceeds are to first be deposited in an REO Account, any REO
Property;
(v) any amounts required to be deposited by the Master Servicer
pursuant to Section 3.06 in connection with losses incurred with respect
to Permitted Investments of funds held in the Pool Custodial Account;
(vi) any amounts required to be deposited by the Master Servicer or
the Special Servicer pursuant to Section 3.07(b) in connection with losses
resulting from a deductible clause in a blanket hazard policy;
(vii) any amounts required to be transferred from an REO Account
pursuant to Section 3.16(c);
(viii) insofar as they do not constitute Escrow Payments, any
amounts paid by a Mortgagor specifically to cover items for which a
Servicing Advance has been made; and
(ix) all amounts remitted or advanced by the 2002-C1 Master Servicer
in respect of the 000 Xxxxx Xxxxxx Xxxxx Trust Loan pursuant to the
2002-C1 PSA;
provided that any amounts described in clauses (i) through (iv) and (vi) through
(viii) above that relate to the Split Mortgage Loans or any related REO Property
(other than Liquidation Proceeds derived from the sale of the Split Mortgage
Loans to or through the Companion Loan Noteholders pursuant to the Loan Pair
Co-Lender Agreement or Section 3.18(p) or as a Specially Serviced Mortgage Loan
pursuant to Section 3.18 or the repurchase of a Split Mortgage Loan by the
Mortgage Loan Seller) shall be deposited in the applicable Loan Pair Custodial
Account, and, in any such case, shall thereafter be transferred to the Pool
Custodial Account as provided in Section 3.05A; provided, further, that all
amounts received in respect of the 000 Xxxxx Xxxxxx Xxxxx Trust Loan shall be
deposited directly into the Pool Custodial Account.
The foregoing requirements for deposit in the Pool Custodial Account
shall be exclusive. Notwithstanding the foregoing, actual payments from
Mortgagors in the nature of Escrow Payments, Reserve Funds, assumption fees,
assumption application fees, funds representing a Mortgagor's payment of costs
and expenses associated with assumptions and defeasance, modification fees,
extension fees, charges for beneficiary statements or demands, amounts collected
for checks returned for insufficient funds and any similar fees to which the
Master Servicer or Special Servicer is entitled as additional servicing
compensation not expressly referred to in the prior paragraph need not be
deposited by the Master Servicer in the Pool Custodial Account. If the Master
Servicer shall deposit in the Pool Custodial Account any amount not required to
be deposited therein, it may at any time withdraw such amount from the Pool
Custodial Account, any provision herein to the contrary notwithstanding. The
Master Servicer shall promptly deliver to the Special Servicer, as additional
special servicing compensation in accordance with Section 3.11(d), all
assumption fees and assumption application fees (or the applicable portions
thereof), and other transaction fees received by the Master Servicer to which
the Special Servicer is entitled pursuant to such section upon receipt of a
written statement (on which the Master Servicer is entitled to rely) of a
Servicing Officer of the Special Servicer describing the item and amount (unless
pursuant to this Agreement it is otherwise clear that the Special Servicer is
entitled to such amounts, in which case a written statement is not required).
The Pool Custodial Account shall be maintained as a segregated account, separate
and apart from trust funds created for mortgage-backed securities of other
series and the other accounts of the Master Servicer.
Upon receipt of any of the amounts described in clauses (i) through
(iv) and (viii) above with respect to any Mortgage Loan (other than the Split
Mortgage Loans), the Special Servicer shall promptly, but in no event later than
two Business Days after receipt, remit such amounts to the Master Servicer for
deposit into the Pool Custodial Account in accordance with the second preceding
paragraph, unless the Special Servicer determines, consistent with the Servicing
Standard, that a particular item should not be deposited because of a
restrictive endorsement or other appropriate reason. With respect to any such
amounts paid by check to the order of the Special Servicer, the Special Servicer
shall endorse such check to the order of the Master Servicer, unless the Special
Servicer determines, consistent with the Servicing Standard, that a particular
item cannot be so endorsed and delivered because of a restrictive endorsement or
other appropriate reason. Any such amounts received by the Special Servicer with
respect to an REO Property (other than an REO Property that relates to a Loan
Pair) shall be deposited by the Special Servicer into the Pool REO Account and
thereafter remitted to the Master Servicer for deposit into the Pool Custodial
Account as and to the extent provided in Section 3.16(c).
If and when any Mortgagor under a Defeasance Loan elects to defease
all or any part of its Loan and, pursuant to the provisions of the related loan
documents, delivers cash to the Master Servicer to purchase the required
Defeasance Collateral, the Master Servicer shall establish and maintain one or
more separate segregated accounts (collectively, the "Defeasance Deposit
Account"), in which the Master Servicer shall deposit such cash within one
Business Day of receipt by the Master Servicer. The Master Servicer shall retain
such cash in the Defeasance Deposit Account pending its prompt application to
purchase Defeasance Collateral. The Master Servicer shall hold such cash and
maintain the Defeasance Deposit Account on behalf of the Borrower, as beneficial
owner of the Defeasance Collateral, and the Trustee and, in the case of the Loan
Pairs, the Companion Loan Noteholders, to secure payment on the related
Defeasance Loan. The Defeasance Deposit Account shall be an Eligible Account. To
the extent permitted by law or the applicable Defeasance Loan, prior to the
purchase of Defeasance Collateral, funds in the Defeasance Deposit Account may
be invested only in Permitted Investments in accordance with the provisions of
Section 3.06. The Master Servicer shall pay or cause to be paid to the related
Mortgagor(s) interest, if any, earned on the investment of funds in the
Defeasance Deposit Account, if required by law or the terms of the related
Loan(s).
(b) The Trustee shall establish and maintain one or more trust
accounts (collectively, the "Distribution Account") to be held in trust for the
benefit of the Certificateholders. Each account that constitutes the
Distribution Account shall be an Eligible Account. The Distribution Account
shall be deemed to consist of four separate sub-accounts, which shall be
established and maintained on a book-entry basis: the Lower-Tier Distribution
Account, the Upper-Tier Distribution Account, the Interest Reserve Account and
the Oakmonte Junior Portion Sub-Account. The Master Servicer shall deliver to
the Trustee each month on or before the Master Servicer Remittance Date therein,
for deposit in the Lower-Tier Distribution Account, an aggregate amount of
immediately available funds equal to the Master Servicer Remittance Amount for
such Master Servicer Remittance Date, together with, in the case of the final
Distribution Date, any additional amounts contemplated by the second paragraph
of Section 9.01. The Master Servicer shall deliver to the Trustee each month on
or before the Master Servicer Remittance Date therein, for deposit in the
Oakmonte Junior Portion Sub-Account, an aggregate amount of immediately
available funds equal to the Oakmonte Junior Available Distribution Amount for
such Master Servicer Remittance Date, together with, in the case of the final
Distribution Date, any additional amounts contemplated by the second paragraph
of Section 9.01.
Notwithstanding anything herein to the contrary, the Lower-Tier
Distribution Account, the Upper-Tier Distribution Account, the Interest Reserve
Account and the Oakmonte Junior Portion Sub-Account shall be maintained as part
of a single Distribution Account. Amounts actually deposited into or distributed
from the Distribution Account will be deemed to be deposited or distributed from
the Lower-Tier Distribution Account, the Upper-Tier Distribution Account, the
Interest Reserve Account and the Oakmonte Junior Portion Sub-Account, as
applicable.
In addition, the Master Servicer shall, as and when required
hereunder, deliver to the Trustee (without duplication) for deposit in the
Lower-Tier Distribution Account:
(i) any P&I Advances required to be made by the Master Servicer in
accordance with Section 4.03(a); and
(ii) any amounts required to be deposited by the Master Servicer
pursuant to Section 3.19(a) in connection with Prepayment Interest
Shortfalls.
The Trustee shall, upon receipt, deposit in 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.
In the event that the Master Servicer fails, on any Master Servicer
Remittance Date, to remit to the Trustee any amount(s) required to be so
remitted to the Trustee hereunder by such date, the Master Servicer shall pay
the Trustee, for the account of the Trustee, interest, calculated at the Prime
Rate, on such amount(s) not timely remitted, from and including that Master
Servicer Remittance Date, to but not including the related Distribution Date.
On the Master Servicer Remittance Date in March of each year
(commencing in March 2004), the Trustee shall transfer from the Interest Reserve
Account to the Lower-Tier Distribution Account all Interest Reserve Amounts then
on deposit in the Interest Reserve Account with respect to the Interest Reserve
Mortgage Loans and any Interest Reserve REO Mortgage Loans.
As and when required pursuant to Section 3.05(d), the Trustee shall
transfer monies from the Excess Liquidation Proceeds Account to the Distribution
Account.
(c) The Trustee shall establish and maintain one or more accounts
(collectively, the "Interest Reserve Account"), which may be a sub-account of
the Distribution Account, to be held in trust for the benefit of the
Certificateholders. Each account that constitutes the Interest Reserve Account
shall be an Eligible Account. On each Distribution Date in February and, during
a year that is not a leap year, in January, prior to any distributions being
made in respect of the Certificates on such Distribution Date, the Trustee shall
withdraw from the Lower-Tier Distribution Account and deposit in the Interest
Reserve Account with respect to each Interest Reserve Mortgage Loan and Interest
Reserve REO Mortgage Loan, an amount equal to the Interest Reserve Amount, if
any, in respect of such Mortgage Loan or REO Mortgage Loan, as the case may be,
for such Distribution Date.
Notwithstanding that the Interest Reserve Account may be a
sub-account of the Distribution Account for reasons of administrative
convenience, the Interest Reserve Account and the Distribution Account shall,
for all purposes of this Agreement (including the obligations and
responsibilities of the Trustee hereunder), be considered to be and shall be
required to be treated as, separate and distinct accounts. The Trustee shall
indemnify and hold harmless the Trust Fund against any losses arising out of the
failure by the Trustee to perform its duties and obligations hereunder as if
such accounts were separate. The provisions of this paragraph shall survive any
resignation or removal of the Trustee and appointment of a successor trustee.
(d) If any Excess Liquidation Proceeds are received on the Mortgage
Pool, the Trustee shall establish and maintain one or more accounts
(collectively, the "Excess Liquidation Proceeds Account") to be held in trust
for the benefit of the Certificateholders. Each account that constitutes the
Excess Liquidation Proceeds Account shall be an Eligible Account. On each Master
Servicer Remittance Date, the Master Servicer shall withdraw from the Pool
Custodial Account and remit to the Trustee for deposit in the Excess Liquidation
Proceeds Account all Excess Liquidation Proceeds received during the Collection
Period ending on the Determination Date immediately prior to such Master
Servicer Remittance Date.
(e) Funds in the Pool Custodial Account may be invested only in
Permitted Investments in accordance with the provisions of Section 3.06. Funds
in the Distribution Account (and all subaccounts thereof) and the Excess
Liquidation Proceeds Account shall remain uninvested. The Master Servicer shall
give notice to the Trustee, the Special Servicer and the Rating Agencies of the
location of the Pool Custodial Account as of the Closing Date and of the new
location of the Pool Custodial Account within two Business Days of any change
thereof. As of the Closing Date, the Distribution Account (and all subaccounts
thereof) and the Excess Liquidation Proceeds Account shall be located at the
Trustee's offices in Chicago, Illinois. The Trustee shall give notice to the
Master Servicer, the Special Servicer and the Rating Agencies of any change in
the location of the Distribution Account (and all subaccounts thereof), the
Interest Reserve Account or the Excess Liquidation Proceeds Account prior to any
change thereof.
Section 3.04A. Loan Pair Custodial Account.
(a) The Master Servicer shall establish and maintain, with respect
to each Loan Pair (other than 000 Xxxxx Xxxxxx Xxxxx Loan Pair), one or more
separate accounts, which may be sub-accounts of a single account (with respect
to each Loan Pair, the "Loan Pair Custodial Account") in which the amounts
described in clauses (i) through (ix) below shall be deposited and held in trust
for the benefit of the related Loan Pair Noteholders, as their interests may
appear; provided that a Loan Pair Custodial Account may be a sub-account of
another Custodial Account. Each of the Loan Pair Custodial Accounts shall be an
Eligible Account. The Master Servicer shall deposit or cause to be deposited in
the applicable Loan Pair Custodial Account, within one Business Day of receipt
(in the case of payments or other collections on the such Loan Pair) or as
otherwise required hereunder, the following payments and collections received or
made by the Master Servicer or on its behalf with respect to the related Loan
Pair subsequent to the Cut-off Date (other than in respect of principal and
interest on such Loan Pair due and payable on or before the Cut-off Date, which
payments shall be held pursuant to the terms of the related Loan Pair Co-Lender
Agreement (if applicable), and other than amounts required to be deposited in
the Defeasance Deposit Account):
(i) all payments on account of principal of the applicable Loan
Pair, including Principal Prepayments, and regardless of whether those
payments are made by the related Mortgagor or any related guarantor, out
of any related Reserve Funds maintained for such purpose, out of
collections on any related Defeasance Collateral or from any other source;
(ii) all payments on account of interest on the applicable Loan
Pair, including Default Interest, and regardless of whether those payments
are made by the related Mortgagor or any related guarantor, out of any
related Reserve Funds maintained for such purpose, out of collections on
any related Defeasance Collateral or from any other source;
(iii) all Prepayment Premiums, Yield Maintenance Charges and/or late
payment charges received in respect of the applicable Loan Pair;
(iv) all Insurance Proceeds, Condemnation Proceeds and Liquidation
Proceeds received in respect of the applicable Loan Pair (other than
Liquidation Proceeds derived from the sale of any Split Mortgage Loans to
or through the related Companion Loan Noteholder, pursuant to the Loan
Pair Co-Lender Agreement or Section 3.18(p) or as a Specially Serviced
Mortgage Loan pursuant to Section 3.18) or, except to the extent such
proceeds are to first be deposited in an REO Account, any REO Property, or
the repurchase of a Split Mortgage Loan by the Mortgage Loan Seller, which
shall be deposited directly into the Pool Custodial Account;
(v) any amounts required to be deposited by the Master Servicer
pursuant to Section 3.06 in connection with losses incurred with respect
to Permitted Investments of funds held in the applicable Loan Pair
Custodial Account;
(vi) any amounts required to be deposited by the Master Servicer or
the Special Servicer pursuant to Section 3.07(b) in connection with losses
with respect to the applicable Loan Pair resulting from a deductible
clause in a blanket hazard policy;
(vii) any amounts required to be transferred from the related Loan
Pair REO Account pursuant to Section 3.16(c);
(viii) insofar as they do not constitute Escrow Payments, any
amounts paid by the related Mortgagor with respect to the applicable Loan
Pair specifically to cover items for which a Servicing Advance has been
made; and
(ix) any P&I Advances required to be made by the Master Servicer
with respect to a Split Mortgage Loan in the related Loan Pair or the
Windsor Capital Portfolio Pari Passu Companion Loan in accordance with
Section 4.03A.
The foregoing requirements for deposit in the applicable Loan Pair
Custodial Account shall be exclusive. Notwithstanding the foregoing, actual
payments from the related Mortgagor in respect of all Loan Pairs in the nature
of Escrow Payments, Reserve Funds, assumption fees, assumption application fees,
funds representing such Mortgagor's payment of costs and expenses associated
with assumptions and defeasance, modification fees, extension fees, charges for
beneficiary statements or demands, amounts collected for checks returned for
insufficient funds and any similar fees to which the Master Servicer or Special
Servicer is entitled as additional servicing compensation, not expressly
referred to in the prior paragraph need not be deposited by the Master Servicer
in the applicable Loan Pair Custodial Account. If the Master Servicer shall
deposit into a Loan Pair Custodial Account any amount not required to be
deposited therein, it may at any time withdraw such amount from such Loan Pair
Custodial Account, any provision herein to the contrary notwithstanding. The
Master Servicer shall promptly deliver to the Special Servicer, as additional
special servicing compensation in accordance with Section 3.11(d), all
assumption fees and assumption application fees (or the applicable portions
thereof) and other transaction fees received by the Master Servicer with respect
to all Loan Pairs, to which the Special Servicer is entitled pursuant to such
section, upon receipt of a written statement of a Servicing Officer of the
Special Servicer describing the item and amount (unless pursuant to this
Agreement it is otherwise clear that the Special Servicer is entitled to such
amounts, in which case a written statement is not required). Each Loan Pair
Custodial Account shall be maintained as a segregated account, separate and
apart from trust funds created for mortgage-backed securities of other series
and the other accounts of the Master Servicer.
Upon receipt of any of the amounts described in clauses (i) through
(iv) and (viii) above with respect to a Loan Pair, the Special Servicer shall
promptly, but in no event later than two Business Days after receipt, remit such
amounts to the Master Servicer for deposit into the related Loan Pair Custodial
Account in accordance with the second preceding paragraph, unless the Special
Servicer determines, consistent with the Servicing Standard, that a particular
item should not be deposited because of a restrictive endorsement or other
appropriate reason. With respect to any such amounts paid by check to the order
of the Special Servicer, the Special Servicer shall endorse such check to the
order of the Master Servicer, unless the Special Servicer determines, consistent
with the Servicing Standard, that a particular item cannot be so endorsed and
delivered because of a restrictive endorsement or other appropriate reason. Any
such amounts received by the Special Servicer with respect to an REO Property
that relates to any Loan Pair shall initially be deposited by the Special
Servicer into the related REO Account and thereafter remitted to the Master
Servicer for deposit into the related Loan Pair Custodial Account, all in
accordance with Section 3.16(c).
(b) If and when the related Mortgagor elects to defease a Loan Pair
(other than 000 Xxxxx Xxxxxx Xxxxx Loan Pair), the provisions of the last
paragraph of Section 3.04(a) relating to the Defeasance Deposit Account shall
apply.
(c) The Master Servicer shall give notice to the Trustee, the
related Companion Loan Noteholders and the Special Servicer of the location of
the related Loan Pair Custodial Account when first established and of the new
location of such Custodial Account prior to any change thereof.
Section 3.05 Permitted Withdrawals From the Pool Custodial Account,
the Distribution Account, the Interest Reserve Account and the Excess
Liquidation Proceeds Account.
(a) The Master Servicer may, from time to time, make withdrawals
from the Pool Custodial Account for any of the following purposes (the order set
forth below not constituting an order of priority for such withdrawals):
(i) to remit to the Trustee for deposit in the Distribution Account
the amounts required to be so deposited pursuant to the first paragraph of
Section 3.04(b), and any amounts that may be applied to make P&I Advances
pursuant to Section 4.03(a);
(ii) to reimburse the Fiscal Agent, the Trustee and itself, in that
order, for xxxxxxxxxxxx X&X Advances made thereby with respect to the
Mortgage Pool (exclusive of the Split Mortgage Loans (other than 000 Xxxxx
Xxxxxx Xxxxx Trust Loan) and any related REO Mortgage Loans), the Fiscal
Agent's, the Trustee's and Master Servicer's, as the case may be,
respective rights to reimbursement pursuant to this clause (ii) with
respect to any such P&I Advance being limited to amounts on deposit in the
Pool Custodial Account that represent Late Collections of interest and
principal (net of the related Master Servicing Fees and any related
Workout Fees or Liquidation Fees) received in respect of the particular
Mortgage Loan or REO Mortgage Loan as to which such P&I Advance was made;
(iii) to pay to itself earned and unpaid Master Servicing Fees with
respect to the Mortgage Pool (exclusive of the Split Mortgage Loans (other
than 000 Xxxxx Xxxxxx Xxxxx Trust Loan) and any related REO Mortgage
Loans), the Master Servicer's right to payment pursuant to this clause
(iii) with respect to any such Master Servicing Fees being limited to
amounts on deposit in the Pool Custodial Account that are allocable as a
recovery of interest on or in respect of the Mortgage Loan or REO Mortgage
Loan as to which such Master Servicing Fees were earned;
(iv) to pay (A) to the Special Servicer, out of general collections
on the Mortgage Pool on deposit in the Pool Custodial Account, earned and
unpaid Special Servicing Fees in respect of each Mortgage Loan and REO
Mortgage Loan (including any Split Mortgage Loan (other than 000 Xxxxx
Xxxxxx Xxxxx Trust Loan) and/or any related REO Mortgage Loans to the
extent not paid from the related Loan Pair Custodial Account pursuant to
Section 3.05A) and (B) to itself, out of general collections on the
Mortgage Pool on deposit in the Pool Custodial Account, any Master
Servicing Fee earned in respect of any Mortgage Loan or REO Mortgage Loan
(including any Split Mortgage Loans (other than 000 Xxxxx Xxxxxx Xxxxx
Trust Loan) and/or any related REO Mortgage Loans to the extent not paid
from the related Loan Pair Custodial Account pursuant to Section 3.05A)
that remains unpaid in accordance with clause (iii) above following a
Final Recovery Determination made with respect to such Mortgage Loan or
the related REO Property and the deposit into the Pool Custodial Account
of all amounts received in connection with such Final Recovery
Determination;
(v) to pay the Special Servicer (or, if applicable, a predecessor
Special Servicer) any earned and unpaid Workout Fees and Liquidation Fees
in respect of each Specially Serviced Mortgage Loan, Corrected Loan and/or
REO Mortgage Loan (including any Split Mortgage Loans (other than 000
Xxxxx Xxxxxx Xxxxx Trust Loan) and/or any related REO Mortgage Loans to
the extent not paid from the related Loan Pair Custodial Account pursuant
to Section 3.05A), as applicable, in the amounts and from the sources
specified in Section 3.11(c);
(vi) to reimburse the Fiscal Agent, the Trustee and itself, in that
order, for any unreimbursed Servicing Advances made thereby with respect
to any Mortgage Loan or REO Property (other than the Split Mortgage Loans
and/or any related REO Properties), the Fiscal Agent's, the Trustee's and
the Master Servicer's respective rights to reimbursement pursuant to this
clause (vi) with respect to any Servicing Advance being limited to amounts
on deposit in the Pool Custodial Account that represent payments made by
the related Mortgagor to cover the item for which such Servicing Advance
was made, and to amounts on deposit in the Pool Custodial Account that
represent Liquidation Proceeds (net of Liquidation Fees or Workout Fees
payable therefrom), Condemnation Proceeds, Insurance Proceeds and, if
applicable, REO Revenues received in respect of the particular Mortgage
Loan or REO Property as to which such Servicing Advance was made;
(vii) to reimburse the Fiscal Agent, the Trustee and itself, in that
order, out of general collections on the Mortgage Pool on deposit in the
Pool Custodial Account, for any unreimbursed Advances (other than
xxxxxxxxxxxx X&X Advances with respect to the Windsor Capital Portfolio
Pari Passu Companion Loan or any successor REO Loan), that have been or
are determined to be Nonrecoverable Advances and, in respect of the 000
Xxxxx Xxxxxx Xxxxx A/B Loan, to reimburse the 2002-C1 Fiscal Agent, the
2002-C1 Trustee and the 2002-C1 Master Servicer, in that order, out of
general collections on the Mortgage Pool on deposit in the Pool Custodial
Account, for any unreimbursed advances made by any such party pursuant to
the 2002-C1 PSA in respect of such Loan Pair (other than principal and
interest advances made on the 000 Xxxxx Xxxxxx Xxxxx Companion Loans) that
have been or are determined to be nonrecoverable advances pursuant to the
terms of the 2002-C1 PSA (up to the 000 Xxxxx Xxxxxx Xxxxx Trust Loan's
proportionate share of such advance, or if such amount, together with
amounts available in the trust fund created under the 2002-C1 PSA is
insufficient to reimburse the party that made such advance, then up to the
full amount of such advance);
(viii) to pay the Fiscal Agent, the Trustee and itself, in that
order, any interest accrued and payable in accordance with Section
3.11(g), 4.03(d) or 4.03A(d), as applicable, on any Advance made thereby
with respect to the Mortgage Pool (exclusive of the Split Mortgage Loans
(other than 000 Xxxxx Xxxxxx Xxxxx Trust Loan) and any related REO
Mortgage Loans), the Fiscal Agent's, the Trustee's and the Master
Servicer's respective rights to payment pursuant to this clause (viii)
with respect to interest on any such Advance being limited to amounts on
deposit in the Pool Custodial Account that represent Default Charges
collected on or in respect of the related Mortgage Loan during the
Collection Period in which such Advance is reimbursed, as and to the
extent contemplated by Sections 3.26(a) and (b);
(ix) to pay, out of general collections on the Mortgage Pool on
deposit in the Pool Custodial Account, the Fiscal Agent, the Trustee and
itself, in that order, any interest accrued and payable in accordance with
Section 3.11(g), 4.03(d) or 4.03A(d), as applicable, (i) on any Advance
made thereby with respect to the Mortgage Pool or (ii) any advance made by
the 2002-C1 Master Servicer, the 2002-C1 Special Servicer, the 2002-C1
Trustee or the 2002-C1 Fiscal Agent with respect to the 000 Xxxxx Xxxxxx
Xxxxx Loan Pair other than any principal and interest advance made on the
000 Xxxxx Xxxxxx Xxxxx Companion Loans, but only to the extent that such
Advance has been reimbursed and the interest thereon is not otherwise
payable as contemplated by the immediately preceding clause (viii) or
Section 3.05A, as applicable;
(x) to pay, out of amounts on deposit in the Pool Custodial Account
that represent Default Charges collected on or in respect of the related
Mortgage Loan and not otherwise applied as contemplated by clause (viii)
above, any unpaid expense (other than interest accrued on Advances, which
is payable pursuant to clause (viii) above, and other than Special
Servicing Fees, Liquidation Fees and Workout Fees) incurred with respect
to the related Mortgage Loan or REO Mortgage Loan that, if paid from a
source other than Default Charges on such Mortgage Loan, would constitute
an Additional Trust Fund Expense, as and to the extent contemplated by
Sections 3.26(a) and (b);
(xi) to pay, out of general collections on the Mortgage Pool on
deposit in the Pool Custodial Account, for (A) costs and expenses incurred
by the Trust Fund pursuant to Section 3.09(c) (other than the costs of
environmental testing, which are to be covered by, and reimbursable as, a
Servicing Advance), (B) the cost of an independent appraiser or other
expert in real estate matters retained pursuant to Sections 3.11(h),
3.18(g), or 4.03(c), and (C) the fees of any Independent Contractor
retained with respect to any related REO Property pursuant to Section
3.17(d) (to the extent that it has not paid itself such fees prior to
remitting collections on such REO Property to the Special Servicer);
provided that, in the case of a Loan Pair Mortgaged Property, such payment
pursuant to this clause (xi) is to be made only to the extent that it
would not ultimately be payable out of collections on or in respect of the
related Loan Pair;
(xii) to pay itself, as additional servicing compensation in
accordance with Section 3.11(b), (A) interest and investment income earned
in respect of amounts held in the Pool Custodial Account as provided in
Section 3.06(b), but only to the extent of the Net Investment Earnings
with respect to the Pool Custodial Account for any Collection Period, (B)
Prepayment Interest Excesses collected on the Mortgage Pool (exclusive of
the Split Mortgage Loans (other than 000 Xxxxx Xxxxxx Xxxxx Trust Loan))
and (C) Net Default Charges (after application pursuant to Sections
3.26(a) and (b)) actually collected that accrued in respect of Mortgage
Loans (other than the Split Mortgage Loans(other than 000 Xxxxx Xxxxxx
Xxxxx Trust Loan)) that are not Specially Serviced Mortgage Loans, and to
pay the Special Servicer, as additional special servicing compensation in
accordance with Section 3.11(d), Net Default Charges (after application
pursuant to Sections 3.26(a) and (b)) actually collected that accrued in
respect of Specially Serviced Mortgage Loans and REO Mortgage Loans (other
than the Split Mortgage Loans (other than 000 Xxxxx Xxxxxx Xxxxx Trust
Loan) and/or any related REO Mortgage Loans);
(xiii) to pay itself, the Special Servicer, the Depositor, or any of
their respective members, managers, directors, officers, employees and
agents, as the case may be, out of general collections on the Mortgage
Pool on deposit in the Pool Custodial Account, any amounts payable to any
such Person pursuant to Section 6.03; provided that such payment does not
relate solely to the Companion Loans;
(xiv) to pay, out of general collections on the Mortgage Pool on
deposit in the Pool Custodial Account, for (A) the cost of the Opinion of
Counsel contemplated by Section 11.02(a), (B) the cost of an Opinion of
Counsel contemplated by Section 11.01(a) or 11.01(c) in connection with
any amendment to this Agreement requested by the Master Servicer or the
Special Servicer that protects or is in furtherance of the rights and
interests of Certificateholders, and (C) the cost of recording this
Agreement in accordance with Section 11.02(a);
(xv) to pay itself, the Special Servicer, the Depositor, any
Controlling Class Certificateholder or any other Person, as the case may
be, with respect to each Mortgage Loan, if any, previously purchased by
such Person pursuant to this Agreement, all amounts received thereon
subsequent to the date of purchase that have been deposited in the Pool
Custodial Account;
(xvi) to pay, in accordance with Section 3.11(i), out of general
collections on the Mortgage Pool on deposit in the Pool Custodial Account,
any servicing expenses, that would, if advanced, constitute Nonrecoverable
Servicing Advances (other than servicing expenses that relate solely to
the Companion Loans or any related REO Loans) to the extent no funds are
available therefor in the related Loan Pair Custodial Account;
(xvii) on each Master Servicer Remittance Date, to transfer Excess
Liquidation Proceeds in respect of the Mortgage Pool to the Trustee, for
deposit in the Excess Liquidation Proceeds Account, in accordance with
Section 3.04(d); and
(xviii) to clear and terminate the Pool Custodial Account at the
termination of this Agreement pursuant to Section 9.01.
The Master Servicer shall keep and maintain separate accounting
records, on a loan-by-loan basis when appropriate, in connection with any
withdrawal from the Pool Custodial Account pursuant to clauses (ii) through
(xvii) above.
The Master Servicer shall pay to the Special Servicer (or to third
party contractors at the direction of the Special Servicer), the Trustee or the
Fiscal Agent from the Pool Custodial Account, amounts permitted to be paid to
the Special Servicer (or to any such third party contractor), the Trustee or the
Fiscal Agent therefrom promptly upon receipt of a written statement of a
Servicing Officer of the Special Servicer or of a Responsible Officer of the
Trustee or the Fiscal Agent describing the item and amount to which the Special
Servicer (or such third party contractor), the Trustee or the Fiscal Agent, as
applicable, is entitled (unless such payment to the Special Servicer, the
Trustee (for example, the Trustee Fee) or the Fiscal Agent, as the case may be,
is clearly required pursuant to this Agreement, in which case a written
statement is not required). The Master Servicer may rely conclusively on any
such written statement and shall have no duty to re-calculate the amounts stated
therein. With respect to any reimbursement to be made hereunder to the 2002-C1
Master Servicer, the 2002-C1 Special Servicer, the 2002-C1 Trustee or the
2002-C1 Fiscal Agent in respect of any advance made by such parties subsequently
determined to be nonrecoverable pursuant to the terms of the 0000-X0 XXX, the
Master Servicer may conclusively rely on a written statement from such party
delivered to the Master Servicer that such advance made is nonrecoverable under
the terms of the 2002-C1 PSA.
The Special Servicer shall keep and maintain separate accounting for
each Specially Serviced Mortgage Loan and REO Property, on a loan-by-loan basis,
for the purpose of justifying any request for withdrawal from the Pool Custodial
Account. With respect to each Mortgage Loan for which it makes an Advance, each
of the Trustee and Fiscal Agent shall keep and maintain separate accounting, on
a loan-by-loan basis, for the purpose of justifying any request for withdrawal
from the Pool Custodial Account for reimbursements of Advances or interest
thereon.
(b) Promptly on each Distribution Date, the Trustee shall be deemed
to 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 Net
Prepayment Consideration for such Distribution Date allocated in payment of the
Uncertificated Lower-Tier Interests as specified in Sections 4.01(i) and
4.01(j), respectively. The Trustee may, from time to time, make withdrawals from
the Distribution Account for any of the following purposes (in no particular
order of priority):
(i) to make distributions to Certificateholders from the applicable
subaccount on each Distribution Date pursuant to Section 4.01(a), Section
4.01(l), Section 4.01(n) or Section 9.01, as applicable;
(ii) to pay (A) the Trustee, the Fiscal Agent or any of their
respective directors, officers, employees and agents, as the case may be,
out of general collections on the Mortgage Loans on deposit in the
Distribution Account, any amounts payable or reimbursable to any such
Person pursuant to Section 7.01(b) and/or Section 8.05, as applicable, and
(B) as and when contemplated by Section 8.08, the cost of the Trustee's
transferring Mortgage Files and other documents to a successor after being
terminated by Certificateholders pursuant to Section 8.07(c) without
cause;
(iii) to pay, out of general collections on the Mortgage Loans on
deposit in the Distribution Account, for the cost of the Opinions of
Counsel sought by the Trustee or the Tax Administrator (A) as provided in
clause (iv) of the definition of "Disqualified Organization," (B) as
contemplated by Sections 10.01(i) and 10.02(e), 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;
(iv) to pay, out of general collections on the Mortgage Loans on
deposit in the Lower-Tier Distribution Account or Upper-Tier Distribution
Account, any and all federal, state and local taxes imposed on either
REMIC Pool or on the assets or transactions of either such REMIC Pool,
together with all incidental costs and expenses, to the extent none of the
Trustee, the Tax Administrator, the Master Servicer or the Special
Servicer is liable therefor pursuant to Section 10.01(j) or Section
10.02(f);
(v) to pay the Tax Administrator, out of general collections on the
Mortgage Loans on deposit in the Distribution Account, any amounts
reimbursable to it pursuant to Section 10.01(f) or Section 10.02(b);
(vi) to pay the Master Servicer any amounts deposited by the Master
Servicer in the Distribution Account in error;
(vii) to transfer Interest Reserve Amounts in respect of the
Interest Reserve Mortgage Loans and any Interest Reserve REO Mortgage
Loans to the Interest Reserve Account as and when required by Section
3.04(c); and
(viii) to clear and terminate the Distribution Account at the
termination of this Agreement pursuant to Section 9.01.
On or prior to a Distribution Date, the Trustee shall be entitled to
withdraw amounts that are payable or reimbursable as set forth in clauses (ii)
through (vii) above from the Distribution Account prior to making distributions
to Certificateholders on such Distribution Date.
(c) On each Master Servicer Remittance Date in March (commencing in
March 2004), the Trustee shall withdraw from the Interest Reserve Account and
deposit in the Distribution Account all Interest Reserve Amounts that have been
deposited in the Interest Reserve Account in respect of the Interest Reserve
Loans and any Interest Reserve REO Mortgage Loans during February and/or January
of the same year in accordance with Section 3.04(c).
(d) On each Master Servicer Remittance Date, the Trustee shall
withdraw from the Excess Liquidation Proceeds Account and deposit in the
Distribution Account, for distribution on the following Distribution Date, an
amount equal to the lesser of (i) the entire amount, if any, then on deposit in
the Excess Liquidation Proceeds Account and (ii) the excess, if any, of the
aggregate amount distributable with respect to the Regular Interest Certificates
on such Distribution Date pursuant to Sections 4.01(a) and 4.01(b), over the
Available Distribution Amount for such Distribution Date (calculated without
regard to such transfer from the Excess Liquidation Proceeds Account to the
Distribution Account); provided that on the Master Servicer Remittance Date
immediately prior to the Final Distribution Date, the Trustee shall withdraw
from the Excess Liquidation Proceeds Account and deposit in the Distribution
Account, for distribution on such Distribution Date, any and all amounts then on
deposit in the Excess Liquidation Proceeds Account.
(e) Notwithstanding anything to the contrary contained herein, upon
a determination that a previously made Advance is a Nonrecoverable Advance,
instead of obtaining reimbursement out of general collections on the Mortgage
Pool on deposit in the Pool Custodial Account immediately as contemplated by
Section 3.05(a)(vii), the Master Servicer, the Trustee or the Fiscal Agent, as
applicable, may, in its sole discretion, elect to obtain reimbursement for such
Nonrecoverable Advance over time (not to exceed 6 months or such longer period
as may be requested by the advancing party and approved by the Controlling Class
Directing Holder) and the unreimbursed portion of such Advance will accrue
interest at the Prime Rate. At any time after such a determination to obtain
reimbursement over time, the Master Servicer, the Trustee or the Fiscal Agent,
as applicable, may, in its sole discretion, decide to obtain reimbursement
immediately. The fact that a decision to recover such Nonrecoverable Advances
over time, or not to do so, benefits some Classes of Certificateholders to the
detriment of other Classes shall not constitute a violation of the Servicing
Standard by the Master Servicer or be deemed a breach of any fiduciary duty of
the Trustee to Certificateholders by the Trustee or the Fiscal Agent, or a
breach of a contractual obligation by the Master Servicer, the Trustee or the
Fiscal Agent.
(f) In the event that servicing advances or P&I advances (other than
with respect to the 000 Xxxxx Xxxxxx Xxxxx Companion Loans) have been made with
respect to the 000 Xxxxx Xxxxxx Xxxxx Loan Pair under the 2002-C1 PSA by the
2002-C1 Master Servicer, 2002-C1 Trustee or the 2002-C1 Fiscal Agent, and in
accordance with the 2002-C1 PSA, a subsequent determination has been made that
such advance constitutes a nonrecoverable advance, the party that made such
advance shall be entitled to a reimbursement of such advance with interest
thereon as set forth in the 0000-X0 XXX, from general collections on all
Mortgage Loans in the Pool Custodial Account (up to, with respect to a servicing
advance, the 000 Xxxxx Xxxxxx Xxxxx Trust Loan's proportionate share of such
advance, or if such amount together with amounts available from collections in
the custodial account created under the 2002-C1 PSA is insufficient to reimburse
the party that made such advance, then up to the full amount of such advance and
interest thereon).
Section 3.05A. Permitted Withdrawals From the Loan Pair Custodial
Accounts.
The Master Servicer may, from time to time, make withdrawals from
the applicable Loan Pair Custodial Account, for any of the following purposes
(the order set forth below not constituting an order of priority for such
withdrawals):
(i) to make remittances each month on or before the Master Servicer
Remittance Date therein, in an aggregate amount of immediately available
funds equal to the applicable Loan Pair Remittance Amount, (a) in the case
of any Loan Pair other than the Oakmonte Apartment Homes Whole Loan, to
the related Companion Loan Noteholder and to the Trust (as holder of the
Split Mortgage Loans or any related REO Mortgage Loans), in accordance
with Section 3 or Section 4 of the related Loan Pair Co-Lender Agreement,
as applicable, such remittances to the Trust to be made into the Pool
Custodial Account and (b) in the case of the Oakmonte Apartment Homes
Whole Loan, (1) to the Pool Custodial Account, the related Loan Pair
Remittance Amount, net of the Oakmonte Junior Available Distribution
Amount and (2) to the Trustee for deposit in the Oakmonte Junior Portion
Sub-Account, the Oakmonte Junior Available Distribution Amount;
(ii) to reimburse, first, the Fiscal Agent, second, the Trustee, and
last, itself, in that order, for xxxxxxxxxxxx X&X Advances made by such
party (with its own funds) with respect to the related Split Mortgage Loan
or in the case of the Master Servicer, the Windsor Capital Portfolio Pari
Passu Companion Loan, any such party's rights to reimbursement pursuant to
this clause (ii) with respect to any such P&I Advance being limited to
amounts on deposit in the applicable Loan Pair Custodial Account that
represent late collections of interest and principal (net of the related
Master Servicing Fees and any related Workout Fees or Liquidation Fees)
received in respect of the particular Split Mortgage Loan or in the case
of the Master Servicer, the Windsor Capital Portfolio Pari Passu Companion
Loan (as allocable thereto pursuant to the related loan documents and the
related Loan Pair Co-Lender Agreement);
(iii) to pay to itself earned and unpaid Master Servicing Fees with
respect to the related Loan Pair (or any successor REO Loans), the Master
Servicer's respective rights to payment pursuant to this clause (iii) with
respect to either Loan (or any successor REO Loan) in the Loan Pair being
limited to amounts on deposit in the related Loan Pair Custodial Account
that were received on or in respect of such Loan (or successor REO Loan)
and are allocable as a recovery of interest thereon;
(iv) to reimburse, first, the Fiscal Agent, second, the Trustee, and
last itself, in that order, for any xxxxxxxxxxxx X&X Advances made by such
party (with its own funds) with respect to the related Split Mortgage Loan
or in the case of the Master Servicer, the Windsor Capital Portfolio Pari
Passu Companion Loan that such party has determined are Nonrecoverable
Advances, such party's rights to reimbursement pursuant to this clause
(iv) with respect to any such P&I Advance being limited to amounts on
deposit in the applicable Loan Pair Custodial Account that were received
in respect of the particular Split Mortgage Loan or in the case of the
Master Servicer, the Windsor Capital Portfolio Pari Passu Companion Loan,
as applicable (as allocable thereto pursuant to the related loan documents
and the related Loan Pair Co-Lender Agreement), in the Loan Pair as to
which such P&I Advance was made;
(v) to pay to the Special Servicer earned and unpaid Special
Servicing Fees in respect of the related Loan Pair while either Loan in
the Loan Pair constitutes a Specially Serviced Loan and after the Loan
Pair Mortgaged Properties become REO Properties;
(vi) to pay the Special Servicer (or, if applicable, a predecessor
Special Servicer) earned and unpaid Workout Fees and Liquidation Fees in
respect of the related Loan Pair, in the amounts and from the sources
specified in Section 3.11(c);
(vii) to reimburse first, the Fiscal Agent, second, the Trustee,
third, itself and, last, the Special Servicer, in that order, for any
unreimbursed Servicing Advances made thereby with respect to the related
Loan Pair or any related REO Properties, any such party's respective
rights to reimbursement pursuant to this clause (vii) with respect to any
Servicing Advance being limited to amounts on deposit in the applicable
Loan Pair Custodial Account that represent payments made by the related
Mortgagor to cover the item for which such Servicing Advance was made, and
to amounts on deposit in the related Loan Pair Custodial Account that
represent Liquidation Proceeds (net of Liquidation Fees or Workout Fees
payable therefrom), Condemnation Proceeds, Insurance Proceeds and, if
applicable, REO Revenues received in respect of the related Loan Pair or
related Loan Pair REO Properties as to which such Servicing Advance was
made;
(viii) to pay first, the Fiscal Agent, second, the Trustee, and,
last, itself, in that order, any interest accrued on any Advance made
thereby with respect to the related Loan Pair or with respect to the
related Loan Pair Mortgaged Properties, any such party's respective right
to payment pursuant to this clause (viii) with respect to interest on any
Advance being permitted to be satisfied (A) first, out of any amounts on
deposit in the applicable Loan Pair Custodial Account that represent
Default Charges collected on or in respect of the Companion Loans during
the same Collection Period in which such Advance is reimbursed, as and to
the extent contemplated by Section 3.26(c), (B) second, out of any amounts
on deposit in the applicable Loan Pair Custodial Account that represent
Default Charges collected on or in respect of the Split Mortgage Loans
during the same Collection Period in which such Advance is reimbursed, as
and to the extent contemplated by Sections 3.26(a) and (b) and (C) third,
to the extent that the Default Charges described in the immediately
preceding clauses (A) and (B) are insufficient, but only if such Advance
is being reimbursed at the same time or if such Advance has been
previously reimbursed, out of any amounts on deposit in the applicable
Loan Pair Custodial Account that represent any other collections on or in
respect of the related Loan Pair; provided that interest on P&I Advances
made with respect to the Windsor Capital Portfolio Pari Passu Companion
Loan may be paid solely pursuant to clauses (A) and (C) above, from
Default Charges or other collections received on or in respect of the
Windsor Capital Portfolio Pari Passu Companion Loan;
(ix) to pay for (A) costs and expenses incurred with respect to the
Loan Pair Mortgaged Properties pursuant to Section 3.09(c) (other than the
costs of environmental testing, which are to be covered by, and
reimbursable as, a Servicing Advance), (B) the costs and expenses of
obtaining appraisals of the Loan Pair Mortgaged Properties pursuant to
Section 3.11(h) or 4.03A(c), as applicable, and (C) the fees of any
Independent Contractor retained with respect to any related Loan Pair REO
Property pursuant to Section 3.17(d) (to the extent that it has not paid
itself such fees prior to remitting collections on such REO Property to
the Special Servicer);
(x) to pay itself, as additional servicing compensation in
accordance with Section 3.11(b), (A) interest and investment income earned
in respect of amounts held in the applicable Loan Pair Custodial Account
as provided in Section 3.06(b), but only to the extent of the Net
Investment Earnings with respect to the applicable Loan Pair Custodial
Account for any Collection Period and (B) Net Default Charges (after
application pursuant to Section 3.26(c)) actually collected that accrued
in respect of the Companion Loans during a period that they were not
Specially Serviced Loans and the Loan Pair Mortgaged Properties were not
REO Properties, and to pay the Special Servicer, as additional special
servicing compensation in accordance with Section 3.11(d), Net Default
Charges (after application pursuant to Section 3.26(c)) actually collected
that accrued in respect of the Companion Loans during a period that they
were Specially Serviced Loans or the Loan Pair Mortgaged Properties were
REO Properties;
(xi) to pay itself, the Special Servicer, or any of their respective
members, managers, directors, officers, employees and agents, as the case
may be, any amounts payable to any such Person pursuant to Section 6.03,
to the extent such amounts relate to the related Loan Pair;
(xii) to pay for the cost of recording the Loan Pair Co-Lender
Agreement and any required opinion of counsel related thereto and, to the
extent applicable pursuant to Section 11.02(a), the allocable portion of
the cost of the Opinion of Counsel contemplated by Section 11.02(a);
(xiii) to pay, in accordance with Section 3.11(i), out of
collections on the related Loan Pair on deposit in the related Loan Pair
Custodial Account, any servicing expenses with respect to the related
Loans, that would, if advanced, constitute Nonrecoverable Servicing
Advances (provided that servicing expenses that relate solely to the
Windsor Capital Portfolio Pari Passu Companion Loan or any related REO
Loans will be paid solely from funds allocable thereto);
(xiv) to transfer to the Pool Custodial Account all amounts
representing Default Charges actually collected that accrued in respect of
the Split Mortgage Loans or any successor REO Mortgage Loans in respect of
the Split Mortgage Loans, to the extent such Default Charges were not
applied to offset interest on Advances pursuant to clause (viii)(B) above
(to be applied in accordance with Sections 3.26(a) and (b)); and
(xv) to clear and terminate the applicable Loan Pair Custodial
Account at the termination of this Agreement pursuant to Section 9.01.
The Master Servicer shall keep and maintain separate accounting
records in connection with each Loan Pair Custodial Account, including but not
limited to, any withdrawal from each Loan Pair Custodial Account, pursuant to
clauses (ii) through (xvi) above.
The Master Servicer shall pay to each of the Special Servicer (or to
third party contractors at the direction of the Special Servicer), the Trustee
and the Fiscal Agent, as applicable, from the applicable Loan Pair Custodial
Account, amounts permitted to be paid thereto from such account promptly upon
receipt of a written statement of a Servicing Officer of the Special Servicer or
a Responsible Officer of the Trustee or the Fiscal Agent, as the case may be,
describing the item and amount to which the Special Servicer (or such third
party contractor), the Trustee or the Fiscal Agent, as the case may be, is
entitled (unless such payment to the Special Servicer, the Trustee or the Fiscal
Agent, as the case may be, is clearly required pursuant to this Agreement, in
which case a written statement is not required). The Master Servicer may rely
conclusively on any such written statement and shall have no duty to
re-calculate the amounts stated therein. The parties seeking payment pursuant to
this section shall each keep and maintain separate accounting for the purpose of
justifying any request for withdrawal from each Loan Pair Custodial Account, on
a loan-by-loan basis.
In the event that the Master Servicer fails, on any Master Servicer
Remittance Date, to remit to the Companion Loan Noteholders (other than the
Class Y Certificateholders) any amount(s) required to be so remitted to such
Companion Loan Noteholders hereunder by such date, the Master Servicer shall pay
such Companion Loan Noteholders, for the account of such Companion Loan
Noteholders, interest, calculated at the Prime Rate, on such amount(s) not
timely remitted, from and including that Master Servicer Remittance Date, to but
not including the date of remittance.
Section 3.06 Investment of Funds in the Servicing Accounts, the
Reserve Accounts, the Defeasance Deposit Account, the Custodial Accounts and the
REO Accounts.
(a) The Master Servicer may direct in writing any depository
institution maintaining a Servicing Account, a Reserve Account, the Defeasance
Deposit Account or a Custodial Account (each, for purposes of this Section 3.06,
an "Investment Account"), and the Special Servicer may direct in writing any
depository institution maintaining an REO 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 in one or more Permitted
Investments bearing interest or sold at a discount, and maturing, unless payable
on demand, no later than the Business Day immediately preceding the next
succeeding date on which such funds are required to be withdrawn from such
account pursuant to this Agreement; provided that in the case of any Servicing
Account, any Reserve Account or the Defeasance Deposit Account, such investment
direction shall be subject to the related loan documents and applicable law.
Funds in the Distribution Account, the Interest Reserve Account and the Excess
Liquidation Proceeds Account will remain uninvested. 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) and, in the case of a Permitted Investment in any
Investment Account solely related to a Loan Pair, the related Companion Loan
Noteholders. The Master Servicer (with respect to Permitted Investments of
amounts in the Servicing Accounts, the Reserve Accounts, the Defeasance Deposit
Account and the Custodial Accounts) and the Special Servicer (with respect to
Permitted Investments of amounts in the REO Accounts), on behalf of the Trustee
and, in the case of any Investment Account solely related to a Loan Pair, the
related Companion Loan Noteholders, shall (and the Trustee hereby designates the
Master Servicer and the Special Servicer, as applicable, as the Person that
shall) (i) be the "entitlement holder" of any Permitted Investment that is a
"security entitlement" and (ii) maintain "control" of any Permitted Investment
that is a "certificated security," "uncertificated security" or "deposit
account." For purposes of this Section 3.06(a), (i) the terms "entitlement
holder," "security entitlement," "control" (except with respect to deposit
accounts), "certificated security" and "uncertificated security" shall have the
meanings given such terms in Revised Article 8 (1994 Revision) of the UCC, and
the terms "control" (with respect to deposit accounts) and "deposit account"
shall have the meanings given such terms in Revised Article 9 (1998 Revision) of
the UCC, and (ii) "control" of any Permitted Investment in any Investment
Account by the Master Servicer or the Special Servicer shall constitute
"control" by a Person designated by, and acting on behalf of, the Trustee and,
in the case of any Investment Account solely related to a Loan Pair, the related
Companion Loan Noteholders, for purposes of Revised Article 8 (1994 Revision) of
the UCC or Revised Article 9 (1998 Revision) of the UCC, as applicable. If
amounts on deposit in an Investment Account are at any time invested in a
Permitted Investment payable on demand, the Master Servicer (in the case of the
Custodial Accounts, the Servicing Accounts, the Reserve Accounts and the
Defeasance Deposit Account) or the Special Servicer (in the case of the REO
Accounts) shall:
(x) consistent with any notice required to be given thereunder,
demand that payment thereon be made on the last day such Permitted Investment
may otherwise mature hereunder in an amount equal to at least the lesser of (1)
all amounts then payable thereunder and (2) the amount required to be withdrawn
on such date; and
(y) demand payment of all amounts due thereunder promptly upon
determination by the Master Servicer or the Special Servicer, as the case may
be, that such Permitted Investment would not constitute a Permitted Investment
in respect of funds thereafter on deposit in the Investment Account.
(b) Whether or not the Master Servicer directs the investment of
funds in any of the Servicing Accounts, the Reserve Accounts, the Defeasance
Deposit Account or the Custodial Accounts, interest and investment income
realized on funds deposited therein, to the extent of the Net Investment
Earnings, if any, for each such Investment Account for each Collection Period
(and, in the case of Servicing Accounts, Reserve Accounts and the Defeasance
Deposit Account, to the extent not otherwise payable to Mortgagors under
applicable law or the related loan documents), shall be for the sole and
exclusive benefit of the Master Servicer and shall be subject to its withdrawal
in accordance with Section 3.03(a), 3.03(d), 3.04(a), 3.05(a) or 3.05A, as
applicable. Whether or not the Special Servicer directs the investment of funds
in either of the REO Accounts, interest and investment income realized on funds
deposited therein, to the extent of the Net Investment Earnings, if any, for
such Investment Account for each Collection Period, shall be for the sole and
exclusive benefit of the Special Servicer and shall be subject to its withdrawal
in accordance with Section 3.16(b). If any loss shall be incurred in respect of
any Permitted Investment on deposit in any Investment Account, the Master
Servicer (in the case of (i) the Servicing Accounts, the Reserve Accounts and
the Defeasance Deposit Account (except to the extent that any investment of
funds with respect thereto is at the direction of a Mortgagor in accordance with
the related loan documents or applicable law) and (ii) the Custodial Accounts)
and the Special Servicer (in the case of the REO Accounts) shall promptly
deposit therein from its own funds, without right of reimbursement, no later
than the end of the Collection Period during which such loss was incurred, the
amount of the Net Investment Loss, if any, for such Investment Account for such
Collection Period. Notwithstanding any of the foregoing provisions of this
Section 3.06, no party shall be required under this Agreement to deposit any
loss on a deposit 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 with which such deposit was maintained
so long as such depository institution or trust company satisfied the conditions
set forth in the definition of "Eligible Account" at the time such deposit was
made and also as of a date no earlier than 30 days prior to the insolvency.
(c) Except as expressly provided otherwise in this Agreement, if any
default occurs in the making of a payment due under any Permitted Investment, or
if a default occurs in any other performance required under any Permitted
Investment, the Trustee may, and subject to Section 8.02, upon the request of
Certificateholders entitled to a majority of the Voting Rights allocated to a
Class, shall take such action as may be appropriate to enforce such payment or
performance, including the institution and prosecution of appropriate
proceedings.
(d) Notwithstanding the investment of funds held in any Investment
Account, for purposes of the calculations hereunder, including the calculation
of the Available Distribution Amount, the Master Servicer Remittance Amount and
the Loan Pair Remittance Amount, the amounts so invested shall be deemed to
remain on deposit in such Investment Account.
Section 3.07 Maintenance of Insurance Policies; Errors and Omissions
and Fidelity Coverage; Environmental Insurance.
(a) The Master Servicer (in the case of Performing Serviced Loans)
or the Special Servicer (in the case of Specially Serviced Loans) shall,
consistent with the Servicing Standard, cause to be maintained for each
Mortgaged Property that is not an REO Property, all insurance coverage as is
required under the related Mortgage (except to the extent that the failure to
maintain such insurance coverage is an Acceptable Insurance Default); provided
that, if and to the extent that any such Mortgage permits the holder thereof any
discretion (by way of consent, approval or otherwise) as to the insurance
coverage that the related Mortgagor is required to maintain, the Master Servicer
or Special Servicer, as the case may be, shall exercise such discretion in a
manner consistent with the Servicing Standard; and provided, further, that, if
and to the extent that a Mortgage so permits, the Master Servicer or Special
Servicer, as the case may be, shall use reasonable efforts to require the
related Mortgagor to obtain the required insurance coverage from Qualified
Insurers that have a "claims paying ability" or "financial strength" rating, as
applicable, of at least "A" from S&P, and "A3" from Xxxxx'x (if then rated by
Xxxxx'x, and if not then rated by Xxxxx'x, then at least a rating of "A" by S&P)
(or, in the case of any such Rating Agency, such lower rating as will not result
in an Adverse Rating Event, as evidenced in writing by such Rating Agency); and
provided, further, that the Master Servicer or the Special Servicer, as the case
may be, shall obtain or cause to be maintained for any such Mortgaged Property
any such insurance that the related Mortgagor is required but fails to maintain,
but only to the extent that (i) the Trustee (as mortgagee of record on behalf of
the Certificateholders and, in the case of a Loan Pair Mortgaged Property, the
related Companion Loan Noteholders) has an insurable interest, and (ii) either
(A) such insurance is available at a commercially reasonable rate, or (B) solely
in the case of all-risk insurance or other insurance that covers losses from
acts of terrorism, the failure by the Mortgagor to maintain such insurance
coverage has not been determined by the Master Servicer (with respect to
Performing Serviced Loans) or the Special Servicer (with respect to Specially
Serviced Loans), as the case may be, to constitute an Acceptable Insurance
Default. Any Controlling Class Certificateholder may request that earthquake
insurance be secured for one or more Mortgaged Properties by the related
Mortgagor, to the extent such insurance may reasonably be obtained and provided
the related loan documents and applicable law give the mortgagee the right to
request such insurance coverage and such loan documents require the Mortgagor to
obtain earthquake insurance at the request of the mortgagee. The related
Companion Loan Noteholder (provided that an Appraisal Control Event has not
occurred) may request that earthquake insurance, to the extent such insurance
may reasonably be obtained, be secured for the related Loan Pair Mortgaged
Property, at the expense of such Companion Loan Noteholder.
Subject to Section 3.17(a), the Special Servicer, in accordance with
the Servicing Standard, shall also cause to be maintained for each REO Property
no less insurance coverage than was previously required of the Mortgagor under
the related Mortgage; provided that such insurance is available at commercially
reasonable rates (or, in the case of all-risk insurance or other insurance that
covers acts of terrorism, such insurance is available at a commercially
reasonable rate or the subject hazards are at the time commonly insured against
for properties similar to the REO Property located in or around the region in
which such REO Property is located); and provided, further, that all such
insurance shall be obtained from Qualified Insurers that, if they are providing
casualty insurance, shall have a "claims paying ability" or "financial strength"
rating, as applicable, of at least "A" from S&P and "A2" from Xxxxx'x (or, in
the case of either Rating Agency, such lower rating as will not result in an
Adverse Rating Event, as evidenced in writing by such Rating Agency). All such
insurance policies shall contain (if they insure against loss to property and do
not relate to an REO Property) a "standard" mortgagee clause, with loss payable
to the Master Servicer (in the case of insurance maintained in respect of
Serviced Loans, including Specially Serviced Loans), and shall be in the name of
the Special Servicer (in the case of insurance maintained in respect of REO
Properties), on behalf of the Trustee; and, in each case, such insurance shall
be issued by a Qualified Insurer.
Any amounts collected by the Master Servicer or the Special Servicer
under any such policies (other than amounts to be applied to the restoration or
repair of the related Mortgaged Property or REO Property or amounts to be
released to the related Mortgagor, in each case subject to the rights of any
tenants and ground lessors, as the case may be, and in each case in accordance
with the terms of the related Mortgage and the Servicing Standard) shall be
deposited in the applicable Custodial Account in accordance with Section 3.04(a)
or 3.04A(a), as applicable, in the case of amounts received in respect of a
Mortgage Loan, or in the applicable REO Account in accordance with Section
3.16(b), in the case of amounts received in respect of an REO Property. Any cost
incurred by the Master Servicer or the Special Servicer in maintaining any such
insurance (including any earthquake insurance maintained at the request of a
Controlling Class Certificateholder or a Companion Loan Noteholder) shall not,
for purposes hereof, including calculating monthly distributions to
Certificateholders, be added to the unpaid principal balance or Stated Principal
Balance of the related Mortgage Loan or REO Mortgage Loan, notwithstanding that
the terms of such loan so permit, but shall be recoverable by the Master
Servicer as a Servicing Advance.
The Master Servicer shall not make any determination (i) that a
Servicing Transfer Event has occurred with respect to any Mortgage Loan solely
by reason of the failure of the related Mortgagor to maintain or cause to be
maintained with respect to a Mortgaged Property insurance coverage against
damages or losses arising from acts of terrorism or (ii) to force place any
insurance against damages or losses arising from acts of terrorism that is
failed to be maintained by the related Mortgagor with respect to a Mortgaged
Property, unless the Master Servicer has given prior notice of such
determination to the Directing Holder, and, in connection therewith, has
provided the Directing Holder with its written recommendation and such
information (including data regarding any analysis performed in accordance with
subclauses (i) and/or (ii) of the definition of "Acceptable Insurance Default"
and information regarding the cost of forceplacing the subject insurance) on
which the Master Servicer has based its determination and with such other
information as such party shall reasonably require, but only to the extent such
information is in its possession or easily obtainable by it and relates to the
determination made by the Master Servicer under clauses (i) or (ii) above.
Notwithstanding the foregoing, with respect to a Performing Serviced Loan, a
Servicing Transfer Event shall occur with respect to such Mortgage Loan on the
60th day following the date that the Master Servicer force places such insurance
based upon either (i) the continued failure of the related Mortgagor to maintain
or cause to be maintained insurance against damages or losses arising from acts
of terrorism in accordance with the related Mortgage Loan documents or (ii) the
Master Servicer's not having been reimbursed for any Servicing Advances made in
connection with the forced placement of the subject insurance (unless both the
circumstances giving rise to such forced placement of such insurance have
otherwise been cured and the Master Servicer has been reimbursed for any
Servicing Advances made in connection with the forced placement of the subject
insurance). Notwithstanding anything to the contrary herein, the Master Servicer
shall not be responsible for any losses incurred with respect to the subject
Mortgaged Property as a result of the delay in causing a Servicing Transfer
Event for, or in forceplacing such terrorism insurance with respect to, a
Mortgage Loan in accordance with the second preceding sentence or in accordance
with Section 6.11, if applicable. Any cost incurred by the Master Servicer in
connection with maintaining any insurance referred to in this paragraph shall be
paid by the Master Servicer and recoverable as a Servicing Advance, subject to
Section 3.11(h) and Section 3.11(i).
(b) If either the Master Servicer or the Special Servicer shall
obtain and maintain, or cause to be obtained and maintained, a blanket policy
insuring against hazard losses on all of the Loans and/or REO Properties that it
is required to service and administer, then, to the extent such policy (i) is
obtained from a Qualified Insurer having (or whose obligations are guaranteed or
backed, in writing, by an entity having) a "claims paying ability" or "financial
strength" rating, as applicable, of at least "A" from S&P, "A3" from Xxxxx'x (if
then rated by Xxxxx'x, and if not then rated by Xxxxx'x, then a rating of at
least "A" by S&P) (or, in the case of either Rating Agency, such lower rating as
will not result in an Adverse Rating Event, as evidenced in writing by such
Rating Agency), and (ii) provides protection equivalent to the individual
policies otherwise required, the Master Servicer or the Special Servicer, as the
case may be, shall conclusively be deemed to have satisfied its obligation to
cause hazard insurance to be maintained on the related Mortgaged Properties
and/or REO Properties. Such blanket policy may contain a deductible clause (not
in excess of a customary amount), in which case the Master Servicer or the
Special Servicer, as appropriate, shall, if there shall not have been maintained
on the related Mortgaged Property or REO Property an individual hazard insurance
policy complying with the requirements of Section 3.07(a), and there shall have
been one or more losses that would have been covered by such individual policy,
promptly deposit into the applicable Custodial Account from its own funds the
amount not otherwise payable under the blanket policy because of the deductible
clause therein, to the extent that any such deductible exceeds the deductible
limitation that pertained to the related Loan (or in the absence of any such
deductible limitation, the deductible limitation for an individual policy which
is consistent with the Servicing Standard). The Master Servicer or the Special
Servicer, as appropriate, shall prepare and present, on behalf of itself, the
Trustee and the Certificateholders and, in the case of a Loan Pair Mortgaged
Property, the related Companion Loan Noteholders, claims under any such blanket
policy in a timely fashion in accordance with the terms of such policy.
(c) Subject to the third paragraph of this Section 3.07(c), each of
the Master Servicer and the Special Servicer shall at all times during the term
of this Agreement (or, in the case of the Special Servicer, at all times during
the term of this Agreement in which Specially Serviced Loans and/or REO
Properties are part of the Trust Fund) keep in force with Qualified Insurers
having (or whose obligations are guaranteed or backed, in writing, by entities
having) a "claims paying ability" or "financial strength" rating, as applicable,
of at least "A" from S&P and "Baa3" from Xxxxx'x (or, if not then rated by
Xxxxx'x, then at least "A-IX" by A.M. Best's Key Rating Guide) (or, in the case
of either Rating Agency, such lower rating as will not result in an Adverse
Rating Event, as evidenced in writing by such Rating Agency), a fidelity bond,
which fidelity bond shall be in such form and amount as would permit it to be a
qualified Xxxxxx Mae or FHLMC (Xxxxxxx Mac) seller-servicer of multifamily
mortgage loans, or in such other form and amount as would not cause an Adverse
Rating Event (as evidenced in writing from each Rating Agency). Each of the
Master Servicer and the Special Servicer shall be deemed to have complied with
the foregoing provision if an Affiliate thereof has such fidelity bond coverage
and, by the terms of such fidelity bond, the coverage afforded thereunder
extends to the Master Servicer or the Special Servicer, as the case may be.
Subject to the third paragraph of this Section 3.07(c), each of the
Master Servicer and the Special Servicer shall at all times during the term of
this Agreement (or, in the case of the Special Servicer, at all times during the
term of this Agreement in which Specially Serviced Loans and/or REO Properties
are part of the Trust Fund) also keep in force with Qualified Insurers having
(or whose obligations are guaranteed or backed, in writing, by entities having)
a "claims paying ability" or "financial strength" rating, as applicable, of at
least "A" from S&P and "Baa3" from Xxxxx'x (or, if not rated by Xxxxx'x, then at
least "A-IX" by A.M. Best's Key Rating Guide) (or, in the case of either Rating
Agency, such lower rating as will not result in an Adverse Rating Event, as
evidenced in writing by such Rating Agency), a policy or policies of insurance
covering loss occasioned by the errors and omissions of its officers, employees
and agents in connection with its servicing obligations hereunder, which policy
or policies shall be in such form and amount as would permit it to be a
qualified Xxxxxx Mae or FHLMC (Xxxxxxx Mac) seller-servicer of multifamily
mortgage loans, or in such other form and amount as would not cause an Adverse
Rating Event (as evidenced in writing from each Rating Agency). Each of the
Master Servicer and the Special Servicer shall be deemed to have complied with
the foregoing provisions if an Affiliate thereof has such insurance and, by the
terms of such policy or policies, the coverage afforded thereunder extends to
the Master Servicer or the Special Servicer, as the case may be.
Notwithstanding the foregoing, for so long as the long-term debt
obligations of the Master Servicer or Special Servicer, as the case may be, are
rated at xxxxx "X0" from Xxxxx'x (if then rated by Xxxxx'x, and if not then
rated by Xxxxx'x, then an equivalent rating by at least one additional
nationally recognized statistical rating agency besides S&P) and "A" from S&P
(or, in the case of either Rating Agency, such lower rating as will not result
in an Adverse Rating Event, as evidenced in writing by such Rating Agency), such
Person may self-insure with respect to the risks described in this Section
3.07(c).
(d) In the event that either of the Master Servicer or, with respect
to Specially Serviced Loans, the Special Servicer has actual knowledge of any
event (an "Insured Environmental Event") giving rise to a claim under any
Environmental Insurance Policy in respect of any Environmentally Insured
Mortgage Loan for which the Mortgagor has not filed a claim or in respect of an
REO Property, the Master Servicer shall notify the Special Servicer if such Loan
is a Specially Serviced Loan. Upon becoming aware of such Insured Environmental
Event, the Master Servicer, in the case of a Performing Serviced Loan, and the
Special Servicer, in the case of a Specially Serviced Loan or an REO Property,
in accordance with the terms of such Environmental Insurance Policy and the
Servicing Standard, shall timely make a claim thereunder with the appropriate
insurer and shall take such other actions necessary under such Environmental
Insurance Policy in order to realize the full value thereof for the benefit of
the Certificateholders. With respect to each Environmental Insurance Policy in
respect of an Environmentally Insured Mortgage Loan, the Master Servicer (in the
case of any such Loan that is a Performing Serviced Loan) and the Special
Servicer (in the case of any such Loan that is a Specially Serviced Loan or in
the case of an REO Property) shall each review and familiarize itself with the
terms and conditions relating to enforcement of claims and shall, in the event
the Master Servicer or the Special Servicer has actual knowledge of an Insured
Environmental Event giving rise to a claim under such policy, monitor the dates
by which any claim must be made or any action must be taken under such policy to
realize the full value thereof for the benefit of the Certificateholders.
The Master Servicer (in the case of Performing Serviced Loans) and
the Special Servicer (in the case of Specially Serviced Loans and REO
Properties) shall each abide by the terms and conditions precedent to payment of
claims under the Environmental Insurance Policies with respect to the
Environmentally Insured Mortgage Loans and take all such actions as may be
required to comply with the terms and provisions of such policies in order to
maintain such policies in full force and effect and to make claims thereunder.
In the event that either the Master Servicer or, with respect to
Specially Serviced Loans, the Special Servicer receives notice of a termination
of any Environmental Insurance Policy with respect to an Environmentally Insured
Mortgage Loan, then the party receiving such notice shall, within five Business
Days after receipt thereof, provide written notice of such termination to the
other such party and the Trustee. Upon receipt of such notice, the Master
Servicer, with respect to a Performing Serviced Loan, or the Special Servicer,
with respect to a Specially Serviced Loan or an REO Property, shall address such
termination in accordance with Section 3.07(a). Any legal fees, premiums or
other out-of-pocket costs incurred in accordance with the Servicing Standard in
connection with enforcing the obligations of the Mortgagor under any
Environmental Insurance Policy or a resolution of such termination of an
Environmental Insurance Policy shall be paid by the Master Servicer and shall be
reimbursable to it as a Servicing Advance.
The Master Servicer (with respect to Performing Serviced Loans) and
the Special Servicer (with respect to Specially Serviced Loans) shall monitor
the actions, and enforce the obligations, of the related Mortgagor under each
Environmentally Insured Mortgage Loan insofar as such actions/obligations relate
to (i) to the extent consistent with Section 3.07(a), the maintenance
(including, without limitation, any required renewal) of an Environmental
Insurance Policy with respect to the related Mortgaged Property or (ii)
environmental testing or remediation at the related Mortgaged Property.
Section 3.08 Enforcement of Alienation Clauses.
(a) If, with respect to any Performing Serviced Loan, the Master
Servicer receives a request from a Mortgagor regarding the transfer of the
related Mortgaged Property to, and assumption of such Mortgage Loan by, another
Person or transfers of certain interests in such Mortgagor, then the Master
Servicer shall promptly obtain relevant information for purposes of evaluating
such request. If the Master Servicer determines, consistent with the Servicing
Standard, to approve such transfer and/or assumption, then the Master Servicer
shall promptly provide to the Special Servicer a written copy of such
recommendation (which shall include the reason therefor) and the materials upon
which such recommendation is based. The Special Servicer shall have the right
hereunder, within 15 days of receipt of such recommendation and supporting
materials and any other materials reasonably requested by the Special Servicer
to reasonably withhold or grant consent to any such request for such transfer
and/or assumption in accordance with the terms of the Mortgage Loan and this
Agreement, including, without limitation, the Servicing Standard; provided that
any grant of consent on the part of the Special Servicer shall be subject to
Section 3.08(d) and Section 6.11, and, further, to the Special Servicer
obtaining any consent to the extent required pursuant to Section 6.11, if
applicable. If the Special Servicer does not respond within such 15-day period,
the Special Servicer's consent shall be deemed granted. If the Special Servicer
consents or is deemed to have consented to such proposed transfer and/or
assumption, then the Master Servicer (subject to Section 3.08(d) and Section
6.11) and shall process such request of the related Mortgagor; and, in the case
of a transfer of the related Mortgaged Property to, and assumption of such
Serviced Loan by, another Person, the Master Servicer shall be authorized to
enter into an assumption or substitution agreement with the Person, which shall
be a Single Purpose Entity, to whom the related Mortgaged Property has been or
is proposed to be conveyed and/or release the original Mortgagor from liability
under the related Mortgage Loan and substitute as obligor thereunder the Person
to whom the related Mortgaged Property has been or is proposed to be conveyed;
provided, however, that the Master Servicer shall not enter into any such
agreement to the extent that any terms thereof would result in an Adverse REMIC
Event or an Adverse Grantor Trust Event or create any lien on a Mortgaged
Property that is senior to, or on parity with, the lien of the related Mortgage.
The Master Servicer shall notify the Trustee, the Special Servicer, each Rating
Agency and, in the case of a Loan Pair, the related Companion Loan Noteholder,
of any assumption or substitution agreement executed pursuant to this Section
3.08(a) and shall forward thereto a copy of such agreement, together with copies
of all relevant documentation. Subject to the terms of the related loan
documents, no assumption of a Cross-Collateralized Mortgage Loan shall be made
without the assumption of all other Mortgage Loans making up the related
Cross-Collateralized Group. Further, subject to the terms of the related loan
documents and applicable law, no assumption of a Serviced Loan shall be made or
transfer of interest in a Mortgagor approved, unless all costs in connection
therewith, including any arising from seeking Rating Agency confirmation, are
paid by the related Mortgagor.
If any Performing Serviced Loan contains restrictions on transfers
of the related Mortgaged Property and/or transfers of interests in the related
Mortgagor, and if any such proposed transfer has not been approved pursuant to
the preceding paragraph, then the Master Servicer, on behalf of the Trustee (as
mortgagee of record on behalf of the Certificateholders and, in the case of a
Mortgaged Property relating to a Loan Pair, the related Companion Loan
Noteholder) shall, to the extent permitted by applicable law, enforce such
restrictions, unless the Master Servicer has determined, in its reasonable, good
faith judgment that failure to waive such restrictions would be a violation of
the Servicing Standard (as evidenced by an Officer's Certificate setting forth
the basis for such determination delivered, together with copies of all relevant
documentation, to the Trustee and each Rating Agency and, with respect to a Loan
Pair, to the related Companion Loan Noteholder); provided that any such waiver
of such restrictions shall be subject to Section 3.08(d).
(b) If, with respect to any Specially Serviced Loan, the Master
Servicer receives a request for consent to the transfer of the related Mortgaged
Property to, and assumption of such Loan, by another Person or transfers of
certain interests in such Mortgagor, the Master Servicer shall immediately
notify the Special Servicer of such request and deliver to the Special Servicer
the Mortgage File (or a copy thereof) and such other documents that the Master
Servicer shall have received regarding the proposed transfer and/or assumption;
provided that the Master Servicer shall only be required to deliver the
foregoing items to the extent in its possession and to the extent such items
have not already been delivered to the Special Servicer. Upon consent by the
Special Servicer to any proposed transfer of a Mortgaged Property and assumption
by the proposed transferee of the related Loan pursuant to this Section 3.08(b)
with respect to any Specially Serviced Loan, the Special Servicer shall process
the request of the related Mortgagor for such transfer and assumption and shall
be authorized to enter into an assumption or substitution agreement with the
Person, which shall be a Single Purpose Entity, to whom the related Mortgaged
Property has been or is proposed to be conveyed and/or release the original
Mortgagor from liability under the related Loan and substitute as obligor
thereunder the Person to whom the related Mortgaged Property has been or is
proposed to be conveyed; provided, however, that the Special Servicer shall not
enter into any such agreement to the extent that any terms thereof would result
in an Adverse REMIC Event or an Adverse Grantor Trust Event or create any lien
on a Mortgaged Property that is senior to, or on parity with, the lien of the
related Mortgage. The Special Servicer shall notify the Trustee, the Master
Servicer, each Rating Agency and, with respect to a Loan Pair, the related
Companion Loan Noteholders of any assumption or substitution agreement executed
pursuant to this Section 3.08(b) and shall forward thereto a copy of such
agreement. Subject to the terms of the related loan documents, no assumption of
a Cross-Collateralized Mortgage Loan shall be made without the assumption of all
other Mortgage Loans making up the related Cross-Collateralized Group. Further,
subject to the terms of the related loan documents and applicable law, no
assumption of a Loan shall be made unless all costs in connection therewith,
including any arising from seeking Rating Agency confirmation, are paid by the
related Mortgagor.
(c) If, with respect to a Performing Serviced Loan, the Master
Servicer receives a request from the Mortgagor regarding a further encumbrance
of the related Mortgaged Property, then the Master Servicer shall promptly
obtain relevant information for purposes of evaluating such request. If the
Master Servicer determines, consistent with the Servicing Standard, to approve
such further encumbrance, then the Master Servicer shall provide to the Special
Servicer a written copy of such recommendation (which shall include the reason
therefor) and the materials upon which such recommendation is based. The Special
Servicer shall have the right hereunder, within 15 days of receipt of such
recommendation and supporting materials and any other materials reasonably
requested by the Special Servicer, to reasonably withhold or, subject to Section
3.08(d) and Section 6.11, grant consent to any such request for such further
encumbrance of the related Mortgaged Property. If the Special Servicer does not
respond within such 15-day period, the Special Servicer's consent shall be
deemed granted. If the Special Servicer consents or is deemed to have consented
to such further encumbrance of the related Mortgaged Property, the Master
Servicer shall process such request of the related Mortgagor. If the Special
Servicer does not consent to, and is not deemed to have consented to, such
further encumbrance, then the Master Servicer, on behalf of the Trustee (as
mortgagee of record on behalf of the Certificateholders and, in the case of a
Mortgaged Property that relates to a Loan Pair, the related Companion Loan
Noteholder) shall, to the extent permitted by applicable law, enforce the
restrictions contained in the related loan documents on further encumbrances of
the related Mortgaged Property, unless the Master Servicer has determined, in
its reasonable, good faith judgment, that failure to waive such restrictions
would be a violation of the Servicing Standard (as evidenced by an Officer's
Certificate setting forth the basis for such determination delivered to the
Trustee, the Special Servicer, each Rating Agency and, with respect to a Loan
Pair, the related Companion Loan Noteholder); provided that any such waiver of
such restrictions shall be subject to Section 3.08(d). To the extent permitted
by the applicable loan documents and applicable law, the Master Servicer may
charge the related Mortgagor (and retain or share with the Special Servicer
pursuant to Section 3.11) a fee in connection with any enforcement or waiver
contemplated in this paragraph of subsection (c).
With respect to any Specially Serviced Loans, the Special Servicer
on behalf of the Trustee (as mortgagee of record on behalf of the
Certificateholders and, in the case of a Loan Pair Mortgaged Property, the
related Companion Loan Noteholders) shall, to the extent permitted by applicable
law, enforce the restrictions contained in the related loan documents on further
encumbrances of the related Mortgaged Property, and process all documentation in
connection therewith, unless the Special Servicer has determined, in its
reasonable, good faith judgment, that waiver of such restrictions would be in
accordance with the Servicing Standard (as evidenced by an Officer's Certificate
setting forth the basis for such determination delivered to the Trustee, the
Master Servicer, each Rating Agency and, with respect to a Loan Pair, the
related Companion Loan Noteholder); provided that any such waiver of such
restrictions shall be subject to Section 3.08(d) and Section 6.11. To the extent
permitted by the applicable loan documents and applicable law, the Special
Servicer may charge the related Mortgagor (and retain to the extent permitted
under Section 3.11) a fee in connection with any enforcement or waiver
contemplated in this subsection (c).
(d) Notwithstanding anything to the contrary contained in this
Section 3.08, (A) (i) if the then unpaid principal balance of the subject
Mortgage Loan is at least equal to $20,000,000, then neither the Master Servicer
(with respect to Performing Serviced Loans) nor the Special Servicer (with
respect to Specially Serviced Mortgage Loans) shall waive any restrictions
contained in the related Mortgage on transfers of the related Mortgaged Property
or on transfers of interests in the related Mortgagor, and (ii) if (w) the then
unpaid principal balance of the subject Mortgage Loan is at least equal to 2% of
the then aggregate principal balance of the Mortgage Pool or (x) the subject
Mortgage Loan is then one of the ten largest Mortgage Loans in the Mortgage Pool
or (y) the aggregate loan-to-value ratio of the subject Mortgage Loan (together
with any additional loans that would further encumber the related Mortgaged
Property or interest in the related Mortgagor) would be equal to or greater than
85% or (z) the aggregate debt service coverage ratio of the related Mortgaged
Property (taking into account any additional loans that would further encumber
the related Mortgaged Property or interest in the related Mortgagor) would be
less than 1.20x, then neither the Master Servicer nor the Special Servicer shall
waive any restrictions contained in the related Mortgage on further encumbrances
of the related Mortgaged Property, unless, in the case of either (i) or (ii)
above, the Special Servicer or the Master Servicer, as the case may be, shall
have received prior written confirmation from S&P that such action would not
result in an Adverse Rating Event, and (B) if the subject Mortgage Loan is then
one of the ten largest Mortgage Loans in the Mortgage Pool, then neither the
Master Servicer nor the Special Servicer, as applicable, shall waive any
restrictions contained in the related Mortgage on transfers or further
encumbrances of the related Mortgaged Property or on transfers of interests in
the related Mortgagor, unless the Master Servicer or the Special Servicer, as
the case may be, shall have received prior written confirmation from Moody's
that such action would not result in an Adverse Rating Event. In connection with
any request for rating confirmation from a Rating Agency pursuant to this
Section 3.08(d), the Master Servicer or the Special Servicer, as the case may
be, shall deliver its written analysis and recommendation (in accordance with
the Servicing Standard) with respect to the matters that are the subject
thereof, and copies of all relevant supporting documentation to such Rating
Agency. Further, subject to the terms of the related loan documents and
applicable law, no waiver of a restriction contained in the related Mortgage on
transfers of the related Mortgaged Property or interests in the related
Mortgagor or on further encumbrances thereof may be waived by the Master
Servicer or the Special Servicer, as applicable, unless all costs in connection
therewith, including any arising from seeking Rating Agency confirmation, are
paid by the related Mortgagor. To the extent not collected from the related
Mortgagor, any rating agency charges in connection with the foregoing shall be
paid by the Master Servicer as a Servicing Advance.
Section 3.09 Realization Upon Defaulted Loans; Required Appraisals;
Appraisal Reduction Calculation.
(a) The Special Servicer shall, subject to Sections 3.09(b),
3.09(c), 3.09(d) and 6.11, exercise reasonable efforts, consistent with the
Servicing Standard, to foreclose upon or otherwise comparably convert the
ownership of properties securing such of the Specially Serviced Loans as come
into and continue in default and as to which no satisfactory arrangements can be
made for collection of delinquent payments, including pursuant to Section 3.20.
Subject to Section 3.11(h), the Special Servicer shall request the Master
Servicer to advance all costs and expenses incurred by it in any such
proceedings, and the Master Servicer shall be entitled to reimbursement therefor
as provided in Section 3.05(a) or Section 3.05A, as applicable. The Special
Servicer shall be responsible, consistent with the Servicing Standard, for
determining whether to exercise any rights it may have under the
cross-collateralization and/or cross-default provisions of a
Cross-Collateralized Mortgage Loan that is a Specially Serviced Mortgage Loan.
Nothing contained in this Section 3.09 shall be construed so as to require the
Special Servicer, on behalf of the Certificateholders and, in the case of a Loan
Pair Mortgaged Property, on behalf of the related Companion Loan Noteholders, to
make a bid on any Mortgaged Property at a foreclosure sale or similar proceeding
that is in excess of the fair market value of such property, as determined by
the Special Servicer in its reasonable and good faith judgment taking into
account the factors described in Section 3.18 and the results of any appraisal
obtained as provided below in this Section 3.09, all such bids to be made in a
manner consistent with the Servicing Standard.
If and when the Master Servicer or the Special Servicer deems it
necessary and prudent for purposes of establishing the fair market value of any
Mortgaged Property securing a Specially Serviced Loan, whether for purposes of
bidding at foreclosure or otherwise, it may have an appraisal performed with
respect to such property by an Independent Appraiser or other expert in real
estate matters, which appraisal shall take into account the factors specified in
Section 3.18, and the cost of which appraisal shall be covered by, and be
reimbursable as, a Servicing Advance; provided that if the Master Servicer
intends to obtain an appraisal in connection with the foregoing, the Master
Servicer shall so notify the Special Servicer. If any Serviced Loan becomes a
Required Appraisal Loan, then the Special Servicer shall (i) obtain or conduct,
as applicable, a Required Appraisal within 60 days of such Serviced Loan's
becoming a Required Appraisal Loan (unless a Required Appraisal was obtained or
conducted, as applicable, with respect to such Required Appraisal Loan within
the prior 12 months and the Special Servicer reasonably believes, in accordance
with the Servicing Standard, that no material change has subsequently occurred
with respect to the related Mortgaged Property that would draw into question the
applicability of such Required Appraisal) and (ii) obtain or conduct, as
applicable, an update of the most recent Required Appraisal approximately 12
months following the most recent Required Appraisal or subsequent update thereof
for so long as such Serviced Loan or any successor REO Loan, as the case may be,
remains a Required Appraisal Loan. The Special Servicer shall deliver copies of
all such Required Appraisals and updated Required Appraisals to the Trustee, the
Master Servicer and, in the case of a Loan Pair Mortgaged Property, the related
Companion Loan Noteholder, in each such case, promptly following the Special
Servicer's receipt of the subject appraisal, and to the Controlling Class
Directing Holder upon request, and based thereon, the Special Servicer shall
calculate and notify the Trustee, the Master Servicer, the Controlling Class
Directing Holder and, in the case of a Loan Pair, the related Companion Loan
Noteholders, of any resulting Appraisal Reduction Amount. Such calculations by
the Special Servicer shall be subject to review and confirmation by the Master
Servicer, provided that the Master Servicer may rely on any information provided
by the Special Servicer. The Master Servicer shall, at the direction of the
Special Servicer, advance the cost of each such Required Appraisal and updated
Required Appraisal; provided, however, that such expense will be subject to
reimbursement to the Master Servicer as a Servicing Advance out of the related
Custodial Account pursuant to Section 3.05(a) or Section 3.05A. At any time that
an Appraisal Reduction Amount exists with respect to any Required Appraisal
Loan, the applicable Directing Holder (without giving effect to any Control
Appraisal Event which may have been triggered by the most recent Appraisal
Reduction Amount) may, at its own expense, obtain and deliver to the Master
Servicer, the Special Servicer and the Trustee an appraisal that satisfies the
requirements of a "Required Appraisal," and upon the written request of the
applicable Directing Holder, if such new appraisal materially differs from the
previously obtained Required Appraisal, the Special Servicer shall recalculate
the Appraisal Reduction Amount in respect of such Required Appraisal Loan based
on the appraisal delivered by such Directing Holder and shall notify the
Trustee, the Master Servicer and the applicable Directing Holder of such
recalculated Appraisal Reduction Amount.
(b) Notwithstanding any other provision of this Agreement, no
Mortgaged Property shall be acquired by the Special Servicer on behalf of the
Certificateholders (and, in the case of a Loan Pair Mortgaged Property, the
related Companion Loan Noteholders) under such circumstances, in such manner or
pursuant to such terms as would, in the reasonable, good faith judgment of the
Special Servicer (exercised in accordance with the Servicing Standard), (i)
cause such Mortgaged Property to fail to qualify as "foreclosure property"
within the meaning of Section 860G(a)(8) of the Code (unless the portion of such
Mortgaged Property that is not treated as "foreclosure property" and that is
held by the Lower-Tier REMIC at any given time constitutes not more than a de
minimis amount of the assets of the Lower-Tier REMIC within the meaning of
Treasury Regulations Section 1.860D-1(b)(3)(i) and (ii)), or (ii) except as
permitted by Section 3.17(a), subject the Trust Fund to the imposition of any
federal income taxes under the Code. Subject to the foregoing, however, a
Mortgaged Property may be acquired through a single member limited liability
company if the Special Servicer determines that such an action is appropriate to
protect the Trust and/or any related Companion Loan Noteholder from potential
liability.
In addition, the Special Servicer shall not acquire any personal
property pursuant to this Section 3.09 (with the exception of cash or cash
equivalents pledged as collateral for a Mortgage Loan provided the same are: (i)
immediately distributed on the next Distribution Date or (ii) used to complete
improvements on the related Mortgaged Property) unless either:
(i) such personal property is incident to real property (within the
meaning of Section 856(e)(1) of the Code) so acquired by the Special
Servicer; or
(ii) the Special Servicer shall have obtained an Opinion of Counsel
(the cost of which shall be covered by, and be reimbursable as, a
Servicing Advance) to the effect that the holding of such personal
property as part of the Trust Fund will not cause the imposition of a tax
on either REMIC Pool under the REMIC Provisions or cause either REMIC Pool
to fail to qualify as a REMIC at any time that any Certificate is
outstanding.
(c) Notwithstanding the foregoing provisions of this Section 3.09,
neither the Master Servicer nor the Special Servicer shall, on behalf of the
Trustee (and, in the case of a Loan Pair Mortgaged Property, on behalf of the
related Companion Loan Noteholders), obtain title to a Mortgaged Property by
foreclosure, deed in lieu of foreclosure or otherwise, or take any other action
with respect to any Mortgaged Property, if, as a result of any such action, the
Trustee, on behalf of the Certificateholders (and, in the case of a Loan Pair
Mortgaged Property, the related Companion Loan Noteholders), could, in the
reasonable, good faith judgment of the Special Servicer, exercised in accordance
with the Servicing Standard, be considered to hold title to, to be a
"mortgagee-in-possession" of, or to be an "owner" or "operator" of such
Mortgaged Property within the meaning of CERCLA or any comparable law (a
"potentially responsible party"), unless such action is consistent with Section
6.11 and the Special Servicer has previously determined (as evidenced by an
Officer's Certificate to such effect delivered to the Trustee (and, in the case
of a Loan Pair Mortgaged Property, the related Companion Loan Noteholders) that
shall specify all of the bases for such determination), in accordance with the
Servicing Standard and based on an Environmental Assessment of such Mortgaged
Property performed by an Independent Person, who regularly conducts
Environmental Assessments, within six months prior to any such acquisition of
title or other action (a copy of which Environmental Assessment shall be
delivered to the Trustee, the Master Servicer and, in the case of a Loan Pair
Mortgaged Property, the related Companion Loan Noteholders), that:
(i) the Mortgaged Property is in compliance with applicable
environmental laws and regulations or, if not, that acquiring such
Mortgaged Property and taking such actions as are necessary to bring the
Mortgaged Property in compliance therewith is reasonably likely to produce
a greater recovery to the Certificateholders (or, if a Loan Pair is
involved, to the Certificateholders and the related Companion Loan
Noteholders), as a collective whole, on a present value basis than not
acquiring such Mortgaged Property and not taking such actions; 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
acquiring such Mortgaged Property and taking such actions with respect to
such Mortgaged Property is reasonably likely to produce a greater recovery
to the Certificateholders (or, if a Loan Pair is involved, to the
Certificateholders and the related Companion Loan Noteholders), as a
collective whole, on a present value basis than not acquiring such
Mortgaged Property and not taking such actions.
The Special Servicer shall undertake good faith reasonable efforts
to make the determination referred to in the preceding paragraph and may
conclusively rely on the Environmental Assessment referred to above in making
such determination. The cost of any such Environmental Assessment shall be
covered by, and reimbursable as, a Servicing Advance; and if any such
Environmental Assessment so warrants, the Special Servicer shall perform or
cause to be performed such additional environmental testing as it deems
necessary and prudent to determine whether the conditions described in clauses
(i) and (ii) of the preceding paragraph have been satisfied (the cost of any
such additional testing also to be covered by, and reimbursable as, a Servicing
Advance). The cost of any remedial, corrective or other further action
contemplated by clause (i) and/or clause (ii) of the preceding paragraph, shall
be payable out of the related Custodial Account pursuant to Section 3.05 or
Section 3.05A, as applicable (or, in the case of a Loan Pair, to the extent the
funds in the applicable Loan Pair Custodial Account are insufficient, shall be
advanced by the Master Servicer subject to Section 3.11(h)).
(d) If the environmental testing contemplated by Section 3.09(c)
above establishes that any of the conditions set forth in clauses (i) and (ii)
of the first sentence thereof has not been satisfied with respect to any
Mortgaged Property securing a defaulted Serviced Loan, the Special Servicer
shall take such action as is in accordance with the Servicing Standard (other
than proceeding to acquire title to the Mortgaged Property). At such time as it
deems appropriate, the Special Servicer may, on behalf of the Trust (and, if a
Companion Loan is affected, the related Companion Loan Noteholders), subject to
Section 6.11, release all or a portion of such Mortgaged Property from the lien
of the related Mortgage.
(e) The Special Servicer shall report to the Master Servicer, the
Trustee and, if a Loan Pair is affected, the related Companion Loan Noteholders,
monthly in writing as to any actions taken by the Special Servicer with respect
to any Mortgaged Property that represents security for a defaulted Serviced Loan
as to which the environmental testing contemplated in Section 3.09(c) above has
revealed that any of the conditions set forth in clauses (i) and (ii) of the
first sentence thereof has not been satisfied, in each case until the earlier to
occur of satisfaction of all such conditions and release of the lien of the
related Mortgage on such Mortgaged Property.
(f) The Special Servicer shall have the right to determine, in
accordance with the Servicing Standard, the advisability of seeking to obtain a
deficiency judgment if the state in which the Mortgaged Property is located and
the terms of the affected Serviced Loan permit such an action, and shall, in
accordance with the Servicing Standard, seek such deficiency judgment if it
deems advisable (the cost of which undertaking shall be covered by, and be
reimbursable as, a Servicing Advance).
(g) The Master Servicer shall, with the reasonable cooperation of
the Special Servicer, prepare and file information returns with respect to the
receipt of mortgage interest received with respect to any Mortgaged Property
required by Section 6050H of the Code and the reports of foreclosures and
abandonments of any Mortgaged Property and the information returns relating to
cancellation of indebtedness income with respect to any Mortgaged Property
required by Sections 6050J and 6050P of the Code. Such reports shall be in form
and substance sufficient to meet the reporting requirements imposed by Sections
6050H, 6050J and 6050P of the Code.
(h) As soon as the Special Servicer makes a Final Recovery
Determination with respect to any Serviced Loan or REO Property, it shall
promptly notify the Trustee, the Master Servicer and, if a Loan Pair is
affected, the related Companion Loan Noteholders. The Special Servicer shall
maintain accurate records, prepared by a Servicing Officer, of each such Final
Recovery Determination (if any) and the basis thereof. Each such Final Recovery
Determination (if any) shall be evidenced by an Officer's Certificate delivered
to the Trustee, the Master Servicer and, if a Loan Pair is affected, the related
Companion Loan Noteholders, no later than the seventh Business Day following
such Final Recovery Determination.
Section 3.10 Trustee and Custodian to Cooperate; Release of Mortgage
Files.
(a) Upon the payment in full of any Serviced Loan, or the receipt by
the Master Servicer or the Special Servicer of a notification that payment in
full shall be escrowed in a manner customary for such purposes, the Master
Servicer or the Special Servicer shall promptly notify the Trustee (and, in the
case of a Companion Loan, the related Companion Loan Noteholders) by a
certification (which certification shall be in the form of a Request for Release
in the form of Exhibit D-1 attached hereto and shall be accompanied by the form
of a release or discharge and shall include a statement to the effect that all
amounts received or to be received in connection with such payment which are
required to be deposited in the appropriate Custodial Account pursuant to
Section 3.04(a) or 3.04A(a), as applicable, have been or will be so deposited)
of a Servicing Officer (a copy of which certification shall be delivered to the
Special Servicer) and shall request delivery to it of the related Mortgage File
and, in the case of a Companion Loan (other than the Oakmonte Junior Portion),
the original of the Mortgage Note for such Companion Loan. Upon receipt of such
certification and request, the Trustee shall release, or cause any related
Custodian to release, the related Mortgage File (and, in the case of a Companion
Loan (other than the Oakmonte Junior Portion), the Master Servicer shall cause
the related Companion Loan Noteholders to release the Mortgage Note for such
Companion Loan) to the Master Servicer or Special Servicer and shall deliver to
the Master Servicer or Special Servicer, as applicable, such release or
discharge, duly executed. No expenses incurred in connection with any instrument
of satisfaction or deed of reconveyance shall be chargeable to the Distribution
Account or any Custodial Account.
(b) If from time to time, and as appropriate for servicing or
foreclosure of any Serviced Loan, the Master Servicer or the Special Servicer
shall otherwise require any Mortgage File (or any portion thereof) (or the
original of the Mortgage Note for the Companion Loans (other than the Oakmonte
Junior Portion)), the Trustee, upon request of the Master Servicer and receipt
from the Master Servicer of a Request for Release in the form of Exhibit D-1
attached hereto signed by a Servicing Officer thereof, or upon request of the
Special Servicer and receipt from the Special Servicer of a Request for Release
in the form of Exhibit D-2 attached hereto, shall release, or cause any related
Custodian to release, such Mortgage File (or such portion thereof) (and, in the
case of the Companion Loans (other than the Oakmonte Junior Portion), the Master
Servicer shall cause the related Companion Loan Noteholders to release the
original of the Mortgage Note for such Companion Loan) to the Master Servicer or
the Special Servicer, as the case may be. Upon return of such Mortgage File (or
such portion thereof) (or such original Mortgage Note for the related Companion
Loans (other than the Oakmonte Junior Portion)) to the Trustee or related
Custodian (or to the related Companion Loan Noteholders), or the delivery to the
Trustee (or to the related Companion Loan Noteholders) of a certificate of a
Servicing Officer of the Special Servicer stating that such Serviced Loan was
liquidated and that all amounts received or to be received in connection with
such liquidation that are required to be deposited into the related Custodial
Account pursuant to Section 3.04(a) or 3.04A(a), as applicable, have been or
will be so deposited, or that the related Mortgaged Property has become an REO
Property, the Request for Release shall be released by the Trustee or related
Custodian to the Master Servicer or the Special Servicer, as applicable.
(c) Within three Business Days (or within such shorter period as
execution and delivery can reasonably be accomplished if the Special Servicer
notifies the Trustee (and, in the case of a Loan Pair Mortgaged Property, the
related Companion Loan Noteholders, other than the Class Y Certificateholders)
of an exigency) of the Special Servicer's request therefor, the Trustee shall
execute and deliver to the Special Servicer (or the Special Servicer may execute
and deliver in the name of the Trustee (on behalf of the Certificateholders and,
in the case of a Loan Pair Mortgaged Property, also on behalf of the related
Companion Loan Noteholders, other than the Class Y Certificateholders) based on
a limited power of attorney issued in favor of the Special Servicer pursuant to
Section 3.01(b)), in the form supplied to the Trustee, any court pleadings,
requests for trustee's sale or other documents stated by the Special Servicer to
be reasonably necessary to the foreclosure or trustee's sale in respect of a
Mortgaged Property or 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 or to defend any legal
action or counterclaim filed against the Trust Fund, the Master Servicer, the
Special Servicer or the Companion Loan Noteholders, other than the Class Y
Certificateholders. Together with such documents or pleadings, the Special
Servicer shall deliver to the Trustee (and, in the case of a Loan Pair Mortgaged
Property, the related Companion Loan Noteholders, other than the Class Y
Certificateholders) 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 (on behalf of the Certificateholders and, in the
case of a Loan Pair Mortgaged Property, also on behalf of the related Companion
Loan Noteholders, other than the Class Y Certificateholders) 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. Notwithstanding
anything contained herein to the contrary, neither the Master Servicer nor the
Special Servicer shall, without the Trustee's written consent: (i) initiate any
action, suit or proceeding solely under the Trustee's name without indicating
the Master Servicer's or Special Servicer's, as applicable, representative
capacity, or (ii) take any action with the intent to cause, and that actually
causes, the Trustee to be registered to do business in any state.
Section 3.11 Servicing Compensation; Payment of Expenses; Certain
Matters Regarding Servicing Advances.
(a) As compensation for its activities hereunder, the Master
Servicer shall be entitled to receive the Master Servicing Fee with respect to
each Loan (other than 000 Xxxxx Xxxxxx Xxxxx Companion Loans), including each
Specially Serviced Loan, and each REO Loan. As to each Loan (other than 000
Xxxxx Xxxxxx Xxxxx Companion Loans) and REO Loan, the Master Servicing Fee
shall: (i) accrue from time to time at the related Master Servicing Fee Rate on
the same principal amount as interest accrues from time to time on such Loan or
is deemed to accrue from time to time on such REO Loan; and (ii) be calculated
on a 30/360 Basis (or, in the case of the Companion Loans (other than the
Oakmonte Junior Portion) or any related REO Loans, on an Actual/360 Basis) (or,
in the event that a Principal Prepayment in full or other Liquidation Event
shall occur with respect to any such Loan or REO Loan on a date that is not a
Due Date, on the basis of the actual number of days to elapse from and including
the most recently preceding related Due Date to but excluding the date of such
Principal Prepayment or Liquidation Event in a month consisting of 30 days). The
Master Servicing Fee with respect to any such Loan or REO Loan shall cease to
accrue if a Liquidation Event occurs in respect thereof. Earned but unpaid
Master Servicing Fees shall be payable monthly, on a loan-by-loan basis, from
payments of interest on each such Loan and REO Revenues allocable as interest on
each such REO Loan. The Master Servicer shall be entitled to recover unpaid
Master Servicing Fees in respect of any such Loan or REO Loan out of that
portion of related Insurance Proceeds, Condemnation Proceeds or Liquidation
Proceeds allocable as recoveries of interest, to the extent permitted by Section
3.05(a) or Section 3.05A(a), as applicable. The right to receive the Master
Servicing Fee may not be transferred in whole or in part except in connection
with the transfer of all of the Master Servicer's responsibilities and
obligations under this Agreement.
(b) Additional servicing compensation in the form of (i) Net Default
Charges (subject to Section 3.26), charges for beneficiary statements or
demands, amounts collected for checks returned for insufficient funds, and any
similar fees (excluding Prepayment Premiums and Yield Maintenance Charges), in
each case to the extent actually paid by a Mortgagor with respect to any
Serviced Loan and accrued during the time that such Serviced Loan was a
Performing Serviced Loan, (ii) 100% of each modification fee or extension fee
and any other applicable fees actually paid by a Mortgagor with respect to a
modification, consent, extension, waiver or amendment agreed to by the Master
Servicer pursuant to this Agreement if the approval or consent of the Special
Servicer (or the Directing Holder with respect to an extension of maturity
granted pursuant to Section 3.20(c)) was not required in connection therewith,
and 50% of such fees if the approval or consent of the Special Servicer (or the
Directing Holder with respect to an extension of maturity granted pursuant to
Section 3.20(c)) was required in connection therewith (provided, that the Master
Servicer shall not be entitled to any portion of any modification fee or
extension fee that is paid by a Mortgagor in connection with an extension of the
maturity date of a Performing Mortgage Loan approved by the Special Servicer in
accordance with Section 3.20(d) and Section 6.11, if applicable), and 100% of
any fee actually paid by a Mortgagor in connection with a defeasance of a
Serviced Loan as contemplated under Section 3.20, and (iii) with respect to any
Performing Serviced Loan, 50% of any and all assumption fees and 100% of any and
all assumption application fees up to $5,000 in connection with each assumption,
transfer or substitution and 50% of the excess, if any, of the assumption
application fees received with respect to each assumption, transfer or
substitution, over $5,000, in each case, actually paid by a Mortgagor in
accordance with the related loan documents, in each case with respect to any
transfer of a Mortgaged Property or assumption or substitution agreement entered
into by the Master Servicer on behalf of the Trust (or, in the case of a Loan
Pair, on behalf of the Trust and the related Companion Loan Noteholders)
pursuant to Section 3.08(a) or paid by a Mortgagor with respect to any transfer
of an interest in a Mortgagor pursuant to Section 3.08(a), shall be retained by
the Master Servicer or promptly paid to the Master Servicer by the Special
Servicer and such additional master servicing compensation is not required to be
deposited in any Custodial Account. The Master Servicer shall also be entitled
to additional master servicing compensation in the form of (i) Prepayment
Interest Excesses (except in the case of the Companion Loans); (ii) interest or
other income earned on deposits in the Custodial Accounts in accordance with
Section 3.06(b) (but only to the extent of the Net Investment Earnings, if any,
with respect to each such account for each Collection Period); and (iii) to the
extent not required to be paid to any Mortgagor under applicable law, any
interest or other income earned on deposits in the Servicing Accounts, the
Reserve Accounts and the Defeasance Deposit Account maintained thereby (but only
to the extent of the Net Investment Earnings, if any, with respect to each such
account for each Collection Period).
(c) As compensation for its activities hereunder, the Special
Servicer shall be entitled to receive the Special Servicing Fee with respect to
each Specially Serviced Loan and each REO Loan. With respect to each such
Specially Serviced Loan and REO Loan, for any calendar month (or portion
thereof), the Special Servicing Fee shall: (i) accrue from time to time at the
Special Servicing Fee Rate on the same principal amount as interest accrues from
time to time on such Loan or is deemed to accrue from time to time on such REO
Loan; and (ii) be calculated on a 30/360 Basis (or, in the case of the Companion
Loans (other than the Oakmonte Junior Portion) or any related REO Loans, on an
Actual/360 Basis) (or, in the event that a Principal Prepayment in full or other
Liquidation Event shall occur with respect to any such Specially Serviced Loan
or REO Loan on a date that is not a Due Date, on the basis of the actual number
of days to elapse from and including the most recently preceding related Due
Date to but excluding the date of such Principal Prepayment or Liquidation
Event, in a month consisting of 30 days and, in the case of any other partial
period that does not run from one Due Date through and including the day
immediately preceding the next Due Date, on the basis of the actual number of
days in such period in a month consisting of 30 days). The Special Servicing Fee
with respect to any such Specially Serviced Loan or REO Loan shall cease to
accrue as of the date a Liquidation Event occurs in respect thereof or it
becomes a Corrected Loan. Earned but unpaid Special Servicing Fees shall be
payable monthly out of general collections on the Mortgage Loans and any REO
Properties (or, in the case of Special Servicing Fees in respect of a Loan Pair,
solely out of collections relating to such Loan Pair or any related REO
Property) on deposit in the appropriate Custodial Account pursuant to Section
3.05(a) or Section 3.05A(a), as applicable.
As further compensation for its services hereunder, the Special
Servicer shall be entitled to receive the Workout Fee with respect to each
Corrected Loan. As to each such Corrected Loan, the Workout Fee shall be payable
from, and shall be calculated by application of the Workout Fee Rate to, all
collections of principal, interest (other than Default Interest), Prepayment
Premiums and/or Yield Maintenance Charges received on such Loan for so long as
it remains a Corrected Loan; provided that no Workout Fee shall be payable from,
or based upon the receipt of, any Liquidation Proceeds collected in connection
with the acquisition of any Mortgage Loan or REO Property by a Certificateholder
in exchange for all the Certificates pursuant to Section 9.01, the purchase of
any such Specially Serviced Loan or REO Property by a Purchase Option Holder
pursuant to Section 3.18, by the Depositor, the Mortgage Loan Seller, the
Special Servicer, a Controlling Class Certificateholder or the Master Servicer
pursuant to Section 9.01, a Companion Loan Noteholder or its designee pursuant
to the Loan Pair Co-Lender Agreement or Section 3.18(p), as applicable, by the
Mortgage Loan Seller pursuant to Section 2.03, or by the holder of a related
mezzanine loan pursuant to a purchase right in connection with a Loan default as
set forth in the related intercreditor agreement. The Workout Fee with respect
to any Corrected Loan will cease to be payable if such Corrected Loan again
becomes a Specially Serviced Loan or if the related Mortgaged Property becomes
an REO Property; provided that a new Workout Fee will become payable if and when
the particular Serviced Loan again becomes a Corrected Loan. If the Special
Servicer is terminated, removed or resigns, it shall retain the right to receive
any and all Workout Fees payable in respect of (i) any Serviced Loan that became
Corrected Loans during the period that it acted as Special Servicer and were
still such at the time of such termination, removal or resignation and (ii) any
Specially Serviced Loan for which the Special Servicer has resolved the
circumstances and/or conditions causing any such Loan to be a Specially Serviced
Loan such that the related Mortgagor has made at least one timely Monthly
Payment as of the date of such termination, removal or resignation and such
Serviced Loan meets the requirements of a Corrected Loan, with the Workout Fee
with respect to such Mortgage Loan payable only after such requirements have
been met without the occurrence of any further Servicing Transfer Event (and the
successor Special Servicer shall not be entitled to any portion of such Workout
Fees), in each case until the Workout Fee for any such Serviced Loan ceases to
be payable in accordance with the preceding sentence.
As further compensation for its activities hereunder, the Special
Servicer shall also be entitled to receive the Liquidation Fee with respect to
each Specially Serviced Loan as to which it receives a full, partial or
discounted payoff and, subject to the provisos to the next sentence, each
Specially Serviced Loan and Administered REO Property as to which it receives
Liquidation Proceeds, Insurance Proceeds or Condemnation Proceeds. As to each
such Specially Serviced Loan or Administered REO Property, the Liquidation Fee
shall be payable from, and shall be calculated by application of the Liquidation
Fee Rate to, such full, partial or discounted payoff and/or such Liquidation
Proceeds, Insurance Proceeds or Condemnation Proceeds (exclusive of any portion
of such payoff or proceeds that represents Default Interest); provided that no
Liquidation Fee shall be payable (i) with respect to any such Specially Serviced
Loan that becomes a Corrected Loan or (ii) from, or based upon the receipt of,
Liquidation Proceeds collected in connection with the acquisition of any
Mortgage Loan or REO Property by a Certificateholder in exchange for all
Certificates pursuant to Section 9.01, the purchase of any such Specially
Serviced Loan or Administered REO Property by a Purchase Option Holder pursuant
to Section 3.18, by the Depositor, the Mortgage Loan Seller, the Special
Servicer, a Controlling Class Certificateholder or the Master Servicer pursuant
to Section 9.01, by a Companion Loan Noteholder or its designee (or in the case
of the 000 Xxxxx Xxxxxx Xxxxx A/B Loan, by the holders of greater than 50% of
the certificate principal balance of the 2002-C1 Class SWD-B Certificates issued
pursuant to the 2002-C1 PSA or their designee) pursuant to the Loan Pair
Co-Lender Agreement or Section 3.18(p), as applicable, within the time period
specified therein (which period is 90 days), by the Mortgage Loan Seller
pursuant to Section 2.03 in connection with a Material Document Defect or a
Material Breach (within 180 days of the discovery or receipt of notice by the
Mortgage Loan Seller of the subject Material Document Defect or Material Breach,
as applicable, that gave rise to the particular repurchase obligation) or by the
holder of a related mezzanine loan pursuant to a purchase right in connection
with a Loan default as set forth in the related intercreditor agreement within
the time period specified therein; and provided, further, that, in connection
with any purchase by the Mortgage Loan Seller pursuant to Section 2.03, more
than 180 days following the discovery or receipt of notice by the Mortgage Loan
Seller, the Liquidation Fee shall equal 1% of the Stated Principal Balance of
the repurchased Mortgage Loan (or, if an REO Property is being repurchased, 1%
of the Stated Principal Balance of the related REO Mortgage Loan).
Notwithstanding the foregoing, a Workout Fee and/or Liquidation Fee
payable in accordance with the two preceding paragraphs with respect to a
Mortgage Loan or an REO Mortgage Loan that is part of a Loan Pair shall be paid,
first, from collections received on the related subordinate Companion Loan or
any successor REO Mortgage Loan with respect thereto pursuant to Section 3.05A;
and then, from collections received on such Split Mortgage Loan (and if
applicable, the related pari passu Companion Loan) or REO Loan pursuant to
Section 3.05A or, if applicable, Section 3.05(a). Any Workout Fee and/or
Liquidation Fee payable with respect to a Companion Loan may be paid in
accordance with the two preceding paragraphs solely from collections received on
such Companion Loan or successor REO Mortgage Loan.
Notwithstanding anything to the contrary herein, a Liquidation Fee
and a Workout Fee relating to the same Loan shall not be paid from the same
proceeds with respect to such Loan.
The Special Servicer's right to receive the Special Servicing Fee,
the Workout Fee and the Liquidation Fee may not be transferred in whole or in
part except in connection with the transfer of all of the Special Servicer's
responsibilities and obligations under this Agreement.
(d) Additional special servicing compensation in the form of (i) Net
Default Charges (subject to Section 3.26) actually collected that accrued while
the subject Mortgage Loan was a Specially Serviced Loan or an REO Loan, (ii)
with respect to any Specially Serviced Loan, 100% of any and all assumption
fees, assumption application fees and other applicable fees, actually paid by a
Mortgagor in accordance with the related loan documents, with respect to any
transfer of the Mortgaged Property or any assumption or substitution agreement
entered into by the Special Servicer on behalf of the Trust (or, in the case of
a Loan Pair, on behalf of the Trust and the related Companion Loan Noteholders)
pursuant to Section 3.08(b) or paid by a Mortgagor with respect to any transfer
of an interest in a Mortgagor pursuant to Section 3.08(b), and (iii) with
respect to any Performing Serviced Loan, 50% of the excess, if any, of any
assumption application fees received by the Master Servicer with respect to each
assumption, transfer or substitution, over $5,000, and 50% of any and all
assumption fees, in each case actually paid by the Mortgagor in accordance with
the related loan documents with respect to any agreement regarding a transfer of
a Mortgaged Property or any assumption or substitution agreement entered into by
the Master Servicer on behalf of the Trust pursuant to Section 3.08(a) or paid
by the Mortgagor with respect to any transfer of an interest in a Mortgagor
pursuant to Section 3.08(a), and (iv) any and all modification fees, consent
fees, extension fees and similar fees actually collected on the Serviced Loans
that are not otherwise payable to the Master Servicer as additional servicing
compensation pursuant to Section 3.11(b), (including, without limitation, 50% of
each modification fee or extension fee actually paid by the Mortgagor with
respect to a modification, consent, waiver or amendment agreed to by the Master
Servicer pursuant to this Agreement if the approval or consent of the Special
Servicer (or the Directing Holder with respect to an extension of maturity
granted pursuant to Section 3.20(c)) was required in connection therewith and
100% of any modification fee or extension fee and any other applicable fee that
is actually paid by the Mortgagor in connection with an extension of the
maturity date of a Performing Serviced Loan approved by the Special Servicer in
accordance with Section 3.20(d), shall be retained by the Special Servicer or
promptly paid to the Special Servicer by the Master Servicer, as the case may
be, and shall not be required to be deposited in any Custodial Account pursuant
to Section 3.04(a) or Section 3.04A(a). The Special Servicer shall also be
entitled to additional special servicing compensation in the form of interest or
other income earned on deposits in any of the REO Accounts, if established, in
accordance with Section 3.06(b) (but only to the extent of the Net Investment
Earnings, if any, with respect to such account for each Collection Period).
(e) The Master Servicer and the Special Servicer shall each be
required to pay out of its own funds all expenses incurred by it in connection
with its servicing activities hereunder (including payment of any amounts due
and owing to any of its Sub-Servicers and the premiums for any blanket policy
obtained by it insuring against hazard losses pursuant to Section 3.07(b)), if
and to the extent such expenses are not payable directly out of any of the
Custodial Accounts or, in the case of the Special Servicer, any of the REO
Accounts, and neither the Master Servicer nor the Special Servicer shall be
entitled to reimbursement for such expenses except as expressly provided in this
Agreement.
(f) If the Master Servicer is required under any provision of this
Agreement to make a Servicing Advance, but does not do so within 15 days after
such Advance is required to be made, the Trustee shall, if it has actual
knowledge of such failure on the part of the Master Servicer, give written
notice of such failure to the Master Servicer. If such Servicing Advance is not
made by the Master Servicer within three Business Days after such notice is
given to the Master Servicer, then (subject to Section 3.11(h)) the Trustee
shall make such Servicing Advance. If the Trustee fails to make any Servicing
Advance required to be made under this Agreement, then (subject to Section
3.11(h)) the Fiscal Agent shall make such Servicing Advance within one Business
Day of such failure by the Trustee and, if so made, the Trustee shall be deemed
not to be in default under this Agreement.
(g) The Master Servicer, the Trustee and the Fiscal Agent shall each
be entitled to receive interest at the Reimbursement Rate in effect from time to
time, compounded monthly, accrued on the amount of each Servicing Advance made
thereby (with its own funds) for so long as such Servicing Advance is
outstanding, such interest to be payable: (i) first, in accordance with Sections
3.05 and 3.26, out of any Default Charges collected on or in respect of the
particular Mortgage Loan or REO Mortgage Loan as to which such Servicing Advance
relates (provided that such Default Charges will only be applied to pay interest
accrued on such Servicing Advance through the date that such Default Charges
were received); and (ii) then, if and to the extent that such Default Charges
are insufficient to cover such interest, but not before the related Advance has
been reimbursed pursuant to this Agreement, out of general collections on the
Mortgage Loans and REO Properties on deposit in the Pool Custodial Account;
provided that, if such Servicing Advance was made with respect to a Loan Pair
(other than 000 Xxxxx Xxxxxx A/B Loans) or a Loan Pair Mortgaged Property (other
than 000 Xxxxx Xxxxxx A/B Loans), then such interest shall first be payable out
of amounts on deposit in the related Loan Pair Custodial Account in accordance
with Section 3.05A. The Master Servicer shall reimburse itself, the Trustee or
the Fiscal Agent, as appropriate and in accordance with Section 3.03, Section
3.05(a) or Section 3.05A as applicable, for any Servicing Advance as soon as
practicable after funds available for such purpose are deposited in the related
Custodial Account.
(h) Notwithstanding anything herein to the contrary, none of the
Master Servicer, the Trustee or the Fiscal Agent shall be required to make out
of its own funds any Servicing Advance that would, if made, constitute a
Nonrecoverable Servicing Advance. The determination by the Master Servicer that
it has made a Nonrecoverable Servicing Advance or that any proposed Servicing
Advance, if made, would constitute a Nonrecoverable Servicing Advance, shall be
made in accordance with the Servicing Standard and shall be evidenced by an
Officer's Certificate delivered promptly to the Trustee and the Depositor (and,
if affected thereby, the related Companion Loan Noteholder), setting forth the
basis for such determination, together with a copy of any appraisal of the
related Mortgaged Property or REO Property, as the case may be (which appraisal
shall be an expense of the Trust, shall take into account the factors specified
in Section 3.18 and shall have been conducted by an Independent Appraiser in
accordance with the standards of the Appraisal Institute within the twelve
months preceding such determination of nonrecoverability), and further
accompanied by related Mortgagor operating statements and financial statements,
budgets and rent rolls of the related Mortgaged Property (to the extent
available and/or in the Master Servicer's possession) and any engineers'
reports, environmental surveys or similar reports that the Master Servicer may
have obtained and that support such determination. The Trustee and the Fiscal
Agent shall be entitled to rely, conclusively, on any determination by the
Master Servicer that a Servicing Advance, if made, would be a Nonrecoverable
Advance; provided, however, that if the Master Servicer has failed to make a
Servicing Advance for reasons other than a determination by the Master Servicer
that such Servicing Advance would be a Nonrecoverable Advance, the Trustee or
the Fiscal Agent, as applicable, shall make such Servicing Advance within the
time periods required by Section 3.11(f) unless the Trustee or the Fiscal Agent,
in good faith, makes a determination that such Servicing Advance would be a
Nonrecoverable Advance.
(i) Notwithstanding anything set forth herein to the contrary, the
Master Servicer shall (at the direction of the Special Servicer if a Specially
Serviced Loan or an Administered REO Property is involved) pay directly out of
the Pool Custodial Account or the related Loan Pair Custodial Account, as
applicable, any servicing expense that, if advanced by the Master Servicer,
would constitute a Nonrecoverable Servicing Advance; provided that the Master
Servicer (or the Special Servicer, if a Specially Serviced Loan or an
Administered REO Property is involved) has determined in accordance with the
Servicing Standard that making such payment, in the case of withdrawals from the
Pool Custodial Account, is in the best interests of the Certificateholders (as a
collective whole) or, in the case of a Loan Pair Custodial Account, is in the
best interests of the Certificateholders and the related Companion Loan
Noteholders (as a collective whole), as evidenced in each case by an Officer's
Certificate delivered promptly to the Trustee, the Depositor, the Controlling
Class Directing Holder and, if affected thereby, the applicable Companion Loan
Noteholder, setting forth the basis for such determination and accompanied by
any information that such Person may have obtained that supports such
determination. A copy of any such Officer's Certificate (and accompanying
information) of the Master Servicer shall also be promptly delivered to the
Special Servicer, and a copy of any such Officer's Certificate (and accompanying
information) of the Special Servicer shall also be promptly delivered to the
Master Servicer. The Master Servicer may conclusively rely on any information in
this regard provided by the Special Servicer (if other than the Master Servicer
or an Affiliate thereof).
(j) Notwithstanding anything to the contrary in this Agreement, the
Master Servicer shall not waive any fees that would be due or partially due to
the Special Servicer without the Special Servicer's consent and the Special
Servicer shall not waive any fees that would be due or partially due to the
Master Servicer without the Master Servicer's consent.
Section 3.12 Property Inspections; Collection of Financial
Statements; Delivery of Certain Reports.
(a) The Special Servicer shall perform or cause to be performed a
physical inspection of a Mortgaged Property as soon as practicable after the
related Serviced Loan becomes a Specially Serviced Loan and annually thereafter
for so long as the related Loan remains a Specially Serviced Loan, the cost of
which shall be paid by the Master Servicer, at the direction of the Special
Servicer and shall be reimbursable as a Servicing Advance. In addition, the
Special Servicer shall perform or cause to be performed a physical inspection of
each of the REO Properties at least once per calendar year, the cost of which
shall be paid by the Master Servicer, at the direction of the Special Servicer,
and shall be reimbursable as a Servicing Advance. Beginning in 2004, the Master
Servicer shall at its expense perform or cause to be performed a physical
inspection of each Mortgaged Property securing a Performing Serviced Loan: (i)
at least once every two calendar years in the case of Mortgaged Properties
securing Loans that have outstanding principal balances of (or Mortgaged
Properties having allocated loan amounts of) $2,000,000 or less; and (ii) at
least once every calendar year in the case of all other such Mortgaged
Properties; provided, that the Master Servicer will not be required to perform
or cause to be performed an inspection on a Mortgaged Property if such Mortgaged
Property has been inspected by the Master Servicer or the Special Servicer in
the preceding six months. The Master Servicer and the Special Servicer shall
each promptly prepare or cause to be prepared and deliver to the Trustee, the
related Companion Loan Noteholder, if any, and each other a written report of
each such inspection performed by it that sets forth in detail the condition of
the Mortgaged Property and that specifies the existence of: (i) any sale,
transfer or abandonment of the Mortgaged Property of which the Master Servicer
or the Special Servicer, as applicable, is aware, (ii) any change in the
condition or value of the Mortgaged Property that the Master Servicer or the
Special Servicer, as applicable, in its reasonable, good faith judgment,
considers material, or (iii) any waste committed on the Mortgaged Property. The
Master Servicer and Special Servicer shall each forward copies of any such
inspection reports prepared by it to the Underwriters and the Controlling Class
Directing Holder upon request, subject to payment of a reasonable fee.
The Special Servicer, in the case of each Specially Serviced Loan
and each REO Loan, and the Master Servicer, in the case of each Performing
Serviced Loan, shall each, consistent with the Servicing Standard, use
reasonable efforts to obtain quarterly, annual and other periodic operating
statements and rent rolls with respect to each of the related Mortgaged
Properties and REO Properties. The Special Servicer shall, promptly following
receipt, deliver copies of the operating statements and rent rolls received or
obtained by it to the Master Servicer, and the Master Servicer shall promptly
deliver copies of the operating statements and rent rolls received or obtained
by it to the Trustee, the Special Servicer, any Controlling Class
Certificateholder or any related Companion Loan Noteholder, if any, in each case
upon request. The Special Servicer shall, promptly following receipt, deliver
copies of the materials received or obtained by it pursuant to the foregoing
sentence to the Master Servicer, and the Master Servicer shall promptly deliver
copies of all such materials received or obtained by it pursuant to the
foregoing sentence and this sentence to the Trustee, the Special Servicer, any
Controlling Class Certificateholders and, in the case of the Loan Pairs, to the
related Companion Loan Noteholders, in each case upon request.
Within 30 days after receipt by the Master Servicer of any annual
operating statements with respect to any Mortgaged Property or Administered REO
Property, the Master Servicer with respect to a Performing Loan and the Special
Servicer with respect to a Specially Serviced Loan shall prepare or update and
forward to the Trustee a CMSA NOI Adjustment Worksheet for such Mortgaged
Property or REO Property (with, upon request, the annual operating statements
attached thereto as an exhibit).
The Master Servicer with respect to a Performing Loan and the
Special Servicer with respect to a Specially Serviced Loan shall prepare and
maintain one CMSA Operating Statement Analysis Report for each Mortgaged
Property and Administered REO Property. The CMSA Operating Statement Analysis
Report for each such Mortgaged Property and REO Property is to be updated by the
Master Servicer or Special Servicer, as applicable, within 30 days after its
receipt of updated operating statements for a Mortgaged Property or REO
Property, as the case may be. The Master Servicer or Special Servicer, as
applicable, shall use the "Normalized" column from the CMSA NOI Adjustment
Worksheet for any such Mortgaged Property or REO Property, as the case may be,
to update and normalize the corresponding annual year-end information in the
CMSA Operating Statement Analysis Report and shall use any annual operating
statements and related data fields received with respect to any such Mortgaged
Property or REO Property, as the case may be, to prepare the CMSA NOI Adjustment
Worksheet for such property. Copies of CMSA Operating Statement Analysis Reports
and CMSA NOI Adjustment Worksheets are to be forwarded to the Trustee
automatically until such time as a Form 15 is filed with respect to the Trust
pursuant to Section 8.15(c), and are otherwise to be made available by the
Master Servicer to the Trustee, the Special Servicer, any Controlling Class
Certificateholder or any related Companion Loan Noteholder, if any, in each case
upon request.
(b) Not later than 2:00 p.m. (New York City time) on the second
Business Day prior to each Determination Date, the Special Servicer shall
deliver or cause to be delivered to the Master Servicer the following reports
with respect to the Specially Serviced Loans and any Administered REO
Properties, providing the required information as of the end of the preceding
calendar month: (i) a CMSA Property File; and (ii) a CMSA Comparative Financial
Status Report. Not later than 2:00 p.m. (New York City time) on the third
Business Day prior to each Distribution Date, the Special Servicer shall deliver
or cause to be delivered to the Master Servicer the following reports with
respect to the Specially Serviced Loans, any Administered REO Properties and, to
the extent that the subject information relates to when they were Specially
Serviced Loans, any Corrected Loans: (i) a CMSA Delinquent Loan Status Report;
(ii) a Loan Payoff Notification Report; (iii) a CMSA Historical Liquidation
Report; (iv) a CMSA Historical Loan Modification and Corrected Mortgage Loan
Report; and (v) a CMSA REO Status Report.
(c) Not later than 2:00 p.m. (New York City time) on the first
Business Day prior to each Distribution Date, the Master Servicer shall deliver
or cause to be delivered to the Trustee, the Rating Agencies, the Special
Servicer and, upon request, any Controlling Class Certificateholder or any
related Companion Loan Noteholder (but only as to the related Loan Pair), if
any: (i) the most recent CMSA Historical Loan Modification and Corrected
Mortgage Loan Report, CMSA Historical Liquidation Report and CMSA REO Status
Report received from the Special Servicer pursuant to Section 3.12(b); (ii) the
most recent CMSA Property File, CMSA Financial File, CMSA Loan Set-up File (if
modified), CMSA Delinquent Loan Status Report, CMSA Comparative Financial Status
Report and Loan Payoff Notification Report (in each case combining the reports
prepared by the Special Servicer and the Master Servicer); and (iii) a CMSA
Servicer Watch List with information that is current as of the related
Determination Date with respect to the Loans. The Master Servicer shall include
on one of such reports updated information as of the applicable Determination
Date regarding the amount of accrued and unpaid interest on Advances in
accordance with Section 3.11(g), 4.03(d) and/or 4.03A(d) such information to be
presented on a loan-by-loan basis.
If the Master Servicer determines, in its reasonable judgment, that
information regarding the Mortgage Loans and REO Properties (in addition to the
information otherwise required to be contained in the CMSA Investor Reporting
Package) should be disclosed to Certificateholders and Certificate Owners, then
it shall forward such information in the form of a Supplemental Report to the
Trustee in accordance with Section 4.02(a).
(d) The Special Servicer shall deliver to the Master Servicer the
reports set forth in Section 3.12(b) in an electronic format reasonably
acceptable to the Special Servicer and the Master Servicer, and the Master
Servicer shall deliver to the Trustee, the Special Servicer and, upon request,
any Controlling Class Certificateholder or the related Companion Loan
Noteholder, if any (but only as to the related Loan Pair), the reports set forth
in Section 3.12(c) in an electronic format reasonably acceptable to the Master
Servicer and the Trustee. The Master Servicer may, absent manifest error,
conclusively rely on the reports to be provided by the Special Servicer pursuant
to Section 3.12(b). The Trustee may, absent manifest error, conclusively rely on
the reports to be provided by the Master Servicer pursuant to Section 3.12(c) to
the extent that the underlying information is solely within the control of the
Master Servicer or the Special Servicer. In the case of information or reports
to be furnished by the Master Servicer to the Trustee pursuant to Section
3.12(c), to the extent that such information is based on reports to be provided
by the Special Servicer pursuant to Section 3.12(b) and/or that such reports are
to be prepared and delivered by the Special Servicer pursuant to Section
3.12(b), so long as the Master Servicer and the Special Servicer are not the
same Person or Affiliates, the Master Servicer shall have no obligation to
provide such information or reports until it has received such information or
reports from the Special Servicer, and the Master Servicer shall not be in
default hereunder due to a delay in providing the reports required by Section
3.12(c) caused by the Special Servicer's failure to timely provide any report
required under Section 3.12(b) of this Agreement.
(e) The preparation and maintenance by the Master Servicer and the
Special Servicer of all the reports specified in this Section 3.12, including
the calculations made therein, shall be done in accordance with CMSA standards
to the extent applicable thereto.
Section 3.12A. Delivery of Certain Reports to the Companion Loan
Noteholders.
(a) The Master Servicer shall promptly deliver to each Companion
Loan Noteholder: (i) copies of operating statements and rent rolls; (ii) upon
request, annual CMSA NOI Adjustment Worksheets (with annual operating statements
as exhibits); and (iii) annual CMSA Operating Statement Analysis Reports, in
each case prepared, received or obtained by it pursuant to Section 3.12 with
respect to the related Loan Pair Mortgaged Properties.
(b) If the Loans forming the Loan Pairs constitute Specially
Serviced Loans, or if the Loan Pair Mortgaged Properties have become REO
Properties, then each calendar month, not later than 2:00 p.m. (New York City
time) on the second Business Day prior to each Determination Date, the Special
Servicer shall deliver or cause to be delivered to the Master Servicer the
following reports with respect to the Loan Pairs and/or the Loan Pair Mortgaged
Properties, providing the required information as of the end of the preceding
calendar month: (i) a CMSA Property File (or similar report satisfactory to the
Master Servicer); and (ii) a CMSA Comparative Financial Status Report (or
similar report satisfactory to the Master Servicer). If the Loans forming the
Loan Pairs constitute Specially Serviced Loans, or if the Loan Pair Mortgaged
Properties have become REO Properties, then each calendar month, not later than
2:00 p.m. (New York City time) on the second Business Day prior to the Master
Servicer Remittance Date in such month, the Special Servicer shall deliver or
cause to be delivered to the Master Servicer such of the following reports as
may be relevant with respect to the Loan Pairs and/or the Loan Pair Mortgaged
Properties: (i) a CMSA Delinquent Loan Status Report; (ii) a Loan Payoff
Notification Report, (iii) a CMSA Historical Liquidation Report; (iv) a CMSA
Historical Loan Modification and Corrected Mortgage Loan Report; and (v) a CMSA
REO Status Report.
(c) Not later than 2:00 p.m. (New York City time) each Master
Servicer Remittance Date, the Master Servicer shall, with respect to the Loan
Pairs, prepare all Loan Pair Servicing Reports as may be relevant and that are
not otherwise required to be prepared by the Special Servicer pursuant to
Section 3.12A(b). The Master Servicer shall include on one of such reports
updated information as of the applicable Determination Date regarding the amount
of accrued and unpaid interest on Advances in accordance with Section 3.11(g),
4.03(d) and/or 4.03A(d), such information to be presented on a loan-by-loan
basis.
(d) The Special Servicer shall deliver to the Master Servicer the
reports set forth in Section 3.12A(b) in an electronic format reasonably
acceptable to the Special Servicer and the Master Servicer. The Master Servicer
may, absent manifest error, conclusively rely on the reports to be provided by
the Special Servicer pursuant to Section 3.12A(b). In the case of information or
reports to be furnished by the Master Servicer to the applicable Companion Loan
Noteholder pursuant to Section 3.12B(a), to the extent that such information is
based on reports to be provided by the Special Servicer pursuant to Section
3.12A(b) and/or that such reports are to be prepared and delivered by the
Special Servicer pursuant to Section 3.12A(b), so long as the Master Servicer
and the Special Servicer are not the same Person or Affiliates, the Master
Servicer shall have no obligation to provide such information or reports until
it has received such information or reports from the Special Servicer, and the
Master Servicer shall not be in default hereunder due to a delay in providing
the reports required by Section 3.12B(a) caused by the Special Servicer's
failure to timely provide any report required under Section 3.12A(b) of this
Agreement.
(e) The preparation and maintenance by the Master Servicer and the
Special Servicer of all the reports specified in this Section 3.12A, including
the calculations made therein, shall be done in accordance with CMSA standards,
to the extent applicable thereto.
Section 3.12B. Statements to the Companion Loan Noteholders.
(a) On each Master Servicer Remittance Date, the Master Servicer
shall forward to each Companion Loan Noteholder all Loan Pair Servicing Reports
prepared with respect to the related Loan Pair, pursuant to Section 3.12A,
during the calendar month in which such applicable Master Servicer Remittance
Date occurs.
(b) The Master Servicer shall only be obligated to deliver the
statements, reports and information contemplated by Section 3.12B(a) to the
extent it receives the necessary underlying information from the Special
Servicer and shall not be liable for its failure to deliver such statements,
reports and information on the prescribed due dates, to the extent caused by the
failure of the Special Servicer to deliver timely such underlying information.
Nothing herein shall obligate the Master Servicer or the Special Servicer to
violate any applicable law prohibiting disclosure of information with respect to
the related Mortgagor, and the failure of the Master Servicer or the Special
Servicer to disseminate information for such reason shall not be a breach
hereunder.
Absent manifest error of which it has actual knowledge, neither the
Master Servicer nor the Special Servicer shall be responsible for the accuracy
or completeness of any information supplied to it by a Mortgagor, the Mortgage
Loan Seller or third party that is included in any reports, statements,
materials or information prepared or provided by the Master Servicer or the
Special Servicer, as applicable, pursuant to this Agreement. Neither the Master
Servicer nor the Special Servicer shall have any obligation to verify the
accuracy or completeness of any information provided by a Mortgagor, the
Mortgage Loan Seller, a third party or each other.
Section 3.13 Annual Statement as to Compliance.
The Master Servicer shall deliver to the Trustee, the Rating
Agencies, the Depositor, the Underwriters, the Companion Loan Noteholders and
the Special Servicer shall deliver to the Trustee, the Rating Agencies and the
Depositor, on or before April 30 of each year, beginning in 2004 (or, as to any
such year, such earlier date as is contemplated by the last sentence of this
Section 3.13), an Officer's Certificate (the "Annual Performance Certification")
stating, as to the signer thereof, that (i) a review of the activities of the
Master Servicer or the Special Servicer, as the case may be, during the
preceding calendar year (or, in the case of the first such certification, during
the period from the Closing Date to December 31, 2003, inclusive) and, in
particular, 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 Master Servicer or the Special Servicer, as the case may be,
has fulfilled all of its material obligations under this Agreement in all
material respects throughout such preceding calendar year or portion thereof
(or, if there has been a default in the fulfillment of any such obligation,
specifying each such default known to such officer and the nature and status
thereof), and (iii) the Master Servicer or the Special Servicer, as the case may
be, has received no notice regarding the qualification, or challenging the
status, of either REMIC Pool as a REMIC or the Grantor Trust as a grantor trust,
from the IRS or any other governmental agency or body (or, if it has received
any such notice, specifying the details thereof). Notwithstanding the timing
provided for in the first sentence of this paragraph, if (as confirmed in
writing by the Depositor) the Depositor is required to file a Form 10-K with the
Commission in respect of the Trust covering any particular calendar year, then
the Annual Performance Certification to be delivered by each of the Master
Servicer and the Special Servicer during the following year, shall be delivered
on or before March 20 of such following year; and the Master Servicer and the
Special Servicer are hereby notified that the Depositor is required to file a
Form 10-K with the Commission in respect of the Trust covering calendar year
2003.
Section 3.14 Reports by Independent Public Accountants.
On or before April 30 of each year, beginning in 2004 (or, as to any
such year, such earlier date as is contemplated by the last sentence of this
paragraph), each of the Master Servicer and the Special Servicer at its expense
shall cause a firm of independent public accountants (which may also render
other services to the Master Servicer or the Special Servicer) that is a member
of the American Institute of Certified Public Accountants to furnish a statement
(the "Annual Accountants' Report") to the Trustee, the Rating Agencies, the
Depositor, the Underwriters, the Companion Loan Noteholders and each other, to
the effect that (i) such firm has obtained a letter of representation regarding
certain matters from the management of the Master Servicer or the Special
Servicer, as applicable, which includes an assertion that the Master Servicer or
the Special Servicer, as applicable, 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 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 representation is
fairly stated in all material respects, subject to such exceptions and other
qualifications that may be appropriate. In rendering its report such firm may
rely, as to 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 (within one year of such
report) on the basis of examinations conducted in accordance with the same
standards with respect to those sub-servicers. Notwithstanding the timing
provided for in the first sentence of this paragraph, if (as confirmed in
writing by the Depositor) the Depositor is required to file a Form 10-K with the
Commission in respect of the Trust covering any particular calendar year, then
the Annual Accountants' Report to be delivered on behalf of each of the Master
Servicer and the Special Servicer during the following year, shall be delivered
on or before March 20 of such following year; and the Master Servicer and the
Special Servicer are hereby notified that the Depositor is required to file a
Form 10-K with the Commission in respect of the Trust covering calendar year
2003.
The Master Servicer and the Special Servicer, to the extent
applicable, will reasonably cooperate with the Depositor in conforming any
reports delivered pursuant to this Section 3.14 to requirements imposed by the
Commission on the Depositor in connection with the Depositor's reporting
requirements in respect of the Trust Fund pursuant to the Exchange Act, provided
that the Master Servicer and Special Servicer shall each be entitled to charge
the Depositor for any reasonable additional costs and expenses incurred in
affording the Depositor such cooperation.
Section 3.15 Access to Certain Information.
The Master Servicer shall afford to the Trustee, the Underwriters,
the Rating Agencies, the Depositor, any Certificateholder, the Companion Loan
Noteholders and any Certificate Owner (identified as such to the reasonable
satisfaction of the Master Servicer), and to the OTS, the FDIC and any other
banking or insurance regulatory authority that may exercise authority over any
Certificateholder, Certificate Owner (identified as such to the reasonable
satisfaction of the Master Servicer) or Companion Loan Noteholder, and the
Special Servicer shall afford to the Trustee and to the OTS, the FDIC and any
other banking or insurance regulatory authority that may exercise authority over
any Certificateholder, Certificate Owner or Companion Loan Noteholder, access to
any records regarding the Serviced Loans and the servicing thereof within its
control (which access shall be limited, in the case of the Companion Loan
Noteholders or any regulatory authority seeking such access in respect of the
Companion Loan Noteholders, to records relating to the Companion Loans), except
to the extent it is prohibited from doing so by applicable law or contract or to
the extent such information is subject to a privilege under applicable law to be
asserted on behalf of the Certificateholders or the Companion Loan Noteholders.
Such access shall be afforded only upon reasonable prior written request and
during normal business hours at the offices of the Master Servicer or the
Special Servicer, as the case may be, designated by it.
In connection with providing or granting any information or access
pursuant to the prior paragraph to a Certificateholder, a Certificate Owner, the
Companion Loan Noteholders or any regulatory authority that may exercise
authority over a Certificateholder, a Certificate Owner or Companion Loan
Noteholder, the Master Servicer and the Special Servicer may each require
payment from such Certificateholder, a Certificate Owner or Companion Loan
Noteholder of a sum sufficient to cover the reasonable costs and expenses of
providing such information or access, including copy charges and reasonable fees
for employee time and for space; provided that no charge may be made if such
information or access was required to be given or made available under
applicable law. In connection with providing Certificateholders and Certificate
Owners access to the information described in the preceding paragraph, the
Master Servicer and the Special Servicer shall require (prior to affording such
access) a written confirmation executed by the requesting Person substantially
in such form as may be reasonably acceptable to the Master Servicer or the
Special Servicer, as the case may be, generally to the effect that such Person
is a Holder of Certificates or a beneficial holder of Book-Entry Certificates
and will keep such information confidential.
Upon the reasonable request of any Certificateholder, or any
Certificate Owner identified to the Master Servicer to the Master Servicer's
reasonable satisfaction, the Master Servicer may provide (or forward
electronically) (at the expense of such Certificateholder or Certificate Owner)
copies of any operating statements, rent rolls and financial statements obtained
by the Master Servicer or the Special Servicer; provided that, in connection
therewith, the Master Servicer shall require a written confirmation executed by
the requesting Person substantially in such form as may be reasonably acceptable
to the Master Servicer, generally to the effect that such Person is a Holder of
Certificates or a beneficial holder of Book-Entry Certificates and will keep
such information confidential.
No less often than on a monthly basis, upon reasonable prior notice
and during normal business hours, the Master Servicer shall, without charge,
make a knowledgeable Servicing Officer available to answer questions from the
Controlling Class Directing Holder or the related Companion Loan Noteholder, if
any, regarding the performance and servicing of the Mortgage Loans and/of REO
Properties for which the Master Servicer is responsible. Except as provided in
the following sentence, in connection with providing the Controlling Class
Directing Holder or the related Companion Loan Noteholder, as applicable, with
the information described in the preceding sentence, the Master Servicer shall
require (prior to providing such information for the first time to such
Controlling Class Directing Holder or Companion Loan Noteholder) a written
confirmation executed by the Controlling Class Directing Holder or Companion
Loan Noteholder, as applicable, in the form of Exhibit M attached hereto,
generally to the effect that such Person will keep any information received by
it from time to time pursuant to this Agreement confidential (other than with
respect to communications with such party). In the case of the initial
Controlling Class Directing Holder, upon its acquisition of the Class Q
Certificates, such entity shall be deemed to have agreed to keep all non-public
information received by it in such capacity from time to time pursuant to this
Agreement confidential, subject to applicable law.
Section 3.16 Title to REO Property; REO Accounts.
(a) If title to any Mortgaged Property is acquired, the deed or
certificate of sale shall be issued to the Trustee or its nominee on behalf of
the Certificateholders and, in the case of a Mortgaged Property securing a Loan
Pair, on behalf of the related Companion Loan Noteholder. If, pursuant to
Section 3.09(b), the Special Servicer formed or caused to be formed, at the
expense of the Trust, a single member limited liability company (of which the
Trust is the sole member) for the purpose of taking title to one or more REO
Properties pursuant to this Agreement, then (subject to the interests of any
affected Companion Loan Noteholder) the deed or certificate of sale with respect
to any such REO Property shall be issued to such single member limited liability
company. The limited liability company shall be a manager-managed limited
liability company, with the Special Servicer to serve as the initial manager to
manage the property of the limited liability company, including any applicable
REO Property, in accordance with the terms of this Agreement as if such property
was held directly in the name of the Trust or Trustee under this Agreement.
The Special Servicer, on behalf of the Trust Fund and any affected
Companion Loan Noteholder, shall sell any Administered REO Property by the end
of the third calendar year following the calendar year in which the Lower-Tier
REMIC acquires ownership of such REO Property for purposes of Section 860G(a)(8)
of the Code, unless the Special Servicer either (i) applies for and is granted
an extension of time (an "REO Extension") by the IRS to sell such REO Property
or (ii) obtains for the Trustee an Opinion of Counsel, addressed to the Trustee,
the Special Servicer and the Master Servicer, to the effect that the holding by
the Lower-Tier REMIC of such REO Property subsequent to the end of such third
succeeding year will not result in the imposition of taxes on "prohibited
transactions" (as defined in Section 860F of the Code) of either REMIC Pool or
cause either REMIC Pool to fail to qualify as a REMIC at any time that any
Certificates are outstanding. If the Special Servicer is granted the REO
Extension contemplated by clause (i) of the immediately preceding sentence or
obtains the Opinion of Counsel contemplated by clause (ii) of the immediately
preceding sentence, the Special Servicer shall sell the subject Administered REO
Property within such extended period as is permitted by such REO Extension or
such Opinion of Counsel, as the case may be. Any expense incurred by the Special
Servicer in connection with its obtaining the REO Extension contemplated by
clause (i) of the second preceding sentence or its obtaining the Opinion of
Counsel contemplated by clause (ii) of the second preceding sentence, or for the
creation of and the operating of a single member limited liability company,
shall be covered by, and reimbursable as, a Servicing Advance.
(b) The Special Servicer shall segregate and hold all funds
collected and received in connection with any Administered REO Property separate
and apart from its own funds and general assets. If an REO Acquisition shall
occur in respect of any Mortgaged Property (other than any Loan Pair Mortgaged
Property), the Special Servicer shall establish and maintain one or more
accounts (collectively, the "Pool REO Account"), held on behalf of the Trustee
in trust for the benefit of the Certificateholders, for the retention of
revenues and other proceeds derived from each REO Property (other than any Loan
Pair REO Properties). If such REO Acquisition occurs with respect to the Loan
Pair Mortgaged Properties, the Special Servicer shall establish an REO Account
solely with respect to each such property (each, a "Loan Pair REO Account"), to
be held for the benefit of the Certificateholders and the applicable Companion
Loan Noteholder. The Pool REO Account and each Loan Pair REO Account shall each
be an Eligible Account. The Special Servicer shall deposit, or cause to be
deposited, in the related REO Account, upon receipt, all REO Revenues, Insurance
Proceeds, Condemnation Proceeds and Liquidation Proceeds received in respect of
any Administered REO Property. Funds in an REO Account may be invested in
Permitted Investments in accordance with Section 3.06. The Special Servicer
shall be entitled to make withdrawals from an REO Account to pay itself, as
additional special servicing compensation in accordance with Section 3.11(d),
interest and investment income earned in respect of amounts held in such REO
Account as provided in Section 3.06(b) (but only to the extent of the Net
Investment Earnings with respect to such REO Account for any Collection Period).
The Special Servicer shall give notice to the Trustee and the Master Servicer of
the location of each REO Account, and shall give notice to the related Companion
Loan Noteholders of the location of any related Loan Pair REO Account, in each
case when first established and of the new location of any such REO Account
prior to any change thereof.
(c) The Special Servicer shall withdraw from the related REO Account
funds necessary for the proper operation, management, leasing, maintenance and
disposition of any Administered REO Property, but only to the extent of amounts
on deposit in the REO Account relating to such REO Property. On the Business Day
following each Determination Date, the Special Servicer shall withdraw from each
REO Account and deposit into the corresponding Custodial Account (or deliver to
the Master Servicer or such other Person as may be designated by the Master
Servicer for deposit into the corresponding Custodial Account) the aggregate of
all amounts received in respect of each REO Property during the Collection
Period ending on such Determination Date, net of any withdrawals made out of
such amounts pursuant to the preceding sentence; provided that the Special
Servicer may retain in an REO Account such portion of proceeds and collections
in respect of any related REO Property as may be necessary to maintain a reserve
of sufficient funds for the proper operation, management, leasing, maintenance
and disposition of such REO Property (including the creation of a reasonable
reserve for repairs, replacements, necessary capital replacements and other
related expenses), such reserve not to exceed an amount sufficient to cover such
items to be incurred during the following twelve-month period. For purposes of
the foregoing, the Pool REO Account and applicable Loan Pair REO Account
correspond to the Pool Custodial Account and the applicable Loan Pair Custodial
Account, respectively.
(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, each REO Account pursuant to Section 3.16(b) or (c).
The Special Servicer shall provide the Master Servicer any information with
respect to each REO Account as is reasonably requested by the Master Servicer.
Section 3.17 Management of REO Property.
(a) Prior to the acquisition of title to a Mortgaged Property, the
Special Servicer shall review the operation of such Mortgaged Property and
determine the nature of the income that would be derived from such property if
it were acquired by the Trust Fund. If the Special Servicer determines from such
review that:
(i) None of the income from Directly Operating such Mortgaged
Property would be subject to tax as "net income from foreclosure property"
within the meaning of the REMIC Provisions or would be subject to the tax
imposed on "prohibited transactions" under Section 860F of the Code
(either such tax referred to herein as an "REO Tax"), then such --------
Mortgaged Property may be Directly Operated by the Special Servicer as REO
Property (other than the performance of other actions that require an
Independent Contractor);
(ii) Directly Operating such Mortgaged Property as REO Property
could result in income from such property that would be subject to an REO
Tax, but that a lease of such property to another party to operate such
property, or the performance of some services by an Independent Contractor
with respect to such property, or another method of operating such
property would not result in income subject to an REO Tax, then the
Special Servicer may (provided, that in the good faith and reasonable
judgment of the Special Servicer, it is commercially feasible) acquire
such Mortgaged Property as REO Property and so lease or operate such REO
Property; or
(iii) Directly Operating such Mortgaged Property as REO Property
could result in income subject to an REO Tax and that no commercially
reasonable means exists to operate such property as REO Property without
the Trust Fund incurring or possibly incurring an REO Tax on income from
such property, the Special Servicer shall deliver to the Tax
Administrator, in writing, a proposed plan (the "Proposed Plan") to manage
such property as REO Property. Such plan shall include potential sources
of income, and, to the extent reasonably possible, estimates of the amount
of income from each such source. Upon request of the Special Servicer, the
Tax Administrator shall advise the Special Servicer of the Tax
Administrator's federal income tax reporting position with respect to the
various sources of income that the Trust Fund would derive under the
Proposed Plan. In addition, the Tax Administrator shall (to the maximum
extent possible) advise the Special Servicer of the estimated amount of
taxes that the Trust Fund would be required to pay with respect to each
such source of income. After receiving the information described in the
preceding sentence from the Tax Administrator, the Special Servicer shall
either (A) implement the Proposed Plan (after acquiring the respective
Mortgaged Property as REO Property), with any amendments required to be
made thereto as a result of the Tax Administrator's tax reporting position
or (B) manage and operate such property in a manner that would not result
in the imposition of an REO Tax on the income derived from such property.
The Special Servicer's decision as to how each Administered REO
Property, shall be managed and operated shall be based on the Servicing Standard
and, further, based on the good faith and reasonable judgment of the Special
Servicer as to which means would (to the extent commercially feasible) maximize
the net after-tax REO Revenues received by the Trust Fund with respect to such
property without materially and adversely affecting the Special Servicer's
ability to promptly sell the REO Property in accordance with this Agreement and,
to the extent consistent with the foregoing, in accordance with the Servicing
Standard. Neither the Special Servicer nor the Tax Administrator shall be liable
to the Certificateholders, the Trust Fund, the other parties hereto or each
other for errors in judgment made in good faith in the reasonable exercise of
their discretion while performing their respective duties under this Section
3.17(a). In connection with performing their respective duties under this
Section 3.17(a), both the Special Servicer and the Tax Administrator may consult
with counsel and tax accountants, the reasonable cost of which consultation
shall be covered by, and be reimbursable as, a Servicing Advance to be made by
the Special Servicer.
(b) If title to any Administered REO Property, is acquired, the
Special Servicer shall manage, conserve, protect and operate such REO Property
for the benefit of the Certificateholders (or in the case of a Loan Pair REO
Property, in the best interest of the Certificateholders and the applicable
Companion Loan Noteholders (as a collective whole)) solely for the purpose of
its prompt disposition and sale in a manner that does not: (i) cause such REO
Property to fail to qualify as "foreclosure property" within the meaning of
Section 860G(a)(8) of the Code for purposes of Section 860D(a) of the Code; or
(ii) except as contemplated by Section 3.17(a), either result in the receipt by
either REMIC Pool 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 or an
Adverse Grantor Trust Event. Subject to the foregoing, however, the Special
Servicer shall have full power and authority to do any and all things in
connection therewith as are consistent with the Servicing Standard and,
consistent therewith, shall withdraw from the applicable REO Account, to the
extent of amounts on deposit therein with respect to such REO Property, funds
necessary for the proper operation, management, maintenance and disposition of
such REO Property, including:
(i) all insurance premiums due and payable in respect of such REO
Property;
(ii) all real estate taxes and assessments in respect of such REO
Property that may result in the imposition of a lien thereon;
(iii) any ground rents in respect of such REO Property; and
(iv) all costs and expenses necessary to maintain, lease, dispose
of, sell, protect, manage, operate and restore such REO Property.
To the extent that amounts on deposit in the applicable REO Account
in respect of any Administered REO Property are insufficient for the purposes
set forth in the preceding sentence with respect to such REO Property, the
Master Servicer shall, at the direction of the Special Servicer, make Servicing
Advances in such amounts as are necessary for such purposes unless the Master
Servicer determines, in accordance with the Servicing Standard, that such
payment would be a Nonrecoverable Advance; provided, however, that the Master
Servicer may make any such Servicing Advance without regard to recoverability if
it is a necessary fee or expense incurred in connection with the defense or
prosecution of legal proceedings.
(c) Without limiting the generality of the foregoing, the Special
Servicer shall not, with respect to any REO Property:
(i) enter into, renew or extend any New Lease with respect to any
Administered REO Property, if the New Lease, by its terms would 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 Administered 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 the related REO Acquisition;
unless, in any such case, the Special Servicer has obtained an Opinion of
Counsel (the cost of which shall be paid by the Master Servicer, at the
direction of the Special Servicer, as a Servicing Advance) to the effect that
such action would not cause such REO Property to fail to qualify as "foreclosure
property" within the meaning of Section 860G(a)(8) of the Code for purposes of
Section 860D(a) of the Code at any time that it is held by the Lower-Tier REMIC,
in which case the Special Servicer may take such actions as are specified in
such Opinion of Counsel.
(d) The Special Servicer may, and if so required to prevent the
Administered REO Property from failing to qualify as "foreclosure property"
within the meaning of Section 860G(a)(8) of the Code, shall contract with any
Independent Contractor for the operation and management of any Administered REO
Property, provided that:
(i) the terms and conditions of any such contract shall not be
inconsistent herewith and shall reflect an agreement reached at arm's
length;
(ii) the fees of such Independent Contractor (which shall be
expenses of the Trust Fund, or with respect to any Loan Pair REO Property,
which fees shall be netted out of collections on such Loan Pair REO
Property prior to their being remitted to the Special Servicer, and to the
extent such collections are insufficient to cover such fees, shall be an
expense of the Trust Fund) shall be reasonable and customary in
consideration of the nature and locality of such REO Property;
(iii) except as permitted under Section 3.17(a), any such contract
shall require, or shall be administered to require, that the Independent
Contractor, in a timely manner, (A) pay out of related REO Revenues all
costs and expenses incurred in connection with the operation and
management of such REO Property, including those listed in Section 3.17(b)
above, and (B) except to the extent that such revenues are derived from
any services rendered by the Independent Contractor to tenants of such REO
Property that are not customarily furnished or rendered in connection with
the rental of real property (within the meaning of Treasury Regulations
Section 1.856-4(b)(5)), remit all related revenues collected (net of its
fees and such costs and expenses) to the Special Servicer upon receipt;
(iv) none of the provisions of this Section 3.17(d) relating to any
such contract or to actions taken through any such Independent Contractor
shall be deemed to relieve the Special Servicer of any of its duties and
obligations hereunder with respect to the operation and management of such
REO Property; and
(v) the Special Servicer shall be obligated with respect thereto to
the same extent as if it alone were performing all duties and obligations
in connection with the operation and management of such REO Property.
The Special Servicer shall be entitled to enter into any agreement
with any Independent Contractor performing services for it related to its duties
and obligations under Section 3.16 and this Section 3.17 for indemnification of
the Special Servicer by any such Independent Contractor, and nothing in this
Agreement shall be deemed to limit or modify such indemnification. No agreement
entered into pursuant to this Section 3.17(d) shall be deemed a Sub-Servicing
Agreement for purposes of Section 3.22.
Section 3.18 Sale of Mortgage Loans and REO Properties.
(a) The Master Servicer, the Special Servicer or the Trustee may
sell or purchase, or permit the sale or purchase of, a Mortgage Loan or REO
Property only (i) on the terms and subject to the conditions set forth in this
Section 3.18, (ii) as otherwise expressly provided in or contemplated by
Sections 2.03 and 9.01 of this Agreement, (iii) in the case of the Split
Mortgage Loans, as set forth in the related Loan Pair Co-Lender Agreement or
Section 3.18(p), as applicable, and (iv) in the case of a Mortgage Loan with a
related mezzanine loan, in connection with a Loan default as set forth in the
related intercreditor agreement.
(b) The Holder of Certificates evidencing the greatest percentage
interest in the Controlling Class, the Special Servicer and the Mortgage Loan
Seller (but in the case of a Loan Pair, only to the extent that the Mortgage
Loan Seller is not also the related Companion Loan Noteholder or its affiliate)
(in such capacity, together with any assignee (which may not be, in the case of
a Loan Pair, the related Companion Loan Noteholder as assignee of the Mortgage
Loan Seller), but in any event excluding the Trustee, the "Purchase Option
Holder") shall, in that order, have the right, at its option (the "Purchase
Option"), to purchase a Mortgage Loan from the Trust at a price equal to the
Option Purchase Price (as defined below) upon receipt of notice from the Special
Servicer that such Mortgage Loan has become a Specially Serviced Mortgage Loan
as to which a monetary event of default has occurred or is reasonably
foreseeable. The Purchase Option is exercisable, subject to Section 2.03, from
that date until terminated pursuant to clause (f) below, and during that period
the Purchase Option shall be exercisable in any month only during the period
from the 10th calendar day of such month through the 25th calendar day,
inclusive, of such month. The Trustee on behalf of the Trust shall be obligated
to sell such Mortgage Loan upon the exercise of the Purchase Option (whether
exercised by the original holder thereof or by a holder that acquired such
Purchase Option by assignment), but shall have no authority to sell such
Mortgage Loan other than in connection with the exercise of a Purchase Option
(or other circumstances described in clause (a) above). Any Purchase Option
Holder that exercises the Purchase Option shall be required to purchase the
applicable Mortgage Loan on the 4th Business Day after such exercise. If any
Purchase Option Holder desires to waive its right to exercise the Purchase
Option, then it shall so notify the Trustee in writing, and the Trustee shall
promptly notify the next party eligible to hold the Purchase Option set forth
above of its rights hereunder. Any of the parties eligible to hold the Purchase
Option set forth above may at any time notify the Trustee in writing of its
desire to exercise the Purchase Option, and the Trustee shall promptly notify
the current Purchase Option Holder (and the other parties eligible to hold the
Purchase Option) of such party's desire to exercise the Purchase Option. If the
Purchase Option Holder, within 3 Business Days of its receipt of that notice,
neither (i) exercises the Purchase Option nor (ii) surrenders its right to
exercise the Purchase Option, then the Purchase Option Holder's right to
exercise the Purchase Option shall lapse, and the Trustee shall promptly notify
the next party eligible to hold the Purchase Option (and the other parties
eligible to hold the Purchase Option) of its rights thereunder.
(c) The "Option Purchase Price" shall be an amount equal to the fair
value of the related Mortgage Loan, as determined by the Special Servicer. Prior
to the Special Servicer's determination of fair value referred to above, the
fair value of a Mortgage Loan shall be deemed to be an amount equal to the
Purchase Price plus any Prepayment Premium or Yield Maintenance Charge, if any,
then payable upon the prepayment of such Mortgage Loan and the reasonable fees
and expenses of the Special Servicer, the Master Servicer and the Trustee
incurred in connection with the sale of the Mortgage Loan. The Special Servicer
shall determine the fair value of a Mortgage Loan on the latest of (A) as soon
as reasonably practical upon the Mortgage Loan becoming 60 days delinquent or
upon the Balloon Payment becoming delinquent, (B) the date that is 75 days after
the Special Servicer's receipt of the Servicing File, relating to such Mortgage
Loan, and (C) within 30 days of receipt of a current appraisal meeting the
criteria for a Required Appraisal of the related Mortgaged Property, and the
Special Servicer shall promptly notify the Purchase Option Holder (and the
Trustee and each of the other parties set forth above that could become the
Purchase Option Holder) of the Option Purchase Price, and, if the Mortgage Loan
is part of a Loan Pair, that such Mortgage Loan is subject to the terms of the
related Loan Pair Co-Lender Agreement. The Special Servicer is required to
recalculate the fair value of the Mortgage Loan if there has been a material
change in circumstances or the Special Servicer has received new information,
either of which has a material effect on the fair value, provided that the
Special Servicer shall be required to recalculate the fair value of the Mortgage
Loan if the time between the date of last determination of the fair value of the
Mortgage Loan and the date of the exercise of the Purchase Option has exceeded
60 days. Upon any recalculation, the Special Servicer shall be required to
promptly notify in writing each Purchase Option Holder (and the Trustee and each
of the other parties set forth above that could become the Purchase Option
Holder) of the revised Option Purchase Price. Any such recalculation of the fair
value of the Mortgage Loan shall be deemed to renew the Purchase Option in its
original priority at the recalculated price with respect to any party as to
which the Purchase Option had previously expired or been waived, unless the
Purchase Option has previously been exercised by a Purchase Option Holder at a
higher Option Purchase Price. In determining fair value, the Special Servicer
shall take into account, among other factors, the results of any appraisal or
updated appraisal meeting the criteria for a Required Appraisal that it or the
Master Servicer may have obtained in accordance with this Agreement within the
prior twelve months (or if no such appraisal has been obtained within the prior
12 months, then the Special Servicer shall obtain a current appraisal meeting
the criteria for a Required Appraisal of the related Mortgage Property from an
Independent Appraiser at the expense of the Trust); any views on fair value
expressed by Independent investors in mortgage loans comparable to the Mortgage
Loan (provided that the Special Servicer shall not be obligated to solicit such
views); the period and amount of any delinquency on the affected Mortgage Loan;
whether to the Special Servicer's actual knowledge, the Mortgage Loan is in
default to avoid a prepayment restriction; the physical condition of the related
Mortgaged Property; the state of the local economy; the expected recoveries from
the Mortgage Loan if the Special Servicer were to pursue a workout or
foreclosure strategy instead of the Purchase Option being exercised; and the
Trust's obligation to dispose of any REO Property as soon as practicable
consistent with the objective of maximizing proceeds for all Certificateholders,
but in no event later than the three-year period (or such extended period)
specified in Section 3.16(a).
(d) Any Purchase Option relating to a Mortgage Loan shall be
assignable to a third party (other than another Purchase Option Holder) by the
Purchase Option Holder at its discretion at any time after its receipt of notice
from the Special Servicer that a Purchase Option is exercisable with respect to
a specified Mortgage Loan, and upon such assignment such third party shall have
all of the rights granted to the Purchase Option Holder hereunder in respect of
the Purchase Option; provided that, the Mortgage Loan Seller will not be
permitted to assign its Purchase Option to a related Companion Loan Noteholder
in the case of a Mortgage Loan relating to a Loan Pair. Such assignment shall
only be effective upon written notice (together with a copy of the executed
assignment and assumption agreement) being delivered to the Trustee, the Master
Servicer and the Special Servicer, and none of such parties shall be obligated
to recognize any entity as a Purchase Option Holder absent such notice.
(e) If (i) the Special Servicer, (ii) the Holder of Certificates
representing the greatest percentage interest in the Controlling Class (but only
if such Holder is also the Special Servicer), (iii) an Affiliate of either of
the parties identified in clauses (i) and (ii) or (iv) an entity which has
purchased for monetary value the Purchase Option from the Special Servicer or
its affiliate, elects to exercise the Purchase Option, the Trustee shall be
required to determine whether the Option Purchase Price constitutes a fair price
for the Mortgage Loan. Upon request of the Special Servicer to make such a
determination, the Trustee will do so within a reasonable period of time (but in
no event more than 15 Business Days). In doing so, the Trustee may rely on the
opinion of an Independent Appraiser or other expert in real estate matters
selected by the Trustee with reasonable care retained by the Trustee at the
expense of the party exercising the Purchase Option. If the Trustee were to
determine that the Option Purchase Price does not constitute a fair price, then
the Special Servicer shall redetermine the fair value taking into account the
objections of the Trustee.
(f) The Purchase Option shall terminate, and shall not be
exercisable as set forth in clause (a) above (or if exercised, but the purchase
of the related Mortgage Loan has not yet occurred, shall terminate and be of no
further force or effect) if the Mortgage Loan to which it relates is no longer
delinquent as set forth above because the Mortgage Loan has (i) become a
Corrected Loan, (ii) been subject to a workout arrangement, (iii) been
foreclosed upon or otherwise resolved (including by a full or discounted
pay-off), (iv) been purchased by the Mortgage Loan Seller pursuant to Section
2.03, (v) in the case of Split Mortgage Loans (other than the Oakmonte Apartment
Homes Whole Loan), been purchased by the holder of the related Companion Loan
pursuant to the related Co-Lender Agreement, (vi) in the case of the Oakmonte
Apartment Homes Whole Loan, been purchased by the Class Y Certificateholders
pursuant to Section 3.18(p), (vii) in the case of a Mortgage Loan with a
mezzanine loan, been purchased by the related mezzanine lender pursuant to the
related intercreditor agreement or (viii) the Special Servicer has accepted a
bid at the Option Purchase Price.
(g) Unless and until a Purchase Option Holder exercises a Purchase
Option, the Special Servicer shall continue to service and administer the
related Mortgage Loan in accordance with the Servicing Standard and this
Agreement, and shall pursue such other resolution or recovery strategies,
including workout or foreclosure, as is consistent with this Agreement and the
Servicing Standard.
(h) Notwithstanding anything to the contrary herein, the holders of
the related Companion Loan (and in the case of the 000 Xxxxx Xxxxxx Xxxxx A/B
Loan, any holder or holders of more than 50% of the certificate principal
balance of the 2002-C1 Class SWD-B Certificates) shall be entitled to purchase
the related Split Mortgage Loans in accordance with the terms and conditions set
forth in the related Loan Pair Co-Lender Agreement (or, in the case of the
Oakmonte Senior Portion, pursuant to Section 3.18(p)) (including after it has
been purchased out of the Trust Fund pursuant to this Section 3.18 within the
time period specified in the related Loan Pair Co-Lender Agreement or Section
3.18(p), as applicable). The Master Servicer or the Special Servicer, as
applicable, shall determine the price to be paid in accordance with the terms of
the related Loan Pair Co-Lender Agreement or Section 3.18(p), as applicable, in
connection with any such purchase and shall provide such notices to the
appropriate Companion Loan Noteholders (and in the case of the 000 Xxxxx Xxxxxx
Xxxxx A/B Loan, the holders of the 2002-C1 Class SWD-B Certificates) as are
required by the related Loan Pair Co-Lender Agreement or Section 3.18(p), as
applicable, in connection with each such holders' purchase rights.
(i) Any purchase of a Specially Serviced Mortgage Loan that is
purchased pursuant to this Section 3.18 will remain subject to the cure and
purchase rights of, in each case if applicable, the related Companion Loan
Noteholders (and in the case of the 000 Xxxxx Xxxxxx Xxxxx A/B Loan, any holder
or holders of more than 50% of the certificate principal balance of the 2002-C1
Class SWD-B Certificates) as set forth in the related Loan Pair Co-Lender
Agreement or Section 3.18(p), as applicable, and any holder of a related
mezzanine loan in connection with a Loan default as set forth in the related
intercreditor agreement.
(j) The Special Servicer shall solicit bids for each Administered
REO Property in a manner consistent with the Servicing Standard. Subject to
Section 6.11, the Special Servicer shall accept the first (and, if multiple bids
are received contemporaneously or subsequently, the highest) cash bid received
from any Person that constitutes a fair price for such REO Property. If the
Special Servicer reasonably believes that it will be unable to realize a fair
price for any Administered REO Property within the time constraints imposed by
Section 3.16(a), then (subject to Section 6.11) the Special Servicer shall
dispose of such REO Property upon such terms and conditions as the Special
Servicer shall deem necessary and desirable to maximize the recovery thereon
under the circumstances and, in connection therewith, shall accept the highest
outstanding cash bid, regardless of from whom received.
(k) The Special Servicer shall give the Trustee and the Depositor
prior written notice of its intention to sell any Administered REO Property
pursuant to this Section 3.18.
(l) No Interested Person shall be obligated to submit a bid to
purchase any Administered REO Property, and notwithstanding anything to the
contrary herein, neither the Trustee, in its individual capacity, nor any of its
Affiliates may bid for or purchase any Administered REO Property pursuant
hereto.
(m) Whether any cash bid constitutes a fair price for any
Administered REO Property for purposes of this Section 3.18, shall be determined
by the Special Servicer or, if such cash bid is from an Interested Person, by
the Trustee. In determining whether any bid received from an Interested Person
represents a fair price for any Administered REO Property, the Trustee shall be
supplied with and shall be entitled to rely on the most recent appraisal in the
related Servicing File conducted in accordance with this Agreement within the
preceding 12-month period (or, in the absence of any such appraisal or if there
has been a material change at the subject property since any such appraisal, on
a new appraisal to be obtained by the Special Servicer (the cost of which shall
be covered by, and be reimbursable as, a Servicing Advance)). The appraiser
conducting any such new appraisal shall be an Independent Appraiser selected by
the Special Servicer if neither the Special Servicer nor any Affiliate thereof
is bidding with respect to an Administered REO Property and selected by the
Trustee if either the Special Servicer or any Affiliate thereof is so bidding.
Where any Interested Person is among those bidding with respect to an
Administered REO Property, the Special Servicer shall require that all bids be
submitted to it (and, if the Special Servicer or any Affiliate thereof is
bidding, to the Trustee) in writing and be accompanied by a refundable deposit
of cash in an amount equal to 5% of the bid amount. In determining whether any
bid from a Person other than an Interested Person constitutes a fair price for
any Administered REO Property, the Special Servicer shall take into account the
results of any appraisal or updated appraisal that it or the Master Servicer may
have obtained in accordance with this Agreement within the prior twelve months,
and any Independent Appraiser shall be instructed to take into account, as
applicable, among other factors, the occupancy level and physical condition of
the subject REO Property, the state of the local economy and the obligation to
dispose of the subject REO Property within the time period specified in Section
3.16(a). The Purchase Price for any Administered REO Property shall in all cases
be deemed a fair price. Notwithstanding the other provisions of this Section
3.18, no cash bid from the Special Servicer or any Affiliate thereof shall
constitute a fair price for any Administered REO Property unless such bid is the
highest cash bid received and at least two independent bids (not including the
bid of the Special Servicer or any Affiliate) have been received. In the event
the bid of the Special Servicer or any Affiliate thereof is the only bid
received or is the higher of only two bids received, then additional bids shall
be solicited. If an additional bid or bids, as the case may be, are received and
the original bid of the Special Servicer or any Affiliate thereof is the highest
of all cash bids received, then the bid of the Special Servicer or such
Affiliate shall be accepted, provided that the Trustee has otherwise determined,
as provided above in this Section 3.18(m), that such bid constitutes a fair
price for any Administered REO Property. Any bid by the Special Servicer shall
be unconditional; and, if accepted, the subject Administered REO Property shall
be transferred to the Special Servicer without recourse, representation or
warranty other than customary representations as to title given in connection
with the sale of a real property.
(n) Subject to Sections 3.18(a) through 3.18(m) above, and further
subject to Section 6.11, the Special Servicer shall act on behalf of the Trustee
in negotiating with independent third parties seeking to purchase an
Administered REO Property and taking any other action necessary or appropriate
in connection with the sale of any Specially Serviced Mortgage Loan or
Administered REO Property pursuant to this Section 3.18, and the collection of
all amounts payable in connection therewith. In connection therewith, the
Special Servicer may charge prospective bidders for any Administered REO
Property, and may retain, fees that approximate the Special Servicer's actual
costs in the preparation and delivery of information pertaining to, or
evaluating bids for, such Administered REO Property without obligation to
deposit such amounts into the Pool Custodial Account. Any sale of a Specially
Serviced Mortgage Loan or an Administered REO Property pursuant to this Section
3.18 shall be final and without recourse to the Trustee or the Trust, and if
such sale is consummated in accordance with the terms of this Agreement, neither
the Special Servicer nor the Trustee shall have any liability to any
Certificateholder with respect to the purchase price therefor accepted by the
Special Servicer or the Trustee.
(o) Any sale of a Specially Serviced Mortgage Loan or an
Administered REO Property pursuant to this Section 3.18 shall be for cash only
and shall be on a servicing released basis.
(p) In the event that (i) any payment of principal or interest on
the Oakmonte Apartment Homes Whole Loan becomes ninety (90) or more days
delinquent, (ii) such Loan has been accelerated, (iii) the Stated Principal
Balance of such Loan is not paid at maturity, (iv) the related Mortgagor files a
petition for bankruptcy or (v) such Loan shall become a Specially Serviced Loan,
then upon notice from the Master Servicer (if such Loan is then a Performing
Serviced Loan) or the Special Servicer (if such Loan is then a Specially
Serviced Loan) (an "Oakmonte Repurchase Option Notice") of such occurrence, the
Holder or Holders of a majority interest in the Class Y Certificates shall have
the right, prior to any other party, by written notice to the Trustee, Master
Servicer and the Special Servicer (a "Class Y Holder Repurchase Notice"), given
within eighty-five (85) days of delivery to the Class Y Certificateholders of
the Repurchase Option Notice, to purchase the Oakmonte Apartment Homes Whole
Loan with the payment of the Oakmonte Defaulted Mortgage Loan Purchase Price and
the surrender of all of the Class Y Certificates then outstanding and, upon the
delivery of written notice thereof to the Trustee, Master Servicer and the
Special Servicer, the Trustee, on behalf of the Trust shall sell (and the Class
Y Certificateholders shall purchase) the Oakmonte Apartment Homes Whole Loan at
the Oakmonte Defaulted Mortgage Loan Purchase Price and with the surrender of
all outstanding Class Y Certificates, on a date (the "Oakmonte Repurchase Date")
not less than five (5) Business Days nor more than ten (10) Business Days after
the date of the Class Y Holder Repurchase Notice (but in any event no more than
ninety (90) days of delivery to the Class Y Certificateholders of the Oakmonte
Repurchase Option Notice), as shall be established by the Trustee. On the
Oakmonte Repurchase Date, the Class Y Certificateholders shall also pay all
out-of-pocket costs and expenses of the Trustee, Master Servicer and the Special
Servicer in connection with such purchase. The Oakmonte Defaulted Mortgage Loan
Purchase Price shall be calculated by the Master Servicer (if such Loan is then
a Performing Serviced Loan) or the Special Servicer (if such Loan is then a
Specially Serviced Loan, provided that, the Master Servicer shall consult and
cooperate with the Special Servicer with respect to such calculation as
reasonably requested by the Special Servicer) three (3) business days prior to
the Oakmonte Repurchase Date and shall, absent manifest error, be binding upon
the Trust and the Class Y Certificateholders.
Section 3.19 Additional Obligations of the Master Servicer;
Obligations to Notify Ground Lessors; the Special Servicer's Right to Request
the Master Servicer to Make Servicing Advances.
(a) The Master Servicer shall deliver to the Trustee for deposit in
the Distribution Account on each Master Servicer Remittance Date, without any
right of reimbursement therefor, an amount equal to the lesser of (i) the
aggregate amount of all Prepayment Interest Shortfalls, if any, incurred in
connection with Principal Prepayments received during the most recently ended
Collection Period with respect to Performing Serviced Mortgage Loans in the
Mortgage Pool and (ii) the aggregate of all Master Servicing Fees received by
the Master Servicer during such Collection Period with respect to the entire
Mortgage Pool (but only to the extent of that portion thereof calculated at a
rate of 0.02% per annum with respect to each and every Serviced Mortgage Loan
and each and every REO Mortgage Loan that was previously a Serviced Mortgage
Loan); provided, however, that if any Prepayment Interest Shortfall occurs as a
result of the Master Servicer's allowing the Mortgagor to deviate from the terms
of the related loan documents regarding principal prepayments, the Master
Servicer shall be obligated to pay an amount equal to the entire Prepayment
Interest Shortfall with respect to the subject Serviced Mortgage Loan without
any limitation of the kind set forth in clause (ii) above.
(b) The Master Servicer shall, as to each Serviced Loan which is
secured by the interest of the related Mortgagor under a Ground Lease, even if
the corresponding fee interest is encumbered, promptly (and in any event within
60 days) following the Closing Date, notify the related ground lessor of the
transfer of such Serviced Loan to the Trust Fund pursuant to this Agreement and
inform such ground lessor that any notices of default under the related Ground
Lease should thereafter be forwarded to the Master Servicer.
(c) The Master Servicer shall, as to each Mortgage Loan which is
secured by the interest of the related Mortgagor in a hospitality property, not
later than the later of (i) 30 days following the Master Servicer's receipt of
the subject franchise agreement and (ii) the expiration of the period that may
be required for such notice pursuant to the terms of the applicable franchise
documents, if any, notify the related hospitality franchisor of the transfer of
such Mortgage Loan to the Trust Fund pursuant to this Agreement and inform such
hospitality franchisor that any notices of default under the related franchise
agreement should thereafter be forwarded to the Master Servicer (and also to the
Special Servicer if such Mortgage Loan becomes a Specially Serviced Mortgage
Loan).
(d) Notwithstanding anything to the contrary contained in this
Agreement, if a Servicing Advance is required to be made with respect to a
Specially Serviced Mortgage Loan or an REO Property under this Agreement, the
Special Servicer shall request that the Master Servicer make such Servicing
Advance, such request to be made, in writing, at least five (5) Business Days
(or, in an emergency situation or on an urgent basis, two (2) Business Days,
provided that the written request sets forth the nature of the emergency or the
basis of the urgency) in advance of the date on which such Servicing Advance is
required to be made hereunder and to be accompanied by such information and
documentation regarding the subject Servicing Advance as the Master Servicer may
reasonably request. The Master Servicer shall have the obligation to make any
such Servicing Advance that it is so requested by the Special Servicer to make,
within five (5) Business Days (or, in an emergency situation or on an urgent
basis, two (2) Business Days) of the Master Servicer's receipt of such request.
If the request is timely and properly made, the Special Servicer shall be
relieved of any obligations with respect to a Servicing Advance that it so
requests the Master Servicer to make (regardless of whether or not the Master
Servicer shall make such Servicing Advance). The Master Servicer shall be
entitled to reimbursement for any Servicing Advance made by it at the direction
of the Special Servicer, together with interest thereon in accordance with
Sections 3.05(a), 3.05A and 3.11(g), as applicable, at the same time, in the
same manner and to the same extent as the Master Servicer is entitled with
respect to any other Servicing Advances made thereby.
Notwithstanding the foregoing provisions of this Section 3.19(c),
the Master Servicer shall not be required to make at the direction of the
Special Servicer, any Servicing Advance if the Master Servicer determines in its
reasonable, good faith judgment that such Servicing Advance, although not
characterized by the Special Servicer as a Nonrecoverable Servicing Advance, is
in fact a Nonrecoverable Servicing Advance. The Master Servicer shall notify the
Special Servicer in writing of such determination, which shall be made pursuant
to Section 3.11(h). Any request by the Special Servicer that the Master Servicer
make a Servicing Advance shall be deemed to be a determination by the Special
Servicer that such requested Servicing Advance is not a Nonrecoverable Servicing
Advance, and the Master Servicer, the Trustee and the Fiscal Agent shall be
entitled to conclusively rely on such determination. Upon a determination that
any Servicing Advance previously made with respect to a Specially Serviced Loan
or Administered REO Property is a Nonrecoverable Servicing Advance, the Special
Servicer shall report to the Master Servicer the Special Servicer's
determination. The Master Servicer shall be entitled to conclusively rely on
such a determination.
Section 3.20 Modifications, Waivers, Amendments and Consents;
Defeasance.
(a) Subject to Sections 3.20(b) through 3.20(f) below, and further
subject to Section 6.11, the Special Servicer (or, under the limited
circumstances set forth in Section 3.20(c), the Master Servicer) may, on behalf
of the Trustee and, in the case of the Companion Loans, any Companion Loan
Noteholder, agree to any modification, extension, waiver or amendment of any
term of any Serviced Loan and respond to various Mortgagor requests for consent
on the part of the mortgagee (including the lease reviews and lease consents
related thereto), without the consent of the Trustee, any Certificateholder, any
Companion Loan Noteholder, the Master Servicer (in the case of any such action
taken by the Special Servicer) or, except as expressly set forth below, the
Special Servicer (in the case of any such action taken by the Master Servicer).
(b) All modifications, extensions, waivers or amendments of any
Serviced Loan, including the lease reviews and lease consents related thereto,
shall be in writing and shall be considered and effected in a manner consistent
with the Servicing Standard.
(c) In the case of any Performing Serviced Loan, and subject to the
rights of the Special Servicer set forth below, the Master Servicer shall be
responsible for responding to any request by a Mortgagor for the consent or
approval of the mortgagee with respect to a modification, extension, waiver or
amendment of any term thereof, provided that such consent or approval or such
modification, extension, waiver or amendment would not (except as permitted by
Sections 3.02(a), 3.03(d), 3.07 and 3.08(a) and the next paragraph of this
Section 3.20(c)) affect the amount or timing of any of the payment terms of such
Loan (including payment terms related to late payment charges), result in the
release of the related Mortgagor from any material term thereunder, waive any
rights thereunder with respect to any guarantor thereof, relate to the release,
addition or substitution of any material collateral for such Loan or relate to
any waiver of or granting of consent under a "due-on-sale" or
"due-on-encumbrance" clause. With respect to any action proposed to be taken by
the Master Servicer under this Section 3.20(c) where the thresholds in clauses
(i) through (v) of the next sentence are exceeded, or which involves the
situations set forth in the proviso to the previous sentence, the Special
Servicer only may take such action. To the extent consistent with the foregoing,
but subject to Section 3.20(f), the Master Servicer shall also be responsible
for the following with respect to the Performing Serviced Loans:
(i) Approving any waiver affecting the timing of receipt of
financial statements from any Mortgagor, provided that such financial
statements are delivered no less than quarterly and within 60 days of the
end of the calendar quarter to which such financial statements relate;
(ii) Approving routine leasing activity with respect to leases for
less than the lesser of (A) 50,000 square feet and (B) 20% of the related
Mortgaged Property;
(iii) Approving a transfer of equity in a Mortgagor from one current
equity holder to another, provided that such transfer of equity does not
(A) affect (if applicable) the status of such Mortgagor or such equity
holder as a special purpose, bankruptcy-remote entity, (B) result in a
change of control of such Mortgagor, (C) cause the transferee to hold more
than 49% of the equity in such Mortgagor, (D) relate to a Serviced
Mortgage Loan that represents 2% or more of the then aggregate principal
balance of the Mortgage Pool or (E) relate to the Loan Pairs;
(iv) Approving annual budgets for the related Mortgaged Property,
provided that no such budget (A) provides for the payment of operating
expenses in an amount equal to more than 110% of the amounts budgeted
therefor for the prior year or (B) provides for the payment of any
material expenses to any affiliate of the Mortgagor (other than with
respect to the payment of the management fee to any property manager if
such management fee is no more than the management fee in effect on the
Cut-off Date); and
(v) Approving a change of the property manager at the request of the
related Mortgagor, provided that (A) the successor property manager is not
affiliated with the Mortgagor and is a nationally or regionally recognized
manager of similar properties, (B) the related Serviced Mortgage Loan does
not represent 2% or more of the then aggregate principal balance of the
Mortgage Pool and (C) the Loan Pair Mortgaged Properties are not involved.
Subject to Section 6.11 and the Servicing Standard, and further
subject to the second sentence of the next paragraph and the second paragraph of
Section 3.20(e), the Master Servicer may, if the related Mortgagor fails to make
any Balloon Payment on a Performing Serviced Loan or if such a default is
reasonably foreseeable, extend the maturity date of such Performing Serviced
Loan for up to one year; provided that the Master Servicer may only approve two
such extensions.
Except as permitted by Section 3.02(a), Section 3.03(d), Section
3.07, Section 3.08(a) and this Section 3.20(c), the Master Servicer may not
agree to waive, modify or amend any term of any Loan or respond to any Mortgagor
requests for mortgagee consent. Furthermore, the Master Servicer may not agree
to any modification, extension, waiver or amendment of any term of any Mortgage
Loan that would cause an Adverse REMIC Event with respect to either REMIC Pool
or an Adverse Grantor Trust Event with respect to the Grantor Trust.
(d) Except as provided in Section 3.02(a), Section 3.07, Section
3.08, Section 3.20(e) or the next paragraph, the Special Servicer, on behalf of
the Trustee and, in the case of a Companion Loan, the related Companion Loan
Noteholders, shall not agree or consent to any modification, extension, waiver
or amendment of any term of any Serviced Loan that would:
(i) affect the amount or timing of any scheduled payment of
principal, interest or other amount (including Prepayment Premiums or
Yield Maintenance Charges, but excluding Default Interest and other
amounts payable as additional servicing compensation) payable thereunder;
(ii) affect the obligation of the related Mortgagor to pay a
Prepayment Premium or Yield Maintenance Charge or effect the waiver of any
prepayment restriction thereunder or permit a Principal Prepayment during
any period in which the related Mortgage Note prohibits Principal
Prepayments;
(iii) except as expressly contemplated by the related Mortgage or
pursuant to Section 3.09(d), result in a release of the lien of the
Mortgage on any material portion of the related Mortgaged Property without
a corresponding Principal Prepayment in an amount not less than the fair
market value (as determined by an appraisal by an Independent Appraiser
delivered to the Special Servicer at the expense of the related Mortgagor
and upon which the Special Servicer may conclusively rely) of the property
to be released; or
(iv) in the reasonable, good faith judgment of the Special Servicer,
otherwise materially impair the security for such Loan or reduce the
likelihood of timely payment of amounts due thereon.
Notwithstanding anything to the contrary herein and subject to the
Servicing Standard, and further subject to clause (C) of the first paragraph of,
and the entire second paragraph of, Section 3.20(e) and Section 6.11 (only with
respect to a Tier 1 Loan Pair or a Tier 2 Loan Pair and the related Directing
Holder selected by the related Companion Loan Noteholder) following any
extensions of the maturity date of a Performing Serviced Loan that the Master
Servicer is permitted to approve pursuant to the second paragraph of Section
3.20(c), the Special Servicer (and not the Master Servicer) may extend the
maturity date of such Performing Serviced Loan for up to one year (subject to a
limit of three such one-year extensions); provided that the related Mortgagor
has failed to make any Balloon Payment on such Performing Serviced Loan or such
default in payment is reasonably foreseeable; provided, further, that that it
shall not be a Servicing Transfer Event with respect to any such extension of a
Performing Mortgage Loan (if at such time no other circumstance identified in
the definition of "Specially Serviced Mortgage Loan" exists that would cause
such Mortgage Loan to be characterized as a Specially Serviced Mortgage Loan).
In connection with an extension of the maturity date of a Performing Serviced
Loan approved by the Special Servicer in accordance with this subsection (d),
the Special Servicer shall process all requests and related documentation and
shall be entitled to retain 100% of any modification fee or extension fee that
is actually paid by the related Mortgagor. The Special Servicer shall promptly
notify the Master Servicer of any extension granted by the Special Servicer in
accordance with this paragraph.
(e) Notwithstanding Section 3.20(d), but subject to Section 6.11 and
the second and third paragraphs of this Section 3.20(e), the Special Servicer
may (i) reduce the amounts owing under any Specially Serviced Loan by forgiving
principal, accrued interest or any Prepayment Premium or Yield Maintenance
Charge, (ii) reduce the amount of the Monthly Payment on any Specially Serviced
Loan, including by way of a reduction in the related Mortgage Rate, (iii)
forbear in the enforcement of any right granted under any Mortgage Note,
Mortgage or other loan document relating to a Specially Serviced Loan, (iv)
accept a Principal Prepayment on any Specially Serviced Loan during any Lockout
Period or (v) extend the maturity of any Specially Serviced Loan; provided that
(A) the related Mortgagor is in monetary default or material non-monetary
default with respect to such Specially Serviced Loan or, in the reasonable, good
faith judgment of the Special Servicer, such default is reasonably foreseeable,
(B) in the reasonable, good faith judgment of the Special Servicer, such
modification, extension, waiver or amendment would increase the recovery on such
Specially Serviced Loan to Certificateholders (as a collective whole) or, if a
Loan Pair is involved, would increase the recovery on such Loan Pair to
Certificateholders and related Companion Loan Noteholders (as a collective
whole), on a present value basis (the relevant discounting of anticipated
collections that will be distributable to the Certificateholders (or, in the
case of the Loan Pairs, to Certificateholders and related Companion Loan
Noteholders), to be performed at the related Mortgage Rate (or, in the case of a
Loan Pair, at the weighted average of the Mortgage Rates for such Loan Pair) in
each case, and (C) such modification, extension, waiver or amendment would not
cause an Adverse REMIC Event in respect of either REMIC Pool or an Adverse
Grantor Trust Event with respect to the Grantor Trust; and provided, further,
that (i) any modification, extension, waiver or amendment of the payment terms
of a Loan Pair shall be structured so as to be reasonably consistent with the
allocation and payment priorities set forth in the related loan documents and
the related Loan Pair Co-Lender Agreement, such that neither the Trust as holder
of the related Mortgage Loan nor the related Companion Loan Noteholders shall
gain a priority over the other such Holder with respect to any payment, which
priority is not, as of the date of the related Loan Pair Co-Lender Agreement,
reflected in the related loan documents and such Loan Pair Co-Lender Agreement,
and (ii) to the extent consistent with the Servicing Standard (taking into
account the extent to which the Companion Loans are junior to the Split Mortgage
Loans), (A) no waiver, reduction or deferral of any particular amounts due on a
Split Mortgage Loan shall be effected prior to the waiver, reduction or deferral
of the entire corresponding item in respect of the related Companion Loan
(provided, however, that in the case of the Windsor Capital Portfolio A/B Loan,
any such waiver, reduction or deferral shall be applied first, to the Windsor
Capital Portfolio Junior Companion Loan, and then, pro rata, to the Windsor
Capital Portfolio Senior Loans), and (B) no reduction of the Mortgage Rate of a
Split Mortgage Loan shall be effected prior to the reduction of the Mortgage
Rate of the related Companion Loans (provided, however, that in the case of the
Windsor Capital Portfolio A/B Loan, no reduction of the Mortgage Rate of the
Windsor Capital Portfolio Senior Loans shall be effected prior to the reduction
of the Mortgage Rate of the Windsor Capital Portfolio Junior Companion Loan, and
any reduction of the Mortgage Rate of the Windsor Capital Portfolio Senior Loans
shall be made pro rata (based on their respective Mortgage Rates) among the
Windsor Capital Portfolio Senior Loans), to the fullest extent possible.
In no event shall the Master Servicer or the Special Servicer: (i)
extend the maturity date of a Serviced Loan beyond the date that is two years
prior to the Rated Final Distribution Date; (ii) extend the maturity date of any
Serviced Loan for more than seven years beyond its Stated Maturity Date; or
(iii) if the Serviced Loan is secured solely or primarily by a Mortgage on the
leasehold interest under a Ground Lease (but not the related fee interest),
extend the maturity date of such Serviced Loan beyond the date which is 20 years
(or, to the extent consistent with the Servicing Standard, giving due
consideration to the remaining term of the Ground Lease, 10 years) prior to the
expiration of the term of such Ground Lease.
The determination of the Special Servicer contemplated by clause (B)
of the first proviso to the first paragraph of this Section 3.20(e) shall be
evidenced by an Officer's Certificate to such effect delivered to the Trustee
and the Master Servicer (and, in the case of a Loan Pair, the affected Companion
Loan Noteholders) and describing in reasonable detail the basis for the Special
Servicer's determination. The Special Servicer shall attach to such Officer's
Certificate any information including but not limited to income and expense
statements, rent rolls, property inspection reports and appraisals that support
such determination.
(f) Notwithstanding anything to the contrary in this Agreement, none
of the Trustee, the Master Servicer or the Special Servicer, as applicable,
shall give any consent, approval or direction regarding the termination of the
related property manager or the designation of any replacement property manager
or, if such Mortgaged Property is hospitality property, give any consent,
approval or direction regarding the termination of the franchise or the
designation of a new franchise, with respect to any Mortgaged Property that
secures either (A) the Companion Loans or (B) a Serviced Mortgage Loan that has
an unpaid principal balance that is at least equal to the lesser of $20,000,000
and 2% of the then aggregate principal balance of the Mortgage Pool, unless: (1)
the mortgagee is not given discretion under the terms of the related Loan; or
(2) it has received prior written confirmation from each Rating Agency that such
action will not result in an Adverse Rating Event.
Any party hereto seeking Rating Agency confirmation with respect to
the matters described above shall deliver, with respect to the matters that are
the subject thereof, copies of all relevant supporting documentation (to the
extent in the possession of such party) to such Rating Agency.
(g) Any payment of interest that is deferred pursuant to any
modification, extension, waiver or amendment permitted hereunder, shall not, for
purposes hereof, including calculating monthly distributions to
Certificateholders, be added to the unpaid principal balance or Stated Principal
Balance of the related Loan, notwithstanding that the terms of such
modification, extension, waiver or amendment so permit. The foregoing shall in
no way limit the Special Servicer's ability to charge and collect from the
Mortgagor costs otherwise required to be paid or collectible under the terms of
the related Mortgage Note.
(h) The Special Servicer or Master Servicer may, as a condition to
granting any request by a Mortgagor for consent, modification, extension, waiver
or indulgence or any other matter or thing, the granting of which is within its
discretion pursuant to the terms of the instruments evidencing or securing the
related Loan and, further, by the terms of this Agreement and applicable law,
require that such Mortgagor pay to it (i) as additional servicing compensation,
a reasonable or customary fee for the additional services performed in
connection with such request, and (ii) any related costs and expenses incurred
by it. Any such fee that is due or partially due to the Master Servicer and the
Special Servicer may not be waived or reduced by either such party without the
consent of the other party. In no event shall the Special Servicer or Master
Servicer be entitled to payment for such fees or expenses unless such payment is
collected from the related Mortgagor.
(i) The Special Servicer, with respect to a Specially Serviced Loan
and with respect to a Performing Serviced Loan as to which the Special Servicer
solely has approved, documented, processed and closed the subject modification,
extension, waiver or amendment, and the Master Servicer, with respect to any
other Serviced Loan, shall each notify the other, the Trustee and, where a
Companion Loan is affected, the related Companion Loan Noteholder, in writing,
of any modification, extension, waiver or amendment of any term of any Loan
(including fees charged the Mortgagor) and the date thereof, and shall deliver
to the Trustee or any related Custodian for deposit in the related Mortgage File
(with a copy to be delivered to or retained by, as applicable, the Master
Servicer), an executed counterpart of the agreement relating to such
modification, extension, waiver or amendment promptly following execution and
delivery thereof, to be followed by an original recorded counterpart promptly
following the recordation (and receipt) thereof; provided that the Master
Servicer shall notify, in writing, any related Sub-Servicers of any
modification, extension, waiver or amendment of any term of any Mortgage Loan
and the date thereof.
(j) To the extent that either the Master Servicer or Special
Servicer waives any Default Charge in respect of any Serviced Loan, whether
pursuant to Section 3.02(a) or this Section 3.20, the respective amounts of
additional servicing compensation payable to the Master Servicer and the Special
Servicer as Net Default Charges out of such Default Charges shall be reduced
proportionately based upon the respective amounts that would have been payable
thereto as Net Default Charges out of such Default Charges if such waiver had
not been granted.
(k) If, with respect to any Serviced Loan under which the lender can
require defeasance in lieu of prepayment, the Master Servicer shall receive a
notice from the related Mortgagor that it intends to prepay such Loan in
accordance with the terms thereof, then, except as set forth below, the Master
Servicer shall, subject to the next paragraph and the related loan documents,
(i) promptly respond to such notice in a manner which would require that the
Mortgagor pledge Defeasance Collateral in lieu of such prepayment pursuant to
the terms of the related Mortgage Note, (ii) notify each Rating Agency, the
Trustee, the Underwriters and the Special Servicer of its request to the
Mortgagor to defease such Loan and (iii) upon the written confirmation from each
Rating Agency (which confirmation shall not be required from (A) S&P in the case
of a Serviced Mortgage Loan with an unpaid principal balance less than or equal
to $20,000,000 or that constitutes less than 5% of the aggregate unpaid
principal balance of the Mortgage Pool (whichever is less), or in the case of a
Serviced Mortgage Loan that is not then one of the ten largest (measured by
unpaid principal balance) Mortgage Loans in the Mortgage Pool, provided the
Master Servicer delivers to S&P a certification in the form attached hereto as
Exhibit L (a "Defeasance Certificate"), or (B) Xxxxx'x in the case of any
Serviced Mortgage Loan that is not then one of the ten largest (measured by
unpaid principal balance) Mortgage Loans in the Mortgage Pool or that is not
then one of the ten largest groups (measured by aggregate unpaid principal
balance) of Mortgage Loans with related Mortgagors, provided the Master Servicer
delivers to Xxxxx'x a Defeasance Certificate; provided that, in the case of (A)
or (B) above, such written confirmation shall not be required from S&P and/or
Xxxxx'x (provided that the Master Servicer delivers a Defeasance Certificate to
the applicable Rating Agency), as applicable, in the event the subject Mortgage
Loan complies with the then current applicable guidelines set forth by such
Rating Agency, or the unpaid principal balance of such Mortgage Loan, the
percentage such Mortgage Loan constitutes of the Mortgage Pool or the relative
size of such Mortgage Loan with respect to the Mortgage Pool, as applicable,
does not exceed the current applicable threshold for review as set forth by such
Rating Agency) that the acceptance of a pledge of the Defeasance Collateral in
lieu of a full prepayment will not result in an Adverse Rating Event, take such
further action as provided in such Mortgage Note to effectuate such defeasance,
including the purchase and perfection of the Defeasance Collateral on behalf of
the Trustee (as mortgagee of record on behalf of the Certificateholders and, in
the case of the Companion Loans, the related Companion Loan Noteholders).
Notwithstanding the foregoing, but subject to the related loan
documents, the Master Servicer shall not permit a pledge of Defeasance
Collateral under a Defeasance Loan (i) if such defeasance would occur within two
years of the Startup Day, (ii) if the defeasance collateral shall not be
Government Securities; (iii) if all costs to be incurred in connection with such
defeasance (including Rating Agency fees, accountants' fees and costs incurred
in connection with any required opinions of counsel) would not be paid by the
related Mortgagor, (iv) unless the Master Servicer receives an Opinion of
Counsel that requiring such a defeasance would not cause an Adverse REMIC Event,
or (v) unless such confirmation is not required pursuant to the first paragraph
of this Section 3.20(k), either Rating Agency does not confirm in writing to the
Master Servicer that the acceptance of a pledge of the Defeasance Collateral in
lieu of a full prepayment will not result in an Adverse Rating Event.
All expenses related to the defeasance of a Defeasance Loan shall be
charged to the related Mortgagor or other responsible party.
Section 3.21 Transfer of Servicing Between Master Servicer and
Special Servicer; Record Keeping.
(a) Upon determining that a Servicing Transfer Event has occurred
with respect to any Loan that had otherwise been a Performing Serviced Loan, and
if the Master Servicer is not also the Special Servicer, the Master Servicer
shall immediately give notice thereof to the Special Servicer and with respect
to any Loan Pair to the related Companion Loan Holder, and shall deliver a copy
of the related Servicing File, to the Special Servicer and shall use reasonable
efforts to provide the Special Servicer with all information, documents (or
copies thereof) and records (including records stored electronically on computer
tapes, magnetic discs and the like) relating to such Loan, either in the Master
Servicer's or any of its directors', officers', employees', affiliates' or
agents' possession or control or otherwise available to the Master Servicer
without undue burden or expense, and reasonably requested by the Special
Servicer to enable it to assume its functions hereunder with respect thereto
without acting through a Sub-Servicer. The Master Servicer shall use reasonable
efforts to comply with the preceding sentence within five Business Days of the
occurrence of each related Servicing Transfer Event; provided, however, that if
the information, documents and records requested by the Special Servicer are not
contained in the Servicing File, the Master Servicer shall have such period of
time as reasonably necessary to make such delivery. The Special Servicer may
conclusively rely on the Master Servicer's determination that a Servicing
Transfer Event has occurred giving rise to a Serviced Loan's becoming a
Specially Serviced Loan. The Special Servicer shall not be liable or in default
hereunder for any reasonable act or failure to act because of or arising out of
the Master Servicer's failure to deliver information, documents or records with
respect to any Specially Serviced Loan in accordance with the requirements
hereof.
Upon determining that a Specially Serviced Loan has become a
Corrected Loan, and if the Master Servicer is not also the Special Servicer, the
Special Servicer shall immediately give notice thereof, and shall within five
Business Days of such occurrence return the related Servicing File, together
with any and all new information, documents and records relating to the subject
Loan that were not part of the Servicing File when it was delivered to the
Special Servicer, to the Master Servicer (or such other Person as may be
directed by the Master Servicer) and upon giving such notice, and returning such
Servicing File, to the Master Servicer (or such other Person as may be directed
by the Master Servicer), the Special Servicer's obligation to service such Loan,
and the Special Servicer's right to receive the Special Servicing Fee with
respect to such Loan shall terminate, and the obligations of the Master Servicer
to service and administer such Loan shall resume.
Notwithstanding anything herein to the contrary, in connection with
the transfer to the Special Servicer of the servicing of a Cross-Collateralized
Mortgage Loan as a result of a Servicing Transfer Event or the re-assumption of
servicing responsibilities by the Master Servicer with respect to any such
Mortgage Loan upon its becoming a Corrected Loan, the Master Servicer and the
Special Servicer shall each transfer to the other, as and when applicable, the
servicing of all other Cross-Collateralized Mortgage Loans constituting part of
the same Cross-Collateralized Group; provided that no Cross-Collateralized
Mortgage Loan may become a Corrected Loan at anytime that a continuing Servicing
Transfer Event exists with respect to another Cross-Collateralized Mortgage Loan
in the same Cross-Collateralized Group.
(b) In servicing any Specially Serviced Loans, the Special Servicer shall
provide to the Custodian originals of newly executed documents included within
the definition of "Mortgage File" for inclusion in the related Mortgage File
(with a copy of each such original to the Master Servicer), and shall provide to
the Master Servicer copies of any additional related Loan information, including
correspondence with the related Mortgagor.
Section 3.22 Sub-Servicing Agreements.
(a) The Master Servicer and the Special Servicer (with the consent
of the Controlling Class Directing Holder) may enter into Sub-Servicing
Agreements to provide for the performance by third parties of any or all of
their respective obligations hereunder, provided that in each case, the
Sub-Servicing Agreement: (i) is consistent with this Agreement in all material
respects, requires the Sub-Servicer to comply with all of the applicable
conditions of this Agreement and, with the exception of Sections 7.01(a)(x),
(xi) and (xii), provides for events of default with respect to the Sub-Servicer
substantially the same as those set forth in Section 7.01 (modified as necessary
to apply to the Sub-Servicer's obligations under the Sub-Servicing Agreement);
(ii) provides that if the Master Servicer or the Special Servicer, as the case
may be, shall for any reason no longer act in such capacity hereunder (including
by reason of an Event of Default), the Trustee or its designee may thereupon
assume all of the rights and, except to the extent they arose prior to the date
of assumption, obligations of the Master Servicer or the Special Servicer, as
the case may be, under such agreement or may terminate such sub-servicing
agreement without cause and without payment of any penalty or termination fee
(provided, however, that those Sub-Servicing Agreements in effect as of the
Closing Date (or, if being negotiated as of the Closing Date, in effect within
90 days thereafter) may only be terminated by the Trustee or its designee as
contemplated by Section 3.22(d) hereof and in such additional manner as is
provided in such Sub-Servicing Agreement); (iii) provides that the Trustee, for
the benefit of the Certificateholders and, in the case of a Sub-Servicing
Agreement relating to a Loan Pair, the related Companion Loan Noteholders, shall
each be a third party beneficiary under such agreement, but that (except to the
extent the Trustee or its designee assumes the obligations of the Master
Servicer or the Special Servicer, as the case may be, thereunder as contemplated
by the immediately preceding clause (ii)) none of the Trustee, the Trust, any
successor Master Servicer, the Special Servicer or any Companion Loan
Noteholder, as the case may be, or any Certificateholder shall have any duties
under such agreement or any liabilities arising therefrom; (iv) permits any
purchaser of a Serviced Mortgage Loan pursuant to this Agreement to terminate
such agreement with respect to such purchased Mortgage Loan at its option and
without penalty; (v) does not permit the Sub-Servicer to enter into or consent
to any modification, extension, waiver or amendment or otherwise take any action
on behalf of the Master Servicer or the Special Servicer contemplated by Section
3.08, Section 3.09 and Section 3.20 hereof without the consent of the Master
Servicer or Special Servicer, as the case may be; and (vi) does not permit the
Sub-Servicer any direct rights of indemnification that may be satisfied out of
assets of the Trust Fund. In addition, each Sub-Servicing Agreement entered into
by the Master Servicer (including any with an effective date on or before the
Closing Date) shall provide that such agreement shall, with respect to any
Serviced Loan serviced thereunder, terminate at the time such Loan becomes a
Specially Serviced Loan (or, alternatively, be subject to the Special Servicer's
rights to service such Loan for so long as such Loan continues to be a Specially
Serviced Loan), and each Sub-Servicing Agreement entered into by the Special
Servicer shall relate only to Specially Serviced Loans and shall terminate with
respect to any such Loan which ceases to be a Specially Serviced Loan. The
Master Servicer and the Special Servicer each shall deliver to the Trustee and
each other copies of all Sub-Servicing Agreements (and, to each of the Companion
Loan Noteholders, copies of any Sub-Servicing Agreement in respect of the
Companion Loans), as well as any amendments thereto and modifications thereof,
entered into by it promptly upon its execution and delivery of such documents.
References in this Agreement to actions taken or to be taken by the Master
Servicer or the Special Servicer include actions taken or to be taken by a
Sub-Servicer on behalf of the Master Servicer or the Special Servicer, as the
case may be; and, in connection therewith, all amounts advanced by any
Sub-Servicer to satisfy the obligations of the Master Servicer hereunder to make
P&I Advances or Servicing Advances shall be deemed to have been advanced by the
Master Servicer out of its own funds and, accordingly, such P&I Advances or
Servicing Advances shall be recoverable by such Sub-Servicer in the same manner
and out of the same funds as if such Sub-Servicer were the Master Servicer. For
so long as they are outstanding, Advances shall accrue interest in accordance
with Sections 3.11(g), 4.03(d) and 4.03A(d), such interest to be allocable
between the Master Servicer and such Sub-Servicer as they may agree. For
purposes of this Agreement, the Master Servicer and the Special Servicer each
shall be deemed to have received any payment when a Sub-Servicer retained by it
receives such payment. The Master Servicer and the Special Servicer each shall
notify the other, the Trustee, the Depositor, the Controlling Class
Certificateholders and, if a Loan Pair is affected, the related Companion Loan
Noteholders, in writing promptly of the appointment by it of any Sub-Servicer.
(b) Each Sub-Servicer (i) 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, and (ii)
except for any Sub-Servicer that is servicing any of the Mortgage Loans on the
Closing Date, shall be an approved conventional seller/servicer of mortgage
loans for FHLMC or Xxxxxx Mae or a HUD-Approved Servicer.
(c) The Master Servicer and the Special Servicer, for the benefit of
the Trustee and the Certificateholders and, in the case of the Companion Loans,
also for the benefit of the related Companion Loan Noteholders, shall (at no
expense to the Trustee, the Certificateholders, the Companion Loan Noteholders
or the Trust Fund) monitor the performance and enforce the obligations of their
respective Sub-Servicers under the related Sub-Servicing Agreements. Such
enforcement, including the legal prosecution of claims, termination of
Sub-Servicing Agreements in accordance with their respective terms and the
pursuit of other appropriate remedies, shall be in such form and carried out to
such an extent and at such time as the Master Servicer or the Special Servicer,
as applicable, in its good faith reasonable judgment, would require were it the
owner of the subject Serviced Loans.
(d) In the event of the resignation, removal or other termination of
the Master Servicer or any successor Master Servicer hereunder for any reason,
the Trustee or other Person succeeding such resigning, removed or terminated
party as Master Servicer, shall elect, with respect to any Sub-Servicing
Agreement in effect as of the Closing Date (or, if being negotiated as of the
Closing Date, in effect within 90 days thereafter) that still exists at the time
of such termination: (i) to assume the rights and obligations of the Master
Servicer under such Sub-Servicing Agreement and continue the sub-servicing
arrangements thereunder on the same terms (including the obligation to pay the
same sub-servicing fee); (ii) to enter into a new Sub-Servicing Agreement with
such Sub-Servicer on such terms as the Trustee or other successor Master
Servicer and such Sub-Servicer shall mutually agree (it being understood that
such Sub-Servicer is under no obligation to accept any such new Sub-Servicing
Agreement or to enter into or continue negotiations with the Trustee or other
successor Master Servicer), provided that neither the Trustee nor any successor
Master Servicer shall enter into a new Sub-Servicing Agreement with a
Sub-Servicer that was a party to a Sub-Servicing Agreement as of the Closing
Date, if such new Sub-Servicing Agreement amends, alters or fails to restate any
rights of any Underwriter or the Mortgage Loan Seller under the existing
Sub-Servicing Agreement with respect to the termination of the Sub-Servicer and
the appointment of a successor thereto or any rights of any Underwriter or the
Mortgage Loan Seller as a third party beneficiary under such Sub-Servicing
Agreement, unless the successor Master Servicer has obtained the prior written
consent to the terms of such new Sub-Servicing Agreement from such Underwriter
or the Mortgage Loan Seller, as the case may be; or (iii) to terminate the
Sub-Servicing Agreement if (but only if) an Event of Default (as defined in such
Sub-Servicing Agreement) has occurred and is continuing, without paying any
sub-servicer termination fee, and in any additional manner provided for in such
Sub-Servicing Agreement.
The Sub-Servicers as to which Sub-Servicing Agreements are in effect
or being negotiated as of the Closing Date are listed on Exhibit K hereto.
(e) Notwithstanding any Sub-Servicing Agreement, the Master Servicer
and the Special Servicer shall remain obligated and liable to the Trustee, the
Certificateholders and the Companion Loan Noteholders for the performance of
their respective obligations and duties under this Agreement in accordance with
the provisions hereof to the same extent and under the same terms and conditions
as if each alone were servicing and administering the Serviced Loans and/or
Administered REO Properties for which it is responsible.
Section 3.23 Representations and Warranties of the Master Servicer.
(a) The Master Servicer, in such capacity, hereby represents,
warrants and covenants to the other parties hereto and for the benefit of the
Certificateholders and the Companion Loan Noteholders, as of the Closing Date,
that:
(i) The Master Servicer is a national banking association, duly
organized under the laws of the United States, and the Master Servicer is
in compliance with the laws of each state in which any Mortgaged Property
is located to the extent necessary to perform its obligations under this
Agreement.
(ii) The execution and delivery of this Agreement by the Master
Servicer, and the performance and compliance with the terms of this
Agreement by the Master Servicer, will not violate the Master Servicer's
organizational documents or constitute a default (or an event which, with
notice or lapse of time, or both, would constitute a default) under, or
result in the breach of, any material agreement or other material
instrument to which it is a party or which is applicable to it or any of
its assets.
(iii) The Master Servicer has the full power and authority to enter
into and consummate all transactions contemplated by this Agreement, has
duly authorized the execution, delivery and performance of this Agreement,
and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a valid, legal
and binding obligation of the Master Servicer, enforceable against the
Master Servicer in accordance with the terms hereof, subject to (A)
applicable bankruptcy, receivership, insolvency, reorganization,
moratorium and other laws affecting the enforcement of creditors'
(including bank creditors') rights generally, and (B) general principles
of equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law.
(v) The Master Servicer is not in violation of, and its execution
and delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or
demand of any federal, state or local governmental or regulatory
authority, which violation, in the Master Servicer's good faith and
reasonable judgment, is likely to affect materially and adversely either
the ability of the Master Servicer to perform its obligations under this
Agreement or the financial condition of the Master Servicer.
(vi) No litigation is pending or, to the best of the Master
Servicer's knowledge, threatened, against the Master Servicer, the outcome
of which, in the Master Servicer's good faith and reasonable judgment,
could reasonably be expected to prohibit the Master Servicer from entering
into this Agreement or materially and adversely affect the ability of the
Master Servicer to perform its obligations under this Agreement.
(vii) Any consent, approval, authorization or order of any court or
governmental agency or body required under federal or state law for the
execution, delivery and performance by the Master Servicer of or
compliance by the Master Servicer with this Agreement or the consummation
of the transactions contemplated by this Agreement has been obtained and
is effective except where the lack of consent, approval, authorization or
order would not have a material adverse effect on the performance by the
Master Servicer under this Agreement.
(viii) The Master Servicer possesses all insurance required pursuant
to Section 3.07(c) of this Agreement.
(ix) The Master Servicer has reviewed all Sub-Servicing Agreements
in effect as of the Closing Date and will review all Sub-Servicing
Agreements entered into by it after the Closing Date.
(b) The representations and warranties of the Master Servicer set
forth in Section 3.23(a) shall survive the execution and delivery of this
Agreement and shall inure to the benefit of the Persons for whose benefit they
were made for so long as the Trust Fund remains in existence. Upon discovery by
any party hereto of any breach of any of the foregoing representations and
warranties, the party discovering such breach shall give prompt written notice
thereof to the other parties hereto.
(c) Any successor Master Servicer shall be deemed to have made, as
of the date of its succession, each of the representations and warranties set
forth in Section 3.23(a), subject to such appropriate modifications to the
representation and warranty set forth in Section 3.23(a)(i) to accurately
reflect such successor's jurisdiction of organization and whether it is a
corporation, partnership, bank, association or other type of organization.
Section 3.24 Representations and Warranties of the Special Servicer.
(a) The Special Servicer, in such capacity, hereby represents,
warrants and covenants to the other parties hereto and for the benefit of the
Certificateholders and the Companion Loan Noteholders, as of the Closing Date,
that:
(i) The Special Servicer is a corporation validly existing and in
good standing under the laws of the State of California, 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, will not violate the Special Servicer's
organizational documents or constitute a default (or an event which, with
notice or lapse of time, or both, would constitute a default) under, or
result in the breach of, any material agreement or other material
instrument to which it is a party or which is applicable to it or any of
its assets.
(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 each of the other parties hereto, constitutes a valid, legal
and binding obligation of the Special Servicer, enforceable against the
Special Servicer in accordance with the terms hereof, subject to (A)
applicable bankruptcy, insolvency, reorganization, moratorium and other
laws affecting the enforcement of creditors' rights generally, and (B)
general principles of equity, regardless of whether such enforcement is
considered in a proceeding in equity or at law.
(v) The Special Servicer is not in violation of, and its execution
and delivery of this Agreement and its performance and compliance with the
terms of this Agreement will not constitute a violation of, any law, any
order or decree of any court or arbiter, or any order, regulation or
demand of any federal, state or local governmental or regulatory
authority, which violation, in the Special Servicer's good faith and
reasonable judgment, is likely to affect materially and adversely either
the ability of the Special Servicer to perform its obligations under this
Agreement or the financial condition of the Special Servicer.
(vi) No litigation is pending or, to the best of the Special
Servicer's knowledge, threatened, against the Special Servicer, the
outcome of which, in the Special Servicer's good faith and reasonable
judgment, could reasonably be expected to prohibit the Special Servicer
from entering into this Agreement or materially and adversely affect the
ability of the Special Servicer to perform its obligations under this
Agreement.
(vii) Any consent, approval, authorization or order of any court or
governmental agency or body required under federal or state law for the
execution, delivery and performance by the Special Servicer of or
compliance by the Special Servicer with this Agreement or the consummation
of the transactions contemplated by this Agreement has been obtained and
is effective except where the lack of consent, approval, authorization or
order would not have a material adverse effect on the performance by the
Special Servicer under this Agreement.
(viii) The Special Servicer possesses all insurance required
pursuant to Section 3.07(c) of this Agreement.
(b) The representations and warranties of the Special Servicer set
forth in Section 3.24(a) shall survive the execution and delivery of this
Agreement and shall inure to the benefit of the Persons for whose benefit they
were made for so long as the Trust Fund remains in existence. Upon discovery by
any party hereto of any breach of any of the foregoing representations and
warranties, the party discovering such breach shall give prompt written notice
thereof to the other parties hereto.
(c) Any successor Special Servicer shall be deemed to have made, as
of the date of its succession, each of the representations and warranties set
forth in Section 3.24(a), subject to such appropriate modifications to the
representation and warranty set forth in Section 3.24(a)(i) to accurately
reflect such successor's jurisdiction of organization and whether it is a
corporation, partnership, bank, association or other type of organization.
Section 3.25 Certain Matters Regarding the Purchase of the Split
Mortgage Loans.
If, pursuant to Section 2.03, Section 3.18 and Section 9.01, any
Split Mortgage Loan (other than the Oakmonte Senior Portion) is purchased or
repurchased from the Trust Fund, the purchaser thereof shall be bound by the
terms of the related Loan Pair Co-Lender Agreement and shall assume the rights
and obligations of the "Note A Holder" (or in the case of the Windsor Capital
Portfolio Trust Loan, the "Note A-1 Holder") under the related Loan Pair
Co-Lender Agreement. All portions of the related Mortgage File and other
documents pertaining to such Mortgage Loan shall be endorsed or assigned to the
extent necessary or appropriate to the purchaser of such Mortgage Loan in its
capacity as "Note A Holder" or "Note A-1 Holder", in the case of the Windsor
Capital Portfolio Trust Loan (as a result of such purchase or repurchase) under
the related Loan Pair Co-Lender Agreement in the manner contemplated under such
agreement, which such purchaser shall be deemed to acknowledge. Thereafter such
Mortgage File shall be held by the Note A Holder or "Note A-1 Holder", as
applicable, or a custodian appointed thereby for the benefit of the "Note A
Lender" and the "Note B Lender" as their interests appear under the related Loan
Pair Co-Lender Agreement. If the related Servicing File is not already in the
possession of such party, it shall be delivered to the master servicer or
special servicer, as the case may be, under the separate servicing agreement for
the Loan Pairs. If pursuant to Section 2.03, Section 3.18 or Section 9.01, the
Oakmonte Senior Portion is purchased from the Trust Fund, simultaneous with such
purchase, the holder of the Oakmonte Senior Portion, and the holder of the
Oakmonte Junior Portion shall enter into a participation agreement as holders of
participation interests in the Oakmonte Apartment Homes Whole Loan representing
the Oakmonte Senior Portion and the Oakmonte Junior Portion, respectively, which
agreement shall provide for the same payment priorities and the same rights and
obligations as between the holder of the Oakmonte Senior Portion and the holder
of the Oakmonte Junior Portion as are contained in this Agreement.
Section 3.26 Application of Default Charges.
(a) Any and all Default Charges that are actually collected with
respect to any Mortgage Loan or REO Mortgage Loan in the Mortgage Pool during
any Collection Period, shall be applied for the following purposes and in the
following order, in each case to the extent of the remaining portion of such
Default Charges:
First, to pay to the Fiscal Agent, the Trustee, the Master Servicer
or the Special Servicer, in that order, any interest due and owing to such party
on any outstanding Advances made thereby with respect to the related Mortgage
Loan or REO Mortgage Loan and reimbursed in the related Collection Period;
Second, to pay any other outstanding expenses (exclusive of Special
Servicing Fees, Liquidation Fees and Workout Fees) incurred with respect to the
related Mortgage Loan or REO Mortgage Loan and that, if paid from a source other
than such Default Charges, would constitute Additional Trust Fund Expenses;
Third, to reimburse the Trust for any interest on Advances paid to
the Fiscal Agent, the Trustee, the Master Servicer or the Special Servicer since
the Closing Date with respect to the related Mortgage Loan or REO Mortgage Loan,
which payment was made from a source other than Default Charges and not
previously reimbursed under this clause third;
Fourth, to reimburse the Trust for any other Additional Trust Fund
Expenses (exclusive of Special Servicing Fees, Liquidation Fees and Workout
Fees) paid since the Closing Date with respect to the related Mortgage Loan or
REO Mortgage Loan, which payment was made from a source other than Default
Charges and not previously reimbursed under this clause fourth; and
Fifth, to pay any remaining portion of such Default Charges (in the
case of the Windsor Capital Portfolio A/B Loan, net any amount of such Default
Charges allocable to the Windsor Capital Portfolio Junior Companion Loan
representing any cure payment made by the related Companion Loan Noteholder)
(such remaining portion, "Net Default Charges") as additional master servicing
compensation to the Master Servicer, to the extent received, if they were
accrued in respect of a Performing Serviced Mortgage Loan, or as additional
special servicing compensation to the Special Servicer, to the extent received,
if they were accrued in respect of a Specially Serviced Mortgage Loan or an REO
Mortgage Loan, in each case pursuant to Section 3.11;
provided that any and all Default Charges that are actually collected with
respect to any Split Mortgage Loans (other than 000 Xxxxx Xxxxxx Xxxxx Trust
Loan) during any Collection Period (as allocable thereto pursuant to the related
loan agreement) shall be applied for the following purpose, prior to being
applied in accordance with clauses first through fifth above, in each case to
the extent of the remaining portion of such Default Charges: to pay the Fiscal
Agent, the Trustee, the Master Servicer or the Special Servicer, in that order,
any interest due and owing to such party on any outstanding Servicing Advance
made thereby with respect to the related Loan Pair or the related Loan Pair
Mortgaged Property and/or any outstanding P&I Advance made thereby with respect
to such Mortgage Loan or any successor REO Mortgage Loan with respect thereto,
which Advance was reimbursed in such Collection Period, but in each case only to
the extent that Default Charges collected with respect to such Companion Loans
and applied pursuant to clause first of subsection (c) below are insufficient
for such purpose; and provided further, that no Default Charges collected with
respect to the Windsor Capital Portfolio Trust Loan may be applied to pay
interest on outstanding P&I Advances made with respect to the Windsor Capital
Portfolio Pari Passu Companion Loan (such reimbursement to be made solely from
Default Charges collected with respect to such Companion Loan); provided,
further, that with respect to the Windsor Capital Portfolio Junior Companion
Loan Default Charges shall be applied as set forth in the preceding proviso,
except that such Default Charges shall be applied to all of the foregoing
Advances and expenses, and to P&I Advances with respect to the Windsor Capital
Portfolio Pari Passu Companion Loan, prior to Default Charges on the Windsor
Capital Portfolio Trust Loan being applied thereto or Default Charges on the
Windsor Capital Portfolio Pari Passu Companion Loan being applied pursuant to
Section 3.26(c).
(b) Default Charges applied to reimburse the Trust pursuant to
clauses third and fourth, of subsection (a), are intended to be part of the
amounts to be delivered by the Master Servicer to the Trustee pursuant to the
first paragraph of Section 3.04(b) on or before the Master Servicer Remittance
Date next following the Collection Period during which they were received, for
deposit in the Distribution Account, subject to application pursuant to Section
3.05(a) for any items payable in respect of the related Mortgage Loan and REO
Property. Default Charges applied to pay outstanding interest on Advances to any
particular party pursuant to clause first of subsection (a) shall be applied to
pay such party such interest on Advances in such manner that the interest that
accrued first and has been outstanding the longest shall be paid first. Default
Charges applied to pay outstanding expenses pursuant to clause second of
subsection (a) shall be applied to pay such expenses in the chronological order
in which they were incurred. Default Charges applied to reimburse the Trust
pursuant to clauses third and fourth, of subsection (a) shall be deemed to
offset either interest paid on Advances or other Additional Trust Fund Expenses,
depending on which clause is applicable, in the chronological order in which
they were made or incurred, as applicable (whereupon such interest paid on
Advances or such other Additional Trust Fund Expenses with respect to the
related Mortgage Loan, depending on which clause is applicable, shall thereafter
be deemed to have been paid out of Default Charges).
(c) Any and all Default Charges that are actually collected with
respect to any Companion Loan (other than 000 Xxxxx Xxxxxx Xxxxx Companion
Loans) or any successor REO Loan with respect thereto during any Collection
Period (as allocable thereto pursuant to the related loan agreement), shall be
applied for the following purposes and in the following order, in each case to
the extent of the remaining portion of such Default Charges:
First, to pay to the Fiscal Agent, the Trustee, the Master Servicer
or the Special Servicer, in that order, any interest due and owing to such party
on any outstanding Advances made thereby with respect to the related Split
Mortgage Loan or REO Loan in such Loan Pair or the related Loan Pair Mortgaged
Property and reimbursed in the related Collection Period (to be applied with
respect to any particular party in such manner that the interest that accrued
first and has been outstanding the longest shall be paid first); and
Second, to pay any remaining portion of such Default Charges (such
remaining portion, "Net Default Charges") as additional master servicing
compensation to the Master Servicer, to the extent received, if they were
accrued with respect to such Companion Loan during a period that it was a
Performing Serviced Loan, or as additional special servicing compensation to the
Special Servicer, to the extent received, if they were accrued with respect to
such Companion Loan during a period that it was a Specially Serviced Loan or an
REO Loan, in each case pursuant to Section 3.11;
ARTICLE IV
PAYMENTS TO CERTIFICATEHOLDERS; REPORTS 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 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(i) 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) to the Holders of the Class A-1 Certificates, the Class A-2
Certificates, the Class A-3 Certificates, the Class A-4 Certificates, the
Class XP Certificates and the Class XC Certificates, pro rata (based upon
their respective entitlements to interest for such Distribution Date), up
to an amount equal to all Distributable Certificate Interest in respect of
such Class of Certificates for such Distribution Date and, to the extent
not previously paid, for all prior Distribution Dates, if any;
(ii) to the Holders of the Class A-1, Class A-2, Class A-3 and Class
A-4 Certificates in reduction of the Class Principal Balances thereof in
an amount up to the Principal Distribution Amount: (A) prior to the Class
A Principal Distribution Cross-Over Date, (1) first, to the Holders of the
Class A-1 Certificates, until the outstanding Class Principal Balance of
the Class A-1 Certificates has been reduced to zero, (2) second, to the
Holders of the Class A-2 Certificates until the outstanding Class
Principal Balance of the Class A-2 Certificates has been reduced to zero,
(3) third, to the Holders of the Class A-3 Certificates until the
outstanding Class Principal Balance of the Class A-3 Certificates has been
reduced to zero, and (4) fourth, to the Holders of the Class A-4
Certificates until the outstanding Class Principal Balance of the Class
A-4 Certificates has been reduced to zero; and (B) on or after the Class A
Principal Distribution Cross-Over Date, to the Holders of the Class A-1,
Class A-2, Class A-3 and Class A-4 Certificates, pro rata (based upon
their respective outstanding Class Principal Balances), until their
respective outstanding Principal Balances have been reduced to zero;
(iii) to the Holders of the Class A-1, Class A-2, Class A-3 and
Class A-4 Certificates, pro rata (based upon the aggregate unreimbursed
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to such Class of Certificates pursuant to Section 4.04(a)),
until all amounts of Realized Losses previously and Additional Trust Fund
Expenses allocated to such Classes, but not previously reimbursed, have
been reimbursed in full;
(iv) to make distributions of interest to the Holders of the Class B
Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates, if any;
(v) after the Class Principal Balances of the Class A Certificates
have been reduced to zero, to make distributions of principal to the
Holders of the Class B Certificates, up to an amount (not to exceed the
Class Principal Balance of such Class of Certificates outstanding
immediately prior to such Distribution Date) equal to the entire Principal
Distribution Amount for such Distribution Date (net of any portion thereof
distributed on such Distribution Date to the Holders of any other Class of
Principal Balance Certificates pursuant to any prior clause of this
Section 4.01(a);
(vi) to make distributions to the Holders of the Class B
Certificates, up to an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to such Class of Certificates pursuant to Section 4.04(a) and
not previously reimbursed;
(vii) to make distributions of interest to the Holders of the Class
C Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates, if any;
(viii) after the Class Principal Balance of the Class B Certificates
has been reduced to zero, to make distributions of principal to the
Holders of the Class C Certificates, up to an amount (not to exceed the
Class Principal Balance of such Class of Certificates outstanding
immediately prior to such Distribution Date) equal to the entire Principal
Distribution Amount for such Distribution Date (net of any portion thereof
distributed on such Distribution Date to the Holders of any other Class of
Principal Balance Certificates pursuant to any prior clause of this
Section 4.01(a));
(ix) to make distributions to the Holders of the Class C
Certificates, up to an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to such Class of Certificates pursuant to Section 4.04(a) and
not previously reimbursed;
(x) to make distributions of interest to the Holders of the Class D
Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates, if any;
(xi) after the Class Principal Balance of the Class C Certificates
has been reduced to zero, to make distributions of principal to the
Holders of the Class D Certificates, up to an amount (not to exceed the
Class Principal Balance of such Class of Certificates outstanding
immediately prior to such Distribution Date) equal to the entire Principal
Distribution Amount for such Distribution Date (net of any portion thereof
distributed on such Distribution Date to the Holders of any other Class of
Principal Balance Certificates pursuant to any prior clause of this
Section 4.01(a));
(xii) to make distributions to the Holders of the Class D
Certificates, up to an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to such Class of Certificates pursuant to Section 4.04(a) and
not previously reimbursed;
(xiii) to make distributions of interest to the Holders of the Class
E Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates, if any;
(xiv) after the Class Principal Balance of the Class D Certificates
has been reduced to zero, to make distributions of principal to the
Holders of the Class E Certificates, up to an amount (not to exceed the
Class Principal Balance of such Class of Certificates outstanding
immediately prior to such Distribution Date) equal to the entire Principal
Distribution Amount for such Distribution Date (net of any portion thereof
distributed on such Distribution Date to the Holders of any other Class of
Principal Balance Certificates pursuant to any prior clause of this
Section 4.01(a));
(xv) to make distributions to the Holders of the Class E
Certificates, up to an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to such Class of Certificates pursuant to Section 4.04(a) and
not previously reimbursed;
(xvi) to make distributions of interest to the Holders of the Class
F Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates, if any;
(xvii) after the Class Principal Balance of the Class E Certificates
has been reduced to zero, to make distributions of principal to the
Holders of the Class F Certificates, up to an amount (not to exceed the
Class Principal Balance of such Class of Certificates outstanding
immediately prior to such Distribution Date) equal to the entire Principal
Distribution Amount for such Distribution Date (net of any portion thereof
distributed on such Distribution Date to the Holders of any other Class of
Principal Balance Certificates pursuant to any prior clause of this
Section 4.01(a));
(xviii) to make distributions to the Holders of the Class F
Certificates, up to an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to such Class of Certificates pursuant to Section 4.04(a) and
not previously reimbursed;
(xix) to make distributions of interest to the Holders of the Class
G Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates, if any;
(xx) after the Class Principal Balance of the Class F Certificates
has been reduced to zero, to make distributions of principal to the
Holders of the Class G Certificates, up to an amount (not to exceed the
Class Principal Balance of such Class of Certificates outstanding
immediately prior to such Distribution Date) equal to the entire Principal
Distribution Amount for such Distribution Date (net of any portion thereof
distributed on such Distribution Date to the Holders of any other Class of
Principal Balance Certificates pursuant to any prior clause of this
Section 4.01(b));
(xxi) to make distributions to the Holders of the Class G
Certificates, up to an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to such Class of Certificates pursuant to Section 4.04(a) and
not previously reimbursed;
(xxii) to make distributions of interest to the Holders of the Class
H Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates, if any;
(xxiii) after the Class Principal Balance of the Class G
Certificates has been reduced to zero, to make distributions of principal
to the Holders of the Class H Certificates, up to an amount (not to exceed
the Class Principal Balance of such Class of Certificates outstanding
immediately prior to such Distribution Date) equal to the entire Principal
Distribution Amount for such Distribution Date (net of any portion thereof
distributed on such Distribution Date to the Holders of any other Class of
Principal Balance Certificates pursuant to any prior clause of this
Section 4.01(a));
(xxiv) to make distributions to the Holders of the Class H
Certificates, up to an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to such Class of Certificates pursuant to Section 4.04(a) and
not previously reimbursed;
(xxv) to make distributions of interest to the Holders of the Class
J Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates, if any;
(xxvi) after the Class Principal Balance of the Class H Certificates
has been reduced to zero, to make distributions of principal to the
Holders of the Class J Certificates, up to an amount (not to exceed the
Class Principal Balance of such Class of Certificates outstanding
immediately prior to such Distribution Date) equal to the entire Principal
Distribution Amount for such Distribution Date (net of any portion thereof
distributed on such Distribution Date to the Holders of any other Class of
Principal Balance Certificates pursuant to any prior clause of this
Section 4.01(a));
(xxvii) to make distributions to the Holders of the Class J
Certificates, up to an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to such Class of Certificates pursuant to Section 4.04(a) and
not previously reimbursed;
(xxviii) to make distributions of interest to the Holders of the
Class K Certificates, up to an amount equal to all Distributable
Certificate Interest in respect of such Class of Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates, if any;
(xxix) after the Class Principal Balance of the Class J Certificates
has been reduced to zero, to make distributions of principal to the
Holders of the Class K Certificates, up to an amount (not to exceed the
Class Principal Balance of such Class of Certificates outstanding
immediately prior to such Distribution Date) equal to the entire Principal
Distribution Amount for such Distribution Date (net of any portion thereof
distributed on such Distribution Date to the Holders of any other Class of
Principal Balance Certificates pursuant to any prior clause of this
Section 4.01(a));
(xxx) to make distributions to the Holders of the Class K
Certificates, up to an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to such Class of Certificates pursuant to Section 4.04(a) and
not previously reimbursed;
(xxxi) to make distributions of interest to the Holders of the Class
L Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates, if any;
(xxxii) after the Class Principal Balance of the Class K
Certificates has been reduced to zero, to make distributions of principal
to the Holders of the Class L Certificates, up to an amount (not to exceed
the Class Principal Balance of such Class of Certificates outstanding
immediately prior to such Distribution Date) equal to the entire Principal
Distribution Amount for such Distribution Date (net of any portion thereof
distributed on such Distribution Date to the Holders of any other Class of
Principal Balance Certificates pursuant to any prior clause of this
Section 4.01(a));
(xxxiii) to make distributions to the Holders of the Class L
Certificates, up to an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to such Class of Certificates pursuant to Section 4.04(a) and
not previously reimbursed;
(xxxiv) to make distributions of interest to the Holders of the
Class M Certificates, up to an amount equal to all Distributable
Certificate Interest in respect of such Class of Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates, if any;
(xxxv) after the Class Principal Balance of the Class L Certificates
has been reduced to zero, to make distributions of principal to the
Holders of the Class M Certificates, up to an amount (not to exceed the
Class Principal Balance of such Class of Certificates outstanding
immediately prior to such Distribution Date) equal to the entire Principal
Distribution Amount for such Distribution Date (net of any portion thereof
distributed on such Distribution Date to the Holders of any other Class of
Principal Balance Certificates pursuant to any prior clause of this
Section 4.01(b));
(xxxvi) to make distributions to the Holders of the Class M
Certificates, up to an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to such Class of Certificates pursuant to Section 4.04(a) and
not previously reimbursed;
(xxxvii) to make distributions of interest to the Holders of the
Class N Certificates, up to an amount equal to all Distributable
Certificate Interest in respect of such Class of Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates, if any;
(xxxviii) after the Class Principal Balance of the Class M
Certificates has been reduced to zero, to make distributions of principal
to the Holders of the Class N Certificates, up to an amount (not to exceed
the Class Principal Balance of such Class of Certificates outstanding
immediately prior to such Distribution Date) equal to the entire Principal
Distribution Amount for such Distribution Date (net of any portion thereof
distributed on such Distribution Date to the Holders of any other Class of
Principal Balance Certificates pursuant to any prior clause of this
Section 4.01(a));
(xxxix) to make distributions to the Holders of the Class N
Certificates, up to an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to such Class of Certificates pursuant to Section 4.04(a) and
not previously reimbursed;
(xl) to make distributions of interest to the Holders of the Class O
Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates, if any;
(xli) after the Class Principal Balance of the Class N Certificates
has been reduced to zero, to make distributions of principal to the
Holders of the Class O Certificates, up to an amount (not to exceed the
Class Principal Balance of such Class of Certificates outstanding
immediately prior to such Distribution Date) equal to the entire Principal
Distribution Amount for such Distribution Date (net of any portion thereof
distributed on such Distribution Date to the Holders of any other Class of
Principal Balance Certificates pursuant to any prior clause of this
Section 4.01(a));
(xlii) to make distributions to the Holders of the Class O
Certificates, up to an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to such Class of Certificates pursuant to Section 4.04(a) and
not previously reimbursed;
(xliii) to make distributions of interest to the Holders of the
Class P Certificates, up to an amount equal to all Distributable
Certificate Interest in respect of such Class of Certificates for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates, if any;
(xliv) after the Class Principal Balance of the Class N Certificates
has been reduced to zero, to make distributions of principal to the
Holders of the Class P Certificates, up to an amount (not to exceed the
Class Principal Balance of such Class of Certificates outstanding
immediately prior to such Distribution Date) equal to the entire Principal
Distribution Amount for such Distribution Date (net of any portion thereof
distributed on such Distribution Date to the Holders of any other Class of
Principal Balance Certificates pursuant to any prior clause of this
Section 4.01(a));
(xlv) to make distributions to the Holders of the Class P
Certificates, up to an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to such Class of Certificates pursuant to Section 4.04(a) and
not previously reimbursed;
(xlvi) to make distributions of interest to the Holders of the Class
Q Certificates, up to an amount equal to all Distributable Certificate
Interest in respect of such Class of Certificates for such Distribution
Date and, to the extent not previously paid, for all prior Distribution
Dates, if any;
(xlvii) after the Class Principal Balance of the Class P
Certificates has been reduced to zero, to make distributions of principal
to the Holders of the Class Q Certificates, up to an amount (not to exceed
the Class Principal Balance of such Class of Certificates outstanding
immediately prior to such Distribution Date) equal to the entire Principal
Distribution Amount for such Distribution Date (net of any portion thereof
distributed on such Distribution Date to the Holders of any other Class of
Principal Balance Certificates pursuant to any prior clause of this
Section 4.01(a));
(xlviii) to make distributions to the Holders of the Class Q
Certificates, up to an amount equal to, and in reimbursement of, all
Realized Losses and Additional Trust Fund Expenses, if any, previously
allocated to such Class of Certificates pursuant to Section 4.04(a) and
not previously reimbursed;
(xlix) to the Holders of the Class R-II Certificates, the amount, if
any, of the Available Distribution Amount remaining in the Upper-Tier
Distribution Account with respect to such Distribution Date.
All distributions of interest made in respect of the Class XC and
Class XP Certificates on any Distribution Date pursuant to clause (i) above,
shall be deemed to have been made in respect of all the Components of such
Class, pro rata in accordance with the respective amounts of interest that would
be payable on such Components on such Distribution Date based on the Class XC
Strip Rate and Class XP Strip Rate, as applicable, of such Component multiplied
by its Component Notional Amount, less an allocable portion of any Net Aggregate
Prepayment Interest Shortfall, together with any amounts thereof remaining
unpaid from previous Distribution Dates.
(b) On each Distribution Date, the Trustee shall withdraw any
amounts on deposit in the Upper-Tier Distribution Account that represent Net
Prepayment Consideration actually collected on the Mortgage Loans or REO Loans
during the related Collection Period and remitted in respect of the
Uncertificated Lower-Tier Interests pursuant to Section 4.01(j), and shall
distribute such amounts to the Holders of each of the Class A-1, Class A-2,
Class A-3, Class A-4, Class B, Class C, Class D, Class E, Class F, Class G,
Class H and Class J Certificates entitled to distributions of principal pursuant
to Section 4.01(a) on such Distribution Date, up to an amount equal to, and pro
rata based on, the respective Prepayment Consideration Entitlements for such
Classes of Certificates for such Distribution Date.
Any Net Prepayment Consideration not otherwise distributed in
respect of the Principal Balance Certificates pursuant to the foregoing
paragraph of this Section 4.01(b) shall be distributed as follows: (i)
commencing with the initial Distribution Date through and including the
Distribution Date in June 2010, 12.5% to the Holders of the Class XP
Certificates, and 87.5% to the Holders of the Class XC Certificates; and (ii)
commencing with the Distribution Date in July 2010, 100% to the Holders of the
Class XC Certificates.
(c) [Reserved].
(d) 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 provided below, all such distributions with
respect to each Class on each Distribution Date shall be made to the
Certificateholders of the respective Class of record at the close of business on
the related Record Date and shall be made by wire transfer of immediately
available funds to the account of any such Certificateholder at a bank or other
entity having appropriate facilities therefor, if such Certificateholder shall
have provided the Trustee with wiring instructions no less than five Business
Days prior to (or, in the case of the initial Distribution Date, on) the related
Record Date (which wiring instructions may be in the form of a standing order
applicable to all subsequent Distribution Dates), or otherwise by check mailed
to the address of such Certificateholder as it appears in the Certificate
Register. The final distribution on each Certificate (determined, in the case of
a Principal Balance Certificate, without regard to any possible future
reimbursement of any Realized Loss or Additional Trust Fund Expense previously
allocated to such Certificate pursuant to Section 4.04(a)) will be made in a
like manner, but only upon presentation and surrender of such Certificate at the
offices of the Certificate Registrar or such other location specified in the
notice to Certificateholders of such final distribution. Prior to any
termination of the Trust Fund pursuant to Section 9.01, any distribution that is
to be made with respect to a Certificate in reimbursement of a Realized Loss or
Additional Trust Fund Expense previously allocated thereto, which reimbursement
is to occur after the date on which such Certificate is surrendered as
contemplated by the preceding sentence, will be made by check mailed to the
address of the Certificateholder that surrendered such Certificate as such
address last appeared in the Certificate Register or to any other address of
which the Trustee was subsequently notified in writing. If such check is
returned to the Trustee, then the Trustee, directly or through an agent, shall
take such reasonable steps to contact the related Holder and deliver such check
as it shall deem appropriate. Any funds in respect of a check returned to the
Trustee shall be set aside by the Trustee and held uninvested in trust and
credited to the account of the appropriate Holder. The costs and expenses of
locating the appropriate Holder and holding such funds shall be paid out of such
funds. No interest shall accrue or be payable to any former Holder on any amount
held in trust hereunder. If the Trustee has not, after having taken such
reasonable steps, located the related Holder by the second anniversary of the
initial sending of a check, the Trustee shall, subject to applicable law,
distribute the unclaimed funds to the Class R-II Certificateholders.
(e) Each distribution with respect to a Book-Entry Certificate shall
be paid to the Depository, as Holder thereof, and the Depository shall be
responsible for crediting the amount of such distribution to the accounts of its
Depository Participants in accordance with its normal procedures. Each
Depository Participant shall be responsible for disbursing such distribution to
the related Certificate Owners that it represents and to each indirect
participating brokerage firm for which it acts as agent. Each indirect
participating brokerage firm shall be responsible for disbursing funds to the
related Certificate Owners that it represents. None of the Trustee, the
Certificate Registrar, the Depositor or the Master Servicer shall have any
responsibility therefor except as otherwise provided by this Agreement or
applicable law. The Trustee and the Depositor shall perform their respective
obligations under each Letter of Representations among the Depositor, the
Trustee and the initial Depository dated as of the Closing Date and pertaining
to the Book-Entry Certificates.
(f) The rights of the Certificateholders to receive distributions
from the proceeds of the Trust Fund with respect to the Certificates, and all
rights and interests of the Certificateholders in and to such distributions,
shall be as set forth in this Agreement. Neither the Holders of any Class of
Certificates nor any party hereto shall in any way be responsible or liable to
the Holders of any other Class of Certificates with respect to amounts properly
previously distributed on the Certificates.
(g) Except as otherwise provided in Section 9.01, whenever the
Trustee receives written notification of or expects that the final distribution
with respect to any Class of Certificates (determined, in the case of a Class of
Principal Balance Certificates, without regard to any possible future
reimbursement of any Realized Loss or Additional Trust Fund Expense previously
allocated to such Class of Certificates pursuant to Section 4.04(a)) will be
made on the next Distribution Date, the Trustee shall, no later than the second
Business Day prior to such Distribution Date, mail to each Holder of record of
such Class of Certificates on such date 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 office of the
Certificate Registrar or at such other location therein specified, and
(ii) no interest shall accrue on such Certificates from and after
the end of the Interest Accrual Period for 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, then 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 non-tendering
Certificateholders following the first anniversary of the delivery of such
second notice thereto shall be paid out of such funds. No interest shall accrue
or be payable to any former Holder on any amount held in trust pursuant to this
paragraph. If all of the Certificates as to which notice has been given pursuant
to this Section 4.01(g) shall not have been surrendered for cancellation by the
second anniversary of the delivery of the second notice, the Trustee shall,
subject to applicable law, distribute to the Class R-II Certificateholders all
unclaimed funds and other assets which remain subject thereto.
(h) Notwithstanding any other provision of this Agreement, the
Trustee shall comply with all federal withholding requirements respecting
payments to Certificateholders of interest or original issue discount that the
Trustee reasonably believes are applicable under the Code. The consent of
Certificateholders shall not be required for such withholding. If the Trustee
does withhold any amount from interest or original issue discount payments or
advances thereof to any Certificateholder pursuant to federal withholding
requirements, the Trustee shall indicate the amount withheld to such
Certificateholders.
(i) During each Interest Accrual Period, each Uncertificated
Lower-Tier Interest shall accrue interest in an amount equal to the product of
the Uncertificated Principal Balance of each such Uncertificated Lower-Tier
Interest and the Weighted Average Net Mortgage Rate. On each Distribution Date,
each Uncertificated Lower-Tier Interest shall be deemed to receive distributions
in respect of interest in an amount equal to the Distributable Certificate
Interest for such Distribution Date (and, to the extent not previously paid, for
all prior Distribution Dates, if any) in respect of its Corresponding
Certificate, in each case allocable among the respective Components of the
Corresponding Certificate, pro rata, and the portion of the Distributable
Certificate Interest for such Distribution Date (and, to the extent not
previously paid, for all prior Distribution Dates, if any) of the Class XC and
Class XP Certificates that is attributable to the Corresponding Component of
such Uncertificated Lower-Tier Interest, in each case to the extent actually
distributable thereon as provided in Section 4.01(a).
All distributions made in respect of any Class of Principal Balance
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 Lower-Tier REMIC to
the Upper-Tier REMIC in respect of its Corresponding Uncertificated Lower-Tier
Interest set forth in the Preliminary Statement hereto; provided, however, that
distributions of principal:
(i) with respect to the Class A-1 Certificates, shall be deemed to
have first been distributed from the Lower-Tier REMIC to the Upper-Tier
REMIC in respect of Uncertificated Lower-Tier Interest LA-1-1; second, to
Uncertificated Lower-Tier Interest LA-1-2; third, to Uncertificated
Lower-Tier Interest LA-1-3; and fourth, to Uncertificated Lower-Tier
Interest LA-1-4; in each case, until their respective Uncertificated
Principal Balances are reduced to zero;
(ii) with respect to the Class A-2 Certificates, shall be deemed to
have first been distributed from the Lower-Tier REMIC to the Upper-Tier
REMIC in respect of Uncertificated Lower-Tier Interest LA-2-1; second, to
Uncertificated Lower-Tier Interest LA-2-2; and third, to Uncertificated
Lower-Tier Interest LA-2-3; in each case, until their respective
Uncertificated Principal Balances are reduced to zero;
(iii) with respect to the Class A-3 Certificates, shall be deemed to
have first been distributed from the Lower-Tier REMIC to the Upper-Tier
REMIC in respect of Uncertificated Lower-Tier Interest LA-3-1; and second,
to Uncertificated Lower-Tier Interest LA-3-2; in each case, until their
respective Uncertificated Principal Balances are reduced to zero;
(iv) with respect to the Class A-4 Certificates, shall be deemed to
have first been distributed from the Lower-Tier REMIC to the Upper-Tier
REMIC in respect of Uncertificated Lower-Tier Interest LA-4-1; and second,
to Uncertificated Lower-Tier Interest LA-4-2; in each case, until their
respective Uncertificated Principal Balances are reduced to zero; and
(v) with respect to the Class H Certificates, shall be deemed to
have first been distributed from the Lower-Tier REMIC to the Upper-Tier
REMIC in respect of Uncertificated Lower-Tier Interest LH-1; second, to
Uncertificated Lower-Tier Interest LH-2; and third, to Uncertificated
Lower-Tier Interest LH-3, in each case, until their respective
Uncertificated Principal Balances are reduced to zero.
All distributions made in respect of the Class XC and Class XP
Certificates on each Distribution Date pursuant to Section 4.01(a) or Section
9.01, and allocable to any particular Component of such Class of Certificates in
accordance with the penultimate paragraph of Section 4.01(a), shall be deemed to
have first been distributed from the Lower-Tier REMIC to the Upper-Tier REMIC in
respect of such Component's Corresponding Uncertificated Lower-Tier Interest.
All distributions of reimbursements of Realized Losses and Additional Trust Fund
Expenses made in respect of any Class of Principal Balance Certificates on each
Distribution Date pursuant to Section 4.01(a) shall be deemed to have first been
distributed from the Lower-Tier REMIC to the Upper-Tier REMIC in respect of its
Corresponding Uncertificated Lower-Tier Interest set forth in the Preliminary
Statement hereto; provided, however, that distributions of reimbursements of
Realized Losses and Additional Trust Fund Expenses shall be made in reverse
sequential order of the priority set forth in this Section 4.01(i) for principal
distributions, up to the amount of Realized Losses and Additional Trust Fund
Expenses previously allocated to a particular Component of such Class of
Certificates.
(j) On each Distribution Date, the Trustee shall withdraw from the
Lower-Tier Distribution Account an aggregate amount equal to all Net Prepayment
Consideration actually collected on the Mortgage Loans or any REO Mortgage Loans
during the related Collection Period and shall distribute such amount in respect
of the Class LA-1 Uncertificated Lower-Tier Interest by depositing such amount
in the Upper-Tier Distribution Account (notwithstanding that all principal and
interest distributable with respect to the Class LA-1 Uncertificated Lower-Tier
Interest has been paid in full).
(k) Any amount that remains in the Lower-Tier Distribution Account
on each Distribution Date after distribution of the Lower-Tier Distribution
Amount and in each case after the distribution of any Net Prepayment
Consideration shall be distributed to the Holders of the Class R-I Certificates
(but only to the extent of the Available Distribution Amount for such
Distribution Date remaining in the Lower-Tier Distribution Account).
(l) (i) On or prior to each Master Servicer Remittance Date other
than during a Sequential Paydown Period, the Master Servicer shall allocate the
Loan Pair Remittance Amount for the Oakmonte Apartment Homes Whole Loan
(excluding any amounts representing P&I Advances relating to the Oakmonte Senior
Portion) to the Oakmonte Senior Portion and the Oakmonte Junior Portion in the
following order of priority:
(A) first, to the Oakmonte Senior Portion, in an amount equal
to the accrued and unpaid interest on the Stated Principal Balance
of the Oakmonte Senior Portion at the related Net Mortgage Rate;
(B) second, to the Oakmonte Senior Portion, in an amount equal
to its pro rata portion of all principal payments (including any
prepayments) received on the Oakmonte Apartment Homes Whole Loan
during the related Collection Period (based on the Stated Principal
Balances of the Oakmonte Senior Portion and the Oakmonte Junior
Portion), to be applied in reduction of the Stated Principal Balance
of the Oakmonte Senior Portion;
(C) third, to the Oakmonte Senior Portion, in an amount equal
to its pro rata portion of any Prepayment Premium or Yield
Maintenance Charge actually received in respect of the Oakmonte
Apartment Homes Whole Loan (based on the Stated Principal Balances
of the Oakmonte Senior Portion and the Oakmonte Junior Portion);
(D) fourth, to the Oakmonte Junior Portion, in an amount equal
to the accrued and unpaid interest on the Stated Principal Balance
of the Oakmonte Junior Portion at the related Net Mortgage Rate;
(E) fifth, to the Oakmonte Junior Portion, in an amount equal
to its pro rata portion of all principal payments (including any
prepayments) received on the Oakmonte Apartment Homes Whole Loan
during the related Collection Period (based on the Stated Principal
Balances of the Oakmonte Senior Portion and the Oakmonte Junior
Portion), to be applied in reduction of the Stated Principal Balance
of the Oakmonte Junior Portion;
(F) sixth, to the Oakmonte Junior Portion, in an amount equal
to its pro rata portion any Prepayment Premium or Yield Maintenance
Charge actually received in respect of Oakmonte Apartment Homes
Whole Loan (based on the Stated Principal Balances of the Oakmonte
Senior Portion and the Oakmonte Junior Portion); and
(G) seventh, to the Oakmonte Senior Portion and the Oakmonte
Junior Portion, pro rata (based on the Stated Principal Balances of
the Oakmonte Senior Portion and the Oakmonte Junior Portion as of
the Closing Date), any excess amounts paid by the Mortgagor and not
required to be returned to the Mortgagor or to a party other than
the mortgagee under the related loan documents, and not otherwise
applied in accordance with the foregoing clauses (A) through (F) of
this Section 4.01(l), or clauses (ii) through (xiv) of Section
3.05A.
(ii) On or prior to each Master Servicer Remittance Date during a
Sequential Paydown Period, the Master Servicer shall allocate the Loan
Pair Remittance Amount for the Oakmonte Apartment Homes Whole Loan
(excluding any amounts representing P&I Advances relating to the Oakmonte
Senior Portion) to the Oakmonte Senior Portion and the Oakmonte Junior
Portion in the following order of priority:
(A) first, to the Oakmonte Senior Portion, in an amount equal
to the accrued and unpaid interest on the Stated Principal Balance
of the Oakmonte Senior Portion at the related Net Mortgage Rate;
(B) second, to the Oakmonte Senior Portion, in an amount up to
the Stated Principal Balance of the Oakmonte Senior Portion, until
such Stated Principal Balance has been reduced to zero;
(C) third, to the Oakmonte Senior Portion, in an amount equal
to its pro rata portion any Prepayment Premium or Yield Maintenance
Charge actually received in respect of the Oakmonte Apartment Homes
Whole Loan (based on the Stated Principal Balances of the Oakmonte
Senior Portion and the Oakmonte Junior Portion);
(D) fourth, to the Oakmonte Junior Portion, in an amount equal
to the accrued and unpaid interest on the Stated Principal Balance
of the Oakmonte Junior Portion at related Net Mortgage Rate;
(E) fifth, to the Oakmonte Junior Portion in an amount up to
the Stated Principal Balance of the Oakmonte Junior Portion, until
such Stated Principal Balance has been reduced to zero;
(F) sixth, to the Oakmonte Junior Portion, in an amount equal
to its pro rata portion of any Prepayment Premium or Yield
Maintenance Charge actually received in respect of the Oakmonte
Apartment Homes Whole Loan (based on the Stated Principal Balances
of the Oakmonte Senior Portion and the Oakmonte Junior Portion); and
(G) seventh, to the Oakmonte Senior Portion and the Oakmonte
Junior Portion, pro rata (based on the Stated Principal Balances of
the Oakmonte Senior Portion and the Oakmonte Junior Portion as of
the Closing Date), any excess amounts paid by the Mortgagor and not
required to be returned to the Mortgagor or to a party other than
the mortgagee under the related loan documents, and not otherwise
applied in accordance with the foregoing clauses (A) through (F) of
this Section 4.01(l), or clauses (ii) through (xiv) of Section
3.05A.
(m) Any Realized Losses incurred with respect to the Oakmonte
Apartment Homes Whole Loan shall be allocated first, to the Oakmonte Junior
Portion, up to and in reduction of the Stated Principal Balance of the Oakmonte
Junior Portion together with accrued interest thereon at the Net Mortgage Rate
and any other amounts due and allocable to the Oakmonte Junior Portion and then,
to the Oakmonte Senior Portion in reduction of its Stated Principal Balance. On
each Distribution Date, following the distributions to Class Y
Certificateholders to be made on such date pursuant to Section 4.01(n), the
Trustee shall determine the amount, if any, by which (i) the then outstanding
Class Principal Balance of the Class Y Certificates exceeds (ii) the Stated
Principal Balance of the Oakmonte Junior Portion that will be outstanding
immediately following such Distribution Date. If such excess does exist, then
the Class Principal Balance of the Class Y Certificates shall be reduced, until
such excess or such Class Principal Balance is reduced to zero (whichever occurs
first). All such reduction in the Class Principal Balance of the Class Y
Certificates shall constitute allocations of Realized Losses and Additional
Trust Fund Expenses. Any Prepayment Interest Shortfalls incurred with respect to
the Oakmonte Apartment Homes Whole Loan shall be allocated, first, to the
Oakmonte Junior Portion up to the Oakmonte Junior Interest Distribution Amount
and the Oakmonte Junior Principal Distribution Amount and then, to the Oakmonte
Senior Portion.
(n) On each Distribution Date, to the extent of the Oakmonte Junior
Available Distribution Amount for such Distribution Date on deposit in the
Oakmonte Junior Portion Sub-Account, the Trustee shall make distributions
thereof in the following order of priority, satisfying in full, to the extent
required and possible, each priority before making any distribution with respect
to the succeeding priority:
(i) to make distributions of interest to the Holders of the Class Y
Certificates, up to an amount equal to the Oakmonte Junior Interest Distribution
Amount in respect of such Class of Certificates for such Distribution Date and,
to the extent not previously paid, for all prior Distribution Dates, if any;
(ii) to make distributions of principal to the Holders of the Class
Y Certificates, up to an amount (not to exceed the Class Principal Balance
of such Class of Certificates outstanding immediately prior to such
Distribution Date) equal to the Oakmonte Junior Principal Distribution
Amount in reduction of the Class Principal Balance thereof; and
(iii) to make distributions to the Holder of the Class Y
Certificates, all other amounts remaining in the Oakmonte Junior Portion
Sub-Account with respect to such Distribution Date.
Section 4.02 Statements to Certificateholders; CMSA Loan Periodic
Update File.
(a) On each Distribution Date, the Trustee shall provide or make
available electronically to the Depositor, the Underwriters, the Master
Servicer, the Special Servicer, the Controlling Class Directing Holder, each
Rating Agency, the Holders of each Class of Certificates and, upon their written
request to the Trustee, any Certificate Owners of the Book-Entry Certificates as
may be identified to the reasonable satisfaction of the Trustee, a statement,
substantially in the form attached hereto as Exhibit B (a "Distribution Date
Statement"), which shall also include the CMSA Bond Level File and the CMSA
Collateral Summary File, based on information provided to it by the Master
Servicer and/or the Special Servicer, setting forth, without limitation:
(i) the amount of the distribution on such Distribution Date to the
Holders of each Class of Principal Balance Certificates in reduction of
the Class Principal Balance thereof;
(ii) the amount of the distribution on such Distribution Date to the
Holders of each Class of Regular Interest Certificates allocable to
Distributable Certificate Interest;
(iii) the amount of the distribution on such Distribution Date to
the Holders of each Class of Regular Interest Certificates allocable to
Prepayment Premiums and Yield Maintenance Charges, respectively;
(iv) the amount of the distribution on such Distribution Date to the
Holders of each Class of Principal Balance Certificates in reimbursement
of previously allocated Realized Losses and Additional Trust Fund
Expenses;
(v) the Available Distribution Amount for such Distribution Date;
(vi) the aggregate amount of P&I Advances made in respect of the
Mortgage Pool for the prior Distribution Date pursuant to Section 4.03(a)
and/or Section 4.03A(a);
(vii) (A) the aggregate amount of xxxxxxxxxxxx X&X Advances that had
been outstanding with respect to the Mortgage Pool at the close of
business on the related Determination Date and the aggregate amount of any
interest accrued and payable to the Master Servicer, the Trustee or the
Fiscal Agent in respect of such xxxxxxxxxxxx X&X Advances in accordance
with Section 4.03(d) or 4.03A(d) as of the close of business on such
Determination Date and (B) the aggregate amount of unreimbursed Servicing
Advances that had been outstanding with respect to the Mortgage Pool as of
the close of business on the related Determination Date and the aggregate
amount of interest accrued and payable to the Master Servicer, the Special
Servicer, the Trustee or the Fiscal Agent in respect of such unreimbursed
Servicing Advances in accordance with Section 3.11(g) as of the close of
business on such related Determination Date;
(viii) the aggregate unpaid principal balance of the Mortgage Pool
outstanding as of the close of business on the related Determination Date
and the aggregate Stated Principal Balance of the Mortgage Pool
outstanding immediately before and immediately after such Distribution
Date;
(ix) the number, aggregate unpaid principal balance, weighted
average remaining term to maturity and weighted average Mortgage Rate of
the Mortgage Loans (other than REO Loans) as of the close of business on
the related Determination Date;
(x) the number, aggregate unpaid principal balance (as of the close
of business on the related Determination Date and aggregate Stated
Principal Balance (immediately after such Distribution Date) of Mortgage
Loans (A) delinquent 30 to 59 days, (B) delinquent 60 to 89 days, (C)
delinquent 90 or more days, (D) as to which foreclosure proceedings have
been commenced, and (E) as to which, to the knowledge of the Master
Servicer or the Special Servicer, as applicable, bankruptcy proceedings
have commenced in respect of the related Mortgagor;
(xi) as to each Mortgage Loan referred to in the preceding clause
(x) above, (A) the loan number thereof, (B) the Stated Principal Balance
thereof immediately following such Distribution Date and (C) whether the
delinquency is in respect of its Balloon Payment;
(xii) with respect to any Mortgage Loan as to which a Liquidation
Event occurred during the related Collection Period (other than a payment
in full), (A) the loan number thereof, (B) the nature of the Liquidation
Event and, in the case of a Final Recovery Determination, a brief
description of the basis for such Final Recovery Determination, (C) 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 (D) the
amount of any Realized Loss in connection with such Liquidation Event;
(xiii) with respect to any REO Property that was included in the
Trust Fund as of the close of business on the related Determination Date,
the loan number of the related Mortgage Loan, the book value of such REO
Property and the amount of REO Revenues and other amounts, if any,
received with respect to such REO Property during the related Collection
Period (separately identifying the portion thereof allocable to
distributions on the Certificates) and, if available, the Appraised Value
of such REO Property as expressed in the most recent appraisal thereof and
the date of such appraisal;
(xiv) with respect to any Mortgage Loan as to which the related
Mortgaged Property became an REO Property during the related Collection
Period, the loan number of such Mortgage Loan and the Stated Principal
Balance of such Mortgage Loan as of the related Acquisition Date;
(xv) with respect to any REO Property included in the Trust Fund as
to which a Final Recovery Determination was made during the related
Collection Period, (A) the loan number of the related Mortgage Loan, (B) a
brief description of the basis for the Final Recovery Determination, (C)
the aggregate of all Liquidation Proceeds and other amounts received with
respect to such REO Property during the related Collection Period
(separately identifying the portion thereof allocable to distributions on
the Certificates), (D) the amount of any Realized Loss in respect of the
related REO Loan in connection with such Final Recovery Determination and
(E), if available, the Appraised Value of such REO Property as expressed
in the most recent appraisal thereof and the date of such appraisal;
(xvi) the Distributable Certificate Interest and Accrued Certificate
Interest in respect of each Class of Regular Interest Certificates for
such Distribution Date or the related Interest Accrual Period, as
applicable;
(xvii) any unpaid Distributable Certificate Interest in respect of
each Class of Regular Interest Certificates after giving effect to the
distributions made on such Distribution Date, and if the full amount of
the Principal Distribution Amount was not distributed on such Distribution
Date, the portion of the shortfall affecting each Class of Principal
Balance Certificates;
(xviii) the Pass-Through Rate for each Class of Regular Interest
Certificates for such Distribution Date;
(xix) the Principal Distribution Amount for such Distribution Date
(and, in the case of any Principal Prepayment or other unscheduled
collection of principal received during the related Collection Period, the
loan number for the related Mortgage Loan and the amount of such
prepayment or other collection of principal);
(xx) the aggregate of all Realized Losses incurred during the
related Collection Period and from the Closing Date and all Additional
Trust Fund Expenses (with a description thereof) incurred during the
related Collection Period and from the Closing Date;
(xxi) the aggregate of all Realized Losses and Additional Trust Fund
Expenses that remain unallocated immediately following such Distribution
Date;
(xxii) the Class Principal Balance of each Class of Principal
Balance Certificates and the Notional Amount of each Class of the Class X
Certificates, outstanding immediately before and immediately after such
Distribution Date, separately identifying any reduction therein due to the
allocation of Realized Losses and Additional Trust Fund Expenses on such
Distribution Date;
(xxiii) the Certificate Factor for each Class of Regular Interest
Certificates immediately following such Distribution Date;
(xxiv) the aggregate amount of any interest on Advances in respect
of the Mortgage Pool paid to the Master Servicer, the Trustee and the
Fiscal Agent during the related Collection Period in accordance with
Section 3.11(g), Section 4.03(d) and/or Section 4.03A(d);
(xxv) (A) the loan number for each Required Appraisal Loan and any
related Appraisal Reduction Amount (including an itemized calculation
thereof) as of the related Determination Date and (B) the aggregate
Appraisal Reduction Amount for all Required Appraisal Loans as of the
related Determination Date;
(xxvi) on a cumulative basis from the Cut-off Date, the number,
aggregate Stated Principal Balance immediately after such Distribution
Date (in the case of subclauses (A), (B) and (E)), aggregate Cut-off Date
Balance (in the case of subclauses (C) and (D)), weighted average
extension period (except in the case of subclause (B) and which shall be
zero in the case of subclause (C)), and weighted average anticipated
extension period (in the case of subclause (B)) of Mortgage Loans (A) as
to which the maturity dates have been extended, (B) as to which the
maturity dates are in the process of being extended, (C) that have paid
off and were never extended, (D) as to which the maturity dates had
previously been extended and have paid off and (E) as to which the
maturity dates had been previously extended and are in the process of
being further extended;
(xxvii) the original and then current credit support levels for each
Class of Regular Interest Certificates;
(xxviii) the original and then current ratings, if any, for each
Class of Regular Interest Certificates;
(xxix) the aggregate amount of Prepayment Premiums and Yield
Maintenance Charges collected (A) during the related Collection Period and
(B) since the Closing Date;
(xxx) (A) the aggregate amount of servicing compensation in respect
of the Mortgage Pool (separately identifying the amount of each category
of compensation) paid to the Master Servicer, the Special Servicer and, if
payable directly out of the Trust Fund without a reduction in the
servicing compensation otherwise payable to the Master Servicer or the
Special Servicer, to each Sub-Servicer, during the related Collection
Period, and (B) such other information as the Trustee is required by the
Code or other applicable law to furnish to enable Certificateholders to
prepare their tax returns; and
(xxxi) amounts distributable as interest, principal and other
amounts to the Class Y Certificates in respect of the Oakmonte Junior
Portion; and
(xxxii) the amounts, if any, actually distributed with respect to
the Class R-I and Class R-II Certificates on such Distribution Date.
In the case of information to be furnished pursuant to clauses (i)
through (iv) above, the amounts shall be expressed as a dollar amount in the
aggregate for all Certificates of each applicable Class and per Single
Certificate. In the case of information provided to the Trustee as a basis for
information to be furnished pursuant to clauses (vi) through (xv), (xix), (xx),
(xxiv), (xxv), (xxvi), (xxix) and (xxx) above, insofar as the underlying
information is solely within the control of the Special Servicer or the Master
Servicer, the Trustee may, absent manifest error, conclusively rely on the
reports to be provided by the Special Servicer or the Master Servicer.
The Trustee shall forward electronically a copy of each Distribution
Date Statement to the Depository. The Trustee shall make available each month,
to Certificateholders, Certificate Owners, the Underwriters, the Rating
Agencies, the Controlling Class Directing Holder, any party hereto or any Person
identified by any Certificateholder or Certificate Owner as a prospective
transferee, via the Trustee's internet website with the use of a password
provided by the Trustee to such Person upon request and, in the case of a
Certificateholder, a Certificate Owner or a prospective transferee of a
Certificate or any interest therein, upon receipt by the Trustee from such
person of a certification substantially in the form of Exhibit N-1 or N-2, as
applicable, all Certificateholder Reports and any additional files containing
substantially similar information in an alternative format and, with the consent
or at the direction of the Depositor, such other information regarding the
Certificates and/or the Mortgage Loans as the Trustee may have in its
possession. The Trustee will make no representations or warranties as to the
accuracy or completeness of such documents and will assume no responsibility
therefor.
The Trustee's internet website shall initially be located at
xxx.xxxxxxxx.xxx or at such other address as shall be specified by the Trustee
from time to time in the Distribution Date Statement and in one or more written
notices delivered to the other parties hereto, the Controlling Class Directing
Holder (if any), the Certificateholders and the Rating Agencies. In connection
with providing access to the Trustee's internet website, the Trustee may require
the acceptance of a disclaimer. The Trustee shall not be liable for the
dissemination of information in accordance with this Agreement.
The Master Servicer may, but is not required to, make available each
month, to Certificateholders, Certificate Owners (that have been confirmed as
such by the Trustee), the Controlling Class Directing Holder, the Underwriters,
the Rating Agencies or any party hereto, the Certificateholder Reports, on its
internet website. The Master Servicer will make no representations or warranties
as to the accuracy or completeness of any report not prepared by it and will
assume no responsibility for any information for which it is not the original
source.
The Master Servicer's internet website shall initially be located at
"xxx.xxxxxxxx.xxx" or at such other address as shall be specified by the Master
Servicer from time to time in one or more written notices delivered to the other
parties hereto, the Controlling Class Directing Holder (if any), the
Certificateholders and the Rating Agencies. In connection with providing access
to the Master Servicer's internet website, the Master Servicer may require the
acceptance of a disclaimer. The Master Servicer shall not be liable for the
dissemination of information to Certificateholders and Certificate Owners in
accordance with this Agreement. Access to the Master Servicer's internet website
shall be with the use of a password provided by the Master Servicer, which, in
the case of a Certificateholder or a Certificate Owner, shall only be provided
upon receipt by the Master Servicer from such Person of a certification
substantially in the form of Exhibit N-1. Notwithstanding the foregoing, upon
the Depositor's notifying the Master Servicer that the Non-Registered
Certificates have been sold by the Underwriters to unaffiliated third parties,
the Master Servicer may make the Servicer Reports available on its internet
website without a password, provided that for so long as reports are required to
be filed with the Commission in respect of the Trust pursuant to Section 15(d)
of the Exchange Act, the subject reports shall have been previously filed with
the Commission (which shall be confirmed by the Master Servicer by request made
to the Trustee).
If the Master Servicer determines, in its reasonable judgment, that
information regarding the Mortgage Loans and REO Properties (in addition to the
information otherwise required to be contained in the CMSA Investor Reporting
Package) should be disclosed to Certificateholders and Certificate Owners, then
(A) the Master Servicer shall so notify the Trustee, set forth such information
in an additional report, in a format reasonably acceptable to the Trustee and
the Master Servicer (the "Supplemental Report"), and deliver such report to the
Trustee upon preparation thereof or simultaneously with the delivery of its
reports described in Section 3.12(c); and (B) the Trustee shall include the
Supplemental Report in or as an attachment to the Distribution Date Statement
for the following Distribution Date and, to the extent required by Section
8.15(a), shall file such Supplemental Report, together with such Distribution
Date Statement and the other corresponding Servicer Reports, on the related
Current Report on Form 8-K and/or the related Annual Report on Form 10-K, as
applicable, in accordance with Section 8.15(a).
During any period that reports are required to be filed with the
Commission with respect to the Trust pursuant to Section 15(d) of the Exchange
Act, each recipient of a Certificateholder Report, a CMSA NOI Adjustment
Worksheet or a CMSA Operating Statement Analysis Report shall be deemed to have
agreed to keep confidential the information therein until such statement or
report is filed with the Commission, and each Certificateholder Report, CMSA NOI
Adjustment Worksheet and CMSA Operating Statement Analysis Report shall bear a
legend to the effect that: "Until this statement/report is filed with the
Commission with respect to the Trust pursuant to Section 15(d) of the Securities
Exchange Act of 1934, as amended, the recipient hereof shall be deemed to keep
the information contained herein confidential and such information will not,
without the prior consent of the Master Servicer or the Trustee, be disclosed by
such recipient or by its officers, directors, partners, employees, agents or
representatives in any manner whatsoever, in whole or in part."
Absent manifest error of which it has actual knowledge, none of the
Master Servicer, the Special Servicer or the Trustee shall be responsible for
the accuracy or completeness of any information supplied to it by a Mortgagor,
the Mortgage Loan Seller or third party that is included in any reports,
statements, materials or information prepared or provided by the Master
Servicer, the Special Servicer or the Trustee, as applicable, pursuant to this
Agreement. None of the Trustee, the Master Servicer or the Special Servicer
shall have any obligation to verify the accuracy or completeness of any
information provided by a Mortgagor, the Mortgage Loan Seller, a third party or
each other.
Within a reasonable period of time after the end of each calendar
year the Trustee shall send to each Person who at any time during the calendar
year was a Certificateholder of record, a report summarizing on an annual basis
(if appropriate) the items relating to distributions of interest (including
Prepayment Premiums and Yield Maintenance Charges) and principal to
Certificateholders during such calendar year set forth in the Distribution Date
Statements and such other information as may be required to enable such
Certificateholders to prepare their federal income tax returns. Such information
shall include the amount of original issue discount accrued on each Class of
Certificates and information regarding the expenses of the Trust Fund. Such
requirement shall be deemed to be satisfied to the extent such information is
provided pursuant to applicable requirements of the Code from time to time in
force.
Upon receipt of notice from the Depositor that the Underwriters have
sold the Non-Registered Certificates to unaffiliated third parties, the Trustee
shall make available electronically or, if so requested, forward by hard copy,
on each Distribution Date, to (i) the Xxxxx Group (at 000 Xxxxxxx Xxxxxx, 00xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 or such other address as the Xxxxx Group may
designate), (ii) Intex Solutions, Inc. (at 00 Xxxxxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxxxxxxx 00000, or such other address as Intex Solutions, Inc. may
hereafter designate), (iii) Charter Research Corporation (at 000 Xxxxxxxxxx
Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, or such other address as Charter Research
Corporation may hereafter designate), and (iv) any other similar third party
information provider, a copy of the reports made available to the Holders of the
Certificates on such Distribution Date as described above.
Upon written request of the Depositor or any Underwriter, without
payment of any fee, and upon written request of any Certificateholders or any
other Person, together with payment of a reasonable fee specified by the
Trustee, the Trustee shall provide any statements, reports and/or information
contemplated by this Section 4.02(a) electronically to such party (such
electronic distribution and such statements, reports, and/or information thereon
to bear such appropriate disclaimers and qualifications as the Depositor and the
Trustee shall determine in their reasonable discretion).
If any Certificate Owner does not receive through the Depository or
any of its Depository Participants any of the statements, reports and/or other
written information described above in this Section 4.02(a) that it would
otherwise be entitled to receive if it were the Holder of a Definitive
Certificate evidencing its ownership interest in the related Class of Book-Entry
Certificates, then the Trustee shall forward such statements, reports and/or
other written information to such Certificate Owner as provided above, upon the
request of such Certificate Owner made in writing to the Corporate Trust Office
(accompanied by current verification of such Certificate Owner's ownership
interest). Such portion of such information as may be agreed upon by the
Depositor and the Trustee shall be furnished to any such Person via overnight
courier delivery or telecopy from the Trustee; provided that the cost of such
overnight courier delivery or telecopy shall be an expense of the party
requesting such information.
The Trustee shall only be obligated to deliver the statements,
reports and information contemplated by this Section 4.02(a) to the extent it
receives, in the format required by this Agreement, the necessary underlying
information from the Master Servicer or the Special Servicer (either directly or
indirectly through the Master Servicer), as applicable, and shall not be liable
for any failure to deliver any thereof on the prescribed due dates, to the
extent caused by failure to receive timely such underlying information. Nothing
herein shall obligate the Trustee, the Master Servicer or the Special Servicer
to violate any applicable law prohibiting disclosure of information with respect
to any Mortgagor and the failure of the Trustee, Master Servicer or the Special
Servicer to disseminate information for such reason shall not be a breach
hereof.
The information to be furnished by the Trustee to the
Certificateholders pursuant to Sections 4.02(a) and (b) shall not limit the
Trustee in furnishing any such information to other Persons to whom it
determines such disclosure to be appropriate and shall not limit the Trustee in
furnishing to Certificateholders or to any Person any other information with
respect to the Mortgage Loans, the Mortgaged Properties or the Trust Fund as may
be provided to it by the Depositor, the Master Servicer or the Special Servicer
or gathered by it in any investigation or other manner from time to time (such
information, other than as described in Sections 4.02(a) and (b), is referred to
herein as "Additional Information") as it may reasonably deem necessary or
appropriate from time to time, provided that (A) the Trustee shall give the
Depositor three Business Days' advance notice before doing so, (B) any such
Additional Information shall only be furnished with the consent or at the
request of the Depositor (except pursuant to clause (E) below), (C) the Trustee
shall be entitled to indicate the source of all information furnished by it, and
the Trustee may affix thereto any disclaimer it deems appropriate in its
reasonable discretion, (D) the Trustee shall notify Certificateholders of the
availability of any such information in any manner as it, in its sole
discretion, may determine, and (E) the Trustee may, in its sole discretion,
furnish Additional Information which originated from the Special Servicer to a
Rating Agency in any instance, and to the Certificateholders, Certificate Owners
and/or the public-at-large if it determines that the furnishing of such
information would assist in the evaluation of the investment characteristics or
valuation of the Certificates or would be in the best interests of the
Certificateholders or is required by applicable law and, in the case of any such
Additional Information originating from the Special Servicer requested by or
provided to a Certificate Owner or Certificateholder, such Certificate Owner or
Certificateholder has delivered an executed certification substantially in the
form of Exhibit N-1 attached hereto (unless, on a case-by-case basis, the
Special Servicer waives, in writing, the requirement of such certification);
provided, however, that nothing in clauses (A) through (E) above shall prevent
the Trustee, whether with or without the consent of the Depositor, from
furnishing information with respect to the Trust Fund and its administration
thereof to any Person, if it reasonably determines that the furnishing of such
information is required by applicable law. The Trustee shall forward to the
Depositor any requests for Additional Information which, for their fulfillment,
require the consent of the Depositor. Nothing herein shall be construed to
impose upon the Trustee any obligation or duty to furnish or distribute any
Additional Information to any Person in any instance.
(b) Not later than 1:00 p.m. (New York City time) on the second
Business Day prior to each Distribution Date, the Master Servicer shall furnish
to the Trustee, and upon request, to the Depositor, the Underwriters and the
Special Servicer, by electronic transmission (or in such other form to which the
Trustee or the Depositor, as the case may be, and the Master Servicer may
agree), an accurate and complete CMSA Loan Periodic Update File providing the
required information for the Mortgage Loans and any successor REO Mortgage Loans
as of the related Determination Date.
In the performance of its obligations set forth in Section 4.05 and
its other duties hereunder, the Trustee may conclusively rely on the CMSA Loan
Periodic Update File provided to it by the Master Servicer, and the Trustee
shall not be responsible to recompute, recalculate or verify the information
provided to it by the Master Servicer. In the case of information to be
furnished by the Master Servicer to the Trustee pursuant to this Section
4.02(b), insofar as such information is solely within the control of the Special
Servicer, the Master Servicer (if other than the Special Servicer or an
Affiliate thereof) shall have no obligation to provide such information until it
has received such information from the Special Servicer, shall not be in default
hereunder due to a delay in providing the CMSA Loan Periodic Update File caused
by the Special Servicer's failure to timely provide any report required under
this Agreement and may, absent actual knowledge of an error therein,
conclusively rely on the reports to be provided by the Special Servicer. The
Master Servicer may conclusively rely on any information provided by the
Depositor or any Mortgagor with respect to the CMSA Loan Periodic Update File,
CMSA Loan Setup File, CMSA Property File and CMSA Financial File.
Section 4.03 P&I Advances.
(a) On or before 2:00 p.m., New York City time, on each Master
Servicer Remittance Date, the Master Servicer shall, subject to Section 4.03(c)
below, satisfy its obligations to make any required P&I Advances with respect to
the related Distribution Date in respect of the Mortgage Pool (other than the
Split Mortgage Loans or any successor REO Mortgage Loans with respect thereto),
first, by transferring to the Trustee for deposit in the Distribution Account
amounts then held in the Pool Custodial Account for future distribution to
Certificateholders in subsequent months in discharge of such obligations, and
second, by remitting its own funds to the Trustee for deposit in a Distribution
Account in an amount equal to the remaining portion of such required P&I
Advances. Any amounts held in the Pool Custodial Account for future distribution
and so used to make P&I Advances shall be appropriately reflected in the Master
Servicer's records and replaced by the Master Servicer by deposit in the Pool
Custodial Account on or before the next succeeding Determination Date (to the
extent not previously replaced through the deposit of Late Collections of the
delinquent principal and interest in respect of which such P&I Advances were
made). If, as of 4:00 p.m., New York City time, on any Master Servicer
Remittance Date, the Master Servicer shall not have made any P&I Advance
required to be made on such date pursuant to this Section 4.03(a) (and shall not
have delivered to the Trustee the requisite Officer's Certificate and
documentation related to a determination of nonrecoverability of a P&I Advance),
then the Trustee shall provide notice of such failure to a Servicing Officer of
the Master Servicer by facsimile transmission sent to telecopy no. (704)
593-7740 (or such alternative number provided by the Master Servicer to the
Trustee in writing) and by telephone at telephone no. (000) 000-0000 or (704)
593-7867 (or such alternative number provided by the Master Servicer to the
Trustee in writing) as soon as possible, but in any event before 5:00 p.m., New
York City time, on such Master Servicer Remittance Date. If after such notice by
facsimile, the Trustee does not receive the full amount of such P&I Advances by
11:00 a.m., New York City time, on the related Distribution Date, then the
Trustee (or the Fiscal Agent on its behalf) shall make the portion of such P&I
Advances that was required to be, but was not, made by the Master Servicer on
such Master Servicer Remittance Date. If the Trustee fails to make any such P&I
Advance on the related Distribution Date, but the Fiscal Agent makes such P&I
Advance on such date, then the Trustee shall be deemed not to be in default
hereunder.
(b) The aggregate amount of P&I Advances to be made by the Master
Servicer, the Trustee or the Fiscal Agent, as the case may be, pursuant to the
first paragraph of Section 4.03(a) in respect of any Distribution Date shall,
subject to Section 4.03(c) below, equal the aggregate of all Monthly Payments
(other than Balloon Payments) and any Assumed Monthly Payments, in each case net
of related Master Servicing Fees and any related Workout Fees, due or deemed
due, as the case may be, in respect of the Mortgage Loans (including Balloon
Mortgage Loans delinquent as to their respective Balloon Payments) and any REO
Mortgage Loans in the Mortgage Pool (exclusive of the Split Mortgage Loans or
any successor REO Mortgage Loans with respect thereto) on their respective Due
Dates during the related Collection Period, in each case to the extent such
amount was not paid by or on behalf of the related Mortgagor or otherwise
collected (including as net income from REO Properties) as of the close of
business on the related Determination Date; provided that if it is determined
that an Appraisal Reduction Amount exists with respect to any such Mortgage Loan
or REO Mortgage Loan, then, in the event of subsequent delinquencies thereon,
the amount of each P&I Advance, if any, required to be made in respect of such
Mortgage Loan or REO Mortgage Loan, as the case may be, during the period that
such Appraisal Reduction Amount continues to exist, shall be reduced to equal
the product of (x) the amount of the subject P&I Advance that would otherwise be
required without regard to this proviso, multiplied by (y) a fraction, the
numerator of which is equal to the Stated Principal Balance of such Mortgage
Loan or REO Mortgage Loan, as the case may be, net of such Appraisal Reduction
Amount, and the denominator of which is equal to the Stated Principal Balance of
such Mortgage Loan or REO Mortgage Loan, as the case may be.
(c) Notwithstanding anything herein to the contrary, no P&I Advance
shall be required to be made under this Section 4.03 if such P&I Advance would,
if made, constitute a Nonrecoverable P&I Advance. The determination by the
Master Servicer that it has made a Nonrecoverable P&I Advance pursuant to this
Section 4.03 or that any proposed P&I Advance, if made pursuant to this Section
4.03, would constitute a Nonrecoverable P&I Advance, shall be evidenced by an
Officer's Certificate delivered to the Trustee, the Fiscal Agent and the
Depositor on or before the related Master Servicer Remittance Date, setting
forth the basis for such determination, together with any other information that
supports such determination, including an appraisal (which appraisal shall have
been conducted by an Independent Appraiser within the 12-month period preceding
such determination in accordance with the standards of the Appraisal Institute
taking into account the factors specified in Section 3.18), related Mortgagor
operating statements and financial statements, budgets and rent rolls of the
related Mortgaged Properties (to the extent available and/or in the Master
Servicer's or the Special Servicer's possession), engineers' reports,
environmental surveys and any similar reports that the Master Servicer may have
obtained consistent with the Servicing Standard and at the expense of the Trust
Fund, that support such determination by the Master Servicer. If, in connection
with the foregoing, it is necessary for the Master Servicer to obtain an
appraisal, the Master Servicer shall so notify the Special Servicer and consult
with the Special Servicer regarding such appraisal. The Trustee and the Fiscal
Agent shall be entitled to rely, conclusively, on any determination by the
Master Servicer that a P&I Advance, if made, would be a Nonrecoverable P&I
Advance; provided, however, that if the Master Servicer has failed to make a P&I
Advance for reasons other than a determination by the Master Servicer that such
P&I Advance would be Nonrecoverable P&I Advance, the Trustee or Fiscal Agent
shall make such Advance within the time periods required by Section 4.03(a)
unless the Trustee or the Fiscal Agent, in its good faith, reasonable
discretion, makes a determination prior to the times specified in Section
4.03(a) that such P&I Advance would be a Nonrecoverable P&I Advance. Upon a
determination that any P&I Advance previously made with respect to a Specially
Serviced Loan or REO Loan is a Nonrecoverable P&I Advance, the Special Servicer
shall report to the Master Servicer the Special Servicer's determination. The
Master Servicer shall be entitled to conclusively rely on such determination.
(d) The Master Servicer, the Trustee and the Fiscal Agent shall each
be entitled to receive interest at the Reimbursement Rate in effect from time to
time, compounded annually, accrued on the amount of each P&I Advance made
thereby under this Section 4.03 (with its own funds) for so long as such P&I
Advance is outstanding; provided that, if the grace period for the delinquent
Monthly Payment as to which a P&I Advance was made under this section has not
elapsed as of the time such P&I Advance was made, then the total interest so
accrued on such P&I Advance prior to the expiration of such grace period, shall
not exceed the amount of Default Charges, if any, collected in connection with
the late payment of such delinquent Monthly Payment; and provided, further,
that, in no event shall interest so accrue on any P&I Advance as to which the
corresponding Late Collection was received by the Master Servicer or a
Sub-Servicer on its behalf as of the related Master Servicer Remittance Date.
Interest so accrued on any P&I Advance made under this section shall be payable:
(i) first, in accordance with Sections 3.05 and 3.26, out of any Default Charges
collected on or in respect of the Mortgage Loan or REO Loan as to which the P&I
Advance relates (provided that such Default Charges will only be applied to pay
interest on such P&I Advance through the date that such Default Charges were
received); and (ii) then, if and to the extent that such Default Charges are
insufficient to cover interest, but not before if the related Advance is being
reimbursed or has been reimbursed pursuant to this Agreement, out of general
collections on the Mortgage Loans and REO Properties on deposit in the Pool
Custodial Account. The Master Servicer shall, in accordance with Section
3.05(a), reimburse itself, the Trustee or the Fiscal Agent, as applicable, for
any outstanding P&I Advance made thereby under this Section 4.03 as soon as
practicable after funds available for such purpose are deposited in the Pool
Custodial Account.
Section 4.03A. P&I Advances on the Split Mortgage Loans and Windsor
Capital Portfolio Pari Passu Companion Loan.
(a) On or before 2:00 p.m., New York City time, on each Master
Servicer Remittance Date, the Master Servicer shall, subject to Section 4.03A(c)
below, satisfy its obligations to make any required P&I Advance on such Master
Servicer Remittance Date in respect of (i) the Split Mortgage Loans (including
the 000 Xxxxx Xxxxxx Xxxxx Trust Loan (but only to the extent such P&I Advance
was required to be made by the 2002-C1 Master Servicer, pursuant to the 0000-X0
XXX, and the 2002-C1 Master Servicer failed to make such P&I Advance) and the
Oakmonte Senior Portion but not including the Oakmonte Junior Portion) and (ii)
the Windsor Capital Portfolio Pari Passu Companion Loan, from and after date on
which such Companion Loan is an asset in a securitization, by depositing into
the related Loan Pair Custodial Account, out of amounts held in such Custodial
Account for future distribution (subject to replacement of such amounts by the
following Master Servicer Remittance Date) and, if such amounts are
insufficient, then out of its own funds, the amount of such P&I Advance required
to be made. If, as of 4:00 p.m., New York City time, on any Master Servicer
Remittance Date, the Master Servicer shall not have made any P&I Advance
required to be made on such date pursuant to this Section 4.03A(a) in respect of
the Split Mortgage Loans (and the Master Servicer shall not have delivered to
the Trustee the requisite Officer's Certificate and documentation related to a
determination of nonrecoverability of a P&I Advance), then the Trustee shall
provide notice of such failure to a Servicing Officer of the Master Servicer by
facsimile transmission sent to telecopy no. (000) 000-0000 (or such alternative
number provided by the Master Servicer to the Trustee in writing) and by
telephone at telephone no. (000) 000-0000 or (000) 000-0000 (or such alternative
number provided by the Master Servicer to the Trustee in writing) as soon as
possible, but in any event before 5:00 p.m., New York City time, on such Master
Servicer Remittance Date. If after such notice, the Trustee does not receive the
full amount of such P&I Advance(s) by 11:00 a.m., New York City time, on the
related Distribution Date, then the Trustee (or the Fiscal Agent on its behalf)
shall make the portion of such P&I Advances that was required to be, but was
not, made by the Master Servicer in respect of the Split Mortgage Loans or any
successor REO Mortgage Loans with respect thereto on the preceding Master
Servicer Remittance Date. If the Trustee fails to make any such P&I Advance on
the related Distribution Date, but the Fiscal Agent makes such P&I Advance on
such date, then the Trustee shall be deemed not to be in default hereunder.
(b) The aggregate amount of P&I Advances to be made by the Master
Servicer, the Trustee or the Fiscal Agent, as the case may be, pursuant to the
first paragraph of Section 4.03A(a) in respect of any Distribution Date shall,
subject to Section 4.03A(c) below, equal the aggregate of all Monthly Payments
(other than Balloon Payments) and any Assumed Monthly Payments, in each case net
of related Master Servicing Fees and any related Workout Fees, due or deemed
due, as the case may be, in respect of the Split Mortgage Loans (including the
000 Xxxxx Xxxxxx Xxxxx Trust Loan and the Oakmonte Senior Portion, but not
including the Oakmonte Junior Portion) (including Balloon Mortgage Loans
delinquent as to their respective Balloon Payments) and any successor REO
Mortgage Loans to the Split Mortgage Loans on their respective Due Dates during
the related Collection Period, (i) in each case other than with respect to the
000 Xxxxx Xxxxxx Xxxxx Trust Loans to the extent such amount was not paid by or
on behalf of the related Mortgagor or otherwise collected (including as net
income from REO Properties) as of the close of business on the related
Determination Date, or (ii) in the case of the 000 Xxxxx Xxxxxx Xxxxx Trust
Loan, to the extent such amount was required to be advanced by the 2002-C1
Master Servicer, pursuant to the 2002-C1 PSA and the 2002-C1 Master Servicer
failed to make such advance; provided that if it is determined that an Appraisal
Reduction Amount exists with respect to any such Mortgage Loan or REO Mortgage
Loan, then, in the event of subsequent delinquencies thereon, the amount of each
P&I Advance, if any, required to be made in respect of such Mortgage Loan or REO
Mortgage Loan, as the case may be, during the period that such Appraisal
Reduction Amount continues to exist, shall be reduced to equal the product of
(x) the amount of the subject P&I Advance that would otherwise be required
without regard to this proviso, multiplied by (y) a fraction, the numerator of
which is equal to the Stated Principal Balance of such Mortgage Loan or REO
Mortgage Loan, as the case may be, net of such Appraisal Reduction Amount (other
than any Appraisal Reduction Amount applied to the Stated Principal Balance of
the related Companion Loan), and the denominator of which is equal to the Stated
Principal Balance of such Mortgage Loan or REO Mortgage Loan, as the case may
be. For purposes of the preceding sentence Appraisal Reduction Amounts with
respect to a Loan Pair (including the Oakmonte Apartment Homes Whole Loan) shall
be applied first to the related Companion Loan and then to the related Split
Mortgage Loan. The aggregate amount of the P&I Advances to be made by the Master
Servicer in respect of the Windsor Capital Portfolio A/B Loan on any Master
Servicer Remittance Date shall, subject to Section 4.03A(c) below, equal the sum
of the aggregate of the Monthly Payments or, if applicable, the Assumed Monthly
Payments, net of related Master Servicing Fees and any related Workout Fees, due
(or, in the case of Assumed Monthly Payments, deemed due) in respect of the
Windsor Capital Portfolio Senior Loans on their Due Date during the related
Collection Period, but only to the extent that such amounts were not paid by or
on behalf of the related Mortgagor or otherwise collected (including as net
income from any related Loan Pair REO Property) as of the close of business on
the related Determination Date; provided that if it is determined that an
Appraisal Reduction Amount exists with respect to the Windsor Capital Portfolio
A/B Loan, then, in the event of subsequent delinquencies on such Loan Pair, each
P&I Advance, if any, required to be made in respect of such Loan Pair during the
period that such Appraisal Reduction Amount continues to exist, shall be reduced
to equal the product of (i) the amount of the subject P&I Advance that would
otherwise be required in respect of the Windsor Capital Portfolio Senior Loans
without regard to this proviso and the immediately following sentence,
multiplied by (ii) a fraction, the numerator of which is equal to the aggregate
Stated Principal Balance of the Windsor Capital Portfolio Senior Loans, net of
the portion of the Appraisal Reduction Amount which exceeds the Stated Principal
Balance of the Windsor Capital Portfolio Junior Companion Loan as of the related
Determination Date, and the denominator of which is equal to the aggregate
Stated Principal Balance of the Windsor Capital Portfolio; and provided,
further, that any reduction in the P&I Advance to be made in respect of the
Windsor Capital Portfolio A/B Loan on any Master Servicer Remittance Date in
accordance with the immediately preceding proviso shall be allocable against the
portion of the P&I Advances to be made in respect of the Windsor Capital
Portfolio Senior Loans or any related REO Loans, pro rata, based on the portion
of such P&I Advance that represents principal and interest on each of such
Windsor Capital Portfolio.
(c) Notwithstanding anything herein to the contrary, no P&I Advance
shall be required to be made under this Section 4.03A with respect to Split
Mortgage Loans or the Windsor Capital Portfolio Pari Passu Companion Loan or
related REO Loans if such P&I Advance would, if made, constitute a
Nonrecoverable P&I Advance. The determination by the Master Servicer that any
proposed P&I Advance, if made pursuant to this Section 4.03A with respect to
Split Mortgage Loans or the Windsor Capital Portfolio Pari Passu Companion Loan
or related REO Loans, would constitute a Nonrecoverable P&I Advance, shall be
evidenced by an Officer's Certificate delivered to the Trustee and the Companion
Loan Noteholders on or before the next Master Servicer Remittance Date, setting
forth the basis for such determination, together with any other information that
supports such determination, including an appraisal (which appraisal shall be an
expense payable out of the related Loan Pair Custodial Account and shall have
been conducted by an Independent Appraiser in accordance with the standards of
the Appraisal Institute, within the twelve months preceding such determination
of nonrecoverability), Mortgagor operating statements and financial statements,
budgets and rent rolls of the Mortgaged Property (to the extent available and/or
in the Master Servicer's or the Special Servicer's possession), engineers'
reports, environmental surveys and any similar reports that the Master Servicer
may have obtained consistent with the Servicing Standard and that support such
determination by the Master Servicer. If, in connection with the foregoing, it
is necessary for the Master Servicer to obtain an appraisal, the Master Servicer
shall so notify the Special Servicer and consult with the Special Servicer
regarding such appraisal. The Trustee and the Fiscal Agent shall be entitled to
rely, conclusively, on any determination by the Master Servicer that a P&I
Advance to be made in respect of the Split Mortgage Loans or any successor REO
Mortgage Loans with respect thereto, if made, would be a Nonrecoverable Advance;
provided, however, that if the Master Servicer has failed to make such a P&I
Advance with respect to the Split Mortgage Loans or any successor REO Mortgage
Loan for reasons other than a determination by the Master Servicer that such P&I
Advance would be Nonrecoverable Advance, the Trustee or Fiscal Agent shall make
such Advance within the time periods required by Section 4.03A(a) unless the
Trustee or the Fiscal Agent, in its good faith, reasonable discretion, makes a
determination prior to the times specified in Section 4.03A(a) that such P&I
Advance would be a Nonrecoverable P&I Advance. In the event the Split Mortgage
Loans are Specially Serviced Mortgage Loans, then upon a determination that any
P&I Advance made with respect to the Split Mortgage Loans or any successor REO
Mortgage Loans with respect thereto is a Nonrecoverable P&I Advance, the Special
Servicer shall report to the Master Servicer the Special Servicer's
determination. The Master Servicer shall be entitled to conclusively rely on
such determination.
(d) The Master Servicer, the Trustee and the Fiscal Agent shall be
entitled to receive interest at the Reimbursement Rate in effect from time to
time, compounded monthly, accrued on the amount of each P&I Advance made thereby
in respect of a Split Mortgage Loan or the Windsor Capital Portfolio Pari Passu
Companion Loan or related REO Loans under this Section 4.03A (with its own
funds) for so long as such P&I Advance is outstanding; provided that, if the
grace period for the delinquent Monthly Payment as to which a P&I Advance was
made under this section has not elapsed as of the time such P&I Advance was
made, then the total interest so accrued on such P&I Advance prior to the
expiration of such grace period, shall not exceed the amount of Default Charges,
if any, collected in connection with the late payment of such delinquent Monthly
Payment; and provided, further, that in no event shall interest so accrue on any
P&I Advance in respect of a Split Mortgage Loan or the Windsor Capital Portfolio
Pari Passu Companion Loan or related REO Loan as to which the corresponding Late
Collection was received by the Master Servicer or a Sub-Servicer on its behalf
as of the Master Servicer Remittance Date on which such P&I Advance was made.
Interest so accrued on any P&I Advance made under this section shall be payable:
(i) first, in accordance with Sections 3.05A and 3.26, out of Default Charges
collected on or in respect of the related Companion Loan or any successor REO
Loan with respect thereto in the applicable Loan Pair (provided that such
Default Charges will only be applied to pay interest accrued on such P&I Advance
through the date that such Default Charges are received), (ii) second, in
accordance with Sections 3.05A and 3.26, out of Default Charges collected on or
in respect of the related Split Mortgage Loan or any successor REO Loan with
respect thereto in the applicable Loan Pair (provided that such Default Charges
will only be applied to pay interest accrued on such P&I Advance through the
date that such Default Charges are received), and (iii) third, to the extent
that the Default Charges described in the immediately preceding clauses (i) and
(ii) are insufficient, but only if such Advance is being reimbursed at the same
time or if such Advance has been previously reimbursed, out of any other
collections that were made on or in respect of the Loan Pairs; provided that
interest on P&I Advances made with respect to the Windsor Capital Portfolio Pari
Passu Companion Loan may be paid solely, pursuant to clauses (i) and (iii)
above, from Default Charges or other collections received on or in respect of
the Windsor Capital Portfolio Pari Passu Companion Loan. The Master Servicer
shall, in accordance with Section 3.05A, reimburse itself, the Trustee and the
Fiscal Agent, as applicable, for any outstanding P&I Advance made thereby in
respect of a Split Mortgage Loan or the Windsor Capital Portfolio Pari Passu
Companion Loan in the Loan Pairs under this Section 4.03A as soon as practicable
after funds available for such purpose are deposited in the Custodial Accounts
for the related Loan or REO Loan, as the case may be, in the Loan Pairs in
respect of which the P&I Advance was made.
(e) None of the Master Servicer, Special Servicer, Trustee or the
Fiscal Agent shall make any P&I Advance with respect to the Companion Loans
other than, in the case of the Master Servicer, the Windsor Capital Portfolio
Pari Passu Companion Loan.
Section 4.04 Allocation of Realized Losses and Additional Trust Fund
Expenses.
(a) On each Distribution Date, following the distributions to
Certificateholders to be made on such date pursuant to Section 4.01, the Trustee
shall determine the amount, if any, by which (i) the then aggregate of the Class
Principal Balances of all the Classes of Principal Balance Certificates, exceeds
(ii) the aggregate Stated Principal Balance of the Mortgage Pool that will be
outstanding immediately following such Distribution Date. If such excess does
exist, then the Class Principal Balances of the Class Q, Class P, Class O, Class
N, Class M, Class L, Class K, Class J, Class H, Class G, Class F, Class E, Class
D, Class C and Class B Certificates shall be reduced sequentially, in that
order, in each case, until such excess or the related Class Principal Balance is
reduced to zero (whichever occurs first). If, after the foregoing reductions,
the amount described in clause (i) of the second preceding sentence still
exceeds the amount described in clause (ii) of such sentence, then the
respective Class Principal Balances of all the outstanding Classes of the Class
A Certificates shall be reduced on a pro rata basis in accordance with the
relative sizes of such Class Principal Balances, until any such remaining excess
is reduced to zero. All such reductions in the Class Principal Balances of the
respective Classes of the Principal Balance Certificates shall constitute
allocations of Realized Losses and Additional Trust Fund Expenses.
(b) On each Distribution Date, following the deemed distributions of
principal or in reimbursement of previously allocated Realized Losses and
Additional Trust Fund Expenses made in respect of the Uncertificated Lower-Tier
Interests pursuant to Section 4.01(i), the Uncertificated Principal Balance (or
aggregate Uncertificated Principal Balances with respect to the Uncertificated
Lower-Tier Interests corresponding to the Class X-0, Xxxxx X-0, Class A-3, Class
A-4 and Class H Certificates) of the Corresponding Uncertificated Lower-Tier
Interests (after taking account of such deemed distributions) shall be reduced
as a result of Realized Losses and Additional Trust Fund Expenses to equal the
Class Principal Balance of the Class of Corresponding Certificates that will be
outstanding immediately following such Distribution Date; provided, that
Realized Losses and Additional Trust Fund Expenses shall be allocated:
(i) with respect to the Class H Certificates, first, in respect of
Uncertificated Lower-Tier Interest LH-1; second, in respect of
Uncertificated Lower-Tier Interest LH-2; and third, in respect of
Uncertificated Lower-Tier Interest LH-3, in each case until their
respective Uncertificated Principal Balances are reduced to zero;
(ii) with respect to the Class A-4 Certificates, in respect of
Uncertificated Lower-Tier Interest LA-4-1 and second, in respect of
Uncertificated Lower-Tier Interest LA-4-2, in each case until their
respective Uncertificated Principal Balances are reduced to zero;
(iii) with respect to the Class A-3 Certificates, in respect of
Uncertificated Lower-Tier Interest LA-3-1 and second, in respect of
Uncertificated Lower-Tier Interest LA-3-2, in each case until their
respective Uncertificated Principal Balances are reduced to zero;
(iv) with respect to the Class A-2 Certificates, first, in respect
of Uncertificated Lower-Tier Interest LA-2-1; second, in respect of
Uncertificated Lower-Tier Interest LA-2-2; and third, in respect of
Uncertificated Lower-Tier Interest LA-2-3; in each case, until their
respective Uncertificated Principal Balances are reduced to zero; and
(v) with respect to the Class A-1 Certificates, first, in respect of
Uncertificated Lower-Tier Interest LA-1-1; second, in respect of
Uncertificated Lower-Tier Interest LA-1-2; third, in respect of
Uncertificated Lower-Tier Interest LA-1-3; and fourth, in respect of
Uncertificated Lower-Tier Interest LA-1-4; in each case, until their
respective Uncertificated Principal Balances are reduced to zero.
Section 4.05 Calculations.
The Trustee shall, provided it receives the necessary information
from the Master Servicer and the Special Servicer, be responsible for performing
all calculations necessary in connection with the actual and deemed
distributions and allocations to be made pursuant to Section 4.01 and Article IX
and the actual and deemed allocations of Realized Losses and Additional Trust
Fund Expenses to be made pursuant to Section 4.04. The Trustee shall calculate
the Available Distribution Amount for each Distribution Date and shall allocate
such amounts among Certificateholders in accordance with this Agreement, and the
Trustee shall have no obligation to recompute, recalculate or verify any
information provided to it by the Special Servicer or Master Servicer. The
calculations by the Trustee of such amounts shall, in the absence of manifest
error, be presumptively deemed to be correct for all purposes hereunder.
Section 4.06 Use of Agents.
The Master Servicer, the Special Servicer or the Trustee may at its
own expense utilize agents or attorneys-in-fact in performing any of its
obligations under this Article IV (except the obligation to make P&I Advances),
but no such utilization shall relieve the Master Servicer, the Special Servicer
or the Trustee, as applicable, from any of such obligations, and the Master
Servicer, the Special Servicer or the Trustee, as applicable, shall remain
responsible for all acts and omissions of any such agent or attorney-in-fact.
ARTICLE V
THE CERTIFICATES
Section 5.01 The Certificates.
(a) The Certificates will be substantially in the respective forms
attached hereto as Exhibits X-0, X-0, X-0, X-0, X-0, X-0 and A-7; provided that
any of the Certificates may be issued with appropriate insertions, omissions,
substitutions and variations, and may have imprinted or otherwise reproduced
thereon such legend or legends, not inconsistent with the provisions of this
Agreement, as may be required to comply with any law or with rules or
regulations pursuant thereto, or with the rules of any securities market in
which the Certificates are admitted to trading, or to conform to general usage.
The Certificates will be issuable in registered form only; provided, however,
that in accordance with Section 5.03, beneficial ownership interests in the
Certificates (other than the Class Y, Class R-I or Class R-II Certificates)
shall initially be held and transferred through the book-entry facilities of the
Depository. The Class Y, Class R-I and Class R-II Certificates will be issuable
in registered, definitive physical form. The Regular Interest Certificates and
the Class Y Certificates will be issuable only in denominations corresponding to
initial Certificate Principal Balances or initial Notional Amount, as the case
may be, as of the Closing Date of $25,000 in the case of the Class A-1, Class
A-2, Class A-3, Class A-4, Class B and Class C Certificates, and $250,000 in the
case of the Regular Interest Certificates and the Class Y Certificates, and in
each such case in integral multiples of $1 in excess thereof. The Class R-I and
Class R-II Certificates will be issuable in denominations representing
Percentage Interests in the related Class of not less than 5%.
(b) The Certificates shall be executed by manual or facsimile
signature on behalf of the Trustee by the Certificate Registrar hereunder by an
authorized signatory. Certificates bearing the manual or facsimile signatures of
individuals who were at any time the authorized officers or 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.
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 (and hereby agrees to act in
accordance with the terms hereof) as Certificate Registrar for the purpose of
registering Certificates and transfers and exchanges of Certificates as herein
provided. The offices of the Trustee responsible for its duties as initial
Certificate Register shall be located, as of the Closing Date, at 000 Xxxxx
XxXxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, Attention: Asset-Backed Securities
Trust Services Group--Greenwich Capital Commercial Funding Corp., Commercial
Mortgage Trust Series 2003-C1. The Certificate Registrar may appoint, by a
written instrument delivered to the Depositor, the Master Servicer, the Special
Servicer and (if the Trustee is not the Certificate Registrar) the Trustee, any
other bank or trust company to act as Certificate Registrar under such
conditions as the predecessor Certificate Registrar may prescribe, provided that
the predecessor Certificate Registrar shall not be relieved of any of its duties
or responsibilities hereunder by reason of such appointment. If the Trustee
resigns or is removed in accordance with the terms hereof, the successor trustee
shall immediately succeed to its duties as Certificate Registrar. The Depositor,
the Trustee (if it is no longer the Certificate Registrar), the Master Servicer
and the Special Servicer shall have the right to inspect the Certificate
Register or to obtain a copy thereof at all reasonable times, and to rely
conclusively upon a certificate of the Certificate Registrar as to the
information set forth in the Certificate Register.
If three or more Holders make written request to the Trustee, and
such request states that such Holders desire to communicate with other Holders
with respect to their rights under this Agreement or under the Certificates and
is accompanied by a copy of the communication which such Holders propose to
transmit, then the Trustee shall, within 30 days after the receipt of such
request, afford (or cause any other Certificate Registrar to afford) the
requesting Holders access during normal business hours to the most recent list
of Certificateholders held by the Certificate Registrar.
(b) No Transfer of any Non-Registered Certificate or interest
therein shall be made unless that Transfer is exempt from the registration
and/or qualification requirements of the Securities Act and any applicable state
securities laws, or is otherwise made in accordance with the Securities Act and
such state securities laws.
If a Transfer of any Definitive Non-Registered Certificate is to be
made without registration under the Securities Act (other than in connection
with a Transfer of a Global Certificate for any Class of Book-Entry
Non-Registered Certificates to a successor Depository or to the applicable
Certificate Owner(s) in accordance with Section 5.03), then the Certificate
Registrar shall refuse to register such Transfer unless it receives (and, upon
receipt, may conclusively rely upon) either: (i) a certificate from the
Certificateholder desiring to effect such Transfer substantially in the form
attached hereto as Exhibit F-1 and a certificate from such Certificateholder's
prospective Transferee substantially in the form attached hereto either as
Exhibit F-2A or as Exhibit F-2B; or (ii) an Opinion of Counsel satisfactory to
the Trustee to the effect that the prospective Transferee is an Institutional
Accredited Investor or a Qualified Institutional Buyer and such Transfer may be
made without registration under the Securities Act (which Opinion of Counsel
shall not be an expense of the Trust Fund or of the Depositor, the Master
Servicer, the Special Servicer, the Tax Administrator, the Trustee, the Fiscal
Agent or the Certificate Registrar in their respective capacities as such),
together with the written certification(s) as to the facts surrounding such
Transfer from the Certificateholder desiring to effect such Transfer and/or such
Certificateholder's prospective Transferee on which such Opinion of Counsel is
based.
Except as provided in the following two paragraphs, no interest in
the Rule 144A Global Certificate for any Class of Book-Entry Non-Registered
Certificates shall be transferred to any Person who takes delivery other than in
the form of an interest in such Rule 144A Global Certificate. A Transferee of an
interest in the Rule 144A Global Certificate that takes delivery for a Class of
Book-Entry Non-Registered Certificates shall be deemed to have represented and
warranted that all the certifications set forth in Exhibit F-2C hereto are, with
respect to the subject Transfer, true and correct.
Any interest in the Rule 144A Global Certificate for a Class of
Book-Entry Non-Registered Certificates may be transferred by the Depositor or
any Affiliate of the Depositor to any Person who takes delivery in the form of a
beneficial interest in the Regulation S Global Certificate for such Class of
Certificates upon delivery to the Certificate Registrar of (x) a certificate to
the effect that the Certificate Owner desiring to effect such Transfer is the
Depositor or an Affiliate of the Depositor and (y) such written orders and
instructions as are required under the applicable procedures of the Depository,
Clearstream and Euroclear to direct the Trustee to debit the account of a
Depository Participant by a denomination of interests in such Rule 144A Global
Certificate, and credit the account of a Depository Participant by a
denomination of interests in such Regulation S Global Certificate, that is equal
to the denomination of beneficial interests in the Certificates to be
transferred (such date of transfer, the "Transfer Date"). Upon delivery to the
Certificate Registrar of such certification and orders and instructions, the
Trustee, subject to and in accordance with the applicable procedures of the
Depository, shall reduce the denomination of the Rule 144A Global Certificate in
respect of the applicable Class of Certificates and increase the denomination of
the Regulation S Global Certificate for the applicable Class, by the
denomination of the beneficial interest in such Class specified in such orders
and instructions, provided that no Regulation S Restricted Certificate may be
transferred to a Person acquiring such Certificate in reliance on Regulation S.
Also notwithstanding the foregoing, any interest in a Rule 144A
Global Certificate with respect to any Class of Book-Entry Non-Registered
Certificates may be transferred by any Certificate Owner holding such interest
to any Institutional Accredited Investor (other than a Qualified Institutional
Buyer) that takes delivery in the form of a Definitive Certificate of the same
Class as such Rule 144A Global Certificate upon delivery to the Certificate
Registrar and the Trustee of (i) such certifications and/or opinions as are
contemplated by the second paragraph of this Section 5.02(b) and (ii) such
written orders and instructions as are required under the applicable procedures
of the Depository to direct the Trustee to debit the account of a Depository
Participant by the denomination of the transferred interests in such Rule 144A
Global Certificate. Upon delivery to the Certificate Registrar of the
certifications and/or opinions contemplated by the second paragraph of this
Section 5.02(b), the Trustee, subject to and in accordance with the applicable
procedures of the Depository, shall reduce the denomination of the subject Rule
144A Global Certificate by the denomination of the transferred interests in such
Rule 144A Global Certificate, and shall cause a Definitive Certificate of the
same Class as such Rule 144A Global Certificate, and in a denomination equal to
the reduction in the denomination of such Rule 144A Global Certificate, to be
executed, authenticated and delivered in accordance with this Agreement to the
applicable Transferee.
Except as provided in the next paragraph, no beneficial interest in
the Regulation S Global Certificate for any Class of Book-Entry Non-Registered
Certificates shall be transferred to any Person who takes delivery other than in
the form of a beneficial interest in such Regulation S Global Certificate. On
and prior to the date (the "Release Date") which is 40 days after the Transfer
Date, the Certificate Owner desiring to effect any such Transfer shall be
required to obtain from such Certificate Owner's prospective Transferee a
written certification substantially in the form set forth in Exhibit F-2D hereto
certifying that such Transferee is not a United States Securities Person. On or
prior to the Release Date, beneficial interests in the Regulation S Global
Certificate for each Class of Book-Entry Non-Registered Certificates may be held
only through Euroclear or Clearstream. The Regulation S Global Certificate for
each Class of Book-Entry Non-Registered Certificates shall be deposited with the
Trustee as custodian for the Depository and registered in the name of Cede & Co.
as nominee of the Depository, provided that no Regulation S Restricted
Certificate may be transferred to a Person acquiring such Certificate in
reliance on Regulation S.
Notwithstanding the preceding paragraph, after the Release Date, any
interest in the Regulation S Global Certificate for a Class of Book-Entry
Non-Registered Certificates may be transferred by the Depositor or any Affiliate
of the Depositor to any Person who takes delivery in the form of a beneficial
interest in the Rule 144A Global Certificate for such Class of Certificates upon
delivery to the Certificate Registrar of (x) a certificate to the effect that
the Certificate Owner desiring to effect such Transfer is the Depositor or an
Affiliate of the Depositor and (y) such written orders and instructions as are
required under the applicable procedures of the Depository, Clearstream and
Euroclear to direct the Trustee to debit the account of a Depository Participant
by a denomination of interests in such Regulation S Global Certificate, and
credit the account of a Depository Participant by a denomination of interests in
such Rule 144A Global Certificate, that is equal to the denomination of
beneficial interests in the Certificates to be transferred. Upon delivery to the
Certificate Registrar of such certification and orders and instructions, the
Trustee, subject to and in accordance with the applicable procedures of the
Depository, shall reduce the denomination of the Regulation S Global Certificate
in respect of the applicable Class being transferred and increase the
denomination of the Rule 144A Global Certificate for such Class, by the
denomination of the beneficial interest in such Class specified in such orders
and instructions.
None of the Depositor, the Trustee or the Certificate Registrar is
obligated to register or qualify any Class of Non-Registered Certificates under
the Securities Act or any other securities law or to take any action not
otherwise required under this Agreement to permit the Transfer of any
Non-Registered Certificate or interest therein without registration or
qualification. Any Certificateholder or Certificate Owner desiring to effect a
Transfer of any Non-Registered Certificate or interest therein shall, and does
hereby agree to, indemnify the Depositor, the Underwriters, the Trustee, the
Fiscal Agent, the Master Servicer, the Special Servicer, the Tax Administrator
and the Certificate Registrar against any liability that may result if such
Transfer is not exempt from the registration and/or qualification requirements
of the Securities Act and any applicable state securities laws or is not made in
accordance with such federal and state laws.
(c) No Transfer of a Certificate or any interest therein shall be
made (i) to any employee benefit plan or other retirement arrangement, including
individual retirement accounts and annuities, Xxxxx plans and collective
investment funds and separate accounts in which such plans, accounts or
arrangements are invested, including insurance company general accounts, that is
subject to Title I of ERISA, Section 4975 of the Code or any materially similar
provision ("Similar Law") of applicable federal, state or local law (each, a
"Plan"), or (ii) to any Person who is directly or indirectly purchasing such
Certificate or interest therein on behalf of, as named fiduciary of, as trustee
of, or with assets of a Plan, if the purchase and holding of such Certificate or
interest therein by the prospective Transferee would result in a violation of
Section 406 or 407 of ERISA or Section 4975 of the Code or would result in the
imposition of an excise tax under Section 4975 of the Code or any similar
violation of Similar Law. Except in connection with Transfer thereof to a
successor Depository or to the applicable Certificate Owner(s) in accordance
with Section 5.03, the Certificate Registrar shall refuse to register the
Transfer of a Definitive Non-Registered Certificate unless it has received from
the prospective Transferee, either (i) a certification to the effect that such
prospective Transferee is not a Plan and is not directly or indirectly
purchasing such Certificate or interest therein on behalf of, as named fiduciary
of, as trustee of, or with assets of a Plan; or (ii) alternatively, but only in
the case of a Certificate other than a Class Y, Class R-I or Class R-II
Certificate, a certification to the effect that the purchase and holding of such
Certificate or interest therein by such prospective Transferee is exempt from
the prohibited transaction provisions of Sections 406(a) and (b) and 407 of
ERISA and the excise taxes imposed on such prohibited transactions by Sections
4975(a) and (b) of the Code, by reason of Sections I and III of Prohibited
Transaction Class Exemption 95-60; or (iii) alternatively, but only in the case
of a Certificate other than a Class Y, Class R-I or Class R-II Certificate, a
certification of facts and an Opinion of Counsel which otherwise establish to
the reasonable satisfaction of the Trustee or such Certificate Owner, as the
case may be, that such Transfer will not result in a violation of Section 406 or
407 of ERISA or Section 4975 of the Code or result in the imposition of an
excise tax under Section 4975 of the Code. It is hereby acknowledged that the
form of certification attached hereto as Exhibit G (with respect to Definitive
Non-Registered Certificates) is acceptable for purposes of the preceding
sentence. If any Transferee of a Certificate (including a Registered
Certificate) or any interest therein does not, in connection with the subject
Transfer, deliver to the Certificate Registrar (in the case of a Definitive
Certificate) any certification and/or Opinion of Counsel contemplated by the
second preceding sentence, then such Transferee (and in any event any owner of a
Book-Entry Certificate that is not an Investment Grade Certificate) shall be
deemed to have represented and warranted that either: (i) such Transferee is not
a Plan and is not directly or indirectly purchasing such Certificate or interest
therein on behalf of, as named fiduciary of, as trustee of, or with assets of a
Plan; or (ii) the purchase and holding of such Certificate or interest therein
by such Transferee is exempt from the prohibited transaction provisions of
Sections 406(a) and (b) and 407 of ERISA and the excise taxes imposed on such
prohibited transactions by Sections 4975(a) and (b) of the Code (or similar
violation of Similar Law). Any Transferee of a Book-Entry Certificate that is an
Investment Grade Certificate that is being acquired by or on behalf of a Plan in
reliance on the Prohibited Transaction Exemption shall be deemed to have
represented and warranted that such Plan (X) is an accredited investor as
defined in Rule 501(a)(1) of Regulation D of the Securities Act, and (Y) is not
sponsored (within the meaning of Section 3(16)(B) of ERISA) by the Trustee, the
Depositor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer,
any Sub-Servicer, any Exemption-Favored Party or any Mortgagor with respect to
Mortgage Loans constituting more than 5% of the aggregate unamortized principal
balance of all the Mortgage Loans determined as of the Closing Date, or by any
Affiliate of such Person.
(d) (i) Each Person who has or who acquires any Ownership Interest
in a Residual Interest 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)(A) below to deliver payments to a Person other than such Person and to have
irrevocably authorized the Trustee under clause (ii)(B) below to negotiate the
terms of any mandatory disposition and to execute all instruments of Transfer
and to do all other things necessary in connection with any such disposition.
The rights of each Person acquiring any Ownership Interest in a Residual
Interest Certificate are expressly subject to the following provisions:
(A) Each Person holding or acquiring any Ownership Interest in
a Residual Interest Certificate shall be a Permitted Transferee and
shall promptly notify the Tax Administrator and the Trustee of any
change or impending change in its status as a Permitted Transferee.
(B) In connection with any proposed Transfer of any Ownership
Interest in a Residual Interest Certificate, except in the case of
an initial transfer to an Underwriter or the Initial Purchaser or an
affiliate thereof, the Certificate Registrar shall require delivery
to it, and shall not register the Transfer of any Residual Interest
Certificate until its receipt, of an affidavit and agreement
substantially in the form attached hereto as Exhibit H-1 (a
"Transfer Affidavit and Agreement"), from the proposed Transferee,
representing and warranting, among other things, that such
Transferee is a Permitted Transferee, that it is not acquiring its
Ownership Interest in the Residual Interest Certificate that is the
subject of the proposed Transfer as a nominee, trustee or agent for
any Person that is not a Permitted Transferee, that for so long as
it retains its Ownership Interest in a Residual Interest Certificate
it will endeavor to remain a Permitted Transferee, and that it has
reviewed the provisions of this Section 5.02(d) and agrees to be
bound by them.
(C) Notwithstanding the delivery of a Transfer Affidavit and
Agreement by a proposed Transferee under clause (B) above, if a
Responsible Officer of either the Trustee or the Certificate
Registrar has actual knowledge that the proposed Transferee is not a
Permitted Transferee, no Transfer of an Ownership Interest in a
Residual Interest Certificate to such proposed Transferee shall be
effected.
(D) Each Person holding or acquiring any Ownership Interest in
a Residual Interest Certificate shall agree (1) to require a
Transfer Affidavit and Agreement from any prospective Transferee to
whom such Person attempts to Transfer its Ownership Interest in such
Residual Interest Certificate and (2) not to Transfer its Ownership
Interest in such Residual Interest Certificate unless it provides to
the Certificate Registrar a certificate substantially in the form
attached hereto as Exhibit H-2 stating that, among other things, it
has no actual knowledge that such prospective Transferee is not a
Permitted Transferee.
(E) Each Person holding or acquiring an Ownership Interest in
a Residual Interest Certificate, by purchasing such Ownership
Interest, agrees to give the Tax Administrator and the Trustee
written notice that it is a "pass-through interest holder" within
the meaning of temporary Treasury Regulations Section
1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest
in a Residual Interest Certificate, if it is, or is holding an
Ownership Interest in a Residual Interest Certificate on behalf of,
a "pass-through interest holder".
(ii) (A) If any purported Transferee shall become a Holder of a
Residual Interest Certificate in violation of the provisions of this
Section 5.02(d), then the last preceding Holder of such Residual Interest
Certificate that was in compliance with the provisions of this Section
5.02(d) shall be restored, to the extent permitted by law, to all rights
as Holder thereof retroactive to the date of registration of such Transfer
of such Residual Interest Certificate. None of the Depositor, the Trustee
or the Certificate Registrar shall be under any liability to any Person
for any registration of Transfer of a Residual Interest Certificate that
is in fact not permitted by this Section 5.02(d) or for making any
payments due on such Certificate to the Holder thereof or for taking any
other action with respect to such Holder under the provisions of this
Agreement.
(B) If any purported Transferee shall become a Holder of a Residual
Interest Certificate in violation of the restrictions in this Section 5.02(d),
then, to the extent that retroactive restoration of the rights of the preceding
Holder of such Residual Interest Certificate as described in clause (ii)(A)
above shall be invalid, illegal or unenforceable, the Trustee shall have the
right but not the obligation, to cause the Transfer of such Residual Interest
Certificate to a Permitted Transferee selected by the Trustee on such terms as
the Trustee may choose, and the Trustee shall not be liable to any Person having
an Ownership Interest in such Residual Interest Certificate as a result of the
Trustee's exercise of such discretion. Such purported Transferee shall promptly
endorse and deliver such Residual Interest Certificate in accordance with the
instructions of the Trustee. Such Permitted Transferee may be the Trustee itself
or any Affiliate of the Trustee.
(iii) The Tax Administrator shall make available to the IRS and to
those Persons specified by the REMIC Provisions all information furnished
to it by the other parties hereto necessary to compute any tax imposed (A)
as a result of the Transfer of an Ownership Interest in a Residual
Interest Certificate to any Person who is a Disqualified Organization,
including the information described in Treasury Regulations Sections
1.860D-1(b)(5) and 1.860E-2(a)(5) with respect to the "excess inclusions"
of such Residual Interest Certificate and (B) as a result of any regulated
investment company, real estate investment trust, common trust fund,
partnership, trust, estate or organization described in Section 1381 of
the Code that holds an Ownership Interest in a Residual Interest
Certificate having as among its record Holders at any time any Person
which is a Disqualified Organization, and each of the other parties hereto
shall furnish to the Tax Administrator all information in its possession
necessary for the Tax Administrator to discharge such obligation. The
Person holding such Ownership Interest shall be responsible for the
reasonable compensation of the Tax Administrator for providing information
thereto pursuant to this subsection (d)(iii) and Section 10.01(h)(i).
(iv) The provisions of this Section 5.02(d) set forth prior to this
clause (iv) may be modified, added to or eliminated, provided that there
shall have been delivered to the Trustee and the Tax Administrator the
following:
(A) written confirmation from each Rating Agency to the effect
that the modification of, addition to or elimination of such
provisions will not cause an Adverse Rating Event; and
(B) an Opinion of Counsel, in form and substance satisfactory
to the Trustee and the Tax Administrator, obtained at the expense of
the party seeking such modification of, addition to or elimination
of such provisions (but in no event at the expense of the Trustee,
the Tax Administrator or the Trust), to the effect that doing so
will not (1) cause either REMIC Pool to cease to qualify as a REMIC
or be subject to an entity-level tax caused by the Transfer of any
Residual Interest Certificate to a Person which is not a Permitted
Transferee or (2) cause a Person other than the prospective
Transferee to be subject to a REMIC-related tax caused by the
Transfer of a Residual Interest Certificate to a Person that is not
a Permitted Transferee.
(e) If a Person is acquiring any Non-Registered Certificate or
interest therein as a fiduciary or agent for one or more accounts, such Person
shall be required to deliver to the Certificate Registrar (or, in the case of an
interest in a Book-Entry Non-Registered Certificate, to the Certificate Owner
that is transferring such interest) a certification to the effect that, and such
other evidence as may be reasonably required by the Trustee (or such Certificate
Owner) to confirm that, it has (i) sole investment discretion with respect to
each such account and (ii) full power to make the applicable foregoing
acknowledgments, representations, warranties, certifications and agreements with
respect to each such account as set forth in Subsections (b), (c) and/or (d), as
appropriate, of this Section 5.02.
(f) Subject to the preceding provisions of this Section 5.02, upon
surrender for registration of transfer of any Certificate at the offices of the
Certificate Registrar maintained for such purpose, the Certificate Registrar
shall execute and the Authenticating Agent shall authenticate and deliver, in
the name of the designated transferee or transferees, one or more new
Certificates of the same Class evidencing a like aggregate Percentage Interest
in such Class.
(g) At the option of any Holder, its Certificates may be exchanged
for other Certificates of authorized denominations of the same Class evidencing
a like aggregate Percentage Interest in such Class upon surrender of the
Certificates to be exchanged at the offices of the Certificate Registrar
maintained for such purpose. Whenever any Certificates are so surrendered for
exchange, the Certificate Registrar shall execute and the Authenticating Agent
shall authenticate and deliver the Certificates which the Certificateholder
making the exchange is entitled to receive.
(h) Every Certificate presented or surrendered for transfer or
exchange shall (if so required by the Certificate Registrar) be duly endorsed
by, or be accompanied by a written instrument of transfer in the form
satisfactory to the Certificate Registrar duly executed by, the Holder thereof
or his attorney duly authorized in writing.
(i) No service charge shall be imposed for any transfer or exchange
of Certificates, but the Trustee or Certificate Registrar may require payment of
a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any transfer or exchange of Certificates.
(j) All Certificates surrendered for transfer and exchange shall be
physically canceled by the Certificate Registrar, and the Certificate Registrar
shall dispose of such canceled Certificates in accordance with its standard
procedures.
Section 5.03 Book-Entry Certificates.
(a) The Certificates (other than the Class Y, Class R-I and Class
R-II) shall, in the case of each such Class, initially be issued as one or more
Certificates registered in the name of the Depository or its nominee and, except
as provided in Section 5.03(c) and in the fifth paragraph of Section 5.02(b), a
Transfer of such Certificates may not be registered by the Certificate Registrar
unless such Transfer is to a successor Depository that agrees to hold such
Certificates for the respective Certificate Owners with Ownership Interests
therein. Such Certificate Owners shall hold and Transfer their respective
Ownership Interests in and to such Certificates through the book-entry
facilities of the Depository and, except as provided in Section 5.03(c) and in
the fifth paragraph of Section 5.02(b), shall not be entitled to definitive,
fully registered Certificates ("Definitive Certificates") in respect of such
Ownership Interests. The Certificates (other than the Class Y, Class R-I and
Class R-II) initially sold to Qualified Institutional Buyers in reliance on Rule
144A or in reliance on another exemption from the registration requirements of
the Securities Act shall, in the case of each such Class, be represented by the
Rule 144A Global Certificate for such Class, which shall be deposited with the
Trustee as custodian for the Depository and registered in the name of Cede & Co.
as nominee of the Depository. The Certificates (other than the Class Y, Class
R-I and Class R-II) initially sold in offshore transactions in reliance on
Regulation S shall, in the case of each such Class, be represented by the
Regulation S Global Certificate for such Class, which shall be deposited with
the Trustee as custodian for the Depository and registered in the name of Cede &
Co. as nominee of the Depository, provided that only Investment Grade
Certificates shall be sold in offshore transactions in reliance on Regulation S.
All Transfers by Certificate Owners of their respective Ownership Interests in
the Book-Entry Certificates shall be made in accordance with the procedures
established by the Depository Participant or brokerage firm representing each
such Certificate Owner. Each Depository Participant shall only transfer the
Ownership Interests in the Book-Entry Certificates of Certificate Owners it
represents or of brokerage firms for which it acts as agent in accordance with
the Depository's normal procedures.
(b) The Trustee, the Master Servicer, the Special Servicer, the
Depositor and the Certificate Registrar may for all purposes, including the
making of payments due on the Book-Entry Certificates, deal with the Depository
as the authorized representative of the Certificate Owners with respect to such
Certificates for the purposes of exercising the rights of Certificateholders
hereunder. The rights of Certificate Owners with respect to the Book-Entry
Certificates shall be limited to those established by law and agreements between
such Certificate Owners and the Depository Participants and brokerage firms
representing such Certificate Owners. Multiple requests and directions from, and
votes of, the Depository as Holder of the Book-Entry Certificates with respect
to any particular matter shall not be deemed inconsistent if they are made with
respect to different Certificate Owners. The Trustee may establish a reasonable
record date in connection with solicitations of consents from or voting by
Certificateholders and shall give notice to the Depository of such record date.
(c) If (i)(A) the Depositor advises the Trustee and the Certificate
Registrar in writing that the Depository is no longer willing or able to
properly discharge its responsibilities with respect to a Class of the
Book-Entry Certificates, and (B) the Depositor is unable to locate a qualified
successor, or (ii) the Depositor at its option advises the Trustee and the
Certificate Registrar in writing that it elects to terminate the book-entry
system through the Depository with respect to a Class of Book-Entry
Certificates, the Certificate Registrar shall notify all affected Certificate
Owners, through the Depository, of the occurrence of any such event and of the
availability of Definitive Certificates to such Certificate Owners requesting
the same.
Upon surrender to the Certificate Registrar of the Book-Entry
Certificates of any Class thereof by the Depository, accompanied by registration
instructions from the Depository for registration of transfer, the Certificate
Registrar shall execute, and the Authenticating Agent shall authenticate and
deliver, the Definitive Certificates in respect of such Class to the Certificate
Owners identified in such instructions. None of the Depositor, the Master
Servicer, the Special Servicer, the Trustee or the Certificate Registrar shall
be liable for any delay in delivery of such instructions, and each of them may
conclusively rely on, and shall be protected in relying on, such instructions.
Upon the issuance of Definitive Certificates for purposes of evidencing
ownership of any Class of Registered Certificates, the registered Holders of
such Definitive Certificates shall be recognized as Certificateholders hereunder
and, accordingly, shall be entitled directly to receive payments on, to exercise
Voting Rights with respect to, and to transfer and exchange such Definitive
Certificates.
(d) Notwithstanding any other provisions contained herein, neither
the Trustee nor the Certificate Registrar shall have any responsibility
whatsoever to monitor or restrict the Transfer of ownership interests in any
Certificate which interests are transferable through the book-entry facilities
of the Depository.
Section 5.04 Mutilated, Destroyed, Lost or Stolen Certificates.
If (i) any mutilated Certificate is surrendered to the Certificate
Registrar, or the Certificate Registrar receives evidence to its satisfaction of
the destruction, loss or theft of any Certificate, and (ii) there is delivered
to the Trustee and the Certificate Registrar such security or indemnity as may
be reasonably required by them to save each of them harmless, then, in the
absence of actual notice to the Trustee or the Certificate Registrar that such
Certificate has been acquired by a bona fide purchaser, the Certificate
Registrar shall execute and the Authenticating Agent shall authenticate and
deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or
stolen Certificate, a new Certificate of the same Class and like Percentage
Interest. Upon the issuance of any new Certificate under this section, the
Trustee and the Certificate Registrar may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto and any other expenses (including the fees and expenses of the
Trustee and the Certificate Registrar) connected therewith. Any replacement
Certificate issued pursuant to this section shall constitute complete and
indefeasible evidence of ownership in the applicable REMIC created hereunder, as
if originally issued, whether or not the lost, stolen or destroyed Certificate
shall be found at any time.
Section 5.05 Persons Deemed Owners.
Prior to due presentment for registration of transfer, the
Depositor, the Master Servicer, the Special Servicer, the Trustee, the
Certificate Registrar and any agent of any of them may treat the Person in whose
name any Certificate is registered as the owner of such Certificate for the
purpose of receiving distributions pursuant to Section 4.01 and for all other
purposes whatsoever and none of the Depositor, the Master Servicer, the Special
Servicer, the Trustee, the Certificate Registrar or any agent of any of them
shall be affected by notice to the contrary.
ARTICLE VI
THE DEPOSITOR, THE MASTER SERVICER, THE SPECIAL SERVICER AND THE DIRECTING
HOLDER
Section 6.01 Liability of Depositor, Master Servicer and Special
Servicer.
The Depositor, the Master Servicer and the Special Servicer shall be
liable in accordance herewith only to the extent of the respective obligations
specifically imposed upon and undertaken by the Depositor, the Master Servicer
and the Special Servicer herein.
Section 6.02 Continued Qualification and Compliance of Master
Servicer; Merger, Consolidation or Conversion of Depositor, Master Servicer or
Special Servicer.
Subject to the following paragraph, the Depositor, the Master
Servicer and the Special Servicer shall each keep in full effect its existence,
rights and franchises as a legal entity under the laws of the jurisdiction of
its organization, and each will obtain and preserve its qualification to do
business as a foreign entity in, and will otherwise remain in compliance with
the laws of, each jurisdiction in which such qualification and compliance is or
shall be necessary to protect the validity and enforceability of this Agreement,
the Certificates or any of the Loans and to perform its respective duties under
this Agreement.
Each of the Depositor, the Master Servicer and the Special Servicer
may be merged or consolidated with or into any Person, or transfer all or
substantially all of its assets (which, in the case of the Master Servicer or
the Special Servicer, may be limited to all or substantially all of its assets
related to commercial mortgage loan servicing) to any Person, in which case any
Person resulting from any merger or consolidation to which the Depositor, the
Master Servicer or the Special Servicer shall be a party, or any Person
succeeding to the business (which, in the case of the Master Servicer or the
Special Servicer, may be limited to the commercial mortgage loan servicing
business) of the Depositor, the Master Servicer or the Special Servicer, shall
be the successor of the Depositor, the Master Servicer or the Special Servicer,
as the case may be, hereunder, without the execution or filing of any paper or
any further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding; provided, however, that no successor or surviving
Person shall succeed to the rights of the Master Servicer or the Special
Servicer unless (i) as confirmed in writing by each of the Rating Agencies, such
succession will not result in an Adverse Rating Event, and (ii) such successor
or surviving Person makes the applicable representations and warranties set
forth in Section 3.23 (in the case of a successor or surviving Person to the
Master Servicer) or Section 3.24 (in the case of a successor or surviving Person
to the Special Servicer), as applicable.
Section 6.03 Limitation on Liability of Depositor, Master Servicer
and Special Servicer.
None of the Depositor, the Master Servicer or the Special Servicer
shall be under any liability to the Trust Fund, the Trustee, the
Certificateholders or the Companion Loan Noteholders for any action taken, or
not taken, in good faith pursuant to this Agreement, or for errors in judgment;
provided, however, that this provision shall not protect the Depositor, the
Master Servicer or the Special Servicer against any liability to the Trust Fund,
the Trustee, the Certificateholders or the Companion Loan Noteholders for the
breach of a representation or warranty made herein by such party, or against any
expense or liability specifically required to be borne by such party without
right of reimbursement pursuant to the terms hereof, or against any liability
which would otherwise be imposed by reason of willful misfeasance, bad faith or
negligence in the performance of its obligations or duties hereunder or
negligent disregard of such obligations or duties. The Depositor, the Master
Servicer, the Special Servicer and any director, manager, member, officer,
employee or agent of the Depositor, the Master Servicer or the Special Servicer
may rely in good faith on any document of any kind which, prima facie, is
properly executed and submitted by any Person respecting any matters arising
hereunder. The Depositor, the Master Servicer, the Special Servicer and any
director, manager, member, officer, employee or agent of the Depositor, the
Master Servicer or the Special Servicer shall be indemnified and held harmless
by the Trust Fund out of the Pool Custodial Account (or, if and to the extent
the matter relates to a Loan Pair, out of the related Loan Pair Custodial
Account, and to the extent amounts on deposit therein are insufficient therefor,
out of the Pool Custodial Account) against any loss, liability or reasonable
expense (including reasonable legal fees and expenses) incurred in connection
with any legal action or claim relating to this Agreement or the Certificates
(including in connection with the dissemination of information and reports as
contemplated by this Agreement), other than any such loss, liability or expense:
(i) specifically required to be borne by the party seeking indemnification,
without right of reimbursement pursuant to the terms hereof; (ii) which
constitutes a Servicing Advance that is otherwise reimbursable hereunder; (iii)
incurred in connection with any legal action or claim against the party seeking
indemnification, resulting from any breach on the part of that party of a
representation or warranty made herein; or (iv) incurred in connection with any
legal action or claim against the party seeking indemnification, resulting from
any willful misfeasance, bad faith or negligence on the part of that party in
the performance of its obligations or duties hereunder or negligent disregard of
such obligations or duties provided that if a Loan Pair (other than the 000
Xxxxx Xxxxxx Xxxxx A/B Loan) is involved, such indemnity shall be payable out of
the related Loan Pair Custodial Account pursuant to Section 3.05A and, to the
extent not solely attributable to the Companion Loan in such Loan Pair, shall
also be payable out of the Pool Custodial Account if amounts on deposit in the
related Loan Pair Custodial Account are insufficient therefor. None of the
Depositor, the Master Servicer or the Special Servicer shall be under any
obligation to appear in, prosecute or defend any administrative or legal action,
proceeding, hearing or examination, unless such action is related to its
respective duties under this Agreement and either (i) it is specifically
required hereunder to bear the costs of such action or (ii) such action will
not, in its reasonable and good faith judgment, involve it in any ultimate
expense or liability for which it would not be reimbursed hereunder.
Notwithstanding the foregoing, the Depositor, the Master Servicer or the Special
Servicer may in its discretion undertake any such action which it may deem
necessary or desirable with respect to the enforcement and/or protection of the
rights and duties of the parties hereto and the interests of the
Certificateholders (or, if a Loan Pair is affected, the rights of the
Certificateholders and the related Companion Loan Noteholders (as a collective
whole)). In such event, the legal expenses and costs of such action, and any
liability resulting therefrom, shall be expenses, costs and liabilities of the
Trust Fund, and the Depositor, the Master Servicer and the Special Servicer
shall be entitled to be reimbursed therefor from the Pool Custodial Account as
provided in Section 3.05; provided, however, that if a Loan Pair and/or the
related Companion Loan Noteholders are involved, such expenses, costs and
liabilities shall be payable out of the related Loan Pair Custodial Account
pursuant to Section 3.05A and, to the extent attributable to the Mortgage Loan
in such Loan Pair, shall also be payable out of the Pool Custodial Account if
amounts on deposit in the related Loan Pair Custodial Account are insufficient
therefor. In no event shall the Master Servicer or the Special Servicer be
liable or responsible for any action taken or omitted to be taken by the other
of them (unless they are the same Person or Affiliates) or for any action taken
or omitted to be taken by the Depositor, the Trustee, any Certificateholder or
the Companion Loan Noteholders, subject to the provisions of Section 8.05(c).
Section 6.04 Resignation of Master Servicer and the Special
Servicer.
(a) The Master Servicer and, subject to Section 6.09, the Special
Servicer may each resign from the obligations and duties hereby imposed on it,
upon a determination that its duties hereunder are no longer permissible under
applicable law or are in material conflict by reason of applicable law with any
other activities carried on by it (the other activities of the Master Servicer
or the Special Servicer, as the case may be, so causing such a conflict being of
a type and nature carried on by the Master Servicer or the Special Servicer, as
the case may be, at the date of this Agreement). Any such determination
requiring the resignation of the Master Servicer or the Special Servicer, as
applicable, shall be evidenced by an Opinion of Counsel to such effect which
shall be delivered to the Trustee. Unless applicable law requires the Master
Servicer's or Special Servicer's resignation to be effective immediately, and
the Opinion of Counsel delivered pursuant to the prior sentence so states, no
such resignation shall become effective until the Trustee or other successor
shall have assumed the responsibilities and obligations of the resigning party
in accordance with Section 6.09 or Section 7.02 hereof. The Master Servicer and,
subject to the rights of the Controlling Class under Section 6.09 to appoint a
successor special servicer, the Special Servicer shall each have the right to
resign at any other time, provided that (i) a willing successor thereto
reasonably acceptable to the Depositor has been found (provided that if the
Depositor has not responded to a request for consent to a successor within 15
days, such successor shall be deemed approved thereby), (ii) each of the Rating
Agencies confirms in writing that the successor's appointment will not result in
an Adverse Rating Event, (iii) the resigning party pays all costs and expenses
in connection with such resignation and the resulting transfer of servicing, and
(iv) the successor accepts appointment prior to the effectiveness of such
resignation and agrees in writing to be bound by the terms and conditions of
this Agreement. Neither the Master Servicer nor the Special Servicer shall be
permitted to resign except as contemplated above in this Section 6.04(a).
(b) Consistent with Section 6.04(a), neither the Master Servicer nor
the Special Servicer shall, except as expressly provided herein, assign or
transfer any of its rights, benefits or privileges hereunder to any other Person
or, except as provided in Sections 3.22, 4.06, 7.01(c) and 7.01(d), delegate to
or subcontract with, or authorize or appoint any other Person to perform any of
the duties, covenants or obligations to be performed by it hereunder. If,
pursuant to any provision hereof, the duties of the Master Servicer or the
Special Servicer are transferred to a successor thereto, the Master Servicing
Fee, the Special Servicing Fee, any Workout Fee (except as expressly
contemplated by Section 3.11(c)) and/or any Liquidation Fee, as applicable, that
accrues or otherwise becomes payable pursuant hereto from and after the date of
such transfer shall be payable to such successor. Notwithstanding anything to
the contrary herein, the outgoing Special Servicer shall be entitled to 100% of
any Liquidation Fee with respect to any Mortgage Loan as to which a Liquidation
Event has occurred prior to the effective date of transfer to the successor
special servicer.
Section 6.05 Rights of Depositor, Trustee and the Companion Loan
Noteholders in Respect of the Master Servicer and the Special Servicer.
The Master Servicer shall afford the Depositor, each Underwriter,
the Trustee and the Companion Loan Noteholders, upon reasonable notice, during
normal business hours access to all records maintained thereby in respect of its
rights and obligations hereunder. Upon reasonable request, the Master Servicer
and the Special Servicer shall each furnish the Depositor, each Underwriter, the
Trustee and the Companion Loan Noteholders with its most recent publicly
available financial statements and such other non-proprietary information as the
Master Servicer or the Special Servicer, as the case may be, shall determine in
its sole and absolute discretion as it possesses, which is relevant to the
performance of its duties hereunder and which it is not prohibited by applicable
law or contract from disclosing. The Depositor may, but is not obligated to,
enforce the obligations of the Master Servicer and the Special Servicer
hereunder and may, but is not obligated to, perform, or cause a designee to
perform, any defaulted obligation of the Master Servicer or Special Servicer
hereunder or exercise the rights of the Master Servicer and the Special Servicer
hereunder; provided, however, that neither the Master Servicer nor the Special
Servicer shall be relieved of any of its obligations hereunder by virtue of such
performance by the Depositor or its designee and, provided, further, that the
Depositor may not exercise any right pursuant to Section 7.01 to terminate the
Master Servicer or the Special Servicer as a party to this Agreement. The
Depositor shall not have any responsibility or liability for any action or
failure to act by the Master Servicer or the Special Servicer and is not
obligated to supervise the performance of the Master Servicer or the Special
Servicer under this Agreement or otherwise.
Section 6.06 Depositor, Master Servicer and Special Servicer to
Cooperate with Trustee.
The Depositor, the Master Servicer and the Special Servicer shall
each furnish such reports, certifications and information as are reasonably
requested by the Trustee in order to enable it to perform its duties hereunder.
Section 6.07 Depositor, Special Servicer and Trustee to Cooperate
with Master Servicer.
The Depositor, the Special Servicer and the Trustee shall each
furnish such reports, certifications and information as are reasonably requested
by the Master Servicer in order to enable it to perform its duties hereunder.
Section 6.08 Depositor, Master Servicer and Trustee to Cooperate
with Special Servicer.
The Depositor, the Master Servicer and the Trustee shall each
furnish such reports, certifications and information as are reasonably requested
by the Special Servicer in order to enable it to perform its duties hereunder.
Section 6.09 Designation of Special Servicer by the Directing
Holder.
The Directing Holder, in the case of a Tier 1 Loan Pair, or the
Controlling Class Directing Holder, in the case of all other Loan Pairs and
Mortgage Loans that are not a part of a Loan Pair, may at any time and from time
to time designate a Person to serve as Special Servicer hereunder and to replace
any existing Special Servicer with or without cause or any Special Servicer that
has resigned or otherwise ceased to serve (including in connection with
termination pursuant to Section 7.01) as Special Servicer. Such Directing Holder
or Controlling Class Directing Holder shall so designate a Person to serve as
replacement Special Servicer by the delivery to the Trustee, the Master
Servicer, the Companion Loan Noteholders and the existing Special Servicer of a
written notice stating such designation. The Trustee shall, promptly after
receiving any such notice, deliver to the Rating Agencies an executed Notice and
Acknowledgment in the form attached hereto as Exhibit I-1. If such Directing
Holder or Controlling Class Directing Holder has not replaced the Special
Servicer within 30 days of such Special Servicer's resignation or the date such
Special Servicer has ceased to serve in such capacity, the Trustee shall
designate a successor Special Servicer, subject to removal by such Directing
Holder or Controlling Class Directing Holder and appointment of a successor
thereto pursuant to the terms of this Section 6.09. Any designated Person
(whether designated by such Directing Holder or Controlling Class Directing
Holder or the Trustee) shall become the Special Servicer on the date as of which
the Trustee shall have received all of the following: (1) written confirmation
from all of the Rating Agencies that the appointment of such Person will not
result in an Adverse Rating Event (except in the case of the appointment of
Midland Loan Services, Inc. by the holder of the Windsor Capital Portfolio
Junior Companion Loan, if Midland Loan Services, Inc. is on S&P's list of
approved special servicers at the time of such appointment); (2) an
Acknowledgment of Proposed Special Servicer in the form attached hereto as
Exhibit I-2, executed by the designated Person, (3) confirmation that all
out-of-pocket costs and expenses incurred in connection with the removal and
replacement of a Special Servicer have been paid either by the removing party or
the replacement Special Servicer and (4) an Opinion of Counsel (at the expense
of the Person designated to become the Special Servicer) to the effect that,
upon the execution and delivery of the Acknowledgment of Proposed Special
Servicer, the designated Person shall be bound by the terms of this Agreement
and, subject to customary limitations, that this Agreement shall be enforceable
against the designated Person in accordance with its terms. Any existing Special
Servicer shall be deemed to have resigned simultaneously with such designated
Person's becoming the Special Servicer hereunder; provided, however, that (i)
the resigning Special Servicer shall continue to be entitled to receive all
amounts accrued or owing to it under this Agreement on or prior to the effective
date of such resignation, whether in respect of Servicing Advances or otherwise,
(ii) if there were any Corrected Loans at the time that the resigning Special
Servicer ceased to serve in such capacity, the outgoing Special Servicer shall
be entitled to any Workout Fees thereafter payable with respect to such
Corrected Loans (but only if and to the extent permitted by Section 3.11(c)) and
(iii) the outgoing Special Servicer shall continue to be entitled to the
benefits of Section 6.03 notwithstanding any such resignation. Such resigning
Special Servicer shall cooperate with the Trustee and the replacement Special
Servicer in effecting the termination of the resigning Special Servicer's
responsibilities and rights hereunder, including the transfer within two
Business Days to the replacement Special Servicer for administration by it of
all cash amounts that shall at the time be or should have been credited by the
Special Servicer to a Custodial Account, a Servicing Account, a Reserve Account
or an REO Account or should have been delivered to the Master Servicer or that
are thereafter received with respect to Specially Serviced Loans and REO
Properties. The Trustee shall notify the other parties hereto, the
Certificateholders and the Companion Loan Noteholders of any termination of the
Special Servicer and appointment of a new Special Servicer in accordance with
this Section 6.09.
Any out-of-pocket costs and expenses incurred in connection with the
removal of a Special Servicer and its replacement by a Person designated by the
removing party that are not paid by the replacement Special Servicer shall be
paid by such removing party. Notwithstanding anything herein to the contrary,
the Directing Holder with respect to a Tier 1 Loan Pair shall be permitted to
replace the Special Servicer in accordance with this Agreement only with respect
to such related Loan Pair.
Section 6.10 Master Servicer or Special Servicer as Owner of a
Certificate.
The Master Servicer, the Special Servicer or any Affiliate of either
of them may become the Holder of (or, in the case of a Book-Entry Certificate,
Certificate Owner with respect to) any Certificate with (except as otherwise set
forth in the definition of "Certificateholder") the same rights it would have if
it were not the Master Servicer or the Special Servicer or an Affiliate thereof.
If, at any time during which the Master Servicer or the Special Servicer or an
Affiliate of the Master Servicer or the Special Servicer is the Holder of (or,
in the case of a Book-Entry Certificate, Certificate Owner with respect to) any
Certificate, the Master Servicer or the Special Servicer proposes to take action
(including for this purpose, omitting to take action) that is not expressly
prohibited by the terms hereof and would not, in the Master Servicer's or the
Special Servicer's reasonable, good faith judgment, violate the Servicing
Standard, but that, if taken, might nonetheless, in the Master Servicer's or the
Special Servicer's good faith judgment, be considered by other Persons to
violate the Servicing Standard, then the Master Servicer or the Special Servicer
may (but need not) seek the approval of the Certificateholders to such action by
delivering to the Trustee a written notice that (a) states that it is delivered
pursuant to this Section 6.10, (b) identifies the Percentage Interest in each
Class of Certificates beneficially owned by the Master Servicer or an Affiliate
thereof or the Special Servicer or an Affiliate thereof, as appropriate, and (c)
describes in reasonable detail the action that the Master Servicer or the
Special Servicer proposes to take. The Trustee, upon receipt of such notice,
shall forward it to the Certificateholders (other than the Master Servicer and
its Affiliates or the Special Servicer and its Affiliates, as appropriate),
together with such instructions for response as the Trustee shall reasonably
determine. If at any time Certificateholders holding greater than 50% of the
Voting Rights of all Certificateholders (calculated without regard to the
Certificates beneficially owned by the Master Servicer or its Affiliates or the
Special Servicer or its Affiliates, as appropriate) shall have failed to object
in writing (with a copy to the Companion Loan Noteholders, if the Loan Pairs are
involved) to the proposal described in the written notice, and if the Master
Servicer or the Special Servicer shall act as proposed in the written notice
within 30 days, such action shall be deemed to comply with, but not modify, the
Servicing Standard. The Trustee shall be entitled to reimbursement from the
Master Servicer or the Special Servicer, as applicable, for the reasonable
expenses of the Trustee incurred pursuant to this paragraph. It is not the
intent of the foregoing provision that the Master Servicer or the Special
Servicer be permitted to invoke the procedure set forth herein with respect to
routine servicing matters arising hereunder, but rather only in the case of
unusual circumstances.
Section 6.11 Certain Powers of the Directing Holder.
(a) The Directing Holder will be entitled to advise the Master
Servicer (for such action the Master Servicer is authorized to take under this
Agreement) and the Special Servicer (for such action the Special Servicer is
authorized to take under this Agreement) with respect to the following actions
of the Master Servicer or Special Servicer, as applicable. The Master Servicer
and the Special Servicer, as applicable, will not be permitted to take any of
the following actions unless and until it has notified the applicable Directing
Holder in writing, and the Directing Holder has not objected in writing within
ten (10) Business Days of having been notified thereof, and having been provided
with all reasonably requested information with respect thereto promptly
following its receipt of the subject notice (it being understood and agreed that
if such written objection has not been received by the Special Servicer or the
Master Servicer, as applicable, within such 10-Business Day period, then the
Directing Holder will be deemed to have approved the taking of the subject
action):
(i) any proposed or actual foreclosure upon or comparable conversion
(which may include acquisitions of an REO Property) of the ownership of
properties securing such of the Specially Serviced Loans as come into and
continue in default;
(ii) if a Companion Loan Noteholder or its designee is the Directing
Holder, any modification, extension, amendment or waiver of a monetary
term (including the timing of payments) or any material non-monetary term
of the related Loan Pair;
(iii) if the Directing Holder is any Person other than a Companion
Loan Noteholder (or its designee), any modification, extension, amendment
or waiver of a monetary term (including the timing of payments) or any
material non-monetary term of a Mortgage Loan;
(iv) any proposed or actual sale of an Administered REO Property
(other than in connection with the termination of the Trust Fund) for less
than the Purchase Price;
(v) if a Companion Loan Noteholder or its designee is the Directing
Holder, any acceptance of a discounted payoff with respect to the related
Loan Pair;
(vi) if the Directing Holder is any Person other than a Companion
Loan Noteholder (or its designee), any acceptance of a discounted payoff
with respect to a Specially Serviced Loan;
(vii) any determination to bring a Mortgaged Property or an REO
Property into compliance with applicable environmental laws or to
otherwise address Hazardous Materials located at a Mortgaged Property or
an REO Property;
(viii) any release of collateral for a Loan or any release of a
Mortgagor (other than in accordance with the terms of (with no material
discretion by the mortgagee), or upon satisfaction of, such Loan);
(ix) any acceptance of substitute or additional collateral for a
Loan (other than in accordance with the terms of such Loan (with no
material discretion by the mortgagee));
(x) any waiver of a "due-on-sale" or "due-on-encumbrance" clause
with respect to any Loan;
(xi) any acceptance of an assumption agreement releasing a Mortgagor
or a guarantor from liability under a Loan;
(xii) any acceptance of a change in the property management company
(provided that the unpaid principal balance of the related Mortgage Loan
is greater than $5,000,000) or, if applicable, hotel franchise for any
Mortgaged Property;
(xiii) any extension of the maturity date of a Mortgage Loan, which
results in the remaining term of any related ground lease (together with
extensions at the sole option of the lender) being less than 10 years
beyond the amortization term of such Mortgage Loan;
(xiv) any determination by the Master Servicer (A) that a Servicing
Transfer Event has occurred with respect to any Mortgage Loan solely by
reason of the failure of the related Mortgagor to maintain or cause to be
maintained insurance coverage against damages or losses arising from acts
of terrorism in accordance with the loan documents or (B) to force place
any insurance against damages or losses arising from acts of terrorism
that is failed to be maintained by the related Mortgagor with respect to
the related Mortgaged Property; provided that, notwithstanding this clause
(xiv), a Servicing Transfer Event shall occur with respect to a Performing
Serviced Loan on the 60th day following the forced placement of any
insurance referred to under clause (B) above with respect to the related
Mortgaged Property based upon either (1) the continued failure of the
related Mortgagor to maintain or cause to be maintained such insurance
coverage or (2) the failure of the Master Servicer to have been reimbursed
for any Servicing Advances made in connection with the forced placement of
the subject insurance (unless both the circumstances giving rise to such
forced placement of such insurance have otherwise been cured and the
Master Servicer has been reimbursed for any Servicing Advances made in
connection with the forced placement of the subject insurance);
(xv) any extension by the Master Servicer of the maturity date of a
Performing Serviced Loan pursuant to Section 3.20(c); and
(xvi) with respect to a Tier 1 Loan Pair or Tier 2 Loan Pair, if the
Companion Loan Noteholder or its designee is the Directing Holder, any
extension by the Special Servicer of the maturity date of a Performing
Serviced Loan pursuant to the last paragraph of Section 3.20(d).
provided that, in the event that the Master Servicer or the Special Servicer, as
applicable, determines that immediate action is necessary to protect the
interests of the Certificateholders (as a collective whole) (or, in the case of
a Loan Pair, to protect the interests of the Certificateholders and the related
Companion Loan Noteholder (as a collective whole)), the Master Servicer or the
Special Servicer, as applicable, may take any such action without waiting for
the applicable Directing Holder's response. As used in clauses (viii), and (ix)
above, the term "material discretion" shall mean that the relevant decision
regarding the release of collateral or the acceptance of substitute or
additional collateral, as applicable, is in the discretion of the mortgagee, and
such decision need not be based upon the satisfaction of specified objective
conditions, the satisfactory delivery of certain factual evidence or opinions or
the satisfaction of any other specified objective criteria that is set forth in
the related Mortgage Loan documents.
In addition, the Directing Holder may direct the Special Servicer to
take, or to refrain from taking, any actions with respect to the servicing
and/or administration of a Specially Serviced Loan as the Directing Holder may
deem advisable or as to which provision is otherwise made herein subject to
Section 6.11(b). Upon reasonable request, the Special Servicer shall provide the
Directing Holder with any information in the Special Servicer's possession with
respect to such matters, including its reasons for determining to take a
proposed action; provided that such information shall also be provided, in a
written format, to the Trustee, who shall make it available for review pursuant
to Section 8.14(b) and, insofar as a Loan Pair is involved, for review by the
related Companion Loan Noteholders.
Each of the Master Servicer (with respect to the Performing Serviced
Loans) and the Special Servicer (with respect to the Specially Serviced Mortgage
Loans), as applicable, shall notify the applicable Directing Holder of any
release or substitution of collateral for a Loan even if such release or
substitution is in accordance with such Loan.
Notwithstanding anything herein to the contrary, if a Companion Loan
Holder is a Directing Holder it shall be permitted to exercise the powers of a
Directing Holder under this Agreement only with respect to its related Loan
Pair.
So long as no Consultation Appraisal Event has occurred, each
Companion Loan Consulting Noteholder of a Tier 3 Loan Pair shall be entitled to
non-binding consultation rights with respect to each action to be taken by the
Master Servicer or the Special Servicer listed in this Section 6.11(a) with
respect to the related Loan Pair. Until the occurrence of a Consultation
Appraisal Event, the Master Servicer or the Special Servicer, as applicable,
shall provide such Companion Loan Consulting Noteholder with the same notice and
information to be provided to the Directing Holder for such Loan Pair (which
shall be the Controlling Class Directing Holder pursuant to the terms of this
Agreement), and the Master Servicer or the Special Servicer, as applicable,
shall allow such Companion Loan Consulting Noteholder a period of 10 Business
Days from the initial notice of the related action, during which period such
Companion Loan Consulting Noteholder may consult with the Master Servicer or the
Special Servicer, as applicable, as to the action to be taken with respect to
such Loan Pair.
(b) Notwithstanding anything herein to the contrary, no advice,
direction or objection from or by the Directing Holder, as contemplated by
Section 6.11(a), may (and the Master Servicer and the Special Servicer, as
applicable, shall ignore and act without regard to any such advice, direction or
objection that such servicer has determined, in its reasonable, good faith
judgment, would) require or cause such servicer to (i) violate applicable law,
any provision of this Agreement (exclusive of Section 6.11(a)) (including such
servicer's obligation to act in accordance with the Servicing Standard), the
related loan documents or the REMIC Provisions, (ii) expose the Master Servicer,
the Special Servicer, the Depositor, a Mortgage Loan Seller, the Trust Fund, the
Trustee, the Fiscal Agent or their officers, directors, employees or agents to
any material claim, suit or liability or (iii) materially expand the scope of
such servicer's responsibilities under this Agreement.
(c) The Directing Holder will have no liability to the
Certificateholders or the Companion Loan Noteholders for any action taken, or
for refraining from the taking of any action, or for errors in judgment. Each
Certificateholder acknowledges and agrees, by its acceptance of its
Certificates, that: (i) the Controlling Class Directing Holder may, and is
permitted hereunder to, have special relationships and interests that conflict
with those of Holders of one or more Classes of Certificates; (ii) the
Controlling Class Directing Holder may, and is permitted hereunder to, act
solely in the interests of the Holders of the Controlling Class; (iii) the
Controlling Class Directing Holder does not have any duties to the Holders of
any Class of Certificates other than the Controlling Class; (iv) the Controlling
Class Directing Holder may, and is permitted hereunder to, take actions that
favor interests of the Holders of the Controlling Class over the interests of
the Holders of one or more other Classes of Certificates; and (v) the
Controlling Class Directing Holder shall have no liability whatsoever for having
acted solely in the interests of the Holders of the Controlling Class, and no
Certificateholder may take any action whatsoever against the Controlling Class
Directing Holder, any Holder of the Controlling Class or any director, officer,
employee, agent or principal thereof for having so acted.
(d) The applicable Companion Loan Noteholders shall be entitled to
receive, upon request made to the Trustee, a copy of any notice or report
required to be delivered (upon request or otherwise) by any party hereto to the
Trustee with respect to the related Loan Pair which is in the possession of the
Trustee. The Trustee shall be permitted to require payment of a sum sufficient
to cover the reasonable costs and expenses of providing such copies.
ARTICLE VII
DEFAULT
Section 7.01 Events of Default.
(a) "Event of Default," wherever used herein, means any one of the
following events:
(i) any failure by the Master Servicer to deposit into a Custodial
Account, any amount, including a P&I Advance, required to be so deposited
or remitted by it under this Agreement, which failure continues unremedied
for one Business Day following the date on which a deposit or remittance
was first required to be made; or
(ii) any failure by the Special Servicer to deposit into an REO
Account or to deposit into, or to remit to the Master Servicer for deposit
into, a Custodial Account, any amount required to be so deposited or
remitted under this Agreement, which failure continues unremedied for one
Business Day following the date on which a deposit or remittance was first
required to be made; or
(iii) any failure by the Master Servicer to deposit into, or remit
to the Trustee for deposit into, the Distribution Account, any amount
(including any P&I Advances and any amounts to cover Prepayment Interest
Shortfalls) required to be so deposited or remitted by it under this
Agreement, which failure continues unremedied until 11:00 a.m. (New York
City time) on the applicable Distribution Date, or any failure by the
Master Servicer to make, on a timely basis, the required payments
(including in the case of the Windsor Capital Portfolio Pari Passu
Companion Loan any P&I Advances) to the applicable Companion Loan
Noteholder on any Master Servicer Remittance Date, which failure continues
unremedied until 11:00 a.m. (New York City time) on the Business Day after
such remittance date; or
(iv) any failure by the Master Servicer to timely make any Servicing
Advance required to be made by it hereunder, which Servicing Advance
remains unmade for a period of three Business Days following the date on
which notice of such failure shall have been given to the Master Servicer
by any other party hereto; or
(v) any failure on the part of the Master Servicer or the Special
Servicer duly to observe or perform in any material respect any other
covenants or agreements on the part of the Master Servicer or the Special
Servicer, as the case may be, contained in this Agreement, which failure
continues unremedied for a period of 30 days (15 days in the case of
payment of insurance premiums) after the date on which written notice of
such failure, requiring the same to be remedied, shall have been given to
the Master Servicer or the Special Servicer, as the case may be, by any
other party hereto or to the Master Servicer or the Special Servicer, as
the case may be (with a copy to each other party hereto), by any Companion
Loan Noteholder (if affected thereby) or by the Holders of Certificates
entitled to at least 25% of the Voting Rights, provided, however, that
with respect to any such failure which ________ _______ is not curable
within such 30-day period, the Master Servicer or the Special Servicer, as
the case may be, shall have an additional cure period of 30 days to effect
such cure so long as the Master Servicer or the Special Servicer, as the
case may be, has commenced to cure such failure within the initial 30-day
period and has provided the Trustee and, if affected thereby, any
Companion Loan Noteholder with an Officer's Certificate certifying that it
has diligently pursued, and is diligently continuing to pursue, a full
cure; or
(vi) any breach on the part of the Master Servicer or the Special
Servicer of any of its representations or warranties contained in this
Agreement that materially and adversely affects the interests of any Class
of Certificateholders or the Companion Loan Noteholders and which breach
continues unremedied for a period of 30 days after the date on which
written notice of such breach, requiring the same to be remedied, shall
have been given to the Master Servicer or the Special Servicer, as the
case may be, by any other party hereto or to the Master Servicer or the
Special Servicer, as the case may be (with a copy to each other party
hereto), by the Companion Loan Noteholders (if affected thereby) or the
Holders of Certificates entitled to at least 25% of the Voting Rights,
provided, however, that with respect to any such breach which is not
curable within such 30-day period, the Master Servicer or the Special
Servicer, as the case may be, shall have an additional cure period of 30
days so long as the Master Servicer or the Special Servicer, as the case
may be, has commenced to cure such breach within the initial 30-day period
and provided the Trustee and the Companion Loan Noteholders with an
Officer's Certificate certifying that it has diligently pursued, and is
diligently continuing to pursue, a full cure; or
(vii) 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 Master 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
(viii) the Master Servicer or the Special Servicer shall consent to
the appointment of a conservator, receiver, liquidator, trustee or similar
official in any bankruptcy, insolvency, readjustment of debt, marshaling
of assets and liabilities or similar proceedings of or relating to it or
of or relating to all or substantially all of its property; or
(ix) the Master Servicer or the Special Servicer shall admit in
writing its inability to pay its debts generally as they become due, file
a petition to take advantage of any applicable bankruptcy, insolvency or
reorganization statute, make an assignment for the benefit of its
creditors, voluntarily suspend payment of its obligations, or take any
corporate action in furtherance of the foregoing; or
(x) a Servicing Officer of the Master Servicer or the Special
Servicer, as the case may be, obtains actual knowledge that Xxxxx'x has
(1) qualified, downgraded or withdrawn its rating or ratings of one or
more Classes of the Certificates or (2) placed one or more Classes of the
Certificates on "watch status" (and such "watch status" placement shall
not have been withdrawn by Xxxxx'x within 60 days of the date when the
Servicing Officer of the Master Servicer or the Special Servicer, as the
case may be, obtained such actual knowledge) and, in the case of either
clauses (1) or (2), cited servicing concerns with ___________ ___ the
Master Servicer or the Special Servicer, as the case may be, as the sole
or material factor in such rating action; or
(xi) the Master Servicer or the Special Servicer is removed from
S&P's approved master servicer list or special servicer list, as the case
may be, and the ratings of any of the Certificates by S&P are qualified,
downgraded or withdrawn in connection with the removal.
When a single entity acts as the Master Servicer and the Special
Servicer, an Event of Default in one capacity shall constitute an Event of
Default in the other capacity.
(b) If any Event of Default described in clauses (i) - (ix) and (xi)
of subsection (a) above shall occur with respect to the Master Servicer or the
Special Servicer (in either case, for purposes of this Section 7.01(b), the
"Defaulting Party") and shall be continuing, then, and in each and every such
case, so long as such Event of Default shall not have been remedied, the Trustee
may, and at the written direction of the Holders of Certificates entitled to at
least 25% of the Voting Rights, the Trustee shall, by notice in writing to the
Defaulting Party (with a copy of such notice to each other party hereto and the
Rating Agencies) terminate, subject to Section 7.01(d), all of the rights and
obligations (but not the liabilities for actions and omissions occurring prior
thereto) of the Defaulting Party under this Agreement and in and to the Trust
Fund and the Companion Loans, other than its rights, if any, as a
Certificateholder hereunder or as the holder of the Companion Loans or any
interest therein. If any Event of Default described in clause (x) of subsection
(a) above shall occur with respect to the Master Servicer or the Special
Servicer (in either case, under such circumstances, for purposes of this Section
7.01(b), the "Defaulting Party"), the Trustee shall, by notice in writing (to be
sent immediately by facsimile transmission) to the Defaulting Party (with a copy
of such notice to each other party hereto and the Rating Agencies), terminate,
subject to Section 7.01(d), all of the rights and obligations (but not the
liabilities for actions and omissions occurring prior thereto) of the Defaulting
Party under this Agreement and in and to the Trust Fund and the Companion Loans,
other than its rights, if any, as a Certificateholder hereunder or as the holder
of the Companion Loans or any interest therein, within 30 days following the
occurrence of such Event of Default. From and after the receipt by the
Defaulting Party of such written notice of termination, all authority and power
of the Defaulting Party under this Agreement (other than the right to Workout
Fees payable to the outgoing Special Servicer in accordance with Section
3.11(c)), whether with respect to the Certificates (other than as a holder of
any Certificate), the Loans (other than as a Holder thereof or any interest
therein) or otherwise, shall pass to and be vested in the Trustee pursuant to
and under this section, and, without limitation, the Trustee is hereby
authorized and empowered to execute and deliver, on behalf of and at the expense
of the Defaulting Party, as attorney-in-fact or otherwise, any and all documents
and other instruments, and to do or accomplish all other acts or things
necessary or appropriate to effect the purposes of such notice of termination,
whether to complete the transfer and endorsement or assignment of the Loans and
related documents, or otherwise. The Master Servicer and the Special Servicer
each agree that, if it is terminated pursuant to this Section 7.01(b), it shall
promptly (and in any event no later than 10 Business Days subsequent to its
receipt of the notice of termination) provide the Trustee with all documents and
records, including those in electronic form, requested thereby to enable the
Trustee to assume the Master Servicer's or Special Servicer's, as the case may
be, functions hereunder, and shall cooperate with the Trustee in effecting the
termination of the Master Servicer's or Special Servicer's, as the case may be,
responsibilities and rights hereunder, including (i) if the Master Servicer is
the Defaulting Party, the immediate transfer to the Trustee or a successor
Master Servicer for administration by it of all cash amounts that shall at the
time be or should have been credited by the Master Servicer to a Custodial
Account, the Distribution Account, the Defeasance Deposit Account, a Servicing
Account or a Reserve Account or that are thereafter received by or on behalf of
it with respect to any Loan or (ii) if the Special Servicer is the Defaulting
Party, the transfer within two Business Days to the Trustee or a successor
Special Servicer for administration by it of all cash amounts that shall at the
time be or should have been credited by the Special Servicer to an REO Account,
a Custodial Account, a Servicing Account or a Reserve Account or should have
been delivered to the Master Servicer or that are thereafter received by or on
behalf of it with respect to any Loan or REO Property; provided, however, that
the Master Servicer and the Special Servicer each shall, if terminated pursuant
to this Section 7.01(b), continue to be entitled to receive all amounts accrued
or owing to it under this Agreement on or prior to the date of such termination,
whether in respect of Advances or otherwise, and it shall continue to be
entitled to the benefits of Section 6.03 notwithstanding any such termination.
Any cost or expenses in connection with any actions to be taken by any party
hereto pursuant to this paragraph shall be borne by the Defaulting Party and if
not paid by the Defaulting Party within 90 days after the presentation of
reasonable documentation of such costs and expenses, such expense shall be
reimbursed by the Trust Fund; provided, however, that the Defaulting Party shall
not thereby be relieved of its liability for such expenses. For purposes of this
Section 7.01 and also for purposes of Section 7.03(b), the Trustee shall not be
deemed to have knowledge of an event which constitutes, or which with the
passage of time or notice, or both, would constitute an Event of Default unless
a Responsible Officer of the Trustee assigned to and working in the Trustee's
Corporate Trust Office has actual knowledge thereof or unless notice of any
event which is in fact such an Event of Default is received by the Trustee and
such notice references the Certificates, the Trust Fund or this Agreement.
(c) In the case of an Event of Default under Section 7.01(a)(x) or
(xi) of which the Trustee has notice, the Trustee shall provide written notice
thereof to the Master Servicer promptly upon receipt of such notice.
Notwithstanding Section 7.01(b), if the Master Servicer receives a notice of
termination under Section 7.01(b) solely due to an Event of Default under
Section 7.01(a)(x) or (xi), and if the terminated Master Servicer provides the
Trustee with the appropriate "request for proposal" materials within five
Business Days following such termination, then the Master Servicer shall
continue to serve in such capacity hereunder until a successor thereto is
selected in accordance with this Section 7.01(c) or the expiration of 45 days
from the Master Servicer's receipt of the notice of termination, whichever
occurs first. Upon receipt of such "request for proposal" materials from the
terminated Master Servicer, the Trustee shall promptly thereafter (using such
"request for proposal" materials) solicit good faith bids for the rights to
master service the Loans under this Agreement from at least three (3) Persons
qualified to act as a successor Master Servicer hereunder in accordance with
Section 6.02 and Section 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 terminated Master 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 master service the Loans under this
Agreement. The bid proposal shall require any Successful Bidder (as defined
below), as a condition of such bid, to enter into this Agreement as successor
Master Servicer, and to agree to be bound by the terms hereof, within 45 days
after the receipt of notice of termination by the terminated Master Servicer.
The Trustee shall solicit bids: (i) on the basis of such successor Master
Servicer retaining all Sub-Servicers to continue the primary servicing of the
Loans pursuant to the terms of the respective Sub-Servicing Agreements and to
enter into a Sub-Servicing Agreement with the terminated Master Servicer to
sub-service each of the Loans not subject to a Sub-Servicing Agreement at a
sub-servicing fee rate per annum equal to the Master Servicing Fee Rate minus
one (1) basis points per Loan serviced (each, a "Servicing-Retained Bid"); and
(ii) on the basis of terminating each Sub-Servicing Agreement and Sub-Servicer
that it is permitted to terminate in accordance with Section 3.22 (each, a
"Servicing-Released Bid"). The Trustee shall select the Qualified Bidder with
the highest cash Servicing-Retained Bid (or, if none, the highest cash Servicing
Released Bid) (the "Successful Bidder") to act as successor Master Servicer
hereunder. The Trustee shall direct the Successful Bidder to enter into this
Agreement as successor Master Servicer pursuant to the terms hereof (and, if the
successful bid was a Servicing Retained Bid, to enter into a Sub-Servicing
Agreement with the terminated Master Servicer as contemplated above) no later
than 45 days after the receipt of notice of termination by the terminated Master
Servicer.
Upon the assignment and acceptance of the master servicing rights
hereunder to and by the Successful Bidder, the Trustee shall remit or cause to
be remitted (i) if the successful bid was a Servicing-Retained Bid, to the
terminated Master Servicer the amount of such cash bid received from the
Successful Bidder (net of "out-of-pocket" expenses incurred in connection with
obtaining such bid and transferring servicing) and (ii) if the successful bid
was a Servicing-Released Bid, to the Master Servicer and each terminated
Sub-Servicer its respective Bid Allocation.
The terminated Master Servicer shall be responsible for all
out-of-pocket expenses incurred in connection with the attempt to sell its
rights to service the 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 Master Servicer within 45 days after the terminated Master Servicer
received written notice of termination or no Successful Bidder was identified
within such 45-day period, the terminated Master Servicer shall reimburse the
Trustee for all reasonable "out-of-pocket" expenses incurred by the Trustee in
connection with such bid process and the Trustee shall have no further
obligations under this Section 7.01(c). The Trustee thereafter may act or may
select a successor to act as Master Servicer hereunder in accordance with
Section 7.02.
(d) Notwithstanding Section 7.01(b), if any Event of Default on the
part of the Master Servicer occurs that affects only the Companion Loans and
neither the Certificates nor any Mortgage Loan are affected by such Event of
Default, then, instead of terminating the Master Servicer in accordance with
Section 7.01(b), the Trustee shall require the Master Servicer to appoint,
within 30 days of the Trustee's request, a Sub-Servicer (or, if the Loan Pairs
are currently being sub-serviced, to replace, within 30 days of the Trustee's
request, the then-current Sub-Servicer with a new Sub-Servicer) with respect to
the related Loan Pair. In connection with the Master Servicer's appointment of a
Sub-Servicer at the request of the Trustee in accordance with this Section
7.01(d), the Master Servicer shall obtain written confirmation from each Rating
Agency that such appointment will not result in an Adverse Rating Event. The
related Sub-Servicing Agreement shall provide that any Sub-Servicer appointed by
the Master Servicer at the request of the Trustee in accordance with this
Section 7.01(d) shall be responsible for all duties, and shall be entitled to
all compensation, of the Master Servicer under this Agreement with respect to
the related Loan Pair, except that the Master Servicer shall be entitled to
retain a portion of the Master Servicing Fee for the Mortgage Loan in the
related Loan Pair calculated at 0.01% per annum. Such Sub-Servicing Agreement
shall also provide that such Sub-Servicer shall agree to become the master
servicer under a separate servicing agreement for the applicable Loan Pair in
the event that the applicable Loan Pair is no longer to be serviced and
administered hereunder, which separate servicing agreement shall contain
servicing and administration, limitation of liability, indemnification and
servicing compensation provisions substantially similar to the corresponding
provisions of this Agreement, except for the fact that the applicable Loan Pair
and the related Loan Pair Mortgaged Properties shall be the sole assets serviced
and administered thereunder and the sole source of funds thereunder. If any
Sub-Servicer appointed by the Master Servicer at the request of the Trustee in
accordance with this Section 7.01(d) shall at any time resign or be terminated,
the Master Servicer shall be required to promptly appoint a substitute
Sub-Servicer, which appointment shall not result in an Adverse Rating Event (as
evidenced in writing by each Rating Agency). In the event that a successor
Master Servicer is acting hereunder and that successor Master Servicer desires
to terminate the Sub-Servicer appointed under this Section 7.01(d), the
terminated Master Servicer that was responsible for the Event of Default that
led to the appointment of such Sub-Servicer shall be responsible for all costs
incurred in connection with such termination, including the payment of any
termination fee.
Section 7.02 Trustee to Act; Appointment of Successor.
On and after the time the Master Servicer or the Special Servicer
resigns pursuant to Section 6.04 or receives a notice of termination pursuant to
Section 7.01, the Trustee shall, unless and until a successor is appointed
pursuant to Section 6.04, Section 6.09 or Section 7.01(c), be the successor in
all respects to the Master Servicer or the Special Servicer, as the case may be,
in its capacity as such under this Agreement and the transactions set forth or
provided for herein and shall have all (and the former Master Servicer or the
Special Servicer, as the case may be, shall cease to have any) of the
responsibilities, duties and liabilities of the Master Servicer or the Special
Servicer, as the case may be, arising thereafter, including, if the Master
Servicer is the resigning or terminated party, the Master Servicer's obligation
to make P&I Advances, including in connection with any termination of the Master
Servicer for an Event of Default described in clause 7.01(a)(iii), the unmade
P&I Advances that gave rise to such Event of Default; provided that any failure
to perform such duties or responsibilities caused by the Master Servicer's or
the Special Servicer's, as the case may be, failure to provide information or
monies required by Section 7.01 shall not be considered a default by the Trustee
hereunder. The Trustee shall not be liable for any of the representations and
warranties of the resigning or terminated party or for any losses incurred by
the resigning or terminated party pursuant to Section 3.06 hereunder nor shall
the Trustee be required to purchase any Loan hereunder. As compensation
therefor, the Trustee shall be entitled to all fees and other compensation which
the resigning or terminated party would have been entitled to if the resigning
or terminated party had continued to act hereunder. Notwithstanding the above,
the Trustee may, if it shall be unwilling to so act as either Master Servicer or
Special Servicer, as the case may be, or shall, if it is unable to so act as
either Master Servicer or Special Servicer, as the case may be, or if the
Trustee is not approved as a master servicer or a special servicer, as the case
may be, by any of the Rating Agencies, or if the Holders of Certificates
entitled to a majority 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 as the successor to
the resigning or terminated Master Servicer or the Special Servicer, as the case
may be, hereunder in the assumption of all or any part of the responsibilities,
duties or liabilities of the resigning or terminated Master Servicer or the
Special Servicer, as the case may be, hereunder; provided, however, that no such
appointee shall succeed to the rights and obligations of the Master Servicer or
Special Servicer hereunder unless (i) as confirmed in writing by each of the
Rating Agencies, such succession will not result in an Adverse Rating Event, and
(ii) such appointee makes the applicable representations and warranties set
forth in Section 3.23; and provided, further, that in the case of a resigning or
terminated Special Servicer, such appointment shall be subject to the rights of
the Holders of Certificates evidencing a majority of the Voting Rights allocated
to the Controlling Class to designate a successor pursuant to Section 6.09. No
appointment of a successor to the Master Servicer or the Special Servicer
hereunder shall be effective until the assumption by the successor to such party
of all its responsibilities, duties and liabilities under this Agreement.
Pending appointment of a successor to the Master Servicer or the Special
Servicer hereunder, the Trustee shall act in such capacity as hereinabove
provided. In connection with any such appointment and assumption described
herein, the Trustee may make such arrangements for the compensation of such
successor out of payments on the Loans as it and such successor shall agree,
subject to the terms of this Agreement limiting the use of funds received in
respect of a Loan Pair to matters related to such Loan Pair; provided, however,
that no such compensation shall be in excess of that permitted the resigning or
terminated party hereunder. Such successor and the other parties hereto shall
take such action, consistent with this Agreement, as shall be necessary to
effectuate any such succession.
Section 7.03 Notification to Certificateholders.
(a) Upon any resignation of the Master Servicer or the Special
Servicer pursuant to Section 6.04, any termination of the Master Servicer or the
Special Servicer pursuant to Section 7.01, any appointment of a successor to the
Master Servicer or the Special Servicer pursuant to Section 7.02 or the
effectiveness of any designation of a new Special Servicer pursuant to Section
6.09, the Trustee shall give prompt written notice thereof to Certificateholders
at their respective addresses appearing in the Certificate Register and to the
Companion Loan Noteholders.
(b) Not later than 10 days after a Responsible Officer of the
Trustee has notice of the occurrence of any event which constitutes or, with
notice or lapse of time or both, would constitute an Event of Default, the
Trustee shall transmit by mail to the Depositor, all the Certificateholders, the
Companion Loan Noteholders and the Rating Agencies notice of such occurrence,
unless such default shall have been cured.
Section 7.04 Waiver of Events of Default.
The Holders representing at least 66-2/3% of the Voting Rights
allocated to each Class of Certificates affected by any Event of Default
hereunder, together with the Companion Loan Noteholders (if it is adversely
affected by such Event of Default), may waive such Event of Default; provided,
however, that an Event of Default under any of clauses (i), (ii), (iii), (x) and
(xi) of Section 7.01(a) may be waived only by all of the Certificateholders of
the affected Classes, together with the Companion Loan Noteholders, if any, that
is affected by such Event of Default. Upon any such waiver of an Event of
Default, such Event of Default shall cease to exist and shall be deemed to have
been remedied for every purpose hereunder. No such waiver shall extend to any
subsequent or other Event of Default or impair any right consequent thereon
except to the extent expressly so waived. Notwithstanding any other provisions
of this Agreement, for purposes of waiving any Event of Default pursuant to this
Section 7.04, Certificates registered in the name of the Depositor or any
Affiliate of the Depositor shall be entitled to Voting Rights with respect to
the matters described above.
The foregoing paragraph notwithstanding, if the Holders representing
at least the requisite percentage of the Voting Rights allocated to each
affected Class of Certificates desire to waive an Event of Default by the Master
Servicer, but a Companion Loan Noteholder (affected thereby) does not wish to
waive that Event of Default, then those Holders may still waive that default and
the applicable Companion Loan Noteholder will be entitled to request that the
Master Servicer appoint, within 60 days of the Companion Loan Noteholder's
request, a Sub-Servicer (or, if the applicable Loan Pair is currently being
subserviced, to replace, within 60 days of the Companion Loan Noteholder's
request, the then-current Sub-Servicer with a new Sub-Servicer) with respect to
the applicable Loan Pair. In connection with the Master Servicer's appointment
of a Sub-Servicer at the request of a Companion Loan Noteholder in accordance
with this Section 7.04, the Master Servicer shall obtain written confirmation
from each Rating Agency that such appointment will not result in an Adverse
Rating Event. The related Sub-Servicing Agreement shall provide that any
Sub-Servicer appointed by the Master Servicer at the request of a Companion Loan
Noteholder in accordance with this Section 7.04 shall be responsible for all
duties, and shall be entitled to all compensation, of the Master Servicer under
this Agreement with respect to the applicable Loan Pair, except that the Master
Servicer shall be entitled to retain a portion of the Master Servicing Fee for
the Mortgage Loan in the Loan Pair calculated at 0.01% per annum. Such
Sub-Servicing Agreement shall also provide that such Sub-Servicer shall become
the master servicer under a separate servicing agreement for the applicable Loan
Pair in the event that the Loan Pair is no longer to be serviced and
administered hereunder, which separate servicing agreement shall contain
servicing and administration, limitation of liability, indemnification and
servicing compensation provisions substantially similar to the corresponding
provisions of this Agreement, except for the fact that the applicable Loan Pair
and the Loan Pair Mortgaged Properties shall be the sole assets serviced and
administered thereunder and the sole source of funds thereunder. Such
Sub-Servicer shall meet the requirements of Section 3.22. If any Sub-Servicer
appointed by the Master Servicer at the request of the Companion Loan Noteholder
in accordance with this Section 7.04 shall at any time resign or be terminated,
the Master Servicer shall be required to promptly appoint a substitute
Sub-Servicer, which appointment shall not result in an Adverse Rating Event (as
evidenced in writing by each Rating Agency). In the event a successor Master
Servicer is acting hereunder and that successor Master Servicer desires to
terminate the Sub-Servicer appointed under this Section 7.04, the terminated
Master Servicer that was responsible for the Event of Default that led to the
appointment of such Sub-Servicer shall be responsible for all costs incurred in
connection with such termination, including the payment of any termination fee.
Section 7.05 Additional Remedies of Trustee Upon Event of Default.
During the continuance of any Event of Default, so long as such
Event of Default shall not have been remedied, the Trustee, in addition to the
rights specified in Section 7.01, shall have the right, in its own name and as
trustee of an express trust and on behalf of the Companion Loan Noteholders, to
take all actions now or hereafter existing at law, in equity or by statute to
enforce its rights and remedies and to protect the interests, and enforce the
rights and remedies, of the Certificateholders and the Companion Loan
Noteholders (including the institution and prosecution of all judicial,
administrative and other proceedings and the filings of proofs of claim and debt
in connection therewith). Except as otherwise expressly provided in this
Agreement, no remedy provided for by this Agreement shall be exclusive of any
other remedy, and each and every remedy shall be cumulative and in addition to
any other remedy, and no delay or omission to exercise any right or remedy shall
impair any such right or remedy or shall be deemed to be a waiver of any Event
of Default.
ARTICLE VIII
CONCERNING THE TRUSTEE
Section 8.01 Duties of Trustee.
(a) The Trustee, prior to the occurrence of an Event of Default and
after the curing or waiver of all Events of Default which may have occurred,
undertakes to perform such duties and only such duties as are specifically set
forth in this Agreement. If an Event of Default occurs and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Agreement, and use the same degree of care and skill in their exercise as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs; provided that if the Trustee is acting as Master Servicer or
Special Servicer, it shall act in accordance with the Servicing Standard. 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 take such action as it deems appropriate to
have the instrument corrected. The Trustee shall not be responsible for the
accuracy or content of any resolution, certificate, statement, opinion, report,
document, order or other instrument furnished by the Depositor, the Master
Servicer or the Special Servicer, and accepted by the Trustee in good faith,
pursuant to this Agreement.
(c) No provision of this Agreement shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own misconduct; provided, however, that:
(i) Prior to the occurrence of an Event of Default, and after the
curing of all such Events of Default which may have occurred, the duties
and obligations of the Trustee shall be determined solely by the express
provisions of this Agreement, the Trustee shall not be liable except for
the performance of such duties and obligations as are specifically set
forth in this Agreement, no implied covenants or obligations shall be read
into this Agreement against the Trustee and, in the absence of bad faith
on the part of the Trustee, the Trustee may conclusively rely, as to the
truth of the statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the Trustee and
conforming to the requirements of this Agreement;
(ii) The Trustee shall not be personally liable for an error of
judgment made in good faith by a Responsible Officer or Responsible
Officers of the Trustee, unless it shall be proved that the Trustee was
negligent in ascertaining the pertinent facts;
(iii) The Trustee shall not be personally liable with respect to any
action taken, suffered or omitted to be taken by it in good faith in
accordance with the terms of this Agreement and the direction of any
Directing Holder, Controlling Class or Holders of Certificates entitled to
at least 25% of the Voting Rights, relating to the time, method and place
of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this
Agreement; and
(iv) The protections, immunities and indemnities afforded to the
Trustee hereunder shall also be available to it in its capacity as
Authenticating Agent, Certificate Registrar, Tax Administrator and
Custodian.
Section 8.02 Certain Matters Affecting Trustee.
Except as otherwise provided in Section 8.01 and Article X:
(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 be under no obligation to exercise any of
the trusts or powers vested in it by this Agreement or to make any
investigation of matters arising hereunder or, except as provided in
Section 10.01 or 10.02, to institute, conduct or defend any litigation
hereunder or in relation hereto, at the request, order or direction of any
of the Certificateholders, pursuant to the provisions of this Agreement,
unless such Certificateholders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and
liabilities which may be incurred therein or thereby; except as provided
in Section 10.01 or 10.02, 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 personally liable for any action
reasonably taken, suffered or omitted by it in good faith and believed by
it to be authorized or within the discretion or rights or powers conferred
upon it by this Agreement;
(v) prior to the occurrence of an Event of Default hereunder and
after the curing of all Events of Default which may have occurred, and
except as may be provided in Section 10.01 or 10.02, the Trustee shall not
be bound to make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, approval, bond or other paper or document, unless
requested in writing to do so by Holders of Certificates entitled to at
least 25% of the Voting Rights; provided, ________ however, that if the
payment within a reasonable time to the Trustee of _______ the costs,
expenses or liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the Trustee, not reasonably assured to
the Trustee by the security afforded to it by the terms of this Agreement,
the Trustee may require reasonable indemnity against such expense or
liability as a condition to taking any such action;
(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 Trustee shall remain responsible
for all acts and omissions of such agents or attorneys within the scope of
their employment to the same extent as it is responsible for its own
actions and omissions hereunder; and
(vii) the Trustee shall not be responsible for any act or omission
of the Master Servicer or the Special Servicer (unless the Trustee is
acting as Master Servicer or the Special Servicer) or the Depositor.
Section 8.03 Trustee and Fiscal Agent Not Liable for Validity or
Sufficiency of Certificates or Loans.
The recitals contained herein and in the Certificates, other than
the statements attributed to the Trustee and the Fiscal Agent in Article II and
Section 8.16 and Section 8.18 and the signature of the Certificate Registrar and
the Authenticating Agent set forth on each outstanding Certificate, shall not be
taken as the statements of the Trustee or the Fiscal Agent, and neither the
Trustee nor the Fiscal Agent shall assume any responsibility for their
correctness. Except as expressly set forth in Section 8.16 and 8.18, the Trustee
and the Fiscal Agent make no representations as to the validity or sufficiency
of this Agreement or of any Certificate (other than as to the signature of the
Trustee set forth thereon) or of any Loan or related document. The Trustee and
the Fiscal Agent 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 a Custodial Account or any other account by
or on behalf of the Depositor, the Master Servicer or the Special Servicer. The
Trustee and the Fiscal Agent shall not be responsible for the accuracy or
content of any resolution, certificate, statement, opinion, report, document,
order or other instrument furnished by the Depositor, the Master Servicer or the
Special Servicer, and accepted by the Trustee in good faith, pursuant to this
Agreement.
Section 8.04 Trustee and Fiscal Agent May Own Certificates.
The Trustee, the Fiscal Agent or any agent of the Trustee and the
Fiscal Agent, in its individual or any other capacity, may become the owner or
pledgee of Certificates with (except as otherwise provided in the definition of
"Certificateholder") the same rights it would have if it were not the Trustee,
the Fiscal Agent or such agent.
Section 8.05 Fees and Expenses of Trustee; Indemnification of and by
Trustee.
(a) On each Distribution Date, the Trustee shall withdraw from the
general funds on deposit in the Distribution Account, prior to any distributions
to be made therefrom on such date, and pay to itself the Trustee Fee for such
Distribution Date and, to the extent not previously paid, for all prior
Distribution Dates, as compensation for all services rendered by the Trustee in
the execution of the trusts hereby created and in the exercise and performance
of any of the powers and duties of the Trustee hereunder. The Trustee Fees
(which shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust) shall constitute the Trustee's
sole compensation for such services to be rendered by it.
(b) The Trustee and any director, officer, employee or agent of the
Trustee shall be entitled to be indemnified for and held harmless by the Trust
Fund against any loss, liability or reasonable "out-of-pocket" expense
(including costs and expenses incurred in connection with removal of the Special
Servicer and Master Servicer pursuant to Sections 7.01 and 7.02, costs and
expenses of litigation, and of investigation, counsel fees, damages, judgments
and amounts paid in settlement) arising out of, or incurred in connection with,
this Agreement or the Certificates ("Trustee Liability"); provided that such
loss, liability or expense constitutes an "unanticipated expense" within the
meaning of Treasury Regulations Section 1.860G-1(b)(3)(ii); and provided,
further, that neither the Trustee nor any of the other above specified Persons
shall be entitled to indemnification pursuant to this Section 8.05(b) for (1)
any liability specifically required to be borne thereby pursuant to the terms of
this Agreement, or (2) any loss, liability or expense incurred by reason of
willful misfeasance, bad faith or negligence in the performance of, or the
negligent disregard of, the Trustee's obligations and duties hereunder, or as
may arise from a breach of any representation, warranty or covenant of the
Trustee made herein, or (3) any loss, liability or expense that constitutes
allocable overhead. The provisions of this Section 8.05(b) and of Section
8.05(c) shall survive any resignation or removal of the Trustee and appointment
of a successor trustee.
(c) If the Trustee Liability arises from the issuance or sale of the
Certificates and the indemnification provided for in Section 8.05(b) is invalid
or unenforceable, then the Trust Fund shall contribute to the amount paid or
payable by the Trustee as a result of such Trustee Liability in such proportion
as is appropriate to reflect the relative fault of any of the other parties on
the one hand and the Trustee on the other in connection with the actions or
omissions which resulted in such Trustee Liability, as well as any other
relevant equitable considerations.
(d) The Trustee shall indemnify and hold harmless the Trust Fund
against any losses arising out of any errors made solely by the Trustee in
calculating distributions to be made hereunder and any other calculation or
reporting hereunder (in each case not attributable to information provided to
the Trustee by the Master Servicer or the Special Servicer); provided that such
loss arose by reason of willful misfeasance, bad faith or negligence on the part
of the Trustee. The provisions of this Section 8.05(d) shall survive any
resignation or removal of the Trustee and appointment of a successor trustee.
Section 8.06 Eligibility Requirements for Trustee.
The Trustee hereunder shall at all times be a bank, a trust company,
an association or a corporation organized and doing business under the laws of
the United States of America or any state thereof or the District of Columbia,
authorized under such laws to exercise trust powers, having a combined capital
and surplus of at least $50,000,000 and subject to supervision or examination by
federal or state banking authority. If such bank, trust company, association or
corporation publishes reports of condition at least annually, pursuant to law or
to the requirements of the aforesaid supervising or examining authority, then
for the purposes of this section the combined capital and surplus of such bank,
trust company, association or corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. The Trustee shall at all times maintain a long-term unsecured debt
rating of at least "Aa3" by Xxxxx'x and "AA-" by S&P (or "A+" by S&P if the
short-term unsecured debt rating of the Trustee is rated at least "A-1" by S&P)
(or, if a Fiscal Agent meeting the requirements of Section 8.17(a) is then
currently acting in such capacity, of at least "A3" by Xxxxx'x and "A-" by each
of S&P) (or, in the case of either Rating Agency, such other rating as shall not
result in an Adverse Rating Event, as confirmed in writing by such Rating
Agency). The Trustee's acting in such capacity shall not adversely affect the
application of the Prohibited Transaction Exemption to the Investment Grade
Certificates. If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this section, the Trustee shall resign
immediately in the manner and with the effect specified in Section 8.07;
provided that if the Trustee shall cease to be so eligible because its combined
capital and surplus is no longer at least $50,000,000 or its long-term unsecured
debt rating no longer conforms to the requirements of the immediately preceding
sentence, and if the Trustee proposes to the other parties hereto to enter into
an agreement with (and reasonably acceptable to) each of them, and if in light
of such agreement the Trustee's continuing to act in such capacity would not (as
evidenced in writing by each Rating Agency) cause an Adverse Rating Event, then
upon the execution and delivery of such agreement the Trustee shall not be
required to resign, and may continue in such capacity, for so long as none of
the ratings assigned by the Rating Agencies to the Certificates is adversely
affected thereby. The bank, trust company, corporation or association serving as
Trustee may have normal banking and trust relationships with the Depositor, the
Master Servicer, the Special Servicer and their respective Affiliates.
Section 8.07 Resignation and Removal of Trustee.
(a) The Trustee may at any time resign and be discharged from the
trusts hereby created by giving written notice thereof to the Depositor, the
Master Servicer, the Special Servicer, all Certificateholders and the Companion
Loan Noteholders. Upon receiving such notice of resignation, the Depositor shall
promptly appoint a successor trustee acceptable to the Depositor 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 Master Servicer, the Special Servicer, the Certificateholders
and the Companion Loan Noteholders 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 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 Master
Servicer or the Special Servicer to timely perform its obligations hereunder or
as a result of other circumstances beyond the Trustee's reasonable control), to
timely deliver or otherwise make available in accordance with this Agreement any
current or revised Distribution Date Statement, CMSA Loan Periodic Update File,
CMSA Property File, CMSA Financial File or other report or statement required by
Section 4.02 and such failure shall continue unremedied for a period of five
days after receipt of written notice by the Trustee of such failure, or if a tax
is imposed or threatened with respect to the Trust Fund by any state in which
the Trustee is located or in which it holds any portion of the Trust Fund, then
the Depositor may remove the Trustee and appoint a successor trustee acceptable
to the Depositor and the Master Servicer by written instrument, in duplicate,
which instrument shall be delivered to the Trustee so removed and to the
successor trustee. A copy of such instrument shall be delivered to the Master
Servicer, the Special Servicer, the Certificateholders and the Companion Loan
Noteholders by the successor trustee so appointed.
(c) The Holders of Certificates entitled to 51% of the Voting Rights
may at any time remove the Trustee and appoint a successor trustee by written
instrument or instruments, signed by such Holders or their attorneys-in-fact
duly authorized, one complete set of which instruments shall be delivered to the
Master Servicer, one complete set to the Trustee so removed and one complete set
to the successor trustee so appointed. A copy of such instrument shall be
delivered to the Depositor, the Special Servicer, the remaining
Certificateholders and the Companion Loan Noteholders by the successor trustee
so appointed.
(d) In the event that the Trustee is terminated or removed pursuant
to this Section 8.07, all of its and any corresponding Fiscal Agent's rights and
obligations under this Agreement and in and to the Loans shall be terminated,
other than any rights or obligations that accrued prior to the date of such
termination or removal (including the right to receive all fees, expenses and
other amounts (including P&I Advances and any accrued interest thereon) accrued
or owing to it under this Agreement, with respect to periods prior to the date
of such termination or removal, and no termination without cause shall be
effective until the payment of such amounts to the Trustee and such Fiscal
Agent).
(e) Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to any of the provisions of this Section 8.07 shall
not become effective until acceptance of appointment by the successor trustee as
provided in Section 8.08.
Section 8.08 Successor Trustee.
(a) Any successor trustee appointed as provided in Section 8.07
shall execute, acknowledge and deliver to the Depositor, the Master Servicer,
the Special Servicer and to the 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 (at the expense of the Certificateholders
that effected the removal, if the Trustee has been removed in accordance with
Section 8.07(c) without cause or if such expenses are not paid by such
Certificateholders within ninety (90) days after they are incurred, at the
expense of the Trust, provided that such Certificateholders shall remain liable
to the Trust for such expenses) all Mortgage Files and related documents and
statements held by it hereunder (other than any Mortgage Files at the time held
on its behalf by a third-party Custodian, which Custodian shall become the agent
of the successor trustee), and the Depositor, the Master Servicer, the Special
Servicer and the predecessor trustee shall execute and deliver such instruments
and do such other things as may reasonably be required to more fully and
certainly vest and confirm in the successor trustee all such rights, powers,
duties and obligations, and to enable the successor trustee to perform its
obligations hereunder.
(b) No successor trustee shall accept appointment as provided in
this Section 8.08, unless at the time of such acceptance such successor trustee
shall be eligible under the provisions of Section 8.06.
(c) Upon acceptance of appointment by a successor trustee as
provided in this Section 8.08, such successor trustee shall mail notice of the
succession of such trustee hereunder to the Depositor, the Master Servicer, the
Special Servicer, the Certificateholders and the Companion Loan Noteholders.
Section 8.09 Merger or Consolidation of Trustee and Fiscal Agent.
Any entity into which the Trustee or the Fiscal Agent may be merged
or converted, or with which the Trustee or the Fiscal Agent may be consolidated,
or any entity resulting from any merger, conversion or consolidation to which
the Trustee or the Fiscal Agent shall be a party, or any entity succeeding to
the corporate trust business of the Trustee, shall be the successor of the
Trustee or the Fiscal Agent, as the case may be, hereunder, provided such entity
shall be eligible under the provisions of Section 8.06 or Section 8.17, as
applicable, without the execution or filing of any paper or any further act on
the part of any of the parties hereto, anything herein to the contrary
notwithstanding.
Section 8.10 Appointment of Co-Trustee or Separate Trustee.
(a) Notwithstanding any other provisions hereof, at any time, for
the purpose of meeting any legal requirements of any jurisdiction in which any
part of the Trust Fund or property securing the same may at the time be located,
the Trustee shall have the power and shall execute and deliver all instruments
to appoint one or more Persons approved by the Trustee to act as co-trustee or
co-trustees, jointly with the Trustee, or separate trustee or separate trustees,
of all or any part of the Trust Fund, and to vest in such Person or Persons, in
such capacity, such title to the Trust Fund, or any part thereof, and, subject
to the other provisions of this Section 8.10, such powers, duties, obligations,
rights and trusts as the Master Servicer and the Trustee may consider necessary
or desirable. No co-trustee or separate trustee hereunder shall be required to
meet the terms of eligibility as a successor trustee under Section 8.06
hereunder and no notice to Holders of Certificates of the appointment of
co-trustee(s) or separate trustee(s) shall be required under Section 8.08
hereof.
(b) In the case of any appointment of a co-trustee or separate
trustee pursuant to this Section 8.10, all rights, powers, duties and
obligations conferred or imposed upon the Trustee shall be conferred or imposed
upon and exercised or performed by the Trustee and such separate trustee or
co-trustee jointly, except to the extent that under any law of any jurisdiction
in which any particular act or acts are to be performed (whether as Trustee
hereunder or as successor to the Master Servicer or the Special Servicer
hereunder), the Trustee shall be incompetent or unqualified to perform such act
or acts, in which event such rights, powers, duties and obligations (including
the holding of title to the Trust Fund or any portion thereof in any such
jurisdiction) shall be exercised and performed by such separate trustee or
co-trustee at the direction of the Trustee.
(c) Any notice, request or other writing given to the Trustee shall
be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement and
the conditions of this Article VIII. Each separate trustee and co-trustee, upon
its acceptance of the trusts conferred, shall be vested with the estates or
property specified in its instrument of appointment, either jointly with the
Trustee or separately, as may be provided therein, subject to all the provisions
of this Agreement, specifically including every provision of this Agreement
relating to the conduct of, affecting the liability of, or affording protection
to, the Trustee. Every such instrument shall be filed with the Trustee.
(d) Any separate trustee or co-trustee may, at any time, constitute
the Trustee, its agent or attorney-in-fact, with full power and authority, to
the extent not prohibited by law, to do any lawful act under or in respect of
this Agreement on its behalf and in its name. If any separate trustee or
co-trustee shall die, become incapable of acting, resign or be removed, all of
its estates, properties, rights, remedies and trusts vested therein pursuant to
the applicable instrument of appointment and this Section 8.10, 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 appoint at the Trustee's expense one or more
Custodians to hold all or a portion of the Mortgage Files as agent for the
Trustee. Each Custodian shall be a depository institution supervised and
regulated by a federal or state banking authority, shall have combined capital
and surplus of at least $10,000,000, shall be qualified to do business in the
jurisdiction in which it holds any Mortgage File and shall not be the Depositor,
the Mortgage Loan Seller or any Affiliate of any of them. Neither the Master
Servicer nor the Special Servicer shall have any duty to verify that any such
Custodian is qualified to act as such in accordance with the preceding sentence.
The Trustee may enter into agreements to appoint a Custodian which is not the
Trustee, provided that such agreement: (i) is consistent with this Agreement in
all material respects and requires the Custodian to comply with all of the
applicable conditions of this Agreement; (ii) provides that if the Trustee shall
for any reason no longer act in the capacity of Trustee hereunder, the successor
Trustee or its designee may thereupon assume all of the rights and, except to
the extent they arose prior to the date of assumption, obligations of the
Custodian under such agreement or, alternatively, may terminate such agreement
without cause and without payment of any penalty or termination fee; and (iii)
does not permit the Custodian any rights of indemnification that may be
satisfied out of assets of the Trust Fund. The appointment of one or more
Custodians shall not relieve the Trustee from any of its obligations hereunder,
and the Trustee shall remain responsible for all acts and omissions of any
Custodian. In the absence of any other Person appointed in accordance herewith
acting as Custodian, the Trustee agrees to act in such capacity in accordance
with the terms hereof. Notwithstanding anything herein to the contrary, if the
Trustee is no longer the Custodian, any provision or requirement herein
requiring notice or any information or documentation to be provided to the
Custodian shall be construed to require that such notice, information or
documents also be provided to the Trustee. Any Custodian hereunder shall at all
times maintain a fidelity bond and errors and omissions policy in amounts
customary for custodians performing duties similar to those set forth in this
Agreement and, in any event, satisfying the same requirements (including as to
the insurer) as are applicable to any such bond or policy required to be
maintained by the Master Servicer pursuant to Section 3.07.
Section 8.12 Appointment of Authenticating Agents.
(a) The Trustee may appoint at the Trustee's expense an
Authenticating Agent, which shall be authorized to act on behalf of the Trustee
in authenticating Certificates. The Trustee shall cause any such Authenticating
Agent to execute and deliver to the Trustee an instrument in which such
Authenticating Agent shall agree to act in such capacity, with the obligations
and responsibilities herein. Each Authenticating Agent must be organized and
doing business under the laws of the United States of America or of any State,
authorized under such laws to carry on a trust business, have a combined capital
and surplus of at least $15,000,000, and be subject to supervision or
examination by federal or state authorities. Each Authenticating Agent shall be
subject to the same obligations, standard of care, protection and indemnities as
would be imposed on, or would protect, the Trustee hereunder. The appointment of
an Authenticating Agent shall not relieve the Trustee from any of its
obligations hereunder, and the Trustee shall remain responsible for all acts and
omissions of the Authenticating Agent. In the absence of any other Person
appointed in accordance herewith acting as Authenticating Agent, the Trustee
hereby agrees to act in such capacity in accordance with the terms hereof.
Notwithstanding anything herein to the contrary, if the Trustee is no longer the
Authenticating Agent, any provision or requirement herein requiring notice or
any information or documentation to be provided to the Authenticating Agent
shall be construed to require that such notice, information or documentation
also be provided to the Trustee.
(b) Any Person into which any Authenticating Agent may be merged or
converted or with which it may be consolidated, or any Person resulting from any
merger, conversion, or consolidation to which any Authenticating Agent shall be
a party, or any Person succeeding to the corporate agency business of any
Authenticating Agent, shall continue to be the Authenticating Agent without the
execution or filing of any paper or any further act on the part of the Trustee
or the Authenticating Agent.
(c) Any Authenticating Agent appointed in accordance with this
Section 8.12 may at any time resign by giving at least 30 days' advance written
notice of resignation to the Trustee, the Master Servicer, the Special Servicer
and the Depositor. The Trustee may at any time terminate the agency of any
Authenticating Agent appointed in accordance with this Section 8.12 by giving
written notice of termination to such Authenticating Agent, the Master Servicer
and the Depositor. Upon receiving a notice of such a resignation or upon such a
termination, or in case at any time any Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section 8.12, the Trustee may
appoint a successor Authenticating Agent, in which case the Trustee shall give
written notice of such appointment to the Master Servicer, the Certificate
Registrar and the Depositor and shall mail notice of such appointment to all
Holders of Certificates; provided, however, that no successor Authenticating
Agent shall be appointed unless eligible under the provisions of this Section
8.12. Any successor Authenticating Agent upon acceptance of its appointment
hereunder shall become vested with all the rights, powers, duties and
responsibilities of its predecessor hereunder, with like effect as if originally
named as Authenticating Agent.
Section 8.13 Appointment of Tax Administrators.
(a) The Trustee may appoint at the Trustee's expense any Person with
appropriate tax-related experience to act as Tax Administrator hereunder;
provided that, in the absence of any other Person appointed in accordance
herewith acting as Tax Administrator, the Trustee agrees to act in such capacity
in accordance with the terms hereof. The appointment of a Tax Administrator
shall not relieve the Trustee from any of its obligations hereunder, and the
Trustee shall remain responsible for all acts and omissions of the Tax
Administrator. The Trustee shall cause any such Tax Administrator appointed by
it to execute and deliver to the Trustee an instrument in which such Tax
Administrator shall agree to act in such capacity, with the obligations and
responsibilities herein.
(b) Any Person into which any Tax Administrator may be merged or
converted or with which it may be consolidated, or any Person resulting from any
merger, conversion, or consolidation to which any Tax Administrator shall be a
party, or any Person succeeding to the corporate agency business of any Tax
Administrator, shall continue to be the Tax Administrator without the execution
or filing of any paper or any further act on the part of the Trustee or the Tax
Administrator.
(c) Any Tax Administrator appointed in accordance with this Section
8.13 may at any time resign by giving at least 30 days' advance written notice
of resignation to the Trustee, the Master Servicer, the Special Servicer and the
Depositor. The Trustee may at any time terminate the agency of any Tax
Administrator appointed in accordance with this Section 8.13 by giving written
notice of termination to such Tax Administrator, the Master Servicer, and the
Depositor. Upon receiving a notice of such a resignation or upon such a
termination, or in case at any time any Tax Administrator shall cease to be
eligible in accordance with the provisions of this Section 8.13, the Trustee may
appoint a successor Tax Administrator, in which case the Trustee shall give
written notice of such appointment to the Master Servicer, the Special Servicer
and the Depositor and shall mail notice of such appointment to all Holders of
Certificates; provided, however, that no successor Tax Administrator shall be
appointed unless eligible under the provisions of this Section 8.13. Any
successor Tax Administrator upon acceptance of its appointment hereunder shall
become vested with all the rights, powers, duties and responsibilities of its
predecessor hereunder, with like effect as if originally named as Tax
Administrator.
Section 8.14 Access to Certain Information.
(a) The Trustee shall afford to the Master Servicer, the Special
Servicer and the Depositor, and to the OTS, the FDIC and any other banking or
insurance regulatory authority that may exercise authority over any
Certificateholder, access to any documentation regarding the Loans within its
control that may be required to be provided by this Agreement or by applicable
law. Such access shall be afforded without charge but only upon reasonable prior
written request and during normal business hours at the offices of the Trustee
designated by it.
(b) The Trustee shall maintain in its possession and, upon
reasonable prior written request and during normal business hours, shall make
available at its offices for review by the Depositor, the Rating Agencies, the
Companion Loan Noteholders and their designees, the Controlling Class Directing
Holder and, subject to the succeeding paragraph, any Certificateholder,
Certificate Owner or Person identified to the Trustee as a prospective
Transferee of a Certificate or an interest therein, originals and/or copies of
the following items: (i) the Prospectus, any private placement memorandum and
any other disclosure document relating to the Certificates, in the form most
recently provided to the Trustee by the Depositor or by any Person designated by
the Depositor; (ii) this Agreement, each Sub-Servicing Agreement delivered to
the Trustee since the Closing Date; (iii) all Certificateholder Reports made
available to Certificateholders pursuant to Section 4.02(a) since the Closing
Date; (iv) all Annual Performance Certifications delivered by the Master
Servicer and the Special Servicer, respectively, to the Trustee since the
Closing Date; (v) all Annual Accountants' Reports caused to be delivered by or
on behalf of the Master Servicer and the Special Servicer, respectively, to the
Trustee since the Closing Date; (vi) any and all notices and reports delivered
to the Trustee with respect to any Mortgaged Property as to which the
environmental testing contemplated by Section 3.09(c) revealed that either of
the conditions set forth in clauses (i) and (ii) of the first sentence thereof
was not satisfied; (vii) each of the Mortgage Files, including any and all
modifications, extensions, waivers and amendments of the terms of a Loan entered
into or consented to by the Special Servicer and/or the Master Servicer and
delivered to the Trustee pursuant to Section 3.20; (viii) the most recent
appraisal for each Mortgaged Property and REO Property that has been delivered
to the Trustee (each appraisal obtained hereunder with respect to any Mortgaged
Property or REO Property to be delivered to the Trustee by the Master Servicer
or Special Servicer, as applicable, promptly following its having been
obtained); (ix) any and all Officer's Certificates and other evidence delivered
to or by the Trustee to support its, the Master Servicer's, the Special
Servicer's or the Fiscal Agent's, as the case may be, determination that any
Advance was (or, if made, would be) a Nonrecoverable Advance; (x) any and all
information provided to the Trustee pursuant to Section 6.11(a); (xi) the
Schedule of Exceptions to Mortgage File Delivery prepared by the Trustee
pursuant to Section 2.02(a) and any exception report prepared by the Trustee
pursuant to Section 2.02(b); (xii) all notices of a breach of representation and
warranty given by or received by the Trustee with respect to any party hereto;
(xiii) any Officer's Certificate delivered to the Trustee by the Special
Servicer in connection with a Final Recovery Determination pursuant to Section
3.09(h). The Trustee shall provide copies of any and all of the foregoing items
upon written request of any of the parties set forth in the previous sentence;
however, except in the case of the Rating Agencies, the Trustee shall be
permitted to require payment of a sum sufficient to cover the reasonable costs
and expenses of providing such copies. Upon the reasonable request of any
Certificateholder, or any Certificate Owner identified to the Trustee to the
Trustee's reasonable satisfaction, the Trustee shall request from the Master
Servicer copies (at the expense of such Certificateholder or Certificate Owner
if the Master Servicer or Special Servicer charges a fee to cover the reasonable
cost of making such copies available) of any inspection reports prepared by the
Master Servicer or the Special Servicer, copies of any operating statements,
rent rolls and financial statements obtained by the Master Servicer or the
Special Servicer; and, upon receipt, the Trustee shall make such items available
to the requesting Certificateholder or Certificate Owner.
In connection with providing access to or copies of the items
described in the preceding paragraph, the Trustee shall require: (i) in the case
of Certificateholders and Certificate Owners, a written confirmation executed by
the requesting Person substantially in the form of Exhibit N-1 (or in such other
form as may be reasonably acceptable to the Trustee) generally to the effect
that such Person is a Certificateholder or a beneficial holder of Book-Entry
Certificates and will keep such information confidential (except that such
Certificateholder or Certificate Owner may provide such information to any other
Person that holds or is contemplating the purchase of any Certificate or
interest therein, provided that such other Person confirms in writing such
ownership interest or prospective ownership interest and agrees to keep such
information confidential), (ii) in the case of a prospective purchaser of a
Certificate or an interest therein, confirmation executed by the requesting
Person substantially in the form of Exhibit N-2 (or in such other form as may be
reasonably acceptable to the Trustee) generally to the effect that such Person
is a prospective purchaser of a Certificate or an interest therein, is
requesting the information for use in evaluating a possible investment in
Certificates and will otherwise keep such information confidential and (iii) in
the case of a Companion Loan Noteholder (other than the Holder of the Class Y
Certificates in respect of the Oakmonte Junior Portion), a confidentiality
agreement executed by such holder substantially in the form of Exhibit M (or in
such other form as acceptable to the Trustee).
(c) The Trustee shall not be liable for providing or disseminating
information in accordance with Section 8.14(a) or (b).
Section 8.15 Reports to the Securities and Exchange Commission and
Related Reports.
(a) With respect to the Trust's fiscal year 2003 (and with respect
to any subsequent fiscal year for the Trust, if as of the beginning of such
subsequent fiscal year, the Registered Certificates are held (directly or, in
the case of Registered Certificates held in book-entry form, through the
Depository) by at least 300 Holders and/or Depository Participants having
accounts with the Depository), the Trustee shall:
(i) during such fiscal year, in accordance with the Exchange Act,
the rules and regulations promulgated thereunder and applicable "no-action
letters" issued by the Commission, prepare for filing, execute on behalf
of the Depositor and properly and timely file with the Commission monthly,
with respect to the Trust, a Current Report on Form 8-K with copies of the
Distribution Date Statements, Mortgage Pool Data Update Reports and, to
the extent delivered to the Trustee, all Servicer Reports and such other
servicing information identified by the Master Servicer, in writing, to be
filed with the Commission (such other servicing information, the
"Additional Designated Servicing Information");
(ii) during such fiscal year, (A) promptly notify the Depositor of
the occurrence or existence of any of the matters identified in Section
11.11(a) and/or Section 8.15(b) (in each case to the extent that a
Responsible Officer of the Trustee has actual knowledge thereof), (B)
cooperate with the Depositor in obtaining all necessary information in
order to prepare a Current Report on Form 8-K reporting any such matter in
accordance with the Exchange Act, the rules and regulations promulgated
thereunder and applicable "no-action letters" issued by the Commission,
and (C) prepare for filing, execute and promptly file with the Commission
a Current Report on Form 8-K disclosing any such matter;
(iii) at the reasonable request of, and in accordance with the
reasonable directions of, the Certifying Person (as defined in Section
8.15(d)), prepare for filing, execute and promptly file with the
Commission an amendment to any Current Report on Form 8-K previously filed
with the Commission with respect to the Trust; and
(iv) within 90 days following the end of such fiscal year, prepare
and properly and timely file with the Commission, with respect to the
Trust, an Annual Report on Form 10-K, which complies in all material
respects with the requirements of the Exchange Act, the rules and
regulations promulgated thereunder and applicable "no-action letters"
issued by the Commission;
provided that (x) the Trustee shall not have any responsibility to file any
items (other than those generated by it) that have not been received in a format
suitable (or readily convertible into a format suitable) for electronic filing
via the XXXXX system and shall not have any responsibility to convert any such
items to such format (other than those items generated by it or that are readily
convertible to such format) and (y) the Depositor shall be responsible for
preparing, executing and filing (via the XXXXX system within fifteen (15) days
following the Closing Date) a Current Report on Form 8-K reporting the
establishment of the Trust and whereby this Agreement is filed as an exhibit.
Each of the other parties to this Agreement shall deliver to the Trustee in the
format required (or readily convertible into the format required) for electronic
filing via the XXXXX system, any and all items (including, in the case of the
Master Servicer and the Special Servicer, all Servicer Reports and, in the case
of the Master Servicer, Additional Designated Servicing Information delivered to
the Trustee) contemplated to be filed with the Commission pursuant to this
Section 8.15(a).
All Current Reports on Form 8-K and Annual Reports on Form 10-K that
are to be filed with respect to the Trust pursuant to this Section 8.15(a)
(collectively, including the exhibits thereto, the "Exchange Act Reports"),
exclusive of the initial Current Report on Form 8-K contemplated by clause (y)
of the proviso to the first sentence of the preceding paragraph, which is to be
executed by the Depositor, are (together with the exhibits thereto) herein
referred to as the "Subsequent Exchange Act Reports." The Trustee shall have no
liability to the Certificateholders or the Trust with respect to any failure to
properly prepare or file any of the Subsequent Exchange Act Reports to the
extent that such failure is not the result of any negligence, bad faith or
willful misconduct on its part.
(b) At all times during the Trust's fiscal year 2003 (and, if as of
the beginning of any other fiscal year for the Trust, the Registered
Certificates are held (directly or, in the case of Registered Certificates held
in book-entry form, through the Depository) by at least 300 Holders and/or
Depository Participants having accounts with the Depository, at all times during
such other fiscal year), the Trustee shall provide notice of the occurrence or
existence of any of the following matters of which a Responsible Officer of the
Trustee has actual knowledge:
(i) any failure of the Trustee to make any monthly distributions to
the Holders of any Class of Certificates, which failure is not otherwise
reflected in the Distribution Date Statements and/or Servicer Reports
filed with the Commission or has not otherwise been reported to the
Depositor pursuant to any other section of this Agreement;
(ii) any acquisition or disposition by the Trust of a Mortgage Loan
or an REO Property, which acquisition or disposition has not otherwise
been reflected in the Distribution Date Statements and/or Servicer Reports
filed with the Commission or has not otherwise been reported to the
Depositor pursuant to any other section of this Agreement;
(iii) any other acquisition or disposition by the Trust of a
significant amount of assets (other than Permitted Investments, Mortgage
Loans and REO Properties), other than in the normal course of business;
(iv) any change in the fiscal year of the Trust;
(v) any material legal proceedings, other than ordinary routine
litigation incidental to the business of the Trust, to which the Trust (or
any party to this Agreement on behalf of the Trust) is a party or of which
any property included in the Trust Fund is subject, or any threat by a
governmental authority to bring any such legal proceedings;
(vi) any event of bankruptcy, insolvency, readjustment of debt,
marshalling of assets and liabilities, or similar proceedings in respect
of or pertaining to the Trust or any party to this Agreement, or any
actions by or on behalf of the Trust or any party to this Agreement
indicating its bankruptcy, insolvency or inability to pay its obligations;
and
(vii) any change in the rating or ratings assigned to any Class of
Certificates not otherwise reflected in the Certificateholder Reports
filed with the Commission;
provided that (1) the actual knowledge of a Responsible Officer of the Trustee
of any material legal proceedings of which property included in the Trust Fund
is subject or of any material legal proceedings threatened by a governmental
authority is limited (except where the Trustee received information regarding
such proceeding from the Master Servicer or the Special Servicer pursuant to the
next paragraph) to circumstances where it would be reasonable for the Trustee to
identify such property as an asset of, or as securing an asset of, the Trust or
such threatened proceedings as concerning the Trust and (2) no Responsible
Officer of the Trustee shall be deemed to have actual knowledge of the matters
described in clauses (vi) and (vii) of this Section 8.15(b) unless (x) any such
matter contemplated in clause (vi) occurred or related specifically to the Trust
or (y) such Responsible Officer was notified in a written instrument addressed
to it.
Further, each other party to this agreement shall promptly notify
the Trustee of the occurrence or existence of any of the forgoing matters (or,
with respect to the Special Servicer, only of any of the matters identified in
clauses (v) and (vi) of the preceding paragraph) in this Section 8.15(b) of
which a Servicing Officer (in the case of the Master Servicer or the Special
Servicer) or a senior officer (in the case of the Depositor) thereof has actual
knowledge.
(c) If as of the beginning of any fiscal year for the Trust (other
than fiscal year 2003), the Registered Certificates are held (directly or, in
the case of Registered Certificates held in book-entry form, through the
Depository) by less than 300 Holders and/or Depository Participants having
accounts with the Depository, the Trustee shall, in accordance with the Exchange
Act and the rules and regulations promulgated thereunder, timely file a Form 15
with respect to the Trust suspending all reporting requirements under the
Exchange Act.
(d) The Form 10-K required to be filed by the Trustee shall include
any certification (the "Xxxxxxxx-Xxxxx Certification") required to be included
therewith pursuant to the Xxxxxxxx-Xxxxx Act of 2002, and the rules and
regulations of the Commission promulgated thereunder (including any
interpretations thereof by the Commission's staff) and a copy of such
Xxxxxxxx-Xxxxx Certification shall be provided to the Rating Agencies. An
officer of the Depositor shall sign the Xxxxxxxx-Xxxxx Certification. The Master
Servicer, the Special Servicer and the Trustee (each, a "Performing Party")
shall provide to the Person who signs the Xxxxxxxx-Xxxxx Certification (the
"Certifying Person") a certification (each, a "Performance Certification"), in
the form set forth on Exhibit X-0, X-0 xx X-0 hereto, as applicable.
Notwithstanding the foregoing, nothing in this paragraph shall require any
Performing Party (i) to certify or verify the accurateness or completeness of
any information provided to such Performing Party by third parties, (ii) to
certify information other than to such Performing Party's knowledge and in
accordance with such Performing Party's responsibilities hereunder or (iii) with
respect to completeness of information and reports, to certify anything other
than as to information in its actual knowledge and that all fields of
information called for in written reports prepared by such Performing Party have
been completed except as they have been left blank on their face. In the event
any Performing Party is terminated or resigns pursuant to the terms of this
Agreement, such Performing Party shall provide a Performance Certification to
the Depositor pursuant to this Section 8.15(d) with respect to the period of
time such Performing Party was subject to this Agreement.
(e) Each of the Trustee and the Master Servicer shall indemnify and
hold harmless each of the Certifying Person, the Depositor (if the Certifying
Person is an individual), and the Depositor's partner, representative,
Affiliate, member, manager, director, officer, employee or agent (collectively
with the Certifying Person, the "Certification Parties") for all losses,
liabilities, claims, damages, costs and expenses (including reasonable
attorneys' fees and expenses) resulting from a breach of any certification made
in its related Performance Certification, as well as any other losses, claims,
damages, costs and expenses (including reasonable attorneys' fees and expenses)
incurred by such Certification Party in connection with the execution and
delivery of the subject Xxxxxxxx-Xxxxx Certification, in each case, resulting
from the negligence, bad faith or willful misfeasance of the Trustee or the
Master Servicer, as the case may be, in connection with the performance by the
Trustee or the Master Servicer, as the case may be, of its duties hereunder. The
Special Servicer shall indemnify and hold harmless each Certification Party to
whom it delivers its related Performance Certification for all losses,
liabilities, claims, damages, costs and expenses (including reasonable
attorneys' fees and expenses) resulting from a breach of its obligation to
deliver its related Performance Certification, as well as any other losses,
claims, damages, costs and expenses (including reasonable attorneys' fees and
expenses) incurred by such Certification Party in connection with the execution
and delivery of the subject Xxxxxxxx-Xxxxx Certification resulting from the
negligence, bad faith or willful misfeasance of the Special Servicer in
connection with the performance by the Special Servicer of its duties hereunder.
A Performing Party shall have no obligation to indemnify any Certification Party
for an inaccuracy in the Performance Certification of any other Performing
Party.
Section 8.16 Representations and Warranties of Trustee.
(a) The Trustee hereby represents and warrants to the Master
Servicer, the Special Servicer and the Depositor and for the benefit of the
Certificateholders and the Companion Loan Noteholders, as of the Closing Date,
that:
(i) The Trustee is a national banking association duly organized,
validly existing and in good standing under the laws of the United States
of America.
(ii) The execution and delivery of this Agreement by the Trustee,
and the performance and compliance with the terms of this Agreement by the
Trustee, will not violate the Trustee's organizational documents or
constitute a default (or an event which, with notice or lapse of time, or
both, would constitute a default) under, or result in 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) Except to the extent that the laws of certain jurisdictions in
which any part of the Trust Fund may be located require that a co-trustee
or separate trustee be appointed to act with respect to such property as
contemplated by Section 8.10, the Trustee has the full power and authority
to enter into and consummate all transactions contemplated by this
Agreement, has duly authorized the execution, delivery and performance of
this Agreement, and has duly executed and delivered this Agreement.
(iv) This Agreement, assuming due authorization, execution and
delivery by the other parties hereto, constitutes a valid, legal and
binding obligation of the Trustee, enforceable against the Trustee in
accordance with the terms hereof, subject to (A) applicable bankruptcy,
insolvency, reorganization, moratorium and other laws affecting the
enforcement of creditors' rights generally, and (B) general principles of
equity, regardless of whether such enforcement is considered in a
proceeding in equity or at law.
(v) The 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, including, but not limited to, its responsibility
to make P&I Advances if the Master Servicer fails to make a P&I Advance,
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 that, if determined adversely to
the Trustee, would prohibit the Trustee from entering into this Agreement
or, in the Trustee's good faith and reasonable judgment, is likely to
materially and adversely affect either the ability of the Trustee to
perform its obligations under this Agreement or the financial condition of
the Trustee.
(vii) Any consent, approval, authorization or order of any court or
governmental agency or body required for the execution, delivery and
performance by the Trustee of or compliance by the Trustee with this
Agreement, or the consummation of the transactions contemplated by this
Agreement, has been obtained and is effective, except where the lack of
consent, approval, authorization or order would not have a material
adverse effect on the performance by the Trustee under this Agreement.
(viii) The Trustee is eligible to act as trustee hereunder in
accordance with Section 8.06.
(b) The representations and warranties of the Trustee set forth in
Section 8.16(a) shall survive the execution and delivery of this Agreement and
shall inure to the benefit of the Persons for whose benefit they were made for
so long as the Trust Fund remains in existence. Upon discovery by any party
hereto of any breach of any of the foregoing representations, warranties and
covenants, the party discovering such breach shall give prompt written notice
thereof to the other parties hereto.
(c) Any successor Trustee shall be deemed to have made, as of the
date of its succession, each of the representations and warranties set forth in
Section 8.16(a), subject to such appropriate modifications to the representation
and warranty set forth in Section 8.16(a)(i) to accurately reflect such
successor's jurisdiction of organization and whether it is a corporation,
partnership, bank, association or other type of organization.
Section 8.17 The Fiscal Agent.
(a) The Fiscal Agent shall at all times maintain a long-term
unsecured debt rating of no less than "Aa3" from Xxxxx'x and "AA-" from S&P (or
"A+" from S&P if the Fiscal Agent has a short-term unsecured debt rating of at
least "A-1" by S&P)(or, in the case of any such Rating Agency, such lower rating
as will not (as confirmed in writing by such Rating Agency) result in an Adverse
Rating Event).
(b) To the extent that the Trustee is required, pursuant to the
terms of this Agreement, to make any Advance, whether as successor master
servicer or otherwise, and has failed to do so in accordance with the terms
hereof, the Fiscal Agent shall make such Advance when and as required by the
terms of this Agreement on behalf the Trustee as if the Fiscal Agent were the
Trustee hereunder. To the extent that the Fiscal Agent makes an Advance pursuant
to this Section 8.17(b) or otherwise pursuant to this Agreement, the obligations
of the Trustee under this Agreement in respect of such Advance shall be
satisfied. Notwithstanding anything contained in this Agreement to the contrary,
the Fiscal Agent shall be entitled to all limitations on liability, rights of
reimbursement and indemnities that the Trustee is entitled to hereunder as if it
were the Trustee.
(c) All fees and expenses of the Fiscal Agent (other than any
interest owed to the Fiscal Agent in respect of unreimbursed Advances) incurred
by the Fiscal Agent in connection with the transactions contemplated by this
Agreement shall be borne by the Trustee, and neither the Trustee nor the Fiscal
Agent shall be entitled to reimbursement therefor from any of the Trust Fund,
the Depositor, the Master Servicer or the Special Servicer.
(d) The obligations of the Fiscal Agent set forth in this Section
8.17 or otherwise pursuant to this Agreement shall exist only for so long as the
Trustee that appointed it (or, in the case of the initial Fiscal Agent, so long
as the initial Trustee) shall act as Trustee hereunder. The Fiscal Agent may
resign or be removed by the Trustee only if and when the existence of such
Fiscal Agent is no longer necessary for such Trustee to satisfy the eligibility
requirements of Section 8.06; provided that the Fiscal Agent shall be deemed to
have resigned at such time as the Trustee that appointed it (or, in the case of
the initial Fiscal Agent, at such time as the initial Trustee) resigns or is
removed as Trustee hereunder (in which case the responsibility for appointing a
successor Fiscal Agent shall belong to the successor Trustee, and which
appointment the successor Trustee shall use its best efforts to make, insofar as
such appointment is necessary for such successor Trustee to satisfy the
eligibility requirements of Section 8.06). Any successor fiscal agent so
appointed shall be required to execute and deliver to the other parties hereto a
written agreement to assume and perform the duties of the Fiscal Agent set forth
in this Agreement; provided that no such successor shall become Fiscal Agent
hereunder unless either (i) it satisfies the rating requirements of Section
8.17(a) or (ii) the Trustee shall have received written confirmation from each
Rating Agency that the succession of such proposed successor fiscal agent would
not, in and of itself, result in an Adverse Rating Event.
(e) The Trustee shall promptly notify the other parties hereto, the
Certificateholders and the Companion Loan Noteholders in writing of the
appointment, resignation or removal of any Fiscal Agent.
Section 8.18 Representations and Warranties of Fiscal Agent.
(a) The Fiscal Agent hereby represents and warrants to each of the
other parties hereto and for the benefit of the Certificateholders and the
Companion Loan Noteholders, as the Closing Date, that:
(i) The Fiscal Agent is a banking association duly organized,
validly existing and in good standing under the laws of the Netherlands.
(ii) The execution and delivery of this Agreement by the Fiscal
Agent, and the performance and compliance with the terms of this Agreement
by the Fiscal Agent, will not violate the Fiscal Agent's organizational
documents or constitute a default (or an event which, with notice or lapse
of time, or both, would constitute a default) under, or result in a
material breach of, any material agreement or other instrument to which it
is a party or by which it is bound.
(iii) The Fiscal Agent 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 other parties hereto, constitutes a valid, legal and
binding obligation of the Fiscal Agent, enforceable against the Fiscal
Agent in accordance with the terms hereof, subject to (A) applicable
bankruptcy, insolvency, reorganization, moratorium and other laws
affecting the enforcement of creditors' rights generally, and (B) general
principles of equity, regardless of whether such enforcement is considered
in a proceeding in equity or at law.
(v) The Fiscal Agent 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 Fiscal Agent's good faith and
reasonable judgment, is likely to affect materially and adversely either
the ability of the Fiscal Agent to perform its obligations under this
Agreement or the financial condition of the Fiscal Agent.
(vi) No litigation is pending or, to the best of the Fiscal Agent's
knowledge, threatened against the Fiscal Agent that, if determined
adversely to the Fiscal Agent, would prohibit the Fiscal Agent from
entering into this Agreement or, in the Fiscal Agent's good faith and
reasonable judgment, is likely to materially and adversely affect either
the ability of the Fiscal Agent to perform its obligations under this
Agreement or the financial condition of the Fiscal Agent.
(vii) Any consent, approval, authorization or order of any court or
governmental agency or body required for the execution, delivery and
performance by the Fiscal Agent of or compliance by the Fiscal Agent with
this Agreement, or the consummation of the transactions contemplated by
this Agreement, has been obtained and is effective, except where the lack
of consent, approval, authorization or order would not have a material
adverse effect on the performance by the Fiscal Agent under this
Agreement.
(b) The representations and warranties of the Fiscal Agent set forth
in Section 8.18(a) shall survive the execution and delivery of this Agreement
and shall inure to the benefit of the Persons for whose benefit they were made
for so long as the Trust Fund remains in existence. Upon discovery by any party
hereto of any breach of any of the foregoing representations and warranties, the
party discovering such breach shall given prompt written notice thereof to the
other parties hereto.
(c) Any successor Fiscal Agent shall be deemed to have made, as of
the date of its succession, each of the representations and warranties set forth
in Section 8.18(a) subject to such appropriate modifications to the
representations and warranties set forth in Section 8.18(a)(i) to accurately
reflect such successor's jurisdiction of organization and whether it is a
corporation, partnership, bank, association or other type of organization.
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
Master Servicer, the Special Servicer, the Fiscal Agent 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): (i) to the Certificateholders of all amounts held by or
on behalf of the Trustee and required hereunder to be so paid on the
Distribution Date following the earlier to occur of (A) the purchase by the
Depositor, the Mortgage Loan Seller, the Special Servicer, any Controlling Class
Certificateholder or the Master Servicer of all Mortgage Loans and the Oakmonte
Junior Portion and each REO Property remaining in the Trust Fund at a price
equal to (1) the sum (x) of the aggregate Purchase Price of all the Mortgage
Loans and the Oakmonte Junior Portion and (y) the aggregate Appraised Values of
any REO Properties then included in the Trust Fund, minus (2) if the purchaser
is the Master Servicer, the aggregate amount of unreimbursed Advances made by
such Person, together with any interest accrued and payable to such Person in
respect of unreimbursed Advances in accordance with Section 3.11(g) and, in the
case of the Master Servicer, Section 4.03(d) or Section 4.03A(d), and any unpaid
servicing compensation remaining outstanding (which items shall be deemed to
have been paid or reimbursed to the Master Servicer or the Special Servicer, as
the case may be, in connection with such purchase), (B) the exchange by the sole
remaining Certificateholder (excluding the Class Y Certificateholder) of all of
its Certificates for all of the Mortgage Loans and REO Properties remaining in
the Trust Fund and the related exchange by Class Y Certificateholders of all of
its Class Y Certificates for the Oakmonte Junior Portion in the manner set forth
below in this Section 9.01 and (C) the final payment or other liquidation (or
any advance with respect thereto) of the last Mortgage Loan (and the Oakmonte
Junior Portion) or REO Property remaining in the Trust Fund; and (ii) to the
Trustee, the Fiscal Agent, the Master Servicer, the Special Servicer and the
members, managers, officers, directors, employees and/or agents of each of them
of all amounts which may have become due and owing to any of them hereunder;
provided, however, that in no event shall the trust created hereby continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late ambassador of the United States to
the Court of St. Xxxxx, living on the date hereof.
Each of the Depositor, the Mortgage Loan Seller, the Special
Servicer, any Controlling Class Certificateholder (with priority among such
Holders being given to the Holder of Certificates representing the greatest
Percentage Interest in the Controlling Class) or the Master Servicer, in that
order of priority (with the Depositor having the most senior priority), may at
its option elect to purchase all of the Mortgage Loans and the Oakmonte Junior
Portion and each REO Property remaining in the Trust Fund as contemplated by
clause (i) of the preceding paragraph by giving written notice to the other
parties hereto no later than 60 days prior to the anticipated date of purchase;
provided, however, that (i) the aggregate Stated Principal Balance of the
Mortgage Pool at the time of such election is less than 1% of the aggregate
Stated Principal Balance of the Mortgage Pool as of the Closing Date, and (ii)
no such Person shall have the right to effect such a purchase if, within 30 days
following its delivery of a notice of election pursuant to this paragraph, any
other such Person with a higher priority shall give notice of its election to
purchase all of the Mortgage Loans and the Oakmonte Junior Portion and each REO
Property remaining in the Trust Fund and shall thereafter effect such purchase
in accordance with the terms hereof. If the Trust Fund is to be terminated in
connection with the Master Servicer's, the Special Servicer's, a Controlling
Class Certificateholder's, the Mortgage Loan Seller's or the Depositor's
purchase of all of the Mortgage Loans and the Oakmonte Junior Portion and each
REO Property remaining in the Trust Fund, the Master Servicer, the Special
Servicer, such Controlling Class Certificateholder, the Mortgage Loan Seller or
the Depositor, as applicable, shall deliver to the Master Servicer not later
than the fifth Business Day preceding the Distribution Date on which the final
distribution on the Certificates is to occur: (x) for deposit in the Pool
Custodial Account or, in the case of the Oakmonte Apartment Homes Whole Loan,
the related Loan Pair Custodial Account, an amount in immediately available
funds equal to the above-described purchase price (provided, however, that if
the Loan Pair REO Properties are being purchased pursuant to the foregoing, the
portion of the above-described purchase price allocable to such REO Property
shall initially be deposited into the related Loan Pair Custodial Account); and
(y) an Opinion of Counsel, at the expense of the party effecting the purchase,
stating that the termination of the Trust satisfies the requirements of a
qualified liquidation under Section 860F of the Code and any regulations
thereunder. In addition, the Master Servicer shall transfer to the Distribution
Account all amounts required to be transferred thereto on such Master Servicer
Remittance Date from the Pool Custodial Account or from the applicable Loan Pair
Custodial Account pursuant to the first paragraph of Section 3.04(b), together
with any other amounts on deposit in the Pool Custodial Account or the
applicable Loan Pair Custodial Account that would otherwise be held for future
distribution. Upon confirmation that such final deposits have been made, subject
to Section 3.25, the Trustee shall release or cause to be released to the Master
Servicer, the Special Servicer, the purchasing Controlling Class
Certificateholder, the Mortgage Loan Seller or the Depositor, as applicable, the
Mortgage Files for the remaining Mortgage Loans and the Oakmonte Junior Portion
and shall execute all assignments, endorsements and other instruments furnished
to it by the Master Servicer, the Special Servicer, the purchasing Controlling
Class Certificateholder, the Mortgage Loan Seller or the Depositor, as
applicable, as shall be necessary to effectuate transfer of the Mortgage Loans
and the Oakmonte Junior Portion and REO Properties to the Master Servicer, the
Special Servicer, the purchasing Controlling Class Certificateholder, the
Mortgage Loan Seller or the Depositor (or their respective designees), as
applicable. Any transfer of Mortgage Loans or the Oakmonte Junior Portion,
except in the case of the Split Mortgage Loans, pursuant to this paragraph shall
be on a servicing-released basis; and, if any Mortgage Loan purchased pursuant
to this Section 9.01 is a Split Mortgage Loan, the release, endorsement or
assignment of the documents constituting the related Mortgage File and Servicing
File shall be in the manner contemplated by Section 3.25 hereof.
Following the date on which the aggregate Certificate Principal
Balance of the Registered Certificates is reduced to zero and the then
outstanding Certificates are held by a single Certificateholder (excluding any
Class Y Certificateholder), such sole remaining Certificateholder (the "Sole
Certificateholder") shall have the right, with the consent of the Master
Servicer (acting in its sole discretion), to exchange all of its Certificates
for all of the Mortgage Loans and each REO Property remaining in the Trust Fund
as contemplated by clause (ii)(B) of the first paragraph of this Section
9.01(a), by giving written notice to all the parties hereto and the Companion
Loan Noteholders no later than 60 days prior to the anticipated date of
exchange; provided that no such exchange may occur if any of the remaining REO
Properties relates to a Loan Pair. In connection with such exchange, the Class Y
Certificateholder shall be required to also surrender its Class Y Certificates
in exchange for a participation interest in the Oakmonte Apartment Homes Whole
Loan representing the Oakmonte Junior Portion. Such Sole Certificateholder, not
later than the fifth Business Day preceding the Distribution Date on which the
final distribution on the Certificates is to occur, shall (i) deposit in the
applicable Custodial Account an amount in immediately available funds equal to
all amounts then due and owing to the Depositor, the Master Servicer, the
Special Servicer, the Trustee and the Fiscal Agent pursuant to Section 3.05(a)
or Section 3.05A, as applicable, or that may be withdrawn from the Distribution
Account pursuant to Section 3.05(b), but only to the extent that such amounts
are not already on deposit in such Custodial Account and (ii) pay to the Trustee
an amount, in immediately available funds, equal to $5,000 (five thousand
dollars). In addition, the Master Servicer shall transfer to the Distribution
Account all amounts required to be transferred thereto on the related Master
Servicer Remittance Date from the Pool Custodial Account pursuant to the first
paragraph of Section 3.04(b). Upon confirmation that such final deposits have
been made and following the surrender of all the Certificates on the final
Distribution Date, the Trustee shall release or cause to be released to such
Sole Certificateholder or any designee thereof, the Mortgage Files for the
remaining Mortgage Loans and REO Properties and shall execute all assignments,
endorsements and other instruments furnished to it by such Certificateholder as
shall be necessary to effectuate transfer of the Mortgage Loans and REO
Properties remaining in the Trust Fund. Thereafter, the Trust Fund and the
respective obligations and responsibilities under this Agreement of the
Depositor, the Master Servicer, the Special Servicer and the Trustee (other than
annual tax returns and maintenance of books and records and the preparation and
filing of final tax returns) and the Fiscal Agent shall terminate. Any transfer
of the Mortgage Loans, except in the case of Split Mortgage Loans (other than
the Oakmonte Senior Portion), pursuant to this paragraph shall be on a
servicing-released basis; and, if any Mortgage Loan (other than the Oakmonte
Senior Portion) purchased pursuant to this Section 9.01 is a Split Mortgage
Loan, the release, endorsement or assignment of the documents constituting the
related Mortgage File and Servicing File shall be in the manner contemplated by
Section 3.25. For federal income tax purposes, the Sole Certificateholder and
the Class Y Certificateholder shall be deemed to have purchased the assets of
the Trust Fund for an amount equal to the unpaid principal balance, plus accrued
unpaid interest of the Mortgage Loans and the Oakmonte Junior Portion and the
fair market value of any defaulted Mortgage Loans and the Oakmonte Junior
Portion or REO Property, without duplication of amounts deposited pursuant to
the fourth preceding sentence of this paragraph, and such amounts shall be
deemed to have been paid or distributed in accordance with Section 4.01.
Notice of any termination shall be given promptly by the Trustee by
letter to Certificateholders and the Split Loan Companion Loan Noteholders
mailed (a) if such notice is given in connection with the Depositor's, the
Master Servicer's, the Special Servicer's, the Mortgage Loan Seller's or a
Controlling Class Certificateholder's purchase of the Mortgage Loans and the
Oakmonte Junior Portion 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 eighth
day of such month, in each case specifying (i) the Distribution Date upon which
the Trust Fund will terminate and final payment of the Certificates will be
made, (ii) the amount of any such final payment and (iii) that the Record Date
otherwise applicable to such Distribution Date is not applicable, payments being
made only upon presentation and surrender of the Certificates at the offices of
the Certificate Registrar or such other location therein designated. The Trustee
shall give such notice to the Master Servicer, the Special Servicer and the
Depositor at the time such notice is given to Certificateholders.
Upon presentation and surrender of the Certificates by the
Certificateholders on the final Distribution Date, the 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 Distribution Account that are allocable to payments on the Class
of Certificates so presented and surrendered. Amounts on deposit in the
Distribution Account as of the final Distribution Date, exclusive of any portion
thereof that would be payable to any Person in accordance with clauses (ii)
through (viii) of Section 3.05(b), and further exclusive of any portion thereof
that represents Prepayment Premiums and/or Yield Maintenance Charges, shall be
allocated in the order of priority set forth in Section 4.01(a), in each case to
the extent of remaining available funds.
Any Prepayment Premiums and Yield Maintenance Charges on deposit in
the Distribution Account as of the final Distribution Date (net of any Workout
Fees and/or Liquidation Fees payable therefrom) shall be distributed among the
Holders of the Class XP, Class XC, Class A-1, Class A-2, Class A-3, Class A-4,
Class B, Class C, Class D, Class E, Class F, Class G, Class H and Class J
Certificates in accordance with Section 4.01(b).
Any funds not distributed to any Holder or Holders of Certificates
of such Class on such Distribution Date because of the failure of such Holder or
Holders to tender their Certificates shall, on such date, be set aside and held
uninvested in trust and credited to the account or accounts of the appropriate
non-tendering Holder or Holders. If any Certificates as to which notice has been
given pursuant to this Section 9.01 shall not have been surrendered for
cancellation within six months after the time specified in such notice, the
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
reasonable steps to contact the remaining non-tendering Certificateholders
concerning the surrender of their Certificates as it shall deem appropriate. The
costs and expenses of holding such funds in trust and of contacting such
Certificateholders following the first anniversary of the delivery of such
second notice to the non-tendering Certificateholders shall be paid out of such
funds. No interest shall accrue or be payable to any former Holder on any amount
held in trust hereunder. If by the second anniversary of the delivery of such
second notice, all of the Certificates shall not have been surrendered for
cancellation, then, subject to applicable law, the Trustee shall distribute to
the Class R-II Certificateholders all unclaimed funds and other assets which
remain subject hereto.
All actual distributions on the respective Classes of Certificates
(other than the Class Y Certificates and the Class R-I Certificates) on the
final Distribution Date in accordance with foregoing provisions of this Section
9.01 shall be deemed to first have been distributed from the Lower-Tier REMIC to
the Upper-Tier REMIC in accordance with Section 4.01.
Section 9.02 Additional Termination Requirements.
(a) If the Depositor, the Mortgage Loan Seller, any Controlling
Class Certificateholder, the Special Servicer or the Master Servicer purchases
all of the Mortgage Loans and the Oakmonte Junior Portion and each REO Property
remaining in the Trust Fund as provided in Section 9.01, the Trust Fund (and,
accordingly, each REMIC Pool) shall be terminated in accordance with the
following additional requirements, unless the Person effecting such purchase
obtains at its own expense and delivers to the Trustee and the Tax
Administrator, an Opinion of Counsel, addressed to the Trustee and the Tax
Administrator, to the effect that the failure of the Trust Fund to comply with
the requirements of this Section 9.02 will not result in an Adverse REMIC Event
or an Adverse Grantor Trust Event:
(i) the Tax Administrator shall specify the first day in the 90-day
liquidation period in a statement attached to the final Tax Return for
each REMIC Pool pursuant to Treasury Regulations Section 1.860F-1 and
shall satisfy all requirements of a qualified liquidation under Section
860F of the Code and any regulations thereunder as set forth in the
Opinion of Counsel obtained pursuant to Section 9.01 from the party
effecting the purchase of all the Mortgage Loans and REO Property
remaining in the Lower-Tier REMIC and the Oakmonte Junior Portion;
(ii) during such 90-day liquidation period and at or prior to the
time of making of the final payment on the Certificates, the Trustee shall
sell all of the assets of the Lower-Tier REMIC to the Master Servicer, the
Mortgage Loan Seller, the purchasing Controlling Class Certificateholder,
the Special Servicer or the Depositor, as applicable, for cash; and
(iii) at the time of the making of the final payment on the
Certificates, the Trustee shall distribute or credit, or cause to be
distributed or credited, to the Certificateholders in accordance with
Section 9.01 all cash on hand (other than cash retained to meet claims),
and each REMIC Pool shall terminate at that time.
(b) By their acceptance of Certificates, the Holders thereof hereby
agree to authorize the Tax Administrator to specify the 90-day liquidation
period for each REMIC Pool, which authorization shall be binding upon all
successor Certificateholders.
ARTICLE X
ADDITIONAL TAX PROVISIONS
Section 10.01 REMIC Administration.
(a) The Tax Administrator shall elect to treat each REMIC Pool as a
REMIC under the Code and, if necessary, under applicable state law. Such
election will be made on Form 1066 or other appropriate federal or state Tax
Returns for the taxable year ending on the last day of the calendar year in
which the Certificates are issued.
(b) The Uncertificated Lower-Tier Interests and the Regular Interest
Certificates are hereby designated as "regular interests" (within the meaning of
Section 860G(a)(1) of the Code) in the Lower-Tier REMIC and the Upper Tier
REMIC, respectively. The Class R-I Certificates and the Class R-II Certificates
are hereby designated as the single class of "residual interests" (within the
meaning of Section 860G(a)(2) of the Code) in the Lower-Tier REMIC and the Upper
Tier REMIC, respectively. None of the Master Servicer, the Special Servicer or
the Trustee shall (to the extent within its control) permit the creation of any
other "interests" in the Lower-Tier REMIC or the Upper Tier REMIC (within the
meaning of Treasury regulation section 1.860D-1(b)(1)).
(c) The Closing Date is hereby designated as the "startup day" of
each REMIC Pool within the meaning of Section 860G(a)(9) of the Code.
(d) The related Plurality Residual Interest Certificateholder as to
the applicable taxable year is hereby designated as the Tax Matters Person of
each REMIC Pool, and shall act on behalf of the related REMIC in relation to any
tax matter or controversy and shall represent the related REMIC in any
administrative or judicial proceeding relating to an examination or audit by any
governmental taxing authority; provided that the Tax Administrator is hereby
irrevocably appointed to act and shall act (in consultation with the Tax Matters
Person for each REMIC Pool) as agent and attorney-in-fact for the Tax Matters
Person for each REMIC Pool in the performance of its duties as such.
(e) For purposes of Treasury Regulations Section
1.860G-1(a)(4)(iii), the Rated Final Distribution Date is hereby designated the
"latest possible maturity date" of each Class of Regular Interest Certificates
and its Corresponding Uncertificated Lower-Tier Interest.
(f) Except as otherwise provided in Section 3.17(a) and subsections
(i) and (j) below, the Tax Administrator shall pay out of its own funds any and
all routine tax administration expenses of the Trust Fund incurred with respect
to each REMIC Pool (but not including any professional fees or expenses related
to audits or any administrative or judicial proceedings with respect to the
Trust Fund that involve the IRS or state tax authorities which extraordinary
expenses shall be payable or reimbursable to the Tax Administrator from the
Trust Fund (exclusive of the Grantor Trust Assets), unless otherwise provided in
Section 10.01(i) or 10.01(j)).
(g) Within 30 days after the Closing Date, the Tax Administrator
shall prepare and file with the IRS Form 8811, "Information Return for Real
Estate Mortgage Investment Conduits (REMIC) and Issuers of Collateralized Debt
Obligations" for the Trust Fund. In addition, the Tax Administrator shall
prepare, sign and file all of the other Tax Returns in respect of each REMIC
Pool. The expenses of preparing and filing such returns shall be borne by the
Tax Administrator without any right of reimbursement therefor. The other parties
hereto shall provide on a timely basis to the Tax Administrator or its designee
such information with respect to each REMIC Pool as is in its possession and
reasonably requested by the Tax Administrator to enable it to perform its
obligations under this Section 10.01. Without limiting the generality of the
foregoing, the Depositor, within ten days following the Tax Administrator's
request therefor, shall provide in writing to the Tax Administrator such
information as is reasonably requested by the Tax Administrator for tax
purposes, as to the valuations and issue prices of the Certificates, and the Tax
Administrator's duty to perform its reporting and other tax compliance
obligations under this Section 10.01 shall be subject to the condition that it
receives from the Depositor such information possessed by the Depositor that is
necessary to permit the Tax Administrator to perform such obligations.
(h) The Tax Administrator shall perform on behalf of each REMIC Pool
all reporting and other tax compliance duties that are the responsibility of
each such REMIC Pool under the Code, the REMIC Provisions or other compliance
guidance issued by the IRS or any state or local taxing authority. Included
among such duties, the Tax Administrator shall provide to: (i) any Transferor of
a Residual Interest Certificate, such information as is necessary for the
application of any tax relating to the transfer of a Residual Interest
Certificate to any Person who is not a Permitted Transferee; (ii) the
Certificateholders, such information or reports as are required by the Code or
the REMIC Provisions, including reports relating to interest, original issue
discount and market discount or premium (using the Prepayment Assumption as
required hereunder); and (iii) the IRS, the name, title, address and telephone
number of the Person who will serve as the representative of each REMIC Pool.
(i) The Tax Administrator shall perform its duties hereunder so as
to maintain the status of each REMIC Pool as a REMIC under the REMIC Provisions
(and the Trustee, the Master Servicer and the Special Servicer shall assist the
Tax Administrator to the extent reasonably requested by the Tax Administrator
and to the extent of information within the Trustee's, the Master Servicer's or
the Special Servicer's possession or control). None of the Tax Administrator,
the Master Servicer, the Special Servicer, or the Trustee shall knowingly take
(or cause either REMIC Pool to take) any action or fail to take (or fail to
cause to be taken) any action that, under the REMIC Provisions, if taken or not
taken, as the case may be, could (i) endanger the status of either REMIC Pool as
a REMIC, or (ii) except as provided in Section 3.17(a), result in the imposition
of a tax upon either REMIC Pool (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) or result
in the imposition of a tax on "net income from foreclosure property" as defined
in Section 860G(c) of the Code (any such endangerment of REMIC status or, except
as provided in Section 3.17(a), imposition of a tax, an "Adverse REMIC Event"),
unless the Tax Administrator has obtained or received an Opinion of Counsel (at
the expense of the party requesting such action or at the expense of the Trust
Fund if the Tax Administrator seeks to take such action or to refrain from
acting for the benefit of the Certificateholders) to the effect that the
contemplated action will not result in an Adverse REMIC Event or Adverse Grantor
Trust Event. None of the other parties hereto shall take any action or fail to
take any action (whether or not authorized hereunder) as to which the Tax
Administrator has advised it in writing that the Tax Administrator has received
or obtained an Opinion of Counsel to the effect that an Adverse REMIC Event or
Adverse Grantor Trust Event could result from such action or failure to act. In
addition, prior to taking any action with respect to either REMIC Pool or the
Grantor Trust, or causing either REMIC Pool or the Grantor Trust to take any
action, that is not expressly permitted under the terms of this Agreement, the
Master Servicer and the Special Servicer shall consult with the Tax
Administrator or its designee, in writing, with respect to whether such action
could cause an Adverse REMIC Event or Adverse Grantor Trust Event to occur. The
Tax Administrator may consult with counsel to make such written advice, and the
cost of same shall be borne by the party seeking to take the action not
permitted by this Agreement, but in no event at the cost or expense of the Trust
Fund or the Trustee. At all times as may be required by the Code, the Tax
Administrator shall make reasonable efforts to ensure that substantially all of
the assets of each REMIC Pool will consist of "qualified mortgages" as defined
in Section 860G(a)(3) of the Code and "permitted investments" as defined in
Section 860G(a)(5) of the Code.
(j) If any tax is imposed on either REMIC Pool, including
"prohibited transactions" taxes as defined in Section 860F(a)(2) of the Code,
any tax on "net income from foreclosure property" as defined in Section 860G(c)
of the Code, any taxes on contributions to either REMIC Pool after the Startup
Day pursuant to Section 860G(d) of the Code, and any other tax imposed by the
Code or any applicable provisions of State or Local Tax laws (other than any tax
permitted to be incurred by the Special Servicer pursuant to Section 3.17(a)),
such tax, together with all incidental costs and expenses (including penalties
and reasonable attorneys' fees), shall be charged to and paid by: (i) the Tax
Administrator, if such tax arises out of or results from a breach by the Tax
Administrator of any of its obligations under this Section 10.01; (ii) the
Special Servicer, if such tax arises out of or results from a breach by the
Special Servicer of any of its obligations under Article III or this Section
10.01; (iii) the Master Servicer, if such tax arises out of or results from a
breach by the Master Servicer of any of its obligations under Article III or
this Section 10.01; (iv) the Trustee, if such tax arises out of or results from
a breach by the Trustee of any of its obligations under Article IV, Article VIII
or this Section 10.01; or (v) the Trust Fund, in all other instances. Any tax
permitted to be incurred by the Special Servicer pursuant to Section 3.17(a)
shall be charged to and paid by the Trust Fund. Any such amounts payable by the
Trust Fund shall be paid by the Trustee upon the written direction of the Tax
Administrator out of amounts on deposit in the Distribution Account in reduction
of the Available Distribution Amount pursuant to Section 3.05(b).
(k) The Tax Administrator shall, for federal income tax purposes,
maintain books and records with respect to each REMIC Pool on a calendar year
and on an accrual basis.
(l) Following the Startup Day, none of the Trustee, the Master
Servicer and the Special Servicer shall accept any contributions of assets to
either REMIC Pool unless it shall have received an Opinion of Counsel (at the
expense of the party seeking to cause such contribution and in no event at the
expense of the Trust Fund or the Trustee) to the effect that the inclusion of
such assets in such REMIC Pool will not cause: (i) such REMIC Pool to fail to
qualify as a REMIC at any time that any Certificates are outstanding; or (ii)
the imposition of any tax on such REMIC Pool under the REMIC Provisions or other
applicable provisions of federal, state and local law or ordinances.
(m) None of the Trustee, the Master Servicer and the Special
Servicer shall consent to or, to the extent it is within the control of such
Person, permit: (i) the sale or disposition of any of the Mortgage Loans (except
in connection with (A) the default or reasonably foreseeable material default of
a Mortgage Loan, including, but not limited to, the sale or other disposition of
a Mortgaged Property acquired by deed in lieu of foreclosure, (B) the bankruptcy
of either REMIC Pool, (C) the termination of either REMIC Pool pursuant to
Article IX of this Agreement, or (D) a purchase of Mortgage Loans pursuant to or
as contemplated by Article II or III of this Agreement); (ii) the sale or
disposition of any investments in the Pool Custodial Account or the Pool REO
Account for gain; or (iii) the acquisition of any assets for either REMIC Pool
(other than a Mortgaged Property acquired through foreclosure, deed in lieu of
foreclosure or otherwise in respect of a defaulted Mortgage Loan and other than
Permitted Investments acquired in connection with the investment of funds in the
Pool Custodial Account or the Pool REO Account); in any event unless it has
received an Opinion of Counsel (at the expense of the party seeking to cause
such sale, disposition, or acquisition but in no event at the expense of the
Trust Fund or the Trustee) to the effect that such sale, disposition, or
acquisition will not cause: (x) either REMIC Pool to fail to qualify as a REMIC
at any time that any Certificates are outstanding; or (y) the imposition of any
tax on either REMIC Pool under the REMIC Provisions or other applicable
provisions of federal, state and local law or ordinances.
(n) Except as permitted by Section 3.17(a), none of the Trustee, the
Master Servicer and the Special Servicer shall enter into any arrangement by
which either REMIC Pool will receive a fee or other compensation for services
nor permit either REMIC Pool 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.
Section 10.02 Grantor Trust Administration.
(a) The Tax Administrator shall treat the Grantor Trust, for tax
return preparation purposes, as a grantor trust under the Code and, if
necessary, under applicable state law and will file appropriate federal or state
Tax Returns for each taxable year ending on or after the last day of the
calendar year in which the Certificates are issued.
(b) The Tax Administrator shall pay out of its own funds any and all
routine tax administration expenses of the Trust Fund incurred with respect to
the Grantor Trust (but not including any professional fees or expenses related
to audits or any administrative or judicial proceedings with respect to the
Trust Fund that involve the IRS or state tax authorities which extraordinary
expenses shall be payable or reimbursable to the Tax Administrator from the
Grantor Trust Assets in the Trust Fund unless otherwise provided in Section
10.02(e) or 10.02(f)).
(c) The Tax Administrator shall prepare, sign and file all of the
Tax Returns in respect of the Grantor Trust. The expenses of preparing and
filing such returns shall be borne by the Tax Administrator without any right of
reimbursement therefor. The Tax Administrator shall comply with such requirement
by filing Form 1041, indicating the name and address of the Trust and signed by
the Tax Administrator but otherwise left blank. There shall be appended to each
such form a schedule for each Certificateholder indicating such
Certificateholder's share of income and expenses of the Trust for the portion of
the preceding calendar year in which such Certificateholder possessed an
Ownership Interest in a Certificate. Such form shall be prepared in sufficient
detail to enable reporting on the cash or accrual method of accounting, as
applicable, and to report on such Certificateholder's fiscal year if other than
the calendar year. The other parties hereto shall provide on a timely basis to
the Tax Administrator or its designee such information with respect to the
Grantor Trust as is in its possession and reasonably requested by the Tax
Administrator to enable it to perform its obligations under this Section 10.02.
Without limiting the generality of the foregoing, the Depositor, within ten days
following the Tax Administrator's request therefor, shall provide in writing to
the Tax Administrator such information as is reasonably requested by the Tax
Administrator for tax purposes, and the Tax Administrator's duty to perform its
reporting and other tax compliance obligations under this Section 10.02 shall be
subject to the condition that it receives from the Depositor such information
possessed by the Depositor that is necessary to permit the Tax Administrator to
perform such obligations.
(d) The Tax Administrator shall perform on behalf of the Grantor
Trust all reporting and other tax compliance duties that are required in respect
thereof under the Code, the Grantor Trust Provisions or other compliance
guidance issued by the IRS or any state or local taxing authority, including the
furnishing to Certificateholders of the schedules described in Section 10.01(c).
(e) The Tax Administrator shall perform its duties hereunder so as
to maintain the status of the Grantor Trust as a grantor trust under the Grantor
Trust Provisions (and the Trustee, the Master Servicer and the Special Servicer
shall assist the Tax Administrator to the extent reasonably requested by the Tax
Administrator and to the extent of information within the Trustee's, the Master
Servicer's or the Special Servicer's possession or control). None of the Tax
Administrator, Master Servicer, the Special Servicer or the Trustee shall
knowingly take (or cause the Grantor Trust to take) any action or fail to take
(or fail to cause to be taken) any action that, under the Grantor Trust
Provisions, if taken or not taken, as the case may be, could endanger the status
of the Grantor Trust as a grantor trust under the Grantor Trust Provisions or
result in the imposition of a tax upon the Grantor Trust or its assets or
transactions (any such endangerment or imposition, an "Adverse Grantor Trust
Event"), unless the Tax Administrator has obtained or received an Opinion of
Counsel (at the expense of the party requesting such action or at the expense of
the Trust Fund if the Tax Administrator seeks to take such action or to refrain
from taking any action for the benefit of the Certificateholders) to the effect
that the contemplated action will not result in an Adverse Grantor Trust Event.
None of the other parties hereto shall take any action or fail to take any
action (whether or not authorized hereunder) as to which the Tax Administrator
has advised it in writing that the Tax Administrator has received or obtained an
Opinion of Counsel to the effect that an Adverse Grantor Trust Event could
result from such action or failure to act. In addition, prior to taking any
action with respect to the Grantor Trust, or causing the Trust Fund to take any
action, that is not expressly permitted under the terms of this Agreement, the
Master Servicer and the Special Servicer shall consult with the Tax
Administrator or its designee, in writing, with respect to whether such action
could cause an Adverse Grantor Trust Event to occur. The Tax Administrator may
consult with counsel to make such written advice, and the cost of same shall be
borne by the party seeking to take the action not permitted by this Agreement,
but in no event at the cost or expense of the Trust Fund, the Tax Administrator
or the Trustee.
(f) If any tax is imposed on the Grantor Trust, such tax, together
with all incidental costs and expenses (including penalties and reasonable
attorneys' fees), shall be charged to and paid by: (i) the Tax Administrator, if
such tax arises out of or results from a breach by the Tax Administrator of any
of its obligations under this Section 10.02; (ii) the Special Servicer, if such
tax arises out of or results from a breach by the Special Servicer of any of its
obligations under Article III or this Section 10.02; (iii) the Master Servicer,
if such tax arises out of or results from a breach by the Master Servicer of any
of its obligations under Article III or this Section 10.02; (iv) the Trustee, if
such tax arises out of or results from a breach by the Trustee of any of its
obligations under Article IV, Article VIII or this Section 10.02; or (v) the
portion of the Trust Fund constituting the Grantor Trust in all other instances.
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.01 Amendment.
(a) This Agreement may be amended from time to time by the mutual
agreement of the parties hereto, without the consent of any of the
Certificateholders or the Companion Loan Noteholders, (i) to cure any ambiguity,
(ii) to correct, modify or supplement any provision herein which may be
inconsistent with any other provision herein or with the description thereof in
the Prospectus or the Prospectus Supplement, (iii) to add any other provisions
with respect to matters or questions arising hereunder which shall not be
inconsistent with the existing provisions hereof, (iv) to relax or eliminate any
requirement hereunder imposed by the REMIC Provisions if the REMIC Provisions
are amended or clarified such that any such requirement may be relaxed or
eliminated, (v) to relax or eliminate any requirement imposed by the Securities
Act or the rules thereunder if the Securities Act or those rules are amended or
clarified so as to allow for the relaxation or elimination of that requirement;
(vi) as evidenced by an Opinion of Counsel delivered to the Master Servicer, the
Special Servicer and the Trustee, either (A) to comply with any requirements
imposed by the Code or any successor or amendatory statute or any temporary or
final regulation, revenue ruling, revenue procedure or other written official
announcement or interpretation relating to federal income tax laws or any such
proposed action which, if made effective, would apply retroactively to any of
the REMIC Pools or the Grantor Trust at least from the effective date of such
amendment, or (B) to avoid the occurrence of a prohibited transaction or to
reduce the incidence of any tax that would arise from any actions taken with
respect to the operation of either REMIC Pool or the Grantor Trust; or (vii) as
provided in Section 5.02(d)(iv) to modify, add to or eliminate any of the
provisions of Section 5.02(d)(i), (ii) or (iii); (viii), to otherwise modify or
delete existing provisions of this Agreement; provided that such amendment
(other than any amendment for any of the specific purposes described in clauses
(i), (ii), (iv), (v), (vi) and (vii) above) shall not adversely affect in any
material respect the interests of any Certificateholder or the Companion Loan
Noteholders, as evidenced by either an Opinion of Counsel delivered to the
Trustee and each other party hereto to such effect or, in the case of a Class of
Certificates to which a rating has been assigned by one or more Rating Agencies,
written confirmation from each applicable Rating Agency to the effect that such
amendment shall not result in an Adverse Rating Event; and provided, further,
that such amendment shall not significantly change the activities of the Trust.
(b) This Agreement may also be amended from time to time by the
agreement of the parties hereto with the consent of the Holders of Certificates
entitled to at least 66-2/3% of the Voting Rights allocated to the affected
Classes for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Agreement or of modifying in any
manner the rights of the Holders of Certificates; provided, however, that no
such amendment shall (i) reduce in any manner the amount of, or delay the timing
of, payments received or advanced on Loans 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 the Companion Loan Noteholders, without
the consent of the affected Companion Loan Noteholders, (ii) adversely affect in
any material respect the interests of the Holders of any Class of Certificates
or the interests of the Companion Loan Noteholders in a manner other than as
described in the immediately preceding clause (i) without the consent of the
Holders of all Certificates of such Class or the consent of the affected
Companion Loan Noteholders, as the case may be, (iii) significantly change the
activities of the Trust without the consent of the Holders of Certificates
entitled to 51% of all the Voting Rights (without regard to Certificates held by
the Depositor or any of the Depositor's Affiliates and/or agents), (iv) modify
the provisions of this Section 11.01, without the consent of the Holders of all
Certificates then outstanding and the consent of the affected Companion Loan
Noteholders, (v) modify the provisions of Section 3.20 or the Servicing
Standard, without the consent of the Holders of all Regular Interest
Certificates then outstanding and the consent of the Companion Loan Noteholders,
or (vi) modify the specified percentage of Voting Rights which are required to
be held by Certificateholders to consent or not to object to any particular
action pursuant to any provision of this Agreement without the consent of the
Holders of all Certificates then outstanding. Notwithstanding any other
provision of this Agreement, for purposes of the giving or withholding of
consents pursuant to this Section 11.01(b), Certificates registered in the name
of any party hereto or any Affiliate thereof shall be entitled to the same
Voting Rights with respect to matters described above as they would if any other
Person held such Certificates, so long as the subject amendment does not relate
to increasing its rights or reducing or limiting its obligations hereunder as a
party to this Agreement.
(c) Notwithstanding any contrary provision of this Agreement, the
Trustee shall not consent to any amendment to this Agreement unless it shall
first have obtained or been furnished with an Opinion of Counsel (at the expense
of the party seeking such amendment) addressed to the Trustee and each other
party hereto, to the effect that (i) such amendment or the exercise of any power
granted to the Trustee, the Master Servicer or the Special Servicer in
accordance with such amendment will not result in the imposition of a tax on
either REMIC Pool pursuant to the REMIC Provisions, cause either REMIC Pool to
fail to qualify as a REMIC or cause the Grantor Trust to fail to qualify as a
grantor trust within the meaning of the Grantor Trust Provisions at any time
that any Certificates are outstanding and (ii) such amendment complies in all
material respects with the provisions of this Section 11.01.
(d) Promptly after the execution of any such amendment, the Trustee
shall make available on its website a fully executed copy thereof to each party
hereto, each Certificateholder and the Companion Loan Noteholders.
(e) It shall not be necessary for the consent of Certificateholders
or the affected Companion Loan Noteholders 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 or the affected Companion Loan Noteholders shall be subject
to such reasonable regulations as the Trustee may prescribe.
(f) Each of the Master Servicer, the Special Servicer and the
Trustee may but shall not be obligated to enter into any amendment pursuant to
this section that affects its rights, duties and immunities under this Agreement
or otherwise.
(g) The cost of any Opinion of Counsel to be delivered pursuant to
Section 11.01(a) or (c) shall be borne by the Person seeking the related
amendment, except that if the Master Servicer, the Special Servicer or the
Trustee requests any amendment of this Agreement that protects or is in
furtherance of the rights and interests of Certificateholders, the cost of any
Opinion of Counsel required in connection therewith pursuant to Section 11.01(a)
or (c) shall be payable out of the Pool Custodial Account, in the case of the
Master Servicer and the Special Servicer, pursuant to Section 3.05(a), or out of
the Distribution Account, in the case of the Trustee, pursuant to Section
3.05(b).
Section 11.02 Recordation of Agreement; Counterparts.
(a) To the extent permitted by applicable law, this Agreement is
subject to recordation in all appropriate public offices for real property
records in all the counties or other comparable jurisdictions in which any or
all of the properties subject to the Mortgages are situated, and in any other
appropriate public recording office or elsewhere, such recordation to be
effected by the Master Servicer at the expense of the Trust Fund, but only upon
direction accompanied by an Opinion of Counsel (the cost of which may be paid
out of the Pool Custodial Account pursuant to Section 3.05(a) or, to the extent
that it benefits the Companion Loan Noteholders, out of the related Loan Pair
Custodial Account pursuant to Section 3.05(A)(a)) to the effect that such
recordation materially and beneficially affects the interests of the
Certificateholders and/or the Companion Loan Noteholders; provided, however,
that the Trustee shall have no obligation or responsibility to determine whether
any such recordation of this Agreement is required.
(b) For the purpose of facilitating the recordation of this
Agreement as herein provided and for other purposes, this Agreement may be
executed simultaneously in any number of counterparts, each of which
counterparts shall be deemed to be an original, and such counterparts shall
constitute but one and the same instrument.
Section 11.03 Limitation on Rights of Certificateholders and the
Companion Loan Noteholders.
(a) The death or incapacity of any Certificateholder or any
Companion Loan Noteholder shall not operate to terminate this Agreement or the
Trust Fund, nor entitle such Certificateholder's or such Companion Loan
Noteholder'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) The Certificateholders and the Companion Loan Noteholders
(except as expressly provided for herein) shall not have any right to vote 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 and/or the Companion Loan Noteholders from time to time as
partners or members of an association; nor shall any Certificateholder or
Companion Loan Noteholder 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) Neither any of the Certificateholders nor the Companion Loan
Noteholders 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 Loan, unless, with respect to any suit,
action or proceeding upon or under or with respect to this Agreement, such
Person previously shall have given to the Trustee a written notice of default
hereunder, and of the continuance thereof, as hereinbefore provided, and unless
also (except in the case of a default by the Trustee) the Holders of
Certificates entitled to at least 25% of the Voting Rights shall have made
written request upon the Trustee to institute such action, suit or proceeding in
its own name as Trustee hereunder and shall have offered to the Trustee such
reasonable indemnity as it may require against the costs, expenses and
liabilities to be incurred therein or thereby, and the Trustee, for 60 days
after its receipt of such notice, request and offer of indemnity, shall have
neglected or refused to institute any such action, suit or proceeding. It is
understood and intended, and expressly covenanted by each Certificateholder with
every other Certificateholder and the Trustee, that no one or more Holders of
Certificates shall have any right in any manner whatsoever by virtue of any
provision of this Agreement to affect, disturb or prejudice the rights of the
Holders of any other of such Certificates, or to obtain or seek to obtain
priority over or preference to any other such Holder, which priority or
preference is not otherwise provided for herein, or to enforce any right under
this Agreement, except in the manner herein provided and for the equal, ratable
and common benefit of all Certificateholders. For the protection and enforcement
of the provisions of this section, each and every Certificateholder and the
Trustee shall be entitled to such relief as can be given either at law or in
equity.
Section 11.04 Governing Law; Consent to Jurisdiction.
This Agreement will be governed by and construed in accordance with
the laws of the State of New York, applicable to agreements negotiated, made and
to be performed entirely in said state. To the fullest extent permitted under
applicable law, the Depositor, the Master Servicer, the Special Servicer, the
Trustee and the Fiscal Agent each hereby irrevocably (i) submits to the
jurisdiction of any New York State and federal courts sitting in New York City
with respect to matters arising out of or relating to this Agreement; (ii)
agrees that all claims with respect to such action or proceeding may be heard
and determined in such New York State or federal courts; (iii) waives the
defense of an inconvenient forum; and (iv) agrees that a final judgment in any
such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
Section 11.05 Notices.
Any communications provided for or permitted hereunder shall be
in writing and, unless otherwise expressly provided herein, shall be deemed
to have been duly given when delivered to: (i) in the case of the Depositor,
Greenwich Capital Commercial Funding Corp., 000 Xxxxxxxxx Xxxx, Xxxxxxxxx, XX
00000, Attention: Xxxxx Xxxxxxx, Telecopy No.: (000) 000-0000 with a copy
to Xxxx Xxxxxxxxx, Esq., Telecopy No.: (000) 000-0000; (ii) in the case of
the Master Servicer, Wachovia Bank, National Association, NC 1075, 0000
Xxxxxxxx Xxxxx, XXX 0, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000, Attention:
Greenwich Capital Commercial Funding Corp., Commercial Mortgage Trust Series
2003-C1; facsimile number: (000) 000-0000; (iii) in the case of the Special
Servicer, GMAC Commercial Mortgage Corporation, 000 Xxxxxxxxxx Xxxxxx, Xxx
Xxxxxxxxx, Xxxxxxxxxx 00000, Attention: Xxxxx Bieber, facsimile number:
415-391-2949, with a copy to General Counsel, facsimile number: 000-000-0000;
(iv) in the case of the Trustee, LaSalle Bank National Association, 000 Xxxxx
XxXxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, Attention: Asset-Backed
Securities Trust Services Group--Greenwich Capital Commercial Funding Corp.,
Commercial Mortgage Trust Series 2003-C1, facsimile number: (000) 000-0000;
(v) in the case of the Fiscal Agent, ABN AMRO Bank N.V., 000 Xxxxx XxXxxxx
Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, Attention: Asset-Backed
Securities Trust Services Group--Greenwich Capital Commercial Funding Corp.,
Commercial Mortgage Trust Series 2003-C1, facsimile number: (000) 000-0000;
(vi) in the case of the Underwriters, (A) Greenwich Capital Markets, Inc.,
000 Xxxxxxxxx Xxxx, Xxxxxxxxx, XX 00000, Attention: Xxxxx Xxxxxxx, Telecopy
No.: (000) 000-0000 with a copy to Xxxx Xxxxxxxxx, Esq., Telecopy No.:
(000) 000-0000; (B) Credit Suisse First Boston Corporation, Eleven Xxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxx Xxxxxxxxxx, with a copy
to Xxxxxx XxXxxxxxx, Esq., Legal Compliance Department, Telecopy No.:
(000) 000-0000; and (C) Xxxxxx Xxxxxxx & Co. Incorporated, 0000 Xxxxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx X. Xxxxxx, Telecopy No.: (212)
761-0747; (vii) in the case of the Rating Agencies, (A) Standard & Poor's
Rating Services, a division of the XxXxxx-Xxxx Companies, Inc., 00 Xxxxx
Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: CMBS Surveillance
Department, facsimile number: (000) 000-0000; and (B) Xxxxx'x Investors
Service, Inc., 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, Attention:
CMBS-Monitoring, telecopy number: (000) 000-0000; (viii) in the case of the
initial Controlling Class Directing Holder, GMAC Institutional Advisors LLC,
000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000,
Attention: Xxxxx Xxxx, facsimile 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. Any communication required or permitted to be
delivered to a Certificateholder shall be deemed to have been duly given when
mailed first class, postage prepaid, to the address of such Holder as shown
in the Certificate Register.
Section 11.06 Severability of Provisions.
If any one or more of the covenants, agreements, provisions or terms
of this Agreement shall be for any reason whatsoever held invalid, then such
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 and the Trustee agree that it is their intent 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 and the Trustee agree that it is their intent
that the rights and obligations of the parties to such loan shall be established
pursuant to the terms of this Agreement. The Depositor and the Trustee also
intend and agree that, in such event, (i) in order to secure performance of the
Depositor's obligations hereunder and payment of the Certificates, the Depositor
shall be deemed to have granted, and does hereby grant, to the Trustee (in such
capacity) a first priority security interest in the Depositor's entire right,
title and interest in and to the assets constituting the Trust Fund, including
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 any Principal Prepayments received on
or prior to the Cut-off Date), all amounts held from time to time in the Pool
Custodial Account, the Distribution Account, the Interest Reserve Account, the
Excess Liquidation Proceeds Account and, if established, the Pool REO Account
and the Defeasance Deposit Account and any 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. The Depositor shall file or cause to be filed, as a
precautionary filing, a Form UCC-1 substantially in the form attached as Exhibit
J hereto in the State of Delaware promptly following the initial issuance of the
Certificates, and the Trustee shall prepare, execute and file at each such
office, with the consent of the Depositor hereby given, continuation statements
with respect thereto, in each case within six months prior to the fifth
anniversary of the immediately preceding filing. The Depositor shall cooperate
in a reasonable manner with the Trustee and the Master Servicer in preparing and
filing such continuation statements. This Section 11.07 shall constitute notice
to the Trustee pursuant to any of the requirements of the UCC.
Section 11.08 Xxxxxx Act.
Any provisions required to be contained in this Agreement by Section
126 of Article 4-A of the New York Real Property Law are hereby incorporated
herein, and such provisions shall be in addition to those conferred or imposed
by this Agreement; provided, however, that to the extent that such Section 126
shall not have any effect, and if said Section 126 should at any time be
repealed or cease to apply to this Agreement or be construed by judicial
decision to be inapplicable, said Section 126 shall cease to have any further
effect upon the provisions of this Agreement. In case of a conflict between the
provisions of this Agreement and any mandatory provisions of Article 4-A of the
New York Real Property Law, such mandatory provisions of said Article 4-A shall
prevail, provided that if said Article 4-A shall not apply to this Agreement,
should at any time be repealed, or cease to apply to this Agreement or be
construed by judicial decision to be inapplicable, such mandatory provisions of
such Article 4-A shall cease to have any further effect upon the provisions of
this Agreement.
Section 11.09 Successors and Assigns; Beneficiaries.
The provisions of this Agreement shall be binding upon and inure to
the benefit of the respective successors and assigns of the parties hereto, and
all such provisions shall inure to the benefit of the Certificateholders. Each
Underwriter shall be a third party beneficiary to this Agreement solely with
respect to its right to receive the reports, statements and other information to
which it is entitled hereunder, to preserve such Underwriter's rights under
Sub-Servicing Agreements as contemplated by Section 3.22(d) and, in the case of
the Mortgage Loan Seller, to terminate the Trust Fund pursuant to Section 9.01.
Each of the Sub-Servicers that is a party to a Sub-Servicing Agreement in effect
on the Closing Date (or being negotiated as of the Closing Date and in effect
within 90 days thereafter) shall be a third party beneficiary to obligations of
a successor Master Servicer under Section 3.22, provided that the sole remedy
for any claim by a Sub-Servicer as a third party beneficiary pursuant to this
Section 11.09 shall be against a successor Master Servicer solely in its
corporate capacity and no Sub-Servicer shall have any rights or claims against
the Trust Fund or any party hereto (other than a successor Master Servicer in
its corporate capacity as set forth in this Section 11.09) as a result of any
rights conferred on such Sub-Servicer as a third party beneficiary pursuant to
this Section 11.09. The Companion Loan Noteholders and any designees thereof
acting on behalf of or exercising the rights of the Companion Loan Noteholders
shall be third-party beneficiaries to this Agreement with respect to their
rights as specifically provided for herein. The 2002-C1 Master Servicer, the
2002-C1 Trustee and the 2002-C1 Fiscal Agent shall be third-party beneficiaries
to this Agreement solely with respect to the reimbursement of nonrecoverable
advances made by such party under the 0000-X0 XXX, pursuant to Section 3.05
hereof. This Agreement may not be amended in any manner that would adversely
affect the rights of any such third party beneficiary without its consent. No
other Person, including any Mortgagor, shall be entitled to any benefit or
equitable right, remedy or claim under this Agreement.
Section 11.10 Article and Section Headings.
The article and section headings herein are for convenience of
reference only, and shall not limit or otherwise affect the meaning hereof.
Section 11.11 Notices to Rating Agencies.
(a) The Trustee shall promptly 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 Fiscal Agent, the Master
Servicer or the Special Servicer;
(iv) the repurchase of Mortgage Loans by the Mortgage Loan Seller
pursuant to Section 2.03;
(v) any change in the location of the Distribution Account or the
Interest Reserve Account;
(vi) the final payment to any Class of Certificateholders; and
(vii) any sale or disposition of any Mortgage Loan or REO Property.
(b) The Master Servicer shall promptly provide notice to each Rating
Agency with respect to each of the following of which it has actual knowledge:
(i) the resignation or removal of the Trustee; and
(ii) any change in the location of any Custodial Account.
(c) The Special Servicer shall furnish each Rating Agency with
respect to a Specially Serviced Loan such information as the Rating Agency shall
reasonably request and which the Special Servicer can reasonably provide in
accordance with applicable law, with copies to the Trustee.
(d) To the extent applicable, the Master Servicer shall promptly
furnish to each Rating Agency copies of the items described in clauses (i), (ii)
and (iii) below, and the Special Servicer shall promptly furnish to each Rating
Agency copies of the items described in clauses (i) and (ii) below (to the
extent not already delivered pursuant to Section 3.13 or 3.14):
(i) each of its annual statements as to compliance described in
Section 3.13;
(ii) each of its annual independent public accountants' servicing
reports described in Section 3.14; and
(iii) any Officer's Certificate delivered by it to the Trustee
pursuant to Section 3.11(h), 4.03(c) or 4.03A(c).
(e) The Trustee shall (i) make available to each Rating Agency, upon
reasonable notice, the items described in Section 8.14(b) and (ii) promptly
deliver to each Rating Agency a copy of any notices given pursuant to Section
7.03(a) or Section 7.03(b) and (iii) deliver the items described in Section
11.11(d)(iii) with regard to the Special Servicer to each Rating Agency, to the
extent it its possession.
(f) The Trustee shall promptly deliver to each Rating Agency a copy
of each of the statements and reports described in Section 4.02(a) that is
prepared by it.
(g) Each of the Trustee, the Master Servicer and the Special
Servicer shall provide to each Rating Agency such other information with respect
to the Mortgage Loans and the Certificates, to the extent such party possesses
such information, as such Rating Agency shall reasonably request.
Section 11.12 Complete Agreement.
This Agreement embodies the complete agreement among the parties and
may not be varied or terminated except by a written agreement conforming to the
provisions of Section 11.01. All prior negotiations or representations of the
parties are merged into this Agreement and shall have no force or effect unless
expressly stated herein.
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.
GREENWICH CAPITAL COMMERCIAL FUNDING
CORP.,
Depositor
By: /s/ Xxxxxx X. Xxxx
------------------------------------
Name: Xxxxxx X. Xxxx
-------------------------------
Title: Vice President
-------------------------------
WACHOVIA BANK, NATIONAL ASSOCIATION,
Master Servicer
By: /s/ Xxxxx X. Xxxxx
------------------------------------
Name: Xxxxx X. Xxxxx
-------------------------------
Title: Vice President
-------------------------------
GMAC COMMERCIAL MORTGAGE CORPORATION,
Special Servicer
By: /s/ Xxxxx Bieber
------------------------------------
Name: Xxxxx Bieber
-------------------------------
Title: Senior Vice President
-------------------------------
LASALLE BANK NATIONAL ASSOCIATION,
Trustee
By: /s/ Xxxxx X. Xxxx
------------------------------------
Name: Xxxxx X. Xxxx
-------------------------------
Title: Vice President
-------------------------------
ABN AMRO BANK N.V.,
Fiscal Agent
By: /s/ Xxxxx X. Xxxx
------------------------------------
Name: Xxxxx X. Xxxx
-------------------------------
Title: Vice President
-------------------------------
By: /s/ Xxxxxxx Xxxx
------------------------------------
Name: Xxxxxxx Xxxx
-------------------------------
Title: First Vice President
-------------------------------
STATE OF CONNECTICUT )
) ss.:
COUNTY OF FAIRFIELD )
On the 24th day of June, 2003, before me, a notary public in and for
said State, personally appeared Xxxxxx Xxxx, known to me to be a Vice President
of Greenwich Capital Commercial Funding Corp., one of the entities that executed
the within instrument, and also known to me to be the person who executed it on
behalf of such entity, and acknowledged to me that such entity executed the
within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxxx X. Xxxxxx
---------------------------------------
Notary Public
STATE OF NORTH CAROLINA )
) ss.:
COUNTY OF MECKLENBERG )
On the 20th day of June, 2003, before me, a notary public in and for
said State, personally appeared Xxxxx X. Xxxxx, known to me to be a Vice
President of Wachovia Bank, National Association, one of the entities that
executed the within instrument, and also known to me to be the person who
executed it on behalf of such entity, and acknowledged to me that such entity
executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxxxxxxx X. Xxxx
---------------------------------------
Notary Public
STATE OF CALIFORNIA )
) ss.:
COUNTY OF SAN FRANCISCO )
On the 26th day of June, 2003, before me, a notary public in and for
said State, personally appeared Xxxxx X. Bieber, known to me to be a Senior Vice
President of GMAC Commercial Mortgage Corporation, one of the entities that
executed the within instrument, and also known to me to be the person who
executed it on behalf of such entity, and acknowledged to me that such entity
executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxx X. Xxxxxxxx
---------------------------------------
Notary Public
[Notarial Seal]
STATE OF ILLINOIS )
) ss.:
COUNTY OF XXXX )
On the 30th day of June, 2003, before me, a notary public in and for
said State, personally appeared Xxxxx X. Xxxx, known to me to be a Vice
President of LaSalle Bank National Association, one of the entities that
executed the within instrument, and also known to me to be the person who
executed it on behalf of such entity, and acknowledged to me that such entity
executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxxx Xxxxxxxx
---------------------------------------
Notary Public
STATE OF ILLINOIS )
) ss.:
COUNTY OF XXXX )
On the 30th day of June, 2003, before me, a notary public in and for
said State, personally appeared Xxxxx X. Xxxx and Xxxxxxx Xxxx, known to me to
be a Vice President and First Vice President, respectively, of ABN AMRO Bank
N.V., one of the entities that executed the within instrument, and also known to
me to be the persons who executed it on behalf of such entity, and acknowledged
to me that such entity executed the within instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
/s/ Xxxxx Xxxxxxxx
---------------------------------------
Notary Public
SCHEDULE I
MORTGAGE LOAN SCHEDULE
Control_N
under Loan Name Property Name
1 Xxxxxx Xxxxx Xxxx Xxxxxx Xxxxx Xxxx
0 Xxxxxxx Xxxx and Waverly Village Central Park and Waverly Village
3 000 Xxxxx Xxxxxx Xxxxx 000 Xxxxx Xxxxxx Xxxxx
4 Oxmoor Center Mall Oxmoor Center Mall
5 Harlem USA Harlem USA
0 Xxxxxxx Xxxxxxx Xxxxxxxx Xxxxxxx Capital Porfolio
6.01 Embassy Suites Brea & Embassy Court Brea
6.02 Embassy Suites Orange County Airport
6.03 Marriott Walnut Creek
6.04 Embassy Suites San Xxxx Obispo
6.05 Embassy Suites Temecula
6.06 Embassy Suites Lompoc
6.07 Radisson Suites Farmington Hills
7 Tide Point Office Tide Point Office
8 Mountain Heights Center Mountain Heights Center
0 Xxxxxxx Xxxxx Xxxxxx Xxxxxxx Xxxxx Xxxxxx
00 Xxxxxxxx Xxxxxxxx Xxxxxx Xxxxxxxx Xxxxxxxx Xxxxxx
11 National City Xxxxx Xxxxxxxx Xxxx Xxxxx
00 Xxxxxxx XXX Rosebud MHC
13 000 Xxxxx Xxxxxxxx 000 Xxxxx Xxxxxxxx
00 Xxxxxxxx Xxxxx Xxxxxxxx Xxxxx
00 2nd & Xxxxxxxxx 2nd & Xxxxxxxxx
00 Xxxxxxx Xxxxxxx Xxxxxx Xxxxxxx Gateway Center
00 Xxxxxxxxx Xxxxx & Xxxxxxx Xxxx Xxxxxx Xxxxxxxxx Plaza & Xxxxxxx Oaks Atrium
17.01 Xxxxxxx Oaks Atrium
17.02 West Hills
18 Tysons Office Center Xxxxxx Xxxxxx Xxxxxx
00 Xxxx Xxxxx Xxxx Xxxxx
20 Southport Commons Southport Commons
00 Xxxxx Xxxxx Xxxx Xxxxxx Xxxxx Xxxxx Xxxx Center
22 One Broadway One Broadway
23 000 Xxxxxxxxx Xxx 000 Xxxxxxxxx Xxx
00 Xxxxxxxx Xxxxx Xxxxxxxx Xxxxx
25 Oakmonte Apartment Homes Oakmonte Apartment Homes
26 Cinemark Retail Center Cinemark Retail Center
00 Xxxxxxxxx Xxxx Xxxxxxxxxx Xxxxxxxxx Xxxx Apartments
28 Xxxxxx Xxxx Plaza Xxxxxx Xxxx Plaza
29 Xxxxxxxx Business Center Xxxxxxxx Business Center
00 Xxxxxxx Xxxxx Xxxxxxxx Xxxxxx Xxxxxxx Plaza Shopping Center
31 Wilmington Storage Wilmington Storage
00 Xxxxxxx Xxxxxxx XXX Xxxxxxx Xxxxxxx MHC
33 Four Hills Village Shopping Center Four Hills Village Shopping Center
34 Xxxxx Branch Tech Center Xxxxx Branch Tech Center
00 Xxxxx Xx. Xxxxxxx Xxxxx Xx. Xxxxxxx
36 GSL Portfolio GSL Portfolio
36.01 Tyco Valves and Controls
36.02 Illinois Tool Office Warehouse
36.03 Sulzer Facility
36.04 United Environmental Services
36.05 Cargo Crafting Office Warehouse
36.06 Bechtel Office / Warehouse
36.07 The Xxxxxxx Co. (ICI Paints)
37 000 X. Xxxxxx Xxxxxx 000 X. Xxxxxx Xxxxxx
38 000 Xxxxx Xxxx Xxxxxx 000 Xxxxx Xxxx Xxxxxx
00 Xxxxxxx Xxxxx Xxxxxxx Plaza
40 Horizon Pacific Center Horizon Pacific Center
00 Xxxxxxxxxx Xxxxxxxxxx Xxxxxxxxxx Apartments
42 Plaza at Chapel Hill Plaza at Chapel Hill
43 Bed Bath & Beyond Bed Bath & Beyond
44 Corona Corporate Center II Corona Corporate Center II
00 Xxxxxxxxx Xxxxxx Xxxxxxxxx Xxxxxx
46 Corona Industrial Building Corona Industrial Building
47 Charleston Pines Apartments Charleston Pines Apartments
48 000 Xxxxxxx Xxxxxx 000 Xxxxxxx Xxxxxx
49 Shores Professional Office Building Shores Professional Office Building
50 Price Self Storage Price Self Storage
51 Palm Plaza Shopping Center Palm Xxxxx Xxxxxxxx Xxxxxx
00 Xxxxx Xxxxxxx Xxxxx Xxxxxxx
00 Xxxxxx Xxxxxxx Xxxxxx Xxxxxxx
00 Xxxxxx Xxxxxx Xxxxxx Xxxxxx
55 Plaza Xxx Xxxxxx Xxxxxxxx Xxxxx Xxx Xxxxxx Xxxxxxxx
00 Xxxxxxxxx Xxxxxx Greystone Centre
57 Jamestown South Office Building Jamestown South Office Building
58 Autocam Corporation - Kentwood Autocam Corporation - Kentwood
59 Autocam Corporation - Xxxxxxxx Autocam Corporation - Xxxxxxxx
00 Xxxxxxx Xxxxx Xxxxxxxxxx Xxxxxxx Xxxxx Apartments
00 Xxxxx Xxxxx Xxxxxxxxxx Xxxxx Xxxxx Apartments
62 Fresno Street Office Fresno Street Office
63 Iron Gate Mega Self Storage Iron Gate Mega Self Storage
64 0000 Xxxxxxx Xxxxxxx 0000 Xxxxxxx Xxxxxxx
65 University & Xxxxxxx University & Xxxxxxx
66 455 Pennsylvania Avenue & Rock Hill Office 455 Pennsylvania Avenue & Rock Hill Office
66.01 000 Xxxxxxxxxxxx Xxxxxx
66.02 Rock Hill Medical Office Building
67 Philamer Apartments Philamer Apartments
68 Captain's Corner Shopping Center Captain's Xxxxxx Xxxxxxxx Xxxxxx
00 Xxxxxxxxxxx Xxxxxx Xxxxxxxxxxx Xxxxxx
70 Statewide Self Storage Statewide Self Storage
71 Flamingo Paradise Self-Storage Facility Flamingo Paradise Self-Storage Facility
72 Park 2000 - Buildings M, N and P Park 2000 - Buildings M, N and P
Control_N
under Xxxxxxx Xxxx
0 0000 Xxxxx Xxxxx Xxxx of Industry
2 0000 Xxxxxxx Xxxx Xxxxxxxxx Xxxxxxxxxxxxxx
3 000 Xxxxx Xxxxxx Xxxxx Xxxxxxx
4 0000 Xxxxxxxxxxx Xxxx Xxxxxxxxxx
5 000 Xxxx 000xx Xxxxxx Xxx Xxxx
6
6.01 900 & 000 Xxxx Xxxxx Xxxxxx Brea
6.02 0000 Xxxx Xxxx Xxxx Santa Xxx
6.03 0000 Xxxxx Xxxx Xx. Xxxxxx Xxxxx
6.04 000 Xxxxxxx Xxxx Xxx Xxxx Xxxxxx
6.05 00000 Xxxxxx Xxxxxxxxxx Xxxx Temecula
6.06 0000 Xxxxx X Xxxxxx Lompoc
6.07 37529 Grand Xxxxx Xxxxxx Xxxxxxxxxx Xxxxx
0 0000-0000 Xxxx Street Baltimore
8 420 and 000 Xxxxxxxx Xxx Xxxxxxxx Xxxxxxx
9 000 Xxxx Xxxxxx Xxxxxxxx
10 3601 C Street Anchorage
11 000 Xxxx Xxxxx Xxxxxx Xxxxxxxx
12 0000 Xxxxx Xxxxxx Xxxxxx Bridgeview
13 000 Xxxxx Xxxxxxxx Xxxxxx Xxxxxxx
14 000 Xxxxxxxx Xxxxxxxxx Xxxxxxxx
15 0000 Xxxx 0xx Xxxxxx; 000 Xxxxxxxxx Xxxxxx & 000 Xxxxxxxxx Xxxxxx; 0000 Xxxx 0xx Xxxxxx Xxxxxx
16 0000 Xxxxxxx Xxxxx Xxxxxxx Xxxxxxx
17
17.01 00000 Xxxxxxxx Xxxxxxxxx Xxxxxxx Oaks
17.02 00000 Xxxxxxx Xxxxxxxxx Xxxxxxxx Hills
18 8133 Leesburg Pike Vienna
19 0000-0000 Xxxxx Xxxx Xxx Xxxx
20 0000-0000 X. Xxxxxxxxx Xxxx; 0000 X. Xxxxxxx Xxxxxxxxxxxx
21 0000 Xxxxx Xxxxxxx Xxxxxx Xxxxxxxx
22 1 Broadway New York
23 000 Xxxxxxxxx Xxx Xxxxxxxxx
24 000 Xxxx 00xx Xxxxxx Xxxxxxx
25 One Oakmonte Boulevard Xxxxxxx
26 0000 Xxxxx Xxxx Xxxxxx View
27 000 Xxxxx Xxxxxx Knoxville
28 000 Xxxxxxx Xxxxxx San Antonio
29 1 - 00 Xxxxx Xxxx Xxxxx and 0 - 00 Xxxxxx Xxxxx Xxxxxxxx
30 8901 - 0000 Xxxxxxx Xxxxxx Overland Park
31 000 Xxxx X Xxxxxx Xxxxxxxxxx
32 0 Xxxxx Xxxxxx Xxxxxx
33 13100-13180 Central Avenue Albuquerque
34 0000 Xxxxx Xxxxxx Xxxxxxx Xxxxxx
35 000 Xx. Xxxxxxx Xxxxxx Xxx Xxxxxxx
36
36.01 0000 Xxx Xxxx Xxxxx Pasadena
36.02 0000 Xxxxxx Xxxxxx Xxxxxxx
36.03 0000 Xxx Xxxx Xxxxx Pasadena
36.04 0000 Xxx Xxxx Xxxxx Xxxxxxxx
36.05 0000 Xxxxxx Xxxx Xxxxxxx
36.06 0000 X. 00xx Xxxxxx Xxxx Xxxx
36.07 0000 Xxxxxxxx Xxx. Xxxx Xxxx
37 000 X. Xxxxxx Xxxxxx Xxxxxxx
38 000 Xxxxx Xxxx Xxxxxx Xxxxxxxx
39 149-191 Xxxxxx Street Manchester
40 0000-0000 Xxxxxxx Xxxxxx Tacoma
41 000 Xxxxx Xxxxx Xxxx Kalamazoo
42 000 Xxxx Xxxxxx Xxxxxxxx Xxxxx
43 0000 Xxxxxxxx Xxxx Vienna
44 000 Xxxx Xxxxxx Xxxxxx
45 2220-2601 Teal Road & 0000-0000 Xxxxx 00xx Xxxxxx Lafayette
46 000 Xxxxxx Xxxxx Xxxxxx
47 0000 Xxxx Xxxxxxxxxx Xxxx. Xxx Xxxxx
48 000 Xxxxxxx Xxxxxx Xxxxxx
49 00000 Xxxxxx Xxxx Xxxx Xx. Xxxxx Xxxxxx
50 32992 Xxxxx Road San Xxxx Capistrano
51 0000 Xxxxx Xxxxx Xxxxxxxxx Weslaco
52 0000 Xxxx Xxxxx Xxxxxx Grand Blanc Township
53 700 Early Forest Circle Sandston
54 1710-1716 Opelika Road Auburn
55 0000 Xxxxx Xxxxx Xxxxxxxx
56 0000 Xxxxxxx 000 Xxxxx Xxxxxxxxxx
57 24255 Thirteen Mile Xxxxxxx Farms
58 0000 Xxxx Xxxxx Xxxxxx, XX Xxxxxxxx
59 0000 Xxxxxx Xxxxx Xxxxx Xxxxxxxx
60 0000 Xxxxxxx Xxxxx Tyler
61 2161 E. Avenue J - 8 Lancaster
62 5640-5690 N. Fresno Street Fresno
63 0000 Xxxxxxxxx 000xx Xxxxxx Xxxxxxxxx
64 0000 Xxxxxxx Xxxxxxx St. Xxxxxxx
65 425, 515 & 525 North Xxxxxxx Mesa
66
66.01 000 Xxxxxxxxxxxx Xxxxxx Xxxx Xxxxxxxxxx
66.02 000 Xxxx Xxxxxx Xxxx Xxxxxxxx
00 0000-0000 Greenfield & 4305-4417 Xxxxxx Royal Oak
68 111-195 X-00 Xxxxxxx Xxxxxxxxxx
00 0000-0000 Xxxx Xxxxx Xxxx X. Xxx Xxxxx
70 00000 Xxxxxxxx Xxxx Victorville
71 4045 Palos Verdes Street Las Vegas
72 6275, 6285 and 0000 XxXxxx Xxxxx Xxx Xxxxx
Allocated Cut-off Original Cut-off Date
Original Cut-off Date Date Balance Monthly Debt Balance Balance
Control State Zip Code Balance Balance (multi-property) Service (Companion) (Companion)
1 XX 00000 92,000,000 92,000,000.00 505,182.01
2 VA 22401 80,000,000 79,630,319.29 492,573.76 5,000,000 4,976,894.96
3 IL 60606 72,500,000 72,500,000.00 528,887.50 15,000,000 15,000,000.00
4 XX 00000 60,900,000 60,900,000.00 399,052.86
0 XX 00000 57,000,000 56,898,031.87 345,417.03
6 55,000,000 55,000,000.00 773,624.00 15,000,000 15,000,000.00
6.01 XX 00000 11,971,171.00
6.02 XX 00000 10,405,405.00
6.03 XX 00000 9,513,514.00
6.04 XX 00000 8,918,919.00
6.05 XX 00000 8,145,946.00
6.06 XX 00000 6,045,045.00
6.07 MI 00000 -
0 XX 00000 40,000,000 39,910,722.26 258,907.68 3,000,000 2,993,304.17
8 XX 00000 39,600,000 39,600,000.00 209,806.89
9 HI 96813 35,000,000 35,000,000.00 238,168.50 7,500,000 7,500,000.00
00 XX 00000 34,000,000 33,974,796.89 212,961.50 5,000,000 4,996,293.66
00 XX 00000 32,000,000 31,910,587.66 187,760.97
00 XX 00000 29,000,000 28,914,977.09 166,300.08
00 XX 00000 28,000,000 28,000,000.00 168,775.29 3,000,000 3,000,000.00
14 LA 70005 25,400,000 25,381,364.86 159,710.97 2,000,000 1,998,532.67
15 CO 80206 23,500,000 23,500,000.00 161,013.36 3,500,000 3,500,000.00
00 XX 00000 22,400,000 22,400,000.00 123,832.41
17 21,850,000 21,850,000.00 142,154.68
17.01 XX 00000 12,560,000.00
17.02 XX 00000 9,290,000.00
00 XX 00000 21,300,000 21,300,000.00 121,005.89
00 XX 00000 20,900,000 20,859,348.63 121,608.48
20 IN 46217 19,800,000 19,761,966.60 115,925.05
00 XX 00000 18,000,000 18,000,000.00 105,043.11
00 XX 00000 18,000,000 18,000,000.00 101,075.54
00 XX 00000 16,000,000 16,000,000.00 87,758.93
00 XX 00000 15,440,000 15,402,133.09 96,073.19
00 XX 00000 14,922,500 13,935,174.08 105,850.21 2,677,500 2,500,347.03
00 XX 00000 13,900,000 13,900,000.00 109,021.62
00 XX 00000 13,825,000 13,755,452.24 81,382.92
00 XX 00000 13,270,000 13,203,510.97 78,285.16
00 XX 00000 13,000,000 12,946,793.35 77,107.75
00 XX 00000 13,000,000 12,910,872.73 90,453.21
00 XX 00000 12,000,000 12,000,000.00 94,845.12
00 XX 00000 11,250,000 11,206,338.72 68,756.82
00 XX 00000 10,880,000 10,850,711.52 64,951.56
00 XX 00000 10,500,000 10,500,000.00 62,952.81
00 XX 00000 10,200,000 10,200,000.00 83,108.58
36 10,164,000 10,126,468.38 63,842.86
36.01 XX 00000 2,901,247.14
36.02 XX 00000 1,466,564.49
36.03 XX 00000 1,354,978.06
36.04 XX 00000 1,299,184.85
36.05 XX 00000 1,091,952.91
36.06 XX 00000 1,008,263.09
36.07 XX 00000 1,004,277.86
00 XX 00000 9,575,000 9,567,455.62 58,581.79
00 XX 00000 9,400,000 9,400,000.00 56,297.33
00 XX 00000 9,250,000 9,233,392.87 55,958.96
00 XX 00000 8,500,000 8,468,972.99 53,725.78
00 XX 00000 8,000,000 7,953,046.27 47,297.46
00 XX 00000 7,700,000 7,700,000.00 51,271.55
00 XX 00000 7,500,000 7,500,000.00 41,834.34
00 XX 00000 7,300,000 7,272,257.56 45,137.44
45 IN 47905 7,275,000 7,255,370.06 43,383.71
00 XX 00000 7,250,000 7,200,555.75 47,915.70
00 XX 00000 6,880,000 6,839,451.04 40,587.94
00 XX 00000 6,500,000 6,452,211.22 42,158.88
00 XX 00000 6,300,000 6,229,678.95 45,351.84
00 XX 00000 6,200,000 6,200,000.00 37,056.61
00 XX 00000 6,200,000 6,155,228.28 43,504.41
00 XX 00000 5,825,000 5,801,249.28 34,624.78
00 XX 00000 5,250,000 5,228,103.51 30,804.53
00 XX 00000 4,850,000 4,850,000.00 27,537.77
00 XX 00000 4,650,000 4,608,171.26 32,100.55
00 XX 00000 4,500,000 4,433,569.71 29,306.66
00 XX 00000 4,400,000 4,396,505.02 26,834.53
00 XX 00000 2,800,000 2,796,600.06 18,474.20
00 XX 00000 1,600,000 1,598,057.18 10,556.69
00 XX 00000 4,357,500 4,344,897.82 25,153.05
00 XX 00000 4,300,000 4,288,233.60 25,477.36
00 XX 00000 4,100,000 4,078,027.54 25,377.88
00 XX 00000 4,000,000 3,990,605.80 24,797.34
00 XX 00000 3,800,000 3,761,887.49 26,648.26
00 XX 00000 3,750,000 3,721,881.47 24,098.51
66 3,700,000 3,669,418.04 24,111.30
66.01 PA 19034 3,371,898.00
66.02 PA 18960 297,520.04
67 XX 00000 3,600,000 3,600,000.00 22,048.88 900,000 900,000.00
00 XX 00000 3,550,000 3,540,564.12 21,316.01
00 XX 00000 3,000,000 3,000,000.00 17,698.23
00 XX 00000 2,625,000 2,608,049.96 18,049.79
00 XX 00000 2,575,000 2,561,120.27 17,386.58
00 XX 00000 2,500,000 2,490,625.66 15,572.23
Monthly Gross Admini- Master Primary Net Loan Type (IO,
Debt Interest ative Fee Servicing Servicing Interest Balloon, IO
Control Service Rate Rate Fee Rate Fee Rate Rate Ball, ARD) Seasoning
1 5.2000% 0.0219% 0.0100% 0.0100% 5.1781% Amort Balloon 0
2 30,785.86 6.2500% 0.0219% 0.0100% 0.0100% 6.2281% Amort Balloon 5
3 73,962.50 4.3770% 0.0369% 0.0100% 0.0250% 4.3401% Interest Only 7
4 6.8500% 0.0219% 0.0100% 0.0100% 6.8281% Amort Balloon 0
5 6.1000% 0.0219% 0.0100% 0.0100% 6.0781% Amort Balloon 2
6 100,742.53 6.9980% 0.0219% 0.0100% 0.0100% 6.9761% Amort Balloon 0
6.01
6.02
6.03
6.04
6.05
6.06
6.07
7 19,418.08 6.7300% 0.0219% 0.0100% 0.0100% 6.7081% Amort Balloon 3
8 4.8850% 0.0219% 0.0100% 0.0100% 4.8631% Amort Balloon 0
9 51,036.11 7.2250% 0.0219% 0.0100% 0.0100% 7.2031% IO/Am Balloon 0
10 31,317.87 6.4130% 0.0219% 0.0100% 0.0100% 6.3911% Amort Balloon 1
11 5.8000% 0.0219% 0.0100% 0.0100% 5.7781% Amort Balloon 3
12 5.5900% 0.0219% 0.0100% 0.0100% 5.5681% Amort Balloon 3
13 18,083.07 6.0500% 0.0219% 0.0100% 0.0100% 6.0281% Amort Balloon 0
14 12,575.67 6.4500% 0.0219% 0.0100% 0.0100% 6.4281% Amort Balloon 1
15 23,980.71 7.2940% 0.0219% 0.0100% 0.0100% 7.2721% IO/Am Balloon 0
16 5.2600% 0.0219% 0.0100% 0.0100% 5.2381% Amort Balloon 0
17 6.7800% 0.0219% 0.0100% 0.0100% 6.7581% Amort Balloon 0
17.01
17.02
18 5.5050% 0.0719% 0.0100% 0.0600% 5.4331% Amort Balloon 0
19 5.7230% 0.0219% 0.0100% 0.0100% 5.7011% Amort Balloon 2
20 5.7800% 0.0219% 0.0100% 0.0100% 5.7581% Amort Balloon 2
21 5.7500% 0.0219% 0.0100% 0.0100% 5.7281% Amort Balloon 0
22 5.4000% 0.0219% 0.0100% 0.0100% 5.3781% Amort Balloon 0
23 5.1900% 0.0219% 0.0100% 0.0100% 5.1681% IO/Am Balloon 0
24 6.3500% 0.0919% 0.0100% 0.0800% 6.2581% Amort Balloon 3
25 18,992.39 7.0400% 0.0219% 0.0100% 0.0100% 7.0181% Amort Balloon 47
26 7.1500% 0.0219% 0.0100% 0.0100% 7.1281% Amort Balloon 0
27 5.8300% 0.0219% 0.0100% 0.0100% 5.8081% Amort Balloon 5
28 5.8500% 0.0219% 0.0100% 0.0100% 5.8281% Amort Balloon 5
29 5.9000% 0.0219% 0.0100% 0.0100% 5.8781% Amort Balloon 4
30 7.4500% 0.0219% 0.0100% 0.0100% 7.4281% Amort Balloon 10
31 7.2500% 0.0219% 0.0100% 0.0100% 7.2281% Amort Balloon 0
32 6.1800% 0.0219% 0.0100% 0.0100% 6.1581% Amort Balloon 4
33 5.9600% 0.0219% 0.0100% 0.0100% 5.9381% Amort Balloon 3
34 6.0000% 0.0219% 0.0100% 0.0100% 5.9781% Amort Balloon 0
35 7.6500% 0.0219% 0.0100% 0.0100% 7.6281% Amort Balloon 0
36 6.4400% 0.0219% 0.0100% 0.0100% 6.4181% Amort Balloon 4
36.01
36.02
36.03
36.04
36.05
36.06
36.07
37 6.1900% 0.0219% 0.0100% 0.0100% 6.1681% Amort Balloon 1
38 5.9900% 0.0219% 0.0100% 0.0100% 5.9681% Amort Balloon 0
39 6.0840% 0.0219% 0.0100% 0.0100% 6.0621% Amort Balloon 2
40 6.5000% 0.0219% 0.0100% 0.0100% 6.4781% Amort Balloon 4
41 5.8700% 0.0219% 0.0100% 0.0100% 5.8481% Amort Balloon 6
42 6.3500% 0.0219% 0.0100% 0.0100% 6.3281% Amort Balloon 0
43 5.3400% 0.0219% 0.0100% 0.0100% 5.3181% Amort Balloon 0
44 6.2900% 0.0869% 0.0100% 0.0750% 6.2031% Amort Balloon 4
45 5.9500% 0.0219% 0.0100% 0.0100% 5.9281% Amort Balloon 3
46 6.2700% 0.0819% 0.0100% 0.0700% 6.1881% Amort Balloon 5
47 5.8500% 0.0219% 0.0100% 0.0100% 5.8281% Amort Balloon 6
48 6.7500% 0.1119% 0.0100% 0.1000% 6.6381% Amort Balloon 9
49 7.8000% 0.0719% 0.0100% 0.0600% 7.7281% Amort Balloon 17
50 5.9710% 0.0219% 0.0100% 0.0100% 5.9491% Amort Balloon 0
51 6.9200% 0.0219% 0.0100% 0.0100% 6.8981% Amort Balloon 6
52 5.9200% 0.0219% 0.0100% 0.0100% 5.8981% Amort Balloon 4
53 5.8000% 0.0219% 0.0100% 0.0100% 5.7781% Amort Balloon 4
54 5.5000% 0.0219% 0.0100% 0.0100% 5.4781% Amort Balloon 0
55 7.3700% 0.0219% 0.0100% 0.0100% 7.3481% Amort Balloon 13
56 6.7900% 0.0219% 0.0100% 0.0100% 6.7681% Amort Balloon 18
57 6.1600% 0.0219% 0.0100% 0.0100% 6.1381% Amort Balloon 1
58 6.2520% 0.0219% 0.0100% 0.0100% 6.2301% Amort Balloon 1
59 6.2520% 0.0219% 0.0100% 0.0100% 6.2301% Amort Balloon 1
60 5.6500% 0.0219% 0.0100% 0.0100% 5.6281% Amort Balloon 3
61 5.8900% 0.0719% 0.0100% 0.0600% 5.8181% Amort Balloon 3
62 6.3000% 0.0219% 0.0100% 0.0100% 6.2781% Amort Balloon 6
63 5.9350% 0.0219% 0.0100% 0.0100% 5.9131% Amort Balloon 2
64 7.5300% 0.0219% 0.0100% 0.0100% 7.5081% Amort Balloon 15
65 6.6600% 0.0219% 0.0100% 0.0100% 6.6381% Amort Balloon 9
66 6.1200% 0.0219% 0.0100% 0.0100% 6.0981% Amort Balloon 6
66.01
66.02
67 5,512.22 6.2000% 0.0719% 0.0100% 0.0600% 6.1281% Amort Balloon 0
68 6.0140% 0.0219% 0.0100% 0.0100% 5.9921% Amort Balloon 3
69 5.8500% 0.0219% 0.0100% 0.0100% 5.8281% Amort Balloon 0
70 7.3300% 0.1119% 0.0100% 0.1000% 7.2181% Amort Balloon 9
71 6.5000% 0.0219% 0.0100% 0.0100% 6.4781% Amort Balloon 4
72 6.3600% 0.0219% 0.0100% 0.0100% 6.3381% Amort Balloon 4
Original
Term to Stated Remaining
Control_N Maturity Term to Original Interest Original Amortization Remaining Interest
Rate (mos) Maturity (mos.) Only Term (mos.) on Term (mos.) Only Period (mos.)
1 60 60 0 360 0
2 120 115 0 360 0
3 60 53 60 NA 53
4 120 120 0 360 0
5 120 118 0 360 0
6 84 84 0 300 0
6.01
6.02
6.03
6.04
6.05
6.06
6.07
7 120 117 0 360 0
8 60 60 0 360 0
9 84 84 24 360 24
10 120 119 0 360 0
11 120 117 0 360 0
12 120 117 0 360 0
13 120 120 0 360 0
14 120 119 0 360 0
15 84 84 36 360 36
16 120 120 0 360 0
17 84 84 0 360 0
17.01
17.02
18 120 120 0 360 0
19 120 118 0 360 0
20 120 118 0 360 0
21 120 120 0 360 0
22 120 120 0 360 0
23 120 120 24 360 24
24 120 117 0 360 0
25 180 133 0 300 0
26 120 120 0 240 0
27 120 115 0 360 0
28 120 115 0 360 0
29 84 80 0 360 0
30 120 110 0 360 0
31 120 120 0 240 0
32 120 116 0 360 0
33 120 117 0 360 0
34 120 120 0 360 0
35 120 120 0 240 0
36 120 116 0 360 0
36.01
36.02
36.03
36.04
36.05
36.06
36.07
37 120 119 0 360 0
38 120 120 0 360 0
39 120 118 0 360 0
40 120 116 0 360 0
41 120 114 0 360 0
42 120 120 0 300 0
43 120 120 0 360 0
44 120 116 0 360 0
45 120 117 0 360 0
46 120 115 0 300 0
47 120 114 0 360 0
48 84 75 0 360 0
49 120 103 0 360 0
50 120 120 0 360 0
51 120 114 0 300 0
52 120 116 0 360 0
53 120 116 0 360 0
54 120 120 0 360 0
55 120 107 0 360 0
56 120 102 0 360 0
57 120 119 0 360 0
58 120 119 0 300 0
59 120 119 0 300 0
60 120 117 0 360 0
61 120 117 0 360 0
62 120 114 0 360 0
63 120 118 0 324 0
64 120 105 0 360 0
65 120 111 0 360 0
66 120 114 0 300 0
66.01
66.02
67 120 120 0 360 0
68 120 117 0 360 0
69 120 120 0 360 0
70 120 111 0 360 0
71 120 116 0 300 0
72 120 116 0 360 0
Ownership Interest
Control_N Remaining Amortization Interest Accrual (Fee/Leasehold) Mortgage
Rate on Term (mos.) Method (Actual/360) Fee Simple/Leasehold Loan Seller
1 360 Actual/360 Fee Simple/Leasehold GCFP
2 355 Actual/360 Fee Simple GCFP
3 NA Actual/360 Fee Simple GCFP
4 360 Actual/360 Leasehold GCFP
5 358 Actual/360 Leasehold GCFP
6 300 Actual/360 GCFP
6.01 Leasehold
6.02 Fee Simple
6.03 Fee Simple
6.04 Fee Simple
6.05 Fee Simple
6.06 Fee Simple
6.07 Fee Simple
7 357 Actual/360 Fee Simple GCFP
8 360 Actual/360 Fee Simple GCFP
9 360 Actual/360 Fee Simple GCFP
10 359 Actual/360 Fee Simple GCFP
11 357 Actual/360 Fee Simple GCFP
12 357 Actual/360 Fee Simple GCFP
13 360 Actual/360 Fee Simple GCFP
14 359 Actual/360 Leasehold GCFP
15 360 Actual/360 Fee Simple GCFP
16 360 Actual/360 Fee Simple GCFP
17 360 Actual/360 GCFP
17.01 Fee Simple
17.02 Fee Simple
18 360 Actual/360 Fee Simple GCFP
19 358 Actual/360 Fee Simple GCFP
20 358 Actual/360 Fee Simple GCFP
21 360 Actual/360 Fee Simple GCFP
22 360 Actual/360 Fee Simple GCFP
23 360 Actual/360 Fee Simple GCFP
24 357 Actual/360 Fee Simple GCFP
25 253 30/360 Fee Simple GCFP
26 240 Actual/360 Fee Simple GCFP
27 355 Actual/360 Fee Simple GCFP
28 355 Actual/360 Fee Simple GCFP
29 356 Actual/360 Fee Simple GCFP
30 350 Actual/360 Fee Simple GCFP
31 240 Actual/360 Fee Simple GCFP
32 356 Actual/360 Fee Simple GCFP
33 357 Actual/360 Fee Simple GCFP
34 360 Actual/360 Fee Simple GCFP
35 240 Actual/360 Fee Simple GCFP
36 356 Actual/360 GCFP
36.01 Fee Simple
36.02 Fee Simple
36.03 Fee Simple
36.04 Fee Simple
36.05 Fee Simple
36.06 Fee Simple
36.07 Fee Simple
37 359 Actual/360 Leasehold GCFP
38 360 Actual/360 Fee Simple GCFP
39 358 Actual/360 Fee Simple GCFP
40 356 Actual/360 Fee Simple/Leasehold GCFP
41 354 Actual/360 Fee Simple GCFP
42 300 Actual/360 Fee Simple GCFP
43 360 Actual/360 Fee Simple GCFP
44 356 Actual/360 Fee Simple GCFP
45 357 Actual/360 Fee Simple GCFP
46 295 Actual/360 Fee Simple GCFP
47 354 Actual/360 Fee Simple GCFP
48 351 Actual/360 Fee Simple GCFP
49 343 Actual/360 Fee Simple GCFP
50 360 Actual/360 Leasehold GCFP
51 294 Actual/360 Fee Simple GCFP
52 356 Actual/360 Fee Simple GCFP
53 356 Actual/360 Fee Simple GCFP
54 360 Actual/360 Fee Simple GCFP
55 347 Actual/360 Fee Simple GCFP
56 342 Actual/360 Fee Simple GCFP
57 359 Actual/360 Fee Simple GCFP
58 299 Actual/360 Fee Simple GCFP
59 299 Actual/360 Fee Simple GCFP
60 357 Actual/360 Fee Simple GCFP
61 357 Actual/360 Fee Simple GCFP
62 354 Actual/360 Fee Simple GCFP
63 322 Actual/360 Fee Simple GCFP
64 345 Actual/360 Fee Simple GCFP
65 351 Actual/360 Fee Simple GCFP
66 294 Actual/360 GCFP
66.01 Fee Simple
66.02 Fee Simple
67 360 Actual/360 Fee Simple GCFP
68 357 Actual/360 Fee Simple GCFP
69 360 Actual/360 Fee Simple GCFP
70 351 Actual/360 Fee Simple GCFP
71 296 Actual/360 Fee Simple GCFP
72 356 Actual/360 Leasehold GCFP
Crossed With Affiliated with
Control_N Prepayment Provisions Other Loans Other Loans
Rate (# of payments) (Crossed Group) (Affiliated Group)
1L(24),D(32),O(4) NA NA
2L(29),D(87),O(4) NA NA
3L(31),D(25),O(4) NA NA
4L(24),D(92),O(4) NA NA
5L(26),D(90),O(4) NA NA
6L(24),D(57),O(3) NA NA
6.0 1
6.0 2
6.0 3
6.0 4
6.0 5
6.0 6
6.0 7
7L(27),D(89),O(4) NA NA
8L(24),D(33),O(3) NA NA
9L(24),D(56),O(4) XX XX
0 0X(00),X(00),X(0) XX XX
0 0X(00),X(00),X(0) XX XX
0 2L(27),D(89),O(4) NA NA
1 3L(23),D(93), O(4) NA Yes (a)
1 4L(25),D(91),O(4) NA XX
0 0X(00),X(00),X(0) XX XX
0 0X(00),X(00),X(0) XX XX
0 7L(24),D(56),O(4) NA NA
17.0 1
17.0 2
1 8L(24),D(92),O(4) NA XX
0 0X(00),X(00),X(0) XX XX
0 0X(00),X(00),X(0) XX XX
0 1L(24),D(92),O(4) NA NA
2 2L(23),D(93), O(4) NA XX
0 0X(00),X(00),X(0) XX XX
0 0X(00),X(00),X(0) XX XX
0 5L(59),GRTR1%orYM(120),O(1) NA XX
0 0X(00),X(00),X(0) XX XX
0 0X(00),X(00),X(0) XX XX
0 8L(29),D(87),O(4) NA NA
2 9L(28),D(52),O(4) NA Yes (a)
3 0L(34),D(82),O(4) NA XX
0 0X(00),X(00),X(0) XX XX
0 0X(00),X(00),X(0) XX XX
0 3L(27),D(89),O(4) NA Yes (b)
3 4L(24),D(92),O(4) NA Yes (a)
3 5L(24),D(92),O(4) NA NA
3 6L(28),D(88),O(4) NA NA
36.0 1
36.0 2
36.0 3
36.0 4
36.0 5
36.0 6
36.0 7
3 7L(25),D(91),O(4) NA XX
0 0X(00),X(00),X(0) XX XX
0 0X(00),X(00),X(0) XX XX
0 0L(28),D(88),O(4) NA XX
0 0X(00),X(00),X(0) XX XX
0 0X(00),X(00),X(0) XX XX
0 3L(24),D(92),O(4) NA NA
4 4L(59),GRTR1%orYM(57),O(4) NA NA
4 5L(27),D(89),O(4) NA Yes (b)
4 6L(29),D(87),O(4) NA XX
0 0X(00),X(00),X(0) XX XX
0 0X(00),XXXX0%xxXX(00),X(0) XX XX
0 9L(41),D(75),O(4) NA XX
0 0X(00),X(00),X(0) XX XX
0 0X(00),X(00),X(0) XX XX
0 2L(28),D(88),O(4) NA Yes ( c)
5 3L(28),D(85),O(7) NA Yes ( c)
5 4L(24),D(92),O(4) NA NA
5 5L(37),D(79),O(4) NA XX
0 0X(00),X(00),X(0) XX XX
0 0X(00),X(00),X(0) XX XX
0 8L(25),D(91),O(4) Yes Yes(d)
5 9L(25),D(91),O(4) Yes Yes(d)
6 0L(59),GRTR1%orYM(57),O(4) NA XX
0 0X(00),X(00),X(0) XX XX
0 0X(00),X(00),X(0) XX XX
0 3L(26),D(90),O(4) NA XX
0 0X(00),X(00),X(0) XX XX
0 0X(00),XXXX0%xxXX(00),X(0) XX XX
0 6L(30),D(86),O(4) NA NA
66.0 1
66.0 2
6 7L(24),D(92),O(4) NA XX
0 0X(00),X(00),X(0) XX XX
0 0X(00),XXXX0%xxXX(00),X(0) XX XX
0 0L(33),D(83),O(4) XX XX
0 0X(00),X(00),X(0) XX XX
0 0X(00),XXXX0%xxXX(00),X(0) XX XX
SCHEDULE II
SCHEDULE OF EXCEPTIONS TO MORTGAGE FILE DELIVERY
NO EXCEPTIONS
SCHEDULE III
SCHEDULE OF ENVIRONMENTALLY INSURED MORTGAGE LOANS
--------------------------------------------------------------------------------
Mortgage Loan Cut-off Date
Number Property Name Address Balance
--------------------------------------------------------------------------------
$13,935,174.08
Oakmonte Apartment Homes One Oakmonte Boulevard (senior
25 (limited coverage) Xxxxxxx, Xxx Xxxx 00000 portion)
--------------------------------------------------------------------------------
SCHEDULE IV
CLASS XP REFERENCE RATE SCHEDULE
Interest Accrual Class XP Reference
Period Payment Date Rate
------------------- ------------------ ----------------------
1 July 5, 2003 5.937372
2 August 5, 2003 6.136750
3 September 5, 2003 6.136697
4 October 5, 2003 5.937201
5 November 5, 2003 6.136567
6 December 5, 2003 5.937070
7 January 5, 2004 6.136434
8 February 5, 2004 5.936935
9 March 5, 2004 5.937041
10 April 5, 2004 6.136218
11 May 5, 2004 5.936716
12 June 5, 2004 6.136077
13 July 5, 2004 5.936573
14 August 5, 2004 6.135932
15 September 5, 2004 6.135869
16 October 5, 2004 5.936361
17 November 5, 2004 6.135719
18 December 5, 2004 5.936209
19 January 5, 2005 5.936122
20 February 5, 2005 5.936053
21 March 5, 2005 5.936518
22 April 5, 2005 6.135295
23 May 5, 2005 5.935782
24 June 5, 2005 6.135132
25 July 5, 2005 5.950345
26 August 5, 2005 6.150187
27 September 5, 2005 6.150118
28 October 5, 2005 5.950114
29 November 5, 2005 6.149954
30 December 5, 2005 5.949947
31 January 5, 2006 5.949850
32 February 5, 2006 5.949776
33 March 5, 2006 5.950301
34 April 5, 2006 6.149487
35 May 5, 2006 5.949476
36 June 5, 2006 6.149306
37 July 5, 2006 5.949293
38 August 5, 2006 6.149102
39 September 5, 2006 6.149005
40 October 5, 2006 5.948975
41 November 5, 2006 6.148778
42 December 5, 2006 5.948747
43 January 5, 2007 5.948617
44 February 5, 2007 5.948513
45 March 5, 2007 5.949071
46 April 5, 2007 6.148143
47 May 5, 2007 5.948110
48 June 5, 2007 6.147896
49 July 5, 2007 5.947862
50 August 5, 2007 6.147643
51 September 5, 2007 6.147529
52 October 5, 2007 5.947492
53 November 5, 2007 6.147267
54 December 5, 2007 6.062196
55 January 5, 2008 6.265764
56 February 5, 2008 6.062220
57 March 5, 2008 6.062495
58 April 5, 2008 6.265805
59 May 5, 2008 6.062248
60 June 5, 2008 6.265834
61 July 5, 2008 6.201106
62 August 5, 2008 6.408978
63 September 5, 2008 6.408973
64 October 5, 2008 6.201071
65 November 5, 2008 6.408952
66 December 5, 2008 6.201042
67 January 5, 2009 6.201022
68 February 5, 2009 6.201010
69 March 5, 2009 6.201842
70 April 5, 2009 6.408879
71 May 5, 2009 6.200946
72 June 5, 2009 6.408851
73 July 5, 2009 6.198722
74 August 5, 2009 6.406522
75 September 5, 2009 6.406509
76 October 5, 2009 6.198663
77 November 5, 2009 6.406474
78 December 5, 2009 6.198617
79 January 5, 2010 6.198590
80 February 5, 2010 6.198569
81 March 5, 2010 6.204955
82 April 5, 2010 6.363916
83 May 5, 2010 6.082576
84 June 5, 2010 6.286013
SCHEDULE V
SCHEDULE OF INITIAL DIRECTING HOLDER FOR EACH LOAN PAIR
--------------------------------------------------------------------------------
Mortgage Loan
Number Property Name Directing Holder Address
--------------------------------------------------------------------------------
2 Central Park & Harborview 000 Xxxxxxxxx Xxxx
Xxxxxxx Village Commercial Holdings Xxxxxxxxx, XX 00000
I, LLC Attention: Xxxx Xxxx
Facsimile: (203)
618-2134
--------------------------------------------------------------------------------
6 Windsor Capital Anthracite Capital, c/o Blackrock
Portfolio Inc. Financial
Management, Inc.
00 X. 00xx Xx., 0xx
Xxxxx
Xxxxxxxxx: Xxxxxxx
Xxxx
Fax: (000) 000-0000
--------------------------------------------------------------------------------
7 Tide Point Office Harborview 000 Xxxxxxxxx Xxxx
Xxxxxxxxxx Xxxxxxxx Xxxxxxxxx, XX 00000
I, LLC Attention: Xxxx Xxxx
Facsimile: (203)
618-2134
--------------------------------------------------------------------------------
0 Xxxxxxx Xxxxx Xxxxxx Xxxxxxxxxx 600 Steamboat Road
Commercial Holdings Xxxxxxxxx, XX 00000
I, LLC Attention: Xxxx Xxxx
Facsimile: (203)
618-2134
--------------------------------------------------------------------------------
00 Xxxxxxxx Xxxxxxxx Xxxxxxxxxx 000 Xxxxxxxxx Xxxx
Xxxxxx Xxxxxxxxxx Xxxxxxxx Xxxxxxxxx, XX 00000
I, LLC Attention: Xxxx Xxxx
Facsimile: (203)
618-2134
--------------------------------------------------------------------------------
15 2nd & Xxxxxxxxx Harborview 000 Xxxxxxxxx Xxxx
Xxxxxxxxxx Xxxxxxxx Xxxxxxxxx, XX 00000
I, LLC Attention: Xxxx Xxxx
Facsimile: (203)
618-2134
--------------------------------------------------------------------------------
SCHEDULE VI
SUPPLEMENTAL SERVICER SCHEDULE
Control_
Number Loan Name Property Name
1 Xxxxxx Xxxxx Xxxx Xxxxxx Xxxxx Xxxx
0 Xxxxxxx Xxxx and Waverly Village Central Park and Waverly Village
3 000 Xxxxx Xxxxxx Xxxxx 000 Xxxxx Xxxxxx Xxxxx
4 Oxmoor Center Mall Oxmoor Center Mall
5 Harlem USA Harlem USA
0 Xxxxxxx Xxxxxxx Xxxxxxxx Xxxxxxx Capital Porfolio
6.01 Embassy Suites Brea & Embassy Court Brea
6.02 Embassy Suites Orange County Airport
6.03 Marriott Walnut Creek
6.04 Embassy Suites San Xxxx Obispo
6.05 Embassy Suites Temecula
6.06 Embassy Suites Lompoc
6.07 Radisson Suites Farmington Hills
7 Tide Point Office Tide Point Office
8 Mountain Heights Center Mountain Heights Center
0 Xxxxxxx Xxxxx Xxxxxx Xxxxxxx Xxxxx Xxxxxx
00 Xxxxxxxx Xxxxxxxx Xxxxxx Xxxxxxxx Xxxxxxxx Xxxxxx
11 National City Xxxxx Xxxxxxxx Xxxx Xxxxx
00 Xxxxxxx XXX Rosebud MHC
13 000 Xxxxx Xxxxxxxx 000 Xxxxx Xxxxxxxx
00 Xxxxxxxx Xxxxx Xxxxxxxx Xxxxx
00 2nd & Xxxxxxxxx 2nd & Xxxxxxxxx
00 Xxxxxxx Xxxxxxx Xxxxxx Xxxxxxx Gateway Center
00 Xxxxxxxxx Xxxxx & Xxxxxxx Xxxx Xxxxxx Xxxxxxxxx Plaza & Xxxxxxx Oaks Atrium
17.01 Xxxxxxx Oaks Atrium
17.02 West Hills
18 Tysons Office Center Xxxxxx Xxxxxx Xxxxxx
00 Xxxx Xxxxx Xxxx Xxxxx
20 Southport Commons Southport Commons
00 Xxxxx Xxxxx Xxxx Xxxxxx Xxxxx Xxxxx Xxxx Center
22 One Broadway One Broadway
23 000 Xxxxxxxxx Xxx 000 Xxxxxxxxx Xxx
00 Xxxxxxxx Xxxxx Xxxxxxxx Xxxxx
25 Oakmonte Apartment Homes Oakmonte Apartment Homes
26 Cinemark Retail Center Cinemark Retail Center
00 Xxxxxxxxx Xxxx Xxxxxxxxxx Xxxxxxxxx Xxxx Apartments
28 Xxxxxx Xxxx Plaza Xxxxxx Xxxx Plaza
29 Xxxxxxxx Business Center Xxxxxxxx Business Center
00 Xxxxxxx Xxxxx Xxxxxxxx Xxxxxx Xxxxxxx Plaza Shopping Center
31 Wilmington Storage Wilmington Storage
00 Xxxxxxx Xxxxxxx XXX Xxxxxxx Xxxxxxx MHC
33 Four Hills Village Shopping Center Four Hills Village Shopping Center
34 Xxxxx Branch Tech Center Xxxxx Branch Tech Center
00 Xxxxx Xx. Xxxxxxx Xxxxx Xx. Xxxxxxx
36 GSL Portfolio GSL Portfolio
36.01 Tyco Valves and Controls
36.02 Illinois Tool Office Warehouse
36.03 Sulzer Facility
36.04 United Environmental Services
36.05 Cargo Crafting Office Warehouse
36.06 Bechtel Office / Warehouse
36.07 The Xxxxxxx Co. (ICI Paints)
37 000 X. Xxxxxx Xxxxxx 000 X. Xxxxxx Xxxxxx
38 000 Xxxxx Xxxx Xxxxxx 000 Xxxxx Xxxx Xxxxxx
00 Xxxxxxx Xxxxx Xxxxxxx Plaza
40 Horizon Pacific Center Horizon Pacific Center
00 Xxxxxxxxxx Xxxxxxxxxx Xxxxxxxxxx Apartments
42 Plaza at Chapel Hill Plaza at Chapel Hill
43 Bed Bath & Beyond Bed Bath & Beyond
44 Corona Corporate Center II Corona Corporate Center II
00 Xxxxxxxxx Xxxxxx Xxxxxxxxx Xxxxxx
46 Corona Industrial Building Corona Industrial Building
47 Charleston Pines Apartments Charleston Pines Apartments
48 000 Xxxxxxx Xxxxxx 000 Xxxxxxx Xxxxxx
49 Shores Professional Office Building Shores Professional Office Building
50 Price Self Storage Price Self Storage
51 Palm Plaza Shopping Center Palm Xxxxx Xxxxxxxx Xxxxxx
00 Xxxxx Xxxxxxx Xxxxx Xxxxxxx
00 Xxxxxx Xxxxxxx Xxxxxx Xxxxxxx
00 Xxxxxx Xxxxxx Xxxxxx Xxxxxx
55 Plaza Xxx Xxxxxx Xxxxxxxx Xxxxx Xxx Xxxxxx Xxxxxxxx
00 Xxxxxxxxx Xxxxxx Greystone Centre
57 Jamestown South Office Building Jamestown South Office Building
58 Autocam Corporation - Kentwood Autocam Corporation - Kentwood
59 Autocam Corporation - Xxxxxxxx Autocam Corporation - Xxxxxxxx
00 Xxxxxxx Xxxxx Xxxxxxxxxx Xxxxxxx Xxxxx Apartments
00 Xxxxx Xxxxx Xxxxxxxxxx Xxxxx Xxxxx Apartments
62 Fresno Street Office Fresno Street Office
63 Iron Gate Mega Self Storage Iron Gate Mega Self Storage
64 0000 Xxxxxxx Xxxxxxx 0000 Xxxxxxx Xxxxxxx
65 University & Xxxxxxx University & Xxxxxxx
66 455 Pennsylvania Avenue & Rock Hill Office 455 Pennsylvania Avenue & Rock Hill Office
66.01 000 Xxxxxxxxxxxx Xxxxxx
66.02 Rock Hill Medical Office Building
67 Philamer Apartments Philamer Apartments
68 Captain's Corner Shopping Center Captain's Xxxxxx Xxxxxxxx Xxxxxx
00 Xxxxxxxxxxx Xxxxxx Xxxxxxxxxxx Xxxxxx
70 Statewide Self Storage Statewide Self Storage
71 Flamingo Paradise Self-Storage Facility Flamingo Paradise Self-Storage Facility
72 Park 2000 - Buildings M, N and P Park 2000 - Buildings M, N and P
Control_ General Detailed
Number Property Type Property Type Borrower Name
1 Retail Anchored Retail PASSCO COLIMA, LLC and PASSCO PHM, LLC
2 Retail Anchored Retail Fredericksburg 35, LLC
3 Office Office Xxxxxx 311 Xxxxxx Investors III, LLC
4 Retail Anchored Retail Xxxxxx Oxmoor, LLC
5 Retail Anchored Retail HUSA Management Co., LLC
6 Hospitality Full Service Hotel Xxxxxxx Partners: Walnut Creek Venture, LTD;
Temecula Venture, LTD; San Xxxx Obispo Venture,
LTD; LOMPOC Venturge County Venture, LT
6.01 Hospitality Full Service Hotel
6.02 Hospitality Full Service Hotel
6.03 Hospitality Full Service Hotel
6.04 Hospitality Full Service Hotel
6.05 Hospitality Full Service Hotel
6.06 Hospitality Full Service Hotel
6.07 Office Office Hull Point Funding, LLC
7 Office Office Transwestern Mountain Heights, L.
8 Office Office Pioneer Plaza, LLC
9 Office Xxxxxx 0000 X Xxxxxx, XXX
00 Xxxxxx Xxxxxx XX Plaza, LLC and NCP-Park Avenue, LLC
11 Mobile Home Park Mobile Home Park Rosebud MHC LLC
00 Xxxxxx Xxxxxx 000 Xxxxx Xxxxxxxx LLC
13 Office Office Xxxxxxx Development LLC
14 Office Office 2nd & Xxxxxxxxx, LLC
15 Retail Anchored Retail Xxxxxx Ontario, LLC
16 Westoaks Associates, LP
17 Office Office
17.01 Office Office
17.02 Office Office 8133 Leesburg Pike, LLC
18 Retail Anchored Retail Lion Center, LLC
19 Retail Anchored Retail DAB Investments - Southport Commons, LLC
20 Retail Anchored Retail Woodmont Missoula, L.P.
21 Office Office Logany, LLC
22 Mixed Use Retail / Multifamily 239 Greenwich Associates Limited Partnership
23 Retail Anchored Retail Flamingo East LTD
24 Multifamily Multifamily - Garden Oakmonte Apartment Homes, LLC
25 Retail Anchored Retail CA II, LLC
26 Multifamily Multifamily - Garden Woodlands West Apartment Homes, LLC
27 Office Office Xxxxxx Xxxx Plaza, L.P.
28 Industrial Flex Xxxxxxxx Business Center LLC
29 Retail Unanchored Retail S & S Gateway, L.L.C.
30 Industrial Warehouse Polar Port Group, LLC
31 Mobile Home Park Mobile Home Park Parkway Village Associates, L.P.
32 Retail Anchored Retail Four Hills Station LLC
33 Industrial Flex Sealy Xxxxx Branch, LP
34 Hospitality Limited Service Hotel Royal St. Xxxxxxx Hotel, LLC
35 GSL Partners SUB SEVEN, L.P.
36 Industrial Warehouse
36.01 Industrial Warehouse
36.02 Industrial Warehouse
36.03 Industrial Warehouse
36.04 Industrial Warehouse
36.05 Industrial Warehouse
36.06 Industrial Warehouse
36.07 Office Office 000 X. Xxxxxx, LLC
37 Office Office 000 Xxxxx Xxxx Xxxxxx LLC
38 Retail Anchored Retail Gateway Plaza LLC
39 Office Office Horizon Pacific Investors, LLC
40 Multifamily Multifamily - Garden TR Associates of Nottingham, L.P.
41 Retail Anchored Retail Plaza Chapel Hill East Co.
42 Retail Anchored Retail SFLP TYSONS LLC, MFS TYSONS LLC, ABS TYSONS LLC,
43 and MFS-ABS TYSONS LLC
44 Office Office Xxxxxx Holdings LLC
45 Retail Anchored Retail Lafayette Station LLC
46 Industrial Industrial EPUS LLC
47 Multifamily Multifamily - Garden Espada Property Management LLC
48 Office Office 789 Xxxxxxx, LLC
49 Office Office Shores Professional Building, LLC
50 Self Storage Self Storage Price Self Storage San Xxxx Capistrano, LLC
51 Retail Anchored Retail Weslaco Palm Plaza, Ltd
52 Mobile Home Park Mobile Home Park Tudor Estates Associates LP
53 Mobile Home Park Mobile Home Park Forest Xxxxxxx Associates, LP
54 Retail Anchored Retail Market Square Shopping Center, LLC
55 Office Office Xxxxx Drive, LLC
56 Mixed Use Mixed Use Xxxxxx Properties Centre, LLC
57 Office Office Jamestowne South LLC
58 Industrial Industrial S. Pulitzer Kentwood, LLC, M. Pulitzer Kentwood, LLC,
Xxxxxxxxx Kentwood, LLC, Xxxxx Kentwood, LLC, Xxxxxxx
Kentwood, LLC and Kentwood Manager, LLC
59
60
61 Industrial Industrial S. Pulitzer Marshall, LLC, M. Pulitzer Xxxxxxxx, LLC,
Xxxxxxxxx Xxxxxxxx, LLC, Xxxxx Xxxxxxxx, LLC, Xxxxxxx
Xxxxxxxx, LLC and Xxxxxxxx Manager, LLC
62
63
64 Multifamily Multifamily - Garden Ling Chelsea Creek LLC
65 Multifamily Multifamily - Garden Xxxxxx Properties Partnership III, GP
66 Office Office Xxxxxxx, Xxxxx & Xxxxxx VI, LLC
66.01 Self Storage Self Storage Iron Gate Partners I, LLC
66.02 Retail Single Tenant Retail AEROBIC (MO) LLC
67 Retail Shadow Anchored Retail Xxxxxxx Holdings IX, L.L.C.
68 Grandview Investors, II, L.P. and 455
69 Office Associates, L.P.
70 Office Office
71 Office Office
72 Multifamily Multifamily - Garden Philamvest Corporation
Retail Anchored Retail Captain's Corner LLC
Office Office FHS Las Vegas 3, LP
Self Storage Self Storage Ministorage/Hesperia, LLC
Self Storage Self Storage Xxxx Xxxx, LLC
Mixed Use Office / Warehouse XxXxxx V - M, N & P, LLC
Control_
Number Indemnitor
1 Passco Real Estate Enterprises, Inc., Xxxxxxx X. Xxxxx
2 Xxxx X. Xxxxxxxxx; Xxxx X. Silver; Xxx Xxxxxxx; Xxxx Xxxxx
0 Xxxxxx Xxxxxx Xxxx Xxxxxx Fund III, L.P.
4 D. Xxxxxxx Xxxxxx
5 Xxxx Xxxxxxxxx; Gotham Construction Company, L.L.C
6 Xxxxxxx X. Xxxxxxx
6.01
6.02
6.03
6.04
6.05
6.06
6.07
0 Xxxx Xxxxx, LLC; Xxxx X. Xxxxxxxx; SBER Development Services LLC
8 Aslan Realty Partners II, LP
9 Xxxxxxx X. Xxxxxx; Xxxxxxx Xxxx; Xxxx International Investment Kabushiki Kaisha
10 Xxxxxx X. Xxxxx; TRF Pacific, Inc.
11 Xxxxxx Xxxxxxx
12 Xxxxxx X. Xxxxx
13 Xxxxx Realty, LP; Xxxxxx-Xxxxx R.E. Fund III, LP; Xxxxxx-Xxxxx R.E. Parallel Fund III, LP
14 Xxxxx X. Xxxxxxx, Xx.
15 Xxxxx X. Xxxxxxxx
16 Lombardy Holdings, Inc.; Xxx Xxxxxxx
17 Xxxxx Real Estate Fund III, L.P.; Xxxxx Real Estate Fund II, L.P.; Xxxxx Properties, Inc.
17.01
17.02
18 Xxxxxx Xxxxxxx
19 Xxxxx X. Xxxx; Xxxxxx X. Xxxx
20 Xxx X. Xxxxx
21 Xxxxxxx Xxxxxx; Xxxxx X. Xxxxxxxxxx
22 Xxxxxxx Investment, LLC
23 Acadia Realty Limited Partnership
24 Xxxx Xxxxxxxxx, Xxxxx Xxxxxxxxx
25 Xxxxxxx X. Xxxxxxx; Xxxxxxx X. Xxxxxxx; Xxxxx Xxxxxxx; Xxxxx X. XxXxxxx
26 Xxxxxx X. Xxxxx
27 Xxxxxxxxx Group, Inc.; CGR Advisors, LLC
28 Xxxxxx X. Xxxxx
29 Xxxxxx Xxxxx; Xxxxxx-Xxxxx Real Estate Fund III, LP
30 C. Xxxxxxx Xxxxx, Jr.; Xxxxx Xxxxxx
31 White Bear Ventures, LLc; Polar Group Holdings, LLC; FSPP Freezer Property, LLC
32 Xxxx X. Xxxxxxxx
33 Xxxxxxxx Xxxxxx Ltd.
34 Xxxx X. Xxxxx; Xxxxx Xxxxx
35 Xxxxx X. Xxxxx, Xx.; Xxxxx X. Xxxxx, Xx.
36 Xxxxxx Xxxxxxxxxxx
36.01
36.02
36.03
36.04
36.05
36.06
36.07
37 Xxxxxx X. Xxxxxxxx
38 Xxxxxxx Xxxxxxx
39 Xxxxxxx Xxx; Xxxxx Xxxxxxx; Xxxxxxx X. X'Xxxxx
40 Xxxxxxx X. Xxxxxxxx
41 C. Xxxxxx Xxxxxxxx
42 Xxxxxxx X. Xxxx; Xxxxxxx X. Xxxxxxxx Xx.; Xxxxxxx Xxxxxxxx XX; Xxxxxx Xxxxx Xx.
43 Xxxx X. Xxxxxxx
44 Xxxxxx Xxxxxxxxx
45 Xxxxxxxx Xxxxxx Shopping Center Opportunity Fund, LLC; Xxxxxxxx Xxxxxx Ltd.
46 Wilfried Eibach; Xxxxx Eibach; Xxxx Xxxxxx
47 Xxxxx XxXxxxx
48 Xxxxxx Xxxxxxxx and Xxxxx Xxxxx
49 Xxxxxxxx X. Xxxxxxx
50 Xxxxx X. Xxxx; Xxxxxxx X. Xxxxxxxx
51 Xxxx X. Xxxxx
52 Xxxxxx Xxxxxxx; Xxxxxxx Xxxxxxxx
53 Xxxxxx Xxxxxxx; Xxxxxxx Xxxxxxxx
54 Xx. Xxxxxxx Xxxxxxxxxx; Dr. Xxxxxx Xxxxxxx; Xxxxxxx and Xxxxxxx Xxxxxxxxx
55 Xxxx X. Xxxxxxx
56 Xxxxxxx X. & Xxxxx X. Xxxxxx; Xxxx X. Xxxxxx; Xxxxxx X. Xxxxxx
57 Xxxxx X. Xxxxxxx, Xx.
00 Xxxxxxx X. Xxxxx
00 Xxxxxxx X. Xxxxx
60 Xxxxxxx X. Xxxxxx; Xxx Xxxx Xxxxxx; Xxxxxx X. Xxxxxx
61 SSSM, LLC; Xxxxxx Xxxxxx; Xxxxx Xxxxxxx
62 Xxx X. Xxxxxxx; Xxxxxx X. Xxxxx; Xxxxxxxx X. Xxxxxx
00 Xxxx Xxxxxxx; Xxx Xxxxxx; Xxxx Xxxxxx; Xxx Xxxxx; Xxxxxx Xxxxx; Xxxxxxx Xxxxxx; Xxxxxxxx Xxxxxx
64 Xxxxxx X. XxXxxx
00 Xxxxx X. & Xxxxx X. Xxxxxx; Xxxxx X. Xxxx; Xxxxxx X. & Xxxxx X. Xxxxxx
66 II (PA Trust); Xxxxxxx X. Xxxxxx, Xx.; Xxxxxxxx X. Xxxxx
66.01
66.02
67 Xxxxxxxx Xxxxxx, M.D.
68 Xxxx X. Xxxxx
69 Xxxxxxx X. Xxxxxxx ; Xxxx Xxxxxx; Xxxxxx Xxxx and Xxxxx Xxxx, trustees of King Trust; Xxxx Xxxxx Xxx
70 Stanford P.and Xxxxxxx Xxxxxx
71 Xxxxxxx X. Xxx
72 Xxxxxx X. Xxxxxxx, Xx.
Control_ Original Term to
Number Original Balance Cut-off Date Balance Seasoning Maturity (mos.)
1 92,000,000 92,000,000.00 0 60
2 80,000,000 79,630,319.29 5 120
3 72,500,000 72,500,000.00 7 60
4 60,900,000 60,900,000.00 0 120
5 57,000,000 56,898,031.87 2 120
6 55,000,000 55,000,000.00 0 84
6.01
6.02
6.03
6.04
6.05
6.06
6.07
7 40,000,000 39,910,722.26 3 120
8 39,600,000 39,600,000.00 0 60
9 35,000,000 35,000,000.00 0 84
10 34,000,000 33,974,796.89 1 120
11 32,000,000 31,910,587.66 3 120
12 29,000,000 28,914,977.09 3 120
13 28,000,000 28,000,000.00 0 120
14 25,400,000 25,381,364.86 1 120
15 23,500,000 23,500,000.00 0 84
16 22,400,000 22,400,000.00 0 120
17 21,850,000 21,850,000.00 0 84
17.01
17.02
18 21,300,000 21,300,000.00 0 120
19 20,900,000 20,859,348.63 2 120
20 19,800,000 19,761,966.60 2 120
21 18,000,000 18,000,000.00 0 120
22 18,000,000 18,000,000.00 0 120
23 16,000,000 16,000,000.00 0 120
24 15,440,000 15,402,133.09 3 120
25 14,922,500 13,935,174.08 47 180
26 13,900,000 13,900,000.00 0 120
27 13,825,000 13,755,452.24 5 120
28 13,270,000 13,203,510.97 5 120
29 13,000,000 12,946,793.35 4 84
30 13,000,000 12,910,872.73 10 120
31 12,000,000 12,000,000.00 0 120
32 11,250,000 11,206,338.72 4 120
33 10,880,000 10,850,711.52 3 120
34 10,500,000 10,500,000.00 0 120
35 10,200,000 10,200,000.00 0 120
36 10,164,000 10,126,468.38 4 120
36.01
36.02
36.03
36.04
36.05
36.06
36.07
37 9,575,000 9,567,455.62 1 120
38 9,400,000 9,400,000.00 0 120
39 9,250,000 9,233,392.87 2 120
40 8,500,000 8,468,972.99 4 120
41 8,000,000 7,953,046.27 6 120
42 7,700,000 7,700,000.00 0 120
43 7,500,000 7,500,000.00 0 120
44 7,300,000 7,272,257.56 4 120
45 7,275,000 7,255,370.06 3 120
46 7,250,000 7,200,555.75 5 120
47 6,880,000 6,839,451.04 6 120
48 6,500,000 6,452,211.22 9 84
49 6,300,000 6,229,678.95 17 120
50 6,200,000 6,200,000.00 0 120
51 6,200,000 6,155,228.28 6 120
52 5,825,000 5,801,249.28 4 120
53 5,250,000 5,228,103.51 4 120
54 4,850,000 4,850,000.00 0 120
55 4,650,000 4,608,171.26 13 120
56 4,500,000 4,433,569.71 18 120
57 4,400,000 4,396,505.02 1 120
58 2,800,000 2,796,600.06 1 120
59 1,600,000 1,598,057.18 1 120
60 4,357,500 4,344,897.82 3 120
61 4,300,000 4,288,233.60 3 120
62 4,100,000 4,078,027.54 6 120
63 4,000,000 3,990,605.80 2 120
64 3,800,000 3,761,887.49 15 120
65 3,750,000 3,721,881.47 9 120
66 3,700,000 3,669,418.04 6 120
66.01
66.02
67 3,600,000 3,600,000.00 0 120
68 3,550,000 3,540,564.12 3 120
69 3,000,000 3,000,000.00 0 120
70 2,625,000 2,608,049.96 9 120
71 2,575,000 2,561,120.27 4 120
72 2,500,000 2,490,625.66 4 120
Remaining
Control_ Stated Remaining Term Original Interest Original Amortization Interest Only
Number to Maturity (mos.) Only Term (mos.) Term (mos.) Period (mos.)
1 60 0 360 0
2 115 0 360 0
3 53 60 NA 53
4 120 0 360 0
5 118 0 360 0
6 84 0 300 0
6.01
6.02
6.03
6.04
6.05
6.06
6.07
7 117 0 360 0
8 60 0 360 0
9 84 24 360 24
10 119 0 360 0
11 117 0 360 0
12 117 0 360 0
13 120 0 360 0
14 119 0 360 0
15 84 36 360 36
16 120 0 360 0
17 84 0 360 0
17.01
17.02
18 120 0 360 0
19 118 0 360 0
20 118 0 360 0
21 120 0 360 0
22 120 0 360 0
23 120 24 360 24
24 117 0 360 0
25 133 0 300 0
26 120 0 240 0
27 115 0 360 0
28 115 0 360 0
29 80 0 360 0
30 110 0 360 0
31 120 0 240 0
32 116 0 360 0
33 117 0 360 0
34 120 0 360 0
35 120 0 240 0
36 116 0 360 0
36.01
36.02
36.03
36.04
36.05
36.06
36.07
37 119 0 360 0
38 120 0 360 0
39 118 0 360 0
40 116 0 360 0
41 114 0 360 0
42 120 0 300 0
43 120 0 360 0
44 116 0 360 0
45 117 0 360 0
46 115 0 300 0
47 114 0 360 0
48 75 0 360 0
49 103 0 360 0
50 120 0 360 0
51 114 0 300 0
52 116 0 360 0
53 116 0 360 0
54 120 0 360 0
55 107 0 360 0
56 102 0 360 0
57 119 0 360 0
58 119 0 300 0
59 119 0 300 0
60 117 0 360 0
61 117 0 360 0
62 114 0 360 0
63 118 0 324 0
64 105 0 360 0
65 111 0 360 0
66 114 0 300 0
66.01
66.02
67 120 0 360 0
68 117 0 360 0
69 120 0 360 0
70 111 0 360 0
71 116 0 300 0
72 116 0 360 0
Remaining
Control_ Amortization
Number Term (mos.) Monthly Tax Tax_Bal Monthly Ins Ins_Bal Monthly Replace
1 360 207,992.00 1,039,960.00 23,968.04 47,936.08 12,470.90
2 355 72,000.00 68,632.32 7,810.00 61,392.00 9,061.67
3 NA 778,333.33 2,460,103.84 136,453.97 1,092,084.02 21,350.00
4 360 55,885.07 335,310.45 18,356.43 73,425.75 8,857.90
5 358 22,198.94 110,994.70 11,940.00 60,443.50 3,898.36
6 300 90,243.17 180,486.34 29,238.00 146,190.00 166,996.00
6.01
6.02
6.03
6.04
6.05
6.06
6.07
7 357 85,782.52 171,565.04 6,645.39 79,744.66 5,089.67
8 360 7,980.59 63,844.73 9,598.66 100,343.15 6,615.00
9 360 32,552.64 130,210.54 9,246.69 83,220.23 5,068.91
10 359 44,383.00 443,830.00 24,904.00 124,520.00 4,664.93
11 357 67,870.08 407,220.49 7,794.17 77,941.67 0.00
12 357 127,127.97 508,511.90 15,138.08 181,657.00 5,843.97
13 360 53,333.33 213,333.33 4,540.93 18,163.71 4,054.17
14 359 29,815.91 0.00 13,949.58 0.00 5,883.38
15 360 21,192.75 21,192.75 3,163.50 19,981.00 1,271.56
16 360 36,168.17 144,672.68 1,936.25 3,872.50 1,451.00
17 360 23,652.92 96,611.69 14,205.67 142,056.74 3,137.64
17.01
17.02
18 360 21,915.75 131,494.50 2,575.00 13,179.28 2,561.83
19 358 24,726.84 49,453.68 5,342.72 10,685.44 4,305.00
20 358 25,750.00 334,750.00 3,503.03 10,509.09 1,667.13
21 360 17,576.79 17,576.79 2,403.08 46,987.18 2,052.00
22 360 68,755.08 550,040.67 3,714.08 44,620.00 3,048.32
23 360 30,356.35 95,073.16 3,429.52 0.00 5,333.33
24 357 7,349.91 44,099.48 1,291.71 6,500.00 437.50
25 253 11,231.03 76,617.23 0.00 0.00 0.00
26 240 32,187.50 0.00 815.42 9,500.00 1,636.50
27 355 12,685.45 50,741.80 9,850.00 37,239.00 9,625.00
28 355 32,776.92 163,884.60 5,271.88 26,359.40 2,650.00
29 356 24,640.54 145,176.65 5,083.33 64,207.97 2,392.00
30 350 28,126.50 27,963.00 3,397.72 37,374.89 4,220.00
31 240 14,239.58 85,437.50 3,179.50 19,077.00 2,564.08
32 356 6,778.45 54,227.61 1,798.55 18,371.59 1,150.00
33 357 3,210.63 19,263.79 8,240.00 16,480.00 12,652.81
34 360 10,935.00 21,848.44 0.00 0.00 2,140.00
35 240 24,215.43 145,292.60 1,025.71 1,025.71 2,725.55
36 356 19,498.33 76,820.81 2,018.08 51,243.70 2,399.58
36.01
36.02
36.03
36.04
36.05
36.06
36.07
37 359 29,293.63 29,293.63 2,996.36 17,978.14 1,761.22
38 360 797.13 4,926.49 2,993.84 1,314.13
39 358 9,716.00 48,571.53 2,314.23 14,529.71 732.87
40 356 1,482.77 1,482.77 1,934.26 11,078.03 1,583.50
41 354 16,238.89 97,433.34 6,932.76 48,529.32 8,254.17
42 300 18,390.44 18,390.44 0.00 0.00 3,686.08
43 360 6,676.56 40,059.37 371.88 4,462.50 0.00
44 356 6,759.61 20,362.26 1,255.20 2,620.32 977.00
45 357 17,013.00 119,091.00 0.00 0.00 3,815.00
46 295 8,864.42 62,926.15 2,101.17 8,404.67 1,673.00
47 354 5,984.12 16,267.50 5,264.27 0.00 4,166.67
48 351 7,632.00 46,336.45 1,475.00 5,162.57 0.00
49 343 10,767.50 81,344.11 1,228.40 6,740.20 760.12
50 360 6,213.00 31,065.00 1,368.92 16,427.04 732.50
51 294 13,123.83 65,077.61 1,599.67 27,194.35 3,020.58
52 356 10,006.51 60,039.06 1,405.95 28,416.31 1,258.33
53 356 4,235.39 38,118.50 1,414.79 28,511.76 1,008.33
54 360 2,629.61 21,036.88 1,958.07 11,748.42 1,467.17
55 347 4,860.93 9,195.69 1,035.52 9,231.46 0.00
56 342 7,430.51 74,305.10 3,891.94 49,234.94 2,950.00
57 359 2,963.31 23,112.81 1,183.25 8,423.23 891.78
58 299 7,193.75 50,356.25 1,025.19 2,050.39 560.25
59 299 3,255.23 16,276.15 2,646.34 18,524.38 760.33
60 357 7,104.04 35,520.20 2,129.25 14,904.75 1,325.82
61 357 5,484.25 43,874.00 4,877.00 16,212.00 4,426.28
62 354 5,320.00 10,640.00 1,005.00 6,030.00 2,428.00
63 322 3,349.04 6,501.35 886.23 5,021.38 370.00
64 345 5,840.00 17,520.00 676.50 2,029.50 824.08
65 351 0.00 0.00 0.00 0.00 800.67
66 294 4,109.21 13,988.12 432.00 5,616.00 410.80
66.01 7,278.92 45,553.29 1,017.08 10,525.95 727.50
66.02
67 360
68 357 9,101.08 63,707.56 1,953.91 7,815.64 1,473.75
69 360 3,147.83 12,921.44 678.58 6,000.00 428.17
70 351 2,374.00 8,112.88 816.00 6,534.00 0.00
71 296 1,832.76 9,163.80 736.59 2,157.90 674.17
72 356 2,315.82 11,579.10 0.00 0.00 563.56
Control_
Number Replace_Bal Monthly TI_LC TI_LC_Bal Repair_Bal Monthly Other
1 24,940.00 0.00 4,000,000.00 193,041.25 0.00
2 50,090.97 16,667.00 567,678.28 0.00 0.00
3 128,269.73 133,333.00 801,335.50 185,510.61 0.00
4 0.00 22,144.08 132,800.00 46,000.00 0.00
5 3,898.36 0.00 200,106.85 0.00 0.00
6 333,992.00 1,667.00 3,334.00 422,562.00 0.00
6.01
6.02
6.03
6.04
6.05
6.06
6.07
7 0.00 20,833.33 750,000.00 132,375.00 0.00
8 13,231.36 0.00 0.00 0.00
9 0.00 21,838.50 0.00 0.00 46,927.08
10 9,329.86 23,324.67 175,320.00 0.00 0.00
11 720,441.86 16,532.00 1,533,995.42
12 0.00 7,292.00 1,400,000.00 0.00 0.00
13 8,109.37 0.00 0.00 31,262.59
14 0.00 45,295.00 0.00 0.00 0.00
15 2,543.12 8,481.24 16,962.48 0.00 0.00
16 2,902.00 4,585.00 279,020.00 6,250.00 0.00
17 0.00 18,431.98 700,000.00 175,000.00 0.00
17.01
17.02
18 0.00 8,333.34 321,807.76 0.00 0.00
19 8,611.01 0.00 150,074.79 22,506.90 0.00
20 1,667.13
21 0.00 6,855.00 300,000.00 0.00 0.00
22 0.00 20,799.06 0.00 40,625.00 0.00
23 203,549.36 0.00 0.00 0.00 0.00
24 0.00 0.00 0.00 0.00
25 0.00 0.00 0.00 30,000.00 0.00
26 0.00 6,545.85 0.00 0.00 0.00
27 38,516.17 0.00 0.00 38,581.77
28 10,604.18 13,250.00 53,032.17
29 21,616.24 0.00 0.00
30 293,364.79 10,000.00 30,010.09 0.00
31 2,564.08 5,128.16 5,128.16 0.00 0.00
32 3,450.73 0.00 0.00 13,399.18
33 0.00 0.00 0.00 8,437.50 0.00
34 8,562.17 5,416.67 21,675.46 0.00 0.00
35 0.00 8,333.33 750,000.00 0.00 0.00
36 7,199.75 4,614.58 13,845.70 69,906.33
36.01
36.02
36.03
36.04
36.05
36.06
36.07
37 0.00 13,209.17 79,255.00 0.00 0.00
38 0.00 6,246.70 4,640.00 0.00 0.00
39 732.87 1,229.17 67,730.08 0.00 0.00
40 4,751.51 9,427.92 378,730.13
41 41,297.52 0.00 0.00 29,387.50
42 0.00 7,280.50 100,000.00 44,500.00 0.00
43 0.00 0.00 150,000.00 126,000.00 0.00
44 4,888.36 5,151.00 25,772.75 0.00
45 15,264.81 8,305.00 33,220.00 13,882.60
46 5,020.67 8,334.00 17,028.90 0.00 0.00
47 29,233.26 3,513.91
48 169,033.21 0.00 351,623.20 502,396.09 0.00
49 12,161.92 0.00 0.00 7,495.00 0.00
50 1,465.00 0.00 0.00 0.00 0.00
51 15,110.11 8,306.17 41,555.45 143,603.75
52 0.00
53 3,025.61
54 2,934.33 3,500.00 32,000.00 69,875.00 0.00
55 26,717.34 0.00 126,311.05 6.37
56 0.00 0.00 0.00 27,125.00 0.00
57 17,071.96 0.00 182,576.54
58 0.00 2,083.33 0.00
59 2,280.99 1,546.80 0.00 0.00 0.00
60 3,977.46 2,364.52 0.00 43,500.00 0.00
61 8,102.14 0.00 0.00 37,190.94 0.00
62 8,371.87 0.00 0.00 25,624.66 0.00
63 2,596.28 3,575.00 25,085.89 62,402.85
64 2,472.56
65 21,871.03 3,202.66 51,560.42 0.00
66 12,887.08 1,338.60 20,144.92 0.00
66.01 4,367.22 6,429.08 23,533.38 26,562.50 0.00
66.02
67
68 2,947.80 4,789.80 9,580.58 1,750.91
69 856.34 2,154.37 4,308.74 0.00 0.00
70 5,585.01 0.00 0.00 0.00
71 4,045.02 0.00 0.00 0.00 0.00
72 3,381.36 1,956.87 7,827.48 0.00 0.00
Control_
Number Other_Bal Other_Desc
1 30,600.00 Ground Lease Reserve
2 7,013,202.61 SPECIAL RESERVE ESCROW
3 1,601,841.14
4 0.00
5 2,471,411.12 K&G HOLDBACK
6 0.00
6.01
6.02
6.03
6.04
6.05
6.06
6.07
7 0.00
8
9 0.00 ADDITIONAL RESERVE
10 0.00
11
12 0.00
13
14 0.00 TI & LC HOLDBACK
15 500,000.00 Construction Reserve
16 0.00
17 0.00
17.01
17.02
18 0.00
19 125,062.33 SEISMIC RETROFIT HOLDBACK
20
21 0.00
22 0.00
23 0.00
24 0.00
25 0.00
26 0.00
27
28
29 MLS #00-0000000
30
31 0.00
32
33 100,000.00 Seasonality
34 53.45 Greenbacks Holdback
35 0.00
36
36.01
36.02
36.03
36.04
36.05
36.06
36.07
37 279,708.00 XXXXXXX HOLDBACK
38 0.00
39 1,116,356.67 EARNOUT HOLDBACK
40
41
42 0.00
43 0.00
44 0.00
45
46 0.00
47 Repairs are completed and awiting request and release
48 0.00
49 0.00
50 0.00 Ground Lease Reserve
51
52
53
54 0.00 Earthquake Insurance
55
56 0.00
57
58
59 0.00 Financial Filing
60 0.00 Financial Filing
61 0.00
62 0.00
63 Repairs are completed and awiting request and release
64
65 1,242.18
66 0.00 Initial Other = 25,400 + 5000
66.01
66.02
67
68
69 0.00
70 0.00
71 0.00 Financial Filing
72 0.00 Financial Filing
Control_
Number Grace Period Environmental Insurance Lockbox Cash Management
1 0 NAP Hard In Place
2 0 NAP Hard Springing
3 0 NAP Hard In Place
4 0 NAP Hard In Place
5 0 NAP Soft Springing
6 0 Hard In Place
6.01 NAP
6.02 NAP
6.03 NAP
6.04 NAP
6.05 NAP
6.06 NAP
6.07 NAP
7 0 NAP Hard In Place
8 0 NAP Hard Springing
9 0 NAP Hard In Xxxxx
00 0 NAP Hard In Xxxxx
00 0 XXX Xxxx Xx Xxxxx
00 0 NAP Soft Springing
13 0 NAP Hard Springing
14 0 NAP Hard Springing
15 0 NAP Hard In Xxxxx
00 0 NAP Hard Springing
17 0 Hard Springing
17.01 NAP
17.02 NAP
18 0 NAP Hard Springing
19 0 NAP NAP NAP
20 0 NAP Hard Springing
21 0 NAP Hard Springing
22 0 NAP Hard Springing
23 0 NAP Soft Springing
24 0 NAP NAP NAP
25 0 NAP NAP NAP
26 0 NAP Hard Springing
27 0 NAP NAP NAP
28 0 NAP NAP NAP
29 0 NAP NAP NAP
30 0 NAP NAP NAP
31 0 NAP Hard Springing
32 0 NAP NAP NAP
33 0 NAP NAP NAP
34 0 NAP Hard Springing
35 0 NAP Hard Springing
36 0 Hard Springing
36.01 NAP
36.02 NAP
36.03 NAP
36.04 NAP
36.05 NAP
36.06 NAP
36.07 NAP
37 0 NAP Hard Springing
38 0 NAP NAP NAP
39 0 NAP NAP NAP
40 0 NAP NAP NAP
41 0 NAP NAP NAP
42 0 NAP NAP NAP
43 0 NAP NAP NAP
44 0 NAP NAP NAP
45 0 NAP NAP NAP
46 0 NAP Hard Springing
47 0 NAP NAP NAP
48 0 NAP NAP NAP
49 0 NAP NAP NAP
50 0 NAP Soft Springing
51 0 NAP NAP NAP
52 0 NAP NAP NAP
53 0 NAP NAP NAP
54 0 NAP NAP NAP
55 0 NAP NAP NAP
56 0 NAP NAP NAP
57 0 NAP NAP NAP
58 0 NAP NAP NAP
59 0 NAP NAP NAP
60 0 NAP NAP NAP
61 0 NAP NAP NAP
62 0 NAP NAP NAP
63 0 NAP NAP NAP
64 0 NAP NAP NAP
65 0 NAP NAP NAP
66 0 NAP NAP
66.01 NAP
66.02 NAP
67 0 NAP NAP NAP
68 0 NAP NAP NAP
69 0 NAP NAP NAP
70 0 NAP NAP NAP
71 0 NAP NAP NAP
72 0 NAP NAP NAP
EXHIBIT A-1
FORM OF CLASS [A-1] [A-2] [A-3] [A-4] CERTIFICATE
COMMERCIAL MORTGAGE TRUST 2003-C1
CLASS [A-1] [A-2] [A-3] [A-4] COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2003-C1
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust (the "Trust") whose assets consist primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
GREENWICH CAPITAL COMMERCIAL FUNDING CORP.
Pass-Through Rate: [____]% Subject to the Initial Certificate Principal Balance of
Weighted Average Net Mortgage Rate this Certificate as of the Closing Date:
$_______________
Date of Pooling and Servicing Agreement: Class Principal Balance of all the Class
June 30, 2003 [A-1][A-2][A-3][A-4]-Certificates as of
the Closing Date:
$____________
Cut-off Date: June 1, 0000 Xxxxxxxxx unpaid principal balance of the
Mortgage Pool as of the Cut-off Date,
Closing Date: June 30, 2003 after deducting payments of principal due
on or before such date: $1,215,024,759
First Distribution Date: July 8, 2003
Master Servicer: Wachovia Bank, National Trustee: LaSalle Bank National
Association Association
Special Servicer: GMAC Commercial Fiscal Agent: ABN AMRO Bank N.V.
Mortgage Corporation
Certificate No. [B] [C] -___ CUSIP No.: _____________
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE TO (A) ANY
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION
4975 OF THE INTERNAL REVENUE CODE OF 1986 (THE "CODE") OR ANY MATERIALLY SIMILAR
PROVISION OF APPLICABLE FEDERAL, STATE OR LOCAL LAW, OR (B) ANY PERSON WHO IS
DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR ANY INTEREST HEREIN ON
BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, EXCEPT IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN GREENWICH
CAPITAL COMMERCIAL FUNDING CORP., WACHOVIA BANK, NATIONAL ASSOCIATION, GMAC
COMMERCIAL MORTGAGE CORPORATION, LASALLE BANK NATIONAL ASSOCIATION, ABN AMRO
BANK N.V., OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR
THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES OR ANY OTHER PERSON.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
principal balance of this Certificate (its "Certificate Principal Balance") as
of the Closing Date by the aggregate principal balance of all the Certificates
of the same Class as this Certificate (their "Class Principal Balance") as of
the Closing Date) in that certain beneficial ownership interest in the Trust
evidenced by all the Certificates of the same Class as this Certificate. The
Trust was created and the Certificates were issued pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among Greenwich
Capital Commercial Funding Corp. as depositor (the "Depositor", which term
includes any successor entity under the Agreement), Wachovia Bank, National
Association as master servicer (the "Master Servicer", which term includes any
successor entity under the Agreement), GMAC Commercial Mortgage Corporation as
special servicer (the "Special Servicer", which term includes any successor
entity under the Agreement), LaSalle Bank National Association as trustee (the
"Trustee", which term includes any successor entity under the Agreement) and ABN
AMRO Bank N.V. as fiscal agent (the "Fiscal Agent", which term includes any
successor entity under the Agreement), a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
the capitalized terms used herein have the respective meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound. In the event of any conflict between any provision of this
Certificate and any provision of the Agreement, such provision of this
Certificate shall be superseded to the extent of such inconsistency.
Pursuant to the terms of the Agreement, distributions will be made
monthly, commencing in July 2003. During any given month, the payment date will
be the 5th day of the month, or if such 5th day is not a Business Day, then the
Business Day immediately following such 5th day, provided that the payment date
will be at least 4 Business Days following the Determination Date (each, a
"Distribution Date"), commencing on the first Distribution Date specified above,
to the Person in whose name this Certificate is registered at the close of
business on the last Business Day of the month immediately preceding the month
of such distribution (or, in the case of the first Distribution Date, at the
close of business on the Closing Date specified above) ( in any event, the
"Record Date"), in an amount equal to the product of the Percentage Interest
evidenced by this Certificate and the amount required to be distributed pursuant
to the Agreement on the applicable Distribution Date in respect of the Class of
Certificates to which this Certificate belongs. All distributions made under the
Agreement in respect of this Certificate will be made by the Trustee by wire
transfer in immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to (or, in the case of
the first such distribution, on) the Record Date for such distribution (which
wiring instructions may be in the form of a standing order applicable to all
subsequent distributions as well), or otherwise by check mailed to the address
of such Certificateholder appearing in the Certificate Register. Notwithstanding
the above, the final distribution in respect of this Certificate (determined
without regard to any possible future reimbursement of any Realized Loss or
Additional Trust Fund Expense previously allocated to this Certificate) will be
made after due notice by the Trustee of the pendency of such distribution and
only upon presentation and surrender of this Certificate at the offices of the
Certificate Registrar appointed as provided in the Agreement or such other
location as may be specified in such notice. Also notwithstanding the foregoing,
any distribution that may be made with respect to this Certificate in
reimbursement of any Realized Loss or Additional Trust Fund Expense previously
allocated to this Certificate, which reimbursement is to occur after the date on
which this Certificate is surrendered as contemplated by the preceding sentence,
will be made by check mailed to the address of the Holder that surrenders this
Certificate as such address last appeared in the Certificate Register or to any
such other address of which the Trustee is subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Custodial Accounts, the Distribution Account
and, if established, the REO Accounts may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer
or exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Holder of this Certificate, by its acceptance hereof, shall be
deemed to have agreed to keep confidential any information it obtains from the
Trustee (except that such Holder may provide any such information obtained by it
to any other Person that holds or is contemplating the purchase of this
Certificate or an interest herein, provided that such other Person confirms in
writing such ownership interest or prospective ownership interest and agrees to
keep such information confidential).
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Fiscal Agent, the Certificate Registrar and any agents of any of them may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Master Servicer, the
Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar or
any such agent shall be affected by notice to the contrary.
Subject to certain terms and conditions set forth in the Agreement,
the Trust and the obligations created by the Agreement shall terminate upon
distribution (or provision for distribution) to the Certificateholders of all
amounts held by or on behalf of the Trustee and required to be distributed to
them pursuant to the Agreement following the earlier of (i) the final payment
(or any advance with respect thereto) on or other liquidation of the last
Mortgage Loan or REO Property remaining in the Trust, (ii) the purchase by the
Depositor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer
or any Controlling Class Certificateholder at a price determined as provided in
the Agreement of all Mortgage Loans and any REO Properties remaining in the
Trust and (iii) the exchange by the sole remaining Certificateholder of all of
its Certificates for all of the Mortgage Loans and REO Properties remaining in
the Trust. The Agreement permits, but does not require, the Depositor, the
Mortgage Loan Seller, the Master Servicer, the Special Servicer or any
Controlling Class Certificateholder to purchase from the Trust all Mortgage
Loans and any REO Properties remaining therein. The exercise of such right will
effect early retirement of the Certificates; however, such right to purchase is
subject to the aggregate Stated Principal Balance of the Mortgage Pool at the
time of purchase being less than 1% of the Initial Trust Balance specified on
the face hereof. The Agreement also permits, but does not require, the sole
remaining Certificateholder to acquire all of the Mortgage Loans and any REO
Properties remaining in the Trust in exchange for all of the Certificates held
by such Certificateholder following the date on which the aggregate principal
balance of the Class A-1, Class A-2, Class A-3, Class A-4, Class B and Class C
Certificates are reduced to zero.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee and the Fiscal
Agent thereunder and the rights of the Certificateholders thereunder, at any
time by the Depositor, the Master Servicer, the Special Servicer, the Trustee
and the Fiscal Agent with the consent of the Holders of Certificates entitled to
at least 66 2/3% of the Voting Rights allocated to the affected Classes. Any
such consent by the Holder of this Certificate shall be conclusive and binding
on such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of either REMIC Pool as
a REMIC or the Grantor Trust as a grantor trust, without the consent of the
Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, without applying any conflicts of law principles of such state
(other than the provisions of Section 5-1401 of the New York General Obligations
Law), and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee
By:
----------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class [A-1] [A-2] [A-3] [A-4] Certificates
referred to in the within-mentioned Agreement.
Dated: _____________
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By:
----------------------------------
Authorized Officer
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address including postal zip
code of assignee)
the beneficial ownership interest in the Trust evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust.
I (we) further direct the issuance of a new Commercial Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and delivery of such Commercial Mortgage Pass-Through Certificate
to the following address:
________________________________________________________________________________
________________________________________________________________________________
Dated:
______________________________________
Signature by or on behalf of Assignor
______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to __________________________________
________________________________________ for the account of ____________________
__________________________________________________.
Distributions made by check (such check to be made payable to
_____________________________________) and all applicable statements and notices
should be mailed to ____________________________________________________________
___________________________.
This information is provided by ______________________________, the
assignee named above, or __________________________________, as its agent.
EXHIBIT A-2
FORM OF CLASS [XP] [XC] CERTIFICATE
COMMERCIAL MORTGAGE TRUST 2003-C1
CLASS [XP] [XC] COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2003-C1
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust (the "Trust") whose assets consist primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
GREENWICH CAPITAL COMMERCIAL FUNDING CORP.
Pass-Through Rate: [____]% Variable Initial Certificate Notional Amount of
this Certificate as of the Closing Date:
$____________
Date of Pooling and Servicing Agreement: Class Notional Amount of all the Class
June 30, 2003 [XP] [XC] Certificates as of the Closing
Date:
$_____________
Cut-off Date: June 1, 0000 Xxxxxxxxx unpaid principal balance of the
Mortgage Pool as of the Cut-off Date,
Closing Date: June 30, 2003 after deducting payments of principal due
on or before such date: $1,215,024,759
First Distribution Date: July 8, 2003
Master Servicer: Wachovia Bank, National Trustee: LaSalle Bank National
Association Association
Special Servicer: GMAC Commercial Fiscal Agent: ABN AMRO Bank N.V.
Mortgage Corporation
Certificate No. [XP] [XC]-___ CUSIP No.: _____________
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, PLEDGE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE OR ANY
INTEREST HEREIN WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A
TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH
IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE TO (A) ANY
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION
4975 OF THE INTERNAL REVENUE CODE OF 1986 (THE "CODE") OR ANY MATERIALLY SIMILAR
PROVISION OF APPLICABLE FEDERAL, STATE OR LOCAL LAW, OR (B) ANY PERSON WHO IS
DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR ANY INTEREST HEREIN ON
BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, EXCEPT IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN GREENWICH
CAPITAL COMMERCIAL FUNDING CORP., WACHOVIA BANK, NATIONAL ASSOCIATION, GMAC
COMMERCIAL MORTGAGE CORPORATION, LASALLE BANK NATIONAL ASSOCIATION, ABN AMRO
BANK N.V., OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR
THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES OR ANY OTHER PERSON.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
THIS CERTIFICATE DOES NOT HAVE A CERTIFICATE PRINCIPAL BALANCE AND DOES NOT
ENTITLE THE HOLDER HEREOF TO ANY DISTRIBUTIONS OF PRINCIPAL. THE HOLDER HEREOF
WILL BE ENTITLED TO DISTRIBUTIONS OF INTEREST ACCRUED AS PROVIDED IN THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN ON THE CERTIFICATE NOTIONAL AMOUNT OF
THIS CERTIFICATE, WHICH AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ABOVE.
[FOR A REGULATION S GLOBAL CERTIFICATE: PRIOR TO THE DATE (THE "RELEASE DATE")
THAT IS 40 DAYS AFTER THE LATER OF (A) THE COMMENCEMENT OF THE OFFERING TO
PERSONS OTHER THAN DISTRIBUTORS IN RELIANCE ON REGULATION S UNDER THE SECURITIES
ACT, AND (B) THE DATE OF CLOSING OF THE OFFERING, THIS CERTIFICATE MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A
U.S. PERSON WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT EXCEPT
PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT. NO BENEFICIAL OWNERS OF THIS CERTIFICATE SHALL BE ENTITLED TO RECEIVE
PAYMENTS HEREON UNLESS THE REQUIRED CERTIFICATIONS HAVE BEEN DELIVERED PURSUANT
TO THE TERMS OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.]
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
notional principal amount of this Certificate (its "Certificate Notional
Amount") as of the Closing Date by the aggregate notional principal amount of
all the Certificates of the same Class as this Certificate (their "Class
Notional Amount") as of the Closing Date) in that certain beneficial ownership
interest in the Trust evidenced by all the Certificates of the same Class as
this Certificate. The Trust was created and the Certificates were issued
pursuant to a Pooling and Servicing Agreement, dated as specified above (the
"Agreement"), among Greenwich Capital Commercial Funding Corp. as depositor (the
"Depositor", which term includes any successor entity under the Agreement),
Wachovia Bank, National Association as master servicer (the "Master Servicer",
which term includes any successor entity under the Agreement), GMAC Commercial
Mortgage Corporation as special servicer (the "Special Servicer", which term
includes any successor entity under the Agreement), LaSalle Bank National
Association as trustee (the "Trustee", which term includes any successor entity
under the Agreement) and ABN AMRO Bank N.V. as fiscal agent (the "Fiscal Agent",
which term includes any successor entity under the Agreement), a summary of
certain of the pertinent provisions of which is set forth hereafter. To the
extent not defined herein, the capitalized terms used herein have the respective
meanings assigned in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement the Holder of this Certificate by virtue of the acceptance hereof
assents and by which such Holder is bound. In the event of any conflict between
any provision of this Certificate and any provision of the Agreement, such
provision of this Certificate shall be superseded to the extent of such
inconsistency.
Pursuant to the terms of the Agreement, distributions will be made
monthly, commencing in July 2003. During any given month, the payment date will
be the 5th day of the month, or if such 5th day is not a Business Day, then the
Business Day immediately following such 5th day, provided that the payment date
will be at least 4 Business Days following the Determination Date (each, a
"Distribution Date"), commencing on the first Distribution Date specified above,
to the Person in whose name this Certificate is registered at the close of
business on the last Business Day of the month immediately preceding the month
of such distribution (or, in the case of the first Distribution Date, at the
close of business on the Closing Date specified above) (in any event, the
"Record Date"), in an amount equal to the product of the Percentage Interest
evidenced by this Certificate and the amount required to be distributed pursuant
to the Agreement on the applicable Distribution Date in respect of the Class of
Certificates to which this Certificate belongs. All distributions made under the
Agreement in respect of this Certificate will be made by the Trustee by wire
transfer in immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to (or, in the case of
the first such distribution, on) the Record Date for such distribution (which
wiring instructions may be in the form of a standing order applicable to all
subsequent distributions as well), or otherwise by check mailed to the address
of such Certificateholder appearing in the Certificate Register. Notwithstanding
the above, the final distribution in respect of this Certificate will be made
after due notice by the Trustee of the pendency of such distribution and only
upon presentation and surrender of this Certificate at the offices of the
Certificate Registrar appointed as provided in the Agreement or such other
location as may be specified in such notice.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Custodial Accounts, the Distribution Account
and, if established, the REO Accounts may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No direct or indirect transfer, sale, pledge, hypothecation or other
disposition (each, a "Transfer") of this Certificate or any interest herein
shall be made unless that Transfer is exempt from the registration and/or
qualification requirements of the Securities Act and any applicable state
securities laws, or is otherwise made in accordance with the Securities Act and
such state securities laws.
If this Certificate constitutes a Definitive Certificate and a
Transfer hereof is to be made without registration under the Securities Act
(other than in connection with a Transfer of a Global Certificate for any Class
of Book-Entry Non Registered Certificates to a successor Depository or to the
applicable Certificate Owner in accordance with Section 5.03 of the Agreement),
then the Certificate Registrar shall refuse to register such Transfer unless it
receives (and, upon receipt, may conclusively rely upon) either: (i) a
certificate from the Certificateholder desiring to effect such Transfer
substantially in the form attached as Exhibit F-1 to the Agreement and a
certificate from such Certificateholder's prospective Transferee substantially
in the form attached either as Exhibit F-2A to the Agreement or as Exhibit F-2B
to the Agreement; or (ii) an Opinion of Counsel satisfactory to the Trustee to
the effect that such Transfer may be made without registration under the
Securities Act (which Opinion of Counsel shall not be an expense of the Trust
Fund or of the Depositor, the Master Servicer, the Special Servicer, the Tax
Administrator, the Trustee, the Fiscal Agent or the Certificate Registrar in
their respective capacities as such), together with the written certification(s)
as to the facts surrounding such Transfer from the Certificateholder desiring to
effect such Transfer and/or such Certificateholder's prospective Transferee on
which such Opinion of Counsel is based.
Except as discussed below, an interest in a Rule 144A Global
Certificate for any Class of Book-Entry Non-Registered Certificates may not be
transferred to any Person who takes delivery other than in the form of an
interest in such Rule 144A Global Certificate. If this Certificate constitutes a
Rule 144A Global Certificate, a Transferee of an interest herein that takes
delivery for a Class of Book-Entry Non-Registered Certificates shall be deemed
to have represented and warranted that all the certifications set forth in
Exhibit F-2C attached to the Agreement are, with respect to the subject
Transfer, true and correct.
Any interest in a Rule 144A Global Certificate for a Class of
Book-Entry Non-Registered Certificates may be transferred by the Depositor or
any Affiliate of the Depositor to any Person who takes delivery in the form of a
beneficial interest in the Regulation S Global Certificate for such Class of
Certificates upon delivery to the Certificate Registrar of (x) a certificate to
the effect that the Certificate Owner desiring to effect such Transfer is the
Depositor or an Affiliate of the Depositor and (y) such written orders and
instructions as are required under the applicable procedures of the Depository,
Clearstream and Euroclear to direct the Trustee to debit the account of a
Depository Participant by a denomination of interests in such Rule 144A Global
Certificate, and credit the account of a Depository Participant by a
denomination of interests in such Regulation S Global Certificate, that is equal
to the denomination of beneficial interests in the subject Class of Certificates
to be transferred. Upon delivery to the Certificate Registrar of such
certification and such orders and instructions, the Trustee, subject to and in
accordance with the applicable procedures of the Depository, shall reduce the
denomination of the Rule 144A Global Certificate in respect of the subject Class
of Certificates and increase the denomination of the Regulation S Global
Certificate for such Class, by the denomination of the beneficial interest in
such Class specified in such orders and instructions, provided that no
Regulation S Restricted Certificate may be transferred to a Person who wishes to
take delivery under Regulation S. A Regulation S Restricted Certificate is any
Certificate that is not rated in one of the four highest generic ratings
categories by a Rating Agency.
Also notwithstanding the second preceding paragraph, any interest in
a Rule 144A Global Certificate with respect to any Class of Book-Entry
Non-Registered Certificates may be transferred by any Certificate Owner holding
such interest to any Institutional Accredited Investor (other than a Qualified
Institutional Buyer) that takes delivery in the form of a Definitive Certificate
of the same Class as such Rule 144A Global Certificate upon delivery to the
Certificate Registrar and the Trustee of (i) such certifications and/or opinions
as are contemplated by the second paragraph of Section 5.02(b) of the Agreement
and (ii) such written orders and instructions as are required under the
applicable procedures of the Depository to direct the Trustee to debit the
account of a Depository Participant by the denomination of the transferred
interests in such Rule 144A Global Certificate. Upon delivery to the Certificate
Registrar of such certifications and/or opinions and such orders and
instructions, the Trustee, subject to and in accordance with the applicable
procedures of the Depository, shall reduce the denomination of the subject Rule
144A Global Certificate by the denomination of the transferred interests in such
Rule 144A Global Certificate, and shall cause a Definitive Certificate of the
same Class as such Rule 144A Global Certificate, and in a denomination equal to
the reduction in the denomination of such Rule 144A Global Certificate, to be
executed, authenticated and delivered in accordance with the Agreement to the
applicable Transferee.
Except as provided in the next paragraph no beneficial interest in a
Regulation S Global Certificate for any Class of Book-Entry Non-Registered
Certificates shall be transferred to any Person who takes delivery other than in
the form of a beneficial interest in such Regulation S Global Certificate. On
and prior to the Release Date, the Certificate Owner desiring to effect any such
Transfer shall be required to obtain from such Certificate Owner's prospective
Transferee a written certification substantially in the form set forth in
Exhibit F-2D to the Agreement certifying that such Transferee is not a United
States Securities Person. On or prior to the Release Date, beneficial interests
in the Regulation S Global Certificate for each Class of Book-Entry
Non-Registered Certificates may be held only through Euroclear or Clearstream.
The Regulation S Global Certificate for each Class of Book-Entry Non-Registered
Certificates shall be deposited with the Trustee as custodian for the Depository
and registered in the name of Cede & Co. as nominee of the Depository, provided
that no Regulation S Restricted Certificate may be transferred to a Person who
wishes to take delivery under Regulation S.
Notwithstanding the preceding paragraph, after the Release Date, any
interest in a Regulation S Global Certificate for a Class of Book-Entry
Non-Registered Certificates may be transferred by the Depositor or any Affiliate
of the Depositor to any Person who takes delivery in the form of a beneficial
interest in the Rule 144A Global Certificate for such Class of Certificates upon
delivery to the Certificate Registrar of (x) a certificate to the effect that
the Certificate Owner desiring to effect such Transfer is the Depositor or an
Affiliate of the Depositor and (y) such written orders and instructions as are
required under the applicable procedures of the Depository, Clearstream and
Euroclear to direct the Trustee to debit the account of a Depository Participant
by a denomination of interests in such Regulation S Global Certificate, and
credit the account of a Depository Participant by a denomination of interests in
such Rule 144A Global Certificate, that is equal to the denomination of
beneficial interests in the subject Class of Certificates to be transferred.
Upon delivery to the Certificate Registrar of such certification and such orders
and instructions, the Trustee, subject to and in accordance with the applicable
procedures of the Depository, shall reduce the denomination of the Regulation S
Global Certificate in respect of the subject Class of Certificates being
transferred and increase the denomination of the Rule 144A Global Certificate
for such Class, by the denomination of the beneficial interest in such Class
specified in such orders and instructions.
None of the Depositor, the Trustee or the Certificate Registrar is
obligated to register or qualify the Class of Certificates to which this
Certificate belongs, under the Securities Act or any other securities law or to
take any action not otherwise required under the Agreement to permit the
Transfer of this Certificate or any interest herein without such registration or
qualification. Any Certificateholder or Certificate Owner desiring to effect a
Transfer of this Certificate or any interest herein shall, and does hereby agree
to, indemnify the Depositor, Xxxxxx Xxxxxxx & Co. Incorporated, Credit Suisse
First Boston LLC, Greenwich Capital Markets, Inc., the Trustee, the Master
Servicer, the Special Servicer, the Fiscal Agent, the Tax Administrator, the
Certificate Registrar and their respective Affiliates against any liability that
may result if such Transfer is not exempt from the registration and/or
qualification requirements of the Securities Act and any applicable state
securities laws or is not made in accordance with such federal and state laws.
No service charge will be imposed for any registration of transfer
or exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Holder of this Certificate, by its acceptance hereof, shall be
deemed to have agreed to keep confidential any information it obtains from the
Trustee (except that such Holder may provide any such information obtained by it
to any other Person that holds or is contemplating the purchase of this
Certificate or an interest herein, provided that such other Person confirms in
writing such ownership interest or prospective ownership interest and agrees to
keep such information confidential).
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Fiscal Agent, the Certificate Registrar and any agents of any of them may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Master Servicer, the
Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar or
any such agent shall be affected by notice to the contrary.
Subject to certain terms and conditions set forth in the Agreement,
the Trust and the obligations created by the Agreement shall terminate upon
distribution (or provision for distribution) to the Certificateholders of all
amounts held by or on behalf of the Trustee and required to be distributed to
them pursuant to the Agreement following the earlier of (i) the final payment
(or any advance with respect thereto) on or other liquidation of the last
Mortgage Loan or REO Property remaining in the Trust, (ii) the purchase by the
Depositor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer
or any Controlling Class Certificateholder at a price determined as provided in
the Agreement of all Mortgage Loans and any REO Properties remaining in the
Trust and (iii) the exchange by the sole remaining Certificateholder of all of
its Certificates for all of the Mortgage Loans and REO Properties remaining in
the Trust. The Agreement permits, but does not require, the Depositor, the
Mortgage Loan Seller, the Master Servicer, the Special Servicer or any
Controlling Class Certificateholder to purchase from the Trust all Mortgage
Loans and any REO Properties remaining therein. The exercise of such right will
effect early retirement of the Certificates; however, such right to purchase is
subject to the aggregate Stated Principal Balance of the Mortgage Pool at the
time of purchase being less than 1% of the Initial Trust Balance specified on
the face hereof. The Agreement also permits, but does not require, the sole
remaining Certificateholder to acquire all of the Mortgage Loans and any REO
Properties remaining in the Trust in exchange for all of the Certificates held
by such Certificateholder following the date on which the aggregate principal
balance of the Class A-1, Class A-2, Class A-3, Class A-4, Class B and Class C
Certificates are reduced to zero.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee and the Fiscal
Agent thereunder and the rights of the Certificateholders thereunder, at any
time by the Depositor, the Master Servicer, the Special Servicer, the Trustee
and the Fiscal Agent with the consent of the Holders of Certificates entitled to
at least 66 2/3% of the Voting Rights allocated to the affected Classes. Any
such consent by the Holder of this Certificate shall be conclusive and binding
on such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of either REMIC Pool as
a REMIC or the Grantor Trust as a grantor trust, without the consent of the
Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, without applying any conflicts of law principles of such state
(other than the provisions of Section 5-1401 of the New York General Obligations
Law), and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee
By:
----------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class [XP] [XC] Certificates referred to in the
within-mentioned Agreement.
Dated: _____________
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By:
--------------------------------------
Authorized Officer
ASSIGNMENT
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address including postal zip
code of assignee)
the beneficial ownership interest in the Trust evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust.
I (we) further direct the issuance of a new Commercial Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and delivery of such Commercial Mortgage Pass-Through Certificate
to the following address:
________________________________________________________________________________
________________________________________________________________________________
Dated:
______________________________________
Signature by or on behalf of Assignor
______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to __________________________________
________________________________________ for the account of ____________________
__________________________________________________.
Distributions made by check (such check to be made payable to
_____________________________________) and all applicable statements and notices
should be mailed to ____________________________________________________________
___________________________.
This information is provided by ______________________________, the
assignee named above, or __________________________________, as its agent.
EXHIBIT A-3
FORM OF CLASS [B] [C] CERTIFICATES
COMMERCIAL MORTGAGE TRUST 2003-C1
CLASS [B] [C] COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2003-C1
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust (the "Trust") whose assets consist primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
GREENWICH CAPITAL COMMERCIAL FUNDING CORP.
Pass-Through Rate: [____]% Subject to the Initial Certificate Principal Balance of
Weighted Average Net Mortgage Rate this Certificate as of the Closing Date:
$_______________
Date of Pooling and Servicing Agreement: Class Principal Balance of all the Class
June 30, 2003 [B] [C] Certificates as of the Closing
Date:
$_______________
Cut-off Date: June 1, 0000 Xxxxxxxxx unpaid principal balance of the
Mortgage Pool as of the Cut-off Date,
Closing Date: June 30, 2003 after deducting payments of principal due
on or before such date: $1,215,024,759
First Distribution Date: July 8, 2003
Master Servicer: Wachovia Bank, National Trustee: LaSalle Bank National
Association Association
Special Servicer: GMAC Commercial Fiscal Agent: ABN AMRO Bank N.V.
Mortgage Corporation
Certificate No. [B] [C] -___ CUSIP No.: _____________
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE TO (A) ANY
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION
4975 OF THE INTERNAL REVENUE CODE OF 1986 (THE "CODE") OR ANY MATERIALLY SIMILAR
PROVISION OF APPLICABLE FEDERAL, STATE OR LOCAL LAW, OR (B) ANY PERSON WHO IS
DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR ANY INTEREST HEREIN ON
BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, EXCEPT IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN GREENWICH
CAPITAL COMMERCIAL FUNDING CORP., WACHOVIA BANK, NATIONAL ASSOCIATION, GMAC
COMMERCIAL MORTGAGE CORPORATION, LASALLE BANK NATIONAL ASSOCIATION, ABN AMRO
BANK N.V., OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR
THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES OR ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
principal balance of this Certificate (its "Certificate Principal Balance") as
of the Closing Date by the aggregate principal balance of all the Certificates
of the same Class as this Certificate (their "Class Principal Balance") as of
the Closing Date) in that certain beneficial ownership interest in the Trust
evidenced by all the Certificates of the same Class as this Certificate. The
Trust was created and the Certificates were issued pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among Greenwich
Capital Commercial Funding Corp. as depositor (the "Depositor", which term
includes any successor entity under the Agreement), Wachovia Bank, National
Association as master servicer (the "Master Servicer", which term includes any
successor entity under the Agreement), GMAC Commercial Mortgage Corporation as
special servicer (the "Special Servicer", which term includes any successor
entity under the Agreement), LaSalle Bank National Association as trustee (the
"Trustee", which term includes any successor entity under the Agreement) and ABN
AMRO Bank N.V. as fiscal agent (the "Fiscal Agent", which term includes any
successor entity under the Agreement), a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
the capitalized terms used herein have the respective meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound. In the event of any conflict between any provision of this
Certificate and any provision of the Agreement, such provision of this
Certificate shall be superseded to the extent of such inconsistency.
Pursuant to the terms of the Agreement, distributions will be made
monthly, commencing in July 2003. During any given month, the payment date will
be the 5th day of the month, or if such 5th day is not a Business Day, then the
Business Day immediately following such 5th day, provided that the payment date
will be at least 4 Business Days following the Determination Date (each, a
"Distribution Date"), commencing on the first Distribution Date specified above,
to the Person in whose name this Certificate is registered at the close of
business on the last Business Day of the month immediately preceding the month
of such distribution (or, in the case of the first Distribution Date, at the
close of business on the Closing Date specified above) (in any event, the
"Record Date"), in an amount equal to the product of the Percentage Interest
evidenced by this Certificate and the amount required to be distributed pursuant
to the Agreement on the applicable Distribution Date in respect of the Class of
Certificates to which this Certificate belongs. All distributions made under the
Agreement in respect of this Certificate will be made by the Trustee by wire
transfer in immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to (or, in the case of
the first such distribution, on) the Record Date for such distribution (which
wiring instructions may be in the form of a standing order applicable to all
subsequent distributions as well), or otherwise by check mailed to the address
of such Certificateholder appearing in the Certificate Register. Notwithstanding
the above, the final distribution in respect of this Certificate (determined
without regard to any possible future reimbursement of any Realized Loss or
Additional Trust Fund Expense previously allocated to this Certificate) will be
made after due notice by the Trustee of the pendency of such distribution and
only upon presentation and surrender of this Certificate at the offices of the
Certificate Registrar appointed as provided in the Agreement or such other
location as may be specified in such notice. Also notwithstanding the foregoing,
any distribution that may be made with respect to this Certificate in
reimbursement of any Realized Loss or Additional Trust Fund Expense previously
allocated to this Certificate, which reimbursement is to occur after the date on
which this Certificate is surrendered as contemplated by the preceding sentence,
will be made by check mailed to the address of the Holder that surrenders this
Certificate as such address last appeared in the Certificate Register or to any
such other address of which the Trustee is subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Custodial Accounts, the Distribution Account
and, if established, the REO Accounts may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No service charge will be imposed for any registration of transfer
or exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Holder of this Certificate, by its acceptance hereof, shall be
deemed to have agreed to keep confidential any information it obtains from the
Trustee (except that such Holder may provide any such information obtained by it
to any other Person that holds or is contemplating the purchase of this
Certificate or an interest herein, provided that such other Person confirms in
writing such ownership interest or prospective ownership interest and agrees to
keep such information confidential).
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Fiscal Agent, the Certificate Registrar and any agents of any of them may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Master Servicer, the
Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar or
any such agent shall be affected by notice to the contrary.
Subject to certain terms and conditions set forth in the Agreement,
the Trust and the obligations created by the Agreement shall terminate upon
distribution (or provision for distribution) to the Certificateholders of all
amounts held by or on behalf of the Trustee and required to be distributed to
them pursuant to the Agreement following the earlier of (i) the final payment
(or any advance with respect thereto) on or other liquidation of the last
Mortgage Loan or REO Property remaining in the Trust, (ii) the purchase by the
Depositor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer
or any Controlling Class Certificateholder at a price determined as provided in
the Agreement of all Mortgage Loans and any REO Properties remaining in the
Trust and (iii) the exchange by the sole remaining Certificateholder of all of
its Certificates for all of the Mortgage Loans and REO Properties remaining in
the Trust. The Agreement permits, but does not require, the Depositor, the
Mortgage Loan Seller, the Master Servicer, the Special Servicer or any
Controlling Class Certificateholder to purchase from the Trust all Mortgage
Loans and any REO Properties remaining therein. The exercise of such right will
effect early retirement of the Certificates; however, such right to purchase is
subject to the aggregate Stated Principal Balance of the Mortgage Pool at the
time of purchase being less than 1% of the Initial Trust Balance specified on
the face hereof. The Agreement also permits, but does not require, the sole
remaining Certificateholder to acquire all of the Mortgage Loans and any REO
Properties remaining in the Trust in exchange for all of the Certificates held
by such Certificateholder following the date on which the aggregate principal
balance of the Class A-1, Class A-2, Class A-3, Class A-4, Class B and Class C
Certificates are reduced to zero.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee and the Fiscal
Agent thereunder and the rights of the Certificateholders thereunder, at any
time by the Depositor, the Master Servicer, the Special Servicer, the Trustee
and the Fiscal Agent with the consent of the Holders of Certificates entitled to
at least 66 2/3% of the Voting Rights allocated to the affected Classes. Any
such consent by the Holder of this Certificate shall be conclusive and binding
on such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of either REMIC Pool as
a REMIC or the Grantor Trust as a grantor trust, without the consent of the
Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, without applying any conflicts of law principles of such state
(other than the provisions of Section 5-1401 of the New York General Obligations
Law), and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee
By:
-----------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class [B] [C] Certificates referred to in the
within-mentioned Agreement.
Dated: _____________
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By:
-----------------------------------
Authorized Officer
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address including postal zip
code of assignee)
the beneficial ownership interest in the Trust evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust.
I (we) further direct the issuance of a new Commercial Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and delivery of such Commercial Mortgage Pass-Through Certificate
to the following address:
________________________________________________________________________________
________________________________________________________________________________
Dated:
______________________________________
Signature by or on behalf of Assignor
______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to __________________________________
________________________________________ for the account of ____________________
__________________________________________________.
Distributions made by check (such check to be made payable to
_____________________________________) and all applicable statements and notices
should be mailed to ____________________________________________________________
___________________________.
This information is provided by ______________________________, the
assignee named above, or __________________________________, as its agent.
EXHIBIT A-4
FORM OF CLASS [D] [E] [F] [G] [H] [J] CERTIFICATE
COMMERCIAL MORTGAGE TRUST 2003-C1
CLASS [D] [E] [F] [G] [H] [J] COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2003-C1
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust (the "Trust"), whose assets consist primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
GREENWICH CAPITAL COMMERCIAL FUNDING CORP.
Pass-Through Rate: [____]% [With respect Initial Certificate Principal Balance of
to the Class [G] [H] [J] Subject to the this Certificate as of the Closing Date:
Weighted Average Net Mortgage Rate] $_______________
Date of Pooling and Servicing Agreement: Class Principal Balance of all the Class
June 30, 2003 [D] [E] [F] [G] [H] [J] Certificates as
of the Closing Date:
$________________
Cut-off Date: June 1, 0000 Xxxxxxxxx unpaid principal balance of
the Mortgage Pool as of the Cut-off
Closing Date: June 30, 2003 Date, after deducting payments of
principal due on or before such date:
$1,215,024,759
First Distribution Date: July 8, 2003
Master Servicer: Wachovia Bank, National Trustee: LaSalle Bank National
Association Association
Special Servicer: GMAC Commercial Fiscal Agent: ABN AMRO Bank N.V.
Mortgage Corporation
Certificate No. [D] [E] [F] [G] [H] [J] CUSIP No.: _____________
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, PLEDGE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE OR ANY
INTEREST HEREIN WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A
TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH
IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE TO (A) ANY
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION
4975 OF THE INTERNAL REVENUE CODE OF 1986 (THE "CODE") OR ANY MATERIALLY SIMILAR
PROVISION OF APPLICABLE FEDERAL, STATE OR LOCAL LAW, OR (B) ANY PERSON WHO IS
DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR ANY INTEREST HEREIN ON
BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, EXCEPT IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN GREENWICH
CAPITAL COMMERCIAL FUNDING CORP., WACHOVIA BANK, NATIONAL ASSOCIATION, GMAC
COMMERCIAL MORTGAGE CORPORATION, LASALLE BANK NATIONAL ASSOCIATION, ABN AMRO
BANK N.V., OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR
THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES OR ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS, IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
[FOR A REGULATION S GLOBAL CERTIFICATE: PRIOR TO THE DATE (THE "RELEASE DATE")
THAT IS 40 DAYS AFTER THE LATER OF (A) THE COMMENCEMENT OF THE OFFERING TO
PERSONS OTHER THAN DISTRIBUTORS IN RELIANCE ON REGULATION S UNDER THE SECURITIES
ACT, AND (B) THE DATE OF CLOSING OF THE OFFERING, THIS CERTIFICATE MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE UNITED STATES OR TO A
U.S. PERSON WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT EXCEPT
PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT. NO BENEFICIAL OWNERS OF THIS CERTIFICATE SHALL BE ENTITLED TO RECEIVE
PAYMENTS HEREON UNLESS THE REQUIRED CERTIFICATIONS HAVE BEEN DELIVERED PURSUANT
TO THE TERMS OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.]
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
principal balance of this Certificate (its "Certificate Principal Balance") as
of the Closing Date by the aggregate principal balance of all the Certificates
of the same Class as this Certificate (their "Class Principal Balance") as of
the Closing Date) in that certain beneficial ownership interest in the Trust
evidenced by all the Certificates of the same Class as this Certificate. The
Trust was created and the Certificates were issued pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among Greenwich
Capital Commercial Funding Corp. as depositor (the "Depositor", which term
includes any successor entity under the Agreement), Wachovia Bank, National
Association as master servicer (the "Master Servicer", which term includes any
successor entity under the Agreement), GMAC Commercial Mortgage Corporation as
special servicer (the "Special Servicer", which term includes any successor
entity under the Agreement), LaSalle Bank National Association as trustee (the
"Trustee", which term includes any successor entity under the Agreement) and ABN
AMRO Bank N.V. as fiscal agent (the "Fiscal Agent", which term includes any
successor entity under the Agreement), a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
the capitalized terms used herein have the respective meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound. In the event of any conflict between any provision of this
Certificate and any provision of the Agreement, such provision of this
Certificate shall be superseded to the extent of such inconsistency.
Pursuant to the terms of the Agreement, distributions will be made
monthly, commencing in July 2003. During any given month, the payment date will
be the 5th day of the month, or if such 5th day is not a Business Day, then the
Business Day immediately following such 5th day, provided that the payment date
will be at least 4 Business Days following the Determination Date (each, a
"Distribution Date"), commencing on the first Distribution Date specified above,
to the Person in whose name this Certificate is registered at the close of
business on the last Business Day of the month immediately preceding the month
of such distribution (or, in the case of the first Distribution Date, at the
close of business on the Closing Date specified above) (in any event, the
"Record Date"), in an amount equal to the product of the Percentage Interest
evidenced by this Certificate and the amount required to be distributed pursuant
to the Agreement on the applicable Distribution Date in respect of the Class of
Certificates to which this Certificate belongs. All distributions made under the
Agreement in respect of this Certificate will be made by the Trustee by wire
transfer in immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to (or, in the case of
the first such distribution, on) the Record Date for such distribution (which
wiring instructions may be in the form of a standing order applicable to all
subsequent distributions as well), or otherwise by check mailed to the address
of such Certificateholder appearing in the Certificate Register. Notwithstanding
the above, the final distribution in respect of this Certificate (determined
without regard to any possible future reimbursement of any Realized Loss or
Additional Trust Fund Expense previously allocated to this Certificate) will be
made after due notice by the Trustee of the pendency of such distribution and
only upon presentation and surrender of this Certificate at the offices of the
Certificate Registrar appointed as provided in the Agreement or such other
location as may be specified in such notice. Also notwithstanding the foregoing,
any distribution that may be made with respect to this Certificate in
reimbursement of any Realized Loss or Additional Trust Fund Expense previously
allocated to this Certificate, which reimbursement is to occur after the date on
which this Certificate is surrendered as contemplated by the preceding sentence,
will be made by check mailed to the address of the Holder that surrenders this
Certificate as such address last appeared in the Certificate Register or to any
such other address of which the Trustee is subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Custodial Accounts, the Distribution Account
and, if established, the REO Accounts may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No direct or indirect transfer, sale, pledge, hypothecation or other
disposition (each, a "Transfer") of this Certificate or any interest herein
shall be made unless that Transfer is exempt from the registration and/or
qualification requirements of the Securities Act and any applicable state
securities laws, or is otherwise made in accordance with the Securities Act and
such state securities laws.
If this Certificate constitutes a Definitive Certificate and a
Transfer hereof is to be made without registration under the Securities Act
(other than in connection with a Transfer of a Global Certificate for any Class
of Book-Entry Non-Registered Certificates to a successor Depository or to the
applicable Certificate Owner in accordance with Section 5.03 of the Agreement),
then the Certificate Registrar shall refuse to register such Transfer unless it
receives (and, upon receipt, may conclusively rely upon) either: (i) a
certificate from the Certificateholder desiring to effect such Transfer
substantially in the form attached as Exhibit F-1 to the Agreement and a
certificate from such Certificateholder's prospective Transferee substantially
in the form attached either as Exhibit F-2A to the Agreement or as Exhibit F-2B
to the Agreement; or (ii) an Opinion of Counsel satisfactory to the Trustee to
the effect that such Transferee is an Institutional Accredited Investor or a
Qualified Institutional Buyer and such Transfer may be made without registration
under the Securities Act (which Opinion of Counsel shall not be an expense of
the Trust Fund or of the Depositor, the Master Servicer, the Special Servicer,
the Tax Administrator, the Trustee, the Fiscal Agent or the Certificate
Registrar in their respective capacities as such), together with the written
certification(s) as to the facts surrounding such Transfer from the
Certificateholder desiring to effect such Transfer and/or such
Certificateholder's prospective Transferee on which such Opinion of Counsel is
based.
Except as discussed below, an interest in a Rule 144A Global
Certificate for any Class of Book-Entry Non-Registered Certificates may not be
transferred to any Person who takes delivery other than in the form of an
interest in such Rule 144A Global Certificate. If this Certificate constitutes a
Rule 144A Global Certificate, a Transferee of an interest herein that takes
delivery for a Class of Book-Entry Non-Registered Certificates shall be deemed
to have represented and warranted that all the certifications set forth in
Exhibit F-2C attached to the Agreement are, with respect to the subject
Transfer, true and correct.
Any interest in a Rule 144A Global Certificate for a Class of
Book-Entry Non-Registered Certificates may be transferred by the Depositor or
any Affiliate of the Depositor to any Person who takes delivery in the form of a
beneficial interest in the Regulation S Global Certificate for such Class of
Certificates upon delivery to the Certificate Registrar of (x) a certificate to
the effect that the Certificate Owner desiring to effect such Transfer is the
Depositor or an Affiliate of the Depositor and (y) such written orders and
instructions as are required under the applicable procedures of the Depository,
Clearstream and Euroclear to direct the Trustee to debit the account of a
Depository Participant by a denomination of interests in such Rule 144A Global
Certificate, and credit the account of a Depository Participant by a
denomination of interests in such Regulation S Global Certificate, that is equal
to the denomination of beneficial interests in the subject Class of Certificates
to be transferred. Upon delivery to the Certificate Registrar of such
certification and such orders and instructions, the Trustee, subject to and in
accordance with the applicable procedures of the Depository, shall reduce the
denomination of the Rule 144A Global Certificate in respect of the subject Class
of Certificates and increase the denomination of the Regulation S Global
Certificate for such Class, by the denomination of the beneficial interest in
such Class specified in such orders and instructions, provided that no
Regulation S Restricted Certificate may be transferred to a Person who wishes to
take delivery under Regulation S. A Regulation S Restricted Certificate is any
Certificate that is not rated in one of the four highest generic ratings
categories by a Rating Agency.
Also notwithstanding the second preceding paragraph, any interest in
a Rule 144A Global Certificate with respect to any Class of Book-Entry
Non-Registered Certificates may be transferred by any Certificate Owner holding
such interest to any Institutional Accredited Investor (other than a Qualified
Institutional Buyer) that takes delivery in the form of a Definitive Certificate
of the same Class as such Rule 144A Global Certificate upon delivery to the
Certificate Registrar and the Trustee of (i) such certifications and/or opinions
as are contemplated by the second paragraph of Section 5.02(b) of the Agreement
and (ii) such written orders and instructions as are required under the
applicable procedures of the Depository to direct the Trustee to debit the
account of a Depository Participant by the denomination of the transferred
interests in such Rule 144A Global Certificate. Upon delivery to the Certificate
Registrar of such certifications and/or opinions and such orders and
instructions, the Trustee, subject to and in accordance with the applicable
procedures of the Depository, shall reduce the denomination of the subject Rule
144A Global Certificate by the denomination of the transferred interests in such
Rule 144A Global Certificate, and shall cause a Definitive Certificate of the
same Class as such Rule 144A Global Certificate, and in a denomination equal to
the reduction in the denomination of such Rule 144A Global Certificate, to be
executed, authenticated and delivered in accordance with the Agreement to the
applicable Transferee.
Except as provided in the next paragraph no beneficial interest in a
Regulation S Global Certificate for any Class of Book-Entry Non-Registered
Certificates shall be transferred to any Person who takes delivery other than in
the form of a beneficial interest in such Regulation S Global Certificate. On
and prior to the Release Date, the Certificate Owner desiring to effect any such
Transfer shall be required to obtain from such Certificate Owner's prospective
Transferee a written certification substantially in the form set forth in
Exhibit F-2D to the Agreement certifying that such Transferee is not a United
States Securities Person. On or prior to the Release Date, beneficial interests
in the Regulation S Global Certificate for each Class of Book-Entry
Non-Registered Certificates may be held only through Euroclear or Clearstream.
The Regulation S Global Certificate for each Class of Book-Entry Non-Registered
Certificates shall be deposited with the Trustee as custodian for the Depository
and registered in the name of Cede & Co. as nominee of the Depository, provided
that no Regulation S Restricted Certificate may be transferred to a Person who
wishes to take delivery under Regulation S.
Notwithstanding the preceding paragraph, after the Release Date, any
interest in a Regulation S Global Certificate for a Class of Book-Entry
Non-Registered Certificates may be transferred by the Depositor or any Affiliate
of the Depositor to any Person who takes delivery in the form of a beneficial
interest in the Rule 144A Global Certificate for such Class of Certificates upon
delivery to the Certificate Registrar of (x) a certificate to the effect that
the Certificate Owner desiring to effect such Transfer is the Depositor or an
Affiliate of the Depositor and (y) such written orders and instructions as are
required under the applicable procedures of the Depository, Clearstream and
Euroclear to direct the Trustee to debit the account of a Depository Participant
by a denomination of interests in such Regulation S Global Certificate, and
credit the account of a Depository Participant by a denomination of interests in
such Rule 144A Global Certificate, that is equal to the denomination of
beneficial interests in the subject Class of Certificates to be transferred.
Upon delivery to the Certificate Registrar of such certification and such orders
and instructions, the Trustee, subject to and in accordance with the applicable
procedures of the Depository, shall reduce the denomination of the Regulation S
Global Certificate in respect of the subject Class of Certificates being
transferred and increase the denomination of the Rule 144A Global Certificate
for such Class, by the denomination of the beneficial interest in such Class
specified in such orders and instructions.
None of the Depositor, the Trustee or the Certificate Registrar is
obligated to register or qualify the Class of Certificates to which this
Certificate belongs, under the Securities Act or any other securities law or to
take any action not otherwise required under the Agreement to permit the
Transfer of this Certificate or any interest herein without such registration or
qualification. Any Certificateholder or Certificate Owner desiring to effect a
Transfer of this Certificate or any interest herein shall, and does hereby agree
to, indemnify the Depositor, Xxxxxx Xxxxxxx & Co. Incorporated, Credit Suisse
First Boston LLC, Greenwich Capital Markets Inc., the Trustee, the Master
Servicer, the Special Servicer, the Fiscal Agent, the Tax Administrator, the
Certificate Registrar and their respective Affiliates against any liability that
may result if such Transfer is not exempt from the registration and/or
qualification requirements of the Securities Act and any applicable state
securities laws or is not made in accordance with such federal and state laws.
No service charge will be imposed for any registration of transfer
or exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Holder of this Certificate, by its acceptance hereof, shall be
deemed to have agreed to keep confidential any information it obtains from the
Trustee (except that such Holder may provide any such information obtained by it
to any other Person that holds or is contemplating the purchase of this
Certificate or an interest herein, provided that such other Person confirms in
writing such ownership interest or prospective ownership interest and agrees to
keep such information confidential).
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Fiscal Agent, the Certificate Registrar and any agents of any of them may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Master Servicer, the
Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar or
any such agent shall be affected by notice to the contrary.
Subject to certain terms and conditions set forth in the Agreement,
the Trust and the obligations created by the Agreement shall terminate upon
distribution (or provision for distribution) to the Certificateholders of all
amounts held by or on behalf of the Trustee and required to be distributed to
them pursuant to the Agreement following the earlier of (i) the final payment
(or any advance with respect thereto) on or other liquidation of the last
Mortgage Loan or REO Property remaining in the Trust, (ii) the purchase by the
Depositor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer
or any Controlling Class Certificateholder at a price determined as provided in
the Agreement of all Mortgage Loans and any REO Properties remaining in the
Trust and (iii) the exchange by the sole remaining Certificateholder of all of
its Certificates for all of the Mortgage Loans and REO Properties remaining in
the Trust. The Agreement permits, but does not require, the Depositor, the
Mortgage Loan Seller, the Master Servicer, the Special Servicer or any
Controlling Class Certificateholder to purchase from the Trust all Mortgage
Loans and any REO Properties remaining therein. The exercise of such right will
effect early retirement of the Certificates; however, such right to purchase is
subject to the aggregate Stated Principal Balance of the Mortgage Pool at the
time of purchase being less than 1% of the Initial Trust Balance specified on
the face hereof. The Agreement also permits, but does not require, the sole
remaining Certificateholder to acquire all of the Mortgage Loans and any REO
Properties remaining in the Trust in exchange for all of the Certificates held
by such Certificateholder following the date on which the aggregate principal
balance of the Class A-1, Class A-2, Class A-3, Class A-4, Class B and Class C
Certificates are reduced to zero.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee and the Fiscal
Agent thereunder and the rights of the Certificateholders thereunder, at any
time by the Depositor, the Master Servicer, the Special Servicer, the Trustee
and the Fiscal Agent with the consent of the Holders of Certificates entitled to
at least 66 2/3% of the Voting Rights allocated to the affected Classes. Any
such consent by the Holder of this Certificate shall be conclusive and binding
on such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of either REMIC Pool as
a REMIC or the Grantor Trust as a grantor trust, without the consent of the
Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, without applying any conflicts of law principles of such state
(other than the provisions of Section 5-1401 of the New York General Obligations
Law), and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee
By:
--------------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class[D] [E] [F] [G] [H] [J] Certificates
referred to in the within-mentioned Agreement.
Dated: _____________
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By:
--------------------------------------
Authorized Officer
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address including postal zip
code of assignee)
the beneficial ownership interest in the Trust evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust.
I (we) further direct the issuance of a new Commercial Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and delivery of such Commercial Mortgage Pass-Through Certificate
to the following address:
________________________________________________________________________________
________________________________________________________________________________
Dated:
______________________________________
Signature by or on behalf of Assignor
______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to __________________________________
________________________________________ for the account of ____________________
__________________________________________________.
Distributions made by check (such check to be made payable to
_____________________________________) and all applicable statements and notices
should be mailed to ____________________________________________________________
___________________________.
This information is provided by ______________________________, the
assignee named above, or __________________________________, as its agent.
EXHIBIT A-5
FORM OF CLASS [K] [L] [M] [N] [O] [P] [Q] CERTIFICATES
COMMERCIAL MORTGAGE TRUST 2003-C1
CLASS [K] [L] [M] [N] [O] [P] [Q] COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2003-C1
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust (the "Trust"), whose assets consist primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
GREENWICH CAPITAL COMMERCIAL FUNDING CORP.
Pass-Through Rate: [____]% Subject to Initial Certificate Principal Balance of
the Weighted Average Net Mortgage Rate this Certificate as of the Closing Date:
$________________
Date of Pooling and Servicing Agreement: Class Principal Balance of all the Class
June 30, 2003 [K] [L] [M] [N] [O] [P] [Q] Certificates
as of the Closing Date:
$________________
Cut-off Date: June 1, 0000 Xxxxxxxxx unpaid principal balance of
the Mortgage Pool as of the Cut-off
Closing Date: June 30, 2003 Date, after deducting payments of
principal due on or before such date:
$1,215,024,759
First Distribution Date: July 8, 2003
Master Servicer: Wachovia Bank, National Trustee: LaSalle Bank National
Association Association
Special Servicer: GMAC Commercial Fiscal Agent: ABN AMRO Bank N.V.
Mortgage Corporation
Certificate No. [K] [L] [M] [N] [O] [P] CUSIP No.: _____________
[Q]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST CORPORATION, A NEW YORK CORPORATION ("DTC"), TO THE DEPOSITOR,
THE TRUSTEE, THE CERTIFICATE REGISTRAR OR ANY AGENT THEREOF FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, PLEDGE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE OR ANY
INTEREST HEREIN WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A
TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH
IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE TO (A) ANY
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION
4975 OF THE INTERNAL REVENUE CODE OF 1986 (THE "CODE") OR ANY MATERIALLY SIMILAR
PROVISION OF APPLICABLE FEDERAL, STATE OR LOCAL LAW, OR (B) ANY PERSON WHO IS
DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR ANY INTEREST HEREIN ON
BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, EXCEPT IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN GREENWICH
CAPITAL COMMERCIAL FUNDING CORP., WACHOVIA BANK, NATIONAL ASSOCIATION, GMAC
COMMERCIAL MORTGAGE CORPORATION, LASALLE BANK NATIONAL ASSOCIATION, ABN AMRO
BANK N.V., OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR
THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES OR ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS, IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "REGULAR
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE").
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that Cede & Co. is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
principal balance of this Certificate (its "Certificate Principal Balance") as
of the Closing Date by the aggregate principal balance of all the Certificates
of the same Class as this Certificate (their "Class Principal Balance") as of
the Closing Date) in that certain beneficial ownership interest in the Trust
evidenced by all the Certificates of the same Class as this Certificate. The
Trust was created and the Certificates were issued pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among Greenwich
Capital Commercial Funding Corp. as depositor (the "Depositor", which term
includes any successor entity under the Agreement), Wachovia Bank, National
Association as master servicer (the "Master Servicer", which term includes any
successor entity under the Agreement), GMAC Commercial Mortgage Corporation as
special servicer (the "Special Servicer", which term includes any successor
entity under the Agreement), LaSalle Bank National Association as trustee (the
"Trustee", which term includes any successor entity under the Agreement) and ABN
AMRO Bank N.V. as fiscal agent (the "Fiscal Agent", which term includes any
successor entity under the Agreement), a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
the capitalized terms used herein have the respective meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound. In the event of any conflict between any provision of this
Certificate and any provision of the Agreement, such provision of this
Certificate shall be superseded to the extent of such inconsistency.
Pursuant to the terms of the Agreement, distributions will be made
monthly, commencing in July 2003. During any given month, the payment date will
be the 5th day of the month, or if such 5th day is not a Business Day, then the
Business Day immediately following such 5th day, provided that the payment date
will be at least 4 Business Days following the Determination Date (each, a
"Distribution Date"), commencing on the first Distribution Date specified above,
to the Person in whose name this Certificate is registered at the close of
business on the last Business Day of the month immediately preceding the month
of such distribution (or, in the case of the first Distribution Date, at the
close of business on the Closing Date specified above) (in any event, the
"Record Date"), in an amount equal to the product of the Percentage Interest
evidenced by this Certificate and the amount required to be distributed pursuant
to the Agreement on the applicable Distribution Date in respect of the Class of
Certificates to which this Certificate belongs. All distributions made under the
Agreement in respect of this Certificate will be made by the Trustee by wire
transfer in immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to (or, in the case of
the first such distribution, on) the Record Date for such distribution (which
wiring instructions may be in the form of a standing order applicable to all
subsequent distributions as well), or otherwise by check mailed to the address
of such Certificateholder appearing in the Certificate Register. Notwithstanding
the above, the final distribution in respect of this Certificate (determined
without regard to any possible future reimbursement of any Realized Loss or
Additional Trust Fund Expense previously allocated to this Certificate) will be
made after due notice by the Trustee of the pendency of such distribution and
only upon presentation and surrender of this Certificate at the offices of the
Certificate Registrar appointed as provided in the Agreement or such other
location as may be specified in such notice. Also notwithstanding the foregoing,
any distribution that may be made with respect to this Certificate in
reimbursement of any Realized Loss or Additional Trust Fund Expense previously
allocated to this Certificate, which reimbursement is to occur after the date on
which this Certificate is surrendered as contemplated by the preceding sentence,
will be made by check mailed to the address of the Holder that surrenders this
Certificate as such address last appeared in the Certificate Register or to any
such other address of which the Trustee is subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Custodial Accounts, the Distribution Account
and, if established, the REO Accounts may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No direct or indirect transfer, sale, pledge, hypothecation or other
disposition (each, a "Transfer") of this Certificate or any interest herein
shall be made unless that Transfer is exempt from the registration and/or
qualification requirements of the Securities Act and any applicable state
securities laws, or is otherwise made in accordance with the Securities Act and
such state securities laws.
If this Certificate constitutes a Definitive Certificate and a
Transfer hereof is to be made without registration under the Securities Act
(other than in connection with a Transfer of a Global Certificate for any Class
of Book-Entry Non-Registered Certificates to a successor Depository or to the
applicable Certificate Owner in accordance with Section 5.03 of the Agreement),
then the Certificate Registrar shall refuse to register such Transfer unless it
receives (and, upon receipt, may conclusively rely upon) either: (i) a
certificate from the Certificateholder desiring to effect such Transfer
substantially in the form attached as Exhibit F-1 to the Agreement and a
certificate from such Certificateholder's prospective Transferee substantially
in the form attached either as Exhibit F-2A to the Agreement or as Exhibit F-2B
to the Agreement; or (ii) an Opinion of Counsel satisfactory to the Trustee to
the effect that such Transferee is an Institutional Accredited Investor or a
Qualified Institutional Buyer and such Transfer may be made without registration
under the Securities Act (which Opinion of Counsel shall not be an expense of
the Trust Fund or of the Depositor, the Master Servicer, the Special Servicer,
the Tax Administrator, the Trustee, the Fiscal Agent or the Certificate
Registrar in their respective capacities as such), together with the written
certification(s) as to the facts surrounding such Transfer from the
Certificateholder desiring to effect such Transfer and/or such
Certificateholder's prospective Transferee on which such Opinion of Counsel is
based.
Except as discussed below, an interest in a Rule 144A Global
Certificate for any Class of Book-Entry Non-Registered Certificates may not be
transferred to any Person who takes delivery other than in the form of an
interest in such Rule 144A Global Certificate. If this Certificate constitutes a
Rule 144A Global Certificate, a Transferee of an interest herein that takes
delivery for a Class of Book-Entry Non-Registered Certificates shall be deemed
to have represented and warranted that all the certifications set forth in
Exhibit F-2C attached to the Agreement are, with respect to the subject
Transfer, true and correct.
Also notwithstanding the second preceding paragraph, any interest in
a Rule 144A Global Certificate with respect to any Class of Book-Entry
Non-Registered Certificates may be transferred by any Certificate Owner holding
such interest to any Institutional Accredited Investor (other than a Qualified
Institutional Buyer) that takes delivery in the form of a Definitive Certificate
of the same Class as such Rule 144A Global Certificate upon delivery to the
Certificate Registrar and the Trustee of (i) such certifications and/or opinions
as are contemplated by the second paragraph of Section 5.02(b) of the Agreement
and (ii) such written orders and instructions as are required under the
applicable procedures of the Depository to direct the Trustee to debit the
account of a Depository Participant by the denomination of the transferred
interests in such Rule 144A Global Certificate. Upon delivery to the Certificate
Registrar of such certifications and/or opinions and such orders and
instructions, the Trustee, subject to and in accordance with the applicable
procedures of the Depository, shall reduce the denomination of the subject Rule
144A Global Certificate by the denomination of the transferred interests in such
Rule 144A Global Certificate, and shall cause a Definitive Certificate of the
same Class as such Rule 144A Global Certificate, and in a denomination equal to
the reduction in the denomination of such Rule 144A Global Certificate, to be
executed, authenticated and delivered in accordance with the Agreement to the
applicable Transferee.
None of the Depositor, the Trustee or the Certificate Registrar is
obligated to register or qualify the Class of Certificates to which this
Certificate belongs, under the Securities Act or any other securities law or to
take any action not otherwise required under the Agreement to permit the
Transfer of this Certificate or any interest herein without such registration or
qualification. Any Certificateholder or Certificate Owner desiring to effect a
Transfer of this Certificate or any interest herein shall, and does hereby agree
to, indemnify the Depositor, Xxxxxx Xxxxxxx & Co. Incorporated, Credit Suisse
First Boston LLC, Greenwich Capital Markets Inc., the Trustee, the Master
Servicer, the Special Servicer, the Fiscal Agent, the Tax Administrator, the
Certificate Registrar and their respective Affiliates against any liability that
may result if such Transfer is not exempt from the registration and/or
qualification requirements of the Securities Act and any applicable state
securities laws or is not made in accordance with such federal and state laws.
No Transfer of this Certificate or any interest herein shall be made
to (A) any employee benefit plan or other retirement arrangement, including
individual retirement accounts and annuities, Xxxxx plans and collective
investment funds and separate accounts in which such plans, accounts or
arrangements are invested, including insurance company general accounts, that is
subject to Title I ERISA, Section 4975 of the Code or any materially similar
provision ("Similar Law") of applicable federal, state or local law (each, a
"Plan"), or (B) any Person who is directly or indirectly purchasing this
Certificate or such interest herein on behalf of, as named fiduciary of, as
trustee of, or with assets of a Plan, if the purchase and holding of this
Certificate or such interest herein by the prospective Transferee would result
in a violation of Section 406 or 407 of ERISA or Section 4975 of the Code or
would result in the imposition of an excise tax under Section 4975 of the Code
or any similar violation of Similar Law. Except in connection with Transfer of
this Certificate to a successor Depository or to the applicable Certificate
Owner in accordance with Section 5.03 of the Agreement, the Certificate
Registrar shall refuse to register the Transfer of a Definitive Non-Registered
Certificate unless it has received from the prospective Transferee one of the
following: (i) a certification to the effect that such prospective Transferee is
not a Plan and is not directly or indirectly purchasing this Certificate or such
interest herein on behalf of, as named fiduciary of, as trustee of, or with
assets of a Plan; or (ii) a certification to the effect that the purchase and
holding of this Certificate or such interest herein by such prospective
Transferee is exempt from the prohibited transaction provisions of Sections
406(a) and (b) and 407 of ERISA and the excise taxes imposed on such prohibited
transactions by Sections 4975(a) and (b) of the Code, by reason of Sections I
and III of Prohibited Transaction Class Exemption 95-60; or (iii) a
certification of facts and an Opinion of Counsel which otherwise establish to
the reasonable satisfaction of the Trustee or such Certificate Owner, as the
case may be, that such Transfer will not result in a violation of Section 406 or
407 of ERISA or Section 4975 of the Code or result in the imposition of an
excise tax under Section 4975 of the Code. If any Transferee of this Certificate
or any interest herein does not, in connection with the subject Transfer,
deliver to the Certificate Registrar (if this Certificate constitutes a
Definitive Certificate) a certification and/or Opinion of Counsel as required by
the preceding sentence, then such Transferee (and in any event any owner of a
Book-Entry Certificate that is not an Investment Grade Certificate) shall be
deemed to have represented and warranted that either: (i) such Transferee is not
a Plan and is not directly or indirectly purchasing this Certificate or any
interest herein on behalf of, as named fiduciary of, as trustee of, or with
assets of a Plan; or (ii) the purchase and holding of this Certificate or such
interest herein by such Transferee is exempt from the prohibited transaction
provisions of Sections 406(a) and (b) and 407 of ERISA and the excise taxes
imposed on such prohibited transactions by Sections 4975(a) and (b) of the Code
(or similar violation of Similar Law). Any Transferee of a Book-Entry
Certificate that is an Investment Grade Certificate that is being acquired by or
on behalf of a Plan in reliance on the Prohibited Transaction Exemption shall be
deemed to have represented and warranted that such Plan (X) is an accredited
investor as defined in Rule 501(a)(1) of Regulation D of the Securities Act, and
(Y) is not sponsored (within the meaning of Section 3(16)(B) of ERISA) by the
Trustee, the Depositor, the Mortgage Loan Seller, the Master Servicer, the
Special Servicer, any Sub-Servicer, any Exemption-Favored Party or any Mortgagor
with respect to Mortgage Loans constituting more than 5% of the aggregate
unamortized principal balance of all the Mortgage Loans determined as of the
Closing Date, or by any Affiliate of such Person.
No service charge will be imposed for any registration of transfer
or exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
Notwithstanding the foregoing, for so long as this Certificate is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC, transfers of interests in this Certificate
shall be made through the book-entry facilities of DTC.
The Holder of this Certificate, by its acceptance hereof, shall be
deemed to have agreed to keep confidential any information it obtains from the
Trustee (except that such Holder may provide any such information obtained by it
to any other Person that holds or is contemplating the purchase of this
Certificate or an interest herein, provided that such other Person confirms in
writing such ownership interest or prospective ownership interest and agrees to
keep such information confidential).
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Fiscal Agent, the Certificate Registrar and any agents of any of them may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Master Servicer, the
Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar or
any such agent shall be affected by notice to the contrary.
Subject to certain terms and conditions set forth in the Agreement,
the Trust and the obligations created by the Agreement shall terminate upon
distribution (or provision for distribution) to the Certificateholders of all
amounts held by or on behalf of the Trustee and required to be distributed to
them pursuant to the Agreement following the earlier of (i) the final payment
(or any advance with respect thereto) on or other liquidation of the last
Mortgage Loan or REO Property remaining in the Trust, (ii) the purchase by the
Depositor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer
or any Controlling Class Certificateholder at a price determined as provided in
the Agreement of all Mortgage Loans and any REO Properties remaining in the
Trust and (iii) the exchange by the sole remaining Certificateholder of all of
its Certificates for all of the Mortgage Loans and REO Properties remaining in
the Trust. The Agreement permits, but does not require, the Depositor, the
Mortgage Loan Seller, the Master Servicer, the Special Servicer or any
Controlling Class Certificateholder to purchase from the Trust all Mortgage
Loans and any REO Properties remaining therein. The exercise of such right will
effect early retirement of the Certificates; however, such right to purchase is
subject to the aggregate Stated Principal Balance of the Mortgage Pool at the
time of purchase being less than 1% of the Initial Trust Balance specified on
the face hereof. The Agreement also permits, but does not require, the sole
remaining Certificateholder to acquire all of the Mortgage Loans and any REO
Properties remaining in the Trust in exchange for all of the Certificates held
by such Certificateholder following the date on which the aggregate principal
balance of the Class A-1, Class A-2, Class A-3, Class A-4, Class B and Class C
Certificates are reduced to zero.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee and the Fiscal
Agent thereunder and the rights of the Certificateholders thereunder, at any
time by the Depositor, the Master Servicer, the Special Servicer, the Trustee
and the Fiscal Agent with the consent of the Holders of Certificates entitled to
at least 66 2/3% of the Voting Rights allocated to the affected Classes. Any
such consent by the Holder of this Certificate shall be conclusive and binding
on such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of either REMIC Pool as
a REMIC or the Grantor Trust as a grantor trust, without the consent of the
Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, without applying any conflicts of law principles of such state
(other than the provisions of Section 5-1401 of the New York General Obligations
Law), and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee
By:
--------------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class [K] [L] [M] [N] [O] [P] [Q] Certificates
referred to in the within-mentioned Agreement.
Dated: _____________
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By:
--------------------------------------
Authorized Officer
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address including postal zip
code of assignee)
the beneficial ownership interest in the Trust evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust.
I (we) further direct the issuance of a new Commercial Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and delivery of such Commercial Mortgage Pass-Through Certificate
to the following address:
________________________________________________________________________________
________________________________________________________________________________
Dated:
______________________________________
Signature by or on behalf of Assignor
______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to __________________________________
________________________________________ for the account of ____________________
__________________________________________________.
Distributions made by check (such check to be made payable to
_____________________________________) and all applicable statements and notices
should be mailed to ____________________________________________________________
___________________________.
This information is provided by ______________________________, the
assignee named above, or __________________________________, as its agent.
EXHIBIT A-6
FORM OF CLASS Y CERTIFICATE
COMMERCIAL MORTGAGE TRUST 2003-C1
CLASS Y COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2003-C1
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust (the "Trust"), whose assets consist primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans and a senior
portion of a mortgage loan (the "Mortgage Loans") and a junior portion of a
mortgage loan that will not be included in the Mortgage Pool, such pool being
formed and sold by
GREENWICH CAPITAL COMMERCIAL FUNDING CORP.
Pass-Through Rate: 7.0181% Initial Certificate Principal Balance of
this Certificate as of the Closing Date:
$2,500,347
Date of Pooling and Servicing Agreement: Class Principal Balance of all the Class
June 30, 2003 Y Certificates as of the Closing Date:
$2,500,347
Cut-off Date: June 1, 2003 Aggregate unpaid principal balance of
the Mortgage Pool as of the Cut-off
Closing Date: June 30, 2003 Date, after deducting payments of
principal due on or before such date:
$1,215,024,759
First Distribution Date: July 8, 2003
Master Servicer: Wachovia Bank, National Trustee: LaSalle Bank National
Association Association
Special Servicer: GMAC Commercial Fiscal Agent: ABN AMRO Bank N.V.
Mortgage Corporation
Certificate No. Y-1
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, PLEDGE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE OR ANY
INTEREST HEREIN WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A
TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH
IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE TO (A) ANY
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION
4975 OF THE INTERNAL REVENUE CODE OF 1986 (THE "CODE") OR ANY MATERIALLY SIMILAR
PROVISION OF APPLICABLE FEDERAL, STATE OR LOCAL LAW, OR (B) ANY PERSON WHO IS
DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR ANY INTEREST HEREIN ON
BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, EXCEPT IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN GREENWICH
CAPITAL COMMERCIAL FUNDING CORP., WACHOVIA BANK, NATIONAL ASSOCIATION, GMAC
COMMERCIAL MORTGAGE CORPORATION, LASALLE BANK NATIONAL ASSOCIATION, ABN AMRO
BANK N.V., OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR
THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES OR ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS, IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
ANY BENEFICIAL OWNER OF THIS CERTIFICATE THAT IS NOT A "U.S. PERSON" MAY BE
SUBJECT TO U.S. NET INCOME TAX AND RETURN FILING REQUIREMENTS OR TO INCOME TAX
UNDER SECTION 897 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, IF REAL
PROPERTY IS ACQUIRED FOLLOWING A DEFAULT ON THE OAKMONTE JUNIOR PORTION
REPRESENTED BY THIS CERTIFICATE.
THE OUTSTANDING CERTIFICATE PRINCIPAL BALANCE HEREOF AT ANY TIME MAY BE LESS
THAN THE AMOUNT SHOWN ABOVE.
This certifies that [_____________] is the registered owner of the
Percentage Interest evidenced by this Certificate (obtained by dividing the
principal balance of this Certificate (its "Certificate Principal Balance") as
of the Closing Date by the aggregate principal balance of all the Certificates
of the same Class as this Certificate (their "Class Principal Balance") as of
the Closing Date) in that certain beneficial ownership interest in the Trust
evidenced by all the Certificates of the same Class as this Certificate. The
Trust was created and the Certificates were issued pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among Greenwich
Capital Commercial Funding Corp. as depositor (the "Depositor", which term
includes any successor entity under the Agreement), Wachovia Bank, National
Association as master servicer (the "Master Servicer", which term includes any
successor entity under the Agreement), GMAC Commercial Mortgage Corporation as
special servicer (the "Special Servicer", which term includes any successor
entity under the Agreement), LaSalle Bank National Association as trustee (the
"Trustee", which term includes any successor entity under the Agreement) and ABN
AMRO Bank N.V. as fiscal agent (the "Fiscal Agent", which term includes any
successor entity under the Agreement), a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
the capitalized terms used herein have the respective meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound. In the event of any conflict between any provision of this
Certificate and any provision of the Agreement, such provision of this
Certificate shall be superseded to the extent of such inconsistency.
Pursuant to the terms of the Agreement, distributions will be made
monthly, commencing in July 2003. During any given month, the payment date will
be the 5th day of the month, or if such 5th day is not a Business Day, then the
Business Day immediately following such 5th day, provided that the payment date
will be at least 4 Business Days following the Determination Date (each, a
"Distribution Date"), commencing on the first Distribution Date specified above,
to the Person in whose name this Certificate is registered at the close of
business on the last Business Day of the month immediately preceding the month
of such distribution (or, in the case of the first Distribution Date, at the
close of business on the Closing Date specified above) (in any event, the
"Record Date"), in an amount equal to the product of the Percentage Interest
evidenced by this Certificate and the amount required to be distributed pursuant
to the Agreement on the applicable Distribution Date in respect of the Class of
Certificates to which this Certificate belongs. All distributions made under the
Agreement in respect of this Certificate will be made by the Trustee by wire
transfer in immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to (or, in the case of
the first such distribution, on) the Record Date for such distribution (which
wiring instructions may be in the form of a standing order applicable to all
subsequent distributions as well), or otherwise by check mailed to the address
of such Certificateholder appearing in the Certificate Register. Notwithstanding
the above, the final distribution in respect of this Certificate (determined
without regard to any possible future reimbursement of any Realized Loss or
Additional Trust Fund Expense previously allocated to this Certificate) will be
made after due notice by the Trustee of the pendency of such distribution and
only upon presentation and surrender of this Certificate at the offices of the
Certificate Registrar appointed as provided in the Agreement or such other
location as may be specified in such notice. Also notwithstanding the foregoing,
any distribution that may be made with respect to this Certificate in
reimbursement of any Realized Loss or Additional Trust Fund Expense previously
allocated to this Certificate, which reimbursement is to occur after the date on
which this Certificate is surrendered as contemplated by the preceding sentence,
will be made by check mailed to the address of the Holder that surrenders this
Certificate as such address last appeared in the Certificate Register or to any
such other address of which the Trustee is subsequently notified in writing.
Any distribution to the Holder of this Certificate in reduction of
the Certificate Principal Balance hereof is binding on such Holder and all
future Holders of this Certificate and any Certificate issued upon the transfer
hereof or in exchange herefor or in lieu hereof whether or not notation of such
distribution is made upon this Certificate.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Oakmonte Junior Portion, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Custodial Accounts, the Distribution Account
and, if established, the REO Accounts may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Oakmonte Apartment Homes Whole
Loan and the payment of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No direct or indirect transfer, sale, pledge, hypothecation or other
disposition (each, a "Transfer") of this Certificate or any interest herein
shall be made unless that Transfer is exempt from the registration and/or
qualification requirements of the Securities Act and any applicable state
securities laws, or is otherwise made in accordance with the Securities Act and
such state securities laws.
If a Transfer of this Certificate is to be made without registration
under the Securities Act, then the Certificate Registrar shall refuse to
register such Transfer unless it receives (and, upon receipt, may conclusively
rely upon) either: (i) a certificate from the Certificateholder desiring to
effect such Transfer substantially in the form attached as Exhibit F-1 to the
Agreement and a certificate from such Certificateholder's prospective Transferee
substantially in the form attached either as Exhibit F-2A to the Agreement or as
Exhibit F-2B to the Agreement; or (ii) an Opinion of Counsel satisfactory to the
Trustee to the effect that such Transferee is an Institutional Accredited
Investor or a Qualified Institutional Buyer and such Transfer may be made
without registration under the Securities Act (which Opinion of Counsel shall
not be an expense of the Trust Fund or of the Depositor, the Master Servicer,
the Special Servicer, the Tax Administrator, the Trustee, the Fiscal Agent or
the Certificate Registrar in their respective capacities as such), together with
the written certification(s) as to the facts surrounding such Transfer from the
Certificateholder desiring to effect such Transfer and/or such
Certificateholder's prospective Transferee on which such Opinion of Counsel is
based.
None of the Depositor, the Trustee or the Certificate Registrar is
obligated to register or qualify the Class of Certificates to which this
Certificate belongs, under the Securities Act or any other securities law or to
take any action not otherwise required under the Agreement to permit the
Transfer of this Certificate or any interest herein without such registration or
qualification. Any Certificateholder or Certificate Owner desiring to effect a
Transfer of this Certificate or any interest herein shall, and does hereby agree
to, indemnify the Depositor, Xxxxxx Xxxxxxx & Co. Incorporated, Credit Suisse
First Boston LLC, Greenwich Capital Markets Inc., the Trustee, the Master
Servicer, the Special Servicer, the Fiscal Agent, the Tax Administrator, the
Certificate Registrar and their respective Affiliates against any liability that
may result if such Transfer is not exempt from the registration and/or
qualification requirements of the Securities Act and any applicable state
securities laws or is not made in accordance with such federal and state laws.
No Transfer of this Certificate or any interest herein shall be made
to (A) any employee benefit plan or other retirement arrangement, including
individual retirement accounts and annuities, Xxxxx plans and collective
investment funds and separate accounts in which such plans, accounts or
arrangements are invested, including insurance company general accounts, that is
subject to Title I ERISA, Section 4975 of the Code or any materially similar
provision ("Similar Law") of applicable federal, state or local law (each, a
"Plan"), or (B) any Person who is directly or indirectly purchasing this
Certificate or such interest herein on behalf of, as named fiduciary of, as
trustee of, or with assets of a Plan, if the purchase and holding of this
Certificate or such interest herein by the prospective Transferee would result
in a violation of Section 406 or 407 of ERISA or Section 4975 of the Code or
would result in the imposition of an excise tax under Section 4975 of the Code
or any similar violation of Similar Law. The Certificate Registrar shall refuse
to register the Transfer of this Certificate unless it has received from the
prospective Transferee a certification to the effect that such prospective
Transferee is not a Plan and is not directly or indirectly purchasing this
Certificate or such interest herein on behalf of, as named fiduciary of, as
trustee of, or with assets of a Plan.
No service charge will be imposed for any registration of transfer
or exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
The Holder of this Certificate, by its acceptance hereof, shall be
deemed to have agreed to keep confidential any information it obtains from the
Trustee (except that such Holder may provide any such information obtained by it
to any other Person that holds or is contemplating the purchase of this
Certificate or an interest herein, provided that such other Person confirms in
writing such ownership interest or prospective ownership interest and agrees to
keep such information confidential).
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Fiscal Agent, the Certificate Registrar and any agents of any of them may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Master Servicer, the
Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar or
any such agent shall be affected by notice to the contrary.
Subject to certain terms and conditions set forth in the Agreement,
the Trust and the obligations created by the Agreement shall terminate upon
distribution (or provision for distribution) to the Certificateholders of all
amounts held by or on behalf of the Trustee and required to be distributed to
them pursuant to the Agreement following the earlier of (i) the final payment
(or any advance with respect thereto) on or other liquidation of the last
Mortgage Loan or REO Property remaining in the Trust, (ii) the purchase by the
Depositor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer
or any Controlling Class Certificateholder at a price determined as provided in
the Agreement of all Mortgage Loans and any REO Properties remaining in the
Trust and (iii) the exchange by the sole remaining Certificateholder (excluding
the Class Y Certificateholder) of all of its Certificates for all of the
Mortgage Loans and REO Properties remaining in the Trust. The Agreement permits,
but does not require, the Depositor, the Mortgage Loan Seller, the Master
Servicer, the Special Servicer or any Controlling Class Certificateholder to
purchase from the Trust all Mortgage Loans and the Oakmonte Junior Portion and
any REO Properties remaining therein. The exercise of such right will effect
early retirement of the Certificates; however, such right to purchase is subject
to the aggregate Stated Principal Balance of the Mortgage Pool at the time of
purchase being less than 1% of the initial aggregate Stated Principal Balance of
the Mortgage Pool specified on the face hereof. The Agreement also permits, but
does not require, the sole remaining Certificateholder (excluding the Class Y
Certificateholder) to acquire all of the Mortgage Loans and any REO Properties
remaining in the Trust in exchange for all of the Certificates held by such
Certificateholder following the date on which the aggregate principal balance of
the Class A-1, Class A-2, Class A-3, Class A-4, Class B and Class C Certificates
are reduced to zero. In the event of such exchange, the Class Y
Certificateholders will be required to surrender their Class Y Certificates in
exchange for the Oakmonte Junior Portion.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee and the Fiscal
Agent thereunder and the rights of the Certificateholders thereunder, at any
time by the Depositor, the Master Servicer, the Special Servicer, the Trustee
and the Fiscal Agent with the consent of the Holders of Certificates entitled to
at least 66 2/3% of the Voting Rights allocated to the affected Classes. Any
such consent by the Holder of this Certificate shall be conclusive and binding
on such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of either REMIC Pool as
a REMIC or the Grantor Trust as a grantor trust, without the consent of the
Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, without applying any conflicts of law principles of such state
(other than the provisions of Section 5-1401 of the New York General Obligations
Law), and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee
By:
-----------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class Y Certificates referred to in the
within-mentioned Agreement.
Dated: _____________
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By:
-----------------------------------
Authorized Officer
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address including postal zip
code of assignee)
the beneficial ownership interest in the Trust evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust.
I (we) further direct the issuance of a new Commercial Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and delivery of such Commercial Mortgage Pass-Through Certificate
to the following address:
________________________________________________________________________________
________________________________________________________________________________
Dated:
______________________________________
Signature by or on behalf of Assignor
______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to __________________________________
________________________________________ for the account of ____________________
__________________________________________________.
Distributions made by check (such check to be made payable to
_____________________________________) and all applicable statements and notices
should be mailed to ____________________________________________________________
___________________________.
This information is provided by ______________________________, the
assignee named above, or __________________________________, as its agent.
EXHIBIT A-7
FORM OF CLASS [R-I] [R-II] CERTIFICATE
COMMERCIAL MORTGAGE TRUST 2003-C1
CLASS [R-I] [R-II] COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATE,
SERIES 2003-C1
This is one of a series of commercial mortgage pass-through certificates
(collectively, the "Certificates"), issued in multiple classes (each, a
"Class"), which series of Certificates evidences the entire beneficial ownership
interest in a trust (the "Trust"), whose assets consist primarily of a pool (the
"Mortgage Pool") of multifamily and commercial mortgage loans (the "Mortgage
Loans"), such pool being formed and sold by
GREENWICH CAPITAL COMMERCIAL FUNDING CORP.
Date of Pooling and Servicing Agreement: Percentage Interest evidenced by this
June 30, 2003 Certificate in the related Class: ___%
Cut-off Date: June 1, 0000 Xxxxxxxxx unpaid principal balance of the
Mortgage Pool as of the Cut-off Date,
Closing Date: June 30, 2003 after deducting payments of principal due
on or before such date: $1,215,024,759
First Distribution Date: July 8, 2003
Master Servicer: Wachovia Bank, National Trustee: LaSalle Bank National
Association Association
Special Servicer: GMAC Commercial Fiscal Agent: ABN AMRO Bank N.V.
Mortgage Corporation
Certificate No. [R-I] [R-II]-___ CUSIP No.: _____________
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
ANY RESALE, PLEDGE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE OR ANY
INTEREST HEREIN WITHOUT SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A
TRANSACTION WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH
IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING AND
SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE TO (A) ANY
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT SUBJECT TO THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), SECTION
4975 OF THE INTERNAL REVENUE CODE OF 1986 (THE "CODE") OR ANY MATERIALLY SIMILAR
PROVISION OF APPLICABLE FEDERAL, STATE OR LOCAL LAW, OR (B) ANY PERSON WHO IS
DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR ANY INTEREST HEREIN ON
BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH ASSETS OF ANY SUCH
RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR ARRANGEMENT, EXCEPT IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR INTEREST IN GREENWICH
CAPITAL COMMERCIAL FUNDING CORP., WACHOVIA BANK, NATIONAL ASSOCIATION, GMAC
COMMERCIAL MORTGAGE CORPORATION, LASALLE BANK NATIONAL ASSOCIATION, ABN AMRO
BANK N.V., OR ANY OF THEIR RESPECTIVE AFFILIATES. NEITHER THIS CERTIFICATE NOR
THE MORTGAGE LOANS ARE GUARANTEED BY ANY AGENCY OR INSTRUMENTALITY OF THE UNITED
STATES OR ANY OTHER PERSON.
THE CLASS OF CERTIFICATES TO WHICH THIS CERTIFICATE BELONGS, IS SUBORDINATE TO
ONE OR MORE OTHER CLASSES OF CERTIFICATES OF THE SAME SERIES, AS AND TO THE
EXTENT PROVIDED IN THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
SOLELY FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A "RESIDUAL
INTEREST" IN A "REAL ESTATE MORTGAGE INVESTMENT CONDUIT" (A "REMIC") AS THOSE
TERMS ARE DEFINED, RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL
REVENUE CODE OF 1986 (THE "CODE"). CONSEQUENTLY, THE TRANSFER OF THIS
CERTIFICATE IS ALSO SUBJECT TO THE ADDITIONAL TAX RELATED TRANSFER RESTRICTIONS
DESCRIBED HEREIN. IF ANY PERSON BECOMES THE REGISTERED HOLDER OF THIS
CERTIFICATE IN VIOLATION OF SUCH TRANSFER RESTRICTIONS, SUCH REGISTRATION SHALL
BE DEEMED TO BE OF NO LEGAL FORCE OR EFFECT WHATSOEVER AND SUCH PERSON SHALL NOT
BE DEEMED TO BE A CERTIFICATEHOLDER FOR ANY PURPOSE HEREUNDER OR UNDER THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN, INCLUDING, BUT NOT LIMITED
TO, THE RECEIPT OF DISTRIBUTIONS ON THIS CERTIFICATE.
This certifies that _______________________________ is the
registered owner of the Percentage Interest evidenced by this Certificate (as
specified above) in that certain beneficial ownership interest in the Trust
evidenced by all the Certificates of the same Class as this Certificate. The
Trust was created and the Certificates were issued pursuant to a Pooling and
Servicing Agreement, dated as specified above (the "Agreement"), among Greenwich
Capital Commercial Funding Corp. as depositor (the "Depositor", which term
includes any successor entity under the Agreement), Wachovia Bank, National
Association as master servicer (the "Master Servicer", which term includes any
successor entity under the Agreement), GMAC Commercial Mortgage Corporation as
special servicer (the "Special Servicer", which term includes any successor
entity under the Agreement), LaSalle Bank National Association as trustee (the
"Trustee", which term includes any successor entity under the Agreement) and ABN
AMRO Bank N.V. as fiscal agent (the "Fiscal Agent", which term includes any
successor entity under the Agreement), a summary of certain of the pertinent
provisions of which is set forth hereafter. To the extent not defined herein,
the capitalized terms used herein have the respective meanings assigned in the
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound. In the event of any conflict between any provision of this
Certificate and any provision of the Agreement, such provision of this
Certificate shall be superseded to the extent of such inconsistency.
Pursuant to the terms of the Agreement, distributions will be made
monthly, commencing in July 2003. During any given month, the payment date will
be the 5th day of the month, or if such 5th day is not a Business Day, then the
Business Day immediately following such 5th day, provided that the payment date
will be at least 4 Business Days following the Determination Date (each, a
"Distribution Date"), commencing on the first Distribution Date specified above,
to the Person in whose name this Certificate is registered at the close of
business on the last Business Day of the month immediately preceding the month
of such distribution (or, in the case of the first Distribution Date, at the
close of business on the Closing Date specified above) (in any event, the
"Record Date"), in an amount equal to the product of the Percentage Interest
evidenced by this Certificate and the amount required to be distributed pursuant
to the Agreement on the applicable Distribution Date in respect of the Class of
Certificates to which this Certificate belongs. All distributions made under the
Agreement in respect of this Certificate will be made by the Trustee by wire
transfer in immediately available funds to the account of the Person entitled
thereto at a bank or other entity having appropriate facilities therefor, if
such Certificateholder shall have provided the Trustee with written wiring
instructions no less than five (5) Business Days prior to (or, in the case of
the first such distribution, on) the Record Date for such distribution (which
wiring instructions may be in the form of a standing order applicable to all
subsequent distributions as well), or otherwise by check mailed to the address
of such Certificateholder appearing in the Certificate Register. Notwithstanding
the above, the final distribution in respect of this Certificate will be made
after due notice by the Trustee of the pendency of such distribution and only
upon presentation and surrender of this Certificate at the offices of the
Certificate Registrar appointed as provided in the Agreement or such other
location as may be specified in such notice.
The Certificates are limited in right of distribution to certain
collections and recoveries respecting the Mortgage Loans, all as more
specifically set forth herein and in the Agreement. As provided in the
Agreement, withdrawals from the Custodial Accounts, the Distribution Account
and, if established, the REO Accounts may be made from time to time for purposes
other than, and, in certain cases, prior to, distributions to
Certificateholders, such purposes including the reimbursement of advances made,
or certain expenses incurred, with respect to the Mortgage Loans and the payment
of interest on such advances and expenses.
The Certificates are issuable in fully registered form only without
coupons in minimum denominations specified in the Agreement. As provided in the
Agreement and subject to certain limitations therein set forth, the Certificates
are exchangeable for new Certificates of the same Class in authorized
denominations evidencing the same aggregate Percentage Interest, as requested by
the Holder surrendering the same.
As provided in the Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices of the Certificate Registrar, duly endorsed by, or
accompanied by a written instrument of transfer in the form satisfactory to the
Certificate Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Certificates of the same
Class in authorized denominations evidencing the same aggregate Percentage
Interest will be issued to the designated transferee or transferees.
No direct or indirect transfer, sale, pledge, hypothecation or other
disposition (each, a "Transfer") of this Certificate or any interest herein
shall be made unless that Transfer is exempt from the registration and/or
qualification requirements of the Securities Act and any applicable state
securities laws, or is otherwise made in accordance with the Securities Act and
such state securities laws.
If a Transfer of this Certificate is to be made without registration
under the Securities Act, then the Certificate Registrar shall refuse to
register such Transfer unless it receives (and, upon receipt, may conclusively
rely upon) either: (i) a certificate from the Certificateholder desiring to
effect such Transfer substantially in the form attached as Exhibit F-1 to the
Agreement and a certificate from such Certificateholder's prospective Transferee
substantially in the form attached either as Exhibit F-2A to the Agreement or as
Exhibit F-2B to the Agreement; or (ii) an Opinion of Counsel satisfactory to the
Trustee to the effect that such Transferee is an Institutional Accredited
Investor or a Qualified Institutional Buyer and such Transfer may be made
without registration under the Securities Act (which Opinion of Counsel shall
not be an expense of the Trust Fund or of the Depositor, the Master Servicer,
the Special Servicer, the Tax Administrator, the Trustee, the Fiscal Agent or
the Certificate Registrar in their respective capacities as such), together with
the written certification(s) as to the facts surrounding such Transfer from the
Certificateholder desiring to effect such Transfer and/or such
Certificateholder's prospective Transferee on which such Opinion of Counsel is
based.
None of the Depositor, the Trustee or the Certificate Registrar is
obligated to register or qualify the Class of Certificates to which this
Certificate belongs, under the Securities Act or any other securities law or to
take any action not otherwise required under the Agreement to permit the
Transfer of this Certificate or any interest herein without such registration or
qualification. Any Certificateholder desiring to effect a Transfer of this
Certificate or any interest herein shall, and does hereby agree to, indemnify
the Depositor, Xxxxxx Xxxxxxx & Co. Incorporated, Credit Suisse First Boston
LLC, Greenwich Capital Markets Inc., the Trustee, the Master Servicer, the
Special Servicer, the Fiscal Agent, the Tax Administrator, the Certificate
Registrar and their respective Affiliates against any liability that may result
if such Transfer is not exempt from the registration and/or qualification
requirements of the Securities Act and any applicable state securities laws or
is not made in accordance with such federal and state laws.
No Transfer of this Certificate or any interest herein shall be made
to (A) any employee benefit plan or other retirement arrangement, including
individual retirement accounts and annuities, Xxxxx plans and collective
investment funds and separate accounts in which such plans, accounts or
arrangements are invested, including insurance company general accounts, that is
subject to Title I ERISA, Section 4975 of the Code or any materially similar
provision ("Similar Law") of applicable federal, state or local law (each, a
"Plan"), or (B) any Person who is directly or indirectly purchasing this
Certificate or such interest herein on behalf of, as named fiduciary of, as
trustee of, or with assets of a Plan. The Certificate Registrar shall refuse to
register the Transfer of a Definitive Non-Registered Certificate unless it has
received from the prospective Transferee a certification to the effect that such
prospective Transferee is not a Plan and is not directly or indirectly
purchasing this Certificate on behalf of, as named fiduciary of, as trustee of,
or with assets of a Plan.
Each Person who has or who acquires any Ownership Interest in this
Certificate shall be deemed by the acceptance or acquisition of such Ownership
Interest to have agreed to be bound by the provisions of Section 5.02(d) of the
Agreement and, if any purported Transferee shall become a Holder of this
Certificate in violation of the provisions of such Section 5.02(d), to have
irrevocably authorized the Trustee under clause (ii)(A) of such Section 5.02(d)
to deliver payments to a Person other than such Person and to have irrevocably
authorized the Trustee under clause (ii)(B) of such Section 5.02(d) to negotiate
the terms of any mandatory disposition and to execute all instruments of
transfer and to do all other things necessary in connection with any such
disposition. Each Person holding or acquiring any Ownership Interest in this
Certificate must be a Permitted Transferee and shall promptly notify the Trustee
and the Tax Administrator of any change or impending change in its status as a
Permitted Transferee. In connection with any proposed Transfer of any Ownership
Interest in this Certificate, the Certificate Registrar shall require delivery
to it, and shall not register the transfer of this Certificate until its receipt
of, an affidavit and agreement substantially in the form attached as Exhibit H-1
to the Agreement (a "Transfer Affidavit and Agreement") from the proposed
Transferee, representing and warranting, among other things, that such
Transferee is a Permitted Transferee, that it is not acquiring its Ownership
Interest in this Certificate as a nominee, trustee or agent for any Person that
is not a Permitted Transferee, that for so long as it retains its Ownership
Interest in this Certificate, it will endeavor to remain a Permitted Transferee,
and that it has reviewed the provisions of Section 5.02(d) of the Agreement and
agrees to be bound by them. Notwithstanding the delivery of a Transfer Affidavit
and Agreement by a proposed Transferee, if the Certificate Registrar has actual
knowledge that the proposed Transferee is not a Permitted Transferee, the
Certificate Registrar shall not register the Transfer of an Ownership Interest
in this Certificate to such proposed Transferee. In addition, the Certificate
Registrar shall not register the transfer of an Ownership Interest in this
Certificate to any entity classified as a partnership under the Code unless at
the time of transfer, all of its beneficial owners are United States Persons.
Each Person holding or acquiring any Ownership Interest in this
Certificate shall agree (x) to require a Transfer Affidavit and Agreement from
any other Person to whom such Person attempts to Transfer its Ownership Interest
herein and (y) not to Transfer its Ownership Interest herein unless it provides
to the Certificate Registrar a certificate substantially in the form attached as
Exhibit H-2 to the Agreement stating that, among other things, it has no actual
knowledge that such other Person is not a Permitted Transferee. Each Person
holding or acquiring an Ownership Interest in this Certificate, by purchasing
such Ownership Interest herein, agrees to give the Trustee and the Tax
Administrator written notice that it is a "pass-through interest holder" within
the meaning of temporary Treasury Regulations Section 1.67-3T(a)(2)(i)(A)
immediately upon acquiring such Ownership Interest, if it is, or is holding such
Ownership Interest on behalf of, a "pass-through interest holder".
The provisions of Section 5.02(d) of the Agreement may be modified,
added to or eliminated, provided that there shall have been delivered to the
Trustee and the Tax Administrator the following: (a) written confirmation from
each Rating Agency to the effect that the modification of, addition to or
elimination of such provisions will not cause such Rating Agency to withdraw,
qualify or downgrade its then-current rating of any Class of Certificates; and
(b) an opinion of counsel, in form and substance satisfactory to the Trustee and
the Tax Administrator, to the effect that such modification of, addition to or
elimination of such provisions will not (i) cause either REMIC Pool to (A) cease
to qualify as a REMIC or (B) be subject to an entity-level tax caused by the
Transfer of a Residual Interest Certificate to a Person which is not a Permitted
Transferee, or (ii) cause a Person other than the prospective Transferee to be
subject to a REMIC-related tax caused by the Transfer of a Residual Interest
Certificate to a Person that is not a Permitted Transferee.
A "Permitted Transferee" is any Transferee that is not (i) a
Disqualified Organization, (ii) any Person as to whom the transfer of this
Certificate may cause either REMIC Pool to fail to qualify as a REMIC, (iii) a
Disqualified Non-United States Tax Person, (iv) a Disqualified Partnership or
(v) a United States Tax Person with respect to whom income is attributable to, a
foreign permanent establishment or fixed base (within the meaning of any
applicable income tax treaty between the United States and any foreign
jurisdiction) of a United States Tax Person.
A "Disqualified Organization" is (i) the United States, any State or
political subdivision thereof, a foreign government, an international
organization, or any agency or instrumentality of any of the foregoing, (ii) any
organization (other than certain farmers' cooperatives described in Section 521
of the Code) that is exempt from the tax imposed by Chapter 1 of the Code
(unless such organization is subject to the tax imposed by Section 511 of the
Code on unrelated business taxable income), (iii) rural electric and telephone
cooperatives described in Section 1381 of the Code and (iv) any other Person so
designated by the Trustee or Tax Administrator based upon an opinion of counsel
that the holding of an Ownership Interest in a Residual Interest Certificate by
such Person may cause the Trust Fund or any Person having an Ownership Interest
in any Class of Certificates (other than such Person) to incur a liability for
any federal tax imposed under the Code that would not otherwise be imposed but
for the Transfer of an Ownership Interest in a Residual Interest Certificate to
such Person. The terms "United States", "State" and "international organization"
shall have the meanings set forth in Section 7701 of the Code or successor
provisions.
A "Disqualified Non-United States Tax Person" is, with respect to
any Residual Interest Certificate, any Non-United States Tax Person or agent
thereof other than: (1) a Non-United States Tax Person that (a) holds such
Residual Interest Certificate and, for purposes of Treasury regulation section
1.860G-3(a)(3), is subject to tax under Section 882 of the Code, (b) certifies
that it understands that, for purposes of Treasury regulation section
1.860E-1(c)(4)(ii), as a Holder of such Residual Interest Certificate for United
States federal income tax purposes, it may incur tax liabilities in excess of
any cash flows generated by such Residual Interest Certificate and intends to
pay taxes associated with holding such Residual Interest Certificate, and (c)
has furnished the Transferor and the Trustee with an effective IRS Form W-8ECI
or successor form and has agreed to update such form as required under the
applicable Treasury regulations; or (2) a Non-United States Tax Person that has
delivered to the Transferor, the Trustee and the Certificate Registrar an
opinion of nationally recognized tax counsel to the effect that (x) the Transfer
of such Residual Interest Certificate to it is in accordance with the
requirements of the Code and the regulations promulgated thereunder and (y) such
Transfer of such Residual Interest Certificate will not be disregarded for
United States federal income tax purposes.
A "Disqualified Partnership" is any domestic entity classified as a
partnership under the Code, if any of its beneficial owners are Disqualified
Non-United States Tax Persons.
A "Non-United States Tax Person" is any Person other than a United
States Tax Person. A "United States Tax Person" is a citizen or resident of the
United States, a corporation, partnership or other entity created or organized
in, or under the laws of, the United States, any state thereof or the District
of Columbia, or an estate whose income from sources without the United States is
includable in gross income for United States federal income tax purposes
regardless of its connection with the conduct of a trade or business within the
United States, or a trust if a court within the United States is able to
exercise primary supervision over the administration of the trust and one or
more United States persons have the authority to control all substantial
decisions of the trust (or to the extent provided in the Treasury regulations,
if the trust was in existence on August 20, 1996 and elected to be treated as a
United States Person), all within the meaning of Section 7701(a)(30) of the
Code.
No service charge will be imposed for any registration of transfer
or exchange of Certificates, but the Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer or exchange of
Certificates.
The Holder of this Certificate, by its acceptance hereof, shall be
deemed to have agreed to keep confidential any information it obtains from the
Trustee (except that such Holder may provide any such information obtained by it
to any other Person that holds or is contemplating the purchase of this
Certificate or an interest herein, provided that such other Person confirms in
writing such ownership interest or prospective ownership interest and agrees to
keep such information confidential).
Prior to due presentment of this Certificate for registration of
transfer, the Depositor, the Master Servicer, the Special Servicer, the Trustee,
the Fiscal Agent, the Certificate Registrar and any agents of any of them may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Depositor, the Master Servicer, the
Special Servicer, the Trustee, the Fiscal Agent, the Certificate Registrar or
any such agent shall be affected by notice to the contrary.
Subject to certain terms and conditions set forth in the Agreement,
the Trust and the obligations created by the Agreement shall terminate upon
distribution (or provision for distribution) to the Certificateholders of all
amounts held by or on behalf of the Trustee and required to be distributed to
them pursuant to the Agreement following the earlier of (i) the final payment
(or any advance with respect thereto) on or other liquidation of the last
Mortgage Loan or REO Property remaining in the Trust, (ii) the purchase by the
Depositor, the Mortgage Loan Seller, the Master Servicer, the Special Servicer
or any Controlling Class Certificateholder at a price determined as provided in
the Agreement of all Mortgage Loans and any REO Properties remaining in the
Trust and (iii) the exchange by the sole remaining Certificateholder of all of
its Certificates for all of the Mortgage Loans and REO Properties remaining in
the Trust. The Agreement permits, but does not require, the Depositor, the
Mortgage Loan Seller, the Master Servicer, the Special Servicer or any
Controlling Class Certificateholder to purchase from the Trust all Mortgage
Loans and any REO Properties remaining therein. The exercise of such right will
effect early retirement of the Certificates; however, such right to purchase is
subject to the aggregate Stated Principal Balance of the Mortgage Pool at the
time of purchase being less than 1% of the Initial Trust Balance specified on
the face hereof. The Agreement also permits, but does not require, the sole
remaining Certificateholder to acquire all of the Mortgage Loans and any REO
Properties remaining in the Trust in exchange for all of the Certificates held
by such Certificateholder following the date on which the aggregate principal
balance of the Class A-1, Class A-2, Class A-3, Class A-4, Class B and Class C
Certificates are reduced to zero.
The Agreement permits, with certain exceptions therein provided, the
amendment thereof, and the modification of the rights and obligations of the
Depositor, the Master Servicer, the Special Servicer, the Trustee and the Fiscal
Agent thereunder and the rights of the Certificateholders thereunder, at any
time by the Depositor, the Master Servicer, the Special Servicer, the Trustee
and the Fiscal Agent with the consent of the Holders of Certificates entitled to
at least 66 2/3% of the Voting Rights allocated to the affected Classes. Any
such consent by the Holder of this Certificate shall be conclusive and binding
on such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain circumstances,
including any amendment necessary to maintain the status of either REMIC Pool as
a REMIC or the Grantor Trust as a grantor trust, without the consent of the
Holders of any of the Certificates.
Unless the certificate of authentication hereon has been executed by
the Certificate Registrar, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement or be valid for any purpose.
The registered Holder hereof, by its acceptance hereof, agrees that
it will look solely to the Trust (to the extent of its rights therein) for
distributions hereunder.
This Certificate shall be construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
in said State, without applying any conflicts of law principles of such state
(other than the provisions of Section 5-1401 of the New York General Obligations
Law), and the obligations, rights and remedies of the Holder hereof shall be
determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed.
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee
By:
-----------------------------------
Authorized Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Class [R-I] [R-II] Certificates referred to in
the within-mentioned Agreement.
Dated: _____________
LASALLE BANK NATIONAL ASSOCIATION,
as Certificate Registrar
By:
-----------------------------------
Authorized Officer
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
________________________________________________________________________________
(please print or typewrite name and address including postal zip
code of assignee)
the beneficial ownership interest in the Trust evidenced by the within
Commercial Mortgage Pass-Through Certificate and hereby authorize(s) the
registration of transfer of such interest to the above named assignee on the
Certificate Register of the Trust.
I (we) further direct the issuance of a new Commercial Mortgage
Pass-Through Certificate of a like Percentage Interest and Class to the above
named assignee and delivery of such Commercial Mortgage Pass-Through Certificate
to the following address:
________________________________________________________________________________
________________________________________________________________________________
Dated:
______________________________________
Signature by or on behalf of Assignor
______________________________________
Signature Guaranteed
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of
distribution:
Distributions shall, if permitted, be made by wire transfer or
otherwise, in immediately available funds, to __________________________________
________________________________________ for the account of ____________________
__________________________________________________.
Distributions made by check (such check to be made payable to
_____________________________________) and all applicable statements and notices
should be mailed to ____________________________________________________________
___________________________.
This information is provided by ______________________________, the
assignee named above, or __________________________________, as its agent.
EXHIBIT B
FORM OF DISTRIBUTION DATE STATEMENT
ABN AMRO GREENWICH CAPITAL COMMERCIAL FUNDING CORP., Statement Date:
LaSalle Bank N.A. COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES Payment Date:
000 X. XxXxxxx Xxxxxx Xxxxx 0000 SERIES 2003-C1 Prior Payment:
Xxxxxxx, XX 00000 Next Payment:
Record Date:
ABN AMRO ACCT:
Administrator: Analyst:
REPORTING PACKAGE TABLE OF CONTENTS
Xxxxx X. Xxxxxx (000) 000-0000
Xxxxx.X.Xxxxxx@xxxxxxx.xxx
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Page(s)
Statements to Certificateholders Page 2
Issue Id: GCCF03C1 Cash Reconciliation Summary Page 3 Closing Date:
Monthly Data File Name: Bond Interest Reconciliation Page 4 First Payment Date:
GCCF03C1_200306_3.zip Asset-Backed Facts~15 Month Historical Assumed Final Payment Date:
Loan Status Summary Page 5
Asset-Backed Facts~15 Month Historical
Payoff/Loss Summary Page 6
Delinquent Loan Detail Page 7
Historical Collateral Level Prepayment Report Page 8
Mortgage Loan Characteristics Page 9-11
Loan Level Detail Page 12
Specially Serviced (Part I)~Loan Detail Page 13
Specially Serviced Loan Detail
(Part II)~Servicer Comments Page 14
Modified Loan Detail Page 15
Realized Loss Detail Page 16
Appraisal Reduction Detail Page 17
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PARTIES TO THE TRANSACTION
MASTER SERVICER: Wachovia Bank, N.A.
SPECIAL SERVICER: GMAC Commercial Mortgage Corporation
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INFORMATION IS AVAILABLE FOR THIS ISSUE FROM THE FOLLOWING SOURCES
-------------------------------------------------------------------------------
LaSalle Web Site Servicer Website LaSalle Factor Line xxx.xxxxxxxx.xxx
xxx.xxxxxxxx.xxx
(000) 000-0000
------------------------------------------------------------------------------------------------------------------------------------
ABN AMRO GREENWICH CAPITAL COMMERCIAL FUNDING CORP., Statement Date:
LaSalle Bank N.A. COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES Payment Date:
SERIES 2003-C1 Prior Payment:
Next Payment:
Record Date:
WAC: ABN AMRO ACCT:
WA Life Term:
WA Amort Term:
Current Index:
Next Index:
------------------------------------------------------------------------------------------------------------------------------------
PASS-THROUGH
CLASS ORIGINAL OPENING PRINCIPAL PRINCIPAL NEGATIVE CLOSING INTEREST INTEREST RATE
CUSIP FACE VALUE (1) BALANCE PAYMENT ADJ. OR LOSS AMORTIZATION BALANCE PAYMENT (2) ADJUSTMENT Next Rate (3)
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Total P&I Payment 0.00
------------------------------------------------------------------------------------------------------------------------------------
ABN AMRO GREENWICH CAPITAL COMMERCIAL FUNDING CORP., Statement Date:
LaSalle Bank N.A. COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES Payment Date:
SERIES 2003-C1 Prior Payment:
Next Payment:
ABN AMRO ACCT: Record Date:
BOND INTEREST RECONCILIATION
-------------------------------------------------------------------------------------------------------------------------------
Deductions Additions
--------------------------------------------------------------------------------------
Accrual Pass Accrued Add. Deferred & Prior Prepay- Other
----------- Thru Certificate Allocable Trust Accretion Interest Int. Short- Ment Interest
Class Method Days Rate Interest PPIS Expense(1) Interest Losses Falls Due Penalties Proceeds(2)
-------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------
Table Continued
--------------------------------------------------------------------
Remaining
Distributable Interest Outstanding Credit Support
Certificate Payment Interest --------------------
Class Interest Amount Shortfalls Original Current(3)
--------------------------------------------------------------------
--------------------------------------------------------------------
--------------------------------------------------------------------
(1) Additional Trust Expenses are fees allocated directly to the bond resulting in a deduction to accrued interest.
(2) Other Interest Proceeds include default interest, PPIE, interest due on outstanding losses, interest due on outstanding
shortfalls and recoveries of interest and recoveries of interest.
(3) Determined as follows: (A) the ending balance of all the classes less (B) the sum of (i) the ending balance of the class and
(ii) the ending balance of all classes which are not subordinate to the class divided by (A).
ABN AMRO GREENWICH CAPITAL COMMERCIAL FUNDING CORP., Statement Date:
LaSalle Bank N.A. COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES Payment Date:
SERIES 2003-C1 Prior Payment:
Next Payment:
ABN AMRO ACCT: Record Date:
CASH RECONCILIATION SUMMARY
-------------------------------------- ------------------------------------------------------------------------------------------
INTEREST SUMMARY SERVICING FEE SUMMARY PRINCIPAL SUMMARY
-------------------------------------- ------------------------------------------------------------------------------------------
Current Scheduled Interest Current Servicing Fees SCHEDULED PRINCIPAL:
Less Deferred Interest Plus Fees Advanced for PPIS -------------------
Plus Advance Interest Less Reduction for PPIS Current Scheduled Principal
Plus Unscheduled Interest Plus Unscheduled Servicing Fees Advanced Scheduled Principal
PPIS Reducing Scheduled Interest Total Servicing Fees Paid --------------------------------------------
Less Total Fees Paid To Servicer -------------------------------------- Scheduled Principal Distribution
Plus Fees Advanced for PPIS PPIS SUMMARY --------------------------------------------
Less Fee Strips Paid by Servicer -------------------------------------- UNSCHEDULED PRINCIPAL:
Less Misc. Fees & Expenses Gross PPIS --------------------------------------------
Less Non Recoverable Advances Reduced by PPIE Curtailments
-------------------------------------- Reduced by Shortfalls in Fees Prepayments in Full
Interest Due Trust Reduced by Other Amounts Liquidation Proceeds
-------------------------------------- Net PPIS Repurchase Proceeds
Less Trustee Fee PPIS Reducing Servicing Fee Other Principal Proceeds
Less Fee Strips Paid by Trust PPIS Due Certificate --------------------------------------------
Less Misc. Fees Paid by Trust* Unscheduled Principal Distribution
Less Interest Reserve Withholding --------------------------------------------
Plus Interest Reserve Deposit Remittance Principal
-------------------------------------- --------------------------------------------
Remittance Interest Servicer Wire Amount
-------------------------------------- -------------------------------------- --------------------------------------------
POOL BALANCE SUMMARY
--------------------------------------
*Owner Trustee Reimbursement Balance Count
--------------------------------------
Beginning Pool
Scheduled Principal Distribution
Unscheduled Principal Distribution
Deferred Interest
Liquidations
Repurchases
Ending Pool
------------------------------------------------------------------------------------------------------------------------------------
ADVANCES
PRIOR OUTSTANDING CURRENT PERIOD RECOVERED ENDING OUTSTANDING
Principal Interest Principal Interest Principal Interest Principal Interest
------------------------------------------------------------------------------------------------------------------------------------
ABN AMRO GREENWICH CAPITAL COMMERCIAL FUNDING CORP., Statement Date:
LaSalle Bank N.A. COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES Payment Date:
SERIES 2003-C1 Prior Payment:
Next Payment:
ABN AMRO ACCT: Record Date:
ASSET BACKED FACTS ~15 MONTH HISTORICAL LOAN STATUS SUMMARY
------------------------------------------------------------------------------------------------------------------------------------
DELINQUENCY AGING CATEGORIES Special Event Categories (1)
------------------------------------------------------------------------------------------------------------------------------------
Specially
Distribution Delinq 1 Month Delinq 2 Months Delinq 3+ Months Foreclosure REO Modifications Serviced Bankruptcy
Date # Balance # Balance # Balance # Balance # Balance # Balance # Balance # Balance
------------------------------------------------------------------------------------------------------------------------------------
01/00/00
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
(1) Note: Modification, Specially Serviced & Bankruptcy Totals are Included in the Appropriate Delinquency Aging Category
ABN AMRO GREENWICH CAPITAL COMMERCIAL FUNDING CORP., Statement Date:
LaSalle Bank N.A. COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES Payment Date:
SERIES 2003-C1 Prior Payment:
Next Payment:
ABN AMRO ACCT: Record Date:
ASSET BACKED FACTS ~15 MONTH HISTORICAL PAYOFF/LOSS SUMMARY
------------------------------------------------------------------------------------------------------------------------------------
Appraisal Liquidations Realized Remaining Curr
Ending Pool (1) Payoffs (2) Penalties Reduct. (2) (2) Losses (2) Term Weighted Avg.
Distribution ----------------------------------------------------------------------------------------------------------------------
Date # Balance # Balance # Amount # Balance # Balance # Amount Life Coupon Remit
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
(1) Percentage based on pool as of cutoff. (2) Percentage based on pool as of beginning of period.
ABN AMRO GREENWICH CAPITAL COMMERCIAL FUNDING CORP., Statement Date:
LaSalle Bank N.A. COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES Payment Date:
SERIES 2003-C1 Prior Payment:
Next Payment:
ABN AMRO ACCT: Record Date:
DELINQUENT LOAN DETAIL
------------------------------------------------------------------------------------------------------------------------------------
Paid Current Outstanding Out. Property Special
Disclosure Doc Thru P&I P&I Protection Loan Servicer Foreclosure Bankruptcy REO
Control # Date Advance Advances** Advances Status Code (1) Transfer Date Date Date Date
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
A. P&I Advance - Loan in Grace Period 1. delinquent 1 month 3. delinquent 3 months or More
B. P&I Advance - Late Payment but < one month delinq 2. delinquent 2 months 4. Performing Matured Balloons
------------------------------------------------------------------------------------------------------------------------------------
--------------------------------------
5. Non-Performing Matured Balloons
7. Foreclosure
9. REO
--------------------------------------
** Outstanding P&I Advances include the current period P&I Advance
ABN AMRO GREENWICH CAPITAL COMMERCIAL FUNDING CORP., Statement Date:
LaSalle Bank N.A. COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES Payment Date:
SERIES 2003-C1 Prior Payment:
Next Payment:
ABN AMRO ACCT: Record Date:
HISTORICAL COLLATERAL LEVEL PREPAYMENT REPORT
------------------------------------------------------------------------------------------------------------------------------------
Disclosure Payoff Initial Payoff Penalty Prepayment Maturity Property
Control # Period Balance Type Amount Amount Date Date Type Geographic Location
------------------------------------------------------------------------------------------------------------------------------------
CURRENT
----------------
CUMULATIVE
----------------
ABN AMRO GREENWICH CAPITAL COMMERCIAL FUNDING CORP., Statement Date:
LaSalle Bank N.A. COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES Payment Date:
SERIES 2003-C1 Prior Payment:
Next Payment:
ABN AMRO ACCT: Record Date:
MORTGAGE LOAN CHARACTERISTICS
DISTRIBUTION OF PRINCIPAL BALANCES DISTRIBUTION OF MORTGAGE INTEREST RATES
-------------------------------------------------------------- -------------------------------------------------------------------
Current Current
Scheduled # of Scheduled % of Weighted Average Mortgage # of Scheduled % of Weighted Average
Balances Loans Balance Balance Term Coupon DSCR Interest Rate Loans Balance Balance Term Coupon DSCR
-------------------------------------------------------------- -------------------------------------------------------------------
------------------------------------------
0 0 0.00%
------------------------------------------
Minimum Mortgage Interest Rate
Maximum Mortgage Interest Rate
------------------------------------------
0 0 0.00%
------------------------------------------
Average Scheduled Balance DISTRIBUTION OF REMAINING TERM (BALLOON)
Maximum Scheduled Balance -------------------------------------------------------------------
Minimum Scheduled Balance Balloon
Mortgage # of Scheduled % of Weighted Average
DISTRIBUTION OF REMAINING TERM (FULLY AMORTIZING) Loans Loans Balance Balance Term Coupon DSCR
-------------------------------------------------------------- ------------------------------------------------------------------
Fully
Amortizing
Mortgage # of Scheduled % of Weighted Average
Loans Loans Balance Balance Term Coupon DSCR
--------------------------------------------------------------
-------------------------------------------------------------- -------------------------------------------------------------------
0 0 0.00% 0 0 0.00%
-------------------------------------------------------------- -------------------------------------------------------------------
ABN AMRO GREENWICH CAPITAL COMMERCIAL FUNDING CORP., Statement Date:
LaSalle Bank N.A. COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES Payment Date:
SERIES 2003-C1 Prior Payment:
Next Payment:
ABN AMRO ACCT: Record Date:
MORTGAGE LOAN CHARACTERISTICS
DISTRIBUTION OF DSCR (PFY) GEOGRAPHIC DISTRIBUTION
---------------------------------------------------------------- -----------------------------------------------------------------
Debt Service # of Scheduled % of Geographic # of Scheduled % of PFY
Coverage Ratio Loans Balance Balance WAMM WAC DSCR Location Loans Balance Balance WAMM WAC DSCR
---------------------------------------------------------------- -----------------------------------------------------------------
----------------------------------------------------------------
0 0 0.00%
----------------------------------------------------------------
Maximum DSCR 0.000
Minimum DSCR 0.000
DISTRIBUTION OF DSCR (CUTOFF)
----------------------------------------------------------------
Debt Service
Coverage # of Scheduled % of PFY
Ratio Loans Balance Balance WAMM WAC DSCR
----------------------------------------------------------------
---------------------------------------------------------------- -----------------------------------------------------------------
0 0 0.00% 0 0.00%
---------------------------------------------------------------- -----------------------------------------------------------------
Maximum DSCR 0.00
Minimum DSCR 0.00
ABN AMRO GREENWICH CAPITAL COMMERCIAL FUNDING CORP., Statement Date:
LaSalle Bank N.A. COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES Payment Date:
SERIES 2003-C1 Prior Payment:
Next Payment:
ABN AMRO ACCT: Record Date:
MORTGAGE LOAN CHARACTERISTICS
DISTRIBUTION OF PROPERTY TYPES DISTRIBUTION OF LOAN SEASONING
---------------------------------------------------------------- -----------------------------------------------------------------
Property # of Scheduled % of Number of # of Scheduled % of PFY
Types Loans Balance Balance WAMM WAC DSCR Years Loans Balance Balance WAMM WAC DSCR
---------------------------------------------------------------- -----------------------------------------------------------------
---------------------------------------------------------------- -----------------------------------------------------------------
0 0 0.00% 0 0 0.00%
---------------------------------------------------------------- -----------------------------------------------------------------
DISTRIBUTION OF AMORTIZATION TYPE DISTRIBUTION OF YEAR LOANS MATURING
---------------------------------------------------------------- -----------------------------------------------------------------
Amortization # of Scheduled % of PFY # of Scheduled % of PFY
Type Loans Balance Balance WAMM WAC DSCR YEAR Loans Balance Balance WAMM WAC DSCR
---------------------------------------------------------------- -----------------------------------------------------------------
2003
2004
2005
2006
2007
2008
2009
2010
2011
2012
2013
2014 & Greater
---------------------------------------------------------------- -----------------------------------------------------------------
0 0 0.00%
---------------------------------------------------------------- -----------------------------------------------------------------
ABN AMRO GREENWICH CAPITAL COMMERCIAL FUNDING CORP., Statement Date:
LaSalle Bank N.A. COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES Payment Date:
SERIES 2003-C1 Prior Payment:
Next Payment:
ABN AMRO ACCT: Record Date:
LOAN LEVEL DETAIL
------------------------------------------------------------------------------------------------------------------------------------
OPERATING ENDING
Disclosure Property Maturity PFY Statement Geographical Principal Note Scheduled Prepayment
Control # Grp Type Date DSCR NOI Date Location Balance Rate P&I Amount
------------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------
W/Avg 0.00 0 0 0
----------------------------------------------------------------------------------------------------------------------------
Table Continued
LOAN LEVEL DETAIL
--------------------------------------------
Loan
Disclosure Prepayment Status
Control # Date Code(1)
--------------------------------------------
-----------------------------------------------------------------------
0 0
-----------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
* NOI and DSCR, if available and reportable under the terms of the trust agreement, are based on information obtained from the
related borrower, and no other party to the agreement shall be held liable for the accuracy or methodology used to determine
such figures.
------------------------------------------------------------------------------------------------------------------------------------
(1) Legend: A. P&I Adv - in Grace Period 1. delinquent 1 month 3. Delinquent 3+ months 5. NonPerforming
B. Late Payment but < one month delinq 2. delinquent 2 months 4. Performing Maturity Ballon Matured Balloon
7. Foreclosure 9. REO
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
ABN AMRO GREENWICH CAPITAL COMMERCIAL FUNDING CORP., Statement Date:
LaSalle Bank N.A. COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES Payment Date:
SERIES 2003-C1 Prior Payment:
Next Payment:
ABN AMRO ACCT: Record Date:
SPECIALLY SERVICED (PART I) - LOAN DETAIL (End of Period
-----------------------------------------------------------------------------------------------------------------------------------
Servicing Loan Balance Remaining Term
Disclosure Xfer Status -------------------- Note Maturity --------------------- Property Geographical NOI
Control # Date Code(1) Scheduled Actual Rate Date Life (End of Period) Type Location NOI DSCR Date
-----------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
(1) Legend: A. P&I Adv - in Grace Period 1. delinquent 1 month 3. Delinquent 3+ months 5. NonPerforming
B. Late Payment but < one month delinq 2. delinquent 2 months 4. Mat. Ballon/Assumed P&I Matured Balloon
7. Foreclosure 9. REO
ABN AMRO GREENWICH CAPITAL COMMERCIAL FUNDING CORP., Statement Date:
LaSalle Bank N.A. COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES Payment Date:
SERIES 2003-C1 Prior Payment:
Next Payment:
ABN AMRO ACCT: Record Date:
SPECIALLY SERVICED LOAN DETAIL (PART II) ~ SERVICER COMMENTS (End of Period)
------------------------------------------------------------------------------------------------------------------------------------
Disclosure Resolution
Control # Strategy Comments
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
ABN AMRO GREENWICH CAPITAL COMMERCIAL FUNDING CORP., Statement Date:
LaSalle Bank N.A. COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES Payment Date:
SERIES 2003-C1 Prior Payment:
Next Payment:
ABN AMRO ACCT: Record Date:
MODIFIED LOAN DETAIL
------------------------------------------------------------------------------------------------------------------------------------
Disclosure Modification Cutoff Maturity Modified Maturity Modification
Control # Date Date Date Description
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
ABN AMRO GREENWICH CAPITAL COMMERCIAL FUNDING CORP., Statement Date:
LaSalle Bank N.A. COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES Payment Date:
SERIES 2003-C1 Prior Payment:
Next Payment:
ABN AMRO ACCT: Record Date:
REALIZED LOSS DETAIL
------------------------------------------------------------------------------------------------------------------------------------
Gross Net
Proceeds Proceeds
Beginning as a % of Aggregate Net as a % of
Distribution Disclosure Appraisal Appraisal Scheduled Gross Sched Liquidation Liquidation Sched. Realized
Period Control # Date Value Balance Proceeds Principal Expenses* Proceeds Balance Loss
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Current Total
Cumulative
------------------------------------------------------------------------------------------------------------------------------------
* Aggregate liquidation expenses also include outstanding P&I advances and unpaid servicing fees, unpaid trustee fees, etc.
ABN AMRO GREENWICH CAPITAL COMMERCIAL FUNDING CORP., Statement Date:
LaSalle Bank N.A. COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES Payment Date:
SERIES 2003-C1 Prior Payment:
Next Payment:
ABN AMRO ACCT: Record Date:
APPRAISAL REDUCTION DETAIL
-----------------------------------------------------------------------------------------------------------------------------------
Remaining Term
Disclosure Appraisal Scheduled ARA Current Note Maturity -------------- Property Geographic
Control # Red. Date Balance Amount P&I Advance ASER Rate Date Life Type Location DSCR
-----------------------------------------------------------------------------------------------------------------------------------
--------------------
Appraisal
------------
Value Date
--------------------
------------------------------------------------------------------------------------------------------------------------------------
EXHIBIT C
FORM OF CUSTODIAL CERTIFICATION
To the parties listed on the attached Schedule A
Re: Greenwich Capital Commercial Funding Corp., as depositor,
Commercial Mortgage Trust 2003-C1, Commercial Mortgage Pass
Through Certificates, Series 2003-C1 (the "Certificates")
Ladies and Gentlemen:
Pursuant to Section 2.02(b) of the Pooling and Servicing Agreement
dated as of June 30, 2003, relating to the above-referenced Certificates (the
"Agreement"), LaSalle Bank National Association, in its capacity as trustee (the
"Trustee"), hereby certifies as to each Mortgage Loan subject as of the date
hereof to the Agreement (except as identified in the exception report attached
hereto) that: (i) all documents specified in clauses (a)(i) through (a)(v),
(a)(vii) and (a)(viii) (without regard to the second parenthetical in such
clause (a)(viii)) of the definition of "Mortgage File", are in its possession or
the possession of a Custodian on its behalf; (ii) the recordation/filing
contemplated by Section 2.01(c) of the Agreement has been completed (based
solely on receipt by the Trustee of the particular recorded/filed documents);
(iii) all documents received by it or any Custodian with respect to such
Mortgage Loan have been reviewed by it or by such Custodian on its behalf and
(A) appear regular on their face (handwritten additions, changes or corrections
shall not constitute irregularities if initialed by the Mortgagor), (B) appear
to have been executed (where appropriate) and (C) purport to relate to such
Mortgage Loan; and (iv) based on the examinations referred to in Section 2.02(a)
of the Agreement and in this Certification and only as to the foregoing
documents, the information set forth in the Mortgage Loan Schedule with respect
to the items specified in clauses (v) and (vi)(B) of the definition of "Mortgage
Loan Schedule" accurately reflects the information set forth in the Mortgage
File.
Neither the Trustee nor any Custodian is under any duty or
obligation to inspect, review or examine any of the documents, instruments,
certificates or other papers relating to the Loans delivered to it to determine
that the same are valid, legal, effective, genuine, binding, enforceable,
sufficient or appropriate for the represented purpose or that they are other
than what they purport to be on their face. Furthermore, neither the Trustee nor
any Custodian shall have any responsibility for determining whether the text of
any assignment or endorsement is in proper or recordable form, whether the
requisite recording of any document is in accordance with the requirements of
any applicable jurisdiction, or whether a blanket assignment is permitted in any
applicable jurisdiction. In performing the review contemplated herein, the
Trustee or any Custodian may rely on the Depositor as to the purported
genuineness of any such document and any signature thereon.
Capitalized terms used herein and not otherwise defined shall have
the respective meanings assigned to them in the Agreement.
Respectfully,
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee
By:
-----------------------------------
Name:
Title:
Schedule A
Greenwich Capital Commercial Funding Corp.
Greenwich Capital Financial Products, Inc.
Greenwich Capital Markets, Inc.
000 Xxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Credit Suisse First Boston LLC
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Xxxxx'x Investors Service, Inc.
00 Xxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Standard & Poor's Rating Services,
a division of The XxXxxx-Xxxx Companies, Inc.
00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000-0000
Wachovia Bank, National Association
Structured Products Servicing
0000 Xxxxxxxx Xxxxx - XXX0
Xxxxxxxxx, XX 00000-0000
GMAC Commercial Mortgage Corporation
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xx 00000
EXHIBIT D-1
FORM OF MASTER SERVICER REQUEST FOR RELEASE
[Date]
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Asset-Backed Securities Trust Services Group--
Greenwich Capital Commercial Funding Corp., as depositor, Commercial
Mortgage Trust 2003-C1
Re: Greenwich Capital Commercial Funding Corp., as depositor,
Commercial Mortgage Trust 2003-C1, Commercial Mortgage
Pass-Through Certificates, Series 2003-C1
In connection with the administration of the Mortgage Files held by
or on behalf of you as Trustee under that certain Pooling and Servicing
Agreement dated as of June 30, 2003 (the "Pooling and Servicing Agreement"), by
and among Greenwich Capital Commercial Funding Corp. as depositor, the
undersigned as master servicer (the "Master Servicer"), GMAC Commercial Mortgage
Corporation as special servicer (the "Special Servicer"), you as trustee (the
"Trustee") and ABN AMRO Bank N.V. as fiscal agent, 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.
Property Name: _____________________________________________________
Address: ___________________________________________________________
Control 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 undersigned hereby
certifies that all amounts received in connection with
the Mortgage Loan that are required to be credited to
the Custodial Account pursuant to the Pooling and
Servicing Agreement, have been or will be so credited.
______ 2. Other. (Describe) _____________________________________
________________________________________________________
________________________________________________________
The undersigned acknowledges that the above Mortgage File (or
requested portion thereof) will be held by the undersigned in accordance with
the provisions of the Pooling and Servicing Agreement and will be returned to
you or your designee within ten (10) days of our receipt thereof, unless the
Mortgage Loan has been paid in full, in which case the Mortgage File (or such
portion thereof) will be retained by us permanently.
Capitalized terms used but not defined herein shall have the
meanings ascribed to them in the Pooling and Servicing Agreement.
[WACHOVIA BANK, NATIONAL ASSOCIATION]
[NAME OF MASTER SERVICER]
By:
-----------------------------------
Name:
Title:
EXHIBIT D-2
FORM OF SPECIAL SERVICER REQUEST FOR RELEASE
-----------
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Asset-Backed Securities Trust Services Group--
Greenwich Capital Commercial Funding Corp., as depositor, Commercial
Mortgage Trust 2003-C1
Re: Greenwich Capital Commercial Funding Corp., as depositor,
Commercial Mortgage Trust 2003-C1, Commercial Mortgage
Pass-Through Certificates, Series 2003-C1
In connection with the administration of the Mortgage Files held by or on
behalf of you as Trustee under that certain Pooling and Servicing Agreement
dated as of June 30, 2003 (the "Pooling and Servicing Agreement"), by and among
Greenwich Capital Commercial Funding Corp. as depositor, Wachovia Bank, National
Association as master servicer (the "Master Servicer"), the undersigned as
special servicer (the "Special Servicer"), you as trustee (the "Trustee") and
ABN AMRO Bank N.V. as fiscal agent, 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.
Property Name: _____________________________________________________
Address: ___________________________________________________________
Control 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 undersigned hereby
certifies that all amounts received in connection with
the Mortgage Loan that are required to be credited to
the Custodial Account pursuant to the Pooling and
Servicing Agreement, have been or will be so credited.
______ 2. Other. (Describe) _____________________________________
________________________________________________________
________________________________________________________
The undersigned acknowledges that the above Mortgage File (or
requested portion thereof) will be held by the undersigned in accordance with
the provisions of the Pooling and Servicing Agreement and will be returned to
you or your designee within ten (10) days of our receipt thereof (or within such
longer period as we have indicated as part of our reason for the request),
unless the Mortgage Loan has been paid in full or otherwise liquidated, in which
case the Mortgage File (or such portion thereof) will be retained by us
permanently.
Capitalized terms used but not defined herein shall have the
meanings ascribed to them in the Pooling and Servicing Agreement.
[GMAC COMMERCIAL MORTGAGE CORPORATION]
[NAME OF SPECIAL SERVICER]
By:
-----------------------------------
Name:
Title:
EXHIBIT E
FORM OF LOAN PAYOFF NOTIFICATION REPORT
LOAN PAYMENT NOTIFICATION REPORT
as of _____________________
-------------------------------------------------------------------------------------------------------------------------
X0 X00 X00 X00 X0 X0 X00 X00 X00 X00
-------------------------------------------------------------------------------------------------------------------------
Preceding
Short Name Scheduled Paid Current Fiscal Yr.
(When Property Loan Thru Interest Maturity DSCR Most Recent
Prospectus ID Appropriate) Type State Balance Date Rate Date NCR DSCR NCF
-------------------------------------------------------------------------------------------------------------------------
Scheduled Payments
Unscheduled Payment
Total: $
---------------------------------------------
Servicer Estimated Information
---------------------------------------------
Expected Expected
Yield Payment Distribution
Maintenance Date Date
---------------------------------------------
Scheduled Payments
Unscheduled Payment
Total: $
The Borrower has only requested the information to pay-off. This does not
indicate a definite payment.
EXHIBIT F-1
FORM OF TRANSFEROR CERTIFICATE
FOR TRANSFERS OF DEFINITIVE NON-REGISTERED CERTIFICATES
[Date]
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Asset-Backed Securities Trust Services Group--
Greenwich Capital Commercial Funding Corp., as depositor, Commercial
Mortgage Trust 2003-C1
Re: Greenwich Capital Commercial Funding Corp., as depositor, Commercial
Mortgage Trust 2003-C1, Commercial Mortgage Pass-Through
Certificates, Series 2003-C1, Class _____, [having an initial
aggregate [Certificate Principal Balance] [Certificate Notional
Amount] as of June 30, 2003 (the "Closing Date") of $__________]
[representing a ____% Percentage Interest in the subject Class]
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
_________________________ (the "Transferor") to __________________________ (the
"Transferee") of the captioned Certificates (the "Transferred Certificates"),
pursuant to Section 5.02 of the Pooling and Servicing Agreement (the "Pooling
and Servicing Agreement"), dated as of June 30, 2003, between Greenwich Capital
Commercial Funding Corp., as Depositor, Wachovia Bank, National Association, as
Master Servicer, GMAC Commercial Mortgage Corporation, as Special Servicer,
LaSalle Bank National Association, as Trustee, and ABN AMRO Bank N.V., as Fiscal
Agent. All capitalized terms used herein and not otherwise defined shall have
the respective meanings set forth in the Pooling and Servicing Agreement. The
Transferor hereby certifies, represents and warrants to you, as Certificate
Registrar, and for the benefit of the Trustee and the Depositor, that:
1. The Transferor is the lawful owner of the Transferred
Certificates with the full right to transfer such Certificates free from
any and all claims and encumbrances whatsoever.
2. Neither the Transferor nor anyone acting on its behalf has (a)
offered, transferred, pledged, sold or otherwise disposed of any
Transferred Certificate, any interest in a Transferred Certificate or any
other similar security to any person in any manner, (b) solicited any offer
to buy or accept a transfer, pledge or other disposition of any Transferred
Certificate, any interest in a Transferred Certificate or any other similar
security from any person in any manner, (c) otherwise approached or
negotiated with respect to any Transferred Certificate, any interest in a
Transferred Certificate or any other similar security with any person in
any manner, (d) made any general solicitation with respect to any
Transferred Certificate, any interest in a Transferred Certificate or any
other similar security by means of general advertising or in any other
manner, or (e) taken any other action with respect to any Transferred
Certificate, any interest in a Transferred Certificate or any other similar
security, which (in the case of any of the acts described in clauses (a)
through (e) hereof) would constitute a distribution of the Transferred
Certificates under the Securities Act of 1933, as amended (the "Securities
Act"), would render the disposition of the Transferred Certificates a
violation of Section 5 of the Securities Act or any state securities laws,
or would require registration or qualification of the Transferred
Certificates pursuant to the Securities Act or any state securities laws.
Very truly yours,
--------------------------------------
(Transferor)
By:
-----------------------------------
Name:
Title:
EXHIBIT F-2A
FORM I OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF DEFINITIVE NON-REGISTERED CERTIFICATES
[Date]
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Asset-Backed Securities Trust Services Group--
Greenwich Capital Commercial Funding Corp., as depositor, Commercial
Mortgage Trust 2003-C1
Re: Greenwich Capital Commercial Funding Corp., as depositor,
Commercial Mortgage Trust 2003-C1, Commercial Mortgage
Pass-Through Certificates, Series 2003-C1, Class ___, [having
an initial aggregate [Certificate Principal Balance]
[Certificate Notional Amount] as of June 30, 2003 (the
"Closing Date") of $__________] [representing a ____%
Percentage Interest in the subject Class]
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
____________________________ (the "Transferor") to
________________________________ (the "Transferee") of the captioned
Certificates (the "Transferred Certificates"), pursuant to Section 5.02 of the
Pooling and Servicing Agreement (the "Pooling and Servicing Agreement"), dated
as of June 30, 2003, among Greenwich Capital Commercial Funding Corp., as
Depositor, Wachovia Bank, National Association, as Master Servicer, GMAC
Commercial Mortgage Corporation, as Special Servicer, LaSalle Bank National
Association, as Trustee, and ABN AMRO Bank N.V., as Fiscal Agent. All
capitalized terms used herein and not otherwise defined shall have the
respective meanings set forth in the Pooling and Servicing Agreement. The
Transferee hereby certifies, represents and warrants to you, as Certificate
Registrar, and for the benefit of the Trustee and the Depositor, that:
1. The Transferee is a "qualified institutional buyer" (a "Qualified
Institutional Buyer") as that term is defined in Rule 144A ("Rule 144A")
under the Securities Act of 1933, as amended (the "Securities Act"), and
has completed one of the forms of certification to that effect attached
hereto as Annex 1 and Annex 2. The Transferee is aware that the sale to it
is being made in reliance on Rule 144A. The Transferee is acquiring the
Transferred Certificates for its own account or for the account of another
Qualified Institutional Buyer, and understands that such Transferred
Certificates may be resold, pledged or transferred only (a) to a person
reasonably believed to be a Qualified Institutional Buyer that purchases
for its own account or for the account of another Qualified Institutional
Buyer and to whom notice is given that the resale, pledge or transfer is
being made in reliance on Rule 144A, or (b) pursuant to another exemption
from registration under the Securities Act.
2. The Transferee has been furnished with all information regarding
(a) the Depositor, (b) the Transferred Certificates and distributions
thereon, (c) the nature, performance and servicing of the Mortgage Loans,
(d) the Pooling and Servicing Agreement and the Trust Fund created
pursuant thereto, and (e) all related matters, that it has requested.
3. If the Transferee proposes that the Transferred Certificates be
registered in the name of a nominee, such nominee has completed the
Nominee Acknowledgement below.
Very truly yours,
--------------------------------------
(Transferee)
By:
-----------------------------------
Name:
Title:
Nominee Acknowledgement
-----------------------
The undersigned hereby acknowledges and agrees that as to the
Transferred Certificates being registered in its name, the sole beneficial owner
thereof is and shall be the Transferee identified above, for whom the
undersigned is acting as nominee.
--------------------------------------
(Nominee)
By:
-----------------------------------
Name:
Title:
ANNEX 1 TO EXHIBIT F-2A
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees Other Than Registered Investment Companies]
The undersigned hereby certifies as follows to [name of Transferor]
(the "Transferor") and [name of Certificate Registrar], as Certificate
Registrar, with respect to the mortgage pass-through certificates (the
"Transferred Certificates") described in the Transferee certificate to which
this certification relates and to which this certification is an Annex:
1. As indicated below, the undersigned is the chief financial
officer, a person fulfilling an equivalent function, or other executive
officer of the entity purchasing the Transferred Certificates (the
"Transferee").
2. The Transferee is a "qualified institutional buyer" as that term
is defined in Rule 144A ("Rule 144A") under the Securities Act of 1933, as
amended, because (i) [the Transferee] [each of the Transferee's equity
owners] owned and/or invested on a discretionary basis
$______________________1 in securities (other than the excluded securities
referred to below) as of the end of such entity's most recent fiscal year
(such amount being calculated in accordance with Rule 144A) and (ii) the
Transferee satisfies the criteria in the category marked below.
_____ Corporation, etc. The Transferee is a corporation (other than
a bank, savings and loan association or similar institution),
Massachusetts or similar business trust, partnership, or any
organization described in Section 501(c)(3) of the Internal
Revenue Code of 1986.
_____ Bank. The Transferee (a) is a national bank or a banking
institution organized under the laws of any state, U.S.
territory or the District of Columbia, the business of which
is substantially confined to banking and is supervised by the
state or territorial banking commission or similar official or
is a foreign bank or equivalent institution, and (b) has an
audited net worth of at least $25,000,000 as demonstrated in
its latest annual financial statements, a copy of which is
attached hereto, as of a date not more than 16 months
preceding the date of sale of the Transferred Certificates in
the case of a U.S. bank, and not more than 18 months preceding
such date of sale in the case of a foreign bank or equivalent
institution.
_____ Savings and Loan. The Transferee (a) is a savings and loan
association, building and loan association, cooperative bank,
homestead association or similar institution, which is
supervised and examined by a state or federal authority having
supervision over any such institutions, or is a foreign
savings and loan association or equivalent institution and (b)
has an audited net worth of at least $25,000,000 as
demonstrated in its latest annual financial statements, a copy
of which is attached hereto, as of a date not more than 16
months preceding the date of sale of the Transferred
Certificates in the case of a U.S. savings and loan
association, and not more than 18 months preceding such date
of sale in the case of a foreign savings and loan association
or equivalent institution.
_____ Broker-dealer. The Transferee is a dealer registered pursuant
to Section 15 of the Securities Exchange Act of 1934, as
amended.
_____ Insurance Company. The Transferee is an insurance company
whose primary and predominant business activity is the writing
of insurance or the reinsuring of risks underwritten by
insurance companies and which is subject to supervision by the
insurance commissioner or a similar official or agency of a
state, U.S. territory or the District of Columbia.
_____ State or Local Plan. The Transferee is a plan established and
maintained by a state, its political subdivisions, or any
agency or instrumentality of the state or its political
subdivisions, for the benefit of its employees.
_____ ERISA Plan. The Transferee is an employee benefit plan within
the meaning of Title I of the Employee Retirement Income
Security Act of 1974.
_____ Investment Advisor. The Transferee is an investment advisor
registered under the Investment Advisers Act of 1940.
_____ QIB Subsidiary. All of the Transferee's equity owners are
"qualified institutional buyers" within the meaning of Rule
144A.
_____ Other. (Please supply a brief description of the entity and a
cross-reference to the paragraph and subparagraph under
subsection (a)(1) of Rule 144A pursuant to which it qualifies.
Note that registered investment companies should complete
Annex 2 rather than this Annex 1)_____________________________
______________________________________________________________
_____________________________________________________________.
----------------
1 Transferee or each of its equity owners must own and/or invest on a
discretionary basis at least $100,000,000 in securities unless Transferee
or any such equity owner, as the case may be, is a dealer, and, in that
case, Transferee or such equity owner, as the case may be, must own and/or
invest on a discretionary basis at least $10,000,000 in securities.
3. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by any Person, the
Transferee did not include (i) securities of issuers that are affiliated
with such Person, (ii) securities that are part of an unsold allotment to
or subscription by such Person, if such Person is a dealer, (iii) bank
deposit notes and certificates of deposit, (iv) loan participations, (v)
repurchase agreements, (vi) securities owned but subject to a repurchase
agreement and (vii) currency, interest rate and commodity swaps.
4. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by any Person, the
Transferee used the cost of such securities to such Person, unless such
Person reports its securities holdings in its financial statements on the
basis of their market value, and no current information with respect to
the cost of those securities has been published, in which case the
securities were valued at market. Further, in determining such aggregate
amount, the Transferee may have included securities owned by subsidiaries
of such Person, but only if such subsidiaries are consolidated with such
Person in its financial statements prepared in accordance with generally
accepted accounting principles and if the investments of such subsidiaries
are managed under such Person's direction. However, such securities were
not included if such Person is a majority-owned, consolidated subsidiary
of another enterprise and such Person is not itself a reporting company
under the Securities Exchange Act of 1934, as amended.
5. The Transferee is familiar with Rule 144A and understands that
the Transferor and other parties related to the Transferred Certificates
are relying and will continue to rely on the statements made herein
because one or more sales to the Transferee may be in reliance on Rule
144A.
___ ___ Will the Transferee be purchasing the Transferred
Yes No Certificates only for the Transferee's own account?
6. If the answer to the foregoing question is "no", then in each
case where the Transferee is purchasing for an account other than its own,
such account belongs to a third party that is itself a "qualified
institutional buyer" within the meaning of Rule 144A, and the "qualified
institutional buyer" status of such third party has been established by
the Transferee through one or more of the appropriate methods contemplated
by Rule 144A.
7. The Transferee will notify each of the parties to which this
certification is made of any changes in the information and conclusions
herein. Until such notice is given, the Transferee's purchase of the
Transferred Certificates will constitute a reaffirmation of this
certification as of the date of such purchase. In addition, if the
Transferee is a bank or savings and loan as provided above, the Transferee
agrees that it will furnish to such parties any updated annual financial
statements that become available on or before the date of such purchase,
promptly after they become available.
8. Capitalized terms used but not defined herein have the respective
meanings ascribed thereto in the Pooling and Servicing Agreement pursuant
to which the Transferred Certificates were issued.
--------------------------------------
Print Name of Transferee
By:
-----------------------------------
Name:
Title:
Date:
ANNEX 2 TO EXHIBIT F-2A
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees That Are Registered Investment Companies]
The undersigned hereby certifies as follows to [name of Transferor]
(the "Transferor") and [name of Certificate Registrar], as Certificate
Registrar, with respect to the mortgage pass-through certificates (the
"Transferred Certificates") described in the Transferee Certificate to which
this certification relates and to which this certification is an Annex:
1. As indicated below, the undersigned is the chief financial
officer, a person fulfilling an equivalent function, or other executive
officer of the entity purchasing the Transferred Certificates (the
"Transferee") or, if the Transferee is a "qualified institutional buyer"
as that term is defined in Rule 144A ("Rule 144A") under the Securities
Act of 1933, as amended, because the Transferee is part of a Family of
Investment Companies (as defined below), is an executive officer of the
investment adviser (the "Adviser").
2. The Transferee is a "qualified institutional buyer" as defined in
Rule 144A because (i) the Transferee is an investment company registered
under the Investment Company Act of 1940, and (ii) as marked below, the
Transferee alone owned and/or invested on a discretionary basis, or the
Transferee's Family of Investment Companies owned, at least $100,000,000
in securities (other than the excluded securities referred to below) as of
the end of the Transferee's most recent fiscal year. For purposes of
determining the amount of securities owned by the Transferee or the
Transferee's Family of Investment Companies, the cost of such securities
was used, unless the Transferee or any member of the Transferee's Family
of Investment Companies, as the case may be, reports its securities
holdings in its financial statements on the basis of their market value,
and no current information with respect to the cost of those securities
has been published, in which case the securities of such entity were
valued at market.
______ The Transferee owned and/or invested on a discretionary basis
$___________________ in securities (other than the excluded
securities referred to below) as of the end of the
Transferee's most recent fiscal year (such amount being
calculated in accordance with Rule 144A).
______ The Transferee is part of a Family of Investment Companies
which owned in the aggregate $______________ in securities
(other than the excluded securities referred to below) as of
the end of the Transferee's most recent fiscal year (such
amount being calculated in accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein means
two or more registered investment companies (or series thereof) that have
the same investment adviser or investment advisers that are affiliated (by
virtue of being majority owned subsidiaries of the same parent or because
one investment adviser is a majority owned subsidiary of the other).
4. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Transferee or are part
of the Transferee's Family of Investment Companies, (ii) bank deposit
notes and certificates of deposit, (iii) loan participations, (iv)
repurchase agreements, (v) securities owned but subject to a repurchase
agreement and (vi) currency, interest rate and commodity swaps. For
purposes of determining the aggregate amount of securities owned and/or
invested on a discretionary basis by the Transferee, or owned by the
Transferee's Family of Investment Companies, the securities referred to in
this paragraph were excluded.
5. The Transferee is familiar with Rule 144A and understands that
the Transferor and other parties related to the Transferred Certificates
are relying and will continue to rely on the statements made herein
because one or more sales to the Transferee will be in reliance on Rule
144A.
_____ _____ Will the Transferee be purchasing the Transferred
Yes No Certificates only for the Transferee's own account?
6. If the answer to the foregoing question is "no", then in each
case where the Transferee is purchasing for an account other than its own,
such account belongs to a third party that is itself a "qualified
institutional buyer" within the meaning of Rule 144A, and the "qualified
institutional buyer" status of such third party has been established by
the Transferee through one or more of the appropriate methods contemplated
by Rule 144A.
7. The undersigned will notify the parties to which this
certification is made of any changes in the information and conclusions
herein. Until such notice, the Transferee's purchase of the Transferred
Certificates will constitute a reaffirmation of this certification by the
undersigned as of the date of such purchase.
8. Capitalized terms used but not defined herein have the respective
meanings ascribed thereto in the Pooling and Servicing Agreement pursuant
to which the Transferred Certificates were issued.
--------------------------------------
Print Name of Transferee or Adviser
By:
-----------------------------------
Name:
Title:
Date:
IF AN ADVISER:
--------------------------------------
Print Name of Transferee
Date: __
EXHIBIT F-2B
FORM II OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF DEFINITIVE NON-REGISTERED CERTIFICATES
[Date]
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Asset-Backed Securities Trust Services Group--
Greenwich Capital Commercial Funding Corp., as depositor, Commercial
Mortgage Trust 2003-C1
Re: Greenwich Capital Commercial Funding Corp., as depositor,
Commercial Mortgage Trust 2003-C1, Commercial Mortgage
Pass-Through Certificates, Series 2003-C1, Class
_____,[having an initial aggregate [Certificate Principal
Balance] [Certificate Notional Amount] as of June 30, 2003
(the "Closing Date") of $__________] [representing a ____%
Percentage Interest in the subject Class]
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
_________________________ (the "Transferor") to __________________________ (the
"Transferee") of the captioned Certificates (the "Transferred Certificates"),
pursuant to Section 5.02 of the Pooling and Servicing Agreement (the "Pooling
and Servicing Agreement"), dated as of June 30, 2003, between Greenwich Capital
Commercial Funding Corp., as Depositor, Wachovia Bank, National Association, as
Master Servicer, GMAC Commercial Mortgage Corporation, as Special Servicer,
LaSalle Bank National Association, as Trustee, and ABN AMRO Bank N.V., as Fiscal
Agent. All capitalized terms used herein and not otherwise defined shall have
the respective meanings set forth in the Pooling and Servicing Agreement. The
Transferee hereby certifies, represents and warrants to you, as Certificate
Registrar, and for the benefit of the Trustee and the Depositor, that:
1. The Transferee is acquiring the Transferred Certificates for its
own account for investment and not with a view to or for sale or transfer
in connection with any distribution thereof, in whole or in part, in any
manner which would violate the Securities Act of 1933, as amended (the
"Securities Act"), or any applicable state securities laws.
2. The Transferee understands that (a) the Transferred Certificates
have not been and will not be registered under the Securities Act or
registered or qualified under any applicable state securities laws, (b)
none of the Depositor, the Trustee or the Certificate Registrar is
obligated so to register or qualify the Class of Certificates to which the
Transferred Certificates belong, and (c) neither a Transferred Certificate
nor any security issued in exchange therefor or in lieu thereof may be
resold or transferred unless it is (i) registered pursuant to the
Securities Act and registered or qualified pursuant to any applicable
state securities laws or (ii) sold or transferred in transactions which
are exempt from such registration and qualification and the Certificate
Registrar has received: (A) a certification from the Certificateholder
desiring to effect such transfer substantially in the form attached as
Exhibit F-1 to the Pooling and Servicing Agreement and a certification
from such Certificateholder's prospective transferee substantially in the
form attached either as Exhibit F-2A to the Pooling and Servicing
Agreement or as Exhibit F-2B to the Pooling and Servicing Agreement; or
(B) an opinion of counsel satisfactory to the Trustee with respect to,
among other things, the availability of such exemption from registration
under the Securities Act, together with copies of the written
certification(s) from the transferor and/or transferee setting forth the
facts surrounding the transfer upon which such opinion is based.
3. The Transferee understands that it may not sell or otherwise
transfer any Transferred Certificate or interest therein, except in
compliance with the provisions of Section 5.02 of the Pooling and
Servicing Agreement, which provisions it has carefully reviewed, and that
each Transferred Certificate will bear the following legends:
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR THE
SECURITIES LAWS OF ANY STATE. ANY RESALE, PLEDGE, TRANSFER OR OTHER
DISPOSITION OF THIS CERTIFICATE OR ANY INTEREST HEREIN WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH
IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE
TO (A) ANY RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR
ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT
OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE INTERNAL REVENUE
CODE OF 1986 (THE "CODE"), OR ANY MATERIALLY SIMILAR PROVISION OF
APPLICABLE FEDERAL, STATE OR LOCAL LAW, OR (B) ANY PERSON WHO IS
DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR SUCH INTEREST
HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH
ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR
ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF SECTION
5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
4. Neither the Transferee nor anyone acting on its behalf has (a)
offered, pledged, sold, disposed of or otherwise transferred any
Transferred Certificate, any interest in any Transferred Certificate or
any other similar security to any person in any manner, (b) solicited any
offer to buy or accept a pledge, disposition or other transfer of any
Transferred Certificate, any interest in any Transferred Certificate or
any other similar security from any person in any manner, (c) otherwise
approached or negotiated with respect to any Transferred Certificate, any
interest in any Transferred Certificate or any other similar security with
any person in any manner, (d) made any general solicitation with respect
to any Transferred Certificate, any interest in any Transferred
Certificate or any other similar security by means of general advertising
or in any other manner, or (e) taken any other action with respect to any
Transferred Certificate, any interest in any Transferred Certificate or
any other similar security, which (in the case of any of the acts
described in clauses (a) through (e) above) would constitute a
distribution of the Transferred Certificates under the Securities Act,
would render the disposition of the Transferred Certificates a violation
of Section 5 of the Securities Act or any state securities law or would
require registration or qualification of the Transferred Certificates
pursuant thereto. The Transferee will not act, nor has it authorized or
will it authorize any person to act, in any manner set forth in the
foregoing sentence with respect to any Transferred Certificate, any
interest in any Transferred Certificate or any other similar security.
5. The Transferee has been furnished with all information regarding
(a) the Depositor, (b) the Transferred Certificates and distributions
thereon, (c) the Pooling and Servicing Agreement and the Trust Fund
created pursuant thereto, (d) the nature, performance and servicing of the
Mortgage Loans, and (e) all related matters, that it has requested.
6. The Transferee is an "accredited investor" as defined in any of
paragraphs (1), (2), (3) and (7) of Rule 501(a) under the Securities Act
or an entity in which all of the equity owners come within such
paragraphs. The Transferee has such knowledge and experience in financial
and business matters as to be capable of evaluating the merits and risks
of an investment in the Transferred Certificates; the Transferee has
sought such accounting, legal and tax advice as it has considered
necessary to make an informed investment decision; and the Transferee is
able to bear the economic risks of such investment and can afford a
complete loss of such investment.
7. If the Transferee proposes that the Transferred Certificates be
registered in the name of a nominee, such nominee has completed the
Nominee Acknowledgement below.
Very truly yours,
--------------------------------------
(Transferee)
By:
-----------------------------------
Name:
Title:
Nominee Acknowledgement
The undersigned hereby acknowledges and agrees that as to the
Transferred Certificates being registered in its name, the sole beneficial owner
thereof is and shall be the Transferee identified above, for whom the
undersigned is acting as nominee.
--------------------------------------
(Nominee)
By:
-----------------------------------
Name:
Title:
EXHIBIT F-2C
FORM OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF INTERESTS IN RULE 144A GLOBAL CERTIFICATES
[Date]
[TRANSFEROR]
Re: Greenwich Capital Commercial Funding Corp., as depositor,
Commercial Mortgage Trust 2003-C1, Commercial Mortgage
Pass-Through Certificates, Series 2003-C1, Class _____,
having an initial aggregate [Certificate Principal Balance]
[Certificate Notional Amount] as of June 30, 2003 (the
"Closing Date") of $__________
Ladies and Gentlemen:
This letter is delivered to you in connection with the Transfer by
_________________________ (the "Transferor") to __________________________ (the
"Transferee") through our respective Depository Participants of the Transferor's
beneficial ownership interest (currently maintained on the books and records of
The Depository Trust Company ("DTC") and the Depository Participants) in the
captioned Certificates (the "Transferred Certificates"), pursuant to Section
5.02 of the Pooling and Servicing Agreement (the "Pooling and Servicing
Agreement"), dated as of June 30, 2003, between Greenwich Capital Commercial
Funding Corp., as Depositor, Wachovia Bank, National Association, as Master
Servicer, GMAC Commercial Mortgage Corporation, as Special Servicer, LaSalle
Bank National Association, as Trustee, and ABN AMRO Bank N.V., as Fiscal Agent.
All capitalized terms used but not otherwise defined herein shall have the
respective meanings set forth in the Pooling and Servicing Agreement. The
Transferee hereby certifies, represents and warrants to and agrees with you, and
for the benefit of the Depositor, that:
1. The Transferee is a "qualified institutional buyer" (a "Qualified
Institutional Buyer") as that term is defined in Rule 144A ("Rule 144A")
under the Securities Act of 1933, as amended (the "Securities Act"), and
has completed one of the forms of certification to that effect attached
hereto as Annex 1 and Annex 2. The Transferee is aware that the Transfer
to it of the Transferor's interest in the Transferred Certificates is
being made in reliance on Rule 144A. The Transferee is acquiring such
interest in the Transferred Certificates for its own account or for the
account of another Qualified Institutional Buyer.
2. The Transferee understands that (a) the Transferred Certificates
have not been and will not be registered under the Securities Act or
registered or qualified under any applicable state securities laws, (b)
none of the Depositor, the Trustee or the Certificate Registrar is
obligated so to register or qualify the Transferred Certificates and (c)
no interest in the Transferred Certificates may be resold or transferred
unless (i) such Certificates are registered pursuant to the Securities Act
and registered or qualified pursuant any applicable state securities laws,
or (ii) such interest is sold or transferred in a transaction which is
exempt from such registration and qualification and the Transferor
desiring to effect such transfer has received (A) a certificate from such
Certificate Owner's prospective transferee substantially in the form
attached as Exhibit F-2C to the Pooling and Servicing Agreement or (B) an
opinion of counsel to the effect that, among other things, such
prospective transferee is a Qualified Institutional Buyer and such
transfer may be made without registration under the Securities Act.
3. The Transferee understands that it may not sell or otherwise
transfer the Transferred Certificates or any interest therein except in
compliance with the provisions of Section 5.02 of the Pooling and
Servicing Agreement, which provisions it has carefully reviewed, and that
the Transferred Certificates will bear the following legends:
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE
SECURITIES LAWS OF ANY STATE. ANY RESALE, PLEDGE, TRANSFER OR OTHER
DISPOSITION OF THIS CERTIFICATE OR ANY INTEREST HEREIN WITHOUT SUCH
REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION
WHICH DOES NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND WHICH
IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 5.02 OF THE POOLING
AND SERVICING AGREEMENT REFERRED TO HEREIN.
NO TRANSFER OF THIS CERTIFICATE OR ANY INTEREST HEREIN MAY BE MADE
TO (A) ANY RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR
ARRANGEMENT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT
OF 1974, AS AMENDED ("ERISA"), SECTION 4975 OF THE INTERNAL REVENUE
CODE OF 1986 (THE "CODE") OR ANY MATERIALLY SIMILAR PROVISION OF
APPLICABLE FEDERAL, STATE OR LOCAL LAW, OR (B) ANY PERSON WHO IS
DIRECTLY OR INDIRECTLY PURCHASING THIS CERTIFICATE OR ANY INTEREST
HEREIN ON BEHALF OF, AS NAMED FIDUCIARY OF, AS TRUSTEE OF, OR WITH
ASSETS OF ANY SUCH RETIREMENT PLAN OR OTHER EMPLOYEE BENEFIT PLAN OR
ARRANGEMENT, EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF SECTION
5.02 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
4. The Transferee has been furnished with all information regarding
(a) the Depositor, (b) the Transferred Certificates and distributions
thereon, (c) the nature, performance and servicing of the Mortgage Loans,
(d) the Pooling and Servicing Agreement and the Trust Fund created
pursuant thereto, (e) any credit enhancement mechanism associated with the
Transferred Certificates, and (f) all related matters, that it has
requested.
Very truly yours,
--------------------------------------
(Transferee)
By:
-----------------------------------
Name:
Title:
ANNEX 1 TO EXHIBIT F-2C
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees other than Registered Investment Companies]
The undersigned hereby certifies as follows to [name of Transferor]
(the "Transferor") and for the benefit of Greenwich Capital Commercial Funding
Corp. with respect to the mortgage pass-through certificates being transferred
in book-entry form (the "Transferred Certificates") as described in the
Transferee Certificate to which this certification relates and to which this
certification is an Annex:
1. As indicated below, the undersigned is the chief financial
officer, a person fulfilling an equivalent function, or other executive
officer of the entity acquiring interests in the Transferred Certificates
(the "Transferee").
2. The Transferee is a "qualified institutional buyer" as that term
is defined in Rule 144A under the Securities Act of 1933, as amended
("Rule 144A"), because (i) [the Transferee] [each of the Transferee's
equity owners] owned and/or invested on a discretionary basis
$____________2 in securities (other than the excluded securities referred
to below) as of the end of such entity's most recent fiscal year (such
amount being calculated in accordance with Rule 144A) and (ii) the
Transferee satisfies the criteria in the category marked below.
_____ Corporation, etc. The Transferee is a corporation (other than
a bank, savings and loan association or similar institution),
Massachusetts or similar business trust, partnership, or any
organization described in Section 501(c)(3) of the Internal
Revenue Code of 1986.
_____ Bank. The Transferee (a) is a national bank or a banking
institution organized under the laws of any state, U.S.
territory or the District of Columbia, the business of which
is substantially confined to banking and is supervised by the
state or territorial banking commission or similar official or
is a foreign bank or equivalent institution, and (b) has an
audited net worth of at least $25,000,000 as demonstrated in
its latest annual financial statements, a copy of which is
attached hereto, as of a date not more than 16 months
preceding the date of sale of the Transferred Certificates in
the case of a U.S. bank, and not more than 18 months preceding
such date of sale in the case of a foreign bank or equivalent
institution.
_____ Savings and Loan. The Transferee (a) is a savings and loan
association, building and loan association, cooperative bank,
homestead association or similar institution, which is
supervised and examined by a state or federal authority having
supervision over any such institutions or is a foreign savings
and loan association or equivalent institution and (b) has an
audited net worth of at least $25,000,000 as demonstrated in
its latest annual financial statements, a copy of which is
attached hereto, as of a date not more than 16 months
preceding the date of sale of the Transferred Certificates in
the case of a U.S. savings and loan association, and not more
than 18 months preceding such date of sale in the case of a
foreign savings and loan association or equivalent
institution.
___ Broker-dealer. The Transferee is a dealer registered pursuant
to Section 15 of the Securities Exchange Act of 1934, as
amended.
___ Insurance Company. The Transferee is an insurance company
whose primary and predominant business activity is the writing
of insurance or the reinsuring of risks underwritten by
insurance companies and which is subject to supervision by the
insurance commissioner or a similar official or agency of a
state, U.S. territory or the District of Columbia.
___ State or Local Plan. The Transferee is a plan established and
maintained by a state, its political subdivisions, or any
agency or instrumentality of the state or its political
subdivisions, for the benefit of its employees.
___ ERISA Plan. The Transferee is an employee benefit plan within
the meaning of Title I of the Employee Retirement Income
Security Act of 1974.
___ Investment Advisor. The Transferee is an investment advisor
registered under the Investment Advisers Act of 1940, as
amended.
___ QIB Subsidiary. All of the Transferee's equity owners are
"qualified institutional buyers" within the meaning of Rule
144A.
___ Other. (Please supply a brief description of the entity and a
cross-reference to the paragraph and subparagraph under
subsection (a)(1) of Rule 144A pursuant to which it qualifies.
Note that registered investment companies should complete
Annex 2 rather than this Annex 1.)
-----------------
1 Transferee or each of its equity owners must own and/or invest on a
discretionary basis at least $100,000,000 in securities unless Transferee
or any such equity owner, as the case may be, is a dealer, and, in that
case, Transferee or such equity owner, as the case may be, must own and/or
invest on a discretionary basis at least $10,000,000 in securities.
3. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by any Person, the
Transferee did not include (i) securities of issuers that are affiliated
with such Person, (ii) securities that are part of an unsold allotment to
or subscription by such Person, if such Person is a dealer, (iii) bank
deposit notes and certificates of deposit, (iv) loan participations, (v)
repurchase agreements, (vi) securities owned but subject to a repurchase
agreement and (vii) currency, interest rate and commodity swaps.
4. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by any Person, the
Transferee used the cost of such securities to such Person, unless such
Person reports its securities holdings in its financial statements on the
basis of their market value, and no current information with respect to
the cost of those securities has been published, in which case the
securities were valued at market. Further, in determining such aggregate
amount, the Transferee may have included securities owned by subsidiaries
of such Person, but only if such subsidiaries are consolidated with such
Person in its financial statements prepared in accordance with generally
accepted accounting principles and if the investments of such subsidiaries
are managed under such Person's direction. However, such securities were
not included if such Person is a majority-owned, consolidated subsidiary
of another enterprise and such Person is not itself a reporting company
under the Securities Exchange Act of 1934, as amended.
5. The Transferee acknowledges that it is familiar with Rule 144A
and understands that the Transferor and other parties related to the
Transferred Certificates are relying and will continue to rely on the
statements made herein because one or more Transfers to the Transferee may
be in reliance on Rule 144A.
___ ___ Will the Transferee be acquiring interests in the
Yes No Transferred Certificates only for the Transferee's
own account?
6. If the answer to the foregoing question is "no," then in each
case where the Transferee is acquiring any interest in the Transferred
Certificates for an account other than its own, such account belongs to a
third party that is itself a "qualified institutional buyer" within the
meaning of Rule 144A, and the "qualified institutional buyer" status of
such third party has been established by the Transferee through one or
more of the appropriate methods contemplated by Rule 144A.
7. The Transferee will notify each of the parties to which this
certification is made of any changes in the information and conclusions
herein. Until such notice is given, the Transferee's acquisition of any
interest in of the Transferred Certificates will constitute a
reaffirmation of this certification as of the date of such acquisition. In
addition, if the Transferee is a bank or savings and loan as provided
above, the Transferee agrees that it will furnish to such parties any
updated annual financial statements that become available on or before the
date of such acquisition, promptly after they become available.
8. Capitalized terms used but not defined herein have the meanings
ascribed thereto in the Pooling and Servicing Agreement pursuant to which
the Transferred Certificates were issued.
--------------------------------------
(Transferee)
By:
-----------------------------------
Name:
Title:
Date:
ANNEX 2 TO EXHIBIT F-2C
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees that are Registered Investment Companies]
The undersigned hereby certifies as follows to [name of Transferor]
(the "Transferor") and for the benefit of Greenwich Capital Commercial Funding
Corp. with respect to the mortgage pass-through certificates being transferred
in book-entry form (the "Transferred Certificates") as described in the
Transferee certificate to which this certification relates and to which this
certification is an Annex:
1. As indicated below, the undersigned is the chief financial
officer, a person fulfilling an equivalent function, or other executive
officer of the entity acquired interests the Transferred Certificates (the
"Transferee") or, if the Transferee is a "qualified institutional buyer"
as that term is defined in Rule 144A under the Securities Act of 1933, as
amended ("Rule 144A"), because the Transferee is part of a Family of
Investment Companies (as defined below), is an executive officer of the
investment adviser (the "Adviser").
2. The Transferee is a "qualified institutional buyer" as defined in
Rule 144A because (i) the Transferee is an investment company registered
under the Investment Company Act of 1940, as amended, and (ii) as marked
below, the Transferee alone owned and/or invested on a discretionary
basis, or the Transferee's Family of Investment Companies owned, at least
$100,000,000 in securities (other than the excluded securities referred to
below) as of the end of the Transferee's most recent fiscal year. For
purposes of determining the amount of securities owned by the Transferee
or the Transferee's Family of Investment Companies, the cost of such
securities was used, unless the Transferee or any member of the
Transferee's Family of Investment Companies, as the case may be, reports
its securities holdings in its financial statements on the basis of their
market value, and no current information with respect to the cost of those
securities has been published, in which case the securities of such entity
were valued at market.
____ The Transferee owned and/or invested on a discretionary
basis $___________________ in securities (other than the
excluded securities referred to below) as of the end of
the Transferee's most recent fiscal year (such amount
being calculated in accordance with Rule 144A).
____ The Transferee is part of a Family of Investment
Companies which owned in the aggregate $______________
in securities (other than the excluded securities
referred to below) as of the end of the Transferee's
most recent fiscal year (such amount being calculated in
accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein means
two or more registered investment companies (or series thereof) that have
the same investment adviser or investment advisers that are affiliated (by
virtue of being majority owned subsidiaries of the same parent or because
one investment adviser is a majority owned subsidiary of the other).
4. The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Transferee or are part
of the Transferee's Family of Investment Companies, (ii) bank deposit
notes and certificates of deposit, (iii) loan participations, (iv)
repurchase agreements, (v) securities owned but subject to a repurchase
agreement and (vi) currency, interest rate and commodity swaps. For
purposes of determining the aggregate amount of securities owned and/or
invested on a discretionary basis by the Transferee, or owned by the
Transferee's Family of Investment Companies, the securities referred to in
this paragraph were excluded.
5. The Transferee is familiar with Rule 144A and understands that
the Transferor and other parties related to the Transferred Certificates
are relying and will continue to rely on the statements made herein
because one or more Transfers to the Transferee will be in reliance on
Rule 144A.
___ ___ Will the Transferee be acquiring interests in the
Yes No Transferred Certificates only for the Transferee's
own account?
6. If the answer to the foregoing question is "no," then in each
case where the Transferee is acquiring any interest in the Transferred
Certificates for an account other than its own, such account belongs to a
third party that is itself a "qualified institutional buyer" within the
meaning of Rule 144A, and the "qualified institutional buyer" status of
such third party has been established by the Transferee through one or
more of the appropriate methods contemplated by Rule 144A.
7. The undersigned will notify the parties to which this
certification is made of any changes in the information and conclusions
herein. Until such notice, the Transferee's acquisition of any interest in
the Transferred Certificates will constitute a reaffirmation of this
certification by the undersigned as of the date of such acquisition.
8. Capitalized terms used but not defined herein have the meanings
ascribed thereto in the Pooling and Servicing Agreement pursuant to which
the Transferred Certificates were issued.
--------------------------------------
(Transferee or Adviser)
By:
-----------------------------------
Name:
Title:
Date:
IF AN ADVISER:
Print Name of Transferee
--------------------------------------
Date:
EXHIBIT F-2D
FORM OF TRANSFEREE CERTIFICATE
FOR TRANSFERS OF INTERESTS IN REGULATION S GLOBAL CERTIFICATES
[Date]
[TRANSFEROR]
Re: Greenwich Capital Commercial Funding Corp., as depositor,
Commercial Mortgage Trust 2003-C1, Commercial Mortgage
Pass-Through Certificates, Series 2003-C1, Class _____,
having an initial aggregate [Certificate Principal Balance]
[Certificate Notional Amount] as of June 30, 2003 (the
"Closing Date") of $__________
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
_________________________ (the "Transferor") to __________________________ (the
"Transferee") through our respective Depository Participants of the Transferor's
beneficial ownership interest (currently maintained on the books and records of
The Depository Trust Company ("DTC") and the Depository Participants) in the
captioned Certificates (the "Transferred Certificates"), pursuant to Section
5.02 of the Pooling and Servicing Agreement (the "Pooling and Servicing
Agreement"), dated as of June 30, 2003, between Greenwich Capital Commercial
Funding Corp., as Depositor, Wachovia Bank, National Association, as Master
Servicer, GMAC Commercial Mortgage Corporation, as Special Servicer, LaSalle
Bank National Association, as Trustee, and ABN AMRO Bank N.V., as Fiscal Agent.
All capitalized terms used but not otherwise defined herein shall have the
respective meanings set forth in the Pooling and Servicing Agreement. The
Transferee hereby certifies, represents and warrants to and agrees with you, and
for the benefit of the Depositor, that the Transferee is not a United States
Securities Person.
For purposes of this certification, "United States Securities
Person" means (i) any natural person resident in the United States, (ii) any
partnership or corporation organized or incorporated under the laws of the
United States; (iii) any estate of which any executor or administrator is a
United States Securities Person, other than any estate of which any professional
fiduciary acting as executor or administrator is a United States Securities
Person if an executor or administrator of the estate who is not a United States
Securities Person has sole or shared investment discretion with respect to the
assets of the estate and the estate is governed by foreign law, (iv) any trust
of which any trustee is a United States Securities Person, other than a trust of
which any professional fiduciary acting as trustee is a United States Securities
Person if a trustee who is not a United States Securities Person has sole or
shared investment discretion with respect to the trust assets and no beneficiary
of the trust (and no settlor if the trust is revocable) is a United States
Securities Person, (v) any agency or branch of a foreign entity located in the
United States, unless the agency or branch operates for valid business reasons
and is engaged in the business of insurance or banking and is subject to
substantive insurance or banking regulation, respectively, in the jurisdiction
where located, (vi) any non-discretionary account or similar account (other than
an estate or trust) held by a dealer or other fiduciary for the benefit or
account of a United States Securities Person, (vii) any discretionary account or
similar account (other than an estate or trust) held by a dealer or other
fiduciary organized, incorporated or (if an individual) resident in the United
States, other than one held for the benefit or account of a non-United States
Securities Person by a dealer or other professional fiduciary organized,
incorporated or (if any individual) resident in the United States, (viii) any
partnership or corporation if (a) organized or incorporated under the laws of
any foreign jurisdiction and (b) formed by a United States Securities Person
principally for the purpose of investing in securities not registered under the
Securities Act, unless it is organized or incorporated, and owned, by
"accredited investors" (as defined in Rule 501(a)) under the United States
Securities Act of 1933, as amended (the "Securities Act"), who are not natural
persons, estates or trusts; provided, however, that the International Monetary
Fund, the International Bank for Reconstruction and Development, the
Inter-American Development Bank, the Asian Development Bank, the African
Development Bank, the United Nations and their agencies, affiliates and pension
plans, any other similar international organizations, their agencies, affiliates
and pension plans shall not constitute United States Securities Persons.
We understand that this certification is required in connection with
certain securities laws of the United States. In connection therewith, if
administrative or legal proceedings are commenced or threatened in connection
with which this certification is or would be relevant, we irrevocably authorize
you to produce this certification to any interested party in such proceedings.
Dated: __________, _____
By:
-----------------------------------
As, or agent for, the beneficial
owner(s) of the Certificates to
which this certificate relates.
EXHIBIT G
FORM I OF TRANSFEREE CERTIFICATE
IN CONNECTION WITH ERISA (DEFINITIVE NON-REGISTERED CERTIFICATES)
[Date]
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Asset-Backed Securities Trust Services Group--
Greenwich Capital Commercial Funding Corp., Series 2003-C1
Re: Greenwich Capital Commercial Funding Corp., as depositor
Commercial Mortgage Trust 2003-C1, Commercial Mortgage
Pass-Through Certificates, Series 2003-C1, Class _____,
having an initial aggregate [Certificate Principal Balance]
[Certificate Notional Amount] as of June 30, 2003 (the
"Issue Date") of $__________
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
_________________________ (the "Transferor") to __________________________ (the
"Transferee") of the captioned Certificates (the "Transferred Certificates"),
pursuant to Section 5.02 of the Pooling and Servicing Agreement (the "Pooling
and Servicing Agreement"), dated as of June 30, 2003, between Greenwich Capital
Commercial Funding Corp., as Depositor, Wachovia Bank, National Association, as
Master Servicer, GMAC Commercial Mortgage Corporation, as Special Servicer,
LaSalle Bank National Association, as Trustee, and ABN AMRO Bank N.V., as Fiscal
Agent. All capitalized terms used herein and not otherwise defined shall have
the respective meanings set forth in the Pooling and Servicing Agreement. The
Transferee hereby certifies, represents and warrants to you, as Certificate
Registrar, and for the benefit of the Trustee and the Depositor, that:
1. The Transferee 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, except in the case
of a Residual Interest Certificate, an insurance company using the assets of its
general account under circumstances whereby the purchase and holding of
Privately Offered 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. Except in the case of the Residual Interest Certificates, which may not be
transferred to a Plan or any person acting on behalf of or using the assets of a
Plan, the Transferee understands that if the Transferee is a Person referred to
in 1(a) or (b) above, such Transferee 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 Transferee or transferee will not result in
the assets of the Trust Fund being deemed to be plan assets (by reason of the
application of Department of Labor Regulation ss. 2510.3-101) 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 Master Servicer, the Special Servicer, the Initial
Purchaser 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 Master
Servicer, the Special Servicer, the Trustee, the Initial Purchaser, the
Certificate Registrar or the Trust Fund.
IN WITNESS WHEREOF, the Transferee hereby executes this ERISA representation
letter on the ___ day of [______________], 20[__].
Very truly yours,
-----------------------------------------
[The Transferee]
By:
--------------------------------------
Name:
Title:
EXHIBIT H-1
FORM OF TRANSFER AFFIDAVIT AND AGREEMENT
REGARDING RESIDUAL INTEREST CERTIFICATES
TRANSFER AFFIDAVIT PURSUANT TO
SECTIONS 860D(a)(6)(A) and 860E(e)(4) OF
THE INTERNAL REVENUE CODE OF 1986, AS AMENDED
Re: Greenwich Capital Commercial Funding Corp., as depositor,
Commercial Mortgage Trust 2003-C1, Commercial Mortgage
Pass-Through Certificates, Series 2003-C1 (the
"Certificates"), issued pursuant to the Pooling and Servicing
Agreement (the "Pooling and Servicing Agreement"), dated as of
June 30, 2003, among Greenwich Capital Commercial Funding
Corp. as Depositor, Wachovia Bank, National Association as
Master Servicer, GMAC Commercial Mortgage Corporation as
Special Servicer, LaSalle Bank National Association as Trustee
and ABN AMRO Bank N.V. as Fiscal Agent
STATE OF )
) ss.: ____________________
COUNTY OF )
I, _________________________, under penalties of perjury, declare
that, to the best of my knowledge and belief, the following representations are
true, correct and complete, and being first sworn, depose and say that:
1. I am a ________________________ of ___________________________
(the "Purchaser"), on behalf of which I have the authority to make this
affidavit.
2. The Purchaser is acquiring [Class R-I] [Class R-II] Certificates
representing ________% of the residual interest in [each of] the real estate
mortgage investment conduit[s] ([each,] a "REMIC") designated as ["REMIC I"]
["REMIC II"], [respectively], relating to the Certificates for which an election
is to be made under Section 860D of the Internal Revenue Code of 1986 (the
"Code").
3. The Purchaser is not a "Disqualified Organization" (as defined
below), and that the Purchaser is not acquiring the [Class R-I] [Class R-II]
Certificates for the account of, or as agent or nominee of, or with a view to
the transfer of direct or indirect record or beneficial ownership thereof, to a
Disqualified Organization. For the purposes hereof, a Disqualified Organization
is any of the following: (i) the United States, (ii) any state or political
subdivision thereof, (iii) any foreign government, (iv) any international
organization, (v) any agency or instrumentality of any of the foregoing, (vi)
any tax-exempt organization (other than a cooperative described in Section 521
of the Code) which is exempt from the tax imposed by Chapter 1 of the Code
unless such organization is subject to the tax imposed by Section 511 of the
Code, (vii) any organization described in Section 1381(a)(2)(C) of the Code, or
(viii) any other entity designated as a "disqualified organization" by relevant
legislation amending the REMIC Provisions and in effect at or proposed to be
effective as of the time of determination. In addition, a corporation will not
be treated as an instrumentality of the United States or of any state or
political subdivision thereof if all of its activities are subject to tax
(except for the Federal Home Loan Mortgage Corporation) and a majority of its
board of directors is not selected by such governmental unit. The terms "United
States" and "international organization" shall have the meanings set forth in
Section 7701 of the Code.
4. The Purchaser is not a foreign permanent establishment or a fixed
base (within the meaning of any applicable income tax treaty between the United
States and any foreign jurisdiction) of a United States Tax Person.
5. The Purchaser will not cause the income from the [Class R-I]
[Class R-II] Certificates to be attributable to a foreign permanent
establishment or fixed base (within the meaning of any applicable income tax
treaty between the United States and any foreign jurisdiction) of a United
States Tax Person.
6. The Purchaser acknowledges that Section 860E(e) of the Code would
impose a substantial tax on the transferor or, in certain circumstances, on an
agent for the transferee, with respect to any transfer of any interest in any
[Class R-I] [Class R-II] Certificates to a Disqualified Organization.
7. No purpose of the acquisition of the [Class R-I] [Class R-II]
Certificates is to impede the assessment or collection of tax.
8. Check one of the following:
[ ] The present value of the anticipated tax liabilities associated with holding
the [Class R-I] [Class R-II] Certificate does not exceed the sum of:
(i) the present value of any consideration given to the Purchaser
to acquire such [Class R-I] [Class R-II] Certificate;
(ii) the present value of the expected future distributions on such
[Class R-I] [Class R-II] Certificate; and
(iii) the present value of the anticipated tax savings associated
with holding such [Class R-I] [Class R-II] Certificate as the
related REMIC generates losses.
For purposes of this calculation, (i) the Purchaser is assumed to pay tax at the
highest rate currently specified in Section 11(b) of the Code (but the tax rate
in Section 55(b)(1)(B) of the Code may be used in lieu of the highest rate
specified in Section 11(b) of the Code if the Purchaser has been subject to the
alternative minimum tax under Section 55 of the Code in the preceding two years
and will compute its taxable income in the current taxable year using the
alternative minimum tax rate) and (ii) present values are computed using a
discount rate equal to the short-term Federal rate prescribed by Section 1274(d)
of the Code for the month of the transfer and the compounding period used by the
Purchaser.
[ ] The transfer of the [Class R-I] [Class R-II] Certificate complies with U.S.
Treasury Regulations Sections 1.860E-1(c)(5) and (6) and, accordingly,
(i) the Purchaser is an "eligible corporation," as defined in U.S.
Treasury Regulations Section 1.860E-1(c)(6)(i), as to which
income from the [Class R-I] [Class R-II] Certificate will only
be taxed in the United States;
(ii) at the time of the transfer, and at the close of the
Purchaser's two fiscal years preceding the year of the
transfer, the Purchaser had gross assets for financial
reporting purposes (excluding any obligation of a person
related to the Purchaser within the meaning of U.S. Treasury
Regulations Section 1.860E-1(c)(6)(ii)) in excess of $100
million and net assets in excess of $10 million;
(iii) the Purchaser will transfer the [Class R-I] [Class R-II]
Certificate only to another "eligible corporation," as defined
in U.S. Treasury Regulations Section 1.860E-1(c)(6)(i), in a
transaction that satisfies the requirements of Sections
1.860E-1(c)(4)(i), (ii) and (iii) and Section 1.860E-1(c)(5)
of the U.S. Treasury Regulations; and
(iv) the Purchaser determined the consideration paid to it to
acquire the [Class R-I] [Class R-II] Certificate based on
reasonable market assumptions (including, but not limited to,
borrowing and investment rates, prepayment and loss
assumptions, expense and reinvestment assumptions, tax rates
and other factors specific to the Purchaser) that it has
determined in good faith.
[ ] None of the above.
9. [Check the statement that applies]
[ ] The Purchaser is a "United States person" as defined in Section 7701(a) of
the Code and the regulations promulgated thereunder (the Purchaser's U.S.
taxpayer identification number is __________). The Purchaser is not classified
as a partnership under the Code (or, if so classified, all of its beneficial
owners are United States persons);
or
[ ] The Purchaser is not a United States person. However, the Purchaser:
(a) conducts a trade or business within the United States and,
for purposes of Treasury regulation section 1.860G-3(a)(3), is subject to
tax under Section 882 of the Code;
(b) understands that, for purposes of Treasury regulation
section 1.860E-1(c)(4)(ii), as a holder of a [Class R-I] [Class R-II]
Certificate for United States federal income tax purposes, it may incur
tax liabilities in excess of any cash flows generated by such [Class R-I]
[Class R-II] Certificate;
(c) intends to pay the taxes associated with holding a [Class
R-I] [Class R-II] Certificate;
(d) is not classified as a partnership under the Code (or, if
so classified, all of its beneficial owners either satisfy clauses (a),
(b) and (c) of this sentence or are United States persons); and
(e) has furnished the Transferor and the Trustee with an
effective IRS Form W-8ECI or successor form and will update such form as
may be required under the applicable Treasury regulations.
9. The Purchaser 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 Purchaser intends to pay taxes associated with holding the [Class R-I]
[Class R-II] Certificates as they become due.
10. The Purchaser understands that it may incur tax
liabilities with respect to the [Class R-I] [Class R-II] Certificates in
excess of any cash flows generated by such Certificates.
11. The Purchaser will not transfer the [Class R-I] [Class
R-II] Certificates to any person or entity as to which the Purchaser has
not received an affidavit substantially in the form of this affidavit or
to any person or entity as to which the Purchaser has actual knowledge
that the requirements set forth in paragraphs 3, 4, 5, 7 or 9 hereof are
not satisfied, or to any person or entity with respect to which the
Purchaser has not (at the time of such transfer) satisfied the
requirements under the Code to conduct a reasonable investigation of the
financial condition of such person or entity (or its current beneficial
owners if such person or entity is classified as a partnership under the
Code).
12. The Purchaser agrees to such amendments of the Pooling and
Servicing Agreement as may be required to further effectuate the
prohibition against transferring the [Class R-I] [Class R-II] Certificates
to a Disqualified Organization, an agent thereof or a person that does not
satisfy the requirements of paragraphs 4, 5, 7 and 9.
13. The Purchaser consents to the designation of the Trustee
as the agent of the Tax Matters Person of [REMIC I] [REMIC II] pursuant to
Section 10.01(d) of the Pooling and Servicing Agreement.
Capitalized terms used but not defined herein have the meanings
assigned thereto in the Pooling and Servicing Agreement.
IN WITNESS WHEREOF, the Purchaser has caused this instrument to be
duly executed on its behalf by its duly authorized officer this ___ day of
____________________.
By:
------------------------------------
Name:
Title:
Personally appeared before me ___________________________, known or
proved to me to be the same person who executed the foregoing instrument and to
be a_______________________ of the Purchaser, and acknowledged to me that he/she
executed the same as his/her free act and deed and as the free act and deed of
the Purchaser.
Subscribed and sworn before me this
____ day of _______________.
--------------------------------------
Notary Public
EXHIBIT H-2
FORM OF TRANSFEROR CERTIFICATE
REGARDING RESIDUAL INTEREST CERTIFICATES
[Date]
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Asset-Backed Securities Trust Services Group--
Greenwich Capital Commercial Funding Corp., Commercial Mortgage Trust
2003-C1
Re: Greenwich Capital Commercial Funding Corp., as depositor,
Commercial Mortgage Trust 2003-C1, Commercial Mortgage
Pass-Through Certificates, Series 2003-C1 (the "Certificates")
Ladies and Gentlemen:
This letter is delivered to you in connection with the transfer by
_________________ (the "Transferor") to _________________ (the "Transferee") of
[Class R-I] [Class R-II] Certificates evidencing a ____% Percentage Interest in
such Class (the "Residual Interest Certificates"). The Certificates, including
the Residual Interest Certificates, were issued pursuant to the Pooling and
Servicing Agreement, dated as of June 30, 2003 (the "Pooling and Servicing
Agreement"), among Greenwich Capital Commercial Funding Corp., as depositor,
Wachovia Bank, National Association as master servicer, GMAC Commercial Mortgage
Corporation as special servicer, LaSalle Bank National Association as trustee
and ABN AMRO Bank N.V. as fiscal agent. All capitalized terms used but not
otherwise defined herein shall have the respective meanings set forth in the
Pooling and Servicing Agreement. The Transferor hereby certifies, represents and
warrants to you, as Certificate Registrar, that:
1. No purpose of the Transferor relating to the transfer of
the Residual Interest Certificates by the Transferor to the Transferee is
or will be to impede the assessment or collection of any tax.
2. The Transferor understands that the Transferee has
delivered to you a Transfer Affidavit and Agreement in the form attached
to the Pooling and Servicing Agreement as Exhibit H-1. The Transferor does
not know or believe that any representation contained therein is false.
3. The Transferor has at the time of this transfer conducted a
reasonable investigation of the financial condition of the Transferee (or
the beneficial owners of the Transferee if it is classified as a
partnership under the Code) as contemplated by Treasury regulation section
1.860E-1(c)(4)(i) and, as a result of that investigation, the Transferor
has determined that the Transferee has historically paid its debts as they
became due and has found no significant evidence to indicate that the
Transferee will not continue to pay its debts as they become due in the
future. The Transferor understands that the transfer of the Residual
Interest Certificates may not be respected for United States income tax
purposes (and the Transferor may continue to be liable for United States
income taxes associated therewith) unless the Transferor has conducted
such an investigation.
Very truly yours,
------------------------------------
(Transferee)
By:
------------------------------
Name:
Title:
EXHIBIT I-1
FORM OF NOTICE AND ACKNOWLEDGEMENT
[Date]
Standard & Poor's Ratings Services
a division of The XxXxxx-Xxxx Companies, Inc.
00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Commercial Surveillance Department
Xxxxx'x Investors Service, Inc.
00 Xxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
This notice is being delivered pursuant to Section 6.09 of the
Pooling and Servicing Agreement, dated as of June 30, 2003 and relating to
Greenwich Capital Commercial Funding Corp., Commercial Mortgage Trust 2003-C1,
Commercial Mortgage Pass-Through Certificates, Series 2003-C1 (the "Agreement").
Capitalized terms used but not otherwise defined herein shall have respective
meanings assigned to them in the Agreement.
Notice is hereby given that the Holders of Certificates evidencing a
majority of the Voting Rights allocated to the Controlling Class have designated
________________ to serve as the Special Servicer under the Agreement.
The designation of __________________ as Special Servicer will
become final if certain conditions are met and you deliver to _________________,
the trustee under the Agreement (the "Trustee"), written confirmation that if
the person designated to become the Special Servicer were to serve as such, such
event would not result in the qualification, downgrade or withdrawal of the
rating or ratings assigned by you to one or more Classes of the Certificates.
Accordingly, such confirmation is hereby requested as soon as possible.
Please acknowledge receipt of this notice by signing the enclosed
copy of this notice where indicated below and returning it to the Trustee, in
the enclosed stamped self-addressed envelope.
Very truly yours,
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee
By:
------------------------------------
Name:
Title:
Receipt acknowledged:
STANDARD & POOR'S RATINGS SERVICES
By: ________________________________
Name:
Title:
Date:
XXXXX'X INVESTORS SERVICE, INC.
By: ________________________________
Name:
Title:
Date:
EXHIBIT I-2
FORM OF ACKNOWLEDGEMENT OF PROPOSED SPECIAL SERVICER
[Date]
[TRUSTEE]
[MASTER SERVICER]
[REPLACED SPECIAL SERVICER]
[DEPOSITOR]
[FISCAL AGENT]
Re: Greenwich Capital Commercial Funding Corp., as depositor,
Commercial Mortgage Trust 2003-C1, Commercial Mortgage
Pass-Through Certificates, Series 2003-C1
Ladies and Gentlemen:
Pursuant to Section 6.09 of the Pooling and Servicing Agreement,
dated as of June 30, 2003, relating to Greenwich Capital Commercial Funding
Corp., Commercial Mortgage Trust 2003-C1, Commercial Mortgage Pass-Through
Certificates, Series 2003-C1 (the "Agreement"), the undersigned hereby agrees
with all the other parties to the Agreement that the undersigned shall serve as
Special Servicer under, and as defined in, the Agreement. The undersigned hereby
acknowledges that, as of the date hereof, it is and shall be a party to the
Agreement and bound thereby to the full extent indicated therein in the capacity
of Special Servicer. The undersigned hereby makes, as of the date hereof, the
representations and warranties set forth in Section 3.24 of the Agreement, with
the following corrections with respect to type of entity and jurisdiction of
organization:
--------------------.
---------------------------------------
By:
----------------------------------
Name:
Title:
EXHIBIT J
FORM OF UCC-1 FINANCING STATEMENT
SCHEDULE 1
This Schedule 1 is attached to and incorporated in a financing
statement pertaining to Greenwich Capital Commercial Funding Corp. as depositor
(referred to as the "Debtor" for the purpose of this financing statement only),
and LaSalle Bank National Association as trustee for the holders of the
Greenwich Capital Commercial Funding Corp., Commercial Mortgage Trust 2003-C1,
Commercial Mortgage Pass-Through Certificates, Series 2003-C1 (referred to as
the "Secured Party" for purposes of this financing statement only), under that
certain Pooling and Servicing Agreement, dated as of June 30, 2003 (the "Pooling
and Servicing Agreement"), among the Debtor as depositor, the Secured Party as
trustee (the "Trustee"), Wachovia Bank, National Association as master servicer
(the "Master Servicer"), GMAC Commercial Mortgage Corporation as special
servicer (the "Special Servicer") and ABN AMRO Bank N.V. as fiscal agent,
relating to the issuance of the Greenwich Capital Commercial Funding Corp.,
Commercial Mortgage Trust 2003-C1, Commercial Mortgage Pass-Through
Certificates, Series 2003-C1 (the "Series 2003-C1 Certificates"). Capitalized
terms used herein and not defined shall have the respective meanings given to
them in the Pooling and Servicing Agreement.
The attached financing statement covers all of the Debtor's right
(including the power to convey title thereto), title and interest in and to the
Trust Fund created pursuant to the Pooling and Servicing Agreement, consisting
of the following:
(1) the mortgage loans listed on the Mortgage Loan Schedule attached
hereto as Exhibit A (the "Mortgage Loans");
(2) the note or other evidence of indebtedness of the related
borrower under each Mortgage Loan (the "Mortgage Note"), the related mortgage,
deed of trust or other similar instrument securing such Mortgage Note (the
"Mortgage") and each other legal, credit and servicing document related to such
Mortgage Loan (collectively with the related Mortgage Note and Mortgage, the
"Mortgage Loan Documents");
(3) (a) the Custodial Accounts and the Defeasance Deposit Account
required to be maintained by the Master Servicer pursuant to the Pooling and
Servicing Agreement, (b) all funds from time to time on deposit in the Custodial
Accounts and the Defeasance Deposit Account, (c) the investments of any such
funds consisting of securities, instruments or other obligations, and (d) the
general intangibles consisting of the contractual right to payment, including,
without limitation, the right to payments of principal and interest and the
right to enforce the related payment obligations, arising from or under any such
investments;
(4) all REO Property acquired in respect of defaulted Mortgage
Loans;
(5) (a) the REO Accounts required to be maintained by the Special
Servicer pursuant to the Pooling and Servicing Agreement, (b) all funds from
time to time on deposit in the REO Accounts, (c) the investments of any such
funds consisting of securities, instruments or other obligations, and (d) the
general intangibles consisting of the contractual right to payment, including,
without limitation, the right to payments of principal and interest and the
right to enforce the related payment obligations, arising from or under any such
investments;
(6) (a) the Servicing Accounts and the Reserve Accounts required to
be maintained by the Master Servicer and/or the Special Servicer pursuant to the
Pooling and Servicing Agreement, (b) all funds from time to time on deposit in
the Servicing Accounts and the Reserve Accounts, (c) the investments of any such
funds consisting of securities, instruments or other obligations, and (d) the
general intangibles consisting of the contractual right to payment, including,
without limitation, the right to payments of principal and interest and the
right to enforce the related payment obligations, arising from or under any such
investments;
(7) (a) the Interest Reserve Account required to be maintained by
the Secured Party pursuant to the Pooling and Servicing Agreement, (b) all funds
from time to time on deposit in the Interest Reserve Account, (c) the
investments of any such funds consisting of securities, instruments or other
obligations, and (d) the general intangibles consisting of the contractual right
to payment, including, without limitation, the right to payments of principal
and interest and the right to enforce the related payment obligations, arising
from or under any such investments;
(8) (a) the Distribution Account required to be maintained by the
Secured Party pursuant to the Pooling and Servicing Agreement, (b) all funds
from time to time on deposit in the Distribution Account, (c) the investments of
any such funds consisting of securities, instruments or other obligations, and
(d) the general intangibles consisting of the contractual right to payment,
including, without limitation, the right to payments of principal and interest
and the right to enforce the related payment obligations, arising from or under
any such investments;
(9) all insurance policies, including the right to payments
thereunder, with respect to the Mortgage Loans required to be maintained
pursuant to the Mortgage Loan Documents and the Pooling and Servicing Agreement,
transferred to the Trust and to be serviced by the Master Servicer or Special
Servicer pursuant to the Pooling and Servicing Agreement;
(10) any and all general intangibles (as defined in the Uniform
Commercial Code) consisting of, arising from or relating to any of the
foregoing; and
(11) any and all income, payments, proceeds and products of any of
the foregoing.
THE DEBTOR AND THE SECURED PARTY INTEND THE TRANSACTIONS CONTEMPLATED BY THE
POOLING AND SERVICING AGREEMENT TO CONSTITUTE A SALE OF ALL THE DEBTOR'S RIGHT,
TITLE AND INTEREST IN, TO AND UNDER THE MORTGAGE LOANS, THE MORTGAGE NOTES, THE
RELATED MORTGAGES AND THE OTHER RELATED MORTGAGE LOAN DOCUMENTS EVIDENCED BY THE
SERIES 2003-C1 CERTIFICATES, AND THIS FILING SHOULD NOT BE CONSTRUED AS A
CONCLUSION THAT A SALE HAS NOT OCCURRED. THE REFERENCES HEREIN TO MORTGAGE NOTES
SHOULD NOT BE CONSTRUED AS A CONCLUSION THAT ANY MORTGAGE NOTE IS NOT AN
INSTRUMENT WITHIN THE MEANING OF THE UNIFORM COMMERCIAL CODE, AS IN EFFECT IN
ANY APPLICABLE JURISDICTION, OR THAT A FILING IS NECESSARY TO PERFECT THE
OWNERSHIP OR SECURITY INTEREST OF THE SECURED PARTY WITH RESPECT TO THE MORTGAGE
LOANS OR IN ANY MORTGAGE NOTE, MORTGAGE OR OTHER MORTGAGE LOAN DOCUMENT. IN
ADDITION, THE REFERENCES HEREIN TO SECURITIES, INSTRUMENTS AND OTHER OBLIGATIONS
SHOULD NOT BE CONSTRUED AS A CONCLUSION THAT ANY SUCH SECURITY, INSTRUMENT OR
OTHER OBLIGATION IS NOT AN INSTRUMENT, A CERTIFICATED SECURITY OR AN
UNCERTIFICATED SECURITY WITHIN THE MEANING OF THE UNIFORM COMMERCIAL CODE, AS IN
EFFECT IN ANY APPLICABLE JURISDICTION, NOR SHOULD THIS FINANCING STATEMENT BE
CONSTRUED AS A CONCLUSION THAT A FILING IS NECESSARY TO PERFECT THE OWNERSHIP OR
SECURITY INTEREST OF THE SECURED PARTY IN THE CONTRACTUAL RIGHT TO PAYMENT,
INCLUDING, WITHOUT LIMITATION, THE RIGHT TO PAYMENTS OF PRINCIPAL AND INTEREST
AND THE RIGHT TO ENFORCE THE RELATED PAYMENT OBLIGATIONS, ARISING FROM OR UNDER
ANY SUCH SECURITY, INSTRUMENT OR OTHER OBLIGATION. WITH RESPECT TO THE
FOREGOING, THIS FILING IS MADE ONLY IN THE EVENT OF CONTRARY ASSERTIONS BY THIRD
PARTIES.
EXHIBIT A TO SCHEDULE 1
(See Schedule I- Mortgage Loan Schedule)
EXHIBIT K
SUB-SERVICERS IN RESPECT OF WHICH SUB-SERVICING AGREEMENTS ARE IN
EFFECT OR BEING NEGOTIATED AS OF THE CLOSING DATE
loan_id loan_name Sub-Servicer
==================================================================
00-0000000 Corona Corporate Center II GMAC
00000 Xxxxxx Xxxxxxxxxx Xxxxxxxx XXX
00-0000000 000 Xxxxxxx Xxxxxx GMAC
00-0000000 Shores Professional Office Building Xxxxxxx
00-0000000 Philamer Apartments Xxxxxxx
00-0000000 Cedar Ridge Apartments ARCS
00-0000000 Statewide Self Storage GMAC
EXHIBIT L
FORM OF DEFEASANCE CERTIFICATION
FORM OF NOTICE AND CERTIFICATION
REGARDING DEFEASANCE OF MORTGAGE LOAN
For loans (a) having a balance of $20,000,000 or less or a balance of less
than 5% of outstanding pool balance, whichever is less) or (b) that are
not then one of the ten largest (measured by unpaid principal balance)
in the mortgage pool
To: Standard & Poor's Ratings Services
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Commercial Mortgage Surveillance
From: _____________________________________, in its capacity as master servicer
(the "Master Servicer") under the Pooling and Servicing Agreement dated as
of June 30, 2003 (the "Pooling and Servicing Agreement"), among Greenwich
Capital Commercial Funding Corp. as Depositor, the Master Servicer, GMAC
Commercial Mortgage Corporation as special servicer, LaSalle Bank National
Association as trustee (the "Trustee"), and ABN AMRO Bank N.V. as fiscal
agent.
Date: _________, 20___
Re: Greenwich Capital Commercial Funding Corp., Commercial
Mortgage Trust 2003-C1, Commercial Mortgage Pass-Through
Certificates Series 2003-C1
Mortgage loan (the "Mortgage Loan") identified by loan number _____
on the Mortgage Loan Schedule attached to the Pooling and Servicing Agreement
and heretofore secured by the Mortgaged [Property] [Properties] identified on
the Mortgage Loan Schedule by the following name[s]: ___________________________
________________________________________________________________________________
Reference is made to the Pooling and Servicing Agreement described above.
Capitalized terms used but not defined herein have the meanings assigned to such
terms in the Pooling and Servicing Agreement.
As Master Servicer under the Pooling and Servicing Agreement, we hereby:
1. Notify you that the Mortgagor has consummated a defeasance of the
Mortgage Loan pursuant to the terms of the Mortgage Loan, of the type checked
below:
____ a full defeasance of the payments scheduled to be due in
respect of the entire unpaid principal balance of the
Mortgage Loan; or
____ a partial defeasance of the payments scheduled to be due in
respect of a portion of the unpaid principal balance of the
Mortgage Loan that represents ___% of the entire unpaid
principal balance of the Mortgage Loan and, under the
Mortgage, has an allocated loan amount of $____________ or
_______% of the entire unpaid principal balance;
2. Certify as to each of the following, and any additional
explanatory notes set forth on Exhibit A hereto:
a. The Mortgage Loan documents permit the defeasance, and the
terms and conditions for defeasance specified therein were satisfied in
all material respects in completing the defeasance.
b. The defeasance was consummated on __________, 20__.
c. The defeasance collateral consists of securities that (i)
constitute "government securities" as defined in Section 2(a)(16) of the
Investment Company Act of 1940 as amended (15 U.S.C. 80a-1), (ii) are
listed as "Qualified Investments for `AAA' Financings" under Paragraphs 1,
2 or 3 of "Cash Flow Approach" in Standard & Poor's Public Finance
Criteria 2000, as amended to the date of the defeasance, (iii) are rated
`AAA' by Standard & Poor's, (iv) if they include a principal obligation,
provide for a predetermined fixed dollar amount of principal due at
maturity that cannot vary or change, and (v) are not subject to
prepayment, call or early redemption. Such securities have the
characteristics set forth below:
CUSIP RATE MAT PAY DATES ISSUED
d. The Master Servicer received an opinion of counsel (from
counsel approved by Master Servicer in accordance with the Servicing
Standard) that the defeasance will not result in an Adverse REMIC Event.
e. The Master Servicer determined that the defeasance
collateral will be owned by an entity (the "Defeasance Obligor") as to
which one of the statements checked below is true:
____ the related Mortgagor was a Single-Purpose Entity (as
defined in Standard & Poor's Structured Finance Ratings Real
Estate Finance Criteria, as amended to the date of the
defeasance (the "S&P Criteria")) as of the date of the
defeasance, and after the defeasance owns no assets other
than the defeasance collateral and real property securing
Mortgage Loan included in the pool.
____ the related Mortgagor designated a Single-Purpose Entity (as
defined in the S&P Criteria) to own the defeasance
collateral; or
____ the Master Servicer designated a Single-Purpose Entity (as
defined in the S&P Criteria) established for the benefit of
the Trust to own the defeasance collateral.
f. The Master Servicer received a broker or similar
confirmation of the credit, or the accountant's letter described below
contained statements that it reviewed a broker or similar confirmation of
the credit, of the defeasance collateral to an Eligible Account (as
defined in the S&P Criteria) in the name of the Defeasance Obligor, which
account is maintained as a securities account by the Trustee acting as a
securities intermediary.
g. As securities intermediary, the Trustee is obligated to
make the scheduled payments on the Mortgage Loan from the proceeds of the
defeasance collateral directly to the Master Servicer's collection account
in the amounts and on the dates specified in the Mortgage Loan documents
or, in a partial defeasance, the portion of such scheduled payments
attributed to the allocated loan amount for the real property defeased,
increased by any defeasance premium specified in the Mortgage Loan
documents (the "Scheduled Payments").
h. The Master Servicer received from the Mortgagor written
confirmation from a firm of independent certified public accountants, who
were approved by the Master Servicer in accordance with the Servicing
Standard, stating that (i) revenues from principal and interest payments
made on the defeasance collateral (without taking into account any
earnings on reinvestment of such revenues) will be sufficient to timely
pay each of the Scheduled Payments after the defeasance including the
payment in full of the Mortgage Loan (or the allocated portion thereof in
connection with a partial defeasance) on its Maturity Date (or, in the
case of an ARD Loan, on its Anticipated Repayment Date or on the date when
any open prepayment period set forth in the related Mortgage Loan
documents commences), (ii) the revenues received in any month from the
defeasance collateral will be applied to make Scheduled Payments within
four (4) months after the date of receipt, and (iii) interest income from
the defeasance collateral to the Defeasance Obligor in any calendar or
fiscal year will not exceed such Defeasance Obligor's interest expense for
the Mortgage Loan (or the allocated portion thereof in a partial
defeasance) for such year.
i. The Master Servicer received opinions from counsel, who
were approved by the Master Servicer in accordance with the Servicing
Standard, that (i) the agreements executed by the Mortgagor and/or the
Defeasance Obligor in connection with the defeasance are enforceable
against them in accordance with their terms, and (ii) the Trustee will
have a perfected, first priority security interest in the defeasance
collateral described above.
j. The agreements executed in connection with the defeasance
(i) permit reinvestment of proceeds of the defeasance collateral only in
Permitted Investments (as defined in the S&P Criteria), (ii) permit
release of surplus defeasance collateral and earnings on reinvestment to
the Defeasance Obligor or the Mortgagor only after the Mortgage Loan has
been paid in full, if any such release is permitted, (iii) prohibit any
subordinate liens against the defeasance collateral, and (iv) provide for
payment from sources other than the defeasance collateral or other assets
of the Defeasance Obligor of all fees and expenses of the securities
intermediary for administering the defeasance and the securities account
and all fees and expenses of maintaining the existence of the Defeasance
Obligor.
k. The entire unpaid principal balance of the Mortgage Loan as
of the date of defeasance was $___________. Such Mortgage Loan (a) has a
balance of $20,000,000 or less or a balance of less than 5% of outstanding
pool balance or (b) is not then one of the ten largest (measured by unpaid
principal balance) in the mortgage pool, in each such case, as of the date
of the most recent Distribution Date Statement received by us (the
"Current Report").
3. The defeasance described herein, together with all prior and
simultaneous defeasances of Mortgage Loans, brings the total of all fully and
partially defeased Mortgage Loans to $__________________, which is _____% of the
aggregate unpaid principal balance of the Mortgage Pool as of the date of the
Current Report.
4. Certify that Exhibit B hereto is a list of the material
agreements, instruments, organizational documents for the Defeasance Obligor,
and opinions of counsel and independent accountants executed and delivered in
connection with the defeasance described above and that originals or copies of
such agreements, instruments and opinions have been transmitted to the Trustee
for placement in the related Mortgage File or, to the extent not required to be
part of the related Mortgage File, are in the possession of the Master Servicer
as part of the Master Servicer's servicing file.
5. Certify and confirm that the determinations and certifications
described above were rendered in accordance with the Servicing Standard set
forth in, and the other applicable terms and conditions of, the Pooling and
Servicing Agreement; and
6. Certify that the individual under whose hand the Master Servicer
has caused this Notice and Certification to be executed did constitute a
Servicing Officer as of the date of the defeasance described above.
7. Agree to provide copies of all items listed in Exhibit B to you
upon request.
IN WITNESS WHEREOF, the Master Servicer has caused this Notice and
Certification to be executed as of the date captioned above.
[MASTER SERVICER]
By:
--------------------------------------
Name:
Title:
EXHIBIT M
FORM OF [DIRECTING HOLDER] [CONTROLLING CLASS DIRECTING HOLDER] [COMPANION LOAN
NOTEHOLDER] CONFIDENTIALITY AGREEMENT
[Date]
[LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Asset-Backed Securities Trust Services Group--Greenwich Capital
Commercial Funding Corp., as depositor, Commercial Mortgage Trust 2003-C1]
[Wachovia Bank, National Association
0000 Xxxxxxxx Xxxxx-XXX0
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Greenwich Capital Commercial Funding Corp., as depositor, Commercial
Mortgage Trust 2003-C1]
[GMAC Commercial Mortgage Corporation
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Greenwich Capital Commercial Funding Corp., as depositor, Commercial
Mortgage Trust 2003-C1]
Re: Greenwich Capital Commercial Funding Corp., as depositor,
Commercial Mortgage Trust 2003-C1, Commercial Mortgage
Pass-Through Certificates, Series 2003-C1
---------------------------------------------------------
In accordance with the provisions of the Pooling and Servicing
Agreement, dated as of June 30, 2003 (the "Pooling and Servicing Agreement"),
between Greenwich Capital Commercial Funding Corp., as depositor (the
"Depositor"), Wachovia Bank, National Association, as master servicer, GMAC
Commercial Mortgage Corporation, as special servicer, LaSalle Bank National
Association, as trustee (the "Trustee"), and ABN AMRO Bank N.V., as fiscal
agent, with respect to Greenwich Capital Commercial Funding Corp., as depositor,
Commercial Mortgage Trust 2003-C1, Commercial Mortgage Pass-Through
Certificates, Series 2003-C1 (the "Certificates"), the undersigned hereby
certifies and agrees as follows:
1. The undersigned is the [Directing Holder][Controlling Class
Directing Holder][Companion Loan Directing Holder for [ ] loan].
2. The undersigned will keep the information (the "Information")
obtained from time to time pursuant to the Pooling and Servicing Agreement
confidential, and such Information will not, without the prior written consent
of the [Trustee] [Master Servicer] [Special Servicer], be disclosed by the
undersigned or by its officers, directors, partners, employees, agents or
representatives (collectively, the "Representatives") in any manner whatsoever,
in whole or in part (other than for the purpose of communicating with the
Controlling Class); provided that the undersigned may provide all or any part of
the Information to any other person or entity that holds or is contemplating the
purchase of any Certificate or interest therein, but only if such person or
entity confirms in writing such ownership interest or prospective ownership
interest and agrees to keep it confidential.
4. The undersigned will not use or disclose the Information in any
manner which could result in a violation of any provision of the Securities Act
of 1933, as amended (the "Securities Act"), or the Securities Exchange Act of
1934, as amended, or would require registration of any Non-Registered
Certificate pursuant to Section 5 of the Securities Act.
5. The undersigned shall be fully liable for any breach of this
agreement by itself or any of its Representatives and shall indemnify the
Depositor, the Trustee, the Master Servicer, the Special Servicer and the Trust
Fund for any loss, liability or expense incurred thereby with respect to any
such breach by the undersigned or any of its Representatives.
To the extent not defined herein, the capitalized terms used herein
have the respective meanings assigned in the Pooling and Servicing Agreement.
IN WITNESS WHEREOF, the undersigned has caused its name to be signed
hereto by its duly authorized officer, as of the day and year written above.
[DIRECTING HOLDER]
[CONTROLLING CLASS DIRECTING HOLDER]
[COMPANION LOAN NOTEHOLDER]
By:
----------------------------------
Name:
Title:
--------------------------------------
By:
----------------------------------
Name:
Title:
EXHIBIT N-1
FORM OF INFORMATION REQUEST/INVESTOR CERTIFICATION FOR WEBSITE ACCESS
FROM CERTIFICATE [HOLDER] [OWNER]
[Date]
[LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Asset-Backed Securities Trust Services Group--
Greenwich Capital Commercial Funding Corp., as depositor,
Commercial Mortgage Trust 2003-C1]
[Wachovia Bank, National Association
0000 Xxxxxxxx Xxxxx-XXX0
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Greenwich Capital Commercial Funding Corp., as depositor,
Commercial Mortgage Trust 2003-C1]
Re: Greenwich Capital Commercial Funding Corp., as depositor,
Commercial Mortgage Trust 2003-C1,
Commercial Mortgage Pass-Through Certificates, Series
2003-C1
---------------------------------------------------------
In accordance with the provisions of the Pooling and Servicing
Agreement, dated as of June 30, 2003 (the "Pooling and Servicing Agreement"),
between Greenwich Capital Commercial Funding Corp., as depositor (the
"Depositor"), Wachovia Bank, National Association, as master servicer, GMAC
Commercial Mortgage Corporation, as special servicer, LaSalle Bank National
Association, as trustee (the "Trustee"), and ABN AMRO Bank N.V., as fiscal
agent, with respect to Greenwich Capital Commercial Funding Corp., as depositor,
Commercial Mortgage Trust 2003-C1, Commercial Mortgage Pass-Through
Certificates, Series 2003-C1 (the "Certificates"), the undersigned hereby
certifies and agrees as follows:
1. The undersigned is a [beneficial owner] [registered holder] of
the Class _____ Certificates.
2. The undersigned is requesting (Please check as applicable):
(i) ____ the information (the "Information") identified on the
schedule attached hereto pursuant to Section 8.14 of the Pooling and
Servicing Agreement; or
(ii) ____ the additional information (the "Additional
Information") identified on the schedule attached hereto pursuant to
Section 4.02 of the Pooling and Servicing Agreement; or
(iii) ____ a password pursuant to Section 4.02 of the Pooling
and Servicing Agreement for access to information (also, the
"Information") provided on the [Trustee's] [Master Servicer's]
Internet Website.
3. In consideration of the [Trustee's] [Master Servicer's]
disclosure to the undersigned of the Information, the undersigned will keep the
Information confidential (except from such outside persons as are assisting it
in evaluating its interest in Certificates, from its accountants and attorneys,
and otherwise from such governmental or banking authorities to which the
undersigned is subject), and such Information will not, without the prior
written consent of the [Trustee] [Master Servicer] [Special Servicer], be
disclosed by the undersigned or by its officers, directors, partners, employees,
agents or representatives (collectively, the "Representatives") in any manner
whatsoever, in whole or in part; provided that the undersigned may provide all
or any part of the Information to any other person or entity that holds or is
contemplating the purchase of any Certificate or interest therein, but only if
such person or entity confirms in writing such ownership interest or prospective
ownership interest and agrees to keep it confidential.
4. The undersigned will not use or disclose the Information in any
manner which could result in a violation of any provision of the Securities Act
of 1933, as amended (the "Securities Act"), or the Securities Exchange Act of
1934, as amended, or would require registration of any Non-Registered
Certificate pursuant to Section 5 of the Securities Act.
5. The undersigned shall be fully liable for any breach of this
agreement by itself or any of its Representatives and shall indemnify the
Depositor, the Trustee, the Master Servicer, the Special Servicer and the Trust
Fund for any loss, liability or expense incurred thereby with respect to any
such breach by the undersigned or any of its Representatives.
To the extent not defined herein, the capitalized terms used herein
have the respective meanings assigned in the Pooling and Servicing Agreement.
IN WITNESS WHEREOF, the undersigned has caused its name to be signed
hereto by its duly authorized officer, as of the day and year written above.
[BENEFICIAL OWNER OF A CERTIFICATE]
[REGISTERED HOLDER OF A CERTIFICATE]
By:
---------------------------------
Name:
Title:
--------------------------------------
By:
---------------------------------
Name:
Title:
EXHIBIT N-2
FORM OF INFORMATION REQUEST/INVESTOR CERTIFICATION FOR WEBSITE
ACCESS FROM PROSPECTIVE INVESTOR
[Date]
[LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Asset-Backed Securities Trust Services Group--
Greenwich Capital Commercial Funding Corp., as depositor,
Commercial Mortgage Trust 2003-C1]
[Wachovia Bank, National Association
0000 Xxxxxxxx Xxxxx-XXX0
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Greenwich Capital Commercial Funding Corp., as depositor,
Commercial Mortgage Trust 2003-C1]
Re: Greenwich Capital Commercial Funding Corp., as depositor,
Commercial Mortgage Trust 2003-C1,
Commercial Mortgage Pass-Through Certificates, Series
2003-C1
---------------------------------------------------------
In accordance with the provisions of the Pooling and Servicing
Agreement, dated as of June 30, 2003 (the "Pooling and Servicing Agreement"),
between Greenwich Capital Commercial Funding Corp., as depositor (the
"Depositor"), Wachovia Bank, National Association, as master servicer, GMAC
Commercial Mortgage Corporation, as special servicer, LaSalle Bank National
Association, as trustee (the "Trustee"), and ABN AMRO Bank N.V., as fiscal
agent, with respect to Greenwich Capital Commercial Funding Corp., as depositor,
Commercial Mortgage Trust 2003-C1, Commercial Mortgage Pass-Through
Certificates, Series 2003-C1 (the "Certificates"), the undersigned hereby
certifies and agrees as follows:
1. The undersigned is contemplating an investment in the Class _____
Certificates.
2. The undersigned is requesting (please check as applicable):
(i) ____ information (the "Information") for use in evaluating
the possible investment described above as identified on the
schedule attached hereto pursuant to Section 8.14 of the Pooling and
Servicing Agreement; or
(ii) ____ a password pursuant to Section 4.02 of the Pooling
and Servicing Agreement for access to information (also, the
"Information") provided on the [Trustee's] [Master Servicer's]
Internet Website.
3. In consideration of the [Trustee's] [Master Servicer's]
disclosure to the undersigned of the Information, the undersigned will keep the
Information confidential (except from such outside persons as are assisting it
in making the investment decision described in paragraph 1 above, from its
accountants and attorneys, and otherwise from such governmental or banking
authorities and agencies to which the undersigned is subject), and such
Information will not, without the prior written consent of the [Trustee] [Master
Servicer], be disclosed by the undersigned or by its officers, directors,
partners, employees, agents or representatives (collectively, the
"Representatives") in any manner whatsoever, in whole or in part.
4. The undersigned will not use or disclose the Information in any
manner which could result in a violation of any provision of the Securities Act
of 1933, as amended (the "Securities Act"), or the Securities Exchange Act of
1934, as amended, or would require registration of any Non-Registered
Certificate pursuant to Section 5 of the Securities Act.
5. The undersigned shall be fully liable for any breach of this
agreement by itself or any of its Representatives and shall indemnify the
Depositor, the Trustee, the Master Servicer, the Special Servicer and the Trust
Fund for any loss, liability or expense incurred thereby with respect to any
such breach by the undersigned or any of its Representatives.
To the extent not defined herein, the capitalized terms used herein
have the respective meanings assigned in the Pooling and Servicing Agreement.
IN WITNESS WHEREOF, the undersigned has caused its name to be signed
hereto by its duly authorized officer, as of the day and year written above.
[PROSPECTIVE PURCHASER OF A CERTIFICATE
OR INTEREST THEREIN]
By:
---------------------------------
Name:
Title:
-------------------------------------
By:
---------------------------------
Name:
Title:
EXHIBIT O-1
FORM OF TRUSTEE BACKUP CERTIFICATION
Re: Greenwich Capital Commercial Funding Corp., as depositor,
Commercial Mortgage Trust 2003-C1 (the "Trust") Commercial
Mortgage Pass-Through Certificates, Series 2003-C1 (the
"Certificates")
---------------------------------------------------------
Pursuant to Section 8.15 of the Pooling and Servicing Agreement,
dated as of June 30, 2003 (the "Pooling and Servicing Agreement"), between
Greenwich Capital Commercial Funding Corp. as depositor (the "Depositor"),
LaSalle Bank National Association as trustee (the "Trustee"), Wachovia Bank,
National Association as master servicer (the "Master Servicer"), GMAC Commercial
Mortgage Corporation as special servicer (the "Special Servicer") and ABN AMRO
Bank N.V. as fiscal agent, relating to the Certificates, the undersigned, a
____________________ of the Trustee and on behalf of the Trustee, hereby
certifies to the ____________________ as the officer executing the subject
certification pursuant to the Xxxxxxxx-Xxxxx Act of 2002 (the "Certifying
Party") and its partners, representatives, affiliates, members, managers,
directors, officers, employees and agents, to the extent that the following
information is within our normal area of responsibilities and duties under the
Pooling and Servicing Agreement, and with the knowledge and intent that they
will rely upon this certification, that:
1. I have reviewed the annual report on Form 10-K for the
fiscal year _______, and all reports on Form 8-K filed in respect of
periods included in the year covered by that annual report, of the Trust;
2. To the best of my knowledge, and assuming the accuracy of
the statements required to be made in the Master Servicer Backup
Certification and in the Special Servicer Backup Certification (in each
case, to the extent that such statements are relevant to the statements
made in this Trustee Backup Certification), that the information in such
reports relating to distributions on and/or characteristics (including
Certificate Principal Balances, Certificate Notional Amounts and
Pass-Through Rates) of the Certificates, taken as a whole, does not
contain any untrue statement of material fact or omit to state a material
fact necessary to make the statements made, in light of the circumstances
under which such statements were made, not misleading as of the last day
of the period covered by the subject Annual Report on Form 10-K;
3. To the best of my knowledge, the information in such
reports relating to distributions on and/or characteristics (including
Certificate Principal Balances, Certificate Notional Amounts and
Pass-Through Rates) of the Certificates includes all information of such
type required to be included in the Distribution Date Statement for the
relevant period covered by the subject Annual Report on Form 10-K; and
4. To the best of my knowledge, such information includes all
Servicer Reports and Additional Designated Servicing Information provided
to the Trustee by the Master Servicer and/or the Special Servicer
hereunder.
Capitalized terms used herein and not defined shall have the
respective meanings given to them in the Pooling and Servicing Agreement.
Date:
[NAME OF TRUSTEE]
By:
---------------------------------
Name:
Title:
EXHIBIT O-2
FORM OF MASTER SERVICER BACKUP CERTIFICATION
TO BE PROVIDED TO DEPOSITOR
Re: Greenwich Capital Commercial Funding Corp., as depositor,
Commercial Mortgage Trust 2003-C1 (the "Trust") Commercial
Mortgage Pass-Through Certificates, Series 2003-C1 (the
"Certificates")
Pursuant to Section 8.15 of the Pooling and Servicing Agreement,
dated as of June 30, 2003 (the "Pooling and Servicing Agreement"), between
Greenwich Capital Commercial Funding Corp., as depositor (the "Depositor"),
LaSalle Bank National Association as trustee (the "Trustee"), Wachovia Bank,
National Association as master servicer (the "Master Servicer"), GMAC Commercial
Mortgage Corporation as special servicer (the "Special Servicer") and ABN AMRO
Bank N.V. as fiscal agent, relating to the Certificates, the undersigned, a
____________________ of the Master Servicer and on behalf of the Master
Servicer, hereby certifies to the ____________________ as the officer executing
the subject certification pursuant to the Xxxxxxxx-Xxxxx Act of 2002 (the
"Certifying Party") and its partners, representatives, affiliates, members,
managers, directors, officers, employees and agents, to the extent that the
following information is within our normal area of responsibilities and duties
under the Pooling and Servicing Agreement, and with the knowledge and intent
that they will rely upon this certification, that:
1. I have reviewed all the Servicer Reports and Additional
Designated Servicing Information delivered by the Master Servicer to the
Trustee for the fiscal year [___];
2. Based on my knowledge, and assuming the accuracy of the
statements required to be made in the Special Servicer Certification (to
the extent that such statements are relevant to the statements made in
this Master Servicer Certification), the information in the Servicer
Reports and Additional Designated Servicing Information delivered by the
Master Servicer to the Trustee for such year relating to servicing
information, including information relating to actions of the Master
Servicer and/or payments and other collections on and characteristics of
the Trust Mortgage Loans and REO Properties, taken as a whole, does not
contain any untrue statement of material fact or omit to state a material
fact necessary to make the statements made, in light of the circumstances
under which such statements were made, not misleading as of the last day
of such fiscal year;
3. Based on my knowledge, and assuming the accuracy of the
statements required to be made in the Special Servicer Certification (to
the extent that such statements are relevant to the statements made in
this Master Servicer Certification), the information in the Servicer
Reports and Additional Designated Servicing Information delivered by the
Master Servicer to the Trustee for such year relating to servicing
information, including information relating to actions of the Master
Servicer and/or payments and other collections on and characteristics of
the Trust Mortgage Loans and REO Properties, includes all information of
such type required to be provided by the Master Servicer to the Trustee
under the Pooling and Servicing Agreement for such year;
4. I am responsible for reviewing the activities performed by
the Master Servicer under the Pooling and Servicing Agreement and, based
upon the review required under the Pooling and Servicing Agreement, and
except as disclosed in the Annual Performance Certification delivered by
the Master Servicer for such year, the Master Servicer has fulfilled its
obligations under the Pooling and Servicing Agreement; and
5. I have disclosed to the accountants that are to deliver the
Annual Accountants' Report in respect of the Master Servicer with respect
to such year all significant deficiencies relating to the Master
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.
The foregoing certifications under clauses 2. and 3. above assume
that the following sections and parts of the Prospectus Supplement did not, as
of the date thereof or as of the Closing Date, contain any untrue statement of a
material fact regarding the Mortgage Loan Seller Matters (as defined below) or
omit to state any material fact regarding the Mortgage Loan Seller Matters
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading: "Summary of Prospectus
Supplement--The Underlying Mortgage Loans and the Mortgaged Real Properties,"
"Risk Factors--Risks Related to the Underlying Mortgage Loans" and "Description
of the Mortgage Pool" and Annex A and Annex B to the Prospectus Supplement.
"Mortgage Loan Seller Matters" as used in the preceding sentence shall mean the
description of the Mortgage Loans, the Mortgaged Properties and the Mortgagors.
In addition, notwithstanding the foregoing certifications under clauses 2. and
3. above, the Master Servicer does not make any certification under such clauses
2. and 3. above with respect to the information in the Servicer Reports and
Additional Designated Servicing Information delivered by the Master Servicer to
the Trustee referred to in such clauses 2. and 3. above that is in turn
dependent upon information provided by the Special Servicer under the Pooling
and Servicing Agreement, beyond the certification required to be provided by the
Special Servicer pursuant to Section 8.15(d) of the Pooling and Servicing
Agreement. Further, notwithstanding the foregoing certifications, the Master
Servicer does not make any certification under the foregoing clauses 1. through
5. that is in turn dependent upon information required to be provided by any
Sub-Servicer identified on Exhibit K to the Pooling and Servicing Agreement,
acting under a Sub-Servicing Agreement that the Master Servicer entered into in
connection with the issuance of the Certificates, or upon the performance by any
such Sub-Servicer of its obligations pursuant to any such Sub-Servicing
Agreement, in each case beyond the respective backup certifications actually
provided by such Sub-Servicer to the Master Servicer with respect to the
information that is the subject of such certification.
Capitalized terms used herein and not defined shall have the
respective meanings given to them in the Pooling and Servicing Agreement.
Date:
[NAME OF MASTER SERVICER]
By:
---------------------------------
Name:
Title:
EXHIBIT O-3
FORM OF SPECIAL SERVICER BACKUP CERTIFICATION
TO BE PROVIDED TO DEPOSITOR
Re: Greenwich Capital Commercial Funding Corp., as depositor,
Commercial Mortgage Trust 2003-C1 (the "Trust") Commercial
Mortgage Pass-Through Certificates, Series 2003-C1 (the
"Certificates")
I, ________________ a ____________________ of [NAME OF SPECIAL
SERVICER] ("[INSERT SHORT NAME]") on behalf of [INSERT SHORT NAME], as Special
Servicer, hereby certify to [Greenwich Capital Commercial Funding Corp. (the
"Depositor")] [or, if certifying party is not the Depositor, INSERT NAME OF
CERTIFYING PARTY] and its affiliates, members, managers, directors and officers,
to the extent that the following information is within the Special Servicer's
area of responsibilities and duties under the Pooling and Servicing Agreement,
and with the knowledge and intent that they will rely upon this certification,
that:
1. I am responsible for reviewing the activities performed by
the Special Servicer under the pooling and servicing agreement, dated as
of June 30, 2003, relating to Greenwich Capital Commercial Funding Corp.,
as depositor, Commercial Mortgage Trust 2003-C1, Commercial Mortgage
Pass-Through Certificates, Series 2003-C1 (the "Pooling and Servicing
Agreement"), and, based upon the review performed as required under
Section 3.13 of the Pooling and Servicing Agreement, and except as
disclosed on Schedule I hereto, the Special Servicer, to my knowledge, has
fulfilled its material obligations under the Pooling and Servicing
Agreement, including the provision of all reports, if any, required to be
submitted by the Special Servicer to the Master Servicer and the Trustee
thereunder, and that, to the knowledge of the Special Servicer, such
reports do not contain any material misstatements or omissions; and
2. I have disclosed to the Special Servicer's certified public
accountants all significant deficiencies, to my knowledge, relating to the
compliance by the Special Servicer with the minimum servicing standards in
accordance with a review conducted in compliance with the Uniform Single
Attestation Program for Mortgage Bankers or similar standard as set forth
in the Pooling and Servicing Agreement.
Capitalized terms used herein and not defined shall have the
respective meanings given to them in the Pooling and Servicing Agreement.
Date:
[NAME OF SPECIAL SERVICER]
By:
---------------------------------
Name:
Title:
